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Official Citation: 2024 IHC 208824
Court / Jurisdiction: Islamabad High Court
Parties: Atta Ullah vs The State etc
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2024 IHC 208824. In this matter between Atta Ullah and The State etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Mr. Justice Arbab Muhammad Tahir, Honourable Mr. Justice Babar Sattar, Honourable Mr. Justice Mohsin Akhtar Kayani) AUTHOR JUDGE: Honourable Mr. Justice Arbab Muhammad Tahir DECISION DATE: 14-MAY-2024 CASE NO: Criminal Appeal-171-2019 CITATION: 2024 IHC 208824 PARTIES: Atta Ullah VS The State etc LAW / SECTION: - SUBJECT: Against Conviction (PPC), Death Sentence REMARKS: Against Death Sentence ============================================================ Crl. Appeal No.171/2019
Attaullah
Versus
The State and another
I N D E X
1. Opinion of Hon’ble Justice Babar Sattar, J. Page 2 to 33
2. Opinion of Hon’ble Justice Mohsin Akhar Kayani, J. Page 34 to 45
3. Opinion of Referee Judge Page 46 to 61 (Hon’ble Justice Arbab Muhammad Tahir, J.) 1 Form No: HCJD/C-121. JUDGEMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD JUDICIAL DEPARTMENT
(1) Criminal Appeal No. 171/2019 Attaullah Vs. The State.
(2) Murder Reference No. 13/2019 The State Vs. Attaullah
APPELLANT BY: Raja Ghanim Aabir Khan and Mr. Muhammad Ilyas Khan, Advocates
STATE BY: Mr. Osama Azeem Chaudhry, State Counsel. Mr. Waseem Anwar Bhatti, Advocate.
DATE OF HEARING: 03-11-2022.
BABAR SATTAR, J.- Through this judgment we will decide (i) Criminal Appeal No. 171/2019 filed by Attaullah against the judgment of the learned Sessions Judge dated 18 .05.2019, whereby he has been found guilty under section 302(b) of PPC and sentenced to de ath and has been held liable to pay compensation to the legal heirs of Junaid Mustafa deceased in the amount of Rs.500,000/- in terms of section 544 -A, Cr.P.C, and in default of payment or recovery of compensation undergo further imprisonment for a period of six months (S.I) and has been convicted under section 392 of PPC and sentenced to ten years rigorous imprisonment with fine in the amount of Rs.100,000/ -, and (ii) Murder Reference No. 13 /2019, whereby the judgment of the learned Session s Judge, East -Islamabad dated 18 .05.2019, through which he has found Attaullah guilty for an offence under section 302(b) of Pakistan Penal Code, 1860 (“PPC”) and 2
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sentenced hi m to death, has been referred to us under section 374 of the Code of Criminal Procedure, 1898, for confirmation. 2. Junaid Mustafa was a 26-year-old Careem Captain , who was murdered at 03.00 a.m on 22.02.2018 having been shot thrice at the edg e of service road G-13/1 and Street 79, G-13/1, Islamabad. He stumbled into Street 79 and collapsed after walking a few meters . Noman Wahab (PW -8), who was a private night watchman hired by the residents of street 79, heard three gun shots, witnessed the collapse of the deceased Junaid Mustafa and heard him recite the Kalma before passing away. He informed the occupant of a nearby house. After a while rescue 1122 arrived and so did police officials and the body of the deceased was taken to Pakistan Institute of M edical Sciences (PIMS) where postmortem of the body of the deceased was performed. According to the po stmortem report the deceased had been shot thrice. One of the bullets entered and exited his wrist and two bullets hit his neck, inflicted considerable damage on his internal organs and caused his death. 3. The prosecution’s case is that the appellant , Attaullah, murdered Junaid Mustafa. Attaullah booked a ride through Careem App for pick-up in F -11 Markaz and was dropped off on the service road adjacent to Street 79, G -13/1, Islamabad. With the int ent of robbing Junaid Mustafa of his vehicle (i.e. Suzuki Wagon R Stingray bearing No. AEG-658), Attaullah pointed a gun at J unaid Mustafa , who resisted and was consequently shot . During what transpired Attaullah dropped his CNIC at the edge of the service road which was recovered by the Investigating Officer, 3
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Inspector Muhammad Riaz Gondal (PW -13). On the basis of the initial record provided by Careem, the Investigating Officer procured a profile photo of the customer who ordered the Careem Cab driven by Junaid Mustafa , which was that of Attaullah even though the customer’s name mentioned in the Careem’s database was Ifran Ullah. Attaullah meanwhile drove the vehicle after the incident to Mardan, Khyber Pakhtunkhwa. He then drove back the vehicle back to Islamabad on 22.02.20218 and parked it close to a roadside hotel (Chappar Hotel) i n G-16/4 Islamabad, which was owned and managed by Attaullah’s father and three other people . Attaullah left the 30 -bore pistol that he used to sho ot the deceased Junaid Mustafa under the driver’s seat along with two magazines and ten bullets. On the basis of information supplied by an informer Attaull ah was arrested from Islamabad C howk at 11.00 a.m on 24.02.2018 while driving ano ther stolen vehicle. He was interrogated. On his pointation the police recovered the vehicle on 27.02.2018 after Attaullah led the police party first to the road side hotel and then pulled out the keys of the vehicle from a drawer in the hotel and led the police to the vehicle. From the vehicle the police recovered a 30-bore pistol, two magazines and ten bullets. 4. The case is one of circumstantial evidence where there is no eye-witness or direct evidence of the murder of Junaid Mustafa or the armed robbery attributed to the appellant, Attaullah. The learned Sessions Court has provided a summary of the evidence adduced by thirteen prosecution witnesses , which will be discussed subsequently in this judgment. The learned Sessions Court also examined three journalists as court witnesses but did 4
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not rely on their testimony while finding Attaullah guilty of murder and armed robbery. 5. The prosecution’s case that convinced the learned Sessions Court that Attaullah h ad murdered Junaid Mustafa is built on three planks. The first is evidence of Attaullah booking a Careem C ab on 22.02.2022 in response to which the deceased Junaid Mustafa picked up Attaullah from F-11 Markaz Islamabad at 02.35 am and dropped him off at the corner of service road, and Street No.79, G-13/1 Islamabad at 02.58 am. The second plank of the prosecution’s case is that Attaullah in the process of shooting the deceased and robbing him off his vehicle dropped his CNIC at the place of occurrence (i.e. the corner of service road and street 79, G-13/1), which led to his identification by virtue of his profile photo for the account registered through mobile No. 0335-5167487 through which the Cab had been booked. While the mobile number was registered in the name of Irfan Ullah, the account was registered in the Careem system in the name of Attaullah and had his profile photo in the Careem database. The Investigating Officer thus matched the photo procured from the Careem system with the photo on the CN IC dropped by Attaullah at the place of occurrence and de termined that Attaullah was the last person in touch with the deceased Junaid Mustafa , who robbed him of his vehicle and shot him in the process. The third plank of the prosecution’s case is two sets of recoveries. The first is the recovery of the c ell phone which had the SIM No. 0335 - 5167487 installed in it and the phone had the Careem App installed in it through which the Careem Cab had been or dered early morning on 22.02.20 18. The second recovery was the 5
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vehicle that was parked next to roadside hotel in G -16/4 supposedly co-owned and co -managed by appellant’s father. And it was Attaullah on whose p ointation the recovery was made. A nd while the recovery was being made from a public place, Attaullah had exclusive knowledge of the vehicle’s key that he had hid inside the roadside hotel. Attaullah opened the vehicle using the key and the police then recovered the murder weapon (i.e. 30- bore pistol) as well as magazines and bullets from under the driver’s seat. 6. The prosecution’s case is therefore built on the ba sis that evidence procured from Careem together with the recovery of the cell phone from Attaullah establishes that he ordered the Careem Cab driven by the deceased Junaid Mustafa on the fateful morning of 22.02.2018. This evidence while being in virtual mode acquires the form of last seen evidence establishing that the deceased Junaid Mustafa was last determined to be alive while driving the Careem Cab to pick up and drop Attaullah. The CNIC recovered from the place of occurrence then places Attaullah at such place at the time when Junaid Mustafa was shot. The night watchman, Noman Wahab (PW -8), witnessed him breathing his last on Street 79 , G -13/1 at 3.00 am on 22.02.2018 . And the vehicle that Junaid Mustafa was robbed of was subsequently recovered on the pointation of Attaullah who had exclusive knowledge of the hiding place of the key for such vehicle. 7. The motive was not pleaded in an explicit manner but is built within the prosecution story. Attaullah needed money as he was to marry soon . And to generate the required funds he began 6
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stealing cars and disposing them off in alliance with his friend , Zubair Khan, who was based in Mardan, KP. He intended to steal the vehicle being driven by Junaid Mustafa as part of his vehicle – stealing-enterprise. A nd when the deceased resisted , Attaullah shot the deceased and fled with the vehicle. A nd he was subsequently arrested while driving another stolen vehicle. 8. The lear ned Sessions Court, however, did not dwell on the motive and whether it had been proved , and also made no observations with regard to Attaullah’s conviction under section 392 of PPC. Whil e the learned Sessions Court did not state in its judgment that the motive stood proved, conviction of Attaullah for armed robbery under section 392 of PPC suggest s that t he learned Sessions Court deemed that the murder was driven by the intent to rob Junaid Mustafa of his vehicle. 9. Learned counsel for the appellant made the following submissions. There was no direct evidence against Attaullah and all the evidence adduced was circumstantial. SIM No. 0335- 5167487 was not registered in the name of Attaullah but Irfan Ullah, who had purp ortedly furnished an affidavit to the Investigating Officer stating that the SIM had been handed over to Attaullah. But Irfan Ullah never appeared as a witness to testify before the Court or produce any evidence. The phone purportedly recovered from the possession of Attaullah, which had SIM linked to the number 0335 -5167487 installed in it , was not subjected to forensic examination to e stablish that it was in the use of Attaullah. The purported Careem App installed in the phone was also not subjected to forensic examination to establish that the 7
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said App had been used to book Junaid Mustafa’s cab . The Security Manager of Careem, Qaiser Qayyum (PW-3), exhibited photo copies of documents printed out by Careem to establish the route of Junaid Mustafa’s cab, but no examination of Careem’s database had b een undertaken to determine whether Junaid Mustafa’s Careem Cab had in fact been booked from the cell phone linked with SIM No. 0335 -5167487. The empties were recovered from the place of occurrence on 22.02.201 8 but were not sent for forensic examination till after the appellant was arrested on 24.02.2018 and the alleged murder weapon was recovered from the vehicle on 27.02.2018. Consequently any report stating that the empties sent for forensic examination on 27.02.2018 matched with the gun also recovered on 27.02.2018 and sent for forensic examination on 05.03.3018 was inconsequential. Likewise, the recovery of the vehicle from a public place was also in consequential and there was no direct or corroborating evidence to establish that Attaullah had parked the vehicle from where it was recovered. There was also no independent evidence that Attaull ah’s father was running the roadside hot el close to which the vehicle had been parked and there were no independent eye-witness of the recovery of the vehicle or of Attaullah procuring the key of the vehicle from a hidden place inside the road side hotel. There was no evidence adduced to establish the motive. There was no evidence brought on record that Attaullah had sto len other vehicle s. Neither Irfan Ullah (whose affidavit was presented as Ex -PJ stating that he had handed over a SIM registered in his name to Attaullah) was investigated as an accused person or presented before the court 8
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as a witness , nor Zubair (who all egedly aided and abetted Attaullah in selling stolen cars and was visited by Attaullah on 22.02.2018 after Junaid Mustafa had been murdered ) was investigated as an accused or produced as a wit ness. The prosecution recovered no CCTV footage from cameras installed in Street 79, G -13/1, even though Noman Wahab, the night watchman, had testified that the house at the corner of the street had CCTV c ameras installed. The prosecution also collected no evidence from the Safe City Cameras installed in Islamabad to determine the movement and route of Junaid Mustafa’s car . Learned counsel for the appellant submitted that the prosecution’s case was based on suspicion alone and the extra -judicial testimony attributed to Attaullah was procured while he was in detention and was not voluntarily given. He submitted that benefit of doubt ought to be given to the appellant and given the lack of evidence implicating the appellant in murder or robbery the appellant was liable to be acquitted. 10. The learned State Counsel submitted that while the case was one of the circumstantial evidence, the complete chain linking Attaullah to the murder of Junaid Mustafa had been established through reliable evidence. He made the following submissions. Attaullah’s CNIC was found at the place of occurrence. The Investigating Officer got the profile photo of Attaullah from the Careem database on the basis of the number linked to the profile that ordered the Careem cab. The night watchman Noman Wahab recalled that Attaullah had previously been involved in property business for which he used to visit G -13. This established that Attaullah was familiar with the location where he asked the 9
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deceased Junaid Mustafa to drop him off. The c ell phone which had the SIM through which the Careem Cab had been ordered was found in possession of Attaullah when he was arrested on 24.02.2018 driving another stolen vehicle. This established that Attaullah was in the business of stealing vehicles and he was in possession of the device through whic h the Careem Cab being driven by Junaid Mustafa had been ordered. While a forensic examination of the cell phone had not been undertaken , the learned Sessions Judge had himself taken judicial notice of the fact that the phone in question was in the use of Attaullah by switching on the phone during the trial and determining that the App through which the Careem Cab had been ordered was installed on the cell phone, which cell phone had also photos of Attaullah. Attaullah while in police custody led to the rec overy of the vehicle, the key for which he had hidden inside the roadside hotel and the location of the key was in his exclusive knowledge. The recovery of the vehicle thus established that Attaullah had robbed the vehicle. The murder weapon was then recovered from the vehicle which was last used by Attaullah and locked by him and such recovery linked Attaullah to the murder of the deceased Junaid Mustafa and the robbery of the vehicle. 11. Let us consider the fault lines in the sequence of events and the evidence as produced by the prosecution. The incid ent took place at 03.00 am on 22.02.2018 at the corner of Street 79, G-13/1 and service road of G -13/1. Muhammad Hanif ASI (PW-9) was the first person who reached the place of occurrence, a fter which th e body of the deceased was removed through Rescue 1122. Muhammad Hanif (PW -9) remained at the place of 10
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occurrence and witnessed the recoveries of empties as well as the CNIC of Attaullah at around 11.30 a m when Muhammad Riaz Gondal, Inspector/I.O (PW-13) r eached there along with the deceased’s brother/complainant, Sohail Mustafa (PW -7). The site map suggest s that recoveries were made from the edge of the service road e ven though the place of occurrence was n ot cordoned off. And the recoveries were not made by Muhammad Hanif ASI (PW-9), who first arrived at the place of occurrence at 03.20 am, but the empties and the CNIC of Attaullah just sat on a functional public road to be recovered by Muhammad Riaz Gondal, Inspector (PW-13) at around 11.30 am. 12. It is perplexing that according to the prosecution’s case , Attaullah, after murdering Junaid Mustafa , drove the vehicle out of Islamabad Capital Territory all the way to Mardan, KP , to consult with Zubair (his accomplice in selling stolen vehicle s), but he did not hide the stolen vehicle with Zubair or in any other place in KP, but drove back in the same vehicle to park it not very far from the murder site. While doing so he sto pped at the bridge over Attock River and threw deceased’s cell phone and wallet into the river so that it could not be recovered. But he retained the cell phone linked with SIM No. 0335 -5167487 through which he had ordered the Cab in his own possession enabling the police authorities to link him to the murder. He drove the robbed vehicle back to Islamabad on the day of the murder knowing full well that he had snatched it from somebody he had murdered and found it convenient to park the vehicle adjacent to roadside hotel co - owned and co-managed by his own father. And further he found it convenient to deposit the key in a drawer within such hotel. He 11
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was then arrested by virtu e of information provided by an informer driving another stolen vehicle. And at such time the cell phone he used to order the Careem Cab was in his personal possession along with another cell phone. This sequence of events does not appeal to a prudent mind . I f the motive was to rob Junaid Mustafa of his vehicle, which was to be sold on the black- market, and Junaid Mustafa got shot because he resi sted the robbery, why would the appellant dri ve the vehicle all the way to Mardan from where i t was to be disposed of with the help of Zubair and then dri ve it all the way back and park it next to his father’s roadside hotel? It also makes no sense that wh ile Attaullah had the presence of mind to di spose of cell phones and wallet of the deceased in the Attock River he would retain the cell phone he used to order the Careem Cab to facilitate the establishment of a link between the murder of Junaid Mustafa and himself. 13. It is equally incomprehensible why the accused would leave the murder weapon under the driver seat in the robbed vehicle. While Munir Khan, ASI (PW -5) testified that he witnessed Attaullah recovering the car key from inside the roadside hotel, as was testified by Muhammad Riaz Gondal (PW -13). However, the police party chose not to affiliate any private witness es with the recovery. Given that the key was not being recovered from an isolated place but from inside a functional roadsi de hotel during day time, it is inconceivable that there was nobody present at the hotel at the time of such recovery. 14. More inscrutable than the circumstantial evidenc e produced by the prosecution are the acts of omission by the 12
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Investigators. Noman Wahab (PW -8), the night watchman, testified that there were CCTV cameras installed at the corner house of the Street 79 , G -13/1. Bu t the footage from such cameras was not procured to see if it provided any lead s. The vehicle was driven outside of Islamabad all the way to Mardan, KP, and back to Islamabad but no footage was procured from Safe City Cameras installed across Islamabad to determine the time at which the vehicle left Islamabad Capital Territory and when it returned and who was the person driving it. 15. The cell phone through which the Careem Cab driven by Junaid Mustafa had been ordered was registered in the name of Irfan Ullah , who was neither included in the investigation as an accused, nor was produced as a witness, even though his affidavit was retained and adduced by Muhammad Riaz Gondal (PW -13) wherein he had purportedly stated that he had handed over the SIM to Attaullah and that his sister was going to be married to Attaullah. If such affidavit were to be believed , Irfan Ullah wa s a key witness t o support the prosecution ’s case and help establish the presence of the appellant as a last customer driven by the deceased Junaid Mustafa and possibly help to support the prosecution’s story that Attaullah ’s motive was to generate funds for his impending wedding with Irfan Ullah’s sister. There was nothing on record to es tablish that the prosecution mad e any efforts to adopt coercive measures to procure the presence of Irfan Ullah before the court. 16. The prosecution also did not investigate Zubair. Ev en if Zubair had no part to play in the murder, he would have been a 13
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key witness to establish the prosecution story that Attaullah visited him on 22.02.2018 after the murder along with the stolen vehicle and had also share d his plans of selling stolen vehicle s to generate funds of his wedding . No other witness was produced to establish that Attaullah was in the business of stealing vehicles and selling them. I f the purpose of the robbery was to sell the vehicle stolen from Junaid Mustafa at gun point, it would make no sense for Attaullah to bring the vehicle back in to Islamabad instead of disposing it of in KP once he had successfully driven it there. Was Attaullah not aware that the ve hicle was linked to the virtual system managed by Careem and the police authorities would be looking for such vehicle, which is why he disposed of the deceased’s cell phone in Attock river ? The cell phone recovered from Attaullah was not subjected to any f orensic examination. A forensic examination of the Careem App installed in such phone together with the examination of the system maintained at the offices of Careem would have established that the App in question was used in ordering the vehicle being dri ven by the deceased. A forensic examination of the cell phone which was not registered in Attaullah’s name could have established that the phone was in fact in the personal use of Attaullah and the photos in the phone were such that could only have been taken by some body using the phone. For such purpose the prosecution could have produced expert testimony before the learned trial court . However such lacunae were apparently filled by the learned Sessions Judge taking judicial notice of the use of the cell phone by switching it on and satisfying himself while conducting the trial that the Careem App was installed on the phone and the photos in the 14
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phone were such that it appeared that the phone had been in Attaullah’s personal use. 17. The CDR date produced by the prosecution does not present a consistent picture. Once it had been established through reliable evidence that the phone in question used to order the Careem Cab was in possession and use of Attaullah the CDR could then establish his whereabouts before and after the murder and robbery. It was the prosecution ’s case that two cell phones (having SIMs No. 0335 -5167487 and 0349 -0999345 as reflected in Ex-PC) were recovered from Attaullah ’s personal possession at the time of his arrest. If these two phones were in his possession at the relevant time , their location according to the…
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