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Official Citation: 2019 YLR 2219
Court / Jurisdiction: ISLAMABAD
Parties: MOAZ WAQAR vs StateHonorable Justice Mohsin Akhtar KayaniShajjar Abbas Hamdani,Shajjar Abbas Hamdani
This judicial decision was delivered by the ISLAMABAD. The matter involves proceedings between MOAZ WAQAR and StateHonorable Justice Mohsin Akhtar KayaniShajjar Abbas Hamdani,Shajjar Abbas Hamdani, officially reported as 2019 YLR 2219. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
2019 Y L R 2219 [Islamabad] Before Aamer Farooq and Mohsin Akhtar Kayani, JJ MOAZ WAQAR and others---Appellants Versus The STATE and another---Respondents Criminal Appeals Nos. 115, 126, Jail Appeal 114 and Murder Reference No.6 of 2016, decided on 26th February, 2018.
(a) Criminal trial---
----Last seen evidence--- Scope---Requirements of last seen evidence is to prove that witness has seen the deceased in company of the accused and identifies accused in court or during identification parade or the witness claims to know accused otherwise from his credentials or his personal information.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-Amd---Appreciation of evidence---Recovery of dead body and other material---Proof---Both accused persons faced trial and were convicted by Trial Court with one sentenced to death while the other for imprisonment for life---Prosecution did not produce maker of recording preserved in USB Storage before Trial Court nor investigating officer recorded statement of any person who had recorded video or prepared that USB Storage---Such was necessary evidence to be corroborated therefore, USB Storage had no evidentiary value for purpose of capital punishment---Such evidence could not be used even as incriminating material against other accused person---Evidence of Hotel Manager was also not in accordance with law to be considered as valid piece of evidence to be relied upon---Motive of occurrence was shrouded in mystery---SMS, CDR were not justified---Allegation of abduction was just an opinion of complainant---Even car allegedly used in incident was not linked in entire case---Recovery of dead body was disbelieved and complainant never disclosed details of jewelry at time of registration of FIR---Complainant tried to improve her case through supplementary statement in order to link the appellant with crime but no concrete evidence was brought on record---Place of recovery was already in knowledge of prosecution witness who had already reached at dead body prior to identification and pointing of dead body by one of the accused---House of one of accused remained open and inhabited and same house was used for four different occasions for purpose of recovery and same was not admissible in evidence---High Court set aside conviction and sentence awarded by Trial Court as prosecution failed to discharge onus regarding murder, resultantly accused were acquitted of the charge---Appeal was allowed in circumstances.
Asfandyar and another v. Kamran and another 2016 SCMR 2084; Muhammad Safeer and another v. The State and others 2017 PCr.LJ 1435; Kabir Shah v. The State through Advocate General and another 2016 YLR 1291; Khalid Javed and another v. The State 2003 SCMR 1419; Amin Ali and another v. The State 2011 SCMR 323; Kabir Shah v. The State through Advocate General, Khyber Pakhtunkhwa and another 2016 YLR 1291; Muhammad Safeer and another v. The State and another 2017 PCr.LJ 1435; Aurangzeb alias Guddu v. The State 2017 PCr.LJ 699 and Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCMR 1604 ref.
(c) Qanun-e-Shahadat (10 of 1984)---
----Art. 40---Recovery on disclosure---Scope---Any recovery cannot be a discovery in terms of Art. 40 of Qanun-e-Shahadat, 1984 if place is already known to investigating officer and other recoveries were also taken into possession from that place.
Shajjar Abbas Hamdani for Appellant (in Criminal Appeal No. 115 of 2016).
Syed Mohammad Tayyab and Ch. Wajahat Elahi for the Complainant (in Criminal Appeal No. 115 of 2016).
Haider Mehmood Mirza for Appellant (in Criminal Appeal No. 126 of 2016).
Syed Mohammad Tayyab and Ch. Wajahat Elahi for the Complainant (in Criminal Appeal No. 126 of 2016).
Haider Mehmood Mirza for Appellant (in Jail Appeal No. 114 of 2016).
Sadaqat Ali Jahangir, State Counsel (in all cases).
Shajjar Abbas Hamdani for Respondent (in Murder Reference No. 6 of 2016).
Date of hearing: 29th January, 2018.
JUDGMENT
MOHSIN AKHTAR KAYANI, J.---Through this single judgment we intend to decide Criminal Appeal No. 115/2016 filed by Moaz Waqar (appellant), Criminal Appeal No. 126/ 2016 filed by Asif Mehmood and Jail Appeal No. 114/2016 also filed by Asif Mehmood (appellant) who have been convicted and sentenced by learned Additional Sessions Judge (West) Islamabad in case FIR No.394, dated 12.10.2013, under sections 365-A, 302, 419, 420, 201/34, P.P.C., Police Station Aabpara, Islamabad vide judgment dated 31.05.2016 in the following manner:--
I. The accused Moaz Waqar is convicted under section 302(b) read with section 34 of P.P.C. and is sentenced to capital punishment of death, as Tazir. He shall be hanged by neck till he be dead. The accused will also pay amount of compensation in the sum of Rs.3,00,000/- each to the legal heirs of deceased under section 544-A of Cr.P.C. The amount of compensation shall be recoverable as an arrears of land revenue and it is further directed that in default of payment or of recovery as aforesaid, the convict shall suffer imprisonment for a period of 6 months (S. I.), under section 544-A(2) of Cr.P.C.
II. Accused Asif Mehmood is guilty of offence under section 302(b), P.P.C. for committing qatl-i-Amd of deceased Fahmina, however, due to existence of mitigating circumstances the maximum punishment of death is not awarded and he is sentenced to undergo imprisonment for life, as Tazir in order to meet the ends of justice. He is also burdened with compensation to the tune of Rs. 200, 000/- under section 544-A Cr.P.C. to be paid to the legal heirs of the deceased and in default thereto to further undergo six months S.I.
III. The accused are convicted under sections 201/34 of P.P.C. and are sentenced to rigorous imprisonment for 5 years along with fine of Rs. 20,000/-. In case of non-payment of fine, the accused will undergo further rigorous imprisonment for the period of two months.
IV. The accused are convicted under sections 420/419/34 of P.P.C. and are sentenced to rigorous imprisonment for 5 years along with fine of Rs.20,000/-. In case of non-payment of fine, the accused will undergo further rigorous imprisonment for the period of two months.
Appellants have been held entitled to the benefit of section 382-B, Cr.P.C.
Murder Reference No.06/2016 for confirmation or otherwise of death sentence of appellant Syed Moaz Waqar shall also be decided through this single judgment.
2. Brief facts of the case are that complainant Nosheba Taskeen (Nosheeba Tasleem) filed a complaint Ex.PQQ to SHO P.S. Aabpara, Islamabad with the following allegations:-
3. On the basis of said complaint/ Ex.PQQ, case FIR No.394, dated 10.10.2013, under sections 302/201, 419/420, 365-A/34, P.P.C., Police Station Aabpara, Islamabad was registered as Ex.PTT. The Investigation Officer arrested appellant Moaz Waqar who during the course of investigation disclosed that he along with one Asif Mehmood committed murder of deceased Fahmina, therefore, the complainant nominated accused Asif Mehmood vide supplementary statement dated 14.10.2013 and appellant Asif Mehmood was also arrested in this case. On their pointation dead body of deceased Fahmina as well as her personal belongings and .30 bore pistol were recovered and taken into possession. After preparation of autopsy report Ex.PE, Investigation Officer completed the investigation and submitted the Challan under section 173 Cr.P.C. against the present appellants before learned trial Court, after recording of evidence of 13 PWs including Dr. Tanvir Afsar Malik, Medico-Legal Officer, Federal Government Services Hospital, Islamabad (PW-1), Dr. Sabeen Aslam, Registrar Gyenie Department, Federal Government Services Hospital, Islamabad (PW-2) and Dr. Muhammad Naeem Jan (PW-10), concluded the evidence whereafter the statements of appellants were recorded under section 342, Cr.P.C. and both the appellants have been convicted and sentenced with abovementioned punishments vide impugned judgment dated 31.05.2016, hence, instant appeals/ Murder Reference.
4. Learned counsel for appellants contended that conviction passed by learned trial Court under sections 302(b)/ 419/ 420/ 201/ 34, P.P.C. is against law and facts of the case and the entire case is based upon circumstantial evidence in which the chain of evidence is missing whereas the learned trial Court has ignored the standard of proof and convicted the appellants without any basis; that the instant case has not been proved beyond any shadow of doubt and the recoveries have been planted in order to frame the appellants in this case; that dead-body was not recovered on the pointation of appellants and it has been brought in evidence through PW-6 who had already reached at the place of dead-body, whereafter, the appellants were taken to the said place as PW-6 was watching and performing his duties as Guard before arrival of police party; that the complainant in this case has changed her stance on different occasions and the evidence of CCTV video in USB/Ex.P-90 from Margalla Hotel has not been proved in accordance with law and there are glaring contradictions and dishonest improvements made by the prosecution in this case; that there is no direct evidence of last seen available against the appellants even the motive has not been proved independently; that the recovery of huge amount from appellant Moaz Waqar, was brought by the father of appellant which has been planted upon the appellants in the police station through different recovery memos in order to frame the appellants in this case; that USB/Ex.P-90 has not been proved in terms of the Qanun-e-Shahadat Order, 1984 being an electronic document.
5. Conversely, learned counsel for complainant as well as learned State Counsel contended that the prosecution has successfully brought every incriminating piece of evidence against the appellants whereby the appellant Moaz Waqar has been identified by PW-09/ Manager Margalla Hotel, Islamabad when he paid the bill of deceased Fahmina; that Ex.P-17 is invoice bill of Margalla Hotel which was signed by appellant Moaz Waqar and the defence side has not cross-examined the star witness, hence, the statement to that extent has to be considered as admitted against the appellant; that car bearing registration No.IDD-8365, Honda City used in said crime for removal of evidence was recovered from appellant Moaz Waqar and the same has been proved through Ex.P-1 rent agreement signed by the appellant Moaz Waqar; that vehicle used in crime has also been proved through the evidence of owner of rent-a-car business; that prosecution has proved the injuries of the deceased Fehmina through independent evidence of Dr. Tanvir Afsar Malik, Medico-Legal Officer, Federal Government Services Hospital, Islamabad (PW-1), Dr. Sabeen Aslam, Registrar Gynae Department, Federal Government Services Hospital, Islamabad (PW-2) and Dr. Muhammad Naeem Jan (PW-10).
6. Arguments heard, record perused.
7. From the perusal of record, it has been observed that case FIR No.394, dated 12.10.2013, under sections 365-A, 302, 419, 420, 201/34, P.P.C., Police Station Aabpara, Islamabad was registered on the complaint of Mst. Nosheba Taskeen (PW-11)/Mother of deceased through her complaint Ex.PQQ with the allegation against appellant No.1/Moaz Waqar in which she categorically alleged that her daughter Fahmina Ch. is attached with advertising business and she came to Islamabad-Karachi 2-1/2 months ago from Singapore for her job and she met a part time agent Moaz Waqar son of Syed Waqar in Singapore who promised her daughter to provide a business of advertisement and managed to engage her services in Pepsi company through Director Advertisement namely Amir. Complainant further alleged in her complaint that said Moaz Waqar called her daughter (deceased) and promised that he will arrange plots in Islamabad and Karachi and in order to arrange the said property he directed Fahmina to bring her jewelry, which was approximately worth of Rs.4,000,000/-. On 09.10.2013 Fahmina came to Islamabad from Karachi by air and stayed at Margalla Hotel near Convention Centre, Islamabad and last contact made by Fahmina with the complainant was on 10.10.2013 at about 06:00 p.m. At that time she told the complainant that she is going for a meeting whereafter, she has to leave for Singapore in morning on 11.10.2013 through flight however, she was not boarded flight and on 11.10.2013 complainant received SMS on her phone No.0321-2011925 from 0334-9554181 that her daughter is in custody of them in Peshawar along with two other persons and they have killed one of them and one is alive and if you (complainant) want to save your daughter then don't let anybody know as we are aware of your addresses in Rawalpindi and Karachi and we might kill all of them and claimed ransom of two crores within two days, therefore, complainant reached Islamabad and expressed her suspicion on Moaz Waqar as well as Amir (whose actual name might be changed) and contended that both have abducted her daughter Fahmina and are claiming ransom. She nominated appellant Moaz Waqar, Syed Waqar (father), Samina Waqar (mother), Javeria (sister) and his brother.
8. The police entertained complaint Ex.PQQ and converted the same into FIR No.394/2013/ Ex.PTT and started investigating the matter. The Investigation Officer Munawar Ahmed, Inspector (PW-12) arrested the appellant Moaz Waqar on 14.10.2013 on spy information from Bani Gala in vehicle No.IDD-8365 Honda City, Silver Colour whereby PW-12 contended that appellant Moaz Waqar disclosed that he picked deceased Fahmina on his vehicle No.IDD-8365, Honda City and dropped her at Centaurs Mall and went away and he did not know about her whereabouts. PW-12 (Investigation Officer) got recovered different articles Ex.P8 to Ex.P45 vide recovery memo Ex.PJ. The vehicle No.IDD-8365/Honda City was also taken into possession vide recovery memo Ex.PH and same was retained in police station. PW-12 further contended that on 14.10.2013 during the course of investigation the appellant Moaz Waqar made a disclosure that he along with his co-accused Asif had abducted deceased Fahmina from Margalla Hotel on their vehicle No.IDD-8365/Honda City, silver color and after committing her murder they have thrown her dead body at Shahpur Road Khajorian under the culvert in a nullah, thereafter, he led the police party and had pointed to the place of recovery of dead body i.e. Shahpur Road Khajorian and got recovered the dead body whereby memo of pointation of place of recovery of dead body was prepared as Ex.PM and the dead body was taken into possession vide memo of recovery of dead body Ex.PN. PW-12 further contended that memo of identification Ex.PRR was prepared and the same was signed by the witnesses and their statements were recorded under section 161, Cr.P.C. whereby the photographs of place of recovery were captured. The land from where dead body was recovered owned by one M.A Khalid and the house owned by Deputy Secretary Safeer Abbasi which was a nullah under the culvert at Shahpur Road Khajorian, Islamabad. The inquest report of the deceased Fahmina was prepared as Ex.PE. The application for postmortem was prepared as Ex-PB and was sent along with dead body to the Polyclinic Hospital, Islamabad. The postmortem was conducted and the dead body was handed over to the legal heirs for burial purposes through receipt Ex.PSS. The last worn clothes of the deceased along with weapon of offence i.e. cord Ex.P48, T-shirt Ex.P46, pent Ex.P51, brazier Ex.P47, razai/blanket Ex.P50, separate parcels of the weapon of offence/ cord, last worn clothes and blanket were prepared and sealed with the official stamp KJ 1/1 and taken into possession vide memo of recovery Ex.PQ. The site was inspected and unscaled site map plan was prepared as Ex.PWW. The request for obtaining phone record of accused Moaz and complainant was prepared as Ex.PXX and request was also made for constitution of Joint Investigation Team as Ex.PYY. The appellant Asif Mehmood was nominated vide supplementary statement of complainant dated 14.10.2013. PW-12 further contended that on 17.10.2013 appellant Moaz Waqar during physical custody made disclosure and led to his house No. 1615, at Bani Gala, from his living room at the northern side, he got recovered four white gold rings Ex.P52/1-4, two earrings Ex.P54/1-2, three chain lockets Ex.P53/1-3 which were taken into possession vide recovery memo Ex.PR. The owner of vehicle bearing No.IDD-8365 Honda City, presented the agreement of the vehicle Ex.P1, authority letter Ex.P3. Investigation Officer also got recovered the mobile I-4, Black Color, which was used for the purpose of ransom through recovery memo Ex.PS. On 20.10.2013 the Investigation was transferred to Qasim Khan, Inspector. 9. PW-13 Muhammad Qasim Khan Niazi, Inspector got recorded his statement before the learned trial Court and contended that on 22.10.2013 he arrested appellant Asif Mehmood near Aabpara Chowk and on 24.10.2013 Waqar Ahmed (father), Samina Waqar (mother) and Sidra Noor (sister of appellant Moaz Waqar) who were nominated in the FIR were discharged from the said case however, PW-13 further contended that 12 photographs Ex.P6/1-12 of the place of recovery of dead body were taken into possession by him vide recovery memo Ex.PG. The statements of witnesses were recorded under section 161, Cr.P.C. PW-13 further contended that deceased Fahmina was murdered by strangulating with a cord Ex.P48. On 25.10.2013 PW-13 got recovered a pistol concealed by appellant Moaz Waqar at Kashmir Highway and a separate FIR under section 13/20/65 A.O. was also registered. PW-13 also got recovered the SIM used for the purpose of ransom demanded by the appellant Moaz Waqar and appellant Moaz Waqar also got recovered under his clothes an amount of Rs.400,000/- which was managed through sale consideration of jewelry articles of deceased sold by the appellant Moaz Waqar which were taken into possession vide recovery memo Ex.PEE. Appellant Asif Mehmood led the police party to his house in Satra Meel and got recovered two suitcases belonging to deceased Fahmina one hand bag and disclosed that these are the same articles which were given to him by appellant Moaz Waqar on 10.10.2013, the items which were present in those suitcases Ex.P65 to Ex.P89/1-4 were also taken into possession vide a separate recovery memo Ex.PFF. Appellant Moaz Waqar also got recovered SIM No.03345376429 from vehicle No.IDD-8365 which was also taken into possession through recovery memo Ex.PGG/Ex.PU. PW-13 received an amount of Rs.6 lacs from the father of appellant Moaz Waqar on 29.10.2013, Rs.5 lacs on 04.11.2013, Rs.140,000/- on 06.11.2013. Father of appellant Asif Mehmood also handed over to PW-13 an amount of Rs.80,000/- on 06.11.2013 and Rs.160,000/- on 11.11.2013, all these amounts were taken into possession vide recovery memo Ex.PHH, Ex.PJJ, Ex.PKK, Ex.PLL and Ex.PMM.
10. Besides the above referred investigation conducted by two inspectors the prosecution brought on record the statement of complainant Nosheba Taskeen as PW-11, Jahangir Hussain, Manager Margalla Hotel, as PW-9, Nazakat Hussain, ower of rent-a-car as PW-4, Sikandar Ali, Constable as PW-6, Malik Amir Shahzad, draftsman as PW-7, Iftikhar Ahmed, Head Constable as PW-8, Muhammad Irshad, Head Constable, as PW-5, Muhammad Rasheed, ASI as PW-3, and three doctors i.e. Dr. Tanveer Afsar Malik, MLO as PW-1, Dr. Sabeen Aslam as PW-2 and Dr. Muhammad Naeem Jan as PW-10 who examined deceased Fahmina.
11. Dr. Tanvir Afsar Malik, Medico-Legal-Officer, Federal Government Services Hospital, Islamabad appeared as PW-1 who conducted the autopsy observed as under:-
"EXTERNAL APPEARANCE
It was a dead body of female of very good physique wearing grey color half sleve T-Shirt, bra dark pink colour, navy blue colour tight jeans, white colour underwear, with eyes closed and mouth opened, with protruded tongue which was bitten in between teeth. Body was in advance stage of de-composition and there abundant amount of maggots all over the body with foul smell coming out of the body. There was pealing of skin over the limbs (upper and low limbs).
EXTERNAL EXAMINATION
On external examination following injuries were observed:-
1. Injury No.1: There was a ligature mark on the middle of the neck tightly with rope and depression of the ligature mark present all over the horizontal aspect of the neck which was about 20 inches in all circumference.
2. Injury No. 2: There was a contusion mark on the medi aspect of upper 1/3rd of the left theigh measuring 08 c.m. x 6 c.m. x 4 c.m. in diameter which was only skin deep.
3. Injury No.3: Punctured wound over the left side of the scalp with surrounding redness, which was deeply seated.
On dissection of the skull, dural membranes of the left side of the skull were ruptured but there was no extra dural or sub-dural heamorrhage.
On dissection of neck, there was deep contusion mark all over the transfers aspect of the sub-cutanaous tissues and muscles of neck, Tracheal rings were intact Ilyoid bone not fractured, clinical. On opening of the tracheal cavity slightly blood stained fluid was present.
Skull and vertebrae healthy, membranes spinal cord, dural membranes of the left side of the skull were ruptured, otherwise healthy.
ABDOMEN.
Walls peritoneum, mouth pharynx and oesophagus, diaphragm pancreas, liver, spleen, kidneys bladder were healthy. Stomach and its contents were healthy and semi digested contents in small quantity were present. Large intestine and contents were healthy with miled fecal matter.
EXTERNAL AND INTERNAL ORGANS OF GENERATION.
Pad was present due to menstruating, otherwise healthy.
OPINION
In my opinion, deceased sustained ligation over the middle of the neck which was homicidal in nature, causing the obstruction of upper respiratory tract organs causing the hypoxia and later-on anoxia causing the death of the deceased. All these injuries were ante-mortem in nature and were sufficient to cause death in ordinary course of life.
Probable time between injury and death five to seven minutes and probable time between death and postmortem approximately four days."
12. The prosecution produced Dr. Sabeen Aslam, Registrar Gynie Department, Federal government Services Hospital, Islamabad as PW-2 who has also given the details referred above by PW-1. The post-mortem report has been brought on record as Ex.PA.
13. Dr. Muhammad Naeem Jan appeared as PW-10 who issued death certificate Ex.POO of deceased Fahmina.
14. The above referred case prepared by the prosecution is based upon evidence of last seen, recovery of dead body, recovery of articles of deceased, recovery of SIM used for the purpose of ransom, recovery of crime weapon i.e. Cord Ex.P48, therefore, in order to verify all these factors we have appraised the entire evidence submitted by the prosecution, however, all these portions of chain have to been seen separately in order to justify the conviction.
LAST SEEN.
15. The prosecution has produced Jahangir Hussain, Manager of Maralla Hotel, Islamabad as PW-9 who got recorded his statement before the Court that on 09.10.2013 one lady namely Fahmina Umair Suleman came to hotel and she checked in the hotel by the hotel staff. She provided copy of her passport. She was given room No.134 of the hotel. She said that her husband will come and he should be allowed to come inside the room. On 10.10.2013 one man whose name was later on revealed Moaz Waqar (appellant) came and paid the total charges of the room and went away and at about 12 noon same day he again came on silver colour Honda Civic car and placed the luggage of deceased Fahmina in his vehicle and went away with the deceased Fahmina. On 12.10.2013 the footage of CCTV camera was taken in USB Ex-P90 regarding the arrival and departure of the deceased and accused, was handed over to the I.O. along with entry card Ex.P91 (Learned defence counsel objected on the exhibition of USB in terms of Articles 164, 73 and 78-A of Qanun-e-Shahadat Order, 1984). During the course of cross-examination following factors have been observed:-
(i) The Chief Security Officer of the hotel is the concerned person who looks after the camera and security system.
(ii) The Chief Security Officer is also not an I.T man.
(iii) There is no person specifically appointed for monitoring the CCTV footage.
(iv) USB was not prepared by PW-9 it was prepared by the I.T person, who prepared the USB under his permission. PW-9 doesn't remember the name of person who prepared the USB.
(v) PW-9 is not aware that who was on duty when the CCTV footage was prepared and was handed over to the police on 12.10.2013.
(vi) The I.O. also did not record the statement of the person who prepared the USB and brought it to me to produce to the I.O.
(vii) PW-9 does not know the contents of the footage because he neither saw it before nor after it was prepared.
(viii)…
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