1. ' MUNAWAR AHMED MIRZA, ACTG. C.J.---Appellant Abdul Manan was tried by Special Court of Balochistan constituted under the provisions of Suppression of Terrorists Activities Act, 1975 for attempting to hijack P.I.A. Flight No,PK-320 on 12-3-1988 which was coming from Karachi to Quetta.
2. Appellant was found guilty for the offence under sections 402-B, P.P.C. And 13-E, Arms Ordinance, 1965 and sentenced by means of judgment dated 29-10-1989.
2. Relevant facts, concisely stated are that on 12-3-1988 P.I.A. Air Bus Flight No,PK-320 was cruising from Karachi to Quetta and appellant, who boarded said plane as a first class passenger, near Sibi attempted to hijack said plane by moving towards cockpit and directing the Captain on pistol point to divert towards Kabul. Security Air Guard Liaqat Hussain jumped and grappled with appellant, who fired pistol shot causing him injury on the chest. However with the assistance of passengers, accused was overpowered and tied down with his turban. The information was transmitted to Air Port authorities at Quetta. Security guards apprehended the appellant at Quetta Air Port. F.I.R. No,47 of 1988 was lodged with Police Station Saddar under sections 403-B, 307, P.P.C.
3. And 13-E, Arms Ordinance. After investigation, Challan No,185/88 was prepared on 12-12-1988 and eventually submitted before Special Court. During investigation accused Azhar Niaz, Mashtaq Masih and Ahmed Khan were also apprehended. They were sent up for trial alongwith appellant.
4. Accused Shakoor son of Nek Muhammad and Muhammadzai son of Muhammad were shown as absconders and tried in absentia. On the commencement of proceedings trial Court read out charge under sections 402-B, 307/109, P.P.C. And 13-E, Arms Ordinance to appellant, Abdul Manan and co-accused. They all denied the charge and claimed trial. To substantiate the accusations, prosecution has produced eighteen witnesses namely, (i) Syed Shah Jehan, (ii) Khalid Waqar, (iii)
5. Bashir Ahmed Raisani, (iv) Col. Ghulam Tajir, (v) Saifur-Rehman, (vi) Sardar Muhammad Aslam,
(vii) Muhammad Ashraf, (viii) Riaz Ahmed, (ix) Raisham Khan, (x) Parviz Akbar Lodhi, (xi) Farooq Anwar Jaffar, (xii) Miss Rukhsana Parvecz, (xiii) Liaqat Hussain, (xiv) Barkat Shah, (xv) Mashir Ahmed Suri, (xvi) Abdul Monim Khan, (xvii) Brig. Zafar Ahmad and (xviii) Yar Muhammad Khan. These witnesses gave ocular version of the incident, described conspiracy/abetment for the commission of offence, account of injuries caused by appellant to Liaqat Hussain, recovery of pistol, Mashirnamas relating to recovery of fifty round articles, arrest of the accused person, Ballistic Expert's reports, medical certificates etc. They also proved confessional statement of the accused who were facing trial.
6. ' Trial Court on 12-6-1989 examined the appellant Abdul Mannan under section 342, Cr.P.C. Wherein he denied all the allegations, but gave following explanation or alleged involvement:- "The incident had taken place due to misunderstanding. The investigation team had failed in the investigation of the case. They found that I had no connection with any party or organization, therefore, the ISI people compelled me either to implicate Al-Zulfiqar Organization, Pushtunkhaa National Party, and other notables of my tribe and to implicate them in the commission of the offence. I declined. Due to torture I had said that pistol was supplied to me by one of the security officers. On saying of the authorities I pointed out that photo of Azhar Niaz, although he was not involved in the offence. Subsequently I was also compelled to falsely implicate Mashtaq Masih to the extent that he had handed over the pistol to me in the toilet of passenger launch, in spite of the fact he too was not involved in the commission of the offence. I had taken the pistol in my shoe for safety purposes. It was unlicensed one. I concealed it in my shoe and went unnoticed. I had pistol with me to save myself from my enemies. I have enmity with Arbab Zahir, I have got enmity with Malik Abdul Wahab Pir Alizai also. One of the cases is pending in the Court of Sessions Judge under section 307, P.P.C. I have also enmity with other tribes."
7. ' Statement on oath of appellant was also recorded on the same date viz. 12-6-1989. Relevant portion of his testimony is reproduced below:- "I had enmity with Arbab Zahir, Malik Abdul Wahab Pir Alizai and also with other people of other tribes. I had cases with them which are pending before the Court of Sessions Judge. I had kept the pistol for my protection. I used to carry it during journey. On that day I had concealed the pistol in my shoe. Security people had not seen it. I took my seat in the plane. I had taken breakfast in the plane. I went into the toilet for urinating. In the lounge of Airport I had taken out my pistol from the boot and kept it in the upper pocket of my waistcoat. When I came out of the toilet of Aeroplane I tumbled down, the revolver fell down on the floor of the plane. It was seen by the co-pilot and the air hostess. Copilot went inside the cockpit. The air hostess went to the service cabin. I entered the cockpit, to explain to the pilot and crew there. I informed them that I was not a saboteur or hijacker.
8. There were five persons sitting in the cockpit. I then came out of from the cockpit to take my seat.
9. As soon as I was trying to sit on my seat the person sitting near me got up, he pointed out his weapon at me. He asked me to drop my pistol. I told him that I was a passenger and he was too therefore, I would not drop my weapon as it was against Pathan tradition. I told him that I will hand over the pistol to the authorities at Airport, he fired at me which hit at the floor of the plane near the toilet. I kept my pistol in my pocket. He pounced upon me. I got hold of his hand where he was having the weapon. I took out my pistol and kept it on his head. I directed him that he should drop his pistol but he did not. I then kept my pistol in my pocket. I then got hold of his hand where he was holding the weapon. I twisted his hand towards his back. He fired it which hit his back. I had no intention to kill him."
10. ' Similarly statements of co-accused under sections 342 and 340(2), Cr.P.C. Were recorded on 13- 6-1989; wherein prosecution allegations were refuted. In defence appellant proceeded three witnesses namely (i) Raz Muhammad, (ii) Abdul Haq and (iii) Sana-ul-Haq. Whereas remaining accused persons have examined nine witnesses.
11. ' On appraisement of evidence learned Special Court directed acquittal of co-accused (1) Ahmad Khan, (2) Azhar Niaz and Mashtaq Masih vide judgment dated 29th October, 1989 but found appellant guilty for the offences under sections 402-B, 307, P.P.C. And 13-E, Arms Ordinance and on conviction sentenced him as follows:-
(i) for offence under section 402-B, P.P.C. Is sentenced to death. He shall be hanged by neck till he is dead;
(ii) his entire property, if any, shall be confiscated to Government;
(iii) for offence under section 307, P.P.C. He is sentences to suffer R.I. Imprisonment for life and to pay fine of Rs,10,00,000 (ten lacs) in default of payment of fine to suffer R.I. For 2-1/2 years more. If fine recovered Rs,5,00,000 (five lacs) to be paid to injured Liaqat Hussain; and
(iv) for offence under section 13-E of Arms Ordinance, 1965 he is to suffer R.I. For 7 years and to pay fine of Rs,5,000 in default whereof to suffer R.I. For 6 months more.
12. ' Feeling aggrieved from the above conviction, present appeal was filed on 19-11-1990.
13. ' Mr. Ehsanul Haq, learned Advocate contended that statements of prosecution witnesses who were in the Air Bus A-3000 at the relevant time, namely Sardar Muhammad Aslam, Mashir Ahmad Suri, Liaqat Hussain, Abdul Munim Khan, Barkat Shah and Miss Rukhsana Parveez do not explicitly indicate attempt on the part of appellant for hijacking it. Thus his conviction of said offence is unlawful. He argued that attempt for hijacking provides alternate sentence. Therefore, according to him when actual offence also prescribed death penalty, in that event in all fairness alternate sentence ought to be awarded to appellant. Reference was also made to Harnam Singh v. Emperor (AIR 1926 Lahore 239). Learned counsel further canvassed that section 307, P.P.C. And section 13-E, Arms Ordinance were not scheduled offences, therefore Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 was not competent to adjudicate upon said offence.
14. ' Whereas Mr. Salahuddin Mengal, Assistant Advocate-General vehemently opposing the appeal urged that appellant was responsible for the commission of most heinous crime which had risked lives of all the passengers boarded in the Air Bus Flight PK-320. Thus attempt for hijacking had same effect for creating panic of highest order. Besides, when legislature consciously specifies extreme penalty for hijacking or attempt thereof it would be lawful to award maximum sentence even for attempt. He explained that offence of murder or attempt to murder in the transaction of offence in para. (a) or (b) and (c) of Schedule are triable by Special Court. Therefore, there is no defect in the conviction awarded to the appellant.
15. ' We have carefully gone through available record and considered arguments raised by learned counsel for parties. Firstly taking up objection concerning jurisdiction for trying offence under section 307, P.P.C. Etc. It may be seen that Ordinance I of 1987 Suppression of Terrorists Activities (Special Courts) (Second Amendment) Ordinance, 1987 introduced following amendment on 16th July, 1987 (i) PLD 1987 Central Statute 65, (ii) Ordinance XVII of 1988 PLD 1989 Central Statute 12, (iii)
16. Ordinance X of 1989, PLD Central Statutes 1990 P-2. Relevant amendment is reproduced below:- "2. Amendment of Schedule, Act XV of 1975.---In the Suppression of Terrorist Activities (Special.
17. Courts) Act, 1975 (XV of 1975), in the Schedule, in paragraph (a) after sub-paragraph (ii), the following new sub-paragraph shall be inserted, namely:- (ii-a) section 302 or section 307, if committed in the course of the same transaction in which an offence specified in this paragraph or paragraphs (b) and (c) is committed, or in addition to, or in combination with such offence."
18. Perusal of above provision would show that offences of murder and attempt to murder when committed in the course of offence specified in paragraph (a) which amongst other includes hijacking; or offences covered by clause (a) or (b) and (c) relating to Explosive Substances Act and Arms Act shall be exclusively triable by the Special Court. In the circumstances we have no doubt that all offences committed by appellant in attempting to hijack the plane Air Bus Flight PK-320 were certainly triable by the Special Court. Objection in that behalf raised by learned counsel for appellant accordingly stands replied.
19. ' Now reverting to merits, it may be seen that all the eye-witnesses unambiguously confirmed factum of appellant's taking out pistol and going to cockpit.
20. The testimony of all these witnesses regarding attempt of appellant to hijack the plane has not been shattered despite lengthy cross-examination. The prosecution witnesses had no enmity whatsoever with appellant and there was no motive to unnecessarily implicate him for the alleged offence. It is pertinent to mention here that appellant does not dispute possession of loaded pistol.
21. In his statement on oath, appellant tried to explain that pistol was initially concealed by him in the shoes and by adopting various tactics had crossed security check. The plea of enmity with certain persons at Quetta introduced in his statements had neither been proved nor sounds plausible or confidence inspiring. There was no occasion to have fear or apprehension to life at the hands of any enemy not even travelling in the same flight. Evidently prosecution witnesses are independent, reliable and natural; thus their narration relating to incident in the light of attending circumstances is quite trustworthy. All the three defence witnesses namely Raz Muhammad, Abdul Haq and Sanul Haq examined by appellant merely mentioned about his enmity with Abdul Wahad and Arbab Abdul Zahir. Obviously mere inimical relations with certain persons, cannot justify action for illegally carrying unlicensed pistol in the plane. Similarly ocular evidence coupled with medical evidence undisputedly establish infliction of pistol injuries by appellant at the person of security guard Liaqat Hussain.
22. ' The above discussion leads to irresistible conclusion that appellant is responsible for the commission of offence for which he has been convicted by the trial Court.
23. ' Learned counsel for appellant greatly stressed that since alternate punishment is provides by law and situation indicates that graver offences could also be possible therefore in such eventuality lesser punishment prescribed ought to have been awarded.
24. ' We are now left with the question of quantum of sentence. For the sake of convenience the relevant section is reproduced below:- "402-B. Punishment for Hijacking: Whoever commits, or conspires or attempts to commit, or abets the commission of, hijacking shall be punished with death or imprisonment for life, and shall also be liable to forfeiture of property and fine."
25. Section 402-B, P.P.C. Is perhaps the only offence in Pakistan Penal Code, where an attempt to commit said offence also carries the same punishment as commission of the main offence.
26. Commission of offence of hijacking or conspiracy to commit the said offence or attempt to commit offence of hijacking are punishable with death or transportation for life besides forfeiture of property and fine. Learned counsel for appellant on question of sentence submitted that the Court must draw a distinction while awarding sentence on an accused person who actually hijacks and one who merely made an attempt in that behalf. However, on general principles the extenuating circumstances are taken into consideration by the Court, such as young or extreme old age, provocation, commission of offence on the spur of moment etc. It may be observed that none of the said principles can possibly be applicable to a person who commits any of offences regarding hijacking, attempt to hijack or abetment for hijacking. Such discretion of awarding sentence, however, has to be exercised judicially. Counsel appearing for appellant emphatically canvassed that in fact object of legislature was to award death sentence to a person who in fact commits an offence of hijacking i.e, who unlawfully by use or show of force, by threats of any kind seizes or exercises control of an aircraft. According to him if the person fails in his attempt to hijack an aircraft then the proper punishment would be imprisonment for life.
27. ' It is way difficult, in view of clear intention of legislature as manifested in section 402-B, P.P.C. To law down a general rule to that effect. However, each case has to be seen in its peculiar circumstances and on its merits. No hard and fast rules can be laid down in this regard. As was observed in case of Gurdev Singh v. Emperor AIR 1948 Lahore 58 that :- "It is impossible to lay down any general rule defining the classes of cases in which lesser sentence may be imposed though from time to time certain circumstances have been recognised by the Judges who had to consider this question as valid ground for imposing such sentence."
28. As discussed hereinabove hijacking or an attempt to commit hijacking are both punishable with death or transportation for life. Thus as far as question of jurisdiction of trial Court in passing death sentence under section 402-B, P.P.C. Is concerned, no exception can be taken to the same. We, in such view of the matter, inquired from learned counsel as to why the sentence of death be altered into imprisonment for life? The reply was that the legislature, in fact, by using word death or imprisonment for life has left a room for the Court to pass either of the aforesaid sentences.
29. Therefore, while passing the sentence of death i.e, the maximum punishment, some reasons must be mentioned for justifying the same. In this regard our attention was drawn to the case of Harnam Singh v. Emperor as reported in AIR 1926 Lahore 239(2). In the aforesaid case it was inter alia observed that :- "It is possible that the offence is a very serious one but the Courts below do not expressly say so and it is not difficult to imagine worse cases than that of the petitioners."
30. ' Learned counsel while elaborating aforesaid ratio decidendi, submitted that if a worse case than that which in fact has been committed can be visualized or imagined, then alternative punishment as provided under law shall-meet the ends of justice. He, therefore, submitted that if an accused person hijacks a plane, he is to be awarded death sentence but if he fails in his attempt and plane in fact is not hijacked although the accused has attempted to do so then the alternative punishment of imprisonment for life would be fair and proper because otherwise alternative sentence shall lose its efficacy.
31. We find sufficient force in the aforesaid arguments, but we want to observe in unequivocal terms that it cannot be laid down as a general rule to award lesser punishment in a case of attempt to hijack because sometimes worst cases even in attempt for hijacking could be possible. However, keeping in view the circumstances of the case and the fact that attempt of hijacking was foiled by the chivalrous act of a security guard and effective response by other passengers, we are inclined to hold that alternative punishment of life imprisonment shall meet the ends of justice in the circumstances of this case. We, therefore, convert the death sentence awarded to appellant by the Special Court under section 402-B, P.P.C. Into imprisonment for life. However, the sentence of fine and forfeiture of property imposed under section 402-B, P.P.C. Shall remain intact. Appellant, therefore, instead of death shall suffer imprisonment for life under section 402-B, P.P.C. All other punishments awarded to appellant by the trial Court under section 307, P.P.C. And section 13-E, Arms Ordinance, 1965 are also maintained. It may further be observed that sentence of life imprisonment shall run consecutively as also held by the trial Court in respect of other sentences, however appellant shall be entitled to benefit of section 382-B of Criminal Procedure Code.
32. ' With above modification in sentence, the appeal filed by appellant stands rejected. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.