PLJ 2000 SC 1863
[Appellate Jurisdiction]
Present: ABDUR RAHMAN KHAN, IFTIKHAR MUHAMMAD CHAUDHARY AND
abdul hamid dogar, JJ. STATE and
another-Appellants
versus
MUHAMMAD
YAQOOB and another-Respondents Criminal Appeals
Nos. 49/99 and 173/2000, decided on 18.9.2000.
<0n appeal from the judgment/order
dated 24.6.1998, of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in
Cr. Appeal No. 85-T/98/M.R. No. 62-T/98)
(i) Anti Terrorism Act, 1997--
-—S. 26--Murder of six persons-Acquittal-Challenge
to-Keeping in view rule laid down in Mehram
All case (PLJ 1998 SC 1415), High Court discarded confession of respondent
made before police-Contention that such
confession was admissible in evidence U/S. 26 of Anti Terrorism Act, and dictum in Mehram Ali case delivered on
15.6.1998 while saving past and closed
transaction did not apply to present case, which was decided earlier thereto i.e. on 4.4.1998-Held: Present
occurrence could not be termed as
past and closed transaction, because High Court decided it as an appeal by convict and Murder Reference by State
and Supreme Court was now dealing with it an appeal by State-Rule laid down in Mehram Ali case would fully apply to present case, and
on the strength of that judgment,
confession made before police being inadmissible could not be made basis for conviction—Appeal dismissed.[Pp. 1881 & 1882] G & H PLJ 1998 SC 1415 rel.
(ii) Constitution of
piece of evidence-Perusal of
statements of prosecution witnesses clearly showed that almost every one of them had been cross-examined about date of arrest of appellant as shown in
newspapers, which indicated the efforts
being made by appellant to lay basis for his arguments that he was arrested on night between 16/17,10.1997 and before
his remand to judicial lock-up, he was
shown to witnesses-If trial Court had accepted his application, then appellant's plea would have also appeared on
record; and keeping the stand of prosecution and defence side by ide, trial Court would have been able to resolve controversy in accordance with law-Case
remanded. [Pp. 1868 to 1870, 1875 & 1876] A & B
(iv)
Criminal Procedure Code, 1898 (V of 1898)-- —-S. 540 Additional
evidence-Duty of Court-After rejection of appellant's application for summoning witnesses named therein, he made statement
that he would not produce defence, though a day earlier in his statement U/S. 342, Cr.P.C,, he had stated that he could
produce defence-In these circumstances, whether appellant was debarred
from seeking any redress from Court--Held:
Calling of additional evidence was not conditioned on making application by
defence or prosecution, but it was duty of Court to do complete justice
between parties and carelessness or ignorance of one party or other or delay that might result in conclusion of case should
not be a hindrance in achieving that object-If on facts of a particular case,
it appeared essential to Court that
additional evidence was necessary for just decision of case, then under second
part of Section 540, Cr.P.C., it was
obligatory on Court to examine such a witness ignoring technical/formal objection
in this respect as to do justice and to avoid miscarriage
of justice—Held further: It is salutary principle of judicial proceedings in criminal cases to find out truth
and arrive at correct conclusion and
see that an innocent person is not punished merely because of certain
technical omission on his part or on the part of Court- ase was remanded to trial Court. [Pp.
1880 & 1881] D & E PLD 1985 SC 357 rel (vi) Recovery-
-—Contention that High Court
erred in discarding evidence of recovery of Klashinkov at behest of accused as it matched with empties picked up from spot—Held: In absence of any other
incriminating evidence, mere recovery on pointation of respondent/accused would
not be sufficient to old him guilty. [Pp. 1881 & 1883] F & I
Sahibzada Ahmad Raza Khan Qasuri, ASC arid Mr. Karam Elahi Bhatti, AOR for Appellant in Cr.A. 173/2000 and for Respondent in Cr. A.-49/99. Mr. Maqbool Elahi Malik, A.G. Punjab; Mr. Nasim
Sabir and Mr. Tariq Khokhar, Addl. Advocates General, Punjab; Ms. Yasmin
Saigol, Asst. A.G. Punjab, and Rao
M. Yousaf Khan, AOR for Appellant in Cr. A-49/99 and for Respondent in Crl. A-173/2000. Date of hearing: 12 to 15 and 18.9.2000. judgment Abdur Rahman Khan, J.-The above two appeals with leave of the Court arise from the common judgment of a learned
Division Bench of the High Court delivered
on 24.6.1998; whereby the appeal preferred by Muhammad
Yaqoob accused/respondent in Cr. Appeal No. 49 of 1999 against the judgment dated 4.10.1998, of the learned
Judge Special Court Anti-Terrorism was accepted and consequently his conviction
and sentence were set aside while
Cr. Appeal No. 173 of 2000 is by convict Muhammad Asif whose appeal was dismissed by the High Court and
consequently his conviction and
sentence imposed by the learned Special Judge, were maintained. As the above common judgment of the High
Court has been impugned in these two appeals, therefore, they are decided
together by this single judgment.
2. Muhammad Yaqoob accused/respondent in Appeal No. 49 of
1999, and Muhammad Asif appellant in Appeal
No. 173 of 2000, alongwith Qari Muhammad
Siddique (acquitted accused) and the absconding accused Qari Sarfraz, Muhammad Ajmal alias Akram Lahori and
Rashid, were charged for six
murders. The learned Special Judge Anti-Terrorism tried Muhammad Yaqoob, Muhammad Asif and Qari Muhammad Siddique
for the said murders as the other three
accused remained absconder. On the conclusion
of the trial by judgment dated 4.4.1998, he convicted Muhammad Asif and Muhammad Yaqoob under Section 302/34/109 PPC read
with Section 7 of the Anti-Terrorism Act and
sentenced each of them to death on six
counts and to pay fine of Rs. 20,000/- on each count but the third accused Qari Muhammad Siddique was acquitted; while the remaining
three accused were declared
absconders. Muhammad Asif and Muhammad Yaqoob impugned
the judgment of the learned Special Judge before the High Court and the State also filed appeal against acquittal of Qari
Muhammad Siddique. All the
three matters were decided by the impugned judgment by a learned Division Bench of the High Court, whereby the
appeal of Muhammad Yaqoob was
accepted and that of Muhammad Asif and the State were dismissed. Leave to appeal was granted to the State
against the acquittal of
Muhammad Yaqoob and Muhammad Asif against his conviction whereas the appeal of the State against Qari Muhammad
Siddique was not pressed and was,
accordingly, dismissed.
3.
The learned Advocate
General for the State in both the appeals and Mr. Ahmed Raza Qasuri, ASC
representing the respondent in Appeal No.
49/99 and the appellant in Appeal No.
173/2000, agreed between themselves that let
Appeal No. 173/2000, although fixed at No. 2 may be heard
first and, therefore, we would first deal with the said appeal.
4.
The FIR in this case
was lodged by a Traffic Police Constable, namely
Gul Muhammad (PW-19) on the spot. It was stated in this report that he alongwith Muhammad Saghir (PW-20) were present on
Traffic duty at Chohar Chowk when
at about 7.00 a.m. he noticed Hiace Vehicle No. RPT 1145
coming from
32 years of age of 5'-6" size with whitish colour having beard wearing
black shirt and shalwar armed with
Kalshnikov all of a sudden came before the said vehicle and fired a burst with Kalshnikov at the driver which hit
the driver and the vehicle stopped.
He then fired at the other six passengers in the vehicle who were dressed in Uniform. In the
meantime his another companion 26/27
years of age with red colour of 5'-9" size and having a white cap on his head and wearing a light 'badami colour'
clothes, armed with Kalshnikov
appeared there who also fired at the passengers present in the vehicle. The firing by the two accused killed
five persons on the spot and one received
serious injury. People in the Chowk ran away with the firing nd the said two accused proceeded
towards east to the opposite side of the road where
a boy of 22/23 years age with red colour wearing shalwar and Kamees riding on Honda Motor Cycle of black colour without
number plate came near them from the
other side of the road and two said persons rode on the motor cycle which proceeded to eastern side. The
incident was stated to ave been seen by
many persons. It was claimed that he and PW Asghar would be able to identify the assailants. An official Car in
which some army officers were
travelling soon after reached the spot from Peshawar side and took the dead bodies and the injured to CMH. He then
conveyed the information to Police
Control on which the Inspector/SHO Westridge reached the spot nd recorded his report.
5.
The prosecution
relied for conviction on the following pieces of evidence:--
(iv) The incident
occurred in the Chowk of the main G.T. Road in presence of numerous persons but
none was examined from the public to support the prosecution case.
(v) Munir Ahmed, an independent witness and Kazim Ahmed
the injured were not produced which
rendered the prosecution case doubtful.
(vi) No internal postmortem of the 5 deceased was
conducted, therefore, cause of their death could not
be ascertained.
(vii) There was blackening, burning/tatooing over some of
the injuries on the persons of the deceased which could not be caused from the distance shown by the eye-witnesses in
their statements and the site plan of the spot of occurrence and this discredits the eye-witness account.
8.
As on consideration of
the above first point we have decided to remand
the case to the trial Court, therefore, we would deal only with this point and discuss its merits and effect and would not
comment on the other points in order to
avoid any possible adverse affect about the culpability or otherwise of the appellant lest it may prejudice the case
of one side or the
other.
9.
It is necessaiy to
give factual background about Point No. 1 in order
to understand the view point of both the sides to resolve this controversy in its correct perspective.
On 28.3.1998 during the trial of the case the appellant
submitted an application under
Section 540 Cr.P.C.
for summoning/examining the witnesses
named therein alongwith the relevant record. In view of the mportance of this issue for our discussion the contents
of this application are reproduced
verbatim:—
"That
petitioner Qari Muhammad Siddique is accused in the above mentioned case and allegations levelled by the prosecution against him are that he harboured the
co-accused. The allegations are totally incorrect and
false. There is no truth in the prosecution story.
2.
That prosecution have
produced witnesses in this Honourable Court
and no other witness mentioned in the Calendar is left for evidence.
3.
That it is case of the
prosecution that the accused persons Asif was
arrested from the mosque of Qari Muhammad Siddique on 22.10.1997, on his pointation co-accused Muhammad Yaqoob was arrested. It is also mentioned in the report under
Section 173 Cr.P.C. that
present petitioner Qari Muhammad Siddique
was arrested on 6.11.1997.
4.
That all the major
newspapers of the countiy published main head
lines in their issues of 18.10.1997 and
19.10.1997, that accused Asif and Yaqoob alongwith Qari Siddique had been
arrested on the night between 16-17 October,
1997 but their arrest in the police record is on the mid
night of 22.10.1997, so if it is proved the
accused persons as well as the petitioner were arrested on the night of
16.10.1997 and 17.10.1997, then the prosecution
case stands no where as published in the daily newspapers of the country and the recovery subsequently effected from the co-accused on 23.10.1997 is also
seems to be fake because accused
were already in the custody of the police So it would be appropriate for
reaching on a just conclusion o: the case to call the relevant witnesses as CWs
in the interest o; justice.
5. That following witnesses as CW shall be
mandatory for the just decision of the case:-
(i) Tahir Mughal, Crime Reporter, Daily Khabrain, Head Office,
Sitara Market,
(ii) Asghar Mehmood, Crime Reporter, Daily News,
Jang Plaza,
(iiii
Secretary Provincial Assembly Punjab, Lahore alognwith record
dated 16-17.10.1997.
(iv) Mr.
Zulfiqar Ahmed Khosas, Senior Minister, Punjab Secretariat,
(v) Ch. Mushtaq Warraich, S.P. Khanewal.
(vi)
District Reporter, Associated Press of
In view of the above it is most respectfully prayed that
the above salt persons may kindly be
called as Court witnesses for reaching on just conclusion
of the case.
Petitioner
Through MALIK WAHEED ANJUM
Dt. 28.3.1998 Advocate High
Court"
This application was dismissed by the trial Court by
order dated 30.3.1998 which order
is reproduced:
"During
the investigation, the witnesses mentioned in both the applications never
appeared before any Investigating Officer, nor their statements U/S. 161 or 162
Cr.P.C., were recorded. Even otherwise, to my
mind, evidence of these witnesses in Court is nol essential for the just
decision of the case and the case can be decided judiciously and
justly, without these witnesses being examined in Court, so both the applications are dismissed." The importance of examining the witnesses mentioned in the
application was felt as in the leading
newspapers with large publication it had
appeared on 18.10.1997 and 19.10.1997 that the appellant was arrested on the night of 16/17.10.1997. The source of such item
of news was shown to be the Police Officers of the rank of SSP, SP and
Provincial Minister having given a statement in
the Provincial Assembly about the arrest of the appellant.
The clippings from the news-papers have been Marked on the case file and they are reproduced:-
1. English Newspaper "The News" dated 18.10.1997
marked Exh.DE by the trial
Court, where the heading of the relevant News
reads:
"3 arrested for murder of Iranians". "
11. Now we take up the State appear against Muhammad
Yaqoob. The learned Advocate General
and the learned Asstt: Advocate General while arguing Appeal No. 49 of 1999
filed by the State to challenge the acquittal
of Muhammad Yaqoob by the High Court argued that the learned Judges in the High Court have eiTed in discarding
the evidence of recovery of
Kalashnikov etc. at the behest of this accused as it matched with the empties
picked up from the spot. It was also submitted that the confession of the accused before the Police was admissible in
evidence under Section 26 of the
Anti-Terrorism Act, 1997 as the present case was decided on 4.4.1998 while the judgment of Mehram Ali case reported as
PLD 1998 S.C. 1445, was delivered on 15.6.1998 and this Mehram Ali case
has saved the cases which had concluded before decision of the case. These
submissions were opposed by the learned
counsel appearing for Muhammad Yaqoob.
12. The reasons which prevailed with the High Court in
the impugned judgment for acquittal
of Muhammad Yaqoob are reproduced: "Muhammad
Yaqoob appellant, upon arrest was not put to Identification Parade by the concerned police for the unknown reasons. The most important and basic evidence of
the identification of this appellant
having destroyed by the investigating agency has created an incurable
dent in the prosecution case to establish charge against him. The eye-witnesses categorically stated that they identified both the accused at the spot but
Muhammad Yaqoob appellant was not
taken to the Identification Parade to be identified by the witnesses and
consequently the participation of this appellant in the occurrence remains unproved. The identification of this accused in Court, by the witnesses without his
identification in jail immediately after arrest was of no value in the facts of
the present case. The appellant
having not identified by the eye-witnesses in the Identification Parade with
the role played by him in the occurrence, the
prosecution has not been able to establish his guilt beyond doubt. The evidence of recovery of Kalashnikov at the
instance of this appellant from the iron box lying in the room of his
residential house and matching of
some empties with the same itself is not enough evidence to sustain the
conviction. The prosecution gave much
importance to the confessional statement of the appellant before the D.S.P.
while in custody in the policy station. This confessional
statement having not made voluntarily did not acquire the status of extra-judicial confession. The D.S.P.
displaying the recording of
confessional statement through the vedio probably wanted to show that it was
voluntarily made out he forget that the appellant
was not mentally free. The appellant if was ready to make a confessional statement voluntarily instead of
recording of same by the D.S.P. to remove
any doubt the appellant should have been produced
before a Magistrate. The confession made before a police official of the rank
of D.S.P. was admissible under Section 26 of the Anti-Terrorism Act, 1997, but the same still could be
rejected by the Court, and necessary
to be believed and given effect. Be that as it may,
the apex Court in Mehram Ali's case (1998 S.C.M.R. 1156) has struck down the provisions of Section 26 of the Anti
Terrorism Act, 1997 by virtue of
which the confession before the D.S.P. was made admissible
and, therefore, the confessional statement made by Muhammad Yaqoob appellant before the D.S.P. is not an
evidence to be read as such and
used against the accused. With the exclusion of the
evidence of recoveiy, the confessional statement of the appellant and he having not identified through Identification
Parade, the evidence of
eye-witnesses in the given circumstances is of no help to the prosecution and the conviction and sentence of this
appellant being not based on
any evidence is not sustainable." The
above para shows that the High Court was of the view that mere recoveiy at the pointation of Muhammad Yaqoob was
not by itself sufficient to
justify conviction in absence of other incriminating evidence. The confession by the accused was discarded as having
been made before the Police Officer and as such violative of the rule laid down
in Mehram Ali case mentioned above. The
argument of the learned Advocate General that after the conviction in this case it became a past and closed
transaction and that the dictum in Mehram
Ali case would not apply to it as in the said case past and
closed transactions have been saved/protected, is not correct. The present occurrence cannot be termed as past and
closed transaction as the High Court
decided it as an appeal by the convict and Murder Reference by the State and we are now dealing with it as an
appeal by the State. In Mehram Ali
case the conviction and sentence were challenged in Writ Petition which were collateral proceedings as in
direct proceedings the petitioner had failed but in the present case we
are deciding the appeal against acquittal
against the judgment rendered by the High Court in appeal and Murder Reference,
therefore, it is not possible to hold that this appeal relates to past and
closed matter. The rule laid down in Mehram Ali case would, therefore,
fully apply and on the strength of that judgment the confession before the Police being inadmissible cannot be made basis for
conviction. We agree with the High
Court that in absence of any other incriminating
evidence mere recovery on the pointation of Muhammad Yaqoob respondent would not be sufficient to hold
him guilty. The learned Advocate
General was unable to show that the reasons given in the impugned judgment for acquittal of the respondent
were arbitrary or perverse. This
Court is always reluctant to interfere in acquittal order which does not suffer
from mis-reading/non-reading of evidence and which cannot be termed so perverse as to have caused
miscarriage of justice. The above are
the reasons for short order announced on 18..8.2000, which reads as under: "In the light of the factual and legal
position to be explained in the detailed
order, we accept Criminal Appeal No. 173 of 2000, filed by Muhammad Asif and set aside the impugned judgment
of the trial Court and the High Court
in respect of the said appellant and remand
the case to the learned trial Judge with the direction to summon the witnesses mentioned in the application
dated 28.3.1998 under Section 540
Cr.P.C. submitted by the appellant in the trial Court alongwith the relevant
record/documents and examine them as
Court Witnesses. Both the prosecution and defence be allowed to cross-examine these witnesses in accordance with
law. Thereafter, the learned trial Judge should decide the case afresh on the
basis of evidence already on record
and the one to be brought on record in pursuance
of this judgment without being influenced by anything stated/observed in the judgment of the trial
Court, the High Court or this Court.
The learned trial Court should resume hearing in this case on 2.10.2000 and
should finally decide it within three months and report of compliance
should be sent to the Registrar of this Court.
The learned Advocate General,
(S.A.K.M.) Orders accordingly.