' MALIK HAQ NAWAZ, J.---The convict/appellant was booked for the above offences vide FIR No, 74/2014 registered at Police Station City, Gilgit under sections 364-A, 302, P.P.C. Read with sections 6/7, A.T.A.-1997 and the trial commenced thereafter.
2. Briefly stated the prosecution story is that the SHO Police Station City Gilgit has registered a case vide FIR Ex.PW-12/A on 4.8.2014 at about 05:50 a.m. On the written application Ex.PW-1/A submitted by PW Mujeer Ahmad son of Faiz Ahmad resident of Kalar Sayedan Rawalpindi presently residing at Jutial, Gilgit (father of the deceased), wherein the said PW stated that, "I am the resident of Kalar Sayedan Rawalpindi and serving in Public School and College Jutial as Vice Principal. I am residing at Jutial in a Govt. House along with my family. On 03.08.2014, due to death of one maternal cousin of my wife, I was in Lali Muhallah Amphary along with my family, where at about 20:45 hours, I along with my son Muhammad Muawiya aged about quarter past 3 years and nephews of my wife namely Samiur Rehman son of Sarajuddin and Wasiur Rahman son of Muhammad Deen residents of Kashrote, went to the Mosque of Muhallah. I had to make ablution. I handed over my son Muhammad Muawiya to Samiur Rahman and Wasiur Rahman and started making ablution and asked Wasiur Rahman to take my son Muhammad Muawiya in the mosque. At that time congregational prayer was going on. While making ablution I heard the voice of my son, he was saying to someone "No one is allowed to come in the mosque with shoes". As there was no light in the mosque, after completion of ablution I searched my son in the veranda of Mosque with the help of my mobile's torch. My son was not present. I inquired Samiur Rehman and Wasiur Rahmen about my son. They replied that they joined the prayers while keeping him in the veranda of the mosque. I searched my son here and there with the help of my mobile light, but failed to find a trace of him.
After completion of prayer, the people also joined the search. On account of disappearance of my son announcements were made from the Shia/Sunni Mosques. After registration of a report in police station to the effect that my son has gone missing, we remained busy in making search for him for the whole night. The following day at about 5.00 a.m. I received an information that my son Muhammad Muawiya's dead body is found. I went there and saw that the dead body of my deceased son Muhammad Muawiya was lying in a corn field situated between Khur and Lali Muhallah smeared in mud. I have no enmity etc with anyone. My son deceased Muhammad Muawiya was taken from, the Mosque and murdered brutally, which created a sense of fear and terror in the area. It is requested that case may be registered under Anti-Terrorism Act and proceedings may be taken against the involved person/persons and the culprits be punished." On the said application FIR was registered and investigation was entrusted to the investigation wing and after completion of investigation the case was sent to the trial Court.
3. Prosecution examined 14 witnesses in order to prove its case and closed its evidence on 8.9.2014.
The accused was examined under section 342, Cr.P.C., on 9.9.2014 and the case was fixed for arguments.
4. The learned trial Court after hearing the arguments of the parties adjudged the accused guilty and pronounced judgment on 02.10.2014. Paras 70, 71 and 72 of the impugned judgments are relevant which are reproduced as under:-
70. In view of the discussions made . In Para Nos. 9 to 69 above, after evaluation of entire evidence of prosecution, I am, of the considered opinion that the prosecution has proved its case against accused Zakir Hussain beyond any shadow of doubt by producing sufficient evidence in the shape of circumstantial evidence, medical evidence, confessional statement of accused. Extra Judicial Confession of accused and CD.
71. No mitigating circumstances are available in favour of the accused Zakir Hussain. The manner in which the accused has committed the brutal murder of deceased Muhammad Muawiya does not call for any leniency in the sentence.
72. In the light of the above discussions, I, hold that the prosecution has proved the guilt of accused Zakir Hussain for murder of deceased Muhammad Muawiya, hence, I convict accused Zakir Hussain under section 364-A, P.P.C. And sentence him to undergo R.I. For life. I, convict accused Zakir Hussain under section 302(b) read with section 7(a) of the Anti-Terrorism Act 1997 and sentence him to death. He be hanged by his neck till he be dead. The accused to pay fine. Of Rs,300,000/- (Rupees three hundred thousand only). The amount of fine shall be paid to LRs of deceased Muhammad Muawiya under section 544-A, Cr. P. C. In default thereof the convict- accused shall undergo imprisonment for two years.
5. The learned counsel for the convict/appellant submitted at bar that the case is false and appellant has no nexus with the alleged crime. The learned counsel stated at bar that there is no direct or circumstantial evidence on record to connect the appellant with the alleged crime and he has been made a scapegoat by the police just to show how efficient they are in responding to the call of duty. Per learned counsel all the links of prosecution case are missing and no corroboratory evidence has been placed on record to connect the appellant with the alleged crime. Another limb of the arguments advanced by the learned counsel was that the appellant is of an un-sound mind and he was expelled from service due to mental ailment and his trial by the trial Court was coram non judice and A on this score he is entitled to be acquitted from the charge. The learned counsel vehemently argued that the case was proceeded with undue haste, which resulted in miscarriage of justice and the appellant was not provided with the opportunity and to have a counsel of his own choice, which was flagrant violation of his fundamental rights and sheer negation of the rights of accused to have a fair trial.
6. On the other hand the learned Dy. A.G., submitted that the appellant committed brutal and gruesome murder of a minor boy aged about 3 years, without any apparent reasons and there is sufficient incriminating evidence, which connect him with the commission of crime. Per learned Dy.
A.G., not even a single suggestion was posed to any of the PW to show any reasons for falsely implicating the accused for the commission of the offence. The Dy. A.G., further submitted that the appellant is a person of sound mind and nothing was brought on record to show that he was of unsound mind at the time of commission of offence.
7. We heard both the parties at a great length and they advanced exhaustive arguments on each and every aspect of the case. To clarify the legal implication of section 84, P.P.C. And section 464, Cr.P.C., both these sections are re-produced as under:- Section 84, P.P.C. Act of person of unsound mind.... Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
' Section 464, Cr. P. C. Procedure in case of accused being lunatic.... (1) When a Magistrate holding an inquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness, and shall cause such person to be examined by the Civil Surgeon of the district or such other Medical Officer as the Provincial Government directs and thereupon shall examine such Surgeon or other officer as a witness, and shall reduce the examination to writing.
(IA). Pending such examination and inquiry, the Magistrate may deal with the accused in accordance with the provisions of section 466.
(2) If such Magistrate is of opinion that the accused is of unsound mind and consequently incapable of making his defence he shall record a finding to that effect and shall postpone further proceedings in the case.
8. In furtherance, the order sheets of trial Court defies to lend any support to this particular plea of insanity, since the accused neither produced any evidence, in this regard nor there existed anything in black and white beseeching the learned trial Court to make a probe into the mental condition of the accused.
9. The exceptions coached in language of section 84, P.P.C. Could have come to the aid of the accused, only if he had presented himself to be examined with regard to his mental conditions and a reliable medical opinion could have been formulated in the said regard, secondly in order to fulfill the requirements of section 84, P.P.C. The accused was under obligation to lay the foundation of the plea that the act committed by him attracts the provisions of section 84, P.P.C.
10. A comparative study of both these Sections clearly stipulates that the plea of insanity is to be raised at the earliest before the trial Court.
The charge of the appellant was framed on 30-08-2014 by the Judge ATC No,1 but it has been observed that no such plea was ever raised before the trial Court nor as evident from the order sheets of trial Court, D any application was submitted by the accused regarding his mental state.
Chapter XXXIV, Cr.P.C, provides full mechanism for the trial and other related matters of the persons who claims the exception of section 84, P.P.C. As under the provision of section 84, P.P.C.
Nothing is an offence which is done by a person, who at the time of commission of offence by reasons of unsoundness of mind was unconscious of the fact that he was committing a wrong act.
Section 84, P.P.C. Will be attracted in such case only, where its pre-requisites are available to an accused claiming immunity.
11. In such a scenario the mandate of Article 121, Qanun-e-Shahadat, 1984 cast a heavy duty on an accused to prove by placing sufficient cogent and convincing material in the shape of medical evidence that he was insane at the time of commission of offence so as to bring his case within the framework of section 84, P.P.C. The said section and the concession provided therein could have been beneficial for the accused only had he taken such a plea before the trial Court at the earliest possible opportunity or at the time of framing of charge, had he done so, the trial Court would have referred him to a medical board to ascertain his mental condition, but from the perusal of record, it, transpired that no such application was ever tendered by the accused before the trial Court.
12. Mental ailment or dis-order cannot be restricted to a' particular mode, its intensity in terms of its extent or degrees can only be judged by the doctors, well equipped in this regard. It is only their expert opinion which lays thread bare the existence or non-existence of a mental disorder. Once a medical opinion is formulated in favour of plea of insanity by the medical team, then they further embark upon the nature of such an ailment so as to depict that whether the accused at the time of commission of offence possessed sufficient mental capacity to understand the nature of the act committed by him. A bald plea of insanity taken in vacuum without establishing a foundation for it either by suggesting witnesses or presenting an application in this regard, will never shower the accused with the bounties of section 84, P.P.C.
13. Under section 342, Cr.P.C., in reply to question No, 12 the accused replied that he is lunatic.
Question No, 12 and reply are reproduced as under:- Q. No,12. Do you want to say anything else in your above statement?
Ans:- I am innocent. I know nothing about the alleged offence. I am lunatic. Police have falsely malafidely made a case against me and concealed the real culprit. I request this Hon'ble Court for my honourable acquittal. I request this Hon file Court for my treatment.
' Here, it is defined that any person, who may be suffering from mental disorder is not exempted from criminal liability. Any person as stated above, if claims to be entitled to the benefit of section 84, P.P.C. Must prove that at the time of committing the act, he was of unsound mind quite incapable of making out that whether his act will auger well for him or not. The onus to prove would be on the accused that while committing a particular criminal act he was suffering from such a mental disorder which decapitated his mental faculties to such an extent that he was quite incapable of making a rationale judgment regarding the outcome of his act. Although, "unsoundness" and its standard of proof has not been defined in P.P.C. But ordinarily, it has the same connotation as that of insanity. To prove the case up to the hilt is the first and foremost responsibility of the prosecution, which is to be shouldered with utmost perfection unflinchingly throughout the trial and this burden never shifts throughout, unless the accused claims exception, the burden of proving the existence of such circumstances bringing the case within any of the general exception would be on the accused and the Court would presume absence of such circumstances where the accused fails to fulfill the criteria described above. Nothing is on record that accused was of unsound mind at the time of commission of offence, conduct and behavior of accused at the time of commission of offence and thereafter as evident from the statement of prosecution witnesses was indicative of the fact that he knew the nature of his act. Behavior of the accused, at no point of time was shown to be abnormal or falling short of the general standards of a sane behavior rather he demonstrated himself as a person of a sound mind and fully aware of the implications of his act, he miserably failed to bring his case within the exception of section 84, P.P.C.
14. Now, we will take up the case of prosecution. The father of deceased namely Mujeer Ahmad was examined as prosecution witness No,1, who re-iterated the facts of FIR and nothing was extracted from him to show any ill will or enmity, which might have triggered him for false implication of the appellant. Moreover, the complainant has not charged anybody for murder of his son and his statement was a natural narration of the horrific occurrence. The statement of PW.4 Qari Ahmad Iqbal and PW.7 Jahangir Khan and PW-8 Samiur Rahman are very relevant, which shows the presence of the appellant at the relevant time. It is pertinent to mention here that as per statement of PW.4 Qari Muhammad Iqbal, who along with Shuja Alam and Shafeequr Rahman when set out for search of missing child, met the appellant on the way and when tried to shake hands with the appellant, he twitched his hand and went away. The accused was found standing with a pillar of the Mosque before the prayer started and he did not offer the prayer, as evident from the record, while the process of Namaz was in progress the minor was removed and then done to death. A careful scrutiny of the testimony of prosecution witnesses establishes the presence of accused at the relevant time in the Mosque and his meeting with PW-4 Qari Muhammad Iqbal and his companion near the place of occurrence has not been challenged nor even the defence suggested the same to any of the P. Ws. Death of deceased resulted from "violent asphyxia" and the same has been verified through the evidence of PW.2 Dr. Abdul Latif. The accused while in police custody pointed out the place of occurrence before the Magistrate (PW.5) Ghaib Ali Shah and PW-6 HC Ijaz Hussain and a site plan to this effect was prepared and exhibited as PW.5/A. The said site plan has been chalked out twice one in the absence of the Magistrate and secondly while he was present joining the Magistrate in proceedings that too an Executive Magistrate, is absolutely an unwanted novelty infused in the scheme of Cr.P.C., by police officials. The mode and methods of investigation confined in section 154, Cr.P.C. To section 176, Cr.P.C., make investigation an exclusive domain of police or the investigation agency, without being associated, guarded and facilitated by an executive Magistrate. The conceivable reasons for association of an executive Magistrate is only to cover the lacuna and loopholes in the proceedings conducted by the police and to divide the burden of investigating agency and it also keeps those police officials at ease who are even otherwise lethargic in their affairs. If the phenomenon of associating the Magistrate, in investigation proceeding be given a kind and appreciating consideration, even then this novel practice will not further the cause of justice in any manner. Since in the present case the site plan of occurrence exhibited as Ex.PW.5/A was already prepared and Exh.PW.5/B is similar in details, to the one which was already chalked by the police chalking a site plan afresh in no manner brings the same within the bounds of "fresh facts" hence would not be admissible under Article 40 of Qanun-e-Shahadat, 1984).
15. Although in the present case the unwanted association of Magistrate did not have a bearing either on the case of the prosecution or that of the defence, yet we fear that this practice will become the order of the day if not depreciated, the amalgamation of those powers and duties which have been kept separate by the Legislature if intermingled will have devastating implication on the system of fair administration of justice, the frequent association of Executive Magistrate is not legal requirement and the police should improve her professional skills rather than seeking shelter under the umbrella of an Executive Magistrate. Here it is further clarified that any proceeding conducted by the second class Magistrate is not admissible in evidence even otherwise. The I.O. Of the cases should use their professional skills to unearth the crime rather seeking calling and associating executive Magistrate in the proceedings. The Executive Magistrate so deputed should also avoid to execute their authority, when law does not allow them. When the site plan of occurrence exhibited as Ex.PW.5/A was already prepared and site plan Exh.PW.5/B is similar in detail, then its preparation in presence of Magistrate is on altogether unwarranted exercise good for nothing except to raise volume of the file and increase the number of prosecution witnesses.
16. There is a marked tendency on the part of investigating officer especially in Anti-Terrorism cases to carry out investigation in a dubious and lethargic manner and then to throw the burden on the shoulders of the Courts. 99% acquittals are because of inefficient and dishonest investigation, and because of this inaptitude the accused gets a clean chit from the Court. The superior police officials never bother to check and lay hand on the corrupt and dishonest investigating officers and besides the acquittal of real culprits, these officials also go unaccounted for their misdeeds.
17. The case in hand is a case of circumstantial evidence, although there exists a well established view of superior judiciary that circumstantial evidence is a weak type of evidence and cannot be made basis of conviction if any link of the chain is missing in between, but the said principle will not have currency in each and every case, where the evidence collected is of circumstantial nature. In the cases where the ocular account is deficient either because of non-availability of eyewitnesses, or in the cases where the occurrence is an unseen occurrence, where direct evidence is not available or where the FIR is lodged against unknown culprits, the investigating agency is left with no other option except to collect, and rely upon circumstantial evidence. It is for the Court to see that whether the evidence so collected joins together to form a close link between its various episodes, whether the cause and affect relations can be established between that series of events existing before, during, and after the commission of offence. If the incriminating material is not in the form of heterogeneous chunks and forms a complete picture if painted together on the canvass of appreciation of evidence, conviction can be based on such evidence without any restriction.
18. The famous legal maxims "Res ipse loquitor" is fully attracted in the case in hand. The physical presence of accused before and after the tragic incident is established and one wonders that it has not been challenged by the defense in either way when a deposition is made by a witness in the court and not challenged by the opposite party, it is presumed that the facts deposed have been admitted by the opposite party. The evidence of P.Ws. 4 Qari Muhammad Iqbal and PW.7 Jahangir Khan and PW.8 Sami ur Rehman, went unchallenged, which is corroborated from the postmortem of deceased Exhibited as PW.2/A, which confirmed the death of deceased by which also lend support to circumstantial evidence.
19. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Hussain v. State reported in 2011 SCM R 1127 has held: "it is a case of circumstantial evidence, therefore, as a rule of prudence, it is required that each piece of circumstantial evidence shall be supported by independent corroborations, which by itself would be sufficient to establish the guilt of the accused, however, each circumstances should be so connected with each other that it shall make one complete chain without their any broken link. In the case in hand the last seen evidence could be relied upon as it was with proximity in time and space".
20. In another case reported in 2001 SCM R 424, it has been held by the Supreme Court of Pakistan that:- "The Court approach while appraising the evidence should be dynamic and not static. It should keep in view all facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapse on the part of investigating agency/ prosecution, provided the same have not prejudiced the accused in the fair trial."
' Another judgment of the Hon'ble Supreme Court of Pakistan reported in 2007 SCM R 518 could be quoted for guidance and seeking wisdom. The relevant paragraph is reproduced as under:- "Circumstantial evidence is one of the modes to find out guilt or innocence of accused. If circumstantial evidence is sufficient to connect the accused with the offence beyond any reasonable doubt, accused can be awarded capital punishment, on the basis of such evidence".
' Again in 1998 SCMR 2699 it was held that: "Where circumstantial evidence connects the accused with the offence punishable with death beyond any reasonable doubt, the same can form basis of capital punishment"
21. Admittedly there is no eye-witness of the occurrence and prosecution case rests entirely on circumstantial evidence. The prosecution in the instant case has also relied on the evidence of a CD which contains the confessional statement of, the accused and the manner in which the gruesome murder of an .Innocent child of 3 years was committed. The CD, was played before accused and his counsel in trial Court and the trial Court was convinced that the narration of occurrence by the accused is natural. A CD was provided to the accused by the trial Court but we are afraid that the evidence of CD was neither taken seriously nor it was shattered nor even its admissibility was challenged under Article 164 of Qanun-e-Shahadat, 1984 the evidence procured through modern devices is admissible in evidences. Article 164 of Qanun-e-Shahadat, 1984 is reproduced as under:- 164.Production of evidence that has become available because of modern devices, etc.... In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques.
22. We have considered the case from every angle and found that murder of an innocent child of 3 years has been committed after taking him from the Mosque, which is a sacred place of worship and is considered a place of peace and solace. The barbarism, savageness and brutality displayed by the accused has stricken a wave of terror and panic and whole of the society was shocked, when the news of murder of this innocent child was broken to the public. The learned counsel firstly tried to persuade us that it is not a case of "terrorism" and the trial by Anti Terrorism Court was unwarranted but, when the extreme brutality displayed by the appellant was read over to him and confronted with the same, he kept his lips tight.
23. There is a famous saying that "only the wearer knows where the shoe pinches". The miseries and agonies of the deceased could not be ignored and expressed in words as his parents will have to live and die every day of their life shedding tears in the memory of their beloved son done to death without any fault of his or his parents. While answering the contentions of learned counsel for the appellant that the provisions of Anti Terrorism Act are not attracted in the instant case and the case was one of the jurisdiction of ordinary Courts.
24. It is to be admitted with a pinch of salt that unfortunately the moral values of our society are on the wane, blood has become cheaper than the water, ethics, etiquettes, humanity and altruism has gone with the winds. In a society, unfortunately inhibited by a lot of misanthropes and in this darkened scenario which heralds a bleak time to come, the Courts entrusted with the noble task of dispensing justice can never achieve the said goal, if they strictly adhere to the stereo type definition of certain concepts. The word "Terrorism" is also one of them, the said concept needs to be a little exhaustive. To absorb' in itself very such act, which may have a fearful psychological bearing on the mind of the people. The intention or mens rea to propound terror is quite irrelevant in such cases, instead of taking in account that whether any such act was committed with a design to create terror, it is to be seen if that particular act after its commission has in fact done so or not. The magnanimity of an act in terms of the impact being cast by it cannot be judged in oblivion to the reaction of the society. Intention has been defined as a "state of mind" rather a compelling factor, which ignites or instigates a person to commit a particular act, there exists no gauge to measure, no formula to unearth and no methodology to bring to light someone's intention and the same is to be inferred from the set of circumstances, but in a case where the chain of events is missing or the circumstances prevalent before the commission of an offence could not be traced and in those cases where the investigating agency fails to collect evidence, with respect to the association of accused, with terrorist minded people or where it remains clueless regarding the driving force behind the commission of an offence, it would become altogether impossible to term any of the offence as a "terrorist act" irrespective of its devastating and damaging effect on society. It is not necessary that in order to describe an act as a "terrorist act" it should carry the motive to create terror.
25. If after its commission, a wave of terror strikes the society, it is more than sufficient to attract the provisions of Anti-Terrorism Act, 1997. Terror or fear is a state of mind which keeps one's mind under the continuous apprehension of being insecure. This psychological trauma robs the life of a human of its colour, fervor and festivity. The fear that a calamity may be fall upon one member of the society, the way it had befallen another creates a chain of constant fear with which a person feels fettered and manacled while perusing the ordinary pursuits of life. In the present case the appellant murdered an innocent child callously and in such a barbaric manner which jolts, pricks and pinches every heart, it gives creeps to every father in the concerned locale, who intends to take his desirous child along with him, but shuns the idea because of that particular fear, which has put down its roots in every hearts after the commencement of this heart rendering incident. The said incident if seen from any angle seems to be an act of terror and that too a "terror act" of third degree.
26. In the light of above discussion the prosecution has proved the guilt of accused Zakir Hussain for murder of deceased Muhammad Muawiya beyond any shadow of doubt. The sentence/conviction awarded by the trial Court are upheld and the murder reference No, 04/2014 of accused Zakir Hussain son of Muhammad Afzal is answered affirmative.