' RANA BHAGWAN DAS, J.--This appeal under section 25 of the Anti-Terrorism Act, 1997 (hereinafter referred to as the Act, 1997) is directed against the judgment and conviction recorded by Special Court for Anti-Terrorism Karachi Division convicting and sentencing the appellant as under:
(i) Section 364-A, P.P.C. Death and a fine of Rs,50,000 and in default R.I. For two years.
(ii) Section 302, P.P.C.: Death and fine of Rs,50,000 and in default R.I. For two years.
(iii) Section 377, P.P.C.: Life imprisonment and fine of Rs,25,000 and in default R.I. For one year.
2. Unfortunate episode leading to this appeal may be briefly stated that the victim, Azhar Aftab aged about 6-7 years was a student in Fauji Foundation School, Model Colony in Nursery class. On 22-8-1997 at about 12.30 p.m. He was returning home in his school uniform with his classmate P.W.
Baby Bushra Hassan when the appellant called the victim on the pretext that he was called by Moulvi Sahib in the Madressa. Appellant took the victim to the Madressa-eGulzar-ul-Quran and Jamia Masjid where the victim had a glass of water. Thereafter appellant took him to a compound behind the Mazar and after committing sodomy upon him strangulated him by means of belt of his school bag. As a result of this act there was bleeding from the ears and anus of the boy who went unconscious while the appellant leaving the corpse slipped away. Incident was reported at 3-00 p.m. By Azhar Hussain, father of the victim at police station Model Colony who was informed on telephone by his wife that his son who left for the school in early morning was missing. He was further informed that his son along with his landlord's daughter Baby Bushra Hassan were returning from school when at about 12.30 p.m. a bearded person with sky blue colour Shalwar and Qameez had kidnapped his son on the pretext that he was called by Moulvi Sahib of the Madressa. Indeed this information was divulged by Baby Bushra Hassan when she reached home. After lodging F.I.R.
Exh.3/A first informant in company of P.W. Sikandar Hayat searched for his missing son when at about 3-30 p.m. He reached a building under construction near Jinnah Garden and heard commotion of boys. He along with the witness went into the building and found the dead body of his son with string bag around his neck. Leaving the school bag, tie and cap of the boy at his house he took the corpse to Sheeraz Medical Centre where Dr. Examined the boy and declared him dead.
In the meanwhile SIP Muhammad Naeem Sajid arrived over there and prepared inquest report as well as memo of inspection of dead body. He referred the dead body to Jinnah Post Graduate Medical Centre for the postmortem examination where autopsy was performed by Dr. Karar Ahmed Abbasi. On external examination Medico Legal Officer found ligature mark around the neck above the hyoid bone 1.5 c.m. Wide and multiple abrasions on both ears, cheeks, neck, buttocks and legs in different size. He noted congestion around the anus and one tear on it in 12'0 clock position. There was no bleeding but clotting of blood was seen around the anus and genital organs. While injuries on neck and anus were ante-mortem multiple abrasions were found to be postmortem. According to the witness, cause of death was cardio respiratory failure due to asphaxia resulting from strangulation. MLO further certified that the deceased had been subjected to the act of sodomy.
3. Remaining investigation was taken in hand by S.Abdul Majeed Abbas, Inspector S.H.O. Model Colony Police Station who received copy of the FIR while he was on patrolling duty. He inspected the place of incident, verified the investigation conducted by S.I.P., recovered school bag, blood stained tie, school cap, nylon string on production by P.W. Sikandar Hayat, sealed such articles and prepared a memo. He inspected the place of incident at the pointation by P.W. Sikandar Hayat and prepared sketch of the place of kidnapping as well as the place of commission of sodomy and murder. He arranged the production of sketch map by tapedar concerned. On 24-8-1997 he recorded the statement of P.W. Humayoon. On 26-8-1997 at 6.00 p.m. He arrested the appellant from the place known as main gate of Janaz Gah adjacent to Jarnia Masjid Gulshan-e-Jami.
Appellant was wearing clothes with visible marks of blood. He was made to change his dress and directed to conceal his face. After his arrest appellant pointed the places from where he had kidnapped the victim and the place where he committed unnatural act upon him and caused his death by strangulation. On the next day, appellant was produced before Dr. Ahmed Ali Memon, Medico Legal Officer, Civil Hospital, Karachi for examination and finding whether he was capable of performing sexual intercourse who after examining the appellant issued a medico-legal certificate with the opinion that there was nothing to suggest that the appellant was incapable of performing sexual intercourse. Identification parade in respect of the appellant was arranged on 30-8-1997 through the prosecution witnesses viz Baby Bushra Hassan and Humayoon under the supervision of Judicial Magistrate Karachi (East) P.W. Erum Jehangir in which both the witnesses correctly picked out the appellant. Statements of both these witnesses under section 164 Cr.P.C. Were recorded by the above named Judicial Magistrate on 4-9-1997 while on 5-9-1997 appellant was produced before P.W. Bashir Ahmed Kiyani, Dy. S.P. Shara-e-Faisal for recording his confession.
' At the trial appellant pleaded not guilty to the charge while prosecution examined first informant Azhar Hussain P.W.1, Baby Bushra Hassan P.W.2, Sikandar Hayat P.W.3, Muhammad Iqbal Mashir P W 4, Humayoon PW5, Haji Talha Muhammad, Mashir P.W.6, Erum Jehangir, Judicial Magistrate P.W.7, Bashir Ahmed Kiyani, Dy.S.P. P.W.8, S.I.P. Muhammad Naeem Sajid P.W.9, Dr. Karar Ahmed Abbasi P.W.10, Dr. Ahmed Ali Memon P.W.11 and S.Abdul Majeed Abass Inspector SHO, P.W.12.
5. In his statement under section 342 Cr.P.C. Appellant denied all allegations against him and in defence appeared as his own witness on oath besides examining Muhammad Fayaz D.W.1 and Muhammad Karim Abid D.W.2 to establish his plea with regard to alibi. On assessment of the evidence, learned trial Court found the appellant guilty of the charge and convicted and sentenced him as stated above.
6. At the hearing, we have had the privilege of hearing valuable arguments advanced by learned counsel for the appellant and the learned Advocate General who was assisted by Assistant Advocate General. Evidence against the appellant consists of firstly, last seen in company of the victim, secondly, evidence with regard to identification of the appellant, thirdly, medico-legal evidence confirming and corroborating the commission of unnatural offence on the victim followed by unnatural death as a result of strangulation and lastly, voluntary confession of the appellant before D.S.P. Bashii Ahmed Kiyani.
7. With regard to the last seen evidence, prosecution case rests on the natural, straightforward and direct evidence furnished by Baby Bushra Hassan who was the co-student with the victim in Fauji Foundation School. This witness is aged about seven years and, in fact, and in law presumed to be innocent with the least motive and desire to implicate the appellant falsely. In order to assess the intelligence of this witness of tender age, the Trial Court had put certain questions to her and certified that he was satisfied of her intelligent replies before recording her evidence on oath. The fact that this witness was studying in the same school with the victim and that she had been to the school on the day of incident has not been questioned throughout the evidence. She deposed in straight-forward manner to the effect that the appellant was present on the day of incident who took deceased Aftab Azhar with him where after she returned home and on being asked by mother of the deceased told her that Aftab Azhar was taken away by the appellant. According toiler, she had even pointed out the place from where the deceased was kidnapped to police in presence of witnesses. She identified the appellant in the lower Court in addition to her statement that she had identified him in the identification parade held under the supervision of a Judicial Magistrate. From the trend of cross-examination there is nothing to suggest that the witness had any ulterior motive to support the prosecution case unnecessarily or to involve innocent person falsely. Sole exception taken to her evidence by the counsel for appellant is that she had seen the appellant at the police station when he was arrested and that the appellant was without any beard on the day of her evidence whereas he was with beard on the day of incident. The admission that this witness had an opportunity to see the appellant at the police station after his arrest does not have the effect of demolishing the truth of her statement and rather reflects upon her honest and innocent behaviour as she did not think it fit to withhold this reply or to twist the facts. Likewise the fact that the appellant had no beard on the day of her examination is without any consequence because if the appellant had shaved his beard after his arrest there is nothing wrong with it. Learned counsel for the appellant also referred to the admission by the witness that she had been to the trial Court a day earlier but again this circumstance does not make any sense. This admission was not followed by any subsequent question to elaborate the situation and in all probability the witness being of tender age completely unaware of Court building, the Presiding Officer and the Court room may have been taken to the building to remove her fear or doubt if at all any. To our mind merely taking the witness to the Court building in order to familiarize her with the Court affairs and the environment obtaining over there is without any material consequence and does not negate the prosecution case or the truth of her statement.
8. There is further corroborative and supporting evidence by P.W. Humayoon as well who seems to be an independent and unconcerned witness. This witness had an opportunity of having seen the appellant taking away a boy aged about 6/7 years to Jinnah Garden at the material point of time.
This witness at about 6.00 p.m. Came to know that the dead body of a child had been recovered, therefore, he along with Mohalla people went to Sheeraz Medical Centre. After seeing the dead body he found that it was of the same boy whom he had seen in company of the appellant. This witness was put to identification parade held in respect of the appellant after his arrest in which he successfully identified him. Learned counsel for the appellant attempted to assail the evidence of this witness for the reasons firstly that his statement was recorded two days after the incident and that he had not narrated incident of having seen the appellant taking away the victim with him to Jinnah Garden. The point raised is devoid of any force and without any substance. In case the witness was examined two days after the occurrence, it does not necessarily mean that he was a set up witness. There may be a number of factors causing such delay in present day mechanical life when citizens are faced with a large number of activities and every person is not available for his examination by an Investigating Officer who generally remains pre-occupied with multifarious duties in the discharge of his functions. Learned counsel referred to the cases reported as Wazir and others v. The State (PLD 1960 Karachi 674) and Muhammad Sadiq v. State (PLD 1960 SC 223) but both the cases are completely distinguishable on facts and hardly relevant in the circumstances of the present case. Even otherwise much water has flown under the bridge with the passage of long time as there is a drastic change in social set up and the life is not as peaceful and normal as thirty years ago. As , to the circumstance that the witness did not narrate the incident to any police officer, he has rightly explained that Sheeraz Medical Centre is situated in front of Model Colony Police Station and he had been over there but SHO was not available.
Likewise the circumstance that the witness did not disclose the name of the appellant to the parents of the deceased on the first day or that he did not give his name in his statement under section 161, Cr.P.C. Tends to show that the appellant was not known to him before and the witness had no animus or motive against the appellant to grind the axe. In all probability appellant was not known to him and for this reason he was unable to divulge his name in his statement recorded by the Investigating Officer. It is pertinent to note that the appellant was arrested four days after the occurrence i,e, on 26-8-1997. Whereas the witness had seen him as well as the dead body of the victim on the first day i,e, 22-8-1997. We are impressed by the evidence of this witness which has remained unimpeachable and inspires our confidence. The evidence of the witness is in line with the testimony of P.W. Baby Bushra Hassan and it does not suffer from any inherent infirmity.
9. Evidence with regard to the last seen discussed hereinabove finds further support and corroboration from the evidence leading to identification parade in respect of the appellant.
Obviously, identification parade was arranged under the supervision of Judicial Magistrate who stated in her evidence that on the request of the S.H.O. Model Colony Police Station she arranged identification parade in her Court. According to the Magistrate eight dummies were mixed up with the appellant and the witnesses were called one after the other and in the interval appellant directed to change his position. Both the witnesses correctly picked out the appellant and there is nothing to suggest that there was any irregularity or illegality in holding such parade. The circumstance that the parade was arranged after about five days of the arrest of the appellant is inconsequential as in city life like Karachi it is highly difficult to procure the attendance of the witnesses immediately after the arrest of a criminal or to persuade such witnesses to make themselves present for the purpose of investigation at the choice of the Investigating Officer. At any event, no defect, lacuna or inconsistency has been shown to exist to brush aside this piece of circumstantial evidence which tends to connect the appellant directly with the commission of crime.
10. With regard to the commission of unnatural act on the victim followed by his culpable homicide by means of strangulation, there is adequate and convincing evidence furnished by Dr. Karar Ahmed Abbasi who performed postmortem examination on the dead body. The factum with regard to the commission of offences has indeed not been disputed before us. Medico-legal evidence on the face of it conclusively proves unnatural death of the deceased preceded by commission of sexual intercourse. There is strong circumstantial evidence in the shape of blood stains on grey pant, white shirt, white banyan, brown colour school bag, navy blue cap, navy blue white and maroon colour tie of the deceased recovered by police on the day of incident on which human blood was detected by the Chemical Examiner to the Government of Sindh vide report Exh.15/D. These articles were recovered by the Investigating Officer on production by P.W. Sikandar Hayat and sealed on the spot the same day. It is true that Chemical Examiner did not detect human blood on the clothes of the appellant but the fact of the matter is that he was arrested four days after the incident and on his own showing he had washed his clothes after the occurrence. A reference was made to the admission by the Investigating Officer that he did not secure semen stain and blood stains from the earth from where the dead body was found but we are of the considered view that the absence of semen stains and blood stains at the place of incident does not by itself negate the prosecution case otherwise tending to show that blood stains were found on the uniform of the deceased as well as the school bag including its strang. Should the Investigating Officer manipulate the evidence he could have easily arranged blood stained earth and sent it to Chemical Examiner for analysis. Likewise it is not absolutely necessary that semen must be found on the place of incident which was an under construction building on a piece of land. Suffice to say evidence relating to the appellant being last seen in company of the deceased coupled with expert medical evidence is enough to conclude that it was the appellant alone who committed sexual intercourse with the deceased and none else. Again, with regard to the capability of the appellant to perform sexual intercourse he was referred to Dr. Ahmed Ali Memon, Medico Legal Officer, Civil Hospital, Karachi on the next day of his arrest who after detailed examination of the appellant opined that there was nothing to suggest that he was incapable of performing sexual intercourse. It is pertinent to point out that the evidence of this expert medical witness was not questioned during the cross-examination and in law the appellant is deemed to have accepted the correctness of the opinion.
11. Lastly we find from the evidence of D.S.P. Bashir Ahmed Kiyani who recorded the confession of the appellant on 5-9-1997. Ordinarily under the provisions of section 164, Cr.P.C. a judicial confession is recorded by a First Class Magistrate and under Article 38 of Qanun-e-Shahadat confession made to a police officer shall not be permissible against a person accused of any offence while Article 39 postulates that confession by accused while in police custody shall not be proved against him unless it be made in the immediate presence of a Magistrate. An exception has been provided in section 26 of the Act, 1997 which postulates that notwithstanding anything contained in the Qanun- e-Shahadat, 1984 a confession made by a person accused of an offence punishable under section 7 or section 8 of the Act or an offence covered by subparagraph (a) of paragraph 2, or paragraph 3 of the Schedule to the Act, or robbery or dacoity with murder or rape before a police officer, not below the rank of a Deputy Superintendent of Police may be proved against such person. This provision of special law which is extraordinary in nature and a departure from the general rule is qualified by a proviso laying down that special Court may, for admission of the confession.In evidence, require the police to produce a video tape together with the devices used for recording the confession. From the evidence of D.S.P. Bashir Ahmed Kiyani, it transpires that the appellant was produced before him at about 10-00 a.m. When he cautioned him that his confession will be used against him as a piece of evidence. He further assured the appellant that after recording his confession he shall not he sent to police custody and gave him two hours' time for recollecting his memory. During this interval appellant was made to sit in his office where none else was present.
Appellant was called again at 12-30 p.m. When the witness repeated aforesaid instructions and re- assured the appellant that he will not be sent to the police custody but remanded to judicial custody where after his confession was recorded verbatim which was sealed at the spot and exhibited before the trial Court Exh.14/A. The witness also prepared a video relating to the recording to the confession of the appellant which was produced before the trial Conti Exh.14/B.
' We would have perhaps not given much importance to the confession recorded by a police officer but as a video film by latest electronic device was prepared we decided to watch it for our complete satisfaction. After the display of the video film and our minute observations with regard to the manner, style and conduct of the appellant during the course of recording his confession we are fully satisfied that the appellant made a true and voluntary disclosure of the facts leading to his direct complicity with the commission of the crime. Notwithstanding the circumstance that a police officer may not be equated with a judicial officer and it is for this reason that he did not incorporate various warnings and assurances administered to the appellant in the text of the confession recorded in Urdu by him, we are clearly of the view that there is nothing wrong in the manner of recording of the confession and indeed all such warnings appeared to have been administered to the appellant who was neither under any pressure, threat, coercion nor inducement for making a confession. Irrespective of the consideration that the appellant retracted the confession at the conclusion of the evidence in his statement under section 342, Cr.P.C. As well as his statement on oath under section 340, Cr.P.C. We hold that the confession has been proved to the satisfaction of a conscious mind and the trial Court was right in relying upon it. Learned counsel for the appellant invited our attention to the circumstance that at the commencement of the statement appellant was asked to make a statement realising the presence of Almighty Allah and without any fear but this circumstance per se does not vitiate the making of a true and voluntary admission of guilt. At any event it does not amount to the statement being recorded on oath as canvassed by the counsel. Likewise repentance by the appellant at the conclusion of his statement that he was swa yed away by Satan and that he would not repeat such sin in future does not reflect that he was greatly induced to make an admission of his guilt. Counsel also took an exception to the circumstance that the Police Officer recording the confession did not verify the period of detention in police custody but we are least impressed by this contention as well, as admittedly appellant was arrested on 26-8-1997; identification parade was arranged on 30-8-1997; statement of two witnesses under section 164, Cr.P.C. Recorded on 4-9-1997 and he was produced before D.S.P. On 5-9-1997. Suffice to observe the fact that the appellant made a voluntary confession before the Police Officer was not questioned during the course of cross-examination. A bald and general suggestion that the appellant was maltreated or that his confession was recorded while he was in hand-cuffs does not materially affect the value of confessional statement. Needless to observe that the appellant did not complain of any sort of maltreatment before the Judicial Magistrate at the time of his remand to police custody; before the Medico-Legal Officer at the time of his physical examination; again before the Judicial Magistrate at the time of identification parade or again before the D.S.P. When produced for recording confession and lastly before the Judicial Magistrate on 5-9-1997 when produced for remand to judicial custody.
12. Adverting to the plea of alibi, it may be observed that the appellant did not take this plea during the cross-examination of the witnesses. He did not explain this position in his statement under section 342, Cr.P.C. For the first time he took this stand in his statement on oath before the Trial Court on 11-10-1997 to the effect that on the day of incident from 8-00 a.m. To 6-00 p.m. He was employed with mason Muhammad Fayyaz at the house of D.W. Abid Karim. Both the witnesses were examined in his defence who attempted to show that the appellant was employed as a labour with mason Muhammad Fayyaz and physically at work from 8-00 a.m. To 7-00 p.m. At the under construction bungalow of Muhammad Karim Abid. On a minute analysis of the defence evidence and highly belated version of the appellant tending to make out a case of alibi we are least impressed. The plea appears to have been set up just to screen the appellant from the clutches of law and it does not have the impact of demolishing overwhelming, strong and unimpeachable prosecution evidence.
14. Lastly, judging the case of the appellant from every angle we are satisfied with the quality of evidence which is most probable, plausible and confidence inspiring on the face of it. In the absence of any specific and convincing material to the contrary, we are inclined to uphold the conviction and sentence awarded to the appellant which does not suffer from any legal infirmity.
We would, therefore, dismiss the appeal, and uphold and confirm the sentence.