' ABDUL HAMEED DOGAR, J.---By this judgment we propose to dispose of Special Anti-Terrorism Appeal No,22, Special Anti-Terrorism Jail Appeal No,32 of 1998 and Confirmation Case No,1 of 998 as they arise out of common judgment.
2. Appellants Sharif, Shahsawar, Shabbir and Sabir have assailed judgment dated 20-8-1998, passed by Mr. Saleem Ahmed, Judge, Special Court, Anti-Terrorism, Hyderabad and Mirpurkhas Division, Hyderabad, whereby appellants Shahsawar, Shabbir and Sabir were convicted under sections 402-B, 365-A read with section 34, P.P.0 and sentenced to death with fine of Rs,5,00,000 each and also forfeited their movable and immovable properties in favour of the Government. In default of payment of fine, they were ordered to suffer 5 years' R.I. Appellant Sharif was convicted under section 402-B read with section 34, P.P.0 and was sentenced to death. He was also fined to pay Rs,5,00,000 and his movable as well as immovable properties were forfeited in favour of the Government. In default of payment of fine, he was ordered to suffer R.I. For 5 years. At the same time, the above-referred Confirmation Case was sent by the trial Court for confirmation of the sentence.
3. Briefly stated the case of prosecution is that on 24-5-1998 at about 7-53 p.m S.H.O of Police Station S.I.T.E., Hyderabad received a message from police wireless control, Hyderabad that a P.I.A.
Fokker No,554 has been hijacked from Gwadar and would be landed at Hyderabad airport. On such information he alongwith his staff, namely, A.S.-I. Syed Ibrahim Shah, P.C. Muhammad Ayub, P.C.
Jahangir, P.C. Khuda Bux, P.C. Khadim Hussain and driver H.C. Murtaza arrived at Hyderabad Airport in the police mobile where they saw that an aircraft had already landed. They surrounded the same alongwith Airport Security Force ('A.S.F.') District Magistrate Hyderabad, S.S.P. Hyderabad, Major Aamir of I.S.I., Usman Anwar, A.S.P. Phuleli and other officers. After landing, the hijackers released Ground Engineer Sajjad Ahmed Chaudhry for bringing water and other eatable items.
Thereafter, S.S.P. Hyderabad, District Magistrate Hyderabad, Major Aamir and A.S.P. Phuleli had conversation with the hijackers and they released two women and two children from the plane.
Thereafter, the abovementioned officers disguised themselves and went inside the plane for further conversation with the hijackers and conveyed them that they had reached at Bhuj Airport.
The hijackers demanded ransom of 20,000,000 Dollars and fuel so that they can go to Delhi. It was confirmed that there were three hijackers inside the plane, out of them two had pistols. Thereafter one of them came down, whereas two remained inside the plane. The abovementioned officers after having conversation on wireless with each other attacked upon the hijackers and S.S.P. Came down and attacked the hijacker, who had come down and Major Aamir, District Magistrate Hyderabad and A.S.P. Phuleli succeeded in catching hold the remaining two hijackers inside the plane and the said officials received some minor injuries while capturing the hijackers. The hijacker, who had come down, also received injuries while he was arrested by S.S.P., Hyderabad. All the 3 were arrested and on inquiry they disclosed their names to be Shabbir Ahmed son of Ali Muhammad Rind Baloch, resident of Turbat, Balochistan, Shahsawar son of Haji Lal Muhammad Baloch and Sabir Ali son of Ali Muhammad Baloch, resident of Turbat, Balochistan. One pistol alongwith two live bullets were recovered from appellant Shabbir Ahmed and one pistol, made in Pakistan, containing five live bullets were recovered from appellant Shahsawar. Appellant Sabir Ali disclosed that he has a bomb and if the demand is not accepted, they will blow up the plane. From his personal search currency notes amounting to Rs,507 from his wallet and one bag, on which a flag was affixed, bearing the character "Domestic Passenger Ticket, baggage check" were recovered. They failed to produce the licences of the pistols and disclosed that the same were without licence. Thereafter, Mashirnama of recoveries was prepared. On further inquiry Captain of plane, namely, Uzair, First Officer Muhammad Faisal, Air Hostesses Asma Irani and Khalda Afridi and the passengers disclosed that the plane was hijacked for extorting ransom and for damaging the integrity, sovereignty and solidarity of Pakistan. Thereafter the case was registered at Police Station S .1. T . E., Hyderabad.
4. After usual investigation interim charge-sheet was submitted before the abovementioned Court, wherein appellants Shahsawar, Shabbir Ahmed and Sabir Ali were shown in custody and 14 others including appellant Sharif were mentioned in the column of absconders.
5. During further investigation the custody of appellant Sharif Was banded over by Mr. Muhammad Akram, Commanding Officer, A.S.F.. Karachi, who was joined in the investigation and was arrested and final charge-sheet was submitted on 9-6-1998, wherein appellant Sharif was shown in custody and 13 others as absconders. After necessary formalities and publication in the newspapers about the absconders, their case was bifurcated, whereas the case against the appellants proceeded.
6. A charge was framed against the appellants, to which they pleaded not guilty and claimed trial.
7. At trial the prosecution examined Muhammad Uziar, Flight Captain as P. W.1, Sohail Akbar Shah, District Magistrate, Hyderabad as P.W.2, Akhtar Hassan, S.S.P., Hyderabad as P.W.3, Usman Anwar, A.S.P. Phuleli, Hyderabad as P.W.4, Muhammad Sajjad Chaudhry, Ground Engineer as P.W.5, Miss Khalida Afridi, Air Hostess as P.W.8, A.S.-I., S. Ibrahim Shah, Mashir as P.W.9 and Muhammad Umer Ahmadani, S.H.O./ Investigating Officer as P.W.10 and then the prosecution closed its side.
8. All the four appellants were examined under section 342, Cr.P.C., wherein they denied the commission of offence and pleaded for justice. Neither they examined themselves on oath nor did they lead any defence.
9. We have heard .Messrs Muhammad Ismail Memon and Qurban Ali Chohan, the learned counsel for the appellants and Mr. Habib Ahmed, the learned Assistant Advocate-General for the State at length and have gone through the record and proceedings in minute details.
10. Mr. Muhammad Ismail Memon mainly contended that the prosecution has failed to examine independent witnesses, particularly passengers travelling in plane and only official witnesses have been examined who were interested in the prosecution. He next argued that in this case statement under section 342, Cr.P.C. Has not been recorded by the learned trial Judge in his own handwriting which is a mandatory provision laid down under section 364(2), Cr.P.C. And such illegality vitiates the entire trial and the case is fit for remand. In support of his contentions he relied upon 1997 PCr.LJ 539, 1991 PCr.LJ 617 and PLD 1997 Pesh.
279.
11. Mr. Qurban Ali Chohan, learned counsel appearing for appellant Sharif, argued that the prosecution has failed to prove the case against appellant Sharif and has not been able to place on record any evidence that he conspired for the commission of offence with co-appellants. He next contended that composite questions with regard to ticket and shoulder bag have been put to appellant Sharif under section 342, Cr.P.C. Creating confusion as such the same should not be relied upon for the purpose of conviction. On this contention, he relied upon the case-law reported in 1983 PCr.LJ 128 at page 132 and 1985 PCr.LJ 625. He went on submitting that Mr. Muhammad Akram, Commanding Officer, A.S.F., Karachi, who, according to prosecution, handed over the custody of appellant Sharif to police, has neither been examined by the S.H.O. Nor was produced as witness against him, as such the evidence of very arrest becomes doubtful. Irrespective of above, no one was examined from Turbat Airport Security Force to the effect that he was the person who cleared the baggage. He lastly contended that admission before the Investigation Officer to the effect that he got tickets of all the 3 hijackers and cleared the shoulder bag of the hijackers and passed the same on to the plane is not admissible in evidence.
12. On the other side, the learned Assistant Advocate-General vehemently controverted the contentions of Mr. Muhammad Ismail Memon and argued that the prosecution has fully proved its case against appellants Shahsawar, Shabbir Ahmed and Sabir Ali, the hijackers, beyond any shadow of doubt. All of them have admitted that they were arrested by S.S.P., District Magistrate, Hyderabad and other officers at Hyderabad airport from the hijacked plane. Irrespective of above, the evidence of all prosecution witnesses has gone unchallenged and unrebutted and none of the appellants has alleged any enmity with any of the witnesses. He further contended that the appellants were not only apprehended at the spot, but the pistols have been secured from the possession of appellants Shabbir and Shahsawar. It has also come on record that hijackers demanded ransom of Dollars 20,000,000 and fuel for flying to Delhi, as such they do not deserve any leniency in the sentence, which has been rightly awarded by the trial Court. With regard to appellant Sharif, the learned A.A.-G. Submitted that Investigating Officer, Muhammad Umer Ahmadani has not conducted investigation properly and has not collected any evidence connecting appellant Sharif with the commission of offence. According to him, he has failed to examine companion officers of A.S.F. Posted at Turbat Airport at the time of incident and so also Muhammad Akram, Commanding Officer. A.S.F., who handed over to him his custody. Irrespective of above, Investigating Officer has failed to collect the evidence relating to conspiracy or abatement of offence with the co-appellants. On our query the learned A.A.-G. Frankly conceded that appellant Sharif was also not implicated by co-appellants during interrogation and that no one from among the personnel on duty at the relevant time at the Airport has been joined in investigation in this case. He rebutted the arguments of the appellants' counsel and stated that the Full Bench of the learned Federal Shariat Court has held that mere noncompliance of section 364(2), Cr.P.C is curable if it had not injured accused as to his defence on merits.
13. Admittedly the factum of hijacking of the plane has not been denied by the hijackers, the appellants Shahsawar, Shabbir Ahmed and Sabir Ali. They in their statements under section 342, Cr.P.C. Have candidly admitted that they were arrested by D.M., A.S.P. And Major Aamir at Hyderabad Airport while replying the questions that they were trickly arrested by the above officials inside the airplane alongwith pistols. By not pleading animosity with the above-mentioned officials, they have accepted the incident. Irrespective of this, by non-examining themselves on oath and stating anything in defence, we are left with no option but to come to the conclusion that they are the real culprits. Coming to the case of prosecution, sufficient convincing, reliable, trustworthy evidence has been brought on record to establish the charge against the appellants.
14. P.W. Muhammad Uzair, Flight Captain, has categorically deposed that on 24-5-1998 during the flight from Turbat to Karachi via Gwadar with 21 passengers and the members of crew, it was at about 5-30 p.m. He heard cries and thereafter, two persons entered in his cabin (cockpit). One kept pistol on his head and ordered him to take plane to Jodhpur, India, whereas the other stood behind him. The third culprit went into the cabin of passengers. He correctly pointed out to appellants Shahswa r, Shabbir Ahmed and Sabir Ali to be those 3 culprits. He further stated that he trickily narrated them that there was no fuel in the plane, as such they cannot reach to Jodhpur, India, and the plane will be burst. They asked him to proceed to India and do not care for falling down.
Someone from the appellants took away First Officer and threatened him and ultimately they allowed him to contact control, but in Urdu and he contacted at Karachi and told that they had to go to Jodhpur and the fuel was very limited and the control replied plane cannot go to Jodhpur.
The appellants again insisted that they had to land in India and not in Pakistan. Thereafter, control told them that they can land at Bhuj Airport in India and gave a confidential signal and as such. He turned the plane to Hyderabad Airport telling them that they are going to Bhuj airport of India. On further inquiry, he told the appellants that after giving two rounds over the runway he would land the plane at Bhuj Airport, by that way he landed the plane at Hyderabad Airport. At Hyderabad Airport, they released round Engineer Muhammad Sajid Chaudhry for bringing meals, water and fuel. During that time, he gave mike to appellant Shahsawar to have conversation with control tower and he demanded 20,000,000 Dollars and fuel in my presence. The witness clearly identified the appellant and the pistol lying in the Court to be the same.
15. The above version has been supported by P.W. Sohail Akbar Shah, District Magistrate, Hyderabad, Akhtar Hassan, S.S.P. Hyderabad, Usman Anwer, A.S.P. Phuleli, Muhammad Sajid Chaudhry, Ground Engineer, P.W. Major Aamir of I.S.I., Air Hostess P.W. Khalida Afridi, Investigating Officer Muhammad Umer Ahmadani, S.H.O. Of Police Station S.I.T.E., Hyderabad and they in their respective statements, recorded at trial, have supported the factum of hijacking of the plane and its landing at Hyderabad Airport. They have categorically deposed that on the day of incident they received wireless message that a Fokker plane said to have been hijacked, was due to land at Hyderabad Airport. On such information all of the above witnesses proceeded there and in their presence the appellants, namely, Shahsawar, Shabbir Ahmed and Sabir Ali were arrested and 21 passengers were released and the pistols were recovered from the appellants Shahsawar and Shabbir Ahmed. P.Ws. Had also received certain minor injuries while apprehending the appellants.
The abovenamed appellants and the property including the pistol were correctly identified by the abovementioned witnesses at the time of trial. The case-law referred by Mr. Muhammad Ismail Memon is on different facts and circumstances and has no relevance with the case of prosecution.
16. From what has been discussed above, we are of considered opinion that prosecution has proved case against the appellant, namely, Shahsawar, Shabir Ahmed and Sabir Ali beyond any shadow of about and there seems to be no reason to interfere with the conviction and sentence passed against the appellants by the trial Court and the same is maintained. So far, the case of appellant Sharif is concerned, his case is on different facts and circumstances. Accepting the word of Investigating Officer Muhammad Umer Ahmadani that appellant Sharif was handed over to him by Mr. Muhammad Akram, Commanding Officer, A.S.F. And on interrogation he disclosed that he had purchased the tickets for hijackers and also cleared their shoulder bags, the prosecution has not been able to bring on record any other evidence connecting him with the offence. This statement of appellant before Investigating Officer is not admissible. According to Article 38 of Qanun-eShahadat, confessional statement before police officer is inadmissible in evidence.
Admittedly, no one has been examined from among the personnel of A.S.F. Posted at the relevant time at Turbat Airport to show that appellant Sharif cleared the shoulder bag of the hijackers. None of such officers was joined in investigation nor made accused, as such in absence of any independent piece of evidence no reliance can be placed on the same. C According to Mashirnama of producing the said bag to Investigating Officer, Muhammad Umer Ahmadani by Mr. Niazi Airport Manager of Hyderabad Airport, the said bag was handed over on 27-5-1998 as it was lying unclaimed in luggage cell. Though the said bag was said to be a shoulder bag, but had gone in the passengers luggage and was delivered at the Airport and was lying unclaimed there. From his search pistols were not recovered, as such the allegation that appellant Sharif had conspired with the co-appellants and allowed pistols to be taken through the said bag is devoid of force.
17. According to the law laid down by the Honourable Supreme Court in the case of Asadullah and another v. The State and another, reported in 1999 SCM R 1034, the case resting on circumstantial evidence should be scrutinized with caution, mere suspicion will not be sufficient to justify conviction. Circumstances sought to be relied upon must be established beyond all doubts. In our opinion there is no sufficient evidence against appellant Sharif and the case against him is doubtful. Resultantly, his appeal is accepted and conviction and sentence awarded to him is set aside. He shall be released forthwith, if not required to be detained in any other case.
18. The reference of confirmation of sentence of death is accepted in respect of appellants Shahsawar, Shabbir Ahmed and Sabir Ali, whgreas the same is declined in respect of appellant Sharif.
' A copy of this judgement be sent to Inspector-General of Police, Sindh, for taking action against Investigating Officer Muhammad Umer Ahmadani for not properly investigating the case against acquitted appellant Sharif.