RANA BHAGWAN DAS, J.---This appeal under section 25 of the Anti-Terrorism Act, 1997 (hereinafter referred to as the Act) is directed against the judgment and conviction dated 29-11-1997 passed by Special Court for Anti Terrorism Karachi Division convicting and sentencing the appellant as under:-- Under section 302, P.P.C.
Under section 324, P.P.C. as amended Under section 337-F (iii), P.P.C. as amendedSentence of death and fine of Rs,50,000 or in default to undergo R.I. for 2 years. R.I. for 10 years and fine of Rs,25,000 or in default to suffer R.I. for 1 year.
R.I. for 3 years and fine of Rs,5,000 or in default R.I. for 6 months.
By the same judgment Special Court acquitted absconding co-accused Khalid Saifullah, Sajjad Buledi and Zia Alam who were charged for the offence under section 302 read with section 212, P.P.C.
2. Unfortunate episode culminating in the murder of deceased Aamir Kakar and attempt to Qatl-i- Amd on the life of first informant Muhammad Fareed took place on or about 21-7-1997 at about 7.45 p.m. near a telephone booth outside Jauhar Homes, Block 13/B, Gulshan Iqbal. As per F.I.R. recorded by first informant Muhammad Fareed who was also injured at the hands of the appellant by means of a fire-arm on the relevant day at about 7.45 p.m. he accompanied the deceased for making a telephone call from a public telephone booth situated near Jauhar Homes. The deceased was busy in speaking on telephone while this witness was standing by his side when at about 8.00 p.m. all of a sudden a grey colour car being driven by the appellant arrived over there when the appellant opened fire from a fire-arm at the deceased as well as this witness. As a result of fire-arm shots this person received injuries on his left hand, left thigh 'and right shoulder.
Deceased Aamir Kakar also sustained fire arm injuries to which he succumbed at the spot. The deceased as well as injured were removed to Ashfaq Memorial Hospital from where they were shifted in an ambulance to Abbasi Shaheed Hospital. Dr. Syed Saeed Haider Kazmi on receipt of the dead body phoned police control to summon the Investigating Officer for preparation of inquest report and for conduct of autopsy. Consequently .ASIP Mazhar Hussain of Police Station Gulshan-e- Iqbal rushed to Abbasi Shaheed Hospital where he recorded the statement of Muhammad Fareed under section 154, Cr.P.C. at 10.00 p.m. This statement was incorporated in F.I.R. book and a copy of F.I.R. handed over to S.H.O. Salim Akhtar Siddiqui for investigation.
3. Autopsy on the dead body was performed by Dr. Shariq Ahmed, M.L.O., Abbasi Shaheed Hospital who found the following ante-mortem injuries on the person of the deceased:-- (i)Entry wound. - 0.5 c.m. circular with inverted margins and charring present on the right cheek near ear-pinna with exit wound 1 x 0.5 c.m. with everted margins on left side of nose.
(ii)Entry wound - 0.5 c.m. circular inverted margins and charring present on right side of leg directed upwards to the left side posteriorly with exit wound 0.5 x 0.5 c.m. with everted margins on left temporal region of skull above left ear pinna.
(iii)Gutter wound measuring 3.5 c.m. x 0.5 c.m. x skin deep on right deltoid region upper arm.
4. According to medico-legal expert rigor mortis had developed down to the chest, feature& were identificable, there were no signs of decomposition, post-mortem lividity was present on back in patches while pupils were dilated and fixed. In the opinion of the witness, cause of death of the deceased was cardio respiratory failure due to acute head injury as aresult of projectile fire arm upon skull through right side of neck. Death was instantaneous while probable time between death and injuries was 3 to 4 hours.
5. Injured Muhammad Fareed on arrival at the hospital was examined by Dr. Syed Saeed Haider Kazmi who noticed following injuries on his person:-- (i)Fire arm entry wound 0.5 c.m. in diameter over medical aspect of upper 1/3 left thigh.
(ii)Fire arm entry wound 0.5 c.m. over right anterior axillary fold.
(iii)Fire arm entry and exit wound over the lower 1/3 of left fore-arm.
There was no evidence of blackening over entry wounds. All injuries appeared to have been caused by a fire-arm and within 2 hours of examination.
6.S.H.O. Salim Akhtar Siddiqui verified the investigation done by A.S.I.P. Mazhar Hussain, inspected the place of incident at the pointation of first informant, recovered three empties from that place as well as blood-stained earth and sealed the articles in presence of Mashirs. He recorded statements of eye-witnesses Nasir Khan and Muhammad Sajjad. Subsequently he handed over investigation papers to Sub-Divisional Inspector Police Gulshan Iqbal. Rao Muhammad Alam, Inspector/S.H.O. Gulshan Iqbal on 26-9-1997 on receipt of spy information after seeking permission from Home Department alongwith D.S.P. Allauddin Abbasi and A.S.I.P. Tariq Ali proceeded to MuzaffarGarh for the arrest of the appellant. In coordination with local S.H.O. he arrested the appellant from the house of absconding accused Zia Alam situated in Sadat Colony. Veterinary Hospital on 27-9-1997. On personal search he recovered Rs,5,000 and National Identity Card from the possession of the appellant. During interrogation of the appellant it was divulged that car bearing No,C-5369 was available in the garage. of Imtiaz Ali at Larkana. He, therefore, deputed ASIP Tariq Ali for recovery of abovesaid car who secured the same on 10-10-1997. Remaining investigation under the orders of D.I.-G. Karachi was transferred to P.W. Allauddin Abbasi, D.S.P. who on receipt of information accompanied by a police party proceeded to Quick Super Market and recovered a blue colour plastic bag containing Revolver bearing No,114271 in presence of Mashirs Muhammad Asif and Khuda Bux. On the next day appellant volunteered to make a confession which was recorded by this officer. As the confession of the appellant involved Khalid Saifullah and Sajjad Buledi having harboured him, both these persons were also included in the sphere of the investigation. On 22-10-1997 D.S.P. visited the flat of the appellant and recovered licence in respect of the revolver earlier recovered by him. Video and audio cassattes were also prepared in relation to the confessional statement made by the appellant.
7. At the trial appellant was charged with the commission of murder of deceased Aamir Kakar and attempt to commit murder of P.W. Muhammad Fareed whereas absconding accused were charged under section 302/212, P.P.C. in their absentia. As the appellant pleaded not guilty to the charge, prosecution examined Muhammad Fareed (wrongly written as Fareed Iqbal) P.W.1, Nasir Khan P.W.2, Muhammad Sajjad P.W.3, Muhammad Asif Mashir P.W.4, Muhammad Iqbal Mashir P.W.5, ASIP Tariq Ali P.W.6, Dr. Nasrullah P:W.7, Dr. Shariq Ahmed P.W.8, Dr. Syed Saeed Haider Kazmi P.W.9, ASIP Mazhar Hussain P.W.10; S.H.O. Salim Akhtar Siddiqui P.W.11, Rao Muhammad Aslam P.W.12 and D.S.P. Allauddin Abbasi P.W.13. Three crime empties marked C-1 to C-3 alongwith revolver of 32 bore No,114271 were sent to fire arm expert who in his report Exh.33 opined that crime empties were fired from the abovesaid revolver.
8. In his statement appellant denied the allegations against him, proclaimed his innocence and alleged false implication. According to him he was involved due to incident which took place on 10- 7-1997 in which complainant party was locked on his complaint. With regard to the confession before D.S.P. he stated that his statement was recorded after maltreatment and under compulsion.
No evidence was however adduced in defence.
9.Points for determination in this appeal are whether conviction of the appellant for the commission of gruesome murder of deceased Aamir Kakar and murderous assault on the life of P.W. Muhammad Fareed is based on sufficient legal evidence.
10. We have heard learned counsel for the parties as well as the Additional Advocate General and with their assistance gone through the record.
11. At the very outset learned counsel for the appellant raised a preliminary objection with regard to want of jurisdiction on the part of Special Court constituted under the Act and with reference to the date of incident and the circumstances that the Act came into force with effect from 20-8-1997 urged that the Special Court had no jurisdiction to take cognizance of the offence against appellant who could not be tried under the special law relating to the acts of terrorism. Learned counsel referred to Article 12 of the Constitution which provides protection against retrospective punishment. For the sake of convenience, Article 12 may be reproduced as under:-- "12. (1) No law shall authorize the punishment of a person --- (a)for an act or omission that was not punishable by law at the time of the act or omission; (b)for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.
(2) Nothing in clause (1) or in offence."
12. We have considered this submission very carefully but a complete answer is furnished by section 38 of the Act which provides that where a person has committed an offence before the commencement of this Act which if committed after the date on which this Act comes into force would constitute a terrorist act hereunder he shall be tried under this Act but shall be liable to punishment as authorised by law at the time the offence was committed.
13.On plain reading of both the provisions of law apparently there seems to be no violation of the right guaranteed to a person and inconsistency between the two provisions as both of them can be harmonized. Evidently offence of murder was punishable under the ordinary law and so was an offence under section 324, P.P.C. even before coming into force of the Act. As regards the extent of punishment, suffice to say Act does not prescribe penalty higher than that provided under the P.P.C. thus prima facie there is nothing wrong with the trial of the appellant under the special law envisaged by the Act which was promulgated to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto.
14.Learned counsel also referred to section 6 of the Act which defines "Terrorist act" but we are unable to see any substance in the contention as an offence committed by using a fire arm definitely falls within the ambit of the term used in this provision of law and truly speaking no lawful exception can be taken to the assumption of jurisdiction by the Special Court in the circumstances of the case. We agree with the learned counsel when he states that question of jurisdiction being very important and fundamental in nature if a forum had no jurisdiction, the objection could be raised at any stage of the proceedings irrespective of the circumstance that it was not raised before the lower forum. Suffice, however, to say that no person has a vested right to be tried before a particular forum as by promulgation of the Act only forum for trial of scheduled offences with expedition has been created under the law.
15.Adverting to the unnatural and brutal murder of deceased in a callous manner there is unimpeachable conclusive evidence furnished by Dr. Shariq Ahmed which has not been 'questioned before the lower Court. With regard to injuries on the person of Muhammad Fareed there is satisfactory, sufficient and adequate expert evidence of Dr. Syed Saeed Haider Kazmi who had noticed three entry wounds with an additional exit wound on the person of the injured. The fact that Muhammad Fareed sustained injuries by means of a fire-arm has not been disputed during cross examination. The circumstance that injuries are not on the vital organs of the injured would not detract from the fact that the intention of the assailants may be to cause his death though by sheer luck and good fortune he survived and did not succumb to the injuries fired from not too long a range. In order to constitute an offence of attempt to commit Qatl-i-Amd, it is not always necessary that the injuries should be such as would eventually entail the death of the person injured. The factum of fire arm injuries by itself would reflect the conduct and intention of the assailant which could not be treated as a friendly act. In all probability it can be justifiably inferred that by act of firing at a person the assailant intended to do away with his life in an unnatural manner.
16.This brings us to the examination of ocular evidence against the appellant connecting him with the commission of the crime. Apart from direct, consistent and natural evidence of first information Muhammad Fareed prosecution had adduced the evidence of two eye-witnesses namely Nasir Khan and Muhammad Sajjad. These witnesses have directly incriminated the appellant with reference to the car driven by him and the number of shots fired from the fire arm.
Their presence at the scene of offence has not been disputed and they have satisfactorily accounted for their presence at the site at the relevant moment. In any event they are neither interested in the first informant or the deceased nor hostile to the appellant. There is nothing in the evidence to cast any serious doubt on the truth of their statements which on its face value appear to be confidence inspiring. In fact nothing has been suggested by the defence to treat corroborative evidence with suspicion. In these circumstances, it is only just, fair and logical to hold that the trial Court did not commit any error by relying upon their evidence and recording a finding of a guilt against the appellant.
17.On the question of arrest of the appellant from Muzaffar Garh about two months after the incident, there is no controversy. In fact his arrest is established by unchallenged version of Inspector Rao Muhammad Aslam including the recovery of his National Identity Card. There is further corroboration in the shape of recovery of car bearing registration No,C-5369 from a garage at Larkana in consequence of the information divulged by the appellant during the course of his interrogation. Recovery of car is further established by the evidence of A.S.I.P. Tariq Ali who was deputed for this purpose.
18.Lastly, there is evidence with regard to recovery of licensed Revolver bearing No,114271 from the flat of the appellant, licensed in the name of his father and produced by his mother before D.S.P.
Allauddin Abbasi which on being cross-examined by Examiner of the Fire Arms matched with three crime empties recovered from the scene of the offence on inspection by the Investigating Officer.
This report was placed on record by P.W. Allauddin Abbasi Exh.33 and no effort was made to question the correctness of such report which is admissible in evidence under section 510 of the Criminal Procedure Code.
19.Last but not the least, there is confessional statement of the appellant recorded by D.S.P.
Allauddin Abbasi on or about 11-10-1997. Ordinarily a confession of an accused is recorded by a First Class Magistrate but under the provisions of section 26 of the Act a confession recorded before a police officer not below the rank of Deputy Superintendent of Police has been made admissible notwithstanding anything contained in Qanun-e-Shahadat, 1984. Only exception provided by law to this rule is that the Special Court may for admission of the confession in evidence require the police officer to produce a video tape together with the devices used for recording the confession. It may be observed that D.S.P. Allauddin Abbasi while recording confessional statement of the appellant got prepared audio and video cassettes of his statement to satisfy the conscience of the Court. He has produced such cassettes in his evidence. On watching the video cassette recording the confessional statement of the appellant we find that he made such statement after due consideration of warnings administered to him and after due reflection and realisation of the consequences merging from such confession of guilt. From the record of video cassette we find that it was recorded in the office of D.S.P. in an atmosphere free from any pressure and undue influence and the appellant as manifested in the recording appears to have made his breast clean in a very frank, straight forward, consistent and a natural manner.
From his act of speaking before the D.S.P. in presence of video camera it is evident that not only he incriminated himself in the commission of the crime but also narrated a long storey disclosing the background of his earlier activities. Apart from narrating the background of this incident he has described detailed stories of his involvement in some other crimes in league with many other persons of whom three accused persons were arrayed as co-accused with him and prosecuted in absentia. He has also disclosed in minute details the particulars of his journey by road from Karachi to Sukkur, Shikarpur, Larkana, Sadiqabad and Muzaffar Garh from where he was eventually arrested. All the events described by him may not be relevant and helpful in arriving at a definite conclusion but this much is evidence that he was directly and essentially connected with the commission of the crime alleged against him.
20. In his statement under section 342, Cr.P.C. in reply to the question regarding his confession before D.S.P. he stated that it was recorded after maltreatment and under compulsion. During the course of lengthy cross-examination and on the adjourned hearing no doubt a question was put to the witness that such statement was recorded after maltreatment and under compulsion which was squarely denied. No instance of the so-called maltreatment, threat, duress or compulsion was, however, suggested. Indeed no such case is set up except a bald and vague statement at the fag end of the conclusion of evidence without any basis. In his confession appellant also narrated the incident taking place on 10-7-1997 reflecting altercation and exchange of hot words between Sam (also described as Sanaullah) on the one hand and the appellant as well as Irfan on the other hand. Said Sanaullah is stated to be brother-in-law of deceased Aamir Kakar. According to the appellant this incident was reported to Gulshan-e-Iqbal Police Station whereupon Sanaullah was taken into custody and on tender of apology by Muhammad Fareed, the appellant had pardoned Sanaullah and the incident was hushed up. Subsequently this event was amicabl settled and compromised between the parties at Gulshan-e-Iqbal Police Station. However, the appellant claimed that subsequent to such settlement Sanaullah had threatened to eliminate him and issued threats of dire consequences. It is after this event that the appellant alleged used to keep the licensed revolver of his father with himself for self-protection which was ultimately used in the commission of this crime. A brief reference to this incident is also found in the F.I.R. recorded by Muhammad. Fareed to the effect that on 10-7-1997 an incident had taken place between his brother-in-law and the appellant. In this connection it may be observed that the relations between the appellant on the one hand and Sanaullah on the other hand remained strained and unfriendly.
Now if Sanaullah had offended the appellant, the appellant had an obvious motive to avenge the insult and humiliation as well as the threat to do away with his life. Deceased Aamir was the real brother of Sanaullah and lived together in a. flat alongwith Sanaullah as well as his brother.
Muhammad Fareed. It appears that the appellant also lived in the same project known as Maymar Garden in a different flat alongwith his parents. On the face of it, there seems to be a time of truthfulness and volunteerness in the act of F confession by the appellant and it seems that it has been rightly relied upon by the Special Court while recording a finding of guilty against the appellant. But even if we were to exclude such statement from consideration, there is overwhelming consistent evidence in support of prosecution case which by itself is adequate enough to sustain the conviction.
21.On the question of sentence of death for the offence of murder no mitigating circumstances seems to exist warranting a lenient view in the matter G of capital punishment. This question has received the attention of the Supreme Court of. Pakistan from time to time In Muhammad Sharif v.
Muhammad Javed (PLJ 1976 SC 346) Supreme Court viewed with concern inhibition or hesitancy on the part of trial Court in awarding penalty of death and marked tendency of High Court to find a laboured pretext to alter sentence of death to life imprisonment. Supreme Court observed that propensity of Courts to avoid death penalty at the trial or allowing unjustified commutation in appeal followed by frequent remission of sentence by both earned and conferred is bound to take away the sting of deterrance, thus, indirectly contributing to the incident of heinous crime of which the Courts cannot, fully escape the share of responsibility. Identical view was re-affirmed by another Bench of the Supreme Court in Bakhsish Elahi v. State (1977 SCM R 309) laying down the rule that the legislature had conferred very wide discretion on the Courts in the matter of sentence under the. Penal Code, but as the discretion has to be exercised judicially, the Courts would be entitled to an take into account the law and order situation, if .the object of punishment or one of the objects of punishment be to deter the commission of further crimes. After referring to Salmond on Jurisprudence (10th Edition) at page 111 Supreme Court expressing its agreement with the author held that the Court would be justified in holding that a severer sentence was necessary on account of the increase of crime; provided of course culpable homicide of the type under consideration have increased.
22.In our view, the conviction for, the offence of murder and attempt to commit Qatl-i-Amd is founded on legal and reliable evidence to which no exception was taken even by the learned defence counsel before us. In view of the quality of evidence, we are inclined to uphold the conviction for both the offences but constrained to observe that conviction under section 337-F(iii), P.P.C. cannot be sustained for the reason that the appellant was neither charged nor called upon to meet such charge at the trial. With this modification in the conviction and sentence and recalling the sentence for the offence under section 337-F (iii), P.P.C., there is no merit in the appeal which must fail and is hereby dismissed.
AMANULLAH ABBASI, J.---I have had privilege of going through the judgment of my brother Judge My Lord Mr. Justice Rana Bhagwandas I agree with my brother that it was the appellant who had caused/committed murder of Aamir Kakar and caused injuries to complainant. As regards the part of judgment relating to the sentence of death for the offence of murder I have slightly different views. I would have had no hesitation in maintaining the death sentence but there are some events prior to the date of incident which led to the main incident. It is admitted position on record that there was incident on 10-7-1997. My brother Judge has also examined this aspect and has mentioned in the judgment as under:-- "According to appellant this incident was reported to Gulshan-e-Iqbal Police Station whereupon Sanaullah was taken into custody and on tender of apology by Muhammad Fareed, the appellant had pardoned Sanaullah and the incident was hushed up. Subsequently this event was amicably settled and compromised between the parties at Gulshan-e-Iqbal Police Station. However, the appellant claimed that subsequent to such settlement Sanaullah had threatened to eliminate him and issued threats of dire consequences. It is after this event that the appellant allegedly used to keep the licensed revolver of his father with himself for self-protection."
The statement of accused Javed Malik on oath Exh.32 has been examined in which he has stated as under:-- "This compromise was made thereafter in writing and signatures of me was obtained thereon. I, therefore, signed the same document and we then went away. After two days his younger brother also got release, his name was Amir. After some days there were heavy rainings in Gulshan-e-Iqbal area of Karachi only, and not on other places. On the same day also after stoppage of raining got down, where also other Mohalla People were standing. He came there and called me by giving signal, stopped his 'car with style and got down, and said 'I shall get your murder done within two days, as you have stated about recovery of T.T. from my brother' ."
It is because of the event which preceded the incident that I am ready to maintain the death sentence. The incident of 10-7-1997 was not started by accused and infact he was victim of that incident and he had to report the matter to police. It was the accused who helped the complainant party because of which the deceased was released on bail. But after being released on bail he threatened the accused to eliminate him within two days. Because of the previous event and this threat the appellant can have genuine apprehension of being killed and, therefore, he started keeping the licensed revolver of his father. He had apprehension that he will be eliminated if he did not act. These are the reasons and possibly he can be entitled to right of private defence because he had not initiated the incident on 10-7-1997. Whether he has exceeded the right of private defence is another question. Because of this reason I will not award him death sentence. Excepting the difference of awarding the death sentence there is no other difference with my brother's judgment.