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Petitioner: Pir NOROZ ALI SHAH VS Respondent: The STATE
Court Name: Peshawar High Court Judge(s): Lal Jan Khattak, Syed Arshad Ali Title: Pir NOROZ ALI SHAH vs The STATE Case No.: Cr. Appeal No, 165-A of 2012 Date of Judgment:2017-11-30 Reported As: 2019 P Cr. L J 457 Result: Appeal allowed
JUDGMENT
JUDGMENT SYED ARSHAD ALI, J.---Through this single judgment we intend to dispose of Jail Cr. Appeal No, 165-A of 2012, Cr. Appeal No,166-A of 2012 and Cr. Appeal No, 3-A of 2013, as all the three said appeals are the outcome of single judgment passed by the learned Judge Anti-Terrorism Court, Hazara Division. at Abbottabad on 21.12.2012 in case FIR No, 988 dated 29.10.2010 under section 365- A/34, P.P.C. and 13, A.O. of Police Station Mirpur, District Abbottabad whereby the learned Judge Anti-Terrorism Court, convicted the appellants under section 365-A, P.P.C. and sentenced them to undergo Rigorous Imprisonment for life, ordered confiscation of their movable and immovable property in favour of the State and also ordered confiscation of motorcar bearing registration No, LZJ-0808 used in the commission of crime, in favour of the State. Benefit of section 382-B, Cr.P.C. was extended in favour of the appellants-convicts. 2. Precise facts of the case are that Aurangzeb Asad Advocate, the complainant on 29.10.2010, through a written application addressed to SHO Police Station Mirpur, Abbottabad lodged report Ex PW-16/1 wherein he has narrated that on the fateful day, he along with his family came from Mansehra to Abbottabad to meet his relative Abdur Rasheed Tanoli whose house is situated at Jinnah Abad, Javed Shaheed Road, Abbottabad. At 07:00 p.m., his son Talal Asad who was then aged about 16/17 years and student of 1st Year in Abbottabad Public School, told him that he was going to meet his friend. Hence, he left to meet his friend in Suzuki Jimny Jeep unregistered (applied for). When till 08:30 p.m., his son did not return, then he tried to contact him on his mobile No, 0300-9118800 but found the same not responding. Resultantly, he along with Abdur Rasheed Tanoli went out to find him and when they reached at Iqbal Road, and went to the house.of his friend Ibrahim Rana, who told them that Talal Asad (abductee) had come to see him but then had
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left at 07:30 p.m. and even he forgot to collect his mobile phone from the dashboard of the Jeep, he disclosed his mobile No,0331-5743008. He further disclosed that he had been calling him on his mobile, however, the same was not responding. They then decided to search him out. When they reached near Sethi Mosque, they found their Jeep parked there abandoned on the road side. There were some people and cart carriers (labourer) who told them that a boy who was driving the jeep was abducted by some people in a corolla car. He found the keys of the jeep on the road. 3. His report was incorporated in the FIR Ex.PW-11/1. The investigation was assigned to Fazal-ur- Rehman Khan Inspector (PW-20). The investigating officer visited the spot, where he found the Jeep driven by the abductee. On the pointation of complainant, he prepared site plan Ex.PW-20/1 and took the Jeep in his possession through recovery memo Ex.PW-8/1 in presence of the marginal witnesses. On the same day he handed over the vehicle to the complainant vide Sapurd Nama Ex. PW-16/2 . 4. On the following day, i,e, 30.10.2010, the complainant recorded his statement under section 161, Cr.P.C. wherein he disclosed that the abductor had demanded Rs, 50 million as ransom for the release of his son Talal Asad from Cell No, 0300-9118800 which was in use of Talal Asad. In view of such a statement, investigation Officer added section 365-A, P.P.C. in the FIR vide memo Ex.PW- 20/2. 5. On 02.11.2010, two teams were constituted for the search of abductee Talal Asad headed by Additional SHO Tariq (not produced as a Prosecution. Witness). The purpose behind constitution of the teams was to conduct inquiry about the persons who were residing as tenants in the vicinities of Small Industrial Estate, Iqbal Town etc. In this connection when they were conducting door to door inquiry, when reached street No, 2, Iqbal Town near Small Industries, they knocked at the door of a house. A boy opened the door and when they were inquiring about the owner of the house, Abdul Hafeez SI (PW-14) noticed three persons on the roof of the house who were trying to escape. Accordingly they chased them and succeeded to apprehend one of them namely accused Pir Noroz Ali while the other two fled away. On search of accused Pir Noroz Ali, he recovered a .30 bore pistol bearing No, 3140 FF along with a magazine loaded with six live rounds (P-4) from his trouser fold. He also recovered a keychain (P-5), having two keys from his pocket. He prepared recovery memo Ex.PW-2/1 in presence of the marginal, witnesses. The team then took the accused to that house and on his pointation found/recovered the abductee Talal Asad confined therein and chained with an iron cot. Accordingly abductee Talal Asad was recovered and in this regard, he prepared recovery memo Ex.PW-2/2. According to the said recovery memo, abductee Talal Asad was fastened with a cot in a room of the house which was in possession of accused (absconding) Abid Afridi. There was no female inmate in the house. The abductee was found blind-folded. The arrested accused Pir Noroz All Shah was having swelling on his left hand and ankle, therefore, he was also taken to hospital and was medically examined by doctor Waqar Iqbal CMO, DHQ Hospital, Abbottabad PW-19. 6. Investigation officer Fazal-ur-Rehman reached at the spot and accused Pir Noroz Ali Shah along with pistol and live rounds were handed over to him, which were already sealed in a parcel. He prepared the Card of arrest of accused Pit Noroz Ali Shah Ex.PW-20/3. On the pointation of Abdul Hafeez ASI, he also prepared the sketch,Ex.PW-20/4 of the house from where the abductee was recovered. He also recovered household articles, Nikah Nama P-19 Beenish Sajid from the house. Since, the Section of law was changed to 365-A, P.P.C. from 365, P.P.C., therefore, the investigation was transferred to Ali Akhtar Khan Inspector, Counter Terrorism Department. He recorded the statement of abductee Talal Asad under section 161, Cr.P.C at the police Station. Vide application Ex.PW-21/1, he produced accused Pir Noroz Ali before the Court on 03.11.2010 and obtained his five days police custody. During investigating accused Pir Noroz Ali disclosed the names of co-accused involved in the commission of offence. According to the rent agreement, (recovered from the
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house) the house from which the abductee was recovered was rented out to Zahid Hafeez Abbasi (absconding accused), on 05th September, 2007. On 08.11.2010, on expiry of the custody of accused Pir Noroz Ali, he vide his application Ex.PW-21/2 requested for further police custody of the accused and consequently obtained seven days further, custody of the accused. 7. On 11.11.2010, accused Attique Ullah was arrested as depicted from his card of arrest Ex.PW-21/5. He was produced before the Judicial Magistrate on 12.11.2010 with request for police custody. The learned Judicial Magistrate was pleased to grant 11 days of police custody of accused Attique Ullah. Accused Pir Noroz Ali Shah was produced before Judicial Magistrate for recording his confessional statement on 12.11.2010 and on the said date, he made a confession. Accused Attique Ullah was again produced before the Judicial Magistrate on 22.11.2010 for his further custody which was granted by the learned Judicial Magistrate and ultimately on 26.11.2010, accused Attique Ullah also confessed his guilt before Judicial Magistrate. 8. On 21.11.2010, accused Adam Khan alias Faisal was arrested who was produced before the Judicial Magistrate on 22.11.2010 and the investigation officer requested for 15 days physical custody of the said accused which was granted by the judicial Magistrate vide order dated 22.11.2010. On 05.12.2010, the said accused Adam Khan alias Faisal was again produced before the Judicial Magistrate for further custody. The learned Judicial Magistrate was pleased to grant further custody of 03 days. On 08.12.2010, accused Adam Khan alias Faisal also confessed his guilt before the Judicial Magistrate. It is also the case of prosecution that thee aforesaid accused had also made pointation, while in police custody, of the place of occurrence and the manner and mode through which the offence was committed by them. On 23.12.2010, the identification parade of accused Attique Ullah and Adam Khan alias Faisal was conducted by the learned Judicial Magistrate in the jail premises. In the said Identification Parade, the abductee PW-18, identified accused Attique Ullah and Adam Khan alias Faisal as accomplice in the crime. 9. After completion of investigation, complete challan was submitted through Public Prosecutor before the learned Judge Anti-Terrorism Court, Hazara Division, Abbottabad. Accordingly the accused were summoned from jail. After compliance of section 265-C, Cr.P.C. the learned Court framed charge on 30.10.2011, to which all the accused did not plead guilty and claimed trial. The prosecution produced 21 witnesses whereas Sher Dil Mad Moharrir appeared as CW-1 who produced the daily diary pertaining to report No, 10 dated 21.10.2010 showing the departure of Ali Akhtar Khan Inspector PW-21. After conclusion of the trial, the statement of the accused was recorded under section 342, Cr.P.C. wherein they again denied the charges, retracted from the confession recorded by them and stated that the same was the result of torture and was not voluntary. 10. After hearing arguments of learned counsel for the parties, the learned trial Court vide impugned judgment dated 21.12.2012, convicted the appellants under section 365-A, P.P.C. and sentenced them to undergo Rigorous Imprisonment for life, ordered confiscation of their movable and immovable property in favour of the State and also ordered confiscation of motorcar bearing registration No, LZJ-0808 used in the commission of crime, in favour of the State. Benefit of section 382-B, Cr.P.C. was extended in favour of the appellants-convicts. 11. Learned counsel appearing on behalf of the appellants-convicts has argued that the prosecution has failed to connect the appellants-convicts with the commission of offence. Indeed the present appellants-convicts were made scapegoat. The alleged confession of the appellants- convicts is neither voluntary nor true as evident from the contents of the alleged confession coupled with other evidence of the prosecution on which they have made out their case against the present appellants-convicts. He has further argued that the appellants-convicts were twice given in the custody of police and at the time of alleged confession, no notice was given to the appellants-convicts that if they do not confess their guilt, their custody will not be given to the
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police. The appellants-convicts remained in the custody of police for more than fifteen days and the learned Magistrate has recorded the confession in haste and in slipshod manner without fulfilling the legal and procedural requirement for obvious reasons. Regarding the identification parade, the learned counsel for the appellant-convicts have argued that since the appellants- convicts remained in police custody for more than fifteen days in the police station and it is also evident that the lockup where they were kept was exposed to the persons visiting the police station and it is also in the evidence that the complainant as well as the abductee had also visited the said police station during the investigation of the case, hence, the appellants-convicts were seen by the complainant and abductee before the identification parade , therefore, the identification parade which was conducted after considerable delay, was meaningless. Even otherwise, in the identification parade, no role was specified regarding the accused so identified. They lastly argued that the circumstantial evidence do not support the case of prosecution and prayed for acquittal of the appellants-convicts. 12. Messrs Mustafa Khan Swati and learned Additional Advocate General, while controverting the arguments of the learned counsel for the appellants-convicts have argued that the prosecution has established the involvement of the appellants-convicts in the case and since there was no enmity or mala fide of the complainant to substitute the present appellants-convicts for the alleged real culprits, therefore, their conviction in the present case are based on proper evidence. They further argued that the prolonged custody with the police of the appellants-convicts will not vitiate the confession, which was otherwise established to be true and voluntary. 13. Heard: The entire edifice of the prosecution case against the appellants-convicts rests on the raid conducted by the police officials on the house which was in possession of Abid Afridi (absconding accused) wherefrom not only the abductee Talal Asad was recovered but the accused Pir Noroz Ali was also arrested who during investigation A disclosed the names of co- accused. In support of the raid which was conducted on 02.11.2010, the prosecution has produced PW-2 Mazhar Khan and Abdul Hafeez SI PW-4. PW-2 while appearing in the Court has stated that on 02.11.2010, two teams were constituted for the search of abductee Talal Asad. Both were headed by Additional SHO and when they reached street No, 2 Iqbal Town, they knocked at a door belonging to Abid Afridi (absconding accused).There they saw three persons, who were running from the house and were chased as a result of which Pir Noroz Ali Shah accused was arrested, whereas Abdul Hafeez Khan SI who was also the member of raiding party appeared as PW-14. He has narrated in his statement that on 02.11.2010, the SHO constituted a police party for the recovery of abductee Talal Asad. He was member of the said team and the purpose of this team was to conduct inquiry about persons who were residing as tenants in the locality of Small Industrial Estate Town. When they reached street No, 2 Iqbal Town near Small Industries, they knocked at the door of a house. A boy opened the door and when they inquired from him about the owner of the house, he (the PW) noticed that three persons on the roof of the same house were trying to escape. On being chased only accused Pir Noroz Ali was arrested, whereas the other two co-accused made good their escape. He has also stated in his report that the raiding party was headed by Tariq Khan SI whereas the member of the said raiding party was Mazhar LHC, Fangraish constable, Mir Afgan LHC, Amir constable and Zohra lady constable. The prosecution neither produced Tariq Khan Additional SHO who was allegedly leading the, team nor the SHO of the police station to establish that indeed a team was constituted for the said purpose. Even the lady constable was not produced to record her statement regarding entry into the house. What has irked this Court that despite the fact that daily diary regarding the departure of Akhtar Ali on 05.05.2011, was produced, but the daily diary of the Police Station Mirpur has not been produced to establish the constitution and departure as well as arrival, of the raiding team. In order to establish the movement of police officials through confidence inspiring evidence, the production of daily diary of
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the police Station showing the departure, constitution of raiding team, its members and subsequent arrival, was a material piece of evidence in favour of prosecution. Indeed the daily diaries are maintained under the erstwhile Police Rules 1934. Under Rule 28.48 it is mandatory for every police official to make entry of his departure, arrival and all proceedings conducted between the intervening period of departure and arrival. Non-production of the daily diary has caused serious doubts in the prosecution C case regarding the mode and manner of raid. (Abdul Sattar and others v. The State 2002 PCr.LJ 51, Atta Ullah v. The State 2017 PCr.LJ 1992). Apart from that, irreconcilable contradictions are floating on the surface of record and are evident from the statements of PWs regarding the mode and the manner of the raid. PW-14 Abdul Hafeez SI has stated that when they knocked at the door of the house, a boy opened the door and at that time he noticed three persons on the roof of the house. What happened to the said boy, whether he was arrested and interrogated or he also escaped from the spot, is a myster. Although the said witnesses have stated that they chased the escaping accused, however, the lady constable was there and the natural reaction of the police party would have been to first arrest the boy who opened the door. Likewise, PW-2 disclosed in his statement that Talal Asad abductee, at the time of recovery was blind folded with black coloured cloth, he unfolded the cloth and upon inquiry he disclosed his name as Talal Asad. Similarly, PW-2 in his statement has also stated that one black coloured piece of cloth which was tied on the eyes of the abduc tee was also taken into E possession. However, when the abductee himself appeared as PW-18, he has stated in his cross- examination that at the time when he was recovered by the police, his eyes were not covered. The sketch Ex PW-20/4 shows that accused Pir Noroz Ali was arrested from place "F" which is a street at the back of the house, whereas on the left and right of the raided house, there are further houses and no street has been shown connecting the street from front side of the raided house with the street falling at the back of the said house from where accused Fir Noroz Ali was arrested. It has not been mentioned that how did the police reached at point "F" to arrest accused Pir Noroz. Ali. Although the prosecution has stated that accused Pir Noroz Ali was arrested because while jumping from the house, he sustained injury on his ankle and left hand, therefore, he was unable to run and was apprehended. In this regard they have also produced doctor Waqar Iqbal CMO DHQ Hospital, Abbottabad who has stated that on 02.11.2010, he examined accused Noroz. Ali Shah brought by Abdul Hafeez ASI and he found swelling on his left ankle with scratches on the left ankle joint and scratches on the back of left hand with swelling. However, in his cross-examination, he has stated that he has examined Pir Noroz. Ali accused at 10:00 p.m. and he has not given the duration of the injuries. He has also confirmed that there is a possibility that the injuries might have been caused with blunt weapon/object. Hence, the injury on the body of accused Pir Noroz Ali Shah, is of no help for prosecution. It is also on the record that the raiding party remained on spot for sufficient time, they waited for the arrival of the investigating officer, however, during this entire time period, they have not associated anyone from the neighborhood as a marginal witness to the search of the house and the pointation allegedly made by Pir Noroz Ali Shah leading to the recovery of abductee. True that insisting upon the prosecution that in all circumstances, while conducting search of a house, association of independent witnesses from public is not warranted, as association of private witnesses during search depends upon the varying circumstances of the case. It would be unrealistic to say that the provision of section 103 of Cr.P.C. should be complied with in all circumstances, irrespective of the fact whether it is practically possible to apply, however, it does not absolve the prosecution to at-least come forward with reasonable justification that an effort was made to cite the private witnesses from the locality which is thickly populated. Even in this case, the prosecution has not bothered to produce Tariq Khan Additional SHO who was allegedly heading the raiding party and the lady constable who was present on the spot to ensure that the search and recovery was made in the manner and mode as narrated by the prosecution.
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In view of the above facts the prosecution has remained unsuccessful in establishing the manner and mode of the recovery of the abductee as a result of search conducted by a team and arrest of the accused Pir Noroz Ali Shah. 14. Now adverting to the confession of the appellants-convicts. The confession which has been retracted by the appellants-convicts must be established by the prosecution that the same was true, voluntary, inculpatory and in line with the other prosecution evidence and in cases where there are more than one accused who have made the confession, the said confession is not mutually contradictory. It is also well settled that mere long custody of the accused making confession with the police per-se is no ground to disbelieve their confession when otherwise the H said confession on the face of it appears to be true, voluntary and is supported by the circumstantial evidence. In the present case, accused Pir Noroz Ali Shah was arrested on 02.11.2010. Initially five days custody was given to police and he was produced on 08.11.2010 for I further custody of seven days and it was on 12.11.2010, when he made the confession. In his confessional statement, he has stated that accused Mushtaq (absconding) and Attique Ullah de-boarded the abductee from his jeep. Similarly, accused Attique Ullah was arrested on 11.11.2010. He was produced before the Magistrate on 12.11.2010 and the learned Magistrate granted 11 days police custody. After completion of custody, he was again produced on 22.11.2010 before the learned Magistrate who was pleased to grant further custody of seven days and it was on 26.11.2010, he made the confession. In his confessional statement, he stated that he and Khanzaib (absconding accused) de-boarded abductee Talal Asad from his Jeep. Accused Adam Khan alias Faisal was arrested on 21.11.2010. He was produced before the magistrate on 22.11.2010 for physical custody, who was pleased to grant 15 days custody of the accused to the police. On completion of said period of custody, he was again produced for further custody on 05.12.2010 which was again granted and finally he confessed his guilt on 08.12.2010. He has stated that Mushtaq and Attique Ullah had de- boarded abductee from the vehicle. Abductee Talal Asad appeared before the Court as PW-18. Despite the fact that he had identified the accused in Court as well as in the identification parade which was conducted on 23.12.2010, however, he did not utter a single word about the role of accused Attique Ullah, who according to his confessional statement de-boarded him from his jeep at the time of his abduction. In the circumstances when the accused Pir Noroz Ali, before making confession remained in the custody of police for 10 days, accused Attique Ullah remained in custody for 15 days and accused Adam Khan alias Faisal remained in police custody for 18 days. Hence, the judicial Magistrate was duty bound to have L provided sufficient time to the aforesaid accused before recording their confession. The certificates provided by the judicial officer along with the confession statement of the accused shows that only 30 minutes were given to each accused for thinking before recording their confessional statement. In such circumstances, when the accused remained in the custody of police and at two occasions they were produced before the Magistrate who granted their further custody to the police, 30 minutes time to the accused for thinking does not appear to be sufficient time as the record is completely silent that earlier when the accused were produced before the Judicial Magistrate, under what circumstances further custody was given to police and why they did not confess their guilt at that occasion. In such like situation the august Supreme Court of Pakistan in "Azeem Khan v. Mujahid Khan (2016 SCM R 274)" while disbelieving the confession has laid that:- "Keeping in view the High Court Rules, laying down a binding procedure for taking required precautions and observing the requirements of the provision of section 364 read with section 164, Cr.P.C. by now it has become a trite law that before recording confession and that too in crimes entailing capital punishment, the Recording Magistrate has to essentially observe all these mandatory precautions. The fundamental logic behind the same is that, all signs of fear inculcated by the Investigating Agency in the mind of the accused are to be shedded out and he is to be
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provided full assurance that in case he is not guilty or is not making a confession voluntarily then in that case, he would not be handed over back to the police. Thereafter, sufficient time for reflection is to be given after the first warning is administered. At the expiry of that time, Recording Magistrate has to administer the second warning and the accused…
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