PLJ 2022 Cr.C. 24 (DB)
[Lahore High Court, Rawalpindi Bench]
Present: Ch.
Abdul Aziz and Ali Zia Bajwa, JJ.
RASHED alias
Chand, etc.--Appellants
versus
STATE
etc.--Respondents
Crl. A.
No. 582-J & C.S.R. No. 03-T of 2016, decided on 25.5.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302
& 34--Anti-Terrorism Act, (XXVII of 1997), S. 7--Article 22 of
Qanun-e-Shahadat Order, 1984--Identification Parade--CCTV
Footage--CDR--Confessional statement--Sentence of--Allegation that a person
with pistol was catching hold of complainant’s sister in law (BHAbhi) while a
third person was pinned to the ground by his deceased brother--the person who
had entered into the house, suddenly fired a shot at left flank of his
deceased--Appellants were arrested and were immediately sent to judicial
custody for holding of identification test proceedings, during which they were
rightly picked up by the witnesses as culprits of crime--PW’s are closely
related with deceased but admittedly neither they were having any acquaintance
nor enmity with appellants--Holding of post-mortem examination without afflux
of any delay also positively reflects upon the acclaimed presence of
eye-witnesses at the spot--Evidence of identification test derives its
admissibility from Article 22 of Qanun-e-Shahadat Order, 1984 and it is conducted
in cases where assailants are not previously known to the
eye-witness--Assumption that every relevant part of the chain of events is
considered before the final disposal by a judicial forum dealing with the
criminal cases, so that no evidence can be discarded on the ground of
irrelevant considerations--A fact to be a part of same transaction with that of
fact-in-case should be spontaneous, ruling out any possibility of
concoction--Confessional statements of all three appellants were recorded
separately by Magistrate--Such confession was made voluntarily and it contains
true account of the occurrence--DNA type of forensic evidence is of great help
in criminal cases, where identity of an accused is suspicious--The question as
to whether DNA tests are virtually infallible may be a moot question, but the
fact remains that such test has come to stay and is being used extensively in
the investigation of crimes and the Court often accepts the views of the
experts, especially when cases rest on circumstantial evidence--Articles of DNA
sampling and fingerprints samples, were not sent to PFSA instantly rather the
same was done only after the arrest of appellants and after obtaining their
buccal swab standards and finger print samples. This sole fact has shaken the credibility
and evidentiary value of report of Deoxyribonucleic Acid (DNA) test and
fingerprint matching report and these reports have proved a futile
exercise--Whenever a sample for forensic test is obtained or taken into
possession, same should be sent to Forensic laboratory without any unnecessary
and un-explained delay, to rule out possibility of any fabrication or
tampering--Deceased had no personal enmity with appellants--Deceased judicial
officer was assassinated by the appellants just because of grievance of
appellant against the deceased in relation to performance of his official
duties--This fact is narrated by each of the appellants with full clarity in
their voluntary and detailed confessional statements--Appellant pre planned the
occurrence with other accused persons and also participated in the commission
of offences during the whole transaction--He did not fire at the
deceased--Awarded Life imprisonment--Appellant who had fired at the deceased
and had hatched a plan with the other appellants to commit the murder of
deceased judicial officer awarded Death sentence on two counts, one u/s 302(b),
PPC and one u/s 7(1)(a) read with section 21(I)ATA.
[P.
28, 31, 32, 38, 41, 42, 43 & 44] A, B, C, D, E, F,
G,
I, J, M, N, O, P, Q, R, S & T
2021 SCMR 325; 2016 SCMR 2152;
2009 SCMR 825;
PLD 2019 SC 488; 2017 SCMR 986 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302
& 34--Wajtakkar Evidence--Res gestae--the evidence of a wajtakkar witness,
is relevant under the doctrine of res gestae as this witness came across the
appellants while they were fleeing from the vicinity of crime while brandishing
their weapons.
[P.
38] H
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 & 34--Confessional statement--A confessional
statement, if true, voluntary, and containing full details of the events of an
occurrence, even if retracted afterwards, can be made basis of conviction even
in case of capital punishment. [P.
40] K
PLD 2019 SC 577 ref.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 164--CCTV Footage--Call detail report (CDR)--evidence
of CCTV footage and CDR pertaining to the cell phones of appellants0--CCTV
Footage is concerned, admittedly, it was not containing the clear visuals of
the incident and the facial features of the culprits were also
blurred--Evidence of CCTV footage is destined to be discarded--Call data record
no person or record keeper of the cellular company appeared in the dock to
provide legal sancity to such evidence. [P.
41] L
Qanun-e-Shahadat Order, 1984 (10 of
1984)--
----Art. 164--DNA--DNA test of items recovered from place of occurrence i.e.
a butt of cigarette and a cigarette case with the buccal swabs of the
appellants--it can be obtained from any biological material such as bone,
blood, semen, saliva, hair, skin, etc. Generally, when DNA profile of a sample
found at the scene of crime matches with DNA profile of the suspect, it can
generally be concluded that both samples have the same biological origin.
[P.
41] M
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 164--DNA--The results of DNA comparison may help
establish that the suspect committed the crime--Apex Courts haves started
encouraging to have recourse to such like modern scientific and forensic
evidentiary methods. [P. 41] N
PLD 2021 SC 362 ref.
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----Ss. 6(2)(n) & 7--When deceased judicial officer was
done to death in relation to his
official duties being a public servant, this act of appellants squarely falls
within the ambit of “terrorism” because section 6(2)(n). [P. 44] T
Barrister Osama Ameen Qazi, Shahbaz Shah for Appellant.
Mr. Naveed Ahmad Warraich, Deputy District Public
Prosecutor for State.
Syed Intikhab Hussain Shah, Advocates for Complainant.
Rana Aftab Ahmed, Research Officer for Research Assistance.
Date of hearing: 25.5.2021.
Judgment
Ali Zia Bajwa, J.--Rashed
alias Chand, Aamer Bhatti and Fiaz alias Masha (hereinafter
“appellants”) involved in case FIR No. 730/2015 dated 05.08.2015 registered
under Sections 302& 34 of Pakistan Penal Code, 1860 and Section 7 of Anti-
Terrorism Act, 1997 at Police Station Sadiqabad, Rawalpindi, were tried by
learned Judge, Anti-Terrorism Court-II, Rawalpindi, who vide judgment
dated 08.06.2016 convicted and sentenced them, the detail of which is as under:
-
(i) Under
Section 449 read with Section 34, PPC to suffer rigorous imprisonment
for 10-years and to pay fine of Rs. 50,000/- each and in default whereof to
further undergo imprisonment for 03-months.
(ii) Under
Section 302 read with Section 34, PPC to suffer death sentence as
Ta’zir.
(iii) Under
Section 7(1)(a) read with 21-I of the Anti-Terrorism Act, 1997 to
suffer death sentence.
(iv) Under Section
7(1)(b) read with 21-I of the Anti-Terrorism Act, 1997 to suffer life
imprisonment along with fine of Rs. 50,000/-.
(v) Under Section
13 of Pakistan Arms Ordinance XX of 1965 read with Section 21-M of ATA,
1997 to suffer imprisonment for 07-years along with fine of Rs. 30,000/- and in
default whereof, to undergo imprisonment for 03-months each.
• Apart from the
above-mentioned sentences, appellant Aamir Bhatti was also convicted under
Section 354 PPC and sentenced to undergo rigorous imprisonment for 2-years
along with fine of Rs. 20,000/- and in default whereof to further undergo
imprisonment for 02-months.
• Benefit of
Section 382-B, Cr.P.C. was given to all the appellants in the sentences awarded
under, PPC.
• All the
sentences, except death sentences, were directed to run concurrently.”
Assailing their conviction and
sentences, appellants preferred Criminal Appeal No. 582-J of 2016,
whereas trial Court sent reference under Section 374 of Code of Criminal
Procedure, 1898 which was numbered as Capital Sentence Reference No. 03-T
of 2016 for the confirmation or otherwise of death sentences inflicted
upon the appellants. Since both these matters are inter se connected,
hence, both are being decided through this single judgment.
2.
Succinctly stated, the facts of the prosecution case as unveiled by Muhammad
Sajjad Khan Niazi (PW.15) in FIR (Exh.PA/1) are that on 05.08.2015 at about
01:00 p.m., when he came out of his house to visit the adjacent house of his
brother Tahir Khan Niazi (deceased), he saw a person present there, sitting on
a motorcycle without having a number plate, who entered in the house of deceased
and complainant also followed him; that at the door of TV Lounge, he saw that a
person with pistol was catching hold of complainant’s sister in law (Bhabi)
while a third person was pinned to the ground by his deceased brother; that the
person who had entered into the house, suddenly fired a shot at left flank of
his deceased brother, due to which he fell down; that on his hue and cry, all
the three accused rushed out in the garage while pointing the pistols at the
complainant and fled away from the place of occurrence on the motorcycle; that
he took his brother in a vehicle to Benazir Bhutto Hospital (BBH), Rawalpindi
for medical treatment, but he succumbed to the injuries at the hospital.
3. The law was set into motion on the statement/Fard Biyan
(Exh.PA) made by Muhammad Sajjad Khan Niazi (PW.15) before Allah Yar
Inspector/SHO (PW.17) during his visit to BBH Rawalpindi. Allah Yar Inspector
sent Fard Biyan to the police station through Hassan Akhtar 1973/C for the
registration of formal F.I.R. He examined the deceased and prepared the inquest
report (Exh.PL/3), drafted application for postmortem examination (Exh.PL/2)
and handed over the dead body to Sikandar Hayat ASI & Muhammad Younis
1736/C (PW.3) for autopsy. Thereafter, he inspected the place of occurrence,
recorded statements of prosecution witnesses under Section 161, Cr.P.C.,
prepared rough site plan (Exh.PT), secured blood stained earth through cotton
and one crime empty of pistol .30 bore (P.3) vide memos (Exh.PU) and
(Exh.PV), respectively. He also took into possession a live bullet of pistol
.30 bore vide memo (Exh.PX), from the car porch, a piece of smoked
cigarette (butt of cigarette) and a cigarette-case containing eight cigarettes
of Gold Leaf brand vide memo (Exh.PY). On 08.08.2015, he got prepared
scaled site plan of place of occurrence (Exh.PB) and Exh.PB/1) from draftsman
Khurram Shahzad (PW.2). On 14.08.2015, he along with other police officials
arrested the appellants while they were riding on a motorcycle and from their
personal search different articles including unlicensed Pistols and live
bullets (P-1 to P-25) were recovered, which were secured vide memos of
possession (Exh.PAA) to (Exh.PEE), while motorcycle was taken into possession
vide memo of possession (Exh.PFF). He also got conducted the identification
test/parade of the appellants, after observing all the legal formalities. After
completion of investigation, report under Section 173, Cr.P.C. was submitted
with the trial Court.
4. In order to prove its case against the appellants, the
prosecution produced as many as eighteen witnesses including Muhammad
Sajjad Khan Niazi (PW.15) and Mst. Saadia Anjum
(PW.16) who furnished ocular account of occurrence, Muhammad
Razaq (PW.15), who saw the appellants fleeing from the place of occurrence,
Dr. Gulab Shah (PW.7) who furnished the medical evidence, Muhammad
Ismail Jasra, Magistrate Section 30 (PW.11), who had recorded the
judicial confessional statements of appellants, Sardar Hamid Hussain, the
then magistrate, under whose supervision, Identification Parade/test of
appellants was carried out and Allah Yar Inspector (PW.17) who
was Investigating Officer of the case. The remaining witnesses, more or less,
were formal in nature.
5. After the completion of prosecution evidence, the learned
trial Court examined the appellants under Section 342, Cr.P.C. They confronted
the prosecution evidence with the denial, however, Rashed alias Chand,
in response to question’ “why this case against you and why the PWs deposed
against you” made the following reply:
“I do not know why I
am involved in this case. On 3rd day of August, 2015, I with Fayyaz accused
purchased narcotics injection from somewhere and had also administered to him.
On the way police
personnels apprehended us and took us to police station. Thereafter they kept
us confined illegally in the police station. They kept on inquiring from us
about injections and for the reasons using the same. We were kept in a room in
front of which there was parking lot. I cannot even identify the place where we
were kept. Thereafter, they involved us in this case for the reasons best known
to them.”
The remaining appellants rallied behind
appellant Rashed alias Chand. Appellants neither opted to make
statements under Section 340(2), Cr.P.C. nor opted to produce any evidence in
their defense. On the conclusion of trial, appellants were convicted and
sentenced as mentioned above, hence, the instant appeal and reference for
confirmation of capital sentence.
6. Challenging the convictions of appellants, it is contended
by their learned Counsel, that no reliance can be placed upon the testimony of
alleged eye-witnesses as they are interested and inimical witnesses; that the
evidence of identification test suffers from multiple legal infirmities, thus
same is of no legal worth; that the confessional statements of appellants are
also not worthy of any credence as these were obtained through coercion; that
during the trial, recoveries effected from the appellants were proved to have
been planted by the police; that in fact the actual culprits could not be
traced by the police and later, the appellants were made scape-goats to release
the pressure arising out of the murder of a senior judicial officer; that
though reasonable doubt emanated from the prosecution evidence but its benefit
was not extended to the appellants. With these submissions, it was urged by the
learned counsel for the appellants that conviction awarded to the appellants is
not sustainable, thus be set-aside.
7. On the other hand, learned law officer assisted by learned
counsel for the complainant came forward with the submissions that instant case
is an outcome of a crime report, registered with promptitude; that though the
appellants were not nominated in the FIR but the immediate reporting of crime to
police proves the presence of witnesses at the spot; that admittedly, witnesses
of occurrence has no previous enmity with the appellants and they have rightly
picked all the appellants as culprits of crime during identification test
proceedings while assigning them specific roles played by each of them during
the occurrence; that medical evidence is in absolute conformity with the ocular
account of prosecution; that the confessional statements of the appellants go
long way in proving their guilt; that corroboration, if any, can be well
extracted from the report of PFSA, according to which pistol recovered from
Fiaz appellant matched with the crime empty secured from the spot; that since
the appellants committed the assassination of a judicial officer with full
planning, thus they deserve no leniency. With these submissions, learned law
officer urged that the appeal filed by the convicts be dismissed and their
death sentences be confirmed.
8. Arguments heard. Record perused.
9.
The roots of case lay in an unfortunate incident happened on 05.08.2015 during
which Muhammad Tahir Khan Niazi, a serving Additional District and Sessions
Judge, was murdered by three unknown assassins. The incident was witnessed by
brother and wife of the deceased, namely, Muhammad Sajjad Khan Niazi and Sadia
Anjum (PW.15 & PW.16). Similarly, the servant of deceased, namely, Muhammad
Razzaq (PW.14) also claimed to have seen the culprits on the corner of the
street while fleeing from the place of occurrence. Appellants were arrested on
14.08.2015 and were immediately sent to judicial custody for holding of
identification test proceedings, during which they were rightly picked up by
the witnesses as culprits of crime. Later, on 27.08.2015, the appellants also
got recorded their confessional statements under Section 164, Cr.P.C. before
Muhammad Ismail Jasra, Magistrate (PW.11). In addition to the above
incriminating evidence, case of prosecution rests upon the recovery of pistols
from the appellants, out of which the one recovered from appellant Fiaz was
later found by PFSA to have matched with crime empty secured from the crime
scene.
10.
While making in-depth analysis of the ocular account, it is noticed that though
Muhammad Sajjad Khan Niazi and Sadia Anjum (PW.15 & PW.16) are closely
related with deceased but admittedly neither they were having any acquaintance
nor enmity with the appellants. Though it was argued that the relationship of
eye-witnesses with the deceased makes them interested witnesses but we are not
impressed with such submission as it runs contrary to the settled principles
laid down for the appraisal of evidence. By now it is settled law that
testimony of closely related witness cannot be discarded merely on the ground
of such relationship with the deceased. This principle has been expounded and
reiterated in a chain of judicial verdicts of august Supreme Court. In a recent
decision in Abdul Khaliq vs. The State cited as 2021 SCMR 325, august
Court has reiterated this principle in following words:
“….… mere
relationship of a witness with the deceased did not undermine the value of his
testimony, if otherwise it was found with a ring of truth …”
Same principle was elaborated by august
Supreme Court in Nasir Iqbal @ Nasra and another vs. The State cited at
2016 SCMR 2152 and Talib Hussain and others vs. The State and others
cited as 2009 SCMR 825.
The
acclaimed presence of eye-witnesses at the spot is the most important factor,
hence we have eloquently dilated upon it. Sadia Anjum (PW.16) was admittedly
the inhabitant of the house, within the four walls of which, her slain husband
received fatal shot. Similarly, Sajjad Khan Niazi (PW.15) was having abode
adjacent to the house of deceased. From the cross-examination of both the
eye-witnesses, the defence failed to bring on record any material so as to
challenge their acclaimed presence at the crime scene. Presence of both these
eye-witnesses is found by us to have been proved unambiguously. There is yet
another factor which provides strength to the claim of eye-witnesses about
their presence at the spot. In this regard, it is observed by us that the
incident occurred at about 1:00 p.m., and the deceased was shifted to DHQ
Hospital, Rawalpindi immediately but he died midway whereas autopsy of deceased
was conducted by Dr. Ghulab Shah (PW.7) at about 2:45 p.m. Such swift shifting
of the deceased to hospital and holding of post-mortem examination without
afflux of any delay also positively reflects upon the acclaimed presence of
eye-witnesses at the spot.
11.
We are mindful of the fact that the appellants were not nominated either in FIR
(Exh.PA/1) lodged on the complaint of Muhammad Sajjad Khan Niazi (PW.15) or in
the 161, Cr.P.C. statement of Sadia Anjum (PW.16). The ultimate veil was lifted
from the identity of culprits through the identification test proceedings held
on 20.08.2015 within the precincts of Central Jail, Adyala, under the
supervision of Sardar Hamid Hussain, the then Magistrate (PW.12). During these
identification proceedings all the three appellants were identified by two
eye-witnesses as perpetrators of this unfortunate occurrence. Needless to
mention here that the identification proceedings can be described as the
backbone of prosecution case and have direct bearing upon the acceptance or rejection
of ocular account. Evidence of identification test derives its admissibility
from Article 22 of Qanun-e-Shahadat Order, 1984 and it is conducted in cases
where assailants are not previously known to the eye-witnesses. The procedure
to hold identification proceedings is provided in Chapter 11 Part-C, Volume-III
of Rules and Orders of the Lahore High Court, Lahore. For correctly dilating
upon the legal worth of identification test proceedings conducted in the
instant case, we feel a pressing need to reproduce salient points of
instructions laid down in Rules and Orders of Lahore High Court, which are as
under:--
Ø
List of all persons/dummies included in the
parade should be prepared containing parentage, address and occupation of each
member of the parade.
Ø
When any witness identifies a member of the
parade, the Magistrate should note in what connection he is identified.
Ø
If a witness identifies a person wrongly, it
should be recorded so instead of mentioning that the witness identified nobody.
Ø
Magistrate should record complaint/objection of
suspect, if any.
Ø
The Magistrate should state precautions taken to
prevent the witnesses from seeing the suspect before commencement of ID parade.
Ø
Magistrate should ensure that no communication
to facilitate identification of suspect is made to any witness, awaiting his
turn to identify.
Ø
Magistrate should also note that whether dummies
are inmates of jail or not.
Ø
It is fair both to the prosecution and the
accused that the members of the parade should be presented in a normal state
and, if possible, the dress of the parade should have resemblance to the
accused as he appeared to the witness at the time of the commission of the
offence.
Ø
At the end the Magistrate should append a
certificate regarding his proceedings.
Further, guidelines
are also provided in most exhaustive judgment of august Supreme Court in Kanwar
Anwaar Ali Special Judicial Magistrate’s case reported at PLD 2019 SC 488
on the subject, which are re-produced hereunder as ready reference.
“23. Although there is no law, which
prescribes any such precautions yet the necessary guidelines are available in
the form of executive instructions and judicial pronouncements. Some of them
are summarized as under:
(a) Memories fade and
visions get blurred with passage of time. Thus, an identification test, where
an unexplained and unreasonably long period has intervened between the
occurrence and the identification proceedings, should be viewed with suspicion.
Therefore, an identification parade, to inspire confidence, must be held at the
earliest possible opportunity after the occurrence;
(b) a test
identification, where the possibility of the witness having seen the accused
persons after their arrest cannot be ruled out, is worth nothing at all. It is,
therefore, imperative to eliminate all such possibilities. It should be ensured
that, after their arrest, the suspects are put to identification tests as early
as possible. Such suspects should preferably, not be remanded to police custody
in the first instance and should be kept in judicial custody till the
identification proceedings are held. This is to avoid the possibility of
overzealous I.Os. showing the suspects to the witnesses while they are in
police custody. Even when these accused persons are, of necessity, to be taken
to Courts for remand etc. they must be warned to cover their faces if they so
choose so that no witness could see them;
(c) identification
parades should never be held at police stations;
(d) the
Magistrate, supervising the identification proceedings, must verify the period,
if any, for which the accused persons have remained in police custody after
their arrest and before the test identification and must incorporate this fact
in his report about the proceedings;
(e) in order to guard
against the possibility of a witness identifying an accused person by chance,
the number of persons (dummies) to be intermingled with the accused persons
should be as much as possible. But then there is also the need to ensure that
the number of such persons is not increased to an extent which could have the
effect of confusing the identifying witness. The superior Courts have, through
their wisdom and long experience, prescribed that ordinarily the ratio between
the accused persons and the dummies should be 1 to 9 or 10. This ratio must be
followed unless there are some special justifiable circumstances warranting a
deviation from it;
(f) if
there are more accused persons than one who have to be subjected to test
identification, then the rule of prudence laid down by the superior Courts is
that separate identification parades should ordinarily be held in respect of
each accused person;
(g) it must be
ensured that before a witness has participated in the identification
proceedings, he is stationed at a place from where he cannot observe the
proceedings and that after his participation he is lodged at a place from where
it is not possible for him to communicate with those who have yet to take their
turn. It also has to be ensured that no one who is witnessing the proceedings,
such as the members of the jail staff etc., is able to communicate with the
identifying witnesses;
(h) the Magistrate
conducting the proceedings must take an intelligent interest in the proceedings
and not be just a silent spectator of the same bearing in mind at all times
that the life and liberty of someone depends only upon his vigilance and
caution;
(i) the Magistrate
is obliged to prepare a list of all the persons (dummies) who form part of the
line-up at the parade along with their parentage, occupation and addresses;
(j) the Magistrate
must faithfully record all the objections and statements, if any, made either
by the accused persons or by the identifying witnesses before, during or after
the proceedings;
(k) where a witness
correctly identifies an accused person, the Magistrate must ask the witness
about the connection in which the witness has identified that person i.e.
as a friend, as a foe or as a culprit of an offence etc. and then incorporate
this statement in his report;
(l) and where a
witness identifies a person wrongly, the Magistrate must so record in his
report and should also state the number of persons wrongly picked by the
witness;
(m) the Magistrate is
required to record in his report all the precautions taken by him for a fair
conduct of the proceedings and
(n) the Magistrate
has to give a certificate at the end of his report in the form prescribed by
CH.II.C. of Vol. III of Lahore High Court Rules and Orders.”
We have examined the identification
test proceedings on the touchstone of guidance and instructions laid down in
High Court Rules and Orders as well as by the Hon’ble Apex Court in Kanwar
Anwaar’s case (supra). Appellants were arrested by Malik Allah Yar
Inspector/SHO (PW.17) on 14.08.2015 and when they made disclosure about their
involvement in the instant crime, their faces were covered immediately and they
were shifted to Police Station. On the following day i.e. on 15.08.2015,
the appellants were produced in the Anti-Terrorism Court Rawalpindi along with
an application (Exh.PGG) for lodging them in judicial custody so as to hold
their identification parade. It reasonably evinces from the above facts that
all necessary precautions were taken by police so as to exclude any possibility
of interaction of eye-witnesses with the appellants. It is evident from the
memo of identification (Exh.PR) that best possible measures were taken by the
Magistrate to ensure that eye-witnesses should not have even a glimpse of
suspects/appellants before the ID parade proceedings. Further, ID parade of
each appellant was held separately which further provides credibility to the
proceedings. All the appellants were identified by the eye-witnesses in
reference to the roles performed by them and more importantly Fiaz alias
Mansha was burdened with the responsibility of inflicting fatal pistol shot
injury to the deceased. To be precise, no anomaly is discernible from the
identification test proceedings which may persuade us to discard it.
12. While concluding the ocular account, we have no hesitation
to hold that presence of eye-witnesses at the spot is established beyond shred
of any ambiguity; they have no reason to falsely grill the appellants in the
murder charge of their close relative; the identification proceedings are free
from any shortcoming or lacuna, thus are to be accepted. In the wake of proved
presence of eye-witnesses at the spot and in the absence of any previous
enmity, all the hypothesis of substitution of real culprits are laid to rest.
The ocular account is also found by us to be in absolute conformity with
medical evidence and this is another factor which adds further credence to the
case of prosecution.
13. The ocular account of eye-witnesses is further supported by
the evidence of Muhammad Razzaq (PW.14), who came across the appellants at the
corner of street while they were retreating from the crime scene. Muhammad
Razzaq (PW.14) was the domestic servant of deceased so his presence at the said
place is not open to any exception. He was also one of the participants in the
identification proceedings and committed no mistake in picking up the
appellants. The evidence of Muhammad Razzaq is in the nature of Wajtakar, the
probative strength of which rests in the doctrine of res gestae provided
under Article 19 of Qanun-e-Shahadat Order, 1984. According to the foregoing
provision, acts or declarations, accompanying or explaining the transaction or
the facts- in-issue are treated as part of the doctrine of res gestae
and are admitted as evidence and facts which, though not in issue, are so
connected with the facts-in-issue as to form part of the same transaction are
relevant. Doctrine of res gestae, provides sanction to certain classes
of evidence. ‘Res Gestae’, is a Latin phrase which means that relevant
portion of the event, which is connected directly or indirectly with the main
transaction of the event. Before dilating further upon the issue, some
important definitions of this doctrine are provided below:
• ‘Res Gestae’
comprehends all facts constituting a part of transaction and all facts
relevant, explanatory or illustrative of or characterizing act or principal
fact which was subject of or for decision” (Words And Phrases.
Permanent Edition 37, 1658 to Date, Published By Thompson-West, At P-37
W&P-265)
• “The
facts involved in the determination of an issue are sometimes called the res
gestae. They includes acts, declarations and incidents which themselves
constitute or accompany and explain, the facts or transactions at issue.
Halsbury’s Laws of England, 3rdEdn., Vol. 15, p.263.” (Encyclopaedic
Law Dictionary, By Dr. A R Biswas, 3rd Edition 2008, Publishes By Wadhwa Nagpur
at Page 1263)
• “Where the
witness was standing near the place of occurrence when the shooting took place
as a by- stander, a statement made by him shortly after the occurrence is a
relevant fact. Statement made by a by-stander while still under the influence
of the principal transaction is admissible as res gestae”. (Advanced
Law Lexicon, By P Ramanatha Aiyar, 4th Edition, Published By Lexis Nexis
Butterworths Wadhwa, At Page-4197)
• Indian Supreme
Court in Bairon Singh’s case cited as AIR 2009 SC 2603,
defined the term in following words:
“The rule
embodied in Section 6[1]
is usually known as the rule of res gestae. What it means is that a fact which,
though not in issue, is so connected with the fact in issue "as to form
part of the same transaction" becomes relevant by itself.”
This
doctrine is based upon the assumption that every relevant part of the chain of
events is considered before the final disposal by a judicial forum dealing with
the criminal cases, so that no evidence can be discarded on the ground of
irrelevant considerations. History of doctrine of res gestae can be
traced back in the year 1693, in Thompson v. Trevanion(1693 Skin LR
402). John Henry Wigmore in his most celebrated book on evidence has provided a
brief history of this doctrine in following words:
“This Exception had its earliest
illustration in Lord Hol’s ruling in Thompson v. Trevanion, in 1693; so that the
doctrine may be said to have been recognized before the phrase “res
gestae" came
into use. Nevertheless, the development of this doctrine did not begin until
after Aveson v. Kinnaird, in 1805, when the phrase in question had begun to be
freely used in connection with it; and only since the middle of the 1800s has
it been possible to say that this Exception was firmly established...” (Wigmore
on Evidence, Vol. VI, 3rdEdn., Published by Little, Brown And Company in 1940,
at page-1768)
The
test to apply this doctrine is that a fact to be a part of same transaction
with that of fact-in-issue should be spontaneous, ruling out any possibility of
concoction. In Gentela Vijayavardhan Rao’s case,[2]
Indian Supreme Court has elaborated this concept (provided in Section 6 of
Evidence Act. 1872), in following words:
“The principle or law embodied in Section
6 of the Evidence Act is usually known as the rule of res gestae recognized
in English Law. The essence of the doctrine is that fact which, though not in
issue, is so connected with the fact- in-issue "as to form part of the
same transaction-becomes relevant by itself. This rule is, roughly speaking, an
exception to the general rule that hearsay evidence is not admissible. The
rationale in making certain statement or fact admissible under Section 6
of the Evidence Act is on account of the spontaneity and immediacy of such
statement or fact in relation to the fact in issue. But it is necessary that
such fact or statement must be part of the same transaction.”
The
evidence of Muhammad Razak, PW.14, being a wajtakkar witness, is
relevant under the doctrine of res gestae as this witness came across
the appellants while they were fleeing from the vicinity of crime while
brandishing their weapons. Thereafter, Saadia Anjum (PW.16) told him that
deceased had been shot. Instance of seeing the accused fleeing from the place
of occurrence by this witness and utterance of Sadia Anjum (PW.16) is
sufficiently spontaneous so as to form evidence of res gestae, thus is
admissible.
14.
Another important piece of evidence against the appellants is their
confessional statements got recorded under Section 164, Cr.P.C. The
confessional statement of an accused is recorded in accordance with mandatory
provision of 364, Cr.P.C. and in consonance with guidelines provided under
Chapter 13, Vol.III of the Court Rules and Orders (Lahore High Court, Lahore).
Confessional statements of all three appellants were recorded separately by
Muhammad Ismail Jasra, Magistrate Sec. 30, Rawalpindi (PW.11) on 27.08.2015 as
all the three appellants were separately produced before the Magistrate and
each of them was apprised that he was under no compulsion to make any
confession and that, the same can be used against him. Sufficient time was
provided to each appellant to have a second thought but they remained
persistent with their desire to make such statement. Each appellant provided
all the details about the motive/background of occurrence, mode and manner of
crime committed by them. A close scrutiny of these confessional statements
leaves not an iota of doubt that while recording these statements, all the
precautionary measures provided in law, were taken. In order to make a judicial
confession basis for awarding conviction, the prosecution is required to prove
that such confession was made voluntarily and it contains true account of the
occurrence. If any reference in this regard is needed that can be made to the
case reported as Hashim Qasim case,[3]
wherein the Hon’ble Supreme Court held that:
“It is trite law
that for accepting a confession, two essential requirements must be fulfilled
i.e. that the confession was made voluntarily, it was based on true account of
facts, leading to the crime and the same was proved at the trial. The superior
Courts have also given strict guidelines for the Magistrate, recording
confession, to be followed without any exception which need not be repeated
herein, because long line of authorities on this point is already in the
field.”
It is pertinent to
mention that voluntary nature of a confessional statement is to be extracted
from the manner in which it is recorded. Likewise, the afflux of time
with which such confession is retracted is another factor which reflects upon
its voluntary nature. In the instant case, the appellants retracted from their
confessional statements at the time of their 342, Cr.P.C. examination.
Strangely, even during the cross-examination of Muhammad Ismail Jasra
Magistrate (PW.11) no suggestion was put from which it may allude that the
appellants never made any judicial confession. So far as, the truth of
a confessional statement is concerned, it is a question of fact and is to be
gathered from the attending circumstances of the case. We do not want to
recapitulate the contents of canvassed confessional statement in the instant
para but the fact remains that the appellants provided all necessary details of
crime, including the background in which it was committed. Even otherwise, the
confessional statements of Rashed alias Chand, Aamer Bhatti and Fiaz alias
Mansha (Exh.PN, Exh.PO & Exh.PP) respectively have been fully corroborated
by the oral version of eye-witnesses, identification proceedings and medical
evidence. As per report of PFSA (Exh.PKK) the pistol (P.19) recovered from Fiaz
alias Mansha (appellant) was found wedded with the crime empty secured
from place of occurrence during spot inspection. Such positive report of PFSA
is another factor which provides credence to the tale of incident mentioned by
the appellants in their respective confessional statements. Precisely, the
flawless evidence of judicial confession has persuaded us to accept it without
scintilla of exaggeration. It is settled law by now that a confessional
statement, if true, voluntary, and containing full details of the events of an
occurrence, even if retracted afterwards, can be made basis of conviction even
in case of capital punishment. In Shaukat Ali case[4]
death sentence was awarded to the accused person by learned trial Court
mainly on the basis of his retracted confessional statement, august Supreme
Court also maintained the conviction by holding that:
“…
Seemingly voluntary without duress or inducement; inculpatory in nature the
confessional statement reflects a complete and truthful narration of event
leading to deceased's death. The learned Magistrate has taken due care to
administer necessary warnings to the appellant and recorded each detail thereof
in his own hand. It does not appear to have been fabricated to advance
prosecution's case and thus can be squarely relied upon without any reflection
on safe administration of criminal justice. It is by now well -settled that a
retracted confession can form basis for conviction if found voluntary and
truthful …”
Likewise, in Dadullah and another
case[5]
the august Supreme Court has expounded this principle in following words:-
“8. ...Notwithstanding
the procedural defect in the confessional statement, if any, a judicial
confession if it is found true, voluntary and confidence inspiring, could
safely be made basis for conviction. Retraction of confessions by the accused
seems to be palpably false and incorrect only to save their skin and the only
conclusion that could be drawn is that confessional statements were recorded by
the accused voluntarily.”
15.
Prosecution has also relied upon the evidence of CCTV footage and CDR
pertaining to the cell phones of appellants and we have also given our
considered thought to the admissibility of such evidence. So far as, the CCTV
Footage is concerned, admittedly, it was not containing the clear visuals of
the incident and the facial features of the culprits were also blurred. On this
score alone, the evidence of CCTV footage is destined to be discarded. As
regards, Call Data Record no person or record keeper of the cellular company
appeared in the dock to provide legal sanctity to such evidence, thus we are
constrained to declare it too, as inadmissible.
16.
Prosecution has also relied upon the report of Deoxyribonucleic Acid (DNA) Test
of items recovered from place of occurrence i.e. a butt of cigarette and
a cigarette-case with the buccal swabs of the appellants. DNA is a particle
that encrypts the genetic information in all living beings and is the blueprint
of an individual. It can be obtained from any biological material such as bone,
blood, semen, saliva, hair, skin, etc. Generally, when DNA profile of a sample
found at the scene of crime matches with DNA profile of the suspect, it can
generally be concluded that both samples have the same biological origin so, in
cases where a suspect is identified, a sample of that person’s DNA can be
compared to evidence collected from the crime scene. The results of this
comparison may help establish that the suspect committed the crime. In Modi’s
Medical Jurisprudence and Toxicology,[6]
biology of DNA has been described as under:
“DNA
or Deoxyribonucleic Acid consists of four nitrogenous bases- adenine, thymine,
cytosine, guanine and phosphoric acid arranged in a regular structure. It is a
polymer of nucleotides, which are the units strung together to form a DNA
strand. The backbone of a DNA strand is formed by a sugar base. Component and
phosphate group. The DNA molecule is composed of two DNA strands coiled in a
double spiral (helix).”
Further, nature and
characteristics of DNA profiling was very well elaborated by Lord Justice
Phillips in Alan James Doheny Gary Adams case[7]
in following words:
“Deoxyribonucleic acid, or DNA, consists
of long ribbon-like molecules, the chromosomes, 46 of which lie tightly coiled
in nearly every cell of the body. These chromosomes - 23 provided from the
mother and 23 from the father at conception, form the genetic blueprint of the
body. Different Sections of DNA have different identifiable and discrete
characteristics. When a criminal leaves a stain of blood or semen at the scene
of the crime it may prove possible to extract from that crime stain sufficient
Sections of DNA to enable a comparison to be made with the same Sections
extracted from a sample of blood provided by the suspect…"
Now,
in our jurisdiction too, apex Courts have started encouraging to have recourse
to such like modern scientific and forensic evidentiary methods. In a recent
decision of august Supreme Court in Ali Haider Alias Papu case,[8]
august Court has elaborated the importance of this modern-day scientific
evidence in following words:
“5. The most significant advancement in
criminal investigation since the advent of fingerprint identification is the
use of DNA technology to help convict criminals or eliminate persons as
suspects. DNA as a scientific evidence means 'deoxyribonucleic acid.' DNA can
be found in the human body and samples from semen, hair, blood, flesh can
establish a DNA matching with the DNA of another human being. Each human being
has a unique DNA pattern, which is acquired by inheriting it from the
biological parents. DNA analyses on saliva, skin tissue, blood, hair, and semen
can now be reliably used to link criminals to crimes…..In criminal cases, like
rape, murder, etc., timely medical examination and proper sampling of body
fluids followed by quality forensic analysis can offer irrefutable evidence.
Criminal justice system is in search for the truth. The development of DNA
technology furthers the search for truth by helping police and prosecutors in
the fight against violent crimes. Through the use of DNA evidence, prosecutors
can establish the guilt of accused and at the same time, DNA aids the search
for truth by exonerating the innocent.”
Since DNA of every human being
remains same in all areas of its body, it cannot be altered or changed in any
way, meaning thereby it is effectively a form of evidence, which is resilient
to any form of tampering. So, this type of forensic evidence is of great help
in criminal cases, where identity of an accused is suspicious. This principle
was expounded by august Supreme Court in Ali Haider Alias Papu case supra,
in following words:-
“10. DNA evidence
is considered as a gold standard to establish the identity of an accused. As a
sequel of above discussion, it can safely be concluded that DNA Test due to its
accuracy and conclusiveness is one of the strongest corroborative pieces of
evidence….DNA test with scientific certainty and clarity points towards the
perpetrator and is, therefore, considered one of the strongest corroborative
evidence today, especially in cases of rape. The usefulness of DNA analysis,
however, depends mostly on the skill, ability and integrity shown by the
investigating officers, who are the first to arrive at the scene of the crime.
Unless the evidence is properly documented, collected, packaged and preserved,
it will not meet the legal and scientific requirements for admissibility into a
Court of law.”
However,
the question as to whether DNA tests are virtually infallible may be a moot
question, but the fact remains that such test has come to stay and is being
used extensively in the investigation of crimes and the Court often accepts the
views of the experts, especially when cases rest on circumstantial evidence. In
present case a cigarette-case and a butt of semi-smoked cigarette was taken
into possession by the I.O. from the place of occurrence and finger prints were
also obtained and secured from the switch board of the room where deceased was
present when accused persons entered his house.
Although
a positive forensic report of DNA test is available on the file which
establishes that original source of DNA sampling of semi-smoked cigarette Butt
is appellant Fiaz @ Mansha while sample of finger prints obtained from switch
boards are of Appellant Rashed @ Chand but it is unfortunate to note that said
articles of DNA sampling and fingerprints samples, were not sent to PFSA
instantly rather the same was done only after the arrest of appellants and
after obtaining their buccal swab standards and finger print samples. This sole
fact has shaken the credibility and evidentiary value of report of
Deoxyribonucleic Acid (DNA) Test and fingerprint matching report and these
reports have proved a futile exercise because, although these tests provide
strong corroboration to the stance of prosecution in identifying the accused
person(s), but in case of any forensic evidence, concerned authorities must
adhere to the fundamentals of preserving specimens, labeling, and the chain of
custody and also to comply with any constitutional or statutory requirements
regulating the collection and handling of samples. For collection,
preservation, safe custody and dispatching of DNA sampling and fingerprint
samples to Forensic Laboratory, same principles will be applicable, which are
applicable in cases of other items/samples collected for forensic opinions.
It
is cardinal principle of law that whenever a sample for forensic test is
obtained or taken into possession, same should be sent to Forensic Laboratory
without any unnecessary and un-explained delay, to rule out possibility of any
fabrication or tampering. So judging this piece of evidence of prosecution in
view of aforementioned principles of forensic science, we are not inclined to
consider this evidence free from doubts, especially when no plausible
explanation has been provided by the prosecution as to why these samples were
not sent to PFSA with other items and why police authorities did wait for the
arrest of the appellants and sent these samples only after taking subsequent
samples from the appellants. So, this piece of evidence is also not of worth
reliance.
17.
Since the question of jurisdiction under Anti-Terrorism Act, 1997 was raised by
the defence, hence we have observed in this regard that Tahir Khan Niazi
(deceased) had no personal enmity with appellants. Minute scrutiny of
confessional statements of all three appellants establishes that, deceased
judicial officer was assassinated by the appellants just because of grievance
of appellant Fiaz @ Mansha against the deceased in relation to performance of
his official duties. This fact is narrated by each of the appellants with full
clarity in their voluntary and detailed confessional statements. Hence when
deceased judicial officer was done to death in relation to his official duties
being a public servant, this act of appellants squarely falls within the ambit
of “terrorism” because Section 6(2)(n) provides that:
6.
Terrorism.--(1) In this Act, “terrorism” means the use or threat of action
where:-
(a) the action
falls within the meaning of sub- section (2); and
....
....
(2) An “action”
shall fall within the meaning of sub-section (1), if it:-
....
....
(n) involves
serious violence against a member of the police force, armed forces, civil
armed forces, or a public servant;
18. Gamut of whole
prosecution evidence leads to the irresistible conclusion that prosecution has
successfully proved the charge against the appellants beyond any shadow of
doubt and learned trial Court has rightly convicted the appellants on the basis
of their voluntary and detailed confessional statements well corroborated by
ocular account furnished by eye-witnesses, Medical evidence, Identification
Parade and positive report of PFSA, hence, we have no hesitation to uphold the
conviction of all three appellants for committing murder of deceased Judicial
Officer in furtherance of their common intention.
19. As far as quantum of sentences,
to which the appellants are liable, is concerned, case of each appellant needs
to be dealt with separately, and same is done hereunder:
i. Rashed @ Chand:
Appellant Rashed @ Chand pre-planned the
occurrence with other accused persons and also participated in the commission
of offences during the whole transaction. So, he was rightly convicted and
sentenced for all the offences and his sentences, except the death sentence are
maintained along with the amount of each fine. However, as far as death penalties
awarded to him under Section 302(b), PPC and under Section 7(1)(a)ATA read with
Section 21(I) ATA are concerned, it is admitted fact that although he was
present with the other appellants at the time of occurrence but he did not fire
at the deceased. Keeping in view the principle of mitigating circumstance in
such like situation as laid down by august Supreme Court in Muhammad Abbas
case[9]
and Atta-ur-Rehman case[10]
this fact can be considered as a mitigating circumstance to award a lesser
punishment to the appellant, hence his death sentences under Section 302, PPC
and u/S. 7(1)(a) ATA read with Section 21(I) ATA, are converted into life
sentences and he shall undergo life imprisonment on two counts; one for offence
u/S. 302 (b), PPC and one for offence u/S. 7(1)(a) ATA read with Section 21(I)
ATA and these sentences shall be condign punishment for these offences. All the
sentences of imprisonment of this appellant shall run concurrently except the
imprisonment in lieu of fine or compensation. Benefit of Section 382-B,
Cr.P.C., is also extended in his favor.
ii. Aamer
Bhatti:
Same is the case of
appellant Aamer Bhatti as this appellant also pre-planned the offences with
other appellants and participated in the commission of offences during the
whole transaction. So, he was also rightly convicted and sentenced for all the
offences and his sentences, except the death sentences, are maintained along
with the amount of each fine but as far as death penalties under Section 302(b)
of, PPC and under Section 7(1)(a) of Anti-Terrorism Act 1997 read with Section
21(I) of said Act, are concerned, it is not disputed that although he was
present with the other appellants but he also did not fire at the deceased. So
again, following the principles of Muhammad Abbas’s case supra and
Atta-ur-Rehman’s Case supra, this fact can be considered as mitigating
circumstance to award a lesser punishment to the appellant, hence his death
sentences under Section 302, PPC and u/S. 7(1)(a) ATA read with Section 21(I)
ATA, are converted into life sentences and he shall undergo life imprisonment
on two counts one for offence u/S. 302 (b), PPC and one for offence u/S.
7(1)(a) ATA read with Section 21(I) ATA and these sentences shall be condign
punishment. All the sentences of imprisonment of this appellant shall run
concurrently except the imprisonment in lieu of fine. Benefit of Section 382-B,
Cr.P.C., is also extended in his favor.
iii. Fiaz @
Mansha:
Appellant Fiaz @
Mansha is the person who had fired at the deceased and had hatched a plan with
the other appellants to commit the murder of deceased judicial officer and
thereafter carried out the whole murderous plan. This fact is also admitted by
him in his confessional statement and he was rightly identified by the
witnesses during the ID parade with the role played by him during the
occurrence i.e. firing a bullet shot at the left flank of deceased.
Hence, case of present