WAHID BUX BROHI, J.- The above-mentioned S.I.Cr. A.T. Appeals have arisen from the judgment dated 6.4.2000 delivered by the A.T. Court No. I, Karachi in S.I. Case No. 385/99-State Vs. Mian Muhammad Nawaz Sharif and six others whereby appellant Mian Muhammad Nawaz Sharif was convicted of the offences of hijacking and terrorism under Section 402-B, PPC and Section 7(ii) of the Anti-Terrorism Act, 1997 respectively and sentenced to different terms. The sentences awarded by the Trial Court, as recorded in the judgment, run as under:- "In view of above position this Court convict(s) the accused Mian Muhammad Nawaz Sharif under Section 402B, PPC and sentence(s) him to undergo R.I. For life and to pay a fine of Rs.5,00,000/- (Rupees Five Lac), In case of non-payment of fine the accused shall undergo R.I. For 5 years. The entire property of accused Mian Muhammad Nawaz Sharif is confiscated to Government of Pakistan.
This Court also convicts the accused under Section 7(ii) of A.T. Act and sentence(s) him to suffer imprisonment for life and to pay a fine of Rs.5,00,000/- (Rupees Five Lac) along with forfeiture of his entire property, In case of non-payment of fine the accused shall undergo R.I. For 5 years. This Court also directs the accused that he Should pay a compensation of Rs.20,00,000/- (Rupees Twenty Lac) under Section 544-A, Cr.P.C, for all the passengers of the aircraft PK-805, which shall be distributed among them in equal shares. All the sentences are to run concurrently. The accused is entitled for the benefit of Section 382-B, Cr.P.C."
2. The learned Trial Court acquitted respondents/co- accused Mian Shahbaz Sharif, Syed Ghous AN Shah, Shahid Khaqan Abbasi, Rana Maqbool Ahmed, Saif-ur-Rehman Khan and Muhammad Saeed Mehdi.
3. Appellant/accused Mian Muhammad Nawaz Sharif feeling aggrieved and dissatisfied with his conviction by the learned Trial Court and the sentences awarded to him challenged the same by filing an appeal under Section 25(1) of the Anti- Terrorism Act, 1997, 'which was registered as Special Criminal A.T. Appeal No. 43/2000. The State also felt aggrieved and dissatisfied with the quantum of sentence awarded to accused/appellant Mian Muhammad Nawaz Sharif and consequently filed an appeal under Section 25(4) of the Anti- Terrorism Act, 1997 for enhancement of the sentence to death, which was registered as Special Criminal Appeal No. 50/2000. The State also filed an appeal against the order of acquittal of respondents/co-accused, (1) Mian Muhammad Shahbaz Sharif, (2) Syed Ghous Ali Shah, (3) Shahid Khaqan Abbasi, (4) Rana Maqbool Ahmed, (5) Saif-ur-Rehman Khan, and (6) Muhammad Saeed Mehdi under Section 25(4) of the Anti-Terrorism Act, 1997, which was registered as Special Criminal A.T. Acq. Appeal No. 46/2000.
4. All the aforesaid Appeals were admitted to regular hearing and after hearing the learned counsel for parties, and in one case the respondent Shahid Khaqan Abbasi in person, the same were disposed of by a common short order on 30.10.2000 whereby as per the unanimous decision of this Court, S.I. Cr. A.T. Appeals Nos. 46/2000 and 50/2000 were dismissed and vide majority decision in S.I. Cr. A.T. Appeal No. 43/2000, (Saiyed Saeed Ashhad, C.J. And Wahid Bux Brohi, J.
Concurring) the conviction of appellant Mian Muhammad Nawaz Sharif was maintained with modification of sentence and the following Court order was pronounced:- "ORDERJDF THE COURT As a result of the foregoing, the Court orders as under:-
(1) Special Cr. A.T. Acq. Appeal No. 46/2000 stands dismissed.
(2) Special Cr. A.T. Appeal No. 50/2000 is also dismissed.
(3) In Special Cr.A.T. Appeal No. 43/2000, appellant Mian Muhammad Nawaz Sharif is convicted for offence punishable under Section 402B, PPC r/w Section 7(ii) of the Anti-Terrorism Act, 1997 and sentenced as under:-
(i) He shall undergo imprisonment for life,
(ii) Pay a fine of Rs.5,00,000/00 and in default in payment thereof to undergo further R.I. For five years; and
(iii) His movable and/or immovable property shall stand forfeited to the Government to the extent of value of Rs.500 million.
Sd/- SAIYED SAEED ASHHAD, C.J.
Sd/- WAHID BUX BROHI, J."
5. It is pertinent to mention here that one of the members of the Bench, Sarmad Jalal Osmany, J.
Recorded his dissenting note with regard to Cr.A. T. Appeal No. 43 of 2O0O which runs as under:- "I have gone through the short order proposed to-be delivered by the Hon'ble Chief Justice and concurred with by my learned brother Wahid Bux Brohi, J. I agree with their conclusions in dismissing Appeals Nos. 46/2000 and 50/2000. However, for the reasons to be recorded later, in Appeal No. 43/2000, I find that appellant Mian Muhammad Nawaz Sharif is only guilty of the offence of abduction punishable under Section 365, PPC. Accordingly, in the circumstances of the case, I convict him of said offence and sentence him to undergo three years' R.I. I would also suffer him to pay a fine to the extent of Rs.500 million and in default thereof to undergo R.I. For a further period of six months. The benefit of Section 382-B, Cr.P.C, is allowed to the appellant."
6. The following are the detailed reasons for the above order.
7. The First Information Report of this incident was lodged at Airport Police Station on 10.11.1999 at 1900 hours by way of a written complaint made by It. Col. Atiq-uz-Zaman Kavani addressed to SHO, Airport Police Station, Karachi. The contents of the said letter/complaint were incorporated as Crime No. 201/99 and verbatim in the FIR Book maintained under Section 154, Cr.P.C, by Choudhry Muhammad Shabhir SIP, the duty officer at Police Station Airport, Karachi, It would be advantageous to reproduce the text thereof for the purpose of contents of the FIR, which runs as under:- "To, S.H.O.
Airport Police Station, Karachi.
I, Lt. Col. Atiq-uz-Zaman Kayani s/o Raja Khan Zaman Kayani (Late) report as follows:- I am serving as Protocol Officer with Headquarters Karachi. On 12th Oct., 1999 at about 1800 hours, I reached Quaid-e-Azam International Airport Karachi to tie up the arrangements for the reception of COAS General Pervez Musharraf, who was scheduled to return from Colombo after an Official visit to Sri Lanka by a routine PIA Flight PK-805 which was to land at Quid-e-Azam International Airport Karachi. The estimated time of arrival (ETA) of this flight was 1855 hours. At about 1840 hours Corps Commander 5 Corps Lieutenant General Muzaffar H. Usmani along with Major Zaffarullah Khan Wazir arrived at the airport. I along with Brigadier Tariq Ali Khan Commander Logistic Area and' Brigadier Naveed Nassar, Commander ASF, received the Corps Commander. I came to know at the Airport that Flight PK-805 has been refused permission to land at its destination i.e. Karachi Airport by ATC. The Karachi Airfield was closed, runway lights were snatched off and runway was physically blocked by parking crash tender vehicles at three different places. While other Flight Scheduled to land at Karachi were diverted to Sukur an Nawabshah. Flight PK-805 was refused landing even a Nawabshah, which was the planned alternate airfield of Flight P 805. I also came to know that Flight PK-805 was ordered not land any where in Pakistan. Despite critical law fuel endurance th pilot had been ordered to proceed to a foreign Country at his ow risk. Late on after landing of Flight PK-805 at 1948 Hours, I cam to know that only 10 Minutes fuel was left which showed an intend and criminal conspiracy to cause the plane to crash thus physically eliminate and murder C.O.A.S.. General Pervez Musharraf and passengers by an act of terrorism of hijacking with an intent to cause crash of plane by lack of fuel for the reason as no airfield was allowed to be open for its landing, In this manner the conspiracy was to physically eliminate and murder C.O.A.S. General Pervez Musharraf and 198 passengers on board Flight PK- 805 with deliberate criminal intent which is apparent from the act, conduct and orders/conversation of persons including the then Prime Minister Muhammad Nawaz Sharif. At about 1900 hours the then advisor to Prime Minister on Sindh Affairs Syed Ghous Ali Shah and Rana Maqbool, the then I.G.P. Sindh along with their entourage arrived at Karachi Airport and proceeded to Domestic Lounge which I later learnt was to implement orders given personally by the then Prime Minister Muhammad Nawaz Sharif to Syed Ghous Ali Shah. After a while D.I.G. Karachi, Mr. Muhammad Akbar and S.S.P. (East) Mr. Memon also arrived and proceeded to domestic lounge. After their arrival abnormal police activity was also observed in the vicinity of airport, It was also learnt that a heavy police contingent had been deployed at Nawabshah Airfield under the supervision of Mr. Ehsanullah Gondal, the then S.S.P.
Nawabshah and Akhtar Hussain Ex-D.I.G. Sukur Range, on the orders of Ex-advisor to Prime Minister on Sindh Affairs Syed Ghous Ali Shah and Rana Maqbool Ex. I.G.P. Sindh, with orders to take General Pervez Musharraf into custody. Flight PK-805 lands at Nawabshah. At about 1845 hours, Army troops Ex. 5 Corps Reserve arrived at Jinnah Terminal to take over A.T.C. And it was army troops Ex 5 Corps Reserve who got the runway cleared, runway lights switched on and blockade removed on army's order to facilitate landing of Flight PK-805. The A.T.C. Was instructed by the army to allow flight PK-805 to land at Karachi Airport. Approximately at 1948 hours Flight PK-805 thus landed safely at Karachi Airport. After the plane had landed under orders of army, I come to know that a criminal conspiracy was hatched by the then Prime Minister Muhammad Nawaz Sharif and other co-conspirators to hijack Flight PK-805 in furtherance of common criminal intent and ulterior motive to kill C.O.A.S. General Pervez Musharraf and other passengers on board to force and abduct C.O.A.S. General Pervez Musharraf with intent to wrongfully confine him in pursuance of act of terrorism so as to make the command of Pakistan Army ineffective and endangering and exposing the security of State of Pakistan to external aggression and internal subversion. Later it also come to my knowledge that Flight crew of Flight PK-805 was subjected to tremendous mental stress by receiving illegal orders of the then Prime Minister Muhammad Nawaz Sharif and Ex.-D.G.
C.A.A. Aminullah Chaudhry through Wing Commander Faruq Secretary to Ex D.G. C.A.A. Aminullah Chaudhry and from Air Traffic Control Authorities specially Yousaf Abbas, Chief Operation Officer and Mr. Syed Aqeel Ahmed General Manger Air Traffic Services of Karachi Airport. These orders were totally illegal and destructive to safety of Flight PK-805 and fatal to the life of all passenger, on board. Flight PK-805 was subjected to this grave, dire and definite disastrous situation, on the directions of the then D.G. C.A.A. Aminullah Chaudhry, Chairman P.I.A.C. Shahid Khaqan Abbasi and Syed Ghous Ali Shah, who further gave directions to all concerned Individuals and employs at Karachi Airport to prevent and to unlawfully physically obstruct safe landing of Flight PK-805 by parking three fire crash tender vehicles in the runway so as to cause crash of Flight PK-805 even if the pilot landed despite refusal of permission to land by A.T.C. These-physical obstructions on the runway at Quaid-e-Azam International Airport Karachi consisted of switching off runway lights in the full darkness which had already set in at Scheduled time of arrival i.e. 1855 Hours on 18.10.1999 on the personal orders of the then Prime Minister of Pakistan Muhammad Nawaz Sharif in active connivance and I common intent of Aminullah Chaudhry, the then D.G. C.A.A. Shahid Khakan Abbasi, the then Chairman P.I.A.C, and Rana Maqbool, the then Inspector General Police Sindh and others. The runway was obstructed by physical parking of three fire crash tender Vehicles which are long and wide enough to block the runway and at calculated distance from each other to effectively block the runway for landing. The sure disaster planned by the accused was averted only due to timely intervention of Army j authorities. After the plane had landed I came to know that in t order to achieve their, criminal and nefarious design the above- named accused persons in criminal conspiracy with each other and' other concerned individual did commit various criminal acts as stated above so as to: Firstly, engineering, conspire and cause crash of Flight PK-805 carrying on board C.O.A.S. General Pervez Musharraf, his family, P.I.A. Crew, and other Passengers totaling 198 souls/persons on board including sixty children belonging to American Schools of Karachi and Lahore with criminal intent so as to murder C.O.A.S. General Pervez Musharraf and others on board Flight PK-805 and make the command of Pakistan Army ineffective and thereby achieving successful, culmination of conspiracy against the security, integrity and defence of the State of Pakistan.
Secondly, by ordering not permitting Flight PK-805 to land at any airfield in Pakistan and instead ordering the pilot captain Sarwat Hussain to take the Flight any where else out side Pakistan at his own risk despite the said pilot clearly and repeatedly informing A.T.C. Which was duly conveyed to the then Prime Minister Muhammad Nawaz Sharif that he did not have sufficient fuel to go outside Pakistan. The pilot also vehemently asserted that he was not allowed the land, it would be end of the story which (sic) dead and destruction this-also conspiracy to murder C.O.A.S. General Pervez Musharraf and other innocent passengers on board Flight PK-805.
Thirdly, in the event the Flight PK-805 succeeded in landing at Karachi or Nawab Shah despite being prohibited as above to arrest and wrongfully confine C.O.A.S. General Pervez Musharraf with the help of heavy police force deployed at Karachi and Nawab Shah under the personal orders and directives of the then Prime Minister Muhammad Nawaz Sharif, Syed Ghous Ali Shah, the then advisor to Prime Minister on Sindh Affairs and the then Inspector General Police Sindh Rana Maqbool Ahmed and others.
Fourthly, to strike terror and create a sense of fear and insecurity in the passengers and crew on board Flight PK-805, including 60 innocent children of Karachi and Lahore American Schools who were returning from Colombo to Karachi after taking part in International Swimming gala at Colombo. From the facts enumerated in this First Information Report it is revealed that the above- named accused persons namely (1) Muhammad Nawaz Sharif son of Mian Muhammad Sharif (2)
Syed Ghous Ali Shah son of Nawab Ali Shah (3) Aminullah Chaudhry son of A.K. Chaudhry (4)
Shahid Khakan Abbasi son of Khakan Abbasi (late) (5) Rana Maqbool Ahmed son of Ghulam Muhammad and others co-conspirators with the then Prime Minister Muhammad Nawaz Sharif have committed heinous criminal offence including high treason in furtherance of a deeply routed criminal conspiracy to commit among other offences, attempted to murder C.O.A.S. General Pervez Musharraf and other innocent passengers and crew members of plane totaling 198 persons on board so as to take the command of army ineffective and endangering and exposing the security of the State of Pakistan to the external aggression and internal subversion also to obtain such results by the attempted wrongful, unlawful arrest and confinement of C.O.A.S. General Pervez Musharraf and further to cause death of 198 innocent souls/persons on board Flight PK-805 on 12.10.1999 and commit by deliberate criminal act and intent heinous act of terrorism and hijacking for which the said accused persons are liable to be dealt with in accordance with law. In order to ascertain the true fact different agencies i.e. Civil Aviation, PI A, Police, ASF, Army Authorities which were directly concerned with the incident also carried out primary probe into the matter. C.O.A.S. General Pervez Musharraf has himself given prompt public statement including on Pakistan TV describing the events relating to Flight PK-805 which are self-evident. From the fact enumerated in this report is revealed that a criminal conspiracy was hatched to hijack (plane) Flight PK-805 and furtherance of the criminal conspiracy to commit the murder of C.O.A.S. General Pervez Musharraf and 197 others on board Flight PK-805 and failing which to wrongfully arrest and confine the above-named C.O.A.S in pursuance of the act of terrorism and with intent to kill passengers on board as aforesaid, It is requested that F.I.R, be registered to this effect and necessary legal action be taken against the above-named accused persons and others found involved in the crimes.
Karachi dated 10th November, 1999.
Sd/- It.COL. ATIQ-UZ-ZAMAN KAYANI HEADQUARTER 5 CORPS KARACHI."
8. SHO Police Station Airport Karachi, namely Abdul Waqar Malhan received the copy of FIR at 9.00 p.m., on 10.11.1999 and took-up the investigation. He inspected the place of occurrence on pointation of complainant and prepared a memo. On 12.11.1999 he recorded the statements of PW Yousuf Abbas, Aqeel Ahmed and Wing Commander Ahmed Faruq under Section 161, Cr.P.C, and on the following day he arrested respondent/accused Syed Ghous Ali Shah, Shahid Khakan Abbasi; Rana Maqbool Ahmed and Aminullah Chaudhry (later on turned to be an approver) from Malir Cantt at 2.15 p.m. On 16.11.1999 he recorded the statements of PWs Muhammad Akbar, DIG Karachi; Ahsanullah Gondal, SP Nawabshah; Nadeem Akbar, Shah Nawaz Dara and Manzoor Ahmed. He recorded further statement of Wing Commander Ahmed Faruq on 18.11.1999. He got the statements of PWs Capt. Sarwat and DIG Muhammad Akbar recorded under Section 164, Cr.P.C, by the Judicial Magistrate, Malir, Karachi on 18.11.1999 and on the following day he arrested appellant Mian Muhammad Nawaz Sharif from Malir Cantt at 12.05 midnight. He got the statements of PWs Shah Nawaz Dara, Ahsanullah Gondal and Wing Commander Ahmed Faruq recorded by the Judicial Magistrate on 20.11.1999. On 23.11.1999 District Magistrate, Malir, Karachi recorded the statement of Aminullah Chaudhry, the approver. On 24.11.1999 he (the Investigating Officer) recorded the statement of PW Nadeem Akbar, DIG Akhtar Memon and SSP Karachi East Bashir Ahmed Memon.
He received the custody of respondents Mian Muhammad Shahbaz Sharif, Saeed Mehdi and Saifur Rahman at Faisal Airbase on 25.11.1999 at about 5.00 a.m. On 25.11.1999 at 2.15 p.m. He secured five audio video spools produced by Anwarul Haq, Civil Aviation Officer at the Police Station. Statement of PW Rukhsar Ahmed, SP was recorded under 'Section 164, Cr.P.C, on 27.11.1999. He recorded the statements of PWs Syed Anwar Hussain, Shamshad Ali, Gul Taj and Asadullah Shah on 28.11.1999 and on the following day he got the statement of PWs Commander Zahir and Asif recorded under Section 164, Cr.P.C, by the Judicial Magistrate. On 30.11.1999 hq recorded the statement of PWs Mushtaq Tahir Kheli and Manzoor Ahmed, Inspector Controller under Section 161, Cr.P.C. On the following day he got the statements of PWs Rukhsar and Asadullah Shaikh recorded under Section 164, Cr.P.C, by Judicial Magistrate. He secured the black-box and two spools from the office of Rasheed Bhatti, Manager Engineering Department, PIA on 3.12.1999 and on the same day at 7.15 p.m.
He secured transcriptions containing 18 and 19 pages respectively from Raza Rizvi, Superintendent Electronic Department, Civil Aviation Karachi and sealed the same. He recorded the statement of PWs Azmatullah, Abdul Hameed and Khawaja Khalil on 4.12.1999 and that of PW Maqbool Ahmed Shaikh on 6.12.1 999. The statements of Muhammad Asif son of Sardar Ahmed, Syed Aqeel Ahmed, Amir Rasheed Malik and Suleman Ahtesham were recorded under Section 164, Cr.P.C, on 25.11.1999.
After completing the investigation he submitted the challan in the Court of Administrative Judge, Karachi presided over by Shabhir Ahmed, J. Of this Court. On 13.1.2000 the case was received by transfer by Anti-Terrorism Court No. 1 Karachi from the Court of Administrative Judge.
9. The Anti-terrorism Court-I, Karachi framed the charge on I 19.1.2000 to which appellant/accused Muhammad Nawaz Sharif and respondents/co-accused Mian Shahbaz Sharif, Syed Ghous Ali Shah, Shahid Khakan Abbasi, Rana Maqbool Ahmed, Saifur Rahman Khan and Muhammad Saeed Mehdi pleaded not guilty. Since the Court had not taken Oath within the meaning of Section 16 of the Anti-Terrorism Act before the trial the learned Judge took Oath in accordance with law and framed the charge afresh on 26.1.2000 for offences punishable under (i) Section 402B read with Sections 109 and 114, PPC, (ii) Section 324 read with Sections 109 and 114, PPC, (iii) Section 365 read with Sections 109 and 114, PPC, and (iv) Section 7(ii) of the Anti-Terrorism Act, 1997, to which the above-mentioned accused persons pleaded not guilty and claimed trial.
10. At the trial, the Prosecution examined as many as 28 witnesses, namely:-
(1) PW-1 Approver Aminullah Chaudhry,
(2) PW-2 Syed Yousuf Abbas, Chief Operational Officer, CAA,
(3) PW-3 Muhammad Akbar (Ex DIG Karachi),
(4) PW-4 Muhammad Asif, Air Traffic Controller CAA,
(5) PW-5 Ihsanullah Gondal (the then S.P. Nawabshah),
(6) PW-6 Sayed Aqeel Ahmed Facility Operational Officer, CAA.
(7) PW-7 Nadeem Akber, Ground Movement Officer, CAA,
(8) PW-8 Shah Nawaz Dara, Director Flight Operation, PIA,
(9) PW-9 Captain Sarwat Hussain, Pilot of PK-805,
(10) PW-10 Rukhsar Ahmed, P.S.O. To Chief Minister Sindh.
(11) PW-11 Bashir Ahmed.
(12) PW-12 Asadullah Shaikh, Superintendent Fire Brigade, Karachi Airport.
(13) PW-13 Manzoor Ahmed, Radar Controller, CAA,
(14) PW-14 Zahid. Mehmood, the then A.D.C, to P.M.
(15) PW-15 Muhammad Asif, Telephone Operator PM House.
(16) PW-16 Muhammad Sadiq, Telephone Operator, D.G. CAA.
(17) PW-17 complainant It. Col. Atiq-uz-Zaman, PS to Commander 5 Corps-Complainant.
(18) PW-18 Brigadier Nadeem Tao, PS to the COAS.
(19) PW-19 Brigadier Javed Iqbal, the Military Sec. To P.M.
(20) PW-20 Wing Commander Ahmed Faruq, Sec. To D.G. CAA.
(21) PW-21 S.I. Choudhary Muhammad Zubair,
(22) PW-22 Nazir Ahmed Mashir.
(23) PW-23 Muhammad Suleman.
(24) PW-24 Muhammad Younis Dhaga, SDM Malir.
(25) PW-25 Manzoor Ahmed.
(26) PW-26 DSP Muhammad Mehboob Khan.
(27) PW-27 Zafar Ali Khan of PIA.
(28) PW-28 SHO Waqar Malhan.
11. Appellant Mian Muhammad Nawaz Sharif as also the respondents/co-accused did not examine themselves or any other witness in defence, but in their statements recorded under Section 342, Cr.P.C, they denied all the allegations of Prosecution as per FIR and the charge framed by learned Trial Court. Arguments were heard by learned Trial Court on behalf of the Prosecution as well as the appellant and respondents/co-accused and the judgment as mentioned above was handed down whereby only the appellant/accused Mian Muhammad Nawaz Sharif was convicted and sentenced in terms mentioned dt para 1 above, and the remaining accused persons were acquitted.
CR.A.T. APPEALS NOS. 43/2000 AND 50/2000
12. Mr. Azizullah K. Shaikh learned counsel for appellant Mian Muhammad Nawaz Sharif in Cr.A.T.
Appeal No. 43 of 2000 raised, inter alia, the following contentions:-
(i) That the FIR has been inordinately delayed inasmuch as the incident took place on 12th October, 1999 whereas the FIR was lodged on 10th November, 1999 at 1900 hours. According to learned counsel the FIR is not at all reliable having been lodged after consultation and due deliberation by the complainant with a number of authorities/agencies/persons.
(ii) That the learned Trial Court has convicted the appellant on the sole testimony of approver, Aminullah Chaudhry and since his version has. Not been corroborated in material particulars in accordance with the rule consistently laid down by the superior Courts it could not be relied upon.
(iii) That there was a power struggle between the appellant and COAS General Pervez Musharraf as both of them were at variance on core national issues in consequence of which a Coup d'etat had been planned by the latter. Consequently, when the appellant came to know about the existence of such Coup d'etat which in effect was put into execution after the appellant had dismissed COAS General Pervez Musharraf at 4.30 p.m. On 13.10.1999 and appointed General Ziauddin in his stead he (the appellant) ordered diversion of Flight PK-805, which was carrying COAS General Pervez Musharraf so that he could consolidate his position etc. In this respect learned counsel submitted that the appellant possessed legal power and authority to do so in terms of Section 6(i)(b) of the Civil Aviation- Ordinance, 1960. Hence according to learned counsel the case was not at all of Hijacking as defined in Section 402-A, PPC but on the other hand it was a lawful diversion of Flight PK-805. In this respect, learned counsel submitted that although the appellant had denied diversion/hijacking of Flight PK-805 in toto in his statement under Section 342, Cr.P.C, before the learned Trial Court, he is entitled to change his plea in appeal as per settled law.
(iv) That the evidence on record shows that at 6.15 p.m. The appellant had ordered that Flight PK- 805 should land at Nawabshah after he was informed of its critical and low fuel endurance and thereafter the said Flight should go to Muscat. However, Flight PK-805 after going almost half way to Nawabshah had come back to Karachi and then again ascended instead of landing there, thus wasting precious fuel and time, finally landed at 7.48 p.m. According to learned counsel this action of the Pilot seen in consonance with the evidence on record viz., that the Army had taken over the air traffic control centre at Karachi Airport at 7.10 p.m. Would establish that from that time onwards till the Flight landed, it was exclusively in control of the Army. Consequently, as per learned counsel this sequence of events coupled with the circumstances and background of the case could "not by any stretch of imagination be termed as a case of hijacking.
(v) That although the appellant was charged with offences under Section 324 and Section 365, PPC i.e. Attempt to commit Qatl-i-Amd and abduction, he was acquitted of these charges by the learned Trial Court and convicted only of the offences of hijacking and terrorism. Consequently when no appeal has been filed by the State against such acquittal, this would denote that at least half of the charges against the appellant were false, thus causing a doubt as to the remaining charges and on the appellant's conviction thereon.
(vi) That even otherwise the actions of the appellant were covered under Sections 76, 79 and 81 of PPC, which provide for condonation of offences where they are committed under mistake of fact by a person who thinks he is bound by law to do so or if justified by law and done in good faith or if done without any intention of causing harm and so as to prevent loss to life and property respectively.
13. In support of his contentions he placed reliance on case- law and cited a number of authorities which will be duly mentioned while discussing the afore-mentioned points.
14. Mr. Zahoorul Haq, learned Special Prosecutor appearing for the State vehemently opposed the appeal and supported the finding of conviction recorded against appellant by the Trial Court. He, inter alia, argued:
(i) That the prosecution placed on record ample evidence which is reliable and worthy of credit and in particular the evidence of approver Aminullah Chaudhry which was corroborated in material particulars through trustworthy evidence, was sufficient to prove the charge and the Trial Court rightly found the appellant guilty;
(ii) That the approver, Aminullah Chaudhry was not a witness of the category of a willing participant but he was victim of events and he had no axe of his own to grind nor was he a beneficiary of the incriminating act, as such, under the settled law his evidence by itself was sufficient to prove the charge;
(iii) That generally delay in FIR may damage its value but it varies from case to case and the promptness or delay in' lodging of FIR is no guarantee of. Truth or otherwise of the case. According to him the FIR in the instant case could not be compared with that of an ordinary case and in the peculiar circumstance of the incident a fact finding inquiry was held, as such, the FIR may be seen in totality and not in isolation and the delay in lodging of FIR shall not reflect adversely upon the case of prosecution which otherwise stands proved through abundant credible evidence. However, he adhered to the reasoning given by the Trial Court regarding this aspect of the case;
(iv) That the defence plea raised on behalf of the appellant at the appellate stage that the appellant ordered diversion of the plane in exercise of powers available to Federal Government within the meaning of Section 6(i)(b) of the Civil Aviation. Ordinance, 1960 could not be sustained as firstly the aforesaid Ordinance stood impliedly repealed by Civil Aviation Act, 1982 and no benefit could be derived from the provisions of the Ordinance; and alternatively even for the purpose of exercises of the powers within the meaning of Section 6(i)(b) of the Civil Aviation Ordinance, 1960, objectively speaking, the pre-requisite conditions such as war or other emergency or a requirement in the interest of public safety or tranquility did not exist at the crucial time calling for an imminent and spontaneous action by way of resorting to exercise of such powers. He added that powers could, nevertheless, be exercised within the territories of Pakistan and not by compelling the plane, operating a national flight to enter the territories of another country;
(v) That the defence taken on the. Strength of exceptions under Sections 76, 79 and 81 of PPC cannot be sustained as the burden of proving the same within the meaning of Article 121 read with 122 of Qanun-e- Shahadat lay on the appellant who miserably failed to produce such evidence or point out the same from record;
(vi) That the plea with respect ta struggle of power between appellant Mian Muhammad Nawaz Sharif and COAS General Pervez Musharraf does not find support from the evidence on record; nevertheless, the Hon'ble Supreme Court in the case of Zafar AH Shah v. Government of Pakistan (short order reported as PLJ 2000 SC 1165 and 2000 SCMR 1137 and the judgment reported as PLD 2000 SC 869) has validated the action taken by the COAS, presently the Chief Executive in the circumstances. Moreover, this plea was not taken at the trial and, as such, on this point, there is no finding by the Trial Court. On the whole, this plea would not provide any advantage to the appellant after the verdict given, by the Hon'ble Supreme Court.
15. He cited a number of authorities on all relevant points with reference to his contentions which will be described while discussing in detail the respective issues raised in the case.
16. In view of the story of the prosecution and the evidence led in support of the charge it would be seen that the case revolves around the evidence of Aminullah Chaudhry, the approver. The learned defence counsel, with full vehemence, assailed the character of this witness, and credibility of his version and, as stated earlier, he was of the view that a wholly worthless evidence to be scrapped straightaway, has been given by Aminullah Chaudhary and even corroboration of his version was immaterial as it was a tainted piece of evidence which would not earn a credit by way of corroboration, while the learned Special Prosecutor strenuously argued that Aminullah Chaudhry's version is credible and the Trial Court has rightly relied on his evidence and accepted the corroboration offered in his support; as such, it is felt necessary that a brief description of the version given by Aminullah Chaudhry may be laid down. However, looking to the sequence of circumstances it appears that Aminullah Chaudhry figured in the (sic) the wake of second phase of events, while the first part of the occurrence was witnessed by a number of other witnesses who were present around appellant Mian Muhammad Nawaz Sharif .At Islamabad particularly in the Prime Minister House, Islamabad.
17. At this stage, in order to have a comprehensive categorization of different clusters of witnesses, it would be advantageous if a classification is made on the basis of the venue of different transactions occurring at different times. Accordingly, the witnesses are categorized as under:- I. AT ISLAMABAD
(1) PW-14 Zahid Mahmood, Director Protocol Prime Minister House Islamabad: His duty was to check out daily, programme of Prime Minister and furnish a draft thereof to Military Secretary for approval.
(2) PW-19 Brig. Javed Iqbal, Military Secretary to Prime Minister. His primary duty was to look after (i) the internal wing of Prime Minister's Office and deal with protocol and security of Prime Minister; (ii)
Administration of the internal wing; and (iii) All the visits, appointments of the Prime Minister.
(3) PW-15 Muhammad Asif, OSD Prime Minister House Islamabad: He was working as Telephone Operator in the Prime Minister House, handling the small telephone exchange in the Prime Minister House and not the main exchange.
II. AT KARACHI AIRPORT (QUAID-E-AZAM INTERNATIONAL)
(1) PW-1 Aminullah Chaudhry, Director General, Civil Aviation Authority: (hereinbelow to be denoted as 'CAA' Karachi.
(2) PW-2, Syed Yousaf Abbas, Chief Operational Officer, CAA, Karachi.
(3) PW-4 Muhammad Asif, Aerodrome Controller, CAA, Karachi.
(4) PW-6- Aqeel Ahmed, General Manager Air Traffic Controller, CAA, Karachi.
(5) PW-7 Nadeem Akbar, Air Traffic Controller, CAA, Karachi.
(6) PW-8 Shah Nawaz Dara. He was basically Captain of 747 plane but during the days of this incident he was working as Acting Director Flight Operations, PIA and his office was situated at Karachi Airport head office.
(7) PW-12 Asadullah Shaikh: He was working as Shift Incharge, Superintendent CAA, Karachi and his office was situated in Fire Station located inside Karachi Airport.
(8) PW-13 Manzoor Ahmed, Air Traffic Officer. On that day he was performing duties of Approach Radar Controller at Karachi Airport and his duty^ hours were from 2.00 p.m. To 8.00 p.m.
(9) PW-16 Muhammad- Siddiq, Telephone Operator to Director General, CAA, Karachi.
(10) PW-20 Ahmed Faruq, Secretary to Director General, CAA, Karachi.
(11) PW-22 Nazeer Ahmed, Director Engineering, PIA.
(12) PW-27 Zafar AH Khan, Dispatch Writer, PIA Operation, Karachi. His entire deposition runs: "I produce the original flight log No. 001 6-2683 as Exh.69".
III. ON BOARD FLIGHT NO. PK 805
(1) PW-9 Syed Sarwat Huss&in. He was performing duties of Captain of Flight PK-805 PIA.
(2) PW-18, Brig. Tariq Nadeem, Private Sectary to Chief of Army Staff. He was accompanying General Pervez Musharraf in the said plane.
IV. KARACHI ADMINISTRATION/POLICE
(1) PW-3 Muhammad Akbar, Deputy Inspector General of Police, Karachi.
(2) PW-10 Rukhsar Ahmed, Personal Staff Officer to Syed Ghous AH Shah, Advisor to Prime Minister.
(3) PW-11 Bashir Ahmed, Senior Superintendent of Police, Karachi.
(4) PW-24 Muhammad Younus Dhaga, Deputy Commissioner Malir, Karachi.
(5) PW-25 Manzoor Ahmed, Police Inspector posted at Central Police Head Office, Karachi.
V. AT NAWABSHAH
(1) PW-5 Ahsanullah Gondal. He was posted as Superintendent of Police, Nawabshah.
(2) PW-23 Muhammad Suleman.. He was posted as Airport Manager PI A at Nawabshah Airport.
VI. PERSONS CONCERNED WITH FIR AND INVESTIGATION
(1) PW-17 It. Col. Ateeq uz Zaman. He was posted as Protocol Officer 5 Corps, Karachi. He lodged the FIR.
(2) PW-21 Ch. Muhammad Zubair. Sub-Inspector of Police posted at Police Station Airport. At the relevant time he was Incharge of Police Station and recorded the FIR.
(3) PW-26 Muhammad Mehboob Khan, Deputy Superintendent of Police posted as DSP/SDPO Airport Karachi. He conducted further investigation.
(4) PW-28 Abdul Waqar Malhan, SHO PS Airport. He conducted the investigation.
18. Evidence of Aminullah Chaudhry can be assessed in its proper perspective if a glance is made at the evidence of the witnesses concerned with the initial part of the episode, namely; Brig. Javed Iqbal, Military Secretary to Prime Minister; Zahid Mehmood, Director Protocol, Prime Minister House, Islamabad; and Muhammad Asif, OSD Prime Minister House, Islamabad, In the first instance a brief resume of their evidence is given which would highlight the events related to the background of the incident.
19. The Military Secretary, Brig. Javed Iqbal (PW-19) was examined by the Trial Court on 12.2.2000 and on that date he was in custody of army. He stated that he had joined the army in the year 1971 and he was promoted as Brigadier in the year 1995. He was appointed as Military Secretary to the appellant in July, 1998. His evidence recorded at the trial shows that on the crucial day i.e. 12.10.1999 he accompanied the appellant to Multan and on return the appellant desired that he should inform Principal Secretary Saeed Mehdi to meet the appellant at Islamabad Airport. When the plane reached near Islamabad he was able to convey this message through ADC. On arrival at Islamabad Airport, only Secretary Defence was available and not the Principal Secretary. The appellant in absence of the Principal Secretary started discussion with Secretary Defence and told him about the news- item which appeared in the newspaper two/three days earlier regarding the retirement of It. Gen. Tariq Pervez with the reasons as stated in the press that he was given early retirement because he had met the Prime Minister without prior approval of GHQ which had started creating an impression that there was a gap between the government and the army which was not good for the security of Pakistan. The appellant further said that after having made the Army Chief General Pervez Musharraf as the Chairman Joint Chiefs of Staff Committee, this kind of impression in public should not have been there. The appellant then clearly expressed that he had decided to appoint a new Army Chief. The Defence Secretary advised him to discuss the matter with Army Chief but the appellant replied that time for such discussion was over. The Secretary Defence again advised him to discuss the issue with Chief Minister Punjab Mian Shahbaz Sharif and Nisar Ali Khan but then the discussion ended there. However, the appellant disclosed that the new Army Chief would be It. Gen. Ziauddin, the then Chief of ISI. The appellant asked this witness to immediately call the Director General, ISI to Prime Minister House for meeting with him. The appellant was received at Prime Minister House by Saeed Mehdi, the Principal Secretary. The appellant advised the Principal Secretary and the Defence Secretary to prepare notification of change of Army Chief. General Ziauddin reached Prime Minister House at 4.00 p.m. The meeting with the President was rescheduled to 4.30 p.m. In the meantime the notification was prepared and the appellant after putting his signatures on the notification left for Presidency at about 4.30 p.m.
20. Brig. Javed Iqbal further stated that at policemen who were the personal bodyguards of the appellant and also took police personnel from the gate, and after having completed the task i.e. Disarming the soldiers at TV Station, he returned to Prime Minister House between 6.15 p.m. And 6.30 p.m. He informed the appellant about the performance of his task. When he came out of the office.
Commander Zahid Mahmood informed him that the aircraft which was carrying the Army Chief had been diverted on the instructions of appellant to Nawabshah and that the aircraft was to be refueled and nobody was to be permitted to get out of the aircraft as it was to be sent to a location in Middle East. On receiving the information that the aircraft had only 30 minutes fuel this witness got worried and contacted Aminullah Chaudhry who repeated the same story that 30 minutes fuel was left in the aircraft, he, therefore, advised Aminullah Chaudhry that aircraft should land immediately at Nawabshah but he was informed that the aircraft could only land at Karachi so he immediately replied that it may straightaway land at Karachi and follow the remaining instructions which Commander Zahid had already disclosed to him. This witness explained that by that time it was 7 O'clock, and the army had also taken over the Prime - Minister House. In cross- examination this witness stated that he had been in the custody of army since the said date i.e. 12.10.1999. He also admitted that the Prime Minister had not passed any instruction to anyone in his presence about the aircraft.
21. Zahid Mehmood (PW-14) was posted as Director Protocol, Prime Minister House, Islamabad since November, 1997, he had to check out the daily programme of the Prime Minister and furnish a draft thereof to the Military Secretary for approval. According to him, on the day of incident i.e. 12.10.1999 appellant Mian Muhammad Nawaz Sharif, as per schedule, left for Multan at 10.00 a.m. And on appellant's return from Multan the meeting between the appellant and the President was rescheduled and fixed at 4.00 p.m. According to him, appellant Mian Muhammad Nawaz Sharif returned from President House to Prime Minister House at about 5.25 p.m. And he was present in the office of Military Secretary when the Chairman, PTV namely Senator Pervez Rasheed made a bail to PTV inquiring about the presence of army troops at PTV Centre. At about 5.45 p.m. h e saw Military Secretary Brig. Javed Iqbal getting into a police car along with some gunmen and on inquiry the latter disclosed that he was going to PTV Centre, Islamabad. A short while thereafter this witness saw the appellant, standing in the lawn along with his son Hussain Nawaz and the appellant asked him to find o^it the time of arrival of PIA Flight from Mali. After making queries he informed the appellant that the expected time of arrival of the flight was about 7.00 p.m. The appellant asked him to contact Chairman, PIA namely Shahid Khakan Abbasi (one of the respondents in acquittal appeal) and convey to him that the said flight should be diverted to Masqat. He contacted the Co-ordination Office of Chairman, PIA and passed on the message who later on confirmed that the message was conveyed. After few minutes Shahid Khakan Abbasi rang him and informed him that the aircraft did not have enough fuel and would not go to Masqat and it could only go to Nawabshah. He informed the appellant accordingly, but the latter remarked; "why not let it land at Karachi". At that time Saeed Mehdi (co-accused/respondent) expressed that if the plane lands as Karachi army would be present at the airport on which the appellant said that army could also be present at Nawabshah airport. Thereafter the appellant asked this witness that he should convey the message to Chairman, PIA Shahid Khakan Abbasi that the aircraft should be diverted to Nawabshah and after refueling, it should depart for (sic) embark or disembark from the aircraft. He conveyed this message to the Chairman, PIA accordingly.
22. The third witness at Islamabad is Muhammad Asif (PW15) who was working as Telephone Operator in Prime Minister House, Islamabad. He was posted as OSD but in fact prior to that he was Telephone Operator in the house of appellant at Lahore on the strength of Ittifaq Company. After giving other details of the occurrence he spoke about the relevant incident and stated that at 6.00 p.m. The appellant asked him to connect Kim with Chairman, PIA Shahid Khakan Abbasi, he connected him and the appellant had a talk. After few minutes the appellant again asked him to connect him with the DG, CAA Aminullah Chaudhry (the approver), he connected the call and the Prime Minister had a talk with the approver also. He also connected the Prime Minister with Syed Ghous Ali Shah at Chief Minister's House Karachi. He stated that at about 7.00 or 7.15 p.m. The army entered into his office and made him to set aside.
23. The main witness of prosecution, Aminullah Chaudhry, the Director General, Civil Aviation Authority was at the initial stage arrested as an accused person and whilst he was in custody he made an application (Ex. 11) to the District Magistrate, Malir Karachi on 23.1 1.1999 through Superintendent District Jail, Malir expressing his intention to become approver, as he desired to make statement under Section 337, Cr.P.C. His statement was recorded by District Magistrate Malir, on the same day which he produced as Ex.
12. At the trial he was examined witness No. 1 (Ex. 10). His evidence shows that former civil service of Pakistan and was then in Group in Grade-21, In all, he had put in 32 years 12.10.1999 he was posted as Director General Authority and was holding additional charge of Sec. as prosecution he belonged to the Secretariat service. On Civil Aviation teary Aviation.
28. Regarding the incident, he deposed in his chief that on 12.10.1999 a little before 6.00 p. Nri Ahmed Faruq (PW-20) informed him about removal of the Army Chief General Pervez Musharraf and soon after received a call from Prime Minister House. The Muhammad Nawaz Sharif spoke to him on telephone and inquired about the flight details of return to Pakistan of Chief of the Army Staff. He showed his lack of knowledge on which the appellant instructed him to ascertain the details and ensure that the said flight is not allowed to land at any airport in Pakistan. He immediately tried to get in touch with the Director, Quaid-e-Azam International Airport Karachi namely Brig. Tariq Fat^h but could not locate him. He then called his Secretary, Wing Commander Ahmed Faruq (PW-20) and asked him to ascertain the flight detail as desired by the appellant. He also contacted control
(sic) for the said purpose and further instructed the Chief Operational Officer, Yousuf Abbas PW-2 of Quid-e-Azam International Airport to go to the Air Traffic Control Tower and monitor the exercise.
The Director, Air Traffic Service was on leave, therefore, he got in touch with General Manager Muhammad Aqeel (PW-6) and instructed him to close down Quaid-e-Azam International Airport Karachi and to put on hold all international flights and divert domestic flights to Karachi .Designated alternative airport Nawabshah. After about 10/15 minutes, the appellant again talked to this witness on telephone and inquired as to whether he had ascertained the details of the required flight, on which he informed the appellant that it was PIA Flight PK-805 from Colombo with expected time of arrival at 1855 hours. The appellant observed that his earlier orders should stand and that the flight should not be allowed to land in Pakistan. The appellant further desired that the flight should be diverted to any airport in M iddle East other than Dubai and further emphasized that his order should be implemented without any delay. On these instructions he immediately ordered closure of both Quaid-e-Azam International Airport Karachi and Nawabshah Airport.
29. Aminullah Chaudhry expressed that he was facing a situation that two telephone calls had been received from Prime Minister himself which conveyed clear and unambiguous orders. He was further mindful of the fact that, a short while earlier, the Prime Minister had removed the Chief of Army Staff, therefore, given the afore-mentioned situation any defiance or deviation from order of the appellant would result in grave implications for him. He directed Yousuf Abbas, Chief Operating Officer to reach at (sic) tower and remain there; and also advised him not to divulge the reasons of the closure of Karachi and Nawabshah, Airports lest the pilot of aircraft Flight No. PK-805 may attempt to land elsewhere, thereby defeating the spirit of Prime Minister's directive. He instructed the Chief Operating Officer to advise the pilot to divert to Abu Dhabi or Mascat and further stressed that pilot should be informed in clear terms that since the airports of Pakistan would not allow the said aircraft land he may take a decision of his destination of consulting his own organisation viz. PI A. He also instructed Yousuf Abbas to make it clear to the (sic) that whatever the decision was taken he, that is to say, the pilot would be doing so at his own risk.
30. As regards the fuel situation PW Aminullah Chaudhry stated that he received a feed back through the Control Tower that the fuel in the aircraft would enable it to fly approximately for 70 minutes. According to him Mascat was 80 minutes flying time away from Karachi, therefore, the aircraft could not land outside Pakistan and it had to land at Nawabshah. He tried to contact Capt.
Shah Nawaz Dara, Director Flight Operation, PIA and his Telephone Operator told him that Dara was sitting with Chairman, PIA namely accused Shahid Khakan Abbasi. He talked to Shahid Khakan Abbasi who informed him that he had received the instructions from the appellant. Shahid Khakan Abbasi also disclosed that the plane was carrying about 6 to 7 tones of fuel and would not be able to go to Mascat. Realizing this situation he talked to appellant telling him that the aircraft was running short of fuel and they had to make it land at Nawabshah. The appellant's-response was firm and he-reiterated his earlier order and stressed that those were categoric. The appellant desired the (sic) be implemented. Looking at the acute fuel siting another attempt to inform the appellant but response and so also his attempt to talk to Prince Saeed Mehdi could not bring fruit.
However, he establishing contact with ADC (Navy) of the appellate explained the position. The ADC promised to get not. Later on, this witness received a telephone Secretary to the Prime Minister namely Brig informed him that the latest orders were that the ai brought back to Karachi, it shall be isolated at runway Karachi Airport (Quaid-e-Azam International should be refuelled and sent to Sharjah but disembark from aircraft and for that purpose he touch with Inspector General Police accused Ran^i request him to have the aircraft surrounded by a carriers (APCs). In view of these instructions Amin spoke to Yousuf Abbas the Chief Operating Officer and asked him to redirect the aircraft Flight PK 8 isolate it at the end of the runway, have it ref bowser and direct the aircraft to proceed to instructions. The. Chief Operating Officer Yousaf informed Aminullah Chaudhry that an Army Brigadier in the control tower and had taken charge of thereupon, asked Yousuf Abbas to take orders authorities. However, he himself did not make contact IG Police Sindh Rana Maqbool as this did functions as Director General, Civil Aviation Authority
27. In his cross-examination, Aminullah Chaudhry clarified intially he was that he was never in the custody of military but under house detention from 13th October, 1999 until he was 3th November, of any agency arrested by police on the night between 1 2th and 1 1999. He was never interrogated by any member during his house detention but he admitted that he appeared 1999 and 9th before the Board of Inquiry on 24th October, November, 1999 and that his statement was recorded by the on.9.11.1999 ive the names Board of Inquiry on 24.10.1999 and subsequently he was required to read and sign it. He could not of the members of that Board. As regards his statement before police he stated that he had informal discussion w th police about the events of 12th October, 1999 occurring at Karachi Airport but his statement was not recorded.
28. With regard to the circumstances leading to his decision to become approver his attention was drawn to application dated 19.1 1.1999 made by his Advocate Mr. Muhammad Ashraf Qazi which he produced as Ex.
14. He explained that he had not moved an application to the Administrative Judge that he was tortured by police or that he would commit suicide. He, however, admitted that he moved such application (through his Advocate) but he had made no verbal complaint to the Court on 19.11.1999 that he was being tortured and pressurized to become an approver or to commit suicide, It would be relevant to mention here that the application (Ex. 14) which has been moved by the learned Advocate contains the allegation that accused that is to say Aminullah Chaudhry, had been subjected to acute duress and, therefore, he was undergoing acute mental torture, as such, he may be referred to Psychiatrist lest he may die of shock. 'Administrative Judge, Anti-Terrorism Court, Karachi passed an order on the application on the same day observing that Aminullah Chaudhry is a heart patient and may be medically examined by Heart Specialist and report be submitted to the Court. The Court further observed that Aminullah Chaudhry was complaining of mental disturbance he may be examined through Psychiatrist and report be also submitted to the Court, In view of these developments Aminullah Chaudhry, -in his cross-examination, clarified that he was sitting in the back portion of the Court Room he did not hear his Advocate complaining to the Court that he would commit suicide or that he was being pressurized to become approver.
However, in clear words he expressed that he decided to become an approver on 23.11.1999 and moved application (Ex.11) to the District Magistrate through Superintendent Jail.
29. On other facts directly related to the incident Aminullah Chaudhry was cross-examined at length and suggestions were put to him which he denied categorically. On the whole no answers could be elicited from him to contradict the versions narrated by him in his examination-in-chief about the different events of .The occurrence. Learned counsel for appellant, however, pointed out that there is self-contradiction in the evidence of Aminullah Chaudhry in that once he stated that he was never interrogated by any member of any agency during his house detention, but then, he admitted that he had appeared before the Board of Inquiry on 24th October, 1999 and 9th November, 1999 and his recorded by the Board on 24.10.1999 on which h obtained on 9.11.1999. No doubt these two versions appear to be at variance but such impression is developed only when the terms 'statement' and 'interrogation' are construed in strict technical sense. Ordinarily, interrogation is made by an Investigating Officer by questioning an accused person ' during investigation and recording the answers given by him in narrative form and its format ultimately takes the shape of a statement. The statement referred to by this witness was recorded during inquiry by the Board and not in investigation it is not known under what law the Board of Inquiry was constituted and what was evidentiary value of such statement, nor was the same produced at the trial, therefore, in strict sense of the word it may not be taken as an interrogation conducted by an Investigating Agency. A discrepancy made in this behalf cannot, therefore, be taken as a mis- statement on the part of the witness.
30. Nevertheless, this witness being considered as star witness of the prosecution his testimony was seriously assailed by the learned, counsel for appellant from different angles as regards the transactions forming the components of the incident. On factual side learned counsel for appellant argued that testimony of this witness is inherently worthless and further it stands contradicted joy other important witnesses. These contradictions will be considered in later part of this judgment.
From legal point of view he contended that appreciation of evidence of accomplice is to be made in the light of. Provisions of Article 16 read with illustration (b) to Article 1 29 of Qanun-e-Shahad^t and this legal aspect has elaborately been examined by the Honourable Supreme Court in Federation of Pakistan v. Shafi Muhammad (1994 SCMR 932). He also relied on Muhammad Ayub Khuhro v. Pakistan (PLD 1960 SC 237). On the other hand learned special prosecutor placed reliance on the rule laid down in Srinivasa Mall Bairoliya v. Emperor (PLD 1947 PC 141) which was followed in State v. Zulfiqar AH Bhutto (PLD 1979 Lahore 523). While presenting an overview of the case-law on the evidentiary value of an accomplice/approver he referred to Ghulam Qadir v. State (PLD 1959 SC
(Pak) 377), Nur Ali Ghazi v. State (PLD 1962 Dacca 249), Abdul Majeed v. State (PLD 1973 SC 595), Abdul Qadir v. State (PLD 1956 SC (Pak) 407), Alam Khan v. Ghauns Muhammad (1969 SCMR 269), Abdul Khalique v. State (PLD 1970 'SC 166) and Juma v. Crown (PLD 1954 Lahore 783). A brief study of the law enunciated in these decisions, relevant to the point in hand, is made herein below:-
31. In Muhammad Ayub Khuhro's case it was emphasized by the Honourable Supreme Court, that the law requires corroboration of an accomplice by an independent evidence and that the accomplice's own previous statement or the confession of a co- accused is not corroboration by independent evidence.
32. In Muhammad Shafi Muhammadi's case (1994 SCMR 932) the point in question was examined in-depth and the following observations were made by the Honourable Supreme Court:- "10. The above judgments are in line with the stream of judgments of the Superior Courts of Indo- Pak. The rule of prudence that the testimony of an approver or accomplice is to be corroborated in material particulars by independent evidence has almost hardened into a rule of law with the passage of time and because of the invariable insistence of the Superior Courts to have corroboration. Though in theory Section 133 of the late Act provided that the conviction of an accused person on the basis of uncorroborated evidence of an accomplice was not illegal, but in practice this was not acted upon. There may be a few cases in which the above provision of the late Act might have been pressed into service but overwhelming judicial consensus has been that conviction on the basis of the sole testimony of an approver or accomplice is not safe.
12. An accomplice who takes part in the commission of the offence for which his co-accused is charged with falls within the category of a wicked person in terms of the above verse of the Holy Quran and, therefore, before acting upon his testimony, the truthfulness of it is to be verified by corroborative pieces of evidence on material particulars.
14. It may also be instructive to refer to the following portion from the note of Shafiur Rahman J.
Appended to the above judgment of Maulana Muhammad Taqi Usmani, J. In the case of Gul Hasan Khan (supra):- "(1) Section 133 of the Evidence Act and Sections 337 to 339 of the Code of Criminal Procedure prescribe the conditions and the offences offender can be made an approver and the manner in which his testimony may be the conditions, eots justifying utilized at the trial. The situations, the offences and the requirement reception of approver's testimony are all exceptional, bordering on necessity and demands of public policy. The various provisions of the Evidence Act with which its Section 133 is to be read establish that whilst it is not illegal to act upon the uncorroborated evidence of an accomplice, it is a file of prudence so universally followed as to amount of law that it is unsafe to act upon an accomplice unless it is corroborated in material almost to-a rule an evidence of accused. The alongwith other y, it should be respects so as to implicate the evidence of approver where al evidence is found to be satisfactory sufficient to convict arid sentence an offender under Ta'zir, for which according to my (earned brother, ample scope exits even where Injunctions of Islam provide for the punishment."
18. The upshot of the above discussion inclined to hold that the evidence of an aq admissible at all in case of an Offence Hadd and Qisas. However, in case of an entails punishment of Tazir, his testimony is admissible and furnish the basis for conviction provided it is corroborated in material particulars. However, in exceptional cases for the reasons to be recorded by the Court, his testimony may be acted upon as sufficient for warranting recording of conviction.
33. It may be added here that the proposition with respect to value of the evidence of accomplice also came under discussion in Munawar Hussain v. State (1993 SCMR 785) wherein reference was also made, inter alia, to Muhammad Ayub Khuhro's case and the following observations were made by the Honourable Supreme Court:- "No doubt that the above illustration (b) to above Article 129 of the Order provides that an accomplice is unworthy of credit, unless he is corroborated in material particulars. However, we may point out that the above illustration of Article 129 of the Order is to be read with Article 16 of the Order, which lays down that an accomplice shall be a competent witness against an accused person except in the case of an offence punishable with Hadd and the conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The above Article 16 of the Order corresponds with Section 133 of the late Act. In other words, in terms of above Article 16, a conviction can be recorded on the basis of evidence of an accomplice but the Court, as a rule of prudence, seeks corroboration in material particulars."
"10. There cannot be any cavil with the submission that it is now well-settled proposition of law that the Court, as a rule of prudence, seeks corroboration on material particulars by independent corroborative piece of evidence in case the main witness is an approver or an accomplice, though in terms of Article 16 of the Order which corresponds to Section 133 of the late Act, even conviction can be founded on the evidence of the accomplice without any corroboration if the Court is satisfied with the truthfulness of his evidence."
34. In Juma v. Crown (PLD 1954 Lahore 783) a Division Bench of Lahore High Court took the view that requiring of corroboration of an approver has virtually bescorn rule of law and pointedly made further observations as under:- "This does not mean however|r, that without corroboration the Court cannot hold that the accomplice, who states that he took part in a crime, had done so. If the Court is satisfied from the evidence of the accomplice, that he had taken part ir( the crime about which he deposes, it can hold so ev^en if there is no corroboration of his statement as far as his own complicity is concerned."
35. Keeping in view the extent and degree of corroboration needed, the evidentiary value of testimony of any accomplice was examined in Kama! Khan v. Emperor (AIR 193p Bom. 230) and Srinivasa Mall Bairotiya v. Emperor (PLD 1947 PC 141) and the rule laid down in these authorities was followed in \state Vs. Zulfiqar AH Bhutto (PLD 1978 Lah. 523). It would suffice^ to reproduce the relevant passages from the last mentioned judgment which run:-
585. The rule of corroboration about the testimony of an approver is based upon the principle that it is dangerous to act on his uncorroborated testimony because he is a self-confessed criminal having betrayed his former associates under temptation of saving his own skin and as such his evidence cannot be viewed except with natural reaction of distrust and incredulity. What is, therefore, required is some additional Evidence rendering it probable that the story of the accomplice is true and that is reasonably safe to at upon it.
586. But as pointed out in Kama! Khan v. Emperor (AIR 1935 Bom. 230) an accomplice is sometimes "not a willing participant in the offence, but victim} to it", It was in view of this proposition that It was observed in Srinivasa Mall v. Emperor (PLD 1947 PC 141) by the Judicial Committee that:- "No doubt the evidence of accomplice ought as a rule to be regarded with suspicion. The degree of suspicion which will attach to it must, however, vary according to the extent and nature of the complicity; sometimes the accomplice is not a willing participant in the offence but a victim of it.
When the accomplices act under a form of pressure which it would require some firmness to resist, reliance can be placed on their uncorroborated evidence."
36. In Ghulam Qadir v. State (PLD 1959 SC (Pak.) 377) whilst it was emphasized that as a matter of strict law the uncorroborated testimony of an accomplice could, if accepted, form the basis of conviction in criminal cases but as a rule of prudence there ought to be independent corroboration of approver's statement on material points suggesting' the link between accused persons and the crime, yet with regard to the extent and level of corroboration, it was observed that it would depend on facts and circumstances of each and particular case and no hard and fast rule can be laid down in this behalf, It was further observed that if the approver had no ostensible motive to involve the accused person falsely that should not imply any relaxation in normal standard of corroboration in such cases. As regards the factual aspect the case there was no ocular evidence of murder in that case but the only evidence was that of approver supported by the exercise of motive and recoveries of incriminating articles. The High Court affirmed the sentence of death awarded to both the accused persons and-finally the Hon'ble Supreme Court upheld the same.
37. The decisions in Ghulam Qadir's case [supra), Fazal Dad v. Crown (PLD 1955 FC 152) and Ishaque v. Crown (PLD 1954 FC 335) were inter alia considered and followed by the Full Bench of Hon'ble Supreme Court in Abdul Majeed v. State (PLD 1973 SC 595). After going through the evidence it was held that evidence of approver stood corroborated on material particulars, It may be beneficial to point out that in Ishaque's case referred to in Abdul Majeed's case the Federal Court, regarding corroboration, observed that standing by itself evidence might not be incriminating at all and mi to an entirely innocent explanation, but consider of the approver it should produce on the mine profound conviction that the accused must ha manner alleged by the approver.
38.
38. With regard to the standard of corrobora Supreme Court in Abdul Qadir v. State (PLD 1 95 made the following observations:- "If on a proposal coming even from a friend to commit murder a man not only readily accepts the suggestion but goes about procuring the services of someone who would on payment do the deed he is no more than an ordinary criminal even though he be a colonel in the Army, and his evidence, if given on a promise of pardon, would require the same degree of corroboration as that of any other accomplice."
39. The High Court of Dacca also record similar view in Nur Ali Ghazi v. State (PLD 1 observing that corroboration in material particular that the independent evidence by itself must be s to the corpus delicti and the identity of the purpose of establishing his guilt; and all that was the corroborative evidence should indicate that th by the approver was substantially true, as the ma that of approver and the corroborative evidence to it showing that it was not untrue, In that c^ awarded to as many as seven accused persons u affirmed by the High Court.
44. It would be illustrative to refer to a sp corroboration which was rejected by the Hon'ble Alam Khan v. Ghauns Muhammad (1969 SCMR' the evidence of approver was corroborated weapons but it was held that since the recoveries in presence of accused the same carried no value not furnish the required corroboration.
45. The corroborative evidence was however accepted in Abdul Khalique v. State (PLD 1970 SC 166) wherein Ghulam Qadir's case (supra) was followed. The approver's evidence was corroborated by recoveries of incriminating articles and cut injuries found on the hands of both, approver and the appellant and the evidence of approver was accepted. The judgment of the High Court awarding sentence of death was affirmed.
46. The discrepancies in the testimony of an approver were taken note of in Muhammad Yaqoob v, State (1992 SCMR 1983) but since one of the discrepant versions was in line with approver's exculpatory confession, no adverse inference was drawn therefrom; however it was insisted that the approver's evidence could not be acted upon without corroboration in material particulars by reliable evidence, It was, inter alia, observed that the evidence of an accomplice cannot be used to corroborate evidence of another accomplice.
47. In Muhammad Bashir v. State (PLD 1971 SC 447) it was observed that approver's evidence has to satisfy a double test, in the first instance the evidence should show that approver is a reliable witness and then it is to be seen whether it has received sufficient corroboration. Regarding the standard of corroboration it was observed that the type of corroboration needed must differ with different cases, but such corroboration, although not required to be adequate by itself to prove the charge must show a strong link between crime and its perpetrators, as alleged by the approver.
48. As regards doctrine of double test the rule laid down in afore-cited authority i.e. Dr. Muhammad Bashir's case was affirmed in Zulfiqar AH Bhutto v. State (PLD 1979 SC 53) with additional observations and it would be relevant to reproduce the concluding para which runs:- "424. I am in respectful agreement with the rule laid down in Dr. Muhammad Bashir's case by four learned Judges of this Court, and only wish to add that when the qualifying phrase "a reliable witness" is used in relation to an accomplice, the reference obviously is not to his moral character and dependability, as the Courts are well aware that he is a self-confessed criminal, having betrayed his former associates under the temptation of saving his own skin; and it is precisely for this reason that special care has to be taken in the matter of the appraisal of big evidence. The intention, therefore, underlying the first test is to determine whether his evidence is probable and natural, in the circumstances of the case, with the result that he can be treated as a reliable witness, and his evidence safely acted upon, if the requisite corroboration is forthcoming; or whether it suffers from such infirmities and improbabilities that it can be said to be lacking in intrinsic worth, In the latter case, the question of seeking corroboration would hardly arise."
40. It is significant to mention here that entire case-law was reviewed in the above judgment including the decision of Indian Supreme Court in Swaran Singh Ratan Singh v. State of Punjab (AIR 1957 SC 637) which is considered the leading case on the point within the Indian jurisdiction.
However, Dr. Muhammad Bashir's case {supra) was approved but it is interesting to point out here that, in fact, Mr. Ijaz Hussain Batalvi appearing on behalf of prosecution in Zulfiqar Ali Bhutto's case^ had to some extent opposed the doctrine of double test and made submissions in following terms:- "417. Mr. Ijaz Hussain Batalvi, on the other hand, submitted that the theory of double test in relation to the appreciation of an approver's evidence was misleading, as all that the law required was that such evidence should not be believed unless corroborated in material particulars, but there was- no requirement for the application of a sq-called double test, as in the very nature of things, an accomplice was a self-confessed criminal and a man of depraved character, and it would, therefore, be unrealistic of try to indeed, a reliable witness, submissions Mr. Batalvi referred Us to Major E.G. Barsay v. State of Bombay (AIR 1961 SC 1762), in which according to him, the theory of double test previously propounded by the Indian Supreme Court was sought to be explained away."
41. It will be seen that despite the above argument the concept of double test was accepted in Zulfiqar AH Bhutto's case (supra) affirming the view taken in Dr. Bashir's case with additional observations.
42. An exceptional view was, however, taken by a Single Bench of this Court in Jan Muhammad v.
State (1968 P.Cr.L.J. 1625) that an accomplice is a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon uncorroborated testimony of an accomplice. However, this view was formed in peculiar circumstances of that case as the accomplice had not officially become an approver within the meaning of Section 337, Cr.P.C, for the reason that the offence alleged was not one of those specified in sub-section (1) of Section 337, Cr.P.C.
43. The Indian Supreme Court in Haroon Haji v. State of Maharashtra (AIR 1968 SC 832) after reviewing the case-law pronounced by their Courts affirmed the view that it has become a rule of law that the evidence of accomplice be corroborated in material respects as to the offence itself and also implicating in some satisfactory way, however small, each accused named by the accomplice. The Indian Supreme Court approved its earlier decision in AIR 1952 SC 54 that every detail of the story of accomplice need not be confirmed by independent evidence although some additional independent evidence must be looked44. While considering the intrinsic worth of the testimony of an approver it would be advantageous to bear in mind the view expressed in Bhola Nath v. Emperor (AIR 1939 Allahabad 567) that where the approver makes positively false statements in respect of a particular point and yet the evidence produced in the case goes to prove beyond any doubt that in other respects his evidence is trustworthy and is fully corroborated by very best evidence produced, it would be wrong in that case to suggest that because the approver has made a wrong statement on a particular point his whole evidence should be rejected. This view is more or less in line with the observations in M. Yaqoob's case (supra) as far the discrepancies are concerned.
50. The ratio of the decisions in the above judgments is that:-
(i) the evidence of accomplice is not admissible at all in case of offences punishable as Hadd. And Qisas but for an offence punishable as Tazir his testimony is admissible and furnishes the basis of conviction provided it is corroborated in material particulars; and. In exceptional circumstances thb conviction can be founded on the evidence of Ian accomplice without corroboration if Court is satisfied with truthfulness of his evidence.
(ii) the doctrine of double test With respect to evidence of accomplice/approver will be subject to above rule laid down in Muhammad Shafi Muhammadi's case (1994 SCMR 93).
(iii) the evidence of accomplice is ordinarily regarded with suspicion but the degree of suspicion varies according to the extent and nature of complicity, as in certain cases he may not be a willing participant for the offence but a victim of it and might have succumbed to pressure for want of firmness to feist the same.
(iv) as regards the extent and level of corroboration, no hard and fast rule could be laid down in that behalf and the evidence is to be assessed keeping in view the facts and circumstances of each case.
(v) the corroborative evidence standing by itself might not be incriminating at all but considered with the story of approver it should produce on the mind of the Court a profound conviction that the accused must have acted in the manner alleged by the approver.
(vi) the evidence of approver may not cover each and every detail and in case of any discrepancy, the minor discrepancies may not make the entire testimony of the approver unreliable.
51. In view of the above exposition of law Mr. Azizullah Shaikh relying on the rule laid down in Ayub Khoro's case submitted that according to F.I.R, all witnesses are, in fact, accused persons, therefore, their testimonies would not furnish any corroboration. On careful perusal of the F.I.R, this contention cannot be sustained for the reason that the F.I.R., or so to say the written report of Col. Atiq uz Zaman incorporated therein, after reflecting the facts and events of the occurrence and the inquiry/probe conducted thereafter boils down to specific allegations against five accused persons namely; (i) Muhammad Nawaz Sharif, the appellant herein; (ii) Syed Ghous Ali Shah; (iii)
Aminullah Chaudhry; (iv) Shahid Khakan Abbasi; and (v) R&na Maqbool Ahmed; none else is designated as an accused person, It was for this reason that at one stage while arguing the case of respondents in acquittal appeals it was contended that names of the remaining respondents in Acquittal Appeal do not transpire in the F.I.R, as the written report of the complainant confines the allegations to only five accused persons out of whom one namely Aminullah Chaudhry turned approver, It. Does not, therefore, appeal to mind to call other witnesses as accused persons and exclude their testimonies while considering the same for the purpose of independent corroboration to the testimony of accomplice namely Aminullah Chaudhry.
52. While canvassing the other contentions learned counsel for appellant argued that being an accomplice Aminullah Chaudhry may be treated as a "wicked person" within the meaning of observations of the Hon'ble Supreme Court made in para 12 of the judgment in Muhammad Shafi Muhammadi's case (supra). However, he made a dual argument saying that Aminullah Chaudhry's evidence may be rejected firstly on the aforementioned ground and because his version was inherently unreliable and secondly, for the reason that even otherwise no independent corroboration is available which could furnish base for recording a finding of conviction against the appellant.
53. As far the first part of the contention is concerned the learned Special Prosecutor rightly controverted the same by submitting that Aminullah Chaudhry was a victim of circumstances and not a willing participant. He had no axe of his own to grind nor was he a direct beneficiary of the criminal act. He was Director General1, Civil Aviation Authority and in his deposition as reproduced in paras 23 to 28 above, he explained the circumstances how his power of resistance was shattered because of the pressure of the happenings occurring spontaneously. He had, in his mind, the' fate of Chief of Army Staff who had been, apparently, removed and his removal was broadcast on television in the news. He was also influenced by the fact that the instructions were firm and categoric and the appellant being the Prime Minister of Pakistan had himself spoken to him. These circumstances explained by the witness fully reflected the level of fear and fright influencing his thinking capacity who being a civilian officer could even not match with the Chief of Army Staff who was being removed so comfortably. Human mind is always susceptible to influences but some times stern and unexpected events create shocking effects, It seems Aminullah Chaudhry's nerves could not bear the brunt of the aforementioned sudden development and he had to yield and join the plot to divert Flight PK-805 and push it away along with its passengers including the Chief of Army Staff General Pervez Musharraf out of Pakistan territories and in that course he put his all efforts with full capacity to implement the orders of the appellant who was Minister Incharge of- the Civil Aviation Authority also. He could not, therefore, be termed as a willing participant. He was certainly victim of circumstances and he cannot be termed as. a wicked person nor his testimony be discarded straightaway on the ground that he was an accomplice.
54. The other part of the contention raised by the learned counsel for appellant was equally rebutted by the learned Special Prosecutor by reading out the evidence of witnesses whose testimonies furnished independent corroboration to the version of Aminullah Chaudhry and the witnesses whose evidence highlighted the circumstances and the manner in which actions towards diversion of plane were practically taken, In order to the witnesses Ahmed Faruq PW-20, Syed Yousuf Abbas PW-2 and Muhammad Sadiq PW-16 coupled with the account given by the other witnesses who joined hands in executing the direction given by Aminullah Chaudhry for diversion of the plane.
55. The foremost evidence in this sphere is that of Muhammad Asif (PW-15) whose evidence has beep briefly narrated at para 22 of this judgment. He has given details of calls connected by him as he was working as telephone operator in Prime Minister House, Islamabad. He has categorically stated that the appellant asked him to connect him with Director General CAA Aminullah Chaudhry (approver) and. He connected the call whereupon the appellant had a talk with approver.
Thereafter, he connected the appellant with Syed Ghous Ali Shah at Chief Minister's House Karachi.
Before connecting the appellant-with Aminullah Chaudhry he had connected the appellant with Chairman PIA Shahid Khakan Abbasi and appellant had a talk with the latter also. Muhammad Asif was formerly on the strength of Ittifaq Industries and was working in the house of appellant Mian Muhammad Nawaz Sharif and then he was appointed as OSD. In other words he was appellant's own man and a reliable hand, In any case nothing could be pointed out from the record that he had a motive to implicate the appellant falsely. Inherently, his evidence is also sound. Particularly, as regards the timings the evidence of Muhammad Asif shows that he connected the call few minutes after 6.00 p.m. And Aminullah Chaudhry's reply in further cross- examination confirms that the first call from the Prime Minister House was received by him a little after 6.00 p.m. As such there is no inconsistency between the two versions.
56. An attempt was made to assail the credibility of Muhammad Asif by arguing that he was brought to Karachi in custody, In cross-examination this witness has clarified that on 15.11.1999 he was called at the office of Aviation and interrogated by a Board consisting of 6 or 7 persons. The said office was situated at Mall Road, Rawalpindi. At that time he was at Lahore and he was called from Lahore through a telephonic massage. His statement was recorded by the Board. Again on 24.11.1999 Karachi Police recorded his statement at Rawalpindi. He explained that during the night of 24.11.1999 he was brought to Karachi from Rawalpindi in an Army plane. Simply, because he travelled in Army plane from Pindi to Karachi does not mean that he was under arrest or detention, on the contrary his statement under Section 164, Cr.P.C. (Ex.42) which was recorded on 30.11.1999, shows that there is no mention in the certificate appended to it that the witness was in custody.
There is, thus, no positive evidence that Muhammad Asif (PW-15) was in custody during the investigation or when he appeared for giving evidence in the Trial Court. Prima facie, the evidence of Muhammad Asif is trustworthy and there is no justifiable reason to doubt the version that he had connected the call of appellant with Aminullah Chaudhry.
57. Second witness in the line is Muhammad Sadiq (PW-16), who was working as telephone operator to Director General CAA namely Aminullah Chaudhry at the relevant time. He has deposed that on 12.10.1999 sometimes after 5.30 p.m, he received a call from Prime Minister House that the appellant would speak to Aminullah Chaudhry and he connected the call. Thereafter, Aminullah Chaudhry asked him to connect him with Chairman PIA Shahid Khakan Abbasi, who was accordingly connected and then Aminullah Chaudhry was also connected with Captain Dara, Director Flight PIA Karachi and Syed Aqeel Ahmed, General Manager Air Traffic Services Karachi.
After about 10 minutes another call was received from Prime Minister House and Muhammad (sic) was accordingly connected. Subsequently, at about 6.30 p.m. Aminullah Chaudhry again told this witness to connect him with Prime Minister and he tried but could not connect him as nobody was attending the calls. He was asked to connect Military Secretary, but the later was also not present, however, one Zia ur Rehman was present whom he connected with Aminullah Chaudhry, In cross- examination this witness stated that the first call was made at round about 5.30 p.m. And second call from Prime Minister House was about 1 5 to 20 minutes after the first call and the person on line was P.A. To Prime Minister. There is a little variation about timings given by this witness but since events had taken place in quick succession and he had connected a number of calls an error of few minutes cannot be taken as a devastating blow to his version. The net effect of his evidence remains that he had connected Aminullah Chaudhry with the appellant.
58. Learned counsel for appellant however, seriously questioned the evidentiary value of testimony of Muhammad Saddiq as well as Muhammad Asif on a common ground that no documentary evidence was offered by prosecution by way of producing telephone bills which usually mention the timings and the telephone numbers with which the telephone billed against is connected. We agree with learned counsel for appellant to the extent that documentary proof by way of producing telephone bills would have furnished valuable documentary evidence of timings of the calls and numbers of telephones connected but this does not by itself amount to rejection of ocular credible evidence placed, on record through these telephone operators. The above argument was, indeed, based mainly on the provision of illustration (g) to Article 1 29 of Qanun-e- Shahadat, the text whereof runs:- Article129. Court may presume existence of certain facts. - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common .Course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume--
(g) That evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it."
59. A plain reading of the above provision shows that when - (i) a person could produce a particular evidence, (ii) but he did not produce it, and (iii) withheld the same, the Court may presume that the production of such evidence was unfavourable to that person. The word 'person' used herein does not confine the applicability of this provision to any of the parties in the case and the word 'evidence' includes any kind of evidence documentary, oral etc. In the instant case the question relates to the production of telephone bills against which the payment is made. No doubt the bills might be available in the accounts section of the Prime Minister's Secretariat but on the other hand computerized record thereof is also maintained in the relevant section of the billing department. The prosecution did not produce these bills therefore it can be said that they could produce it but did not produce the same. On the other hand this documentary evidence relates to public record, the appellant could get copies thereof and produce the same in defence but he, too did not make an attempt in this behalf.
60. The implication of above provision of law came under review in somewhat analogous circumstances in Zulfiqar AH Bhutto's case (PLD 1979 SC 53). In that case a question had arisen as to the effect of non-production of certain material witnesses by the prosecution. 0n defence side about 13 witnesses were cited whose evidence the prosecution failed to produce at the Trial Court.
Upon a review of a large number of precedents on this point the following principle was laid down:- "328. From this somewhat lengthy review of the cases cited at the Bar it appears, if I may say with respect; that the correct position is the one as consistently enunciated by their Lordships of the Privy Counsel in three successive cases coming before them from Ceylon, Palestine and Lahore; and adopted by this Court as well as by the Indian Supreme Court, namely, that the prosecution is not bound to call all the witnesses cited it the challan or the calendar of witnesses, irrespective of consideration of number and reliability; nor is it obliged to call any witness not so cited, but considered to be necessary by the accused; as ultimately it is a matter for discretion of the counsel for the prosecution. At the same time it -is the duty of the prosecution to call all those witnesses who are essential to the unfolding of the narrative, on which the prosecution is based, whether their testimony is for- or against the case for the prosecution; but it is not its duty to lead evidence to prove even incidental matters which do not concern the essential fundamentals of its case, It is not in every case that an adverse inference must be drawn against the prosecution in terms of illustration (g) to Section' 114 of the Evidence Act owing to non- production of certain witnesses, whether mentioned in the indictment or not. It will depend upon the facts and circumstances of each case, and have been withheld owing to some oblique motive and for consideration snot supported on record. Here again, a caveat must be entered to inquiry for the purpose of determining whether a witness has, indeed, been won over or that he was, in fact, unnecessary.
Ordinarily a statement made in this behalf by the counsel for the prosecution should suffice, but the defence may show that the statement is not correct, or is otherwise not acceptable. The case must, however, be judged on the evidence a whole, and the Court must arrive at its conclusions accordingly, taking into consideration the persuasiveness of the testimony given at the trial in the light of such criticism as may be levelled at the absence of possible witnesses."
61. Applying the above principle to the facts of that case the Hon'ble Supreme Court concluded as follows:- "339. Taking on overall view of the entire situation, I am of the view that nothing turns on the non- production of the 15 witnesses mentioned by Mr. Yahya Bakhtiar at the commencement of his submissions in this behalf, It is to be noted that no request was made in the Trial Court for summoning any of these witnesses as defence witnesses, or even as Court witnesses; and in the application filed in this behalf during the hearing of these appeals the request relates only to two persons namely, Col. Wazir Ahmed, Ballistics Expert, and Agha Muhammad Safdar, Deputy Superintendent of Police, Islamabad. The last mentioned gentleman is not included in the list of 15 witnesses now under discussion. The prosecution has chosen to be judged without the evidence of these 15 witnesses, and it was within its right in doing so. No compelling reason appears to have been made out on the record for drawing any adverse inference against the prosecution in terms of illustration (g) to Section 114 of Evidence Act, as none of the witnesses in question were essential to the unfolding of the main narrative of the case, and ha\/e not been withheld owing to any improper or oblique motive."
62. It is significant to note that as held by the Honourable Supreme Court vide para 328 of the above-cited judgment, it is not in every case that adverse inference must be drawn against the prosecution in terms of illustration (g) to Article 129 of the Qanun-e-Shahadat Order (then Section 114 of Evidence Act) owing to non-production of certain evidence and that it will depend upon facts and circumstances of each case but an adverse inference can only be drawn if it is shown that material witnesses have been withheld owing to some oblique motive and for considerations not supported on the record. Although the aforesaid issue related to the production of witnesses the rule is equally applicable in relation to production of documentary evidence, In the instant case if the appellant could find favour from the telephone bills which according to him were to damage the case of prosecution, then nothing prevented him from calling .For production of such evidence.
63. It is worth mentioning here that during the hearing of this appeal an application was made under Section 428, Cr.P.C. Vide MA No. 1640/2000 for calling a number of witnesses including General Pervez Musharraf and some other Military Officers and recording their evidence. The application was heard and decided, It is a question apart that this Court did not find it necessary to call those witnesses, but citing of afore-mentioned application appears to be relevant here for the reason that if, as argued by the learned counsel for appellant, the telephone bills would indicate that at the crucial time absolutely no call was made connecting the appellant with Aminullah Chaudhry, then there was undoubtedly no reason with the appellant not to make an application calling for production of these documents through which the defence would have looked for breaking the chain of prosecution story. Indeed, both the parties are responsible for neglecting to produce or can for production as the case may be, of such documentary evidence and (sic) drawn. No doubt the prosecution has chosen to rely on oral evidence but in view of the law discussed above, this should not by itself call for an adverse inference against the prosecution. The contention raised in this behalf would, therefore, earn no benefit for the appellant.
64. The third witness supporting the version of Aminullah Chaudhry is Syed Yousuf Abbas (PW-2), the Chief Operational Officer, CAA. On 12.10.1999 he was travelling in a car with his family and was near Hasan Square, Gulshan-e-Iqbal, Karachi when a little after 6 O'clock he received a telephone call on his mobile from Wing Commander Ahmed Faruq, Secretary to DG, CAA Aminullah Chaudhry that there was emergency and he should reach the Airport immediately as ordered by DG, CAA. He reached Air Traffic Control (ATC) Tower at about 6.35 p.m. And found Asif (PW-4) and Nadeem (PW-7) on duty. They informed him that the runway had been closed and all flights were required to be diverted as directed by DG, CAA. Aminullah Chaudhry also spoke to this witness on telephone and ordered diversion of all international flights to Masqat or Abu Dhabi and domestic flights to Nawabshah under the orders of the Prime Minister of Pakistan namely, the appellant Mian Muhammad Nawaz Sharif and that compliance should be made without fail. He passed on these orders to Muhammad Asif (PW-4) and Nadeem (PW-7). Muhammad Asif contacted PW-13 Manzoor, Air Traffic Control Officer Approach Radar Control, CAA who after checking up from the pilot informed that the flight had 70 minutes fuel endurance. This witness was informed by Asif (PW-4) that the pilot was requesting for permission to divert towards Nawabshah and he contacted Ahmed Faruq, Secretary to DG, CAA but the latter told him that Nawabshah Airport was also closed for Flight PK-805. He conveyed the orders to Muhammad Asif (PW-4). Again Asif (PW-4) told him that the pilot of Flight PK-805 has informed that he was left with 45 minutes fuel endurance and could divert only to Nawabshah airport. He informed Wing Commander Ahmed Faruq about this and after about one minute Aminullah Chaudhry, DG, CAA called him on telephone and ordered diversion of Flight PK- 805 to Nawabshah. These orders were communicated through proper channel and the flight proceeded towards Nawabshah. This witness again received call from Aminullah Chaudhry that the Flight PK-805 be diverted to Karachi and the aircraft be parked in front of Dumbbell where it should be refuelled and then it should proceed to Masqat or Abu Dhabi. Thereafter; a contingent of Pak Army entered the ATC Tower. They strictly ordered diversion of Flight PK-805 to Karachi Airport and according to this witness the plane landed at 1948 hours and it was parked on parking place 64 as instructed by Army, In cross- examination he clarified that after 12.10.1999 he was not taken into protective custody, on 'the contrary, he remained on duty upto 30.10.1999 and thereafter he proceeded on leave for 90 days, but he did not remain with investigating agency.
65. In this sequence the other witness is PW-20 Wing Commander Ahmed Faruq, Secretary to Aminullah Chaudhry. At the crucial time he had gone to Aminullah Chaudhry's office to share the news of removal of the Chief of Army Staff with DG, CAA and the latter was shocked to hear the news. Aminullah Chaudhry tried to confirm the news, At about 6.05 p.m. The buzzer of telephone of Aminullah Chaudhry rang and then he asked this witness as also the Airport Manager, who too was present, to leave. After a little while Aminullah Chaudhry called this witness inside and told him that the Prime Minister of Pakistan namely the appellant had just spoken to him and directed him that the aircraft of the Chief of Army Staff should not be allowed to land in Pakistan. Aminullah Chaudhry further inquired of this witness as to how the orders be implemented on which this witness told him that they would have to inform the pilot through Air Traffic Control (ATC) which could be done by the Operation Department and in this regard he contacted Yousuf Abbas (PW-2) on mobile and directed him to reach the Airport immediately as directed by DG, CAA. This witness then went to the office of DG, CAA and informed him about the status of the aircraft and his contact with Yousuf Abbas. The DG, CAA, Aminullah Chaudhry told this witness that he had directed Aqeel Ahmed (PW-6) to do so. On this he checked up the position and contacted Aqeel Ahmed at his residence who disclosed that he had been directed so by the DG, CAA but he could not convey the message to Radar Control as the lines were busy. Aqeel Ahmed suggested to this witness to convey the message of DG, CAA to ATC and he accordingly talked to the Controller of ATC and asked .Him whether the airfield was closed, the latter informed him that one aircraft was about to land and the airfield will be closed after its landing. While he was holding the line the aircraft landed and then he was informed that the closing time of the airfield be noted as 1829 hours. He then informed DG, CAA about the closure of airfield. He informed DG, CAA that the aircraft had not enough fuel to divert outside Pakistan, but the latter replied that these were specific directives of the Prime Minister and he could not help. Consequently, on the instructions of DG, CAA it was suggested to the pilot through ATC to divert to any Gulf State at his own risk but the pilot replied that he did not have enough fuel and insisted on diversion. To Nawabshah. The DG, CAA instructed him to convey to the pilot that the Nawabshah Airport was also closed. According to this witness DG, CAA made departure attempt to talk to appellant but could not establish connection, however, he was able to get him connected to ADC to Prime Minister and then he himself came out of the office. When he contacted ATC the latter told him that the pilot had announced that he was left with only 45 minutes fuel endurance and there were 198 souls on board. This witness informed Aminullah Chaudhry about the critical nature of the flight and the latter advised him to send the plane to Nawabshah and he informed the ATC accordingly. Later, when this witness contacted Yousuf Abbas in the ATC he heard a loud voice at the rear and Yousuf Abbas informed him that army authorities had directed the aircraft to come back to Karachi as they had taken over the control. He informed Aminullah Chaudhry about that development. Later on he also informed Aminullah Chaudhry about landing of the aircraft.
66. At the time of occurrence Aqeel Ahmed (PW-6) was the General Manager Air Traffic, CAA and it was one of his duties to see that the aircrafts land and take off safely. At about 6.20 p.m. He was in his house where he received a telephone call from DG, CAA Aminullah Chaudhry that he should reach airport immediately but before departure he should issue orders for closure of Karachi Airport with instructions that international flights should hold in the air and the domestic flights be diverted to Nawabshah Airport. He could not establish contact immediately but subsequently, when he was able to talk to Muhammad Asif in the ATC at about 6.30 p.m. He was informed that on the orders of Wing Commander, Ahmed Faruq (PW-20), Secretary to DG, CAA airport was closed at 6.29 p.m. At about 7.00 p.m. He reached Karachi Air Control Centre Radar. On his inquiry Nadeem Iqbal, Shift Supervisor told him that PIA Flight PK-805 coming from Colombo was not allowed to land at Karachi and was holding over in the air and that all domestic flights had been diverted to Nawabshah. He asked Approach Controller namely Manzoor (PW-13) to inquire about fuel endurance of aircraft PK-805 who, in reply, informed him that the aircraft had 45 minutes fuel and 198 passengers including Chief of Army Staff. He told the Approach Controller to inform Yousuf Abbas who was already present in the Control Tower and obtain further instructions from him. On intercom he heard Yousuf Abbas directing that the aircraft be allowed to land at Nawabshah but while the aircraft was at a distance of 50 miles from Karachi Yousuf Abbas ordered that the aircraft should be called back to Karachi Airport and allowed to land. When the aircraft was about 27 or 28 miles from Karachi he saw that aircraft was climbing away again making a left turn and proceeding to Nawabshah. On inquiry the pilot replied that he would contact the company channel and then will disclose his intention. The army officials, in the meantime, talked to this witness through intercom and directed him that flight should land at Karachi Airport at any cost. According to him the aircraft landed at Karachi at about 7.49 p.m. In cross-examination he disclosed that he had a talk with Major General Iftikhar and one Brigadier from Air Control Centre Radar at ATC Tower.
He stated that he did not remember the name of Brigadier but he admitted the suggestion about the name of Brigadier and the directions given by the latter in following words:- ".............. It is correct that Brigadier told me "listen look here, I just spoken to you, I am Brigadier Jabar speaking. Our men have reached all places. We will blow you off. You have to get this aircraft land; you may give him direct message or whatever you like". I do not remember the further exact words of the conversation with Brigadier but my conversation to the extent that it may not be diverted to any where else; that our persons had reached over your heads; that they will not spare you; that get the aircraft land at Karachi airport are correct. I informed the Brigadier that I had already directed the pilot to land at Karachi but he was not following the directions. If recording is played I will be able to recognize my voice of conversation."
67. He clarified in cross-examination that he was not in custody on 12.10.1999 and although on 13.10.1999 he was interrogated by army at Jinnah Terminal Building his statement was not recorded and it was an oral interrogation.
68. PW-4 Muhammad Asif, who was the Air Traffic Control Officer, CAA at the crucial time and was performing duties as Aero-Drome Controller in the Control Tower Karachi Airport, has also given a picture of the acts performed by various officers in implementation of the orders relating to diversion of plane and then its landing. At about 6.10 p.m. He received a telephone call DG, CAA Aminullah Chaudhry seeking information regarding PIA flights and he informed him that at that time there was no expected time of arrival of PIA international flights and accordingly he was advised to remain standby for further instructions. However, at 1823 hours he received telephone call from Wing Commander, Ahmed Faruq instructing him to close the airfield but since a small aircraft was about to land the position was conveyed to him and then at 1829 hours the airfield was closed. After few minutes Nadeem Akbar, an other Controller in the Control Tower got out three fire vehicles from fire station as per instructions of Yousuf Abbas for the blockade of runway. After few minutes they were instructed by Yousuf Abbas and Anwarul Haq to switch off lights of runway as there was no flight. Subsequently, Yousuf Abbas informed them that Nawabshah Airport was also closed. The Flight, PK-805 came in contact with Radar Controller at about 1835 hours and at 1909 hours the flight informed the Radar Control that remaining fuel endurance was about 40 minutes.
At about 1911 hours Yousuf Abbas allowed the flight to proceed to Nawabshah Airport but then at 1913 hours Brigadier Abdul Jabbar arrived at Control Tower and instructed that Flight PK-805 should land at Karachi and a few minutes later Major General Iftikhar also arrived at Control Tower and issued similar instructions. At about 1911 hours the fire vehicles were removed from runway and it was cleared. Again at 1933 hours the flight came in contact with Tower frequency and it was instructed to land at Karachi. According to this witness, the aircraft landed at Karachi at 1948 hours.
69. Nadeem Akbar (PW-7), the Air Traffic Control Officer, CAA has spoken about that part of the story which relates to closing of runway. He was informed by Muhammad Asif (PW-4) that he had received a telephone call from Ahmed Faruq, Secretary to DG, CAA instructing him to close the airport immediately and that no aircraft should land or take off. He took necessary action and the acts performed by him in implementation of the orders were narrated by him in his. Deposition in following words:- ".............. I told the shift incharge of the fire station to get the fire vehicles out of the fire stations and stand by for further instructions. On that time COO Mr. Yousif Abbass came in the control tower and asked "have you blocked the runway yet". I told him that fire vehicles were on the way to block the runway. COO Mr. Yousif Abbass acknowledged and thereafter, Mr. Asif, Tower Controller also briefed him about the telephone calls from Wing Commander Ahmed Faruq regarding airport closure and also told him that we had not been given any reason for closure of airport, otherwise the runway was operationally fit and there was no damage or fault to the runway. At about 1830 hours fire vehicles approached the runway and entered and blocked the runway as per their runway blocking procedure. 3 fire vehicles were placed on the runway. One at each end and one almost in the middle of runway. At about 1833 approximately, FOO Mr. Anwarul Haq also came in the control tower and was apprised of the action by Mr. Asif, Tower Controller "
70. Thereafter, he got a telephone from General Iftikhar that the flight should not be diverted, therefore, he' consulted Yousuf Abbas who told him to ask General Iftikhar to talk to Wing Commander Ahmed Faruq, Secretary to DG, CAA and he conveyed this message accordingly.
Then, Anwarul Haq, in consultation. With Yousuf Abbas, asked him to switch off the runway lights and he switched off the lights. He spoke about the developments relating to diversion of the plane to Nawabshah as given by other witnesses. However, he further deposed that General Iftikhar entered the Control Tower along with some army personnel and instructed Yousuf Abbas to bring the aircraft back to Karachi. After about two minutes they were informed that the plane was changing its course towards Nawabshah. Upon this General Iftikhar became furious and stressed upon Yousuf Abbas that the flight should come back to Karachi. The relevant portion of the evidence of this witness which relates to drop-scene of the occurrence is reproduced herein below:- ".............. Gen. Iftikhar took the microphone and talked to the Capt, of the aircraft PK-805, after identifying himself as Gen. Iftikhar and told him that he should come back and land at Karachi as there was no need to divert anywhere, In response, the Pilot said that the General wanted to know can he talk to the Core Commander. Gen. Iftikhar later talked to the Chief of Army Staff personally, explaining him the situation and thereafter, the Pilot PK-805 reported that if was coming back to land at Karachi. From the point onward COO Mr. Yousif Abbas again talk over the microphone and gave the clearance to PK-805 to land at Karachi airport. The Flight PK-805 landed at about 1 948 hours safely at runway on 25:Right. The aircraft was parked at stand No. 64 on the instructions of Gen. Iftikhar. After that Gen. Iftikhar along with the other Army Officers left the control tower."
71. In cross-examination this witness clarified that nobody told him to place fire brigade vehicles on the runway but it was his own decision as he was ordered to close the runway and this was the procedure to be adopted at the time of hijacking of a foreign airline aircraft.
72. Asadullah Shaikh (PW-12) was the Shift Incharge Fire Superintendent CAA at the relevant time.
On an alarm raised by ringing of the 'crash bells' he along with his companion staff members had immediately occupied the vehicles and then contacted Nadeem Akbar PW-7 on wireless who directed him to rush to runway No. 25-Right and block it. Accordingly, they entered the runway and blocked it with three fire-bridge vehicles. The lights were switched off at 6.30 p.m. But then under the instructions of Tower they cleared the runway at 7.20 p.m. And returned back to the fire station.
73. It was necessary to lay down details of the evidence given by the above witnesses so as to have a broader view of the hectic performance made by the staff/officers of the Civil Aviation Authority who were spontaneously called , upon by Aminullah Chaudhry through Ahmed Faruq to make concerted efforts for blocking the runway and repelling the landing of aircraft PK-805 at the Aerodrome of Karachi airport. Since the flight which had started from Mali was on its way and was close to reach the Karachi Airport the entire ground staff/officers concerned with the landing of aircraft were pushed to run a race against time and achieve the above object without fail. As stated above, the Fire Superintendent, Asadullah Shaikh the Incharge of the shift at that time was put on alert through 'crash bells' as a result he and his staff rushed with fire-tenders and obtained specific instructions from Nadeem Akbar PW-7 the Air Traffic Control Officer who was operating as Ground Movement Controller in Control Tower of Karachi Airport and under the directions of the latter blocked .The runway. Nadeem Akbar was, in fact, informed by Muhammad Asif PW-4, the Aerodrome Controller, CAA that under the direction^ of Wing Commander, Ahmed Faruq, Secretary to DG, CAA the airport was to be closed; the direction was complied with and at 1829 hours the airfield was closed. Subsequently, under the instructions of Yousuf Abbas and Anwarul Haq the lights were also switched off. Aqeel Ahmed (PW-6) the General Manager Air Traffic, CAA has also confirmed that when he spoke to Muhammad Asif in the ATC at about 8.30 p.m. He was informed that under the orders of Wing Commander, Ahmed Faruq the airport was closed at 6.9 p.m. Aqeel Ahmed has, however, added that initially he was contacted by Aminullah Chaudhry, DG, CAA at his house, who asked him to reach the Airport immediately and that before departure he should issue orders for closure of Karachi Airport with instructions that international flights should hold in the air and the domestic flights be diverted to Nawabshah Airport, In any case, he supports the version of Muhammad Asif that the closure of runway was effected under the- orders of Wing Commander, Ahmed Faruq, Secretary to DG, CAA who had been so ordered by .The DG, CAA. On this point Yousuf Abbas (PW-2) the Chief Operational Officer, CAA was also given full support to the version of above-mentioned witnesses. He was actually travelling in a car with his family when he was intercepted on mobile telephone by Wing Commander, Ahmed Faruq and asked to reach the airport immediately and in compliance with such instructions he reached Air Traffic Control Tower at about 6.35 p.m. Where he found Asif (PW-4) and Nadeem on duty who informed him that the runway has been closed and all flights were required to be diverted as directed by DG, CAA. In this way there is sufficient evidence consistent and credible in nature on the point that the runway was closed at 6.29 p.m. And later on the lights were also switched off.
74. It is worth mentioning here that the evidence of ground staff concerned with the closure of the run way namely Asadullah Shaikh, the Fire Superintendent, Nadeem Akbar, the Ground Movement Controller in Control Tower of Karachi Airport and Muhammad Asif, the Aerodrome Controller has remained unshaken in cross-examination. No inconsistency or any contradiction could come out despite full-length cross-examination. No instance of improvement substantial to the point of closure of runway could be pointed out with reference to their earlier statements recorded under Sections 161 and 164, Cr.P.C. Only on one point Asif was confronted with respect to holding over of international flights. The testimonies of above witnesses have further been squarely corroborated by Yousuf Abbas, the Chief Operational Officer and Aqeel Ahmed, General Manager Air Traffic.
Indeed, on this point wholly transparent and trustworthy evidence has come on record.
75. Mr. Azizullah Shaikh, learned counsel for appellant,- however, raised a similar contention as in case of telephone bills and argued that the relevant entries made in the log book showing the movement of fire-tenders was not produced at the trial and within the meaning of illustration (g) to Article 1 29 of Qanun-e- Shahadat an adverse presumption may be drawn against the case of prosecution as regards the fact of closure of runway, It is significant to mention that this contention is not being turned down straightaway but in view of the principle of law laid down in Zulfiqar AH Bhutto's case (PLD 1979 SC 53) as discussed in earlier part of this judgment, it may be emphasized that purely trustworthy and transparent oral testimonies have come on record through independent witnesses against whom there could be no allegation of giving false evidence under any sort of motivation, therefore, it will not appeal to reason to draw an adverse inference against the case of prosecution owing to non-production of the entries made in log book. The testimonies are, as such, not open to question and consequently it follows that the prosecution succeeded in proving that the runway was closed at 1829 hours on 12.10.1999.
76. It was argued by the learned counsel for appellant that this was all a drama and the evidence furnished by the prosecution to prove the closure of runway may be scored out. But in view of the evidence discussed above it can simply be concluded that the evidence is not only in abundance but worth credit and it is hardly conceivable that the entire ground staff and the Control Tower should indulge in staging a farce and blocking the runway as also diverting the flights including the international Flight PK-805. The evidence is inherently believable and is wholly acceptable.
77. Now the important aspect of the case that comes up for discussion relates to diversion of the Flight PK 805. The main evidence in this respect is that of Manzoor Ahmed (PW-13) who is by designation an Air Traffic Control Officer and at the time of occurrence was operating as Approach Radar Control at Karachi Airport. On that day at 6.29 p.m. He received message from Tower Controller, Muhammad Asif that Karachi Airport was closed for all the traffic operations. Thereafter, at about 6.35 p.m. PK 805 made contact with him on frequency 125.5 MHz from hand over Air Control Centre East Karachi at a distance of 50 nautical miles South East of Karachi Airport and the aircraft had descended to a height of 10000 ft. He advised the aircraft to proceed to 'Marvi' the holding point maintaining 10000 .Ft. Height. He continued to monitor the progress of the aircraft on Radar Scope. The aircraft entered control zone boundary i.e. 25 miles South of Karachi at about 6.39 p.m. At 6.45 p.m. This Witness received instructions from Control Tower through Anwarul Haq, Acting Facility Operation Officer (not examined) to tell the aircraft that Nawabshah Airport was also closed. At 6.47 p.m. The aircraft reported overhead 'Marvi' holding point at a distance of 15 nautical miles East of Karachi Airport and he advised the aircraft to hold overhead 'Marvi' point until further advice. At that time on his inquiry he was informed by the Captain of the aircraft that there were 198 persons on board the plane including .The Chief of Army Staff of Pakistan and they had 40 minutes fuel for holding over at 'Marvi' and thereafter they had to proceed to Nawabshah Airport which was only the alternate airport for PK 805. The total fuel endurance was, however, one hour and 10 minutes at that time. This witness has stated that he passed on this information to Control Tower who replied that they were already listening to his conversation with aircraft in Control Tower. At 6.35 p.m. He was informed by Yousuf Abbas, COO, CAA (PW-2) to convey to the flight that the aircraft. Cannot land at any airport in Pakistan. He did not pass on the advice immediately to the aircraft. Yousuf Abbas again made a call inquiring of him as to why he had kept the aircraft in stand-by position and that he should advise it to proceed to any airport out of Pakistan at his own risk; consequently, he passed on such information to PK 805 but the Captain replied that he had no other option except to land at Karachi or Nawabshah Airport as they had limited fuel. The aircraft continued to hold over and this witness was told at 7.07 p.m. That only 45 minutes fuel endurance was left.
78. Thereafter the restriction of not landing in Pakistan was relaxed at 7.11 p.m. And Manzoor, the Approach Radar Controller was advised by Yousuf Abbas on telephone from the Control Tower to instruct PK 805 to proceed to Nawabshah Airport for landing. Such information was communicated to the Captain and the aircraft proceeded towards Nawabshah. Again Manzoor received a call from Yousuf Abbas, COO, CAA to bring the aircraft to Karachi Airport for landing and he communicated this information to PK 805 advising him to turn left and proceed to Karachi Airport for landing and the aircraft started moving towards Karachi Airport. At 7.19 p.m. This witness passed on the progress report that PK 805 was approaching control zone i.e. ?4 nautical miles East of Karachi Airport and that the estimated time of arrival (ETA) at Karachi Airport will be 7.33 p.m.
Approximately.
79. An unexpected development took place when the aircraft after entering control zone started climbing to higher altitude and despite an inquiry made by this witness (Manzoor) to explain this act the Captain did not respond, therefore, this witness informed Yousuf Abbas, COO and Syed Aqeel Ahmed, General Manager ATC and the Shift Supervisor. On second inquiry the Captain replied, "stand-by". The aircraft had reached a point 50 nautical miles North East of Karachi Airport when Manzoor heard somebody directing the flight to come back to Karachi Airport for landing; however, on further inquiry the Captain replied that he was contacting higher authorities at his company level. Later on Manzoor heard General Iftikhar directing PK 805 to turn to Karachi for landing. At 7.33 p.m, upon advice of Yousuf Abbas and Syed Aqeel Ahmed he changed the aircraft to Control Tower frequency 118.3 MHz, whereafter, the Control Tower directed the aircraft to land at Karachi Airport and then the aircraft turned left and started moving towards Karachi. This witness saw the aircraft landing at Karachi .Airport at 7.48 p.m.
80. The pivotal role played by Manzoor (PW-13) is evident from the above resume of evidence. He is an independent witness and as stated by him in the cross-examination he continued to be on duty from that day onwards and he was still on duty when he was examined in the Trial Court. No material contradiction could be hammered out during cross-examination and at the most two versions were pointed out to him with respect to his statement under Section 164, Cr.P.C., which had no substance in respect of main part of his evidence (sic) Approach Radar Control at Karachi Airport and any incoming flight had to contact him first where after he would not only monitor its movements but after contacting the ATC and obtaining necessary permission for its landing had to communicate with the Captain and issue him instructions from moment to moment until landing of the aircraft. In a way, time was essence of his technical dispensation in this process. As such he had a synchronized record of the events happening in such course of his functions in respect of each flight/aircraft. He was, therefore, in a position to give a complete and vivid picture of Flight PK 805 right from the point of its first approach followed by the intermittent instructions of holding overhead Marvi, diversion to Nawabshah, recalling it back and the final phase of landing (vide Ex.75).
81. In his deposition, in the Trial Court Manzoor narrated the facts from his memory and a discreet scrutiny of his versions would show that he, as' an unconcerned person, has given an honest version and his testimony cannot be doubted from any point of view. His evidence shows that the Tower Controller Muhammad Asif (PW-4) had conveyed to him that Karachi Airport was closed for all traffic operations and later on he was instructed by Yousuf Abbas, COO, CAA that the aircraft was not permitted to land at any airport in Pakistan; however, subsequently, this restriction was relaxed and upon advice of Yousuf Abbas the aircraft was permitted to proceed to Nawabshah Airport for landing. Thereafter, the plane was again recalled to come back and land at Karachi and although initially the Captain took time in assessing the conflicting advices but as a consequence of arrival of army the turmoil settled down and the aircraft returned back and landed at Karachi.
The evidence of Manzoor essentially makes reference to some significant role played by Muhammad Asif, Yousuf Abbas, Aqeel, one Anwarul Haq and the Captain of the flight, out of whom the evidence of Asif, Yousuf Abbas and Aqeel has already been discussed while Anwarul Haq has hot been examined, therefore, nothing can be commented in this regard. However, it becomes necessary to lay down the version given at the trial by Capt. Sarwat.
82. Sarwat Hussain (PW-9) was Captain of Flight PK 805 and his evidence is at exhibit 29. According to him, the plane was an Airbus and the flight was from .Colombo to Karachi via Mali. One Amal Shami was the co-pilot with him while Amir Malik was Flight Engineer. At about 6.00 p. Rri. They made first contact with Karachi Airport but they did not receive routine entry permission/clearance when they were closing to a position called "Sapna". On being inquired by Air Traffic Control of Karachi Airport he had informed them that the fuel endurance was one hour and 20 minutes. On reaching the position Sapna they initiated their descent from 29000 ft. To 10000 ft. And during that course they heard the ATC advising other Aircrafts about the closure of Karachi Airport and diverting them to different airfields like Sukur and Nawabshah. At about 6,40 p.m, they informed Karachi ATC about presence of Chief of Army Staff and reaffirmed that Nawabshah was their alternate airfield but they were informed that Nawabshah airfield was also closed for them which created an alarming situation as Nawabshah was being allowed to other flights and refused to their flight (PK 805). It struck his mind that it was because of the presence of Chief of Army Staff General Pervez Musharraf on board. He, therefore, asked the Purser to inform the Personal Staff Officer, Brig. Nadeem to talk to cockpit. The aircraft was, however flying as per air traffic clearance and when they were arriving at Marvi where they were supposed to hold over, the Air Traffic Control informed that they were not permitted to land at any airfield in Pakistan and proceed outside at their own risk.
83. Captain Sarwat Hussain on one hand informed the Control Tower about 198 passengers and the limited quantum of fuel, and on the other hand he contacted their company namely PIA; on this, their Director Flight Operation Capt. Shah Nawaz Dara advised them to go to Nawabshah, land there and refuel the aircraft. However, after some time the Karachi Air Traffic Control issued clearance for proceeding to Nawabshah and then the flight diverted towards Nawabshah in a climb. On the way at about 7.10 to 7.15 p.m. The Air Traffic Control Karachi again asked them to fly back for landing at Karachi Airport. This led to drop-scene of the episode and it would appear more appealing if the remaining versions of Capt. Sarwat are reproduced in his words which run:- ".............. This was initiated but the instructions from ATC Karachi being conflicting in nature, had created a sense of confusion, and had by that time eroded the trust that a pilot has with the ATC, therefore, it was disregarded and keeping safety in mind a turn was initiated with a climb. A little later, Karachi ATC, asked us to switch over to tower frequency for instructions from Military authorities. This was done and Gen. Iftikhar identified himself and directed that Karachi airfield is available and cleared, and ATC will guide us for landing at Karachi. After complete assurance an approach was initiated and in normal instrument landing system approach was carried out for Karachi runway 25-Right at around 7.45 p.m. On the tower instructions the aircraft was parked on bay-64 around 7.51 Army personnel engirded the aircraft and the Chief of Army Staff with his entourage were disembarked and were received by the Military 'personnels. After some time, we were allowed to par at International gate and normal passengers disembarkation took place."
84. In cross-examination no substantial improvement or omission could be pointed out; at the most he was confronted with the omission in police statement and the 'statement under Section 164, Cr.P.C, about changing of the direction to Karachi in response to instructions of ATC Tower and his about turn to Nawabshah while proceeding to Karachi. So also no contradiction could be elicited to make his version in his examination-in-chief unreliable on any material point. However, clarifications were sought from him abut the happenings which he fairly disclosed. On being asked he stated in cross-examination that first Brig. Nadeem entered the cockpit and later on after some time General Pervez Musharraf. He admitted that General Pervez Musharraf spoke to ATC Tower as he wanted to know who was in the control of ATC Tower and that General Pervez Musharraf talked to General Iftikhar from cockpit. He explained that identity of General Iftikhar was confirmed by General Pervez Musharraf. He admitted that on 13.10.1999 he was called at the Airport Manager office where, he gave an oral statement followed by written statement in his own handwriting and later on he was also called at Malir Cantonment where too he gave written statement but both the statements were not shown to him in Court. The obvious reason could be that such statements were not given to Investigating Officer, therefore, they could not form part of the documents supplied to the appellant within the meaning of Section 265-C, Cr.P.C, otherwise the same could have been shown to him even by the defence, if any favour could be gained there from. Many suggestions were given to him to set up a defence plea one way or the other which he denied. On the whole his evidence does not display any inherent infirmity, nor arty inconsistency could also be visualized; and he can safely be categorized as a truthful witness.
85. Capt. Sarwat Hussain (PW-9) has further stated about presence of Brig. Nadeem to whom he had spoken in the first instance soon after he conceived a panic because of the directions issued from the ground, therefore, it is essential to give a brief account of the version of Brig. Nadeem, who was examined as PW-18 (exhibit 45). He was Private Secretary to Chief of Army Staff and was travelling with him on board PK-805 from Colombo. He stated that when their plane reached near Karachi Capt. Sarwat, pilot of the plane, called him in the cockpit and told him that they were being denied landing not only in Karachi but also at any other airfield in Pakistan and he was being directed by the control to go outside Pakistan at his own risk. He was also told to inform the Chief of Army Staff with a request to go to the cockpit. He, with the help of ATC, tried to get in touch with the ground through mobile phones but the same did. Not function. Then he went to the Chief of Army Staff and apprised him of the position, the' latter advised him not to pass on information to passengers as it would create chaos, panic, torture and confusion in the plane. He drew the curtain and then the Chief of Army Staff entered the cockpit. The pilot explained the entire situation to him and then certain options were discussed regarding landing of the aircraft at different airports which all were discarded except landing at Karachi or Nawabshah. He stated that the pilot Capt.
Sarwat consistently remained in touch with Tower Control and impressed upon them the precarious nature of situation resulting from shortage of fuel but every time the reply Was to go outside Pakistan. Afterwards Director Flight Operation spoke to the pilot and advised him to go to Nawabshah. A short while fater pilot received instructions from the tower that Nawabshah Airport Was cleared for their flight. They were midway through when the pilot again received instructions from the tower for an about turn and landing at Karachi.
86. The last phase of the episode in the words of Brig. Nadeem would be understood by going through the following passage taken from his deposition recorded at the trial:- "..............At this point, the Chief of the Army Staff and myself left the cockpit by telling the pilot to do whatever is the best for the aircraft and the passengers, because at that point of the time, the Pilot was in a state of. Confusion. The situation was getting grave, desperate, hopeless and disappointing by the minute. After coming out from the cockpit we remained in the gallery/corridor. After some tine, I again went into the cockpit just to find out the latest situation.
The pilot had put the aircraft in circle and he was trying to keep options open to land at Karachi or Nawabshah. Thereafter, at about 7.30 p-.m. The General Iftikhar came on the air and asked the pilot to get back to Karachi, It was only after positive identification of the General Iftikhar that the pilot started going towards Karachi.................................................... "
87. Additionally in cross-examination a clarification was sought from him as to whether the Captain of PK 805 told the Control Tower that the COAS has directed that Corps Commander should come on line which he answered in the affirmative. He frankly made an admission and furnished clarification in the following terms:- ".............. It is correct that on this the Chief of Army Staff said "Iftikhar! This is Pervez. Where is Usmani?"
It is also correct that then General Iftikhar said "Sir! Iftikhar is on the set. General Usmani is in the VIP lounge he is waiting at the gate for you and I am here in the control tower". Then COAS asked Iftikhar "What is the problem?" It is correct that then General Iftikhar said "I am sure you would not know about two hours back your retirement was announced and you were replaced, by Zia". Then General Iftikhar continued the words to the effect "Army has taken over and they were trying to divert your plane so that it does not land here. We have taken over the airport and you are coming in now", It is also correct that then the COAS replied "Iftikhar! Thank you, tell Mehmood and Aziz, no body will leave the country "
It is correct that while discussing alternate airfields where the aircraft should land we considered airfields Faisal, Masroor Base, Bandar Abbas, Mahar Iran and Ahmedabad India. Voluntarily says: I suggested the above airfields, In spite of the knowledge of shortage of fuel in the aircraft we discussed the above airfields as I did not know the distances and flying time of those airfields. The Pilot told us the distances and flying time of the above-mentioned airfields, therefore, I have stated today that the pilot had discarded the above options, It is not a fact that it was the COAS who discarded these options. Voluntarily says; less one Ahmedabad. The Airfield of Ahmedabad was discarded by COAS.
To Court; Why?
Ans. The main reason for discarding the airfield of Ahmedabad was, the moment we crossed the border of Pakistan and entered into Indian territory, it would have been taken an act of instruction and we would have been shot down by Indian Air Defence as they had no prior information.
88. The above-quoted passage lifted from the evidence of Capt. Sarwat Hussain refers to, inter alia, conversation between General Pervez Musharraf, COAS (from the cockpit of the plane) with General Iftikhar sitting in the Control Tower of Karachi Airport. The evidentiary value of this conversation will be considered in the ensuing paras while discussing the criminal liability of the appellant but for the moment it may be noted that the versions given by Capt. Sarwat on the whole reflect the situation in the air from the stage of first .Contact with the Approach Radar Control till landing, It is clearly made out that the Flight PK 805 was denied permission to land and when the Captain opted for the alternate airfield he was informed that Nawabshah Airport was also closed for this flight and they should fly to any destination outside Pakistan. However, he mustered courage by contacting their company namely PIA and he was asked to proceed to Nawabshah.
Soon thereafter permission to land at Nawabshah was given by ATC which is under the control of Civil Aviation Authority but again the flight was recalled and directed to land at Karachi. Although the Captain was seriously perturbed owing to conflicting instructions and as such preferred to land at Nawabshah but in view of conversation with General Iftikhar sitting in the Control Tower the confusion was settled and the aircraft returned to Karachi and landed at Karachi. On this point the testimonies of Manzoor, the Approach Radar Controller (PW-25), Capt. Sarwat Hussain (PW-9) and Brig. Nadeem Taj PW- 18 give a clear picture of the events happening in succession. Although learned counsel for appellant pointed out certain discrepancies between the evidence of these witnesses but it is needless to go into an elaborate discussion on such minor discrepancies for the reason that a consistent version has come out that the plane was denied landing anywhere in Pakistan in the first instance and then permitted to proceed to Nawabshah whereafter it was again recalled and allowed to land at Karachi where it landed at 7.48 p.m.
89. A question arises as to under whose instructions and command the Flight PK-805 was prevented from, landing at its scheduled time and place and diverted towards another destination out of Pakistan. After having accepted the evidence on the point of closure of runway and diversion of the plane it is essential to turn towards the criminal liability of the person responsible for such diversion, It would, therefore, be relevant at this stage to mention that at the time of pronouncing the short order we had formulated five points for determination and the foremost point related to the diversion of the plane. Following were the points for determination:-
(1) Whether appellant Mian Muhammad Nawaz Sharif prevented on 12.10.1999 PIA Flight PK 805 from landing at its scheduled time and place and ordered its diversion to another destination out of Pakistan?
(2) Whether by not allowing PIA Flight PK 805 from landing at the scheduled time and at the scheduled Airport appellant Mian Muhammad Nawaz Sharif committed the offence of hijacking as defined in Section 402-B, PPC?
(3) Whether in committing the offence of hijacking appellant Muhammad Nawaz Sharif committed a terrorist act as defined in Section 6 of the Anti-Terrorism Act, 1997?
(4) Whether appellant Mian Muhammad Nawaz Sharif was rightly convicted for offences punishable under Section 402-B, PPC and Section 7(ii) of the Anti-Terrorism Act?
(5) Whether the sentences awarded to appellant Mian Muhammad Nawaz Sharif were in accordance with law?
POINT No. 1.
90. The most vital question that goes to the root of the case depends upon the finding on point No. 1 above. The evidence relating to this aspect has already been discussed and prima facie it is found that the testimonies are worth reliance on the points of closure of runway and diversion of the plane to a destination out of Pakistan, It was vehemently argued by learned counsel for appellant that this evidence is not sufficient to saddle the appellant with liability of closure of runway and diversion of the flight in the above manner. His contention was based on a number of grounds including those mentioned in the earlier part of this judgment vide para 12 which were rebutted by the learned Special Prosecutor Mr. Zahoorul Haq in the terms mentioned at para 14 (supra).
91. Out of these grounds the most outstanding, rather surprising one, was the plea raised by Mr. Azizullah Shaikh learned counsel for appellant for the first time during arguments in this Court, that is to say at the appellate stage, relating to diversion of PK-805 under the directions of appellant.
The plea taken, was that appellant Mian Muhammad Nawaz Sharif in capacity of Prime Minister of Pakistan and in exercise of the powers under clause (b) to sub-section (1) of Section 6 of the Civil Aviation Ordinance,, 1960 was legally competent to prohibit a flight from flying over whole or any part of Pakistan, as such he ordered diversion of flight PK-805 out of Pakistan so that General Pervez Musharraf shall remain beyond the arena of anticipated conflict arising out of his removal from the post of COAS and he, the appellant be enabled to consolidate his position. Nevertheless, the learned counsel for appellant argued simultaneously that the prosecution has to stand on its own footing and prove the case beyond reasonable doubt irrespective of the failure or success of the plea taken by the defence. He was conscious of the fact that the first mentioned plea was not, at all, introduced during the trial, therefore, relying on the principle laid down in AIR 1941 Sindh 117 (Motiram Chandiram v. Emperor), 1992 SCMR 1451 (Noorul Haq v. The State) and 1992 SCMR 1983 (Ch. Muhammad Yaqoob v. The State) he urged that the appellant cannot be restricted from taking a changed defence plea at the appellate stage.
92. Learned special prosecutor while controverting the above contention of learned counsel for appellant, sought support from the provisions, of Articles 121 and 122 of Qanun-e-Shahadat and emphasized that if a plea taken within the meaning of Article 121 of Qanun-e-Shahadat is based on and grounded in existence of facts then the same can be entertained if the related conditions laid down in Article 121 are satisfied, In this context he elucidated that such plea should be germane to facts of the case while in the instant matter this plea has no factual nexus with the evidence and it cannot therefore be sustained. He further placed reliance on PLD 1953 Federal Court 93 (Safdar AH v. The Crown), ILR 1985 Appellate Cases 462, 1993 P.Cr.L.J. 1934 .(Subbago v. The State), PLD 1956 (W.P.) Lahore 704 (The State v. Mukhtar) and Muhammad Yaqoob's case (1992 SCMR 1983).
93. In Motiram's case (AIR 1941 Sindh 117) cited by learned counsel for appellant a defence plea which could have been taken within the meaning of exceptions to Section 300, PPC (then IPC) was not taken at the trial, and a Division Bench of this Court in the said judgment which was authored by Davis, C.J. Held that the appellant could not be deprived of such benefit if available to him. His observations run:- "We have considered the question, though it was not raised or argued throughout the proceedings in the lower Courts or in this Court, whether the appellant's offence was reduced from murder to manslaughter by reason of the right of private defence, in that the attempt made to arrest him by the police and railway servants was unlawful, so that he would be entitled to resist arrest, and though he would not be entitled to kill, having used more force than necessary, his offence might be culpable homicide not amounting to murder and not murder. The burden of proving any such defence rests, of course, on the accused himself, and neither the appellant nor his Advocate has raised this defence. Nevertheless, if upon the evidence it appears that the appellant is entitled to the benefit of any one of the Exceptions of the Code, neither the ignorance of the appellant nor the falsity of his defence nor any mistake or omission of the lower Courts or Advocates should - deprive him of the benefit of it."
94. In Noorul Haq's case, the Honourable Supreme Court observed that a plea taken by an accused may be false but he cannot be convicted on such false plea and the prosecution has to succeed in his own case, It was held that presumption of innocence of an accused would be displaced by the prosecution only when prima facie the prosecution established its case against accused, and in order to discharge the burden if the accused raised a plea in support of his defence to controvert the prosecution's allegation, but failed to prove such plea then exception under Article 122 of Qanun-e-Shahadat would be attracted which prescribes that; ff a fact, is specially within the knowledge of any person the burden of proving that fact is upon him. In arriving at this conclusion reference was also made to PLD 1977 SC 515 (527) (Rehmat v. The State).
95. In Muhammad Yaqoob's case which has already been referred to in earlier part of this judgment on the point of evidentiary value of the testimony of approver, also lays down a principle regarding the burden of proof when a plea in defence is taken by the accused. Following observations relevant for the purpose of the point under discussion were made by their Lordships:- "It is well-settled proposition of law that the burden of proof in a criminal case, throughout the trial of the case, remains on the prosecution and this burden is not shifted on the defence. The Prosecution is to prove the case against the accused beyond reasonable doubt. The fact that the accused has raised a plea which is found by the Court to be untrue, would not relieve the prosecution from the above burden, nor any adverse inference can be drawn against the accused on account of his failure to prove the plea raised by him. It is also a well-settled proposition that the burden on an accused to establish a plea raised by him, is not as heavy as it is on the prosecution inasmuch as an accused discharges his burden if he succeeds in creating a reasonable doubt in the prosecution case."
"Since right of private defence is pleaded, it is incumbent upon the defence to produce material to cast doubt in the version of incident given by prosecution. Of course, jt goes without saying that it is the duty of prosecution to prove its case beyond doubt regardless of fact whether defence has been able to prove its case or not. Burden of prosecution never shifts to the defence but if assertion is made by the defence, then it is to be carried further to create doubt in the credibility of the prosecution case."
96. On the other hand learned Special Public Prosecutor submitted that in Motiram's case, the plea was already raised but not accepted. This contention of learned Special Prosecutor does not find support from the cited case, In Sabbago's case (1993 P.Cr.L.J. 1934) the plea raised on behalf of the accused, who was facing trial in case of Zina was that he was not adult when Zina- Bil-Jabr was committed by him with the victim girl, but this defence was not adopted during the trial. Since the factual aspect of this defence plea was specially within the knowledge of 'the accused, it was observed that the burden of proving this fact within the meaning of Articles 121 and 122 of Qanun-e- Shahadat was on him but he did not make a mention in this regard much less bring convincing evidence on record to demonstrate that he was not adult at the crucial time. The plea was, therefore, not accepted as it was not only an afterthought but also without substance.
97. In Mukhtar's case (PLD 1956 (W.P.) Lahore 704) it was observed that plea of acting in exercise of right of private defence can be allowed to be raised by an accused despite the fact that he did not take up the same, but before giving the benefit of exception to the accused there must be evidence to establish that the exception was applicable. However, the view taken was that admission made by counsel in a criminal case cannot bind his client because the Court has to be satisfied about the guilt of an accused person; and in case the plea is rejected the Court shall think no more of it. Safdar Ali's case (PLD 1953 Federal Court 93), has been referred to and considered in Muhammad Yaqoob's case (supra), It was mainly held therein that burden of proving the general issues of the guilt of accused lies from first to last upon the prosecution.
98. With regards to contention founded on the provisions of Qanun-e-Shahadat, it is felt necessary to reproduce below the text of Articles 121 and 122 of Qanun-e-Shahadat:- "121. Burden of proving that case of accused comes within exceptions. - When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in Pakistan Pena! Code (Act XLV of I860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
122. Burden of proving fact especially within knowledge. - When any fact is especially within the knowledge of any person the burden of proving that fact is upon him."
99. As for the burden of proof, Article 121 of Qanun-e- Shahadat clearly spells out the condition that when an accused person claims general exceptions within the meaning of Pakistan Penal Code or in any law defining the offence, the burden of proving the existence of circumstances wholly lies upon him. On the same pattern Article 122, postulates that if such fact is specially within the knowledge of such person then burden of proving the same is again upon him. A comprehensive understanding. Of the observations made in the case-law cited above would indicate that the point of view of the learned counsel for appellant as well as the learned Special Public Prosecutor is adequately borne by these precedents. The only difference is that' it may be realized that entertaining/admitting of a plea at belated stage, say appellate stage is remarkably distinct from acceptance of such plea. All the same, neither the provisions of Articles 121 and 1 22 of Qanun-e- Shahadat nor the principles enunciated in the precedents cited above, would restrain the accused from taking a plea even at the appellate stage; at the most it would be required that in substance it should be germane to facts of the case and proximately relatable to the evidence placed on record by the prosecution or the defence as the case may be.
100. Indeed, it will be seen from most of the cited cases discussed above, that the belated plea was duly entertained and discreetly examined in the light of evidence on record and then rejected.
Principle laid down in Moti Ram's case is, however, brilliantly explicit and lays down an exquisite guideline. However, we cannot refrain from repeating the illuminating observations of Shabhir Ahmed, J. (as he then was) in Mukhtar's case that an admission made by counsel would not bind the accused and then if a plea is rejected the Court shall forget about it while determining the innocence or Otherwise of the accused on the basis of evidence on record. Consequently, the belated plea taken by Mr. Azizullah Shaikh is duly entertained and admitted, but if any benefit derived therefrom is aimed at upsetting the case of prosecution, then burden of proof shall lie on the appellant. Has he discharged this burden in the instant case will be a question directly in issue under Point No. 2 while determining the appellant's criminal liability about the offence of hijacking, and for the moment it is concluded that under the settled norms of criminal jurisprudence the prosecution is bound to prove its own case beyond reasonable doubt, regardless of the fact that the appellant succeeds or not in substantiating and proving his plea taken at this stage.
Resultantly, who have to revert back to the evidence produced by the prosecution and in this context the evidence of approver Aminullah Chaudhry needs to be scrutinized.
101. As already concluded in para 53 supra, that Aminullah Chaudhry was victim of circumstances as such he could not be termed as a 'willing participant' nor categorized as a 'wicked person' and that his testimony cannot be discarded outright on the ground that he was an accomplice.
However, in view of the doctrine of doubt test it was to be scrutinized if his evidence was inherently worth reliance and he was- also corroborated through independent evidence in material particulars. As regards the corroboration, the evidence placed on record has already been discussed above.
102. Aminullah Chaudhry's evidence is specific and significant on this point, It indicates that he received first call from appellant Mian Muhammad Nawaz Sharif a little after 6.00 p.m. When the appellant enquired of him about the flight details of return to Pakistan of COAS and advised him to ascertain the details and ensure that the flight is not allowed to land at any airport in Pakistan.
After about 10/15 minutes the appellant once again talked to him and during discourse this witness gave to the appellant, details of flight, so far collected by him, whereupon the appellant directed him that his earlier orders should stand and the flight should not be allowed to land in Pakistan.
Aminullah Chaudhry has clearly stated that the appellant desired that the flight should be diverted to any airport of Middle East other than Dubai and the order should be implemented without any delay, whereupon he immediately ordered for closure of both Qaid-e- Azam and-Nawabshah airports. With no . Loss of time Aminullah Chaudhry called his Secretary, Ahmed Faruq (PW-20) and disclosed before him that he has received a call from appellant Mian Muhammad Nawaz Sharif that the Aircraft of COAS should not be allowed to land in Pakistan. PW-20 Ahmed Faruq has confirmed this fact in his evidence. Muhammad Saddiq (PW-16) telephone operator of Director General, CAA Aminullah Chaudhry has also corroborated the version of Aminullah Chaudhry to the extent that he received two calls from Prime Minister House arid connected Aminullah Chaudhry.
Regarding the first call he has not been able to give precisely an accurate time, as, according to him, the first call was received sometime after 5.30 p.m. While Aminullah Chaudhry has stated that he received the first call a little after 6.00 p.m. No doubt there is discrepancy of few minutes in timings but in the circumstances of the case where each and every minute particular is correctly stated such a minor discrepancy of time is negligible. Reference may be made to 1992 SCMR 1036 (Mst. Roheeda v. Khan Bahadur). Moreover, from amongst witnesses at Islamabad Muhammad Asif (PW-15) telephone operator of Prime Minister House has also given a clear and supporting version that the first call made by the appellant was connected by him with Aminullah Chaudhry a little after 6.00 p.m.
103. With regard to implementation of orders of diversion of flight, Yousuf Abbas (PW-2) Chief Operational Officer, CAA has given details stating in categorical terms that Aminullah Chaudhry spoke to him on telephone and ordered diversion of all international flights to Muscat and Abu Dhabi and domestic flights to Nawabshah, under' the orders of appellant Mian Muhammad Nawaz Sharif who had further emphasized that the order should be complied with without fail. Yousuf Abbas had, therefore, passed on this order to Muhammad Asif (PW-4) and Muhammad Nadeem (PW-7). These different pieces of evidence assembled together render enormous corroboration to the word of Aminullah Chaudhry that he received call from appellant Mian Muhammad Nawaz Sharif of doing diversion of flight PK-805 to a destination out of Pakistan as discussed earlier, It is not necessary that each piece of evidence shall independently establish a particular fact and only then it may be accepted as corroborative piece of evidence.
104. It may be added that even in the background incidentally there is evidence of Zahid Mehmood (PW-14) Director Protocol Prime Minister which shows that the appellant issued direction that flight PK-805 should be diverted to Muscat. Although his evidence relates to the fact that he at his level contacted Chairman, PIA but at the same time it shows a definite and resolute design on the part of appellant to divert the plane to a destination out of Pakistan. 0n the whole, for the purpose of corroboration the evidence of witnesses mentioned earlier is reliable and enough, It may therefore be concluded that the testimony of approver has stood the double test and it has been established that diversion of the flight PK-805 was made under the orders of appellant Mian Muhammad Nawaz Sharif who is responsible for preventing the flight from landing at scheduled time and place and directing it to proceed to any other destination out of Pakistan.
105. Although the evidence is sufficient to establish the aforementioned facts but it is worth mentioning that learned counsel for appellant contended that the entire evidence be scrapped and thrown away as the story itself is wholly doubtful because of delay in lodging of F.I.R.
Admittedly, the incident took place on 12.10.1999 . And the F.I.R, was lodged. At P.S. Airport on 10.11.1999. The F.I.R., contents whereof have been reproduced at para 7 above, itself shows that in the first instance in order to ascertain the truth a primary probe was carried out by different agencies such as CAA, PIA, Police, ASF and Army authorities, It also mentioned that COAS General Pervez Musharraf had himself given a prompt public statement on Pakistan Television describing counsel for appellant assailed the legal status of F.I.R, within the meaning of Section 154; Cr.P.C. He firstly argued that in view of preliminary enquiry conducted by different agencies including Police, ASF and Army authorities, the F.I.R, could be deemed to be a report based on deliberations and considerations arising out of the probe/inquiry, and the information contained in the F.I.R, cannot, therefore, be termed as first information, as such the F.I.R, has lost its value.
106. Second limb of the argument was that after the statement made by General Pervez Musharraf on PTV there was no reason to delay lodging of F.I.R. He argued that real story were some what different, there was therefore, hesitation in lodging of F.I.R. Mr. Zahoorul Haq learned Special Prosecutor in the first instance conceded that the statement of General Pervez Musharraf could, be considered as the first information report, but since such report was not duly lodged and signed by the informant within the meaning of Section 154, Cr.P.C, he could not adhere to his argument.
However, he was of the view that in the peculiar circumstances of the incident it was found necessary to hold enquiry but it cannot be said that any investigation was conducted before recording of F.I.R. He urged that this one may not be compared with F.I.R, in an ordinary case.
According to him, F.I.R, not being a piece of substantive, evidence it could only be used for corroboration, but at any cost promptness or delay in lodging the F.I.R, is no guarantee of truth or otherwise of the case. F.I.R, is to be seen in totality and not in isolation. He placed reliance on the authorities 1970 SCMR 797 (Muhammad Gul v. The State), PLD 1994 Lah. 485 (Riaz Ahmed v. The State), 1 986 P.Cr.L.J. 1482 (Salar Khan v. Muhammad Ayub) and 1992 P.Cr.L.J. 478 (Tahir Hussain v.
The State).
107. In Muhammad Gut's case (1970 SCMR 797) there was a long delay in lodging of the F.I.R, which remained unexplained yet the Hon'ble Supreme Court observed that no importance can be attached to such delay, as the prosecution had gained nothing out of it. In Riaz Ahmed's case (PLD 1994 Lahore 485) the Full Bench of Lahore High Court while dealing a sensitive case under Section 295-C, PPC took the view that the question as to what weight is to be given to the factor of delay in registering a criminal case specially in sensitive cases, cannot be answered by giving any formula or laying down any hard and fast rule. Such a matter of course has to be left for the Trial Court to evaluate on the basis of the overall evidence available on record in a given case, In Salar Khan's case (1986 P.Cr.L.J. 1482) a Division Bench of Azad Jammu & Kashmir relying on 1978 SCMR 135, PLD 1978 SC 1, PLJ 1978 SC 41 and 1979 SCMR 230 expressed the view that delay in F.I.R, per se was not fatal to prosecution although it could have such effect in some particular circumstances. The view taken in Tahir Hussain's case (1992 P.Cr.L.J. 478) was that if the evidence inspires confidence, the delay in registration of the case becomes a secondary factor and does not materially affect the veracity of the prosecution.
108. The learned Trial Court has also, in its^judgment, referred to a large number of precedents including Supreme Court authorities about the object, scope, value and use of F.I.R., which include the view taken by superior Courts that delay or promptness in lodging of F.I.R, shall not in all cases lead to an inference about truth or otherwise of the case set up in the F.I.R.
109. There is, however, a consistent view that the F.I.R, is not a substantive piece of evidence and no conviction can be based on the contents of an F.I.R, alone; its significance, however, for the purpose of seeking corroboration or contradictions cannot be denied, In the instant case admittedly the facts were remarkably peculiar because of allegations against Prime Minister of the country, and other personalities holding top slots while the victim of offence was the Chief of Army Staff and during the incident a number of high officials had taken part in diversion of the plane from its scheduled course and closing of the runway while on the other hand Army Generals had promptly moved in and intercepted the action being taken by Civil Aviation Authority officials. Although the story came into picture in national press immediately, yet a fact-finding probe was carried out and only then the F.I.R, was lodged. Surprisingly, even after such probe the names of all the accused could not be incorporated in the F.I.R. That aspect of the case, on the contrary, fortifies the argument of learned Special Prosecutor that the prosecution did not gain anything from the delay in lodging the F.I.R. However, there is an explanation on the part of the prosecution in the F.I.R, itself which in the circumstances of the case could be treated as a reasonable explanation.
Nevertheless, in view of the case-law discussed above as also reflected in the judgment of Trial Court the settled principle is that the contents of F.I.R, cannot be taken s thumb rule for genuineness or otherwise of the prosecution story and that the liability of an accused person shall be decided on the basis of the evidence on record. The prosecution in the present case, as discussed above, has produced enormous evidence which is trustworthy and believable as such the delay in lodging of the F.I.R, is immaterial. The contention is, therefore, repelled.
110. Next, the intrinsic worth of evidence led by prosecution was sternly assailed on the basis of the plea taken during the trial that the Army had intervened right from the early stage and acquired all around control at different junctures. However, it was emphatically contended that even in the air the plane was in the control of General Pervez Musharraf, consequently from the evidence on record the liability of diversion of the plane could not be assigned to the appellant, In this regard it may be relevant to point out that the appellant had in, his statement recorded under Section 342, Cr.P.C., projected this plea in so many words. The relevant portion from his statement is as under:- "Your honour I am innocent and have been falsely implicated in this case. I had reliable secret information that General (Retd.) Pervez Musharraf had planned taking over the lawfully established government, It was suspected that a plan could be carried through on his arrival from Colombo and for this very purpose forces , had already been mobilized to take control, on sensitive installations and the main airports of the Country.
The news of the change of the then COAS was flashed on the PTV at 5.00 p.m. And within minutes i.e. 5.20 p.m. The army took over control of the Islamabad PTV Centre. The Prime Minister House was also taken over by the army before 6.30 p.m. The Corps Commander 5 Corpse It. General Usman, Brig. Tariq AN Khan, Commander area had also reached the Karachi Airport by 6 O'clock on the pretext of receiving of General (Retd.) Pervez Musharraf who was returning from Colombo, although, he was no longer COAS as was known to the entire armed forces, and had also associated Brigadier Naveed Nasar, Commander ASF with them obviously to take over the control of the airport. This finds support from the fact that according to It. Colonel Atiquzzaman Kiyani the armed troops of 5 corps reserve not only arrived at the Jinnah Terminal but also took over control of the ATC at 6.45 p.m. Thus the order for the retirement of General Pervez Musharraf and appointment of General Ziauddin was frustrated defied and made inoperative under a pre- conceived plan hatched by some senior commanders of the army, who owned personal loyalty and allegiance not to the institution, but to the retired COAS General Pervez Musharraf. The telephone exchange of the Prime Minister House was taken over at 6.40 p.m. i.e. Before the expected arrival time of PK-805 which was about 7.00 p.m. No one from the Prime Minister House could be in control of or in contact with the CAA or PIA after this point of time."
111. Regardless of the plea taken at the appellate stage, the above statement is to be considered in the light of evidence on record. According to appellant's above statement the army had taken over the Prime Minister House before 6.30 p.m. While It. General Muzaffar Usmani Corps Commander of 5 Corps and others had reached Karachi Airport by 6 O'clock. Referring to the version of It. Col. Atiq uz Zaman Kiyani the appellant has taken the stand that control of ATC was taken over by Army by 6.45 p.m., and the control of telephone exchange of .Prime Minister House was taken at 6.40 p.m. At Islamabad which is much before the expected time of arrival of Flight PK 805 therefore there was no occasion to order diversion of the plane. This plea is real sense does not find support from the evidence on record.
112. The crucial time for making the call is above 6.00 p.m. For which the evidence of Muhammad Asif PW-15 the telephone operator Of the appellant has already been discussed. Muhammad Asif has clearly stated that Army entered his office at 7 or 7.15 p.m. The evidence of Brig. Javed Iqbal also shows that when the army took-over Prime Minister House it was 7 o'clock. The evidence offering. Zahid Mehmood also indicates that the appellant had talked to Karachi much before the entry of army into the Prime Minister House, It cannot therefore be said that because of entry of army into the Prime Minister House the appellant was not able to communicate with Aminullah Chaudhry on telephone instructing him to divert the plane. Mere presence of a truck of army out side Prime Minister House at 6.30 p.m. Was not enough to establish that the Army entered the Prime Minister House much before 6.30 p.m. Trial Court has fully addressed itself to this contention and replied it correctly. The inevitable conclusion therefore is that interference of army was not possible at the time when appellant had talked with Aminullah Chaudhry about the diversion of plane.
113. As regards the control of ATC at Karachi the revision of Atiq uz Zaman the first informant is not precisely relevant for the purpose of drawing the conclusion that the army entered ATC at the particular time as the evidence of Atiq uz Zaman is only to the extent that he was present at the Airport. Admittedly, the ATC is not accessible, to a person who enters the Airport and lounges etc. The direct and accurate evidence in this regard would be of the person operating the ATC. The version given by Muhammad Asif (PW-4) the Air Traffic Control Officers of the CAA is that at about 7.11 p.m. Yousuf Abbas allowed the flight to proceed to Nawabshah Airport but then at 7.13 p.m. Brig.
Abdul Jabbar arrived at control tower and instructed that the flight should land at Karachi, and few minutes later Major General Iftikhar also arrived at control tower. Thus, the direct evidence -on the point which is believable and trustworthy is that the army took over the control of ATC of at about 7.13 p.m. And not before. Even the evidence of pilot Captain Sarwat (PW-9) would indicate-that upto 7.10 p.m. He was communicating with traffic control staff and uptill then there was no interference of army, making out thereby that army was not present till then.
114. The evidence of Yousuf Abbas the Chief Operational Officer also demonstrates indicate that in compliance with the earlier directions of diversion of the plane every action was taken towards implementation of the order and the plane was permitted to land at Nawabshah but again called back for the purpose of landing at Karachi and re-fueling; and only at that juncture when the Diane was asked to return to Karachi while, the pilot was not obeying the order, the army took over the control. This leads to a precise inference that the act of diversion of plane in compliance with the order of the appellant had already taken place, It is true that after the takeover of ATC tower its control remained with Army and that part of flight cannot be attributed to the appellant but actual part of the incident/diversion had already taken place (sic)
115. It would be relevant to discuss here the contention raised in the alternative that irrespective of the plea taken on behalf of the appellant that the diversion was ordered in lawful exercise of the powers vested in the Prime Minister by virtue of Civil Aviation Ordinance, evidence has come on record at the trial that the plane was in the control of General Pervez Musharraf, therefore, the Court shall presume on that score that the prosecution failed to prove that the appellant was responsible for diversion of the plane from its scheduled course, In this regard reliance was placed on the evidence of Capt. Sarwat Hussain (PW- 9) and Brig. Nadeem Taj (PW-18) read with that of Manzoor (PW13). The most relevant evidence in this regard is of Capt. Sarwat. His evidence shows that he had made his first contact with Karachi. Airport at about 6.00 p.m. But they did not receive routing entry permission/clearance. On the contrary, fuel endurance position was asked for; however, on reaching the SAPNA position they started descent from 29000 to 10000 ft. Height and during that course this witness heard ATC advising other aircrafts about closure of Karachi Airport and diverting them to different airfield like Sukur and Nawabshah. At about 6.40 p.m. He informed Karachi ATC about presence of COAS and he also asserted that Nawabshah was their alternate airfield but the reply from ATC was that Nawabshah Airfield was also closed for them. At this juncture it struck his mind that it was all because of the presence of COAS on board and having formed such opinion he called the Purser and asked him to inform the Personal Staff Officer of COAS to speak to him in the cockpit. At about 6.50 or 6.55 p.m. They were informed that they were not permitted to land at any airfield in Pakistan and to proceed outside at their own risk. He, therefore, contacted his company namely PIA and the Director Flight Operations of PIA Capt. Shah Nawaz Dara advised him to proceed to Nawabshah, land there and refuel the aircraft. This was apparently a stopgap arrangement just for the purpose of safety of the flight and its inmates. After sometime ATC permitted the flight to proceed to Nawabshah and the aircraft started a climb and around midway they were instructed, to descend for landing at Nawabshah, but while descending in a turn, Karachi ATC again asked them to fly heading 250 degree for a landing at Karachi Airport which was initially complied with but since instructions from ATC Karachi were conflicting in nature and had created a sense of confusion and had by that time eroded the trust that a pilot had with the ATC, therefore, keeping safety in mind a turn was initiated with a climb instead of descent, It was strenuously argued that this act of pilot was indicative of the fact that it was not he who took such a decision but he was under the control and command of COAS and Brig. Taj who made him to disobey the orders of ATC. In fact, the Captain has met the situation in his evidence by stating that when his destination was declared closed he had Nawabshah as his-alternate airfield, but when that was also declined for him, at that moment he went helpless and his command was crippled. He has deposed that it was a very tense situation to save the aircraft and its occupants.
He also explained that in that state of situation for few minutes he remained in mid position. He went on analyzing the situation and then thought that Brig. Nadeem or General Pervez Musharraf would be able to apprise him of any situation with which he was confronted at that moment and therefore, he wanted to speak to them, In the first instance. Brig. Nadeem Taj had entered the cockpit and he spoke to him and subsequently General Pervez Musharraf entered the cockpit.
116. The evidence of Capt. Sarwat at most indicates that General Pervez Musharraf spoke to ATC and wanted to know who was in the control of ATC and that he spoke to General Iftikhar from cockpit, It may be pertinent to mention here that at that time Manzoor had already switched over the flight from Approach Radar Control to ATC on the frequency of the latter i.e. On 118.3 MHz and the talk was made directly to the ATC. An overall analysis of the evidence of Capt. Sarwat shows that he was not commanded at any time by Brig. Taj or General Pervez Musharraf to change the course of flight. At the most a suggestion was given to him that he in consonance with General Pervez Musharraf hijacked the plane from the period when he did not obey the instructions of ATC to land at Karachi, which he denied. The defence has thus not gained anything from the evidence of Capt. Sarwat even in cross-examination to show that the plane had fallen into the command and control of General Pervez Musharraf and Brig. Taj. It is again relevant to express here that even if it had been so the act of diversion of the plane from its scheduled course had already taken place as the flight was refused landing at Karachi and also told to proceed anywhere outside Pakistan and even the alternate destination Nawabshah was first denied to them.
117. Next, Manzoor's version is in the first instance clear on the point that the Army had not entered Approach Radar Control. He all along freely monitored the flight and issued requisite instructions to the Captain. Lastly, on the advice of Yousuf Abbas received from Control Tower at 7.11 p.m. He instructed the Captain to proceed to Nawabshah. According to him the plane left Marvi (holdover position) at 7.16 p.m. And proceeded to Nawabshah. He again received a call from Yousuf Abbas to Chief Operational Officer advising him to bring the plane back to Karachi and he passed on such - instructions accordingly, whereupon the aircraft started move to Karachi and at 7.19 p.m. He passed on the progress report. All this is enough to demonstrate the factual position that till then there was absolutely no interference of any sort by Brig. Taj or General Pervez Musharraf in the operational activity performed by the Captain in normal course. However, after the above stage the pilot started a climb much against the advice of Manzoor and then the aircraft was switched over to Control Tower Frequency 118.3 MHz, whereafter the Control Tower handled the operation.
Manzoor's evidence does not, therefore, lead to any inference that before switching over the frequency, the plane was in the control of General Pervez Musharraf.
118. The evidence of Brig. Nadeem Taj (PW-18) would also indicate that he was called by Capt.
Sarwat in the cockpit at the time when. They were denied landing not only in Karachi but also in any other airfield. Upon this he had tried to contact the ground through three mobile phones available with him but the same did not function. He informed COAS who, in the first instance, advised Brig. Taj that the situation should not pass on to passengers lest it may create panic-, he, therefore, drew the curtain. When COAS entered the cockpit the pilot explained the situation to the latter and then different options were discussed. A little later the pilot was asked by control to get back to Karachi and at that juncture the COAS and Brig. Taj left the cockpit telling the pilot to do whatever was the best for the aircraft and the passengers because according to Brig. Taj the pilot was in a state of confusion at that moment. He stated that the pilot had put the aircraft in circle maintaining options open to land at' Karachi or Nawabshah. However, the dust settled when General Iftikhar came on the ATC and asked the pilot to get back to Karachi and upon positive identification of General Iftikhar the pilot started going towards Karachi. Brig. Nadeem Taj has also given the account of the conversation from cockpit but all that shows that the efforts were being made to get out of the situation as the initial event of refusing the plane to land Karachi and flagrantly expressing that Nawabshah was also closed for them, had already taken place. The conversation itself shows, how desperately these inmates of flight who were facing a grave situation apparently because of the presence of COAS, were struggling from minute to minute to land safely instead of hanging in the air. In any case it cannot be said that the hectic efforts were being made on the basis of some imaginary assumption; in fact, it was in consequence of the drastic act of diversion of the plane from its scheduled course that led to aforesaid hazardous situation. No inference can, therefore, be drawn that appellant's earlier command of diversion which was faithfully carried by CAA staff stood disproved because of the subsequent efforts made by the inmates of the plane in the manner discussed above.
119. Lastly, it would also not be out of the place to mention that the evidence of material prosecution witnesses was also assailed on the basis of certain improvements and modifications in their versions, but the same have already been discussed while examining the evidence of different sets of witnesses. Even otherwise, the standard norms of appraisal of evidence would not call for rejecting a wholly trustworthy testimony on the score, of some minor contradictions; omissions of improvements, In principle the rule laid down in the authorities Saeed Muhammad Shah v. State (1993 SCMR 550) and Naseer Ahmed v. State (1994 SCMR 995) would call for an adverse inference to be drawn on such account only when the improvements are made to strengthen the case and additions are made to alter the case at a late stage in order to bring it inline with the case of prosecution. As already discussed it is not so in the instant case. The feeble effect of changed versions with which the witnesses were confronted does not detract from the testimonies which on the whole fit in the circumstances of the case and are credible. The Trial Court had also rightly placed reliance on these testimonies, therefore, we affirm its views.
120. Consequently, it may be summed up that the above discussion of evidence essentially leads to the conclusion that none else but the appellant and the approver Aminullah Chaudhry were responsible for the act of diverting the plane from its scheduled course and refusing permission to it to land at Karachi or at Nawabshah and ordering, in the first instance, its diversion to any destination out of Pakistan.
121. After having held as above the vital point for consideration is whether in consequence of diversion of Flight PK-805 from its scheduled course by disallowing it to land anywhere in Pakistan the appellant committed the offence of hijacking punishable under Section 402-B, PPC. This requires assessm ent of the evidence from the point of view of finding out if the essential ingredients of the offence of hijacking within the meaning of Section 402-B, PPC and as defined in Section 402-A, PPC were made out. The evidence has mostly been discussed already; now its effect coupled with the evidence of remaining witnesses if necessary is to be analyzed keeping in view the plea taken by the defence at the trial as also at the appellate stage together with the statement of accused recorded under Section 342, Cr.P.C. While appreciating the evidence on that line it would be outstandingly relevant to discuss the plea taken in the alternative at the appellate stage that the diversion of plane was ordered by the appellant in lawful exercise of the powers vested in him under Section 6(1 )(b) of the Civil Aviation Ordinance, 1960 and as such no' offence was committed by him.
122. The provisions of Pakistan Penal Code relating to the offence of hijacking relevant for the purpose of this case are Sections 402-A and 402-B, the former laying down definition of the offence and the latter providing the punishment. The text of these provisions is as under:- "402-A. Hijacking. - Whoever unlawfully, by the use or show of force or by threats of any kind, seizes, or exercise control of any aircraft, is said to commit hijacking.
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."
123. What constitutes offence of hijacking can be gathered from Section 402-A which, on a plain reading, envisages the following essential ingredients which if established would make out the offence:-
(i) that the act itself should be unlawful,
(ii) there should be use of threats of any kind, and
(iv) the above acts shall result in seizing or exercising control of an aircraft.
124. The learned Trial Court on assessment of the evidence has reached the conclusion that offence of hijacking as defined in Section 402-A, PPC has been made out and committed. Its approach is based mainly on the exposition of law made in the case Muhammad Ibrahim Halimi v.
State (1999 YLR 533). The relevant observations In the above judgment of Division Bench of Lahore High Court (Rawalpindi) Bench, which has also been reported as PLJ 1999 Cr.C. (Lahore) 683 (DB), run as under:- "The offence of hijacking is completed if the above elements are proved even without the physical presence of offender. The use of show of force or by threat of any kind including expression of words orally or in written from or any other visible sign showing the intention of the offender to seize or control an aircraft is enough to complete the offence of hijacking. The above referred acts susceptible of being looked or to be observed as such would definitely be unlawful acts and would constitute the offence of hijacking, In the present time, the offences of hijacking, bomb blasting and such other offences of terrorism are committed through remote control and indirect methods. The artificial articles namely, the electric appliance artificial machines and weapons in the form of plastic toys, guns, pens and watches, if are used as weapon with threats of commission of offence, the offence is completed and the offender cannot take the plea that the artificial weapon being not convertible to be used as actual weapon, he has committed no offence. The commission of offence is not only depends on the result to be achieved, but if the element of mens area to commit an offence is traceable and intention through visible sign is exposed even without any overt act, the offence can be said to have been committed. Thus, the combination of the intention with the action exposing such intention would bring the 1 act under the definition of an offence."
125. In the above cited case flight flight No. SV-367 cruising from Islamabad to Al-Riaz and Jeddah was diverted to Karachi Airport on receipt of an information on telephone about presence of explosive in the aircraft. At Karachi Airport the hand carried/accompanied baggage was unloaded and placed near the conveyor belt for checking and delivery to the passengers; and in this process one bag was found unidentified and doubtful. Upon search of the bag a box was found in it which contained watch with battery cell and some other matter and was checked with the help of explosive detector. Later on Moinuddin, Deputy Director Civil Defence Bomb Disposal, Karachi defused the bomb. After clearance, the passengers boarded the flight and flew away but one passenger was detained as suspect along with his two companions. During investigation appellant Muhammad Ibrahim Haleemi was found to be the actual culprit as he had handed over the bag to one Abdul Aziz Saeed Al-Hameedi an Arab national who was returning from Afghanistan. At the trial said accused Muhammad Ibrahim Haleemi was found guilty for offences punishable under Sections 402-B, PPC and Section 4 of the Explosive Substance Act, 1908 and appellant's conviction was confirmed through above cited judgment. Since the accused in the said case was not present in the flight and so also in the instant case the appellant was not among the passengers, this aspect of the case being common the principle enunciated therein was conveniently applied by the Trial Court to the present case.
126. Indeed, the case-law touching the offence of hijacking has not developed much for the obvious reason that it has been introduced in the Pakistan Penal Code recently, In fact, incidence of this offence throughout the world, reached alarming proportions and it was globally felt that besides applying other methods and devices to check the same, severe punishment be provided for this offence in the penal laws. Consequently, such amendments were introduced world over and keeping with the same the Pakistan Penal Code was also amended by way of Ordinance XXX of 1981 inserting Sections 402-A, 402-B and'402-C therein There are, therefore, only a very few reported cases in respect of this offence out of which the one cited above covers that aspect of the offence when it occurs in absence of the offender, therefore, it bears a higher degree of relevance.
127. There is an other case Abdul Mannan v. State (1991 MLD 2462) in which the hijacker was travelling in the plane which was flying from Karachi to Quetta and his attempt to hijack the plane was foiled by the security guard and the passengers. One of the significant issues in that case was the question of awarding sentence to the hijacker and after considering the ambient circumstances the sentence of death awarded to the accused/hijacker was converted to imprisonment for life.
128. The most important case reported very recently is that of Shahsawar v. State (2000 SCMR 1331) + (2000 PSC (Crl.) 824) wherein a Folker aircraft was hijacked during its flight from Turbat to Karachi via Gawadar with 21 passengers and crew on board. The facts of the case are that after departure from Turbat two persons entered the cabin (cockpit) of- the aircraft, out of whom one kept his pistol on the head of the pilot and ordered him -to take the plane to Jodhpur, India while th other culprit stayed behind him. The third culprit entered the cabin of passengers. Pilot of the aircraft informed the hijackers with disguise truth that there was no fuel in the plane, as such, they cannot reach Jodhpur, India and the plane will crash but they insisted to carry out their orders.
However, they allowed the pilot to talk to the control, In order to meet the situation the control passed on its confidential signal informing the pilot to pretend before the hijacker that the plane could land at Bhuj Airport India and accordingly the pilot tactfully succeeded in landing at Hyderabad by misrepresenting to the culprits that the plane was landing at Bhuj Airport India. At Hyderabad in the garb of negotiations the hijackers were overpowered. Case was registered against the hijackers and on trial they were sentenced to death, fine and forfeiture of property for the offence punishable under Sections 402-B/365-A/34, PPC. Appeal preferred by the hijackers was dismissed by this Court and the appeal before the Hon'ble Supreme Court also met the same fate.
The following observations, relevant for the purpose of this case were made by the Hon'ble Supreme Court:- "As far as the offence of hijacking is concerned it stands completed no sooner the aircraft is diverted forcibly to a different destination, admittedly, in the instant case Folker 554 was scheduled form Turbat to Karachi via .Gawadar but it was not allowed to land at Gawadar because after its take-over from Turbat the control of the plane was taken over by the petitioners...................................... "
129. It is to be noted that in the last mentioned cited cases of Abdul Mannan and Shahsawar the hijackers were present on board and barring this distinguishing feature in the facts of the case, the question of attempt to hijack the plane is almost common. Since the attempt in both the cases was foiled and more particularly in Mannan's case such attempt was repelled during the flight, the observations made in reported cases and the principles laid down would have bearing on the facts of this case as well. However, Mr. Azizullah Shaikh, learned counsel for the appellant with a feeble emphasis argued that in fact, in pursuance of the International Convention the law was correctly legislated in some other parts of the world but not in Pakistan and in support of his contention he referred to the laws on hijacking enacted in England and India. According to him, in the Aviation Security Act, 1982 of England and the Hijacking Act, 1982 of India the provision regarding the offence of hijacking essentially makes a requirement about the accused/hijacker to be a person 'on board'.
He was, therefore, of the view that in real sense the offence of hijacking is committed by a person on board the' plane, may be during the flight or when the plane is on the ground and not otherwise.
Additionally, he urged that even the punishment of death provided under Section 402-B, PPC is in conflict with the agreed terms reflected in the International Convention of Chicago. Learned Special Prosecutor rebutted this contention on the ground that irrespective of such bilateral agreement the law is to be interpreted in terms what has been enacted by the legislature of our country.
130. Under the settled norms of interpretation of statutes nothing can be read in a provision of law which has been expressly omitted, and provisions made in the statute of other countries cannot be pressed into service for placing a construction on a provision of law of our country whereby the scope, extent and operational field of a provision would be curtailed or enhanced/enlarged. It is significant to note that legislature has intentionally omitted to enjoin a precondition confining the commission of offence of hijacking only to a person on board the aircraft. Absence of such a provision in the law which was enforced after an International Convention further fortifies the view taken by the learned Special Prosecutor that the legislature intentionally widened the scope of the defining clause of the offence of hijacking, In the circumstances, we would affirm the view taken in Halimi's case that the offence of hijacking is completed even if the physical presence of the offender is not proved. The consequential conclusion, in essence, would be that, if the ingredients of the offence of hijacking as discussed above (vide para 123) are made out the offence would be completed even without physical presence of the hijacker on board the aircraft. The finding of Trial Court, therefore, cannot be upset merely because the appellant during the commission of offence was not on board the plane.
131. As regards the ingredients of the offence of hijacking, the learned counsel for appellant vigorously assailed the case of prosecution and the findings of Trial Court in respect of the first element on the ground that the act attributed to the appellant was not 'unlawful', In the first instance, he took exception to the conclusion drawn by the Trial Court on the basis of expression 'illegal order' while recording its finding on point No. 2 and contended that the Trial Court was oblivious of the essential requirement that the act should have been .'unlawful' and not 'illegal'.
According to learned counsel, the unlawful act is much different from an illegal act and the intention of legislature, while introducing the provision of Section 402-A, PPC, was manifest on the fact of it that an illegal act would not constitute an offence but only an 'unlawful act'. He argued that term 'lawful' has not been defined in PPC, therefore, the word 'unlawful' used in Section 402-A, PPC is to be interpreted in such a way that it is not taken to convey the meaning of an act committed illegally. Learned Special Public Prosecutor did not question the distinction between the terms 'unlawful' and 'illegal' but submitted that the evidence on record squarely made out an unlawful and on the part of appellant, therefore, the expression illegal order used by the Trial Court at one or two places would not cause any substantial difference.
132. On a realistic approach to the point raised by Mr. Azizullah Shaikh we may agree with him to the extent that the term 'unlawful' is in many respects distinct from the term 'illegal', but not always, In Wharton's Law Lexicon 14th Edition the term 'legal' has been defined as "(1) lawful: The meaning assigned to term 'lawful' in Concise Oxford Dictionary Ninth Edition is; conforming with, permitted by or recognized by law; not illegal or (of a child) illegitimate while the meaning attributed to the term 'unlawful' is: "not lawful, illegal and not permissible". The meaning assigned to the term 'legal' is: "1.
Of or based on law; falling within the province of law.
2. Appointed or required by law.
3. Permitted by law, lawful,
4. Recognized by law, as distinct from equity.
5. Theol. a. Of the Mosaic Law. b. Of salvation by works rather than by faith. Legally Adv. [French legal or Latin legalist: from lex legis 'law': cf. LEAL, LOYAL]".
133. Indeed, in literal sense the terms 'unlawful' and 'illegal' are found to be interchangeable but in strict legal sense Black's Law Dictionary Sixth Edition has drawn a comprehensive distinction between the two in that the principal distinction between these terms is that 'lawful' contemplates the substance of law while 'legal' implies the form of law. It would be useful to reproduce the relevant entry from the Black's Law Dictionary which runs as follows:- "Lawful. - Legal; warranted or authorized by the law; having the qualifications prescribed by law; not contrary to nor forbidden by the law; not illegal.
The principal distinction between terms "lawful" and "legal" is that the former contemplates the substance of law, the latter the form of law. To say of an act that it is "lawful" implies that it is authorized, sanctioned, or at any rate not forbidden, by law. To say that it is "legal" implies that it is done or performed in accordance with the forms and usages of law, or in a technical manner, In this sense "illegal" approaches the meaning of "invalid". For example, a contract or will, executed without the required formalities, might be said to be invalid or illegal, but could not be described as unlawful. Further, the word "lawful" more clearly implies and ethical content than does "legal". The latter goes no further than to denote compliance, with positive, technical, or formal rules; while the former usually imports a moral substance or ethical permissibility. A further distinction is that the word "legal" is used as the synonym of "constructive", which "lawful" is not. Thus "legal fraud" is fraud implied or inferred by law, or made out by construction. "Lawful fraud" would be a contradiction of terms. Again, "legal" is used as the antithesis of "equitable". Thus, we speak of "legal assets", "legal estate", etc., but not of "lawful assets", of "lawful estate". But there are some connections in which the two words are used as exact equivalents. Thus, a "lawful" Writ, warrant, or process is the same as c ,"legal" writ, warrant, or process."
134. The above distinction demonstrates precisely that 'an unlawful act' generally includes an illegal act but in contradistinction it, inter alia, implies on act not authorized or sanctioned by law but forbidden by law, while an illegal act is one which is done or performed not in accordance with law. (sic) We are interpreting a penal law it is, therefore, imperative that under the long accepted rules it is to be construed strictly with a view to promoting the object of statute and to give effect to its real intent so as to effectuate its intention. But since from the above discussion it appears that word 'unlawful' in some sense includes an illegal act it can safely be concluded that the Trial Court committed no substantial or material error in calling if an illegal act or implementation of an illegal order because in its ultimate object the Trial Court meant to assert that the appellant had committed the above act in an unlawful manner.
135. Whether the appellant acted 'unlawfully' while ordering diversion of the plane from its scheduled course, is the vital question to be answered in this case. Learned counsel for the appellant, however, argued that term 'unlawfully' has not been defined in PPC and for the purpose of understanding its connotation, reference may be made to Govt, of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 Supreme Court 14) and Sharaf Faridi v. Fed. Of Islamic Republic of Pakistan (PLD 1989 Karachi 404). Both these authorities, in fact, touch the question involved in the instant case tangentially, as different expressions used in the Constitution were interpreted by the Hon'ble Supreme Court and this Court mostly discussing the expression 'unlawful manner'. Nevertheless, we would agree with learned counsel for appellant that in view of the discussion in these authorities it can be deduced that an action which is not in accordance with law shall be deemed to be an act committed unlawfully.
136. We shall now turn to the main contention raised on behalf of the appellant that the diversion of the flight PK-805 so ordered by the appellant was not an unlawful act because it was within his competence within the meaning sub-section (1) of Section 6 of the Civil Aviation Ordinance, 1960.
The text of suq section (1) of Section 6 of the above Ordinance is reproduced below for ready reference-- "6. Power to made orders in times of war or emergency. - (1) In the event of war or other emergency, or in the interests of public safety or tranquility, if the Federal Government is of opinion that the issue of all or any of the following orders is expedient, it may, by notification in the official Gazette,
(a) cancel or suspend, either, absolutely or subject to such conditions as it may think fit to specify in the order, all or any of the licences or certificates issued under this Ordinance or the rules;
(b) prohibit, either absolutely or subject to such conditions as it may think fit to specify in the order, or regulate in such manner as may be specified in the order, the flight of all or any aircraft or class of aircraft over the whole or any part of Pakistan;
(c) prohibit, either absolutely or conditionally, or regulate the construction; maintenance or use of any aerodrome or airport, aircraft factory, flying-school or club or place where aircraft are manufactured, repaired or kept, or any class or description thereof; and
(d) direct that any aircraft or class or aircraft or any aerodrome or airport, aircraft factory, flying- school or club, or place where aircraft are manufactured, repaired or kept, together with any machinery, plant, material or. Things used for the operations, manufacture, repair pr maintenance of aircraft shall be delivered forthwith or within a specified time for being placed at the disposal of the Federal Government, to such authority and in such manner as it may specify in the order."
137. Learned counsel for appellant referring to Government Rules of Business submitted that these rules prescribe a procedure that in case of urgency an order may be implemented on verbal direction of the Prime Minister or a Minister and in this manner it would not be a prerequisite for issue of a notification in the official Gazette in case emergency calls for such an immediate action.
138. Then out of the four different acts that could be ordered in exercise of these powers, clause (b) appears to be relevant for the purpose of this case and the learned counsel for appellant relied on the same. According to clause (b) of sub-section (1) the Federal Government was competent to prohibit either absolutely or subject to such condition as it may deem fit to specify in the order or regulate in such a manner as may be specified in the order the flight of all or any aircraft or class of aircraft over the whole or any part of Pakistan. Learned counsel emphasized .That the appellant being Prime Minister of Pakistan was the Minister for Defence and he exercised the powers of Federal Government within the meaning of the Rules of Business. He also preferred to .The evidence of witnesses wherein it has been admitted by Aminullah Chaudhry that the appellant was the Defence Minister also. On a plain reading it would appear that the above powers were available to Federal Government in three circumstances that is to say: (1} in the event of war, (2) in case of other emergency, or (3) in the interest of public safety, or tranquility. Admittedly, the Country was not running through a state of war therefore, this factor is not attracted. Learned counsel for appellant argued that, in fact, there was grave danger of public safety as the Army was going to repel the action taken by the appellant namely Mian Muhammad Nawaz Sharif who had few moments earlier issued the notification of retirement of General Pervez Musharraf as COAS and appointment of General Ziauddin in his place. Since he was informed that certain sections of the Army were going to demonstrate their reaction and there was eminent danger of brutal combat between two factions of Army, it was thought necessary that the plane carrying General Pervez Musharraf be diverted to some destination out of Pakistan so that in the mean time the appellant who was the Prime Minister of the country and encountering a critical situation owing to struggle of power could consolidate his position and avert the imperilled in-fight between the Army. He was of the view that once a trigger was pressed on either side and a fire was made it would result in endless firing between different groups of Army that could result in intense bloodshed and even put the integrity of the country at stakes. Learned counsel was questioned that this was all a figment of imagination of the appellant otherwise despite the fact that the flight could not be diverted and it landed in Pakistan no untoward incident did happen nor there was any casualty among the different Ranks of Army and on the contrary, entire nation welcomed the subsequent action taken by General Pervez Musharraf which was validated by the Hon'ble Supreme Court vide Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) + (2000 PSC 881).
Learned counsel, in reply, insisted that it was all in the interest of saving a legitimate Government and to maintain good order by a Constitutionally elected Government headed by the appellant who was wielding a heavy mandate founded on great majority in the Parliament.
139. We have earnestly considered the respective dimensions of the above contention. The powers conferred on the Federal Government in this sub-section could only be availed if the circumstances did manifestly exist, establishing undoubtedly, that either there was severe state of emergency or the public safety/tranquility was seriously imperilled and, therefore, in the interest of public safety and tranquility the powers were inevitably to be exercised. Merely an imaginative assumption Or hypothetical consideration shall not always make it open to the Federal Government to exercise these drastic powers on the pretext emergency in the name of saving public safety or tranquility, In the instant case with regard to these factors learned counsel pointed out that few army soldiers were present at Pakistan Television Station, Islamabad and some were found outside Prime Minister House which evidenced the existence of emergency. Learned Trial Court has fully addressed itself to this issue and answered it brilliantly. Barring appearance of few soldiers at Pakistan Television Station of Islamabad, there was no evidence of taking over of any other installation. Even those few soldiers were smoothly disarmed by Brig. Javed Iqbal, It could, therefore, hardly be said that there was an action threatening the public safety or tranquility, on the part of those few soldiers who had immediately withdrawn and surrendered and were effectively disarmed without making a single fire. Likewise few army persons outside Prime Minister House were not active at that moment when the Prime Minister had ordered diversion of the plane.
At a very late stage at roundabout 7.00 p.m. The Army entered the Prime Minister House and by that time the order had already been issued to Aminullah Chaudhry which was being obeyed and implemented in letter and spirit. The action as directed by the appellant had already taken in its onset and it was in consequence of those directions that the flight was first disallowed landing at Karachi and practically diverted towards Nawabshah and on the way it was called back with a view to getting it refuelled at Karachi and again pushed away out of Pakistan.
140. Primarily, burden lay on the appellant to prove the facts that could substantiate his defence plea. Specially, in case of a plea related to existence of circumstances bringing the case within the fold of any of the general exceptions in the Pakistan Penal Code or in any law defining the offence the burden of proving existence of such circumstances, as contemplated under Article 121 of the Qanun-e-Shahadat, is upon the accused but it would be noted that in this case absolutely no defence evidence has been led by the appellant. At the most the appellant has enumerated the circumstances in his statement under Section 342, Cr.P.C, intending to show that General Pervez Musharraf was posed, to dislodge his Government because of dissention over Kargil issue and the meeting of a General from Quetta with the appellant. The relevant portions from the statement of appellant are as under:- "Your honour! This case has been framed against me at the behest of General (retired) Pervez Musharraf. He bore grudge against me on a number of counts, and had already prepared blue print. For the overthrow of my Government. I had removed General Pervez Musharraf who was COAS on October 12, 1999, at 4.30 p.m. Vide valid order which I produce as Ex.79. \ also produce the copy of appointment of General Zia-ud-Din as Ex.80. In retaliation, he, instead of accepting a lawful decision, firstly went ahead to implement his already planned coup and thereafter framed me in this case so as to divert attention from his own crimes. The witnesses who have purportedly deposed against me have all been held in illegal custody and tortured, threatened with dire consequences and intimidated and thereby forced to make false accusations against me. I was constrained to do so as I had received credible information that General (Ret.) Pervez Musharraf was planning to overthrow my legally established Government by unconstitutional means and to achieve that end he had been taking certain measures by keeping my movements under surveillance, by abruptly changing commander of III Brigade and replacing him by person of his confidence who was promoted to the rank of Major General shortly after October, 1999 as a reward for showing his loyalty and acting as per instructions of General retired Pervez Musharraf and for disobeying the newly appointed COAS General Ziauddin. He also got bugged various rooms of the Prime Minister House and the Prime Minister's office. I could not hold a meeting in the P.M. House or discuss any important or sensitive matter without raising the volume of the T.V. In order to avoid eaves-dropping. He also got General Tariq Corps Commander, Quetta retired prematurely on the suspicion that he had met me on some occasion, although, he never met me on some occasion, although, he never met me. This fact was also published in the press. Despite instructions issued by the Defence Secretary to the ISPR, no contradiction was issued. This gave me an impression, which was shared by the public and the press that an attempt had been made to undermine the authority of the elected government and create misunderstanding between the government and the armed forces. The ISPR deliberately leaked out the news to convey impression in the public and in the army that merely meeting the Prime Minister could result in removal or retirement, even of the 3 star general. I also noticed that all of a sudden the army contingent posted at P.M. House was equipped with modern gadgetry such as head phones and other latest sensitive devices. This development was pointed out by my Military Secretary to the Commander III Brigade. The circumstances giving rise to these unfortunate developments date back to the Kargil issue.
Kargal was one of the most serious crises in Pakistan's history, which posed a grave danger to the integrity of the country, It necessitated resolution with utmost urgency to which I responded promptly. Why did I have to respond promptly; General retired Pervez Musharraf knows. He was playing hide and seek on this issue not only with me but also with the armed forces.
My objection to this conduct became a source of resentment for him. What happened after Kargil, is known to the world. I saved my country from a very major crises, but unfortunately could not save myself and the system. I will not for reasons of national security elaborate any further on this issue although it is necessary that the people of Pakistan must be informed of the truth about Kargil.
Amongst other things, the then COAS General (Ret.) Pervez Musharraf had a grudge against me after I replaced It. General retired Moinuddin Hyder with Justice (Ret.) Sayed Ghous AN Shah on 17.6.1999. It. General (Retd.) Moinuddin Hyder is a personal friend of the COAS. He was therefore unhappy and annoyed on the above action of mine. The close relationship between the then COAS and General (Ret.) Pervez Musharraf and It. General (Ret.) Moinuddin Hyder is evident from the fact that the then COAS has appointed him as his Minister of interior.
Your honour! I am innocent and have been falsely implicated in this case. I had reliable secret information that General (Ret.) Pervez Musharraf had planned taking over the lawfully established government, It was suspected that a plan could be carried through on his arrival from Colombo and for this very purpose forces had already been mobilized to take control of sensitive installations and the main airports of the country.
The news of the change of the then COAS was flashed on the PTV at 5.00 p.m. And within minutes i.e. 5.20 p.m. The army took over control of the Islamabad PTV Centre. The Prime Minister House was also taken over by the army before 6.30 p.m. The Corps Commander 5 Corpse It. General Muzafar Usmani, Brig. Tariq Ali Khan, Commander area had also reached the Karachi airport by 6 o'clock on the pretext of receiving of General (Ret.) Pervez Musharraf who was returning from Colombo, although he was no longer COAS as was known to the entire armed forces, and had also associated Brigadier Naveed Nasar, Commander ASF with them obviously to take over the control of the airport. This finds support from the fact that according to It. Colonel Atiquzaman Kiyani the armed troops of 5 corps reserve not only arrived at the Jinnah terminal but also took over control of the ATC at 6.45 p.m. Thus the order for the retirement of General Pervez Musharraf and appointment of General Ziauddin was frustrated defied and made inoperative under a pre- conceived plan hatched by some senior commanders of the army, who owed personal loyalty and allegiance not to the institution, but to the retired COAS General Pervez Musharraf. The telephone exchange of the Prime Minister House was taken over at 6.40 p.m. i.e. Before the expected arrival time of PK.805 which was about 7.00 p.m. No one from the Prime Minister House could be in control of or in contact with the CAA or PIA after this point of time.
Your honour! There is no evidence on the record against me or my co-accused that we had any intention to abduct or commit Qatl-i-Amd of any person travelling by PK-805 or of hijacking the same. Rather, it has been established on the record that both pilot Sarwar Hussain and his aircraft, were under the control of General retired Pervez Musharraf, under whose instructions the pilot was ignoring the direction of the ATC and was refusing, to return and land at Karachi-thus wasted valuable time and fuel. All said and done the aircraft landed safely with still fuel to spare without any harm caused to any one on board."
141. The above versions pointedly relate to very crucial facts for which enormous material was required to substantiate each and every point of fact but admittedly such evidence is not forthcoming. Learned counsel for appellant could only rely on the evidence of prosecution witnesses, In principle, an accused person is not precluded from taking benefit of the versions given by the prosecution witnesses either in their examination-in-chief or elicited from them by way of cross-examination, but then the entire material assembled together shall precisely make out the defence plea in favour of accused and nothing can be presumed at random. Instantly, in this context, learned counsel for appellant cited two instances of presence of soldiers, one at Pakistan Television Station, Islamabad and the other at the Prime Minister House, but this aspect has already been dilated upon and considered in the foregoing paras and no adverse conclusion could be drawn which could dismantle the entire case of the prosecution. The defence plea was strenuously advanced on the concept of struggle of power between the two that is to say General Pervez Musharraf and the appellant but whether such struggle of power really existed was to be proved by the appellant by leading substantive evidence which is utterly lacking. If some of the facts, materially significant in this behalf were in the knowledge of the appellant, then too, within the contemplation of Article 122 of Qanun-e-Shahadat, it was the appellant himself to shoulder the burden of proof in respect of such facts. Therefore, in the circumstances the learned Trial Court was wholly justified in holding that the defence plea taken by the appellant in the statement of accused under Section 342, Cr.P.C, could not withstand. On the whole for the purpose of this appeal it may be concluded that circumstances did not exist warranting an action to be taken by the appellant in exercise of the emergent ?Nd extraordinary powers within the compass of sub-section (1) of Section 6 of the Civil Aviation Ordinance, 1960 or otherwise, the plea, therefore, stands unsubstantiated. Consequently, it cannot be said that the diversion of plane was lawfully ordered.
142. Reverting to the essential ingredients of the offence of hijacking as defined in Section 402-A, PPC learned counsel for appellant contended that there was neither use or show of force nor threat of any kind and even the control of aircraft was not seized. This contention was raised as the second line of argument in case of failure of the plea that the diversion was ordered lawfully. This argument is also without force. The evidence has already been discussed, the entire Civil Aviation Staff at Karachi Airport was meticulously put into action and by exercising several operational activities each and every concerned person performed his role in disallowing landing of the plane.
The Captain was crying hoarse and beseeching that the aircraft was running short of fuel and 198 souls on board were encountering the risk of their lives yet they were not allowed to land, In the airfield not only the Control Tower refused such permission verbally, but even fire tenders were placed on the runway and lights were switched off eliminating every possibility of landing to be made by the aircraft. The Control Tower, in clear terms, informed the Captain that Karachi Airport was closed for this flight. The Captain of the flight was also informed at the outset that even the alternate airport of Nawabshah was closed and he had to proceed at his own risk. This was sufficient evidence of show of force coupled with use of force and it was sheer chance that the Army interference proved effective and the aircraft was ultimately allowed to land. If the control was not seized physically then evidently it would go without saying that such control was Exercised by way of closing the scheduled placed of landing and compelling it to proceed to a destination out of Pakistan. He remaining ingredients of the offence of hijacking defined under Section 402-A, PPC were, therefore, made out as soon as the plane was diverted and an attempt was made to push it out of Pakistan. Learned Special Prosecutor was of the view-that this was only an attempt because seemingly the diversion of plane within Pakistan was not completed. The view taken by the Trial Court is also that this was a case of an attempt to hijack the plane and this attempt was foiled by timely intervention of the Army as a result of which it landed safely at Karachi Airport, In consequence of the above discussion the argument that the remaining ingredients of the offence of hijacking were not made out is flatly repelled.
143. The third line of argument canvassed by learned counsel for appellant was that assuming that the offence was committed, the appellant was entitled to claim exceptions under Sections 76, 79 and 81 of the Pakistan Penal Code. He contended, in particular that the law of necessity is ingrained in Section 81, PPC and since the appellant intended to avert a major conflict between different factions of Army which could lead to bloodshed as well as shattering integrity of the country, the diversion of plane was a small harm and as a necessity it was done in good faith, therefore, the action taken was not an offence. For the sake of convenience the above provision of PPC are reproduced below:- "76. Act done by a person bound, or by mistake of fact believing himself bound by law. Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not reason of a mistake of law in good faith believes himself to be, bound by law to do it.
79. Act done by a person justified, or by mistake of fact believing himself justified, by law. Nothing is an offence which is done by any person, who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law? In good faith, believes himself to be justified by law, in doing in.
81. Act likely to cause harm, but done without criminal intent, and to prevent other harm. Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm, to person or property."
144. An objective review of these provisions would indicate that predominantly the expression 'good faith' is a common factor in all these provisions and cardinality attatches to acts done in good faith. These exceptions would therefore help the appellant only if it is made out that the acts were done by him in good faith. For the purpose of good faith Section 52, PPC may be taken into consideration which runs as under:- "52. Good Faith. - Nothing is said to be done or believed in good faith which is done or believed without due care and attention."
145. Whether the appellant exercised due care and attention while ordering diversion of the plane was a fact to be proved by him for which no evidence was led. Even otherwise, as discussed earlier in the foregoing paras, an utmost emergent and inevitable necessity of ordering such diversion was not at all proved and it could never be made out that such an action was taken lawfully and in good faith. On the contrary the first diversion of the plane was manifestly a reckless act plunging the plane and its inmates in a state of unforeseen hazard. These exceptions in view of the above discussion are on the whole, not available to the appellant and this line of argument also fails.
146. Summing up the discussion made in foregoing paras it may be concluded that the elements of offence of hijacking defined under Section 402-A, PPC are made out and the only question to be distinctly clarified here is whether the criminal act committed by the appellant be considered as an attempt to commit hijacking or hijacking absolute, In this context the observations of Hon'ble Supreme Court made in Shahsawar's case (2000 SCMR 1331) + (2000 PSC (Crl.) 824) are that once the diversion of plane is effected the offence of hijacking takes place. In the instant case we may aptly consider the peculiar features of the case that the hijackers, like those in Shahsawar's case, were neither in the plane nor had physically seized control of the plane but such diversion as already discussed was a remotely controlled diversion while the plane was in air and the hijackers were on the ground. This diversion was not completed finally and was being further perpetrated by way of a modified course of action in allowing the plane to land at Karachi, refuel it and then compel it to proceed abroad but in the meantime the last phase of the action was intercepted by the Army and the plan totally collapsed. Thus, it remained only an act of attempt to commit the offence of hijacking The view of Trial Court as also the opinion of the learned Special Prosecutor are, therefore, accepted to the extent that the appellant committed the offence of attempt to hijack PIA Flight PK-805.
POINTS Nos. 3, 4 and 5.
147. On behalf of the appellant it was vehemently argued that in this incident no act of terrorism, say a terrorist act1 within the meaning of Section 2(h) and Section 6 of the Anti-Terrorism Act, 1997 (herein after called as 'A.T. Act') was committed by the appellant, therefore, neither the Anti- Terrorism Court had jurisdiction to try this case nor there could be justification for convicting the appellant under Section 7(ii) of the A.T. Act and sentencing him thereunder. Learned Special Prosecutor submitted that the appellant had committed scheduled offence of hijacking which was likely to strike terror and create a sense of fear and insecurity in people including inmates of the plane hijacked, therefore, terrorist act was committed, In order to appreciate these contentions it appears to be necessary to reproduce the relevant provisions. Section 6 of the A.T. Act reads:- "6. Terrorist Act. - A person is said to commit a terrorist act if he--
(a) in order to, or if the effect of his actions will be to, strike terror or create a sense of fear and insecurity in the people, or any section of the people, does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or such fire-arms or other lethal weapons as may be notified, or poisons or noxious gases or chemicals, in such a manner as to cause, or be likely to cause, the death of, or injury to, any person or persons, or damage to, or destruction of property on a large scale, or a widespread disruption of, property on a large scale, or a widespread disruption of supplies of services essential to the life of the community, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties; or
(b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike terror, or create a sense of fear and insecurity in the people, or any section of the people, or to adversely affect harmony among different sections of the people; or
(c) commits an act of gang rape, child molestation, or robbery coupled with rape as specified in the Schedule to this Act; or
(d) commits an act of which snatching or lifting damage to, or destruction of, State of private property, random firing to create panic charging bhatha or criminal trespass (illegal qabza)."
148. Clause (b) of above section, according to learned Special Prosecutor, was fully attracted to the facts and circumstances of this case. This provision, inter alia, depends upon interpretation of scheduled offence also. The offence of hijacking punishable under Section 402-B, PPC was not included in the schedule to the A.T. Act at the time of its promulgation but it was inserted at a later stage by way of an amendment introduced on 2.12.1999 that is to say after commission of the offence in the instant case. However, it was pointed out on behalf of the prosecution- that by virtue of Section 38 of the A.T. Act the offence of hijacking would constitute a terrorist act and, therefore, was to be tried under the A.T. Act. Section 38 of the A.T. Act reads as under:- "38. Punishment for terrorist act committed before this Act. - 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 would constitute a terrorist act thereunder he shall be tried under this Act but shall be liable to punishment as authorised- by law at that time the offence was committed."
149. On a plain reading of the above provision it is quite clear that if an offence committed before the commencement of the A.T. Act is of such nature that if committed after the date on which the said act came into force would constitute a 'terrorist act', the A.T. Court shall have jurisdiction to try the offence under the A.T. Act.
154. As regards the act of terrorism, it would appear from the facts of the case that the act of hijacking, in the manner committed in this case, was by itself likely to create a sense of fear and insecurity not only in the inmates of the plane but also in the people generally. The word 'likely' used in clause (b) of Section 6 of A.T. Act in essence brings the act committed in this case within the fold-of the definition of terrorist act. In Black's- Law Dictionary Vl-th Edition word 'likely' has been defined as under:- "Likely. - Probable. Horning v. Gerlach, 139 Cal. App. 470, 34 P.2d 504, 505. In all probability. Neely v.
Chicago Great Western R. Co., Mo. App., 14 S.W.2d 972, 979. Likely is word of general usage and common understanding, broadly defined as of such nature or so circumstantial as to make something probable and having better chance of existing or occurring than not. People v. Randall, Colo., 711 P.2d 6&9, 692."
155. From the above definition and also generally in literal sense the word 'likely' cannot be confined to an act which could have occurred only on its on-set that is to say at the time such act is said to be likely committed but it refers to a probable act that might happen or to be true simultaneously or consecutively with close proximity. Obviously, hijacking of the plane is always accompanied by sense of fear and insecurity but in certain cases it can be said that simultaneously it may strike terror also. In the instant case the COAS was travelling in the plane along with his staff and it goes without saying that hijacking of such plane which in other words includes 'abduction in air' of its inmates was under all probabilities to create a sense of terror generally. Ordinarily, if a Deputy Commissioner of a district or Commissioner of a Division in abducted by the criminals it would undoubtedly, the moment it is known to the public, create a state of horror and immense fear coupled with insecurity in general public. The abduction in the air of COAS would have certainly created a more horrible situation; this act on that analogy also would fall within the scope of terrorist act. Learned counsel, however, took advantage of the version given in the evidence that curtain was drawn when the COAS was in the cockpit and had a discourse with Captain Sarwat.
According to learned counsel, it was not known to other inmates of the plane if the plane had been hijacked, In the first instance, admittedly the situation was likely to strike terror that is why the curtain was drawn and then it can also be said that a sense of insecurity had been created within the cockpit. Secondly, the meaning of term 'likely' stretches the ap of the act perpetrates to the time as soon as it is known to people or a section of people during or immediately after commission of the offence. Learned counsel for appellant, however, relied on Jahangir Akhtar Awan v. State (PLD 2000 Karachi 89) wherein a Division Bench of this Court while interpreting the act of terrorism had observed as under:- "An act of terrorism is a preplanned and organized system of intimidation. Its requisites and attributes are that such act and its effects are made known to the people and widely circulated with exaggeration, It is neither hidden nor disguised, It means an act which is committed with the sole object to terrorize the people and to feel them insecure. These ingredients are not in the instant case."
152. In the cited case the accused had committed the offence secretly and thrown away the pieces of dead-body and had taken all possible steps to conceal the offence, In the instant case the accused cannot be. Said to have planned and committed this offence secretly nor was it likely to be unknown to the people as soon as the offence was completed. The curtain was drawn when the offence of abduction in air or say hijacking was still in continuation. Its horrible results were likely to strike the general public also as soon as it was known to them and this particular incident was such that it would have spread like wild fire in jungle no sooner than the last step of the offence was completed. The observations in the above authority would, therefore, n6t help the case of appellant on account of distinguishable features of the case. On the whole there can be no doubt about the conclusion drawn that the act of 'hijacking' or say 'abduction in air' of COAS in the instant case was likely to create terror coupled' with fear and insecurity in people and as such it was a terrorist act, had it been committed after commencement 6f the A.T. Act (inclusive of the amendment in the schedule).
153. As regards the questions of law embodies in Points Nos. 3 and 4 regarding the nature of offence it has already been observed that the prosecution had proved beyond doubt that the appellant committed offence of attempt to commit hijacking punishable under Section 402-B of Pakistan Penal Code.
154. Similarly, from the discussion made in the foregoing paras offence of committing terrorist act is also made out but as regards punishment for this offence it is reiterated that Section 7(ii) of the A.T. Act does not call for a separate sentence. For the sake of ready reference Section 7 is reproduced:- "7. Punishment for terrorist act. - Whoever commits a terrorist act,--
(i) referred to in paragraph (a) of Section. 6, shall:-
(a) if such act has resulted in the death of any person be punished with death; and
(b) in any such other case, be punishable with imprisonment for a term which shall not be less than seven years but may extend to life imprisonment and sh^also be liable to fine;
(ii) referred to. In paragraphs (b) and (c) of Section 6 be liable to the punishment prescribed under the relevant law.
(iii) referred to in paragraph (d) of Section 6 shall be punished with imprisonment for a term which may extend to seven years and with fine."
155. The terrorist act in the instant case falls within contemplation of Section 6(b) of the A.T. Act as.
Such it is liable to be punished as prescribed under the relevant law that is to say with the punishment prescribed for the offence punishable under Section 402-B, PPC. Indeed in view of this legal position separate sentence, awarded by the Trial Court for the offence of 'terrorist act', cannot be approved.
156. Determination of the point whether sentences awarded to appellant Muhammad Nawaz Sharif are in accordance with law (vide Point No. 5) has equivalent nexus with Appeal No. 50 of 2000 filed by the State through the Advocate General for enhancement of the sentence awarded by the' Trial Court to appellant Mian Muhammad Nawaz Sharif. Mr. Raja Qureshi, learned Advocate General Sindh and Mr. Aijaz Hussain Batalvi, learned counsel for respondent Mian Muhammad Nawaz Sharif in Acquittal Appeal No. 50 of 2000 have been heard on the point of enhancement of sentence.
CR. A.T. APPEAL NO. 50 OF 2000
157. Mr. Raja Qureshi argued that offence of hijacking, as globally recognized, is outcome of a dreadful act and once on trial a person is found guilty of such criminal act the punishment for the offender, normally, is the sentence of death. He urged that even Anti-Terrorism Act has given a mandate under Section 20 to award maximum punishment prescribed by law for the offence unless for reasons to be recorded the Court decides to award a lesser punishment. He was of the view that in the instant case the offence of hijacking was complete as, according to the observations made in Shahsawar's case (.2000 SCMR 1331) + (2000 PSC (Crl.) 824) diversion of the plane was enough, therefore, the Trial Court was not justified in awarding lesser sentence. He further pointed out that since during the course of arguments of the appeal filed by Mian Muhammad Nawaz Sharif his learned counsel had admitted ordering diversion of the plane the matter, therefore, ends there and maximum sentence of death may be awarded to him. Assailing the reasons assigned by the Trial Court in awarding lesser punishment he stated that the reason that the offence had taken at the spur of moment, therefore, the maximum punishment may not be awarded was wholly misconceived, In this context, he relied on Jetharam v. Weram (1986 SCMR 1056) wherein the accused was unprovoked yet he committed murder and the sentence of life imprisonment was altered by the Hon'ble Supreme Court to sentence of death. He further submitted that in the matter of awarding appropriate sentence the observation made in the judgment of his Lordship Zafar Hussain Mirza, J., as he then was, in Nick Kajtazi v. State (PLD 1977 Karachi 1049) provide complete guidance and help, and may be followed. He further submitted that even in Mannan's case (1991 MLD 2462) it was observed that it could not be laid down as a general rule to award lesser punishment in a case of attempt to commit hijacking because some times worst cases even in attempt for hijacking could be possible. He, therefore, maintained that merely because there was an. Attempt to commit hijacking lesser punishment was not justified.
Speaking generally he stressed that sentence of death has been recognized by comity of Nations and at least in as many as 1 27 countries the statutes still provide the sentence of death in appropriate cases.
158. Mr. Aijaz Batalvi, learned counsel for respondent Mian Muhammad Nawaz Sharif in Appeal No. 50 of 2000, at the outset placed much stress on interpretation of the term 'plea' and referring to the plea taken by Mr. Azizullah Shaikh, learned counsel for Mian Muhammad Nawaz Sharif in Appeal No. 43 of 2000 that Mian Muhammad Nawaz Sharif in capacity of Prime Minister of Pakistan had in lawful exercise of the powers vested in him under Section 6 sub-section (1) of Civil Aviation Ordinance ordered diversion of the plane and had committed no offence, submitted that the plea cannot be construed to mean admission of a fact or confession of guilt which can only be made by the accused himself. He emphasized that no such admission was made by the accused in his statement under Section 342, Cr.P.C., therefore no finding adverse to the interest of Mian Muhammad Nawaz Sharif be given by this Court on the basis of aforesaid plea. He argued that when the petition for enhancement has been filed it gives a new right to the convict to assail the judgment and claim that this is a case of acquittal. He submitted that while convicting the appellant under Section 402-B, PPC and Section 7(ii) of ATA the Trial Court had committed an illegality by recording finding of conviction for one and the same offence. He contended that this is a case of double jeopardy.
159. In the first instance, it needs to be clarified that it is not necessary to go into the question of interpretation of the term 'plea' taken at appellate stage and hold a discussion once again, as this aspect of the matter has already been dilated upon at paras 91 to 100 of this judgment, It has been held in unambiguous terms that an admission made by a counsel would not bind the accused and then if the plea is rejected the Court shall forget about it while determining the innocence or otherwise of the accused on the basis of evidence. The plea taken by Mr. Azizullah Shaikh about diversion of the plane was entertained but with afore-mentioned reservations. Indeed, in view of the above observations the plea taken by counsel on behalf of an accused/convict is neither an admission of fact nor confession of his guilt, therefore, the point having already been decided has now become of academic importance for the purpose of Appeal No. 50 of 2000. It is, as such, needless to discuss the case-law or the arguments once again since by and large we agree with the view taken by Mr. Aijaz Batalvi.
160. As regards the point of jurisdiction this point was decided by the Trial Court at the earliest stage which order was reported as Nawaz Sharif v. State (2000 MLD- 946). Instantly, the legal position is that no appeal is provided against an order passed during the trial while Section 25 of the A.T. Act contemplates an appeal only against final judgment of the A.T.A. Court. Therefore, on appeal, which, in fact, is continuation of the trial all such points including the point of illustration can be reopened. However, this point has already been dealt with in the foregoing paras and it has been concluded that the ATA Court had jurisdiction in this matter, the argument that the Trial Court was coram-non-judice or had no jurisdiction as such fails.
161. The delay in lodging of F.I.R, as also the worth of evidence placed on record have elaborately been considered while deciding the significant issues in Appeal No. 43 of 2000 and it has been held that the offence of attempt to commit hijacking has been proved beyond doubt, the- same discussion holds good and the arguments. Of Mr. Aijaz Batalvi on these points stand repelled.
162. The contention of Mr. Aijaz Batalvi that the trial on two charges; one under Section 402-B, PPC; and the other under Section 7(ii) of A.T. Act was not warranted in law also does not carry weight, In this regard the observations made in Niaz AH v. State (PLD 1961 (W.P.) Lahore 269) by his Lordship Sajjad Ahmed, J., as he then was, may be referred to which are reproduced below:- "Section 26 of the General Clauses Act provides a bar to double punishment for the same offence, although a person is liable to be prosecuted and punished for an act of omission constituting an offence and falling under two or more enactments, In other words there is no bar to a trial or a conviction for the same act which is an offence . Under different enactments, but there is a bar to a punishment being awarded twice for the same offence. In such a case it would be quite in order to record the convictions separately and award concurrent sentences if they are of imprisonment, but in no case can an accused person be made to suffer any extra punishment by way of duplication for the same offence, In the present case, the punishment is illegal inasmuch as it imposes a fine of Rs. 50/- under each of the two enactments making a total of Rs. 100/-. The extra fine of Rs. 50/- for the offence under one or other of the counts is therefore not legal involving, as it does, a duplication of punishment for the same offence."
163. The argument that Mian Muhammad Nawaz Sharif could not be tried for the offence on two different charges, therefore, cannot be accepted as each enactment defines the offence in its own terms and the prosecution on each charge was not barred.
164. As regards the sentence of death the learned Advocate General placed reliance on the Supreme Court judgment Jetharam v. Weram (1986 SCMR 1056) where offence was committed on the spur of the moment yet the sentence of life imprisonment was enhanced to sentence of. Death.
No doubt, the Trial Court has taken into consideration the fact that diversion of the plane was ordered at the spur of moment but we do not take that observation of the Trial Court as a ground for awarding lesser sentence. Indeed, the predominantly significant factor considered in this case is that the attempt was foiled while the offence of hijacking had not yet been completed in the manner it was desired by the appellant Mian Muhammad Nawaz Sharif. On this score alone the sentence of life imprisonment appears to be sufficient to meet the ends of justice.
165. With regard to sentence awarded for the offence of terrorist act under Section 7(ii) of the A.T.
Act view taken by us is based on the Constitutional provision of Article 12 which provides that no law shall authorize the punishment of. a person for an act or omission that was not punishable by law at the time of act or omission. Sections 402-A, 402-B and 402-C of PPC were added to Schedule of the A.T. Act, 1997 on 2.12.1999 as such on 12.10.1999 when this incident took place these sections did not exist in the Schedule of Anti-Terrorism Act. Consequently, within the meaning of clause (b) of Section 6 of A.T. Act these offences were not scheduled offences on the day on which the incident in the instant case took place but they became triable by virtue of Section 38 of the A.T.
Act, which provides in express terms that a person so tried shall be liable to punishment as authorized by law at the time the offence was committed, In this view of the matter, the punishment would only be for the offence of hijacking as provided on the day on which the offence took place, In a way the sentence can be awarded only for hijacking. We are of the firm -view that punishment for the offence of hijacking cannot be awarded, the punishment under Section 7(ii) of the A.T. Act, therefore, is not approved and, as such, set aside.
166. As regards the sentence of forfeiture of property it is significant to note that word 'property' alone has been used in Section 402-B, PPC which lays down the punishment for hijacking. It is not preceded by the word 'entire' nor is it otherwise enjoined any express term that whole property of the offender be forfeited, we are, therefore, of the considered view that the intention of law was not to forfeit the entire property, and the forfeiture, as such, shall not be stretched to the total property of an accused person. We would, consequently, modify the sentence of forfeiture and direct that the property of appellant Mian Muhammad Nawaz Sharif be forfeited to the extent of Rs. 50.00 Crores.
167. The Trial Court has also ordered compensation under Section 544-A, Cr.P.C, to all the passengers of the flight PK-805. An amount of Rs. 20,00,000/- has been ordered to be paid to all of them which should be distributed among them in equal shares. The relevant provision contained in sub-section (1) of Section 544- A, Cr.P.C, is reproduced below:- "544-A. Compensation to the heirs of the person killed, etc. -- (1) Whenever a person is convicted of* an offence in the commission whereof the death of, or hurt, injury, or mental anguish or psychological damage to, any person is caused, or damage to or loss or destruction of any property is caused, the Court shall when convicting such person, unless for reasons to be recorded in writing it otherwise directs, order the person convicted to pay to the heirs .Of the person whose death has been caused, or to the person hurt or injured, or to the person to whom mental anguish or psychological damage has been caused, or to the owner of the ' property damaged, lost or destroyed, as the case may be, such compensation as the Court may determine having regard to the circumstances of the case.
(2) The compensation payable under sub-section (1) shall be recoverable as [an arrear of land revenue] and the Court may further order that, in default of payment [or of recovery as aforesaid] the person ordered to pay such compensation shall suffer imprisonment for a period not exceeding six months, or if it be a Court of the Magistrate of the third class, for a period not exceeding thirty days.
(3) The compensation payable under sub-section (1) shall be in addition to any sentence which the Court may impose for the offence of which the person directed to pay compensation has been convicted.
(4) The provisions of sub-sections (2B), (2C), (3) and (4) of Section 250, shall, as far as may be, apply to payment of compensation under this section.
(5) An order under this section may also be made by an Appellate Court or by a Court when exercising its powers of revisions."
168. The above provision shows that when hurt, injury or mental anguish or psychological damage to any person is caused the compensation shall be granted. However, it is needless to say that this is not a case where any death had occurred, In the instant case even no hurt or injury was caused.
There is also no evidence of psychological damage to the passengers. As far the mental anguish is concerned none of the passengers was examined. Out of the passengers only there is the deposition of Nadeem Tariq, Secretary to COAS but he is also silent on this point. The term 'anguish' used in this section essentially refers, in literal sense, to extreme pain, distress of mind, severe misery or mental suffering but no evidence has been placed on record through the passengers on this point. The essential requirements of the section are, therefore, lacking as such compensation in favour of the passengers of the aircraft was not justifiable. The order of compensation, passed by Trial Court, therefore, cannot be maintained and stands set-aside.
169. In consequence of the above discussion the Appeal No. 50 of 2000 filed by the State through Advocate General Sindh for enhancement of sentence stands dismissed and in Appeal No. 43 of 2O0O the conviction for offence punishable under Section 402-B, PPC read with Section 7(ii) of the A.T. Act is maintained but the sentences stand modified as already mentioned in the short order reproduced in para 4 of this judgment.
SPL. CR. A.T. APPEAL No. 46 OF 2000
170. Criminal Acquittal Appeal No. 46 of 2000 has been filed under sub-section (4) of Section 25 of the Anti-Terrorism Act, 1997 (herein referred to as A.T. Act) calling in question the acquittal of Mian Muhammad Shahbaz Sharif; Syed Ghous Ali Shah, Shahid Khaqan Abbasi, Rana Maqbool Ahmed, Saifur Rahman and Saeed Mehdi (herein referred to as respondents) with a prayer that the judgment dated 6.4.2000 passed by Anti- Terrorism Court in respect of the afore-mentioned respondents be reversed and after recording a finding of guilt sentence be passed in terms of their conviction in accordance with the provisions of A.T. Act - particularly Section 20 of the said Act.
171. Initially, learned counsel for respondents raised a preliminary objection questioning the maintainability of Acquittal Appeal on the ground that a direction in terms of sub-section (4) of Section 25 of the A.T. Act has not been issued in strict legal sense, the acquittal appeal is, therefore, liable to be dismissed on that score alone. Learned counsel for both the parties were heard on this point and by order dated 25.5.2000 other objection was overruled.
172. On conclusion of the arguments in other two appeals Mr. Zahoorul Haq, learned Special Prosecutor argued this acquittal appeal on behalf of the State and M/s. Khawaja Haris, Aftab Farrukh, Manzoor Ahmed Malik, Azizullah Shaikh and Mir Muhammad Shaikh, Advocates addressed the Court on behalf of Mian Muhammad Shahbaz Sharif, respondent No. 1; Syed Ghous Ali Shah, respondent No. 2; Rana Maqbool Ahmed, respondent No. 4; Saifur Rahman, respondent No. 5; and Saeed Mehdi, respondent No. 6 respectively, while Shahid Khaqan Abbasi, respondent No. 3 argued his case himself.
173. Barrister Zahoorul Haque arguing the case of appellant, assailed the finding of acquittal of respondents from different angles. His contentions briefly outlined, were: (1) that the hijacking of the aircraft viz. Flight No. PK-805 at the instance of Mian Muhammad Nawaz Sharif was proved beyond doubt and equally there was ample evidence proving the incriminating act of criminal conspiracy on the part of respondents and making them liable for punishment on the ground of such criminal conspiracy but the evidence was thrown over-board by the Trial Court for no valid reasons; (2) that the criminal conspiracy was the nerve centre of the entire incident but the Trial Court failed to appreciate that for making out the act of criminal conspiracy union of minds of co-conspirator was enough to form actus reus and there was adequate evidence establishing the union of minds but it was discarded erroneously; (3) that as a pre-eminent requirement of 'union of minds' the agreement among the conspirators was enough and evidence in that direction was required to establish transmission of thoughts and concurrence and not actual execution of the plan, and even the utterances were sufficient to prove the conspiracy within the contemplation of Section 402-B, PPC and such evidence had come on record, but the same was rejected for no just reason; and (4) that there was ample law on the subject that criminal conspiracy could be proved by circumstantial evidence if direct evidence was short and the learned Trial Court erred in not following the law and ignoring the important pieces of evidence, available on record in this context.
In support of his contentions he relied on Zulfiqar AH Bhutto v. State (PLD 1979 SC 53), State v. Bashir Ahmed (PLD 1963 Karachi 242), Ghulam Muhammad v. Muhammad Sharif (PLD 1969 SC 398), Kehar Singh v. State (1989 PSC 533), Ch. Muhammad Yaqoob v. State (1992 SCMR 1983) and State v.
Zulfiqar AH Bhutto (PLD 1978 Lahore 523) and also took us through (sic).
174. Mr. Khawaja Haris Ahmed, learned counsel for Mian Muhammad Shahbaz Sharif, respondent No. 1 supported the order of acquittal and argued that: (1) the prosecution has based the case on utterances of Saeed Mehdi and Saifur Rahman but their evidence is not sufficient to make out an act of conspiracy, or directly connect Mian Muhammad Shahbaz Sharif with the offence of hijacking; (2) within the meaning of Article 23 of Qanun-e- Shahadat independent evidence is required for each portion of this article and additionally there should be a piece of evidence to show that Mian Muhammad Shahbaz Sharif was party to conspiracy which aspect is conspicuously lacking; (3) for the purpose of criminal conspiracy, even otherwise, first there should be evidence of reasonable belief of conspiracy directly and not through third person and, prima facie, evidence should necessarily exist of the antecedent conspiracy but that factor is clearly missing; (4) even if grounds exist to suggest conspiracy such grounds are not proof and before accepting them, every lurking doubt should invariably be repelled and absolute certainty/proof be called-for to establish an act of criminal conspiracy and in this regard the Trial Court has proceeded in right direction; (5) yet, if conspiracy is proved but complicity on the part, of a particular person is not proved he may not be convicted and in this connection positive evidence to indicate complicity on the part of Mian Muhammad Shahbaz Sharif is lacking; (6) there is absolutely no evidence to demonstrate in clear terms that Mian Muhammad Nawaz Sharif and Mian Muhammad Shahbaz Sharif were found in one room at the same time so that the conspiracy could, at least, be presumed, otherwise the prosecution failed to bring independent evidence on record to establish the role of Mian Muhammad Shahbaz Sharif in the alleged conspiracy in connection with hijacking of the plane; and (7) Lastly, plenty of improvements in the evidence of witnesses reduced the evidentiary value of their testimonies to nil. He placed reliance on Tribhuvan Nath v. State (AIR 1973 SC 450), Asghar Hayat v. State (1985 P.Cr.L.J. 2638), Chutto v. State (PLD 1958 (W.P.) Karachi 18), Khurshid Ahmed v. Kabool Ahmed (PLD 1964 (W.P.) Karachi 356) and Ba/mokand v. Emperor (AIR 1915 Lahore 16) in support of his contentions.
175. Mr. Aftab Farrukh, learned counsel for Syed Ghous Ali Shah, respondent No. 2 formulated his arguments in support of the view taken by Trial Court and inferences drawn by it and submitted that before interfering with such finding the Appellate Court should essentially bear in mind the principles settled by the superior Courts; (a) it may be seen whether the judgment can be called artificial or perverse; (b) whether within narrow scope of questioning the acquittal, the judgment of Trial Court is wholly illegal and miscarriage of justice has occasioned; (c) if the testimonies were so untrustworthy, dishonest and imprudent, that balance of probabilities and inferences were rightly drawn in favour of accused; (d) when a case is based on circumstantial evidence one circumstance is enough to create doubt; (e) a piece of tainted evidence cannot corroborate another tainted evidence as the emphasis is always on quality of evidence; (f) a witness, who is produced in custody, is not to be readily believed; and (g) any presumption of law in Qanun-e- Shahadat be drawn in favour of accused. Lastly, he submitted that on a prudent application of afore-mentioned principles, it would be' seen that the evidence on record did not furnish incriminating substance to involve respondent Syed Ghous Ali Shah, and more particularly the evidence is, invariably, based on telephone talk by Syed Ghous Ali Shah but there is no material therein to lead to an adverse inference against him. He sought support from case-law Sikandar v.
State (PLD 1963 SC 17), Muhammad Yasir) v. State (1973 P.Cr.L.J. 448), Emperor v. Manu Chik (AIR 1938 Patna 290) and B.D. Sayford v. Mansoor Ahmed (PLD 1964 Karachi 69).
176. Mr. Manzoor Ahmed Malik, learned counsel for Rana Maqbool, respondent No. 4 supported the finding of acquittal rendered by the Trial Court and resisted the appeal on the grounds that: (1) the order of acquittal could be interfered with only in exceptional circumstances when conclusion drawn by Trial Court is such that no reasonable person would conceivably reach such conclusion, that too, with a view only to avoiding gross miscarriage of justice and for no other reason; (2) the mere fact that a view other than one taken by the Trial Court could legitimately be arrived at by Appellate Court on reappraisal of evidence shall not constitute a vital ' and sufficient ground for upsetting the acquittal; (3) the Appellate Court should always be reluctant to disturb the finding Of acquittal unless from evidence on record there is absolute assurance of the guilt of accused; (4)
Appellate Court shall not impose its own finding of guilt unless it is clearly shown on record that the finding by Trial Court was wholly artificial, shocking, ridiculous, palpably wrong, manifestly erroneous, speculative, based on no evidence or misinterpretation of evidence, perverse, illegal, foolish, unreasonable or based on extraneous consideration; (5) the High Court should give proper weight to the view taken by the Trial Court as to credibility of the witnesses; and (6) before the Appellate Court the accused stands with double presumption of innocence in his favour, firstly, because every accused person is innocent until proved otherwise and secondly, the accused has succeeded in securing finding -of acquittal from Court of competent jurisdiction. Focussing his arguments around the above legal points, he referred to relevant evidence and concluded that the evidence against respondent Rana Maqbool was absolutely lacking to prove his guilt as a coconspirator or active participant in the offence of hijacking and the evidence was rightly rejected by the Trial Court. He placed reliance on State v. Syed Mustafa Abbas (1986 P.Cr.L.J. 1283), Yar Muhammad v. State (1992 SCMR 96), Niaz v. State (PLD 1960 SC (Pak) 387), Zulfiqar AH Bhutto v.
State (PLD 1979 S.C. 53) and Kehar Singh v. State (1989 PSC 533).
177. Mr. Azizullah Shaikh, learned counsel for Saifur Rahman, respondent No. 5 argued that (1) the appellant has said nothing about offence of criminal conspiracy punishable under Section 120-B, PPC but attempt has been made to create a liability within the meaning of Section 109, PPC whereas Sections 109 and/or 114, PPC are manifestly inapplicable since Section 402-B, PPC itself contains such ingredients, and at the most the prosecution could think of creating a liability within the meaning of Section 107, PPC; (2) for abetment by conspiracy under Section 107, PPC mere agreement is not enough and an illegal act or omission should take place, which factor is lacking;
(3) there is a clear distinction between Section 107, PPC and 120-A, PPC but the evidence is wholly insufficient to establish the essential ingredients of conspiracy within the scope of Section 120-A, PPC or 402-B, PPC; (4) no steward or air hostess was examined to place on record positive evidence of active participation of co-conspirators; and (5) telephone bills have also not been placed on record to indicate at what time and what calls were made between particular persons.
Lastly, adopting the arguments of other learned counsel he submitted that the reasoning given by Trial Court in acquitting the respondents may be* approved. He also referred to the principles laid down in Pramatha Nath Talukdar v. Saroj Ranjan (AIR 1962 S.C. 876) and Kehar Singh v. State (AIR 1988 S.C. 1883).
178. Mr. Mir Muhammad Shaikh, learned counsel for respondent Muhammad Saeed Mehdi, respondent No. 6 agitating the points in support of the finding of acquittal, rendered by the Trial Court contended that: (1) the F.I.R, is always foundation of criminal case but the F.I.R; in the instant case has been lodged after inquiries, groundwork, scrutiny and spade work, therefore, it is not F.I.R, in the eyes of law, (2) the F.I.R, was lodged after 28 days of the occurrence yet the name of Muhammad Saeed Mehdi finds no mention therein; (3) the investigation was marred by delay in recording the statements under Section 161, Cr.P.C, which indeed diminished the veracity of witnesses to zero; (4) the story and motive in F.I.R, is altogether different from the evidence placed on record; (5) on the whole, there is not an iota of evidence against Muhammad Saeed Mehdi to join him in the criminal conspiracy within the purview of Section 402-B, PPC; (6) the charge is much different from F.I.R, and, in particular, there is no charge under Section 120-B, PPC; and (7) the evidence of star witness Asif is full of improvements, omissions, and exaggerations, and his evidence as also the evidence of other important witnesses be rejected straightaway. He cited Muhammad Hussain v. State (PLD 1995 Lahore 229), Abdul Khaliq v. State (1996 SCMR 1553), Muhammad Khan v. Mau/a Bakhsh (1998 SCMR 570) and Muhammad Shafique v. Akhtar Shah (1997 SCMR 1964) in support of the points raised by him.
179. Shahid Khaqan Abbasi, respondent No. 3 arguing his case, submitted that: (1) no criminal act is attributed to him; (2) no evidence of implementation of the instructions of Prime Minister about diversion of the plane has come on record against him;'(3) the evidence of concerned witnesses is not only inconsistent but discrepant and contradictory as regards his role; (4) although it is alleged that the fuel position was conveyed by him but authentic evidence has come on record that fuel endurance position was, for the first time, known at 6.47 p.m.^therefore, it was not possible for him to know about fuel endurance and convey the same to Prime Minister or to PW Zahid at 6.15 p.m.;
(4) Brig. J Syed is totally silent about any allegation against him; (5) the witnesses maintained that the telephones were being attended by Brig. Javed and line was connected with him but, as stated earlier, Brig. Javed did not ascribe such role to him to connect him with the incident in any manner;
(6) the best evidence was available in the form of telephone bills but that has been withheld otherwise the probabilities would have been manifestly on his side; and (7) that even the other important witnesses such as Aminullah and Zahid have contradicted themselves and the entire story is unbelievable. He adopted the arguments advanced by learned counsel for remaining respondents and further placed complete reliance on the reasoning given by Trial Court while recording finding of acquittal.
180. Analyzed with circumspection it would be conceived that the main grounds on which Barrister Zahoorul Haque, in his elaborate arguments, projected the case of appellant/State,- in essence, center around three points: (1) scope of acquittal appeal under Section 417, Cr.P.C, and the powers of the Appellate Court; (2) standard of appraisal of evidence recorded at the trial; and (3) review of concept of conspiracy/criminal conspiracy and application of settled law to the instant case in the light of material on record. Mr, Zahoorul Haque, with full vehemence, brought forth his point of view as far the legal aspects were concerned and also read the evidence on record pinpointing the essential portions which, according to him, were not appreciated properly by the Trial Court and were, otherwise, sufficient to entail finding of conviction, learned counsel for respondents repulsed equally and through the case-law as also by reading the evidence of material witnesses maintained that within the spectrum of settled law with respect to acquittal appeal the appraisal of evidence by Trial Court and the conclusion reached by it fell within the standard norms of appreciation of evidence and drawing inferences and the respondents were rightly acquitted.
181. Essentially, in the circumstances, the scope of acquittal appeal and the standard of appreciation of evidence being two proximate issues require to be discussed first.
182. Dilating upon the scope of Acquittal Appeal Mr. Zahoorul Haque relied on Bashir's case (PLD 1963 (West Pakistan) Karachi 242) to argue that the Appellate Court or say High Court, in an acquittal appeal, possessed unlimited power to examine the evidence on which finding of fact is based. A Division Bench of this Court, in the cited authority, had relied on the celebrated Privy Council judgment in Sheo Swarup v. King Emperor (AIR 1934 PC 227) and Anwar v. Crown (PLD 1955 FC 185). True that the Privy Council observed that no limitation should be placed upon the power of High Court in deciding an acquittal appeal unless it be found expressly stated in the Code but^simultaneously, the golden rule of caution that imbues every statute dealing with adjudication on point of fact, was given superseding effect and it was held that before reaching its conclusion on facts the High Court should and will always give proper weight and consideration to such matters as:--
(1) the views of the trial Judge as -to the credibility of the witnesses;
(2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial;
(3) the right of the accused to the benefit of any doubt; and
(4) the slowness of an Appellate Court in disturbing a finding of fact arrived at by the Judge who had the advantage of seeing the witnesses.
183. We find no reason to be not in accord with the above principle. The Federal Court in Anwar's case (PLD 1955 FC 18) also, while speaking of unlimited powers of High Court placed a rider that the High Court will, inter alia, pay due regard to the opinion formed by the acquitting Judge about the witnesses who gave evidence before him and the corresponding disadvantage from which the High Court itself suffers in not having them before it.
184. In Ghulam Muhammad's case (PLD 1969 S.C. 398), cited by learned counsel for appellant, the view intending to place limitation on the powers under Section 417, Cr.P.C, was repelled, but again more or less same principles were laid down regarding the scope of acquittal appeal in following terms:- "............... The State has under Section 417 of the Code of Criminal Procedure the right to appeal from an order c; acquittal both on facts and law, It is, therefore, not permissible to read into Section 417 the words of limitation employed by the learned counsel for Judges. A practice has, however, grown that a Court of appeal will not interfere with an order of acquittal if the evidence is open to the view formed by the Trial Court, In other words the order of acquittal will not be set aside on the grounds of appreciation of evidence and artificial nature or the findings recorded by him are based on no evidence or misinterpretation of evidence or the conclusions drawn by. Him about the guilt or innocence of the accused person are perverse or foolish resulting in miscarriage of justice the Court of appeal will in such a case re-examine the evidence and draw its own conclusions from it."
185. Nevertheless, subsequently the Hon'ble Supreme Court in the case of Ghulam Sikandar v.
Mamraz Khan (PLD 1985 SC 11) elaborately examined the scope of acquittal appeal and appraisal of evidence and after considering five Supreme Court judgments cited by learned counsel for appellant and ten judgments of the same Court cited by learned counsel for acquitted accused laid down exhaustive guiding principles in following terms:- "It is not necessary to state and comment upon the facts and circumstances of each of the afore- noted cases nor it is necessary to make an attempt to deduce any one single rule from these judgments which would help resolve the controversy involved in this case, without proper analysis of the material on record.
However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualised from the cited and other cases-law on the question of setting aside an acquittal by this Court. They are as follows:-
(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused.
This approach' is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the ' accused. This difference . Of approach is mainly conditioned by the fact that the acquittal carries wit it the two well-accepted presumptions: One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence.
(2) The acquitted will not carry the second presumption and will also thus loose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegality.
(3) In either case the well-known principles of re- appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with acquittal merely because on re-appraisal of the evidence it copies to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other, purpose. The important test visualised, in these cases, I this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shopping and ridiculous."
186. The rule laid down as above was consistently followed in the latter judgments State v.
Muhammad Naseer (1993 SCMR 1822), Muhammad Asghar v. State (PLD 1994 SC 301j and Allah Bux v. Ghulam Rasool (1999 SCMR 223). It was, however observed in Allah Bux's case that in exceptional circumstances showing overwhelming proof against any of the acquitted accused, disclosing glaring misreading and indicating grave miscarriage of justice or showing perfunctory, wholly artificial or shocking conclusions which no reasonable person would perceive; the judgment can legitimately be interfered with.
187. Indeed, the principles enunciated in these authorities adequately cover the point under discussion and it is needless to discuss the authorities cited by learned counsel for respondents, on the same point, nevertheless, it needs to be emphasized that although the above judgments relate to power of Hon'ble Supreme Court with regard to acquittal appeals but, by and large the same principles are .Applicable to adjudication of a matter by High Court in exercise of the powers under Section 417, .Cr.P.C, or Section 25(4) read with Section 32 of the Anti-Terrorism Act, 1997 in dealing with an Acquittal appeal.
188. As regards the second limb of contention of Mr. Zahoorul Haque, about the mode of appraisal of evidence, learned counsel for respondents with a view to assessing the testimonies within the above parameters, outlined the significant rules of evidence that may be taken into consideration specially with respect to drawbacks and infirmities. Mr. Mir Muhammad Shaikh, learned counsel for respondent Muhammad Saeed Mehdi urged that the belated statements of PWs recorded under Section 161, Cr.P.C, may be viewed with suspicion. He sought support from the authorities Muhammad Khan v. Maula Bakhsh (1998 SCMR 570), Abdul Khaliq v. State (1996 SCMR 1553) and Muhammad Hussain v1.! State (PLD 1 995 Lahore 229) wherein it was inter alia held that as a result of belated statement recorded under Section 161, Cr.P.C, the credibility of such witnesses would be looked with serious suspicion if the prosecution fails to offer any plausible explanation therefor. We agree with Mr. Shaikh that while applying these principles, the Court would essentially look forward to find out if there is plausible explanation for the delay in recording of the statement under Section 161, Cr.P.C, but in doing so no particular yardstick can be applied for accepting the explanation, if any, for, each case has its own facts and circumstances in the light of which the mind of Court is to be satisfied. We would also agree with Mr. Aftab Farrukh, learned counsel for resp Ghous AN Shah that when there are two explanation one favouring the accused is to be accepted and beri is always to be extended to accused.
193. Yet we concede that, as argued by learned Special Public Prosecutor in the light of rule laid down ir) Muhammad Yaqoob's case (1992 SCMR 1983) the Court has to sift chaff from grain and merely because of certain contradictions, improvements or other factors adversely affecting credibility of a witness the testimonies shall not be rejected outright but shall be read as a whole and the evidence may be relied upon if independent corroboration through reliable evidence or circumstances is furnished beyond doubt.
194. We are also in accord with the view taken in Muhammad Yasin's case (1993 P.Cr.L.J. 448) that mere fact of a prosecution witness being not inimical towards the accused does not make him a witness of truth, his evidence is to be tested under the normal rules of appreciation of evidence.
195. We also find no reason to differ with the view taken by a Division Bench of this Court in Khurshid Ahmed's case (PLD 1 64 (W.P.) Karachi 356) that within the purview of Article 71 of Qanun-e- Shahadat (Section 60 of Evidence Act) if a witness deposes against an accused person on the strength of having heard so from two other persons (witnesses) that the said accused was responsible for a criminal act then if those two persons (witnesses) are not questioned whether they had, at all, met the first witness or even spoken to him, the evidence of such witness would be inadmissible. Chutto's case (PLD 1958 (yV. P.) Karachi 18) lays down almost the same rule.
196. The rule laid down in Yar Muhammad's case (1992 SCMR 96) which refers to PLD 1960 S.C. 387 and RLD 1962 S.C. 269 cited by Mr. Manzoor Ahmed Malik, learned counsel for respondent Rana Maqbool Ahmed distinctly provides a guideline for assessing the exaggerated statements of witnesses, It has been held that if there was exaggeration in the statement of witnesses and their veracity was also doubtful, then for safe administration of criminal justice it would be proper to insist on independent corroborative evidence. However, we have not been able to persuade ourselves to approve the view that if a witness is taken by police to a Magistrate for recording his statement under Section 164, Cr.P.C, or he is in custody his evidence be looked with suspicion, In fact, it is the substance of the evidence given at the trial that is to be considered, and his credibility is to be assessed after putting him to cross-examination and taking into consideration all the ambient circumstances of the case.
197. As regards the contention of Mr. Mir Muhammad Shaikh relating to delay in lodging of F.I.R., the relevant legal aspects have been thoroughly discussed at paras Nos. 105 to 109 of this judgment, and it would be out of proportion to repeat the same, It would, however, suffice to reiterate that liability of an accused person is to be decided on the basis of entire evidence on record.
198. Keeping in view the settled principles of appraisal of evidence, we had, at the time of arguments, given full latitude to learned Special Public Prosecutor as also to learned counsel for respondents and extensively reviewed the evidence recorded at the trial and conclusions/inferences drawn by the Trial Court. The testimonies would be discussed herein below but since the role of respondents as per charge is founded on incriminating acts of conspiracy/criminal conspiracy and abetment within the meaning of Section 402-B, 109 and 114, PPC it is essential to discuss the legal aspects of conspiracy/abetment. Since Barrister Zahoorul Haque, learned Special Public Prosecutor invariably referred to Article 23 of Qanun-e-Shahadat for the purpose of appraisal of evidence, the same is also to be taken into consideration while evaluating the evidence in the above context. Besides, looking to the point agitated by Mr. Azizullah Shaikh the provision of Section 107, PPC (secondly) for the purpose of abetment by conspiracy is also to be kept in mind at the same time. Section 402-B, PPC is once again reproduced herein below for the sake of ready reference:- "402-B. Punishment of 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."
199. Punishment for hijacking, as would be seen on a bare perusal of the above, can be given to a person who, inter alia, conspires or abets the commission of hijacking. The word 'conspires' has not been defined in this section and ordinarily it could be taken in its literal sense since it relates to a criminal act. Reference can be made for aid and assistance to other provisions of law that provide essential material for interpretation of term 'conspiracy' or 'criminal conspiracy' such as Section 120-A, PPC and Article 23 of Qanun-e-Shahadat, which are reproduced herein below:- Section 120-A. PPC.
"120-A. Definition of criminal conspiracy, - When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties- to such agreement in pursuance thereof."
Article 23 of Qanun-e-Shahadat.
"23. Things said or done by conspirator in reference to common design. - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong anything said, done or written by any one of such person in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
200. Likewise, the provisions of Section 107, PPC (secondly) are equally beneficial in understanding the incriminating act of abetment by conspiracy. The text whereof runs as under:- "107. Abetment of a thing. - A person abets the doing of a thing, who-- First. ........................................................
Secondly. Engages with one or more other persons or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly. ................................................................ "
201. Learned Special Public Prosecutor, on the point of conspiracy, mainly relied on the dictum of Hon'ble Supreme Court in Zulfiqar AH Bhutto's case (PLD 1979 S.C. 53), Indra Gandhi's case reported as 1989 PSC 533 and Kehar Singh's case (AIR 1998 SC 1883). On the other hand, Mr. Khawaja Haris placed reliance on Zulfiqar AH Bhutto's case (supra), Balmokand's case (AIR 1915 Lahore 16) and Fazal Elahi v. State (1985 P.Cr.L.J.. 268). Mr. Azizullah Shaikh also relied on Indra Gandhi's case (supra) and Pramatha Nath Talukdar's case (AIR 1962 SC 876).
202. The scope of conspiracy, nature of a conspiratorial agreement and the mode of proof of conspiracy came under discussion in Zulfiqar AH Bhutto's case (PLD 1979 S.C. 53) and after exhaustive examination of relevant provisions of Pakistan Penal Code and Evidence Act (now Qanun-e-Shahadat), in the light of case-law and treatises of jurists, comprehensive views were taken on different aspects of this subject. The relevant observations regarding the scope of criminal conspiracy, are as under:- "The law of criminal conspiracy in this country is by and large founded on the concept of conspiracy as. It had developed under the Common Law of England over the centuries, In the well- known case of the House of Lords, viz. Denis Dowling Mulcahy v. Reg (1); Willes, J. In delivering his opinion pointed out that:- "A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of .Being enforced, if lawful, punishable if for a criminal object or for the use of criminal means. And so far, as proof goes, conspiracy, as Gross, J. Said in Rex v. Birssac (21 is generally matter of inference deducted from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them."
The Lord Chancellor and the other Law Lords entirely concurred with these observations. However, in this connection Lord Canworth further observed:- "It is a mistake to say that conspiracy rests in intention only, It cannot exist without the consent of two or more persons, and their agreement is an act in advancement of the intention which each of them has conceived in his mind. The argument confounds the secret arrangement of the conspirators amongst themselves with the secret intention which each must have previously had in his own mind, and which did not issue in act until it displayed itself by mutual consultation and agreement."
203. The provisions of Section 120-A, PPC came under discussion while examining the scope of criminal conspiracy and following observations were recorded at paras 733 and 734 of the said judgment:- "733. This section makes criminal conspiracy a substantive offence on the statue book like every other . Offence in the Penal Code. By its very definition criminal conspiracy consists in the mere agreement between two or more persons to do ah illegal act, or an act which is not illegal by illegal means. However, as pointed out in Mulcahy's case a conspiracy consists not merely in the intention of two or more, but. In the agreement of two or more to do an illegal act, or to do act by illegal means. -As long as the design rests in intention only it is not indictable. The proviso to this section, however, expressly lays down that no agreement, except an agreement to commit an offence, shall amount to a . Criminal conspiracy unless some overt act besides the agreement is done in pursuance thereof.
734. This in essence is the whole gist of the offence of conspiracy and its characteristics. At the core, in a conspiracy, lies some sort of agreement, be it express, implied or implicit, or in any other form, between the parties thereto to do an illegal act or to do a legal act by unlawful means "
204. Mr. Zahoorul Haque emphasized that assistance may be sought from Corpus Juris Secundum, the relevant portions wherefrom have been quoted in para 373 of the cited judgment, It may be added that after seeking assistance from Corpur Juis Secundum and referring to the views of different jurists the Hon'ble Supreme Court in the said judgment summed up the discussion and formulated the correct position in following terms:- "742. It will be seen that the correct position appears to be that the term "agreement", as used in relation to the offence of conspiracy is not to be construed in any technical sense, as understood in the law of contract; nor is there any requirement that it should be expressed in any formal manner, or words; all that is required is that the minds of the parties meet understandingly so as to bring about an intelligent and deliberate agreement to do the acts and to commit the offence charged.
There should, indeed, be a union of two or more minds in a thing done or to be done, or a mutual assent to do a thing. To borrow the words of Black's Law dictionary, agreement also connotes consent of two or more persons to contract a mutual obligation, and the word consent means a concurrence of wills, voluntarily yielding the will to the proposition of another; or acquiescence or compliance therewith. The agreement can be express or implied, or in part express and in part implied, It is also not essential that each conspirator should have knowledge of the details of the conspiracy, or of the exact part to be performed by the other conspirators in execution thereof; nor is it, in fact, necessary that the details be worked out in advance to bring a given act within the scope of the general plan, It is sufficient that there is a general plan to accomplish the result sought by such means as may from time to time be found expedient, In other words, it is sufficient to constitute the offence, as far. As the combination is concerned, 'if there is a meeting of the minds, a mutual implied understanding or tacit agreement, all the parties working together, with a single design, for the accomplishment of the common purpose.
743. It is further to be noted that, as stated by Halsbury, the conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is, until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration, or due to some other cause."
205. Regarding the mode of proof their Lordships affirmed the view taken in the case of Asadullah v. Muhammad AH (PLD 1971 S.C. 541) and Razia Begum v. Hijrayat Ali (PLD 1976 S.C. 44). It was observed in the last mentioned authority that it is well-settled established rule governing the administration of criminal justice that evidence should not be considered in isolation as so many bits of evidence, but the whole of it should be considered together and its cumulative effect must be weighed and given effect.
206. The provisions of Article 23 of Qanun-e-Shahadat, then Section 10 of Evidence Act, were also extensively discussed in Zulfiqar Ali Bhutto's case (PLD 1979 S.C. 53) and Mr. Zahoorul Haque referred to paras 85 and 101 of the said judgment, the Hon'ble Supreme Court has drawn conclusion as regards application of Section 10 of Evidence Act (now Article 23 of Qanun-e-Shahadat in the following terms:- "101. To sum up, it will be seen that the facts in issue in a case under Section 10 of the Evidence Act are, whether there was an agreement for the alleged purpose and whether the accused was a party to it. Evidence in support of either may be given first, It may be that evidence is first allowed to go on the record about anything said, done or written by one of the accused in reference to their common intention during the continuance of the alleged conspiracy for use against the other accused of their participation in the offence, subject to the condition that there were reasonable grounds to believe about the very. Existence of the conspiracy and the partners in it. This course is thus provisionally admitting the evidence has a merit in it and is conducive to the expeditious disposal of the trial and, if I may say so suited to the prevailing conditions in this country where the delays in the administration of justice have become proverbial and more especially because, as in this case, the trial is not by jury. So that the Trial Court at the same time is the Judge both on facts and law In the case."
207. Mr. Khawaja Haris vehemently argued that this provision of Qanun-e-Shahadat would come into play only when there is some evidence to satisfy the Court that reasonable grounds did exist to believe that respondent Mian Muhammad Shehbaz Sharif also conspired with Mian Muhammad Nawaz Sharif and Aminullah Chaudhry to commit the offence of hijacking. He made specific reference to para 86 of Zulfiqar Ali Bhutto's case (PLD 1979 S.C. 53) wherein it was, inter alia, observed that conspiracy connotes a partnership in crime or actionable wrong and a conspirator is considered to be an agent of his associates in carrying the objects of the conspiracy, It was on this premise that he urged, as mentioned earlier, that first there should be evidence of reasonable belief of conspiracy without evidence of third person and- in addition to above, as observed at para 90 of the same judgment, prima facie, evidence must exist of the antecedent conspiracy.
208. The essential elements on the point of conspiracy or, so to say, criminal liability founded on conspiracy are adequately formulated in the observations of Hon'ble Supreme Court quoted above and since the law is settled by the Hon'ble Supreme Court it is needless to look for other authorities.
However, it may be noted that learned Trial Court has placed reliance on a number of authorities on this point and the learned counsel for respondents also referred to other authorities it would be appropriate to make a slight description of significant features marked in some of those authorities.
209. In Balmokand's case (AIR 1915 Lahore 16) cited by Mr. Khawaja Haris it was, inter alia, held that illustration to Section 10 of Evidence Act, 1872 (now Article 23 of Qanun-e-Shahadat, 1 1984) is inconsistent with the section and it was further observed that "illustrations appended to sections of an Act of the j Legislature are not to be taken as express provision of law or as j binding on the Court". On the point of conspiracy the following observations, relevant to the context, were made by the Court:- "In order, therefore, to decide in the present case whether any act done or statement made or thing written by an alleged co-conspirator is admissible in evidence against any of the accused persons, the test we shall have to adopt is to see, in the first place, whether there is reasonable ground to believe that a conspiracy existed between him and any such person, and in the second place, whether such act, statement or writing had reference to their common intention."
210. Section 10 of Evidence Act (Article 23 of Qanun-e- Shahadat) was also interpreted by Indian Supreme Court in Indra Gandhi's murder case reported as Kehar Singh and others v. State (1989 PSC 533 - AIR 1988 S.C. 1933), and its scope was analyzed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; (5) it can only be used against a co-conspirator and not in his favour".
211. Mr. Azizullah Shaikh relied on Kehar Singh's case {1989 PSC 533 = AIR 1998 SC 1883) in the context that there was no charge under Section 120-B, PPC and the ingredients of Sections 109 and 114, PPC were covered by Section 402-B, PPC, therefore, for the purpose of conspiratorial agreement the prosecution could only revert to the provision of Section 107, PPC and on that point, the Supreme Court of India in the aforesaid cited case relying on Pramatha Nath Tatukdar's case (AIR 1962 SC 876), has observed that the offence of abetment created under second clause of Section 107, PPC requires that there must be something more than a mere conspiracy and there must be some act or illegal omission in pursuance of that conspiracy.
212. In Pramatha Nath Talukdar's case (AIR 1962 S.C. 876) Full Bench of Supreme Court of India, inter alia, observed that for abetment by conspiracy mere agreement is not enough and an act or illegal omission must take place in pursuance of the conspiracy in order to the doing of the thing conspired for but in case of the offence of criminal conspiracy under Section 120-A, PPC the very agreement or plot is an act in itself and is the gist of the offence. In particular, the following observations, made in Mulcahy v. R. [(1866) 3 HL 306] were affirmed by the Supreme Court:- "When two agree to carry it into effect the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means."
213. In the context of placing reliance on foreign judgments it is significant to mention that Mr. Zahoorul Haque, learned Special Public Prosecutor as also Mr. Manzoor Ahmed Malik sought assistance from paras 272 and 44 respectively of Kehar Singh's case [supra). The Trial Court in the impugned judgment has also relied upon the said judgment and reproduced a number of portions therefrom relevant to the point of conspiracy. Mr. Zahoorul Haque further sought assistance from observations made in the above judgment that generally a conspiracy is hatched .In secrecy and the prosecution will often rely upon evidence of acts of various parties to infer that they were done in reference to their common intention and the prosecution will also more often rely upon circumstantial evidence, but the Court must inquire whether the two persons were independently pursuing the same and/or they had come together to the pursuit of the unlawful object and only in the latter case they would be treated as conspirators.
214. Mr. Manzoor Ahmed Malik sought aid from the observations that Section 10 of the Evidence Act (now Article 23 of Qanun-e-Shahadat) would come into play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an action in wrong, that is to say, there should be a prima facie evidence that a person was a party to the conspiracy before his acts could be used against his co-conspirators.
215. Mr. Zahoorul Haque, however seriously criticized the Trial Court's reliance placed on Pakhat Chandra v. Emperor (AIR 1930 Calcutta 647 Full Bench). The Trial Court has made reference to this judgment in following terms:- "It has further been held in AIR 1930 Calcutta 647 (F.B) that merely that a person was an associate of the persons who were party to criminal conspiracy, is not of itself sufficient for the foundation of the conviction of that person."
216. The above is a Full Bench judgment of Calcutta High Court and in essence deals with participation of an alleged conspirator laying down a rule of caution that mere association of a person was not enough. This aspect has more carefully been covered in Kehar Singh's case cited above, In such a case the Court shall satisfy itself if the two persons had met in the pursuit of the unlawful object or not.
217. It may be summed up that the case-law referred to above was cited. By the learned counsel for both parties on divergent issues but substantially on the scope of acquittal appeal and standard of appraisal of evidence in such an appeal the judgment in Ghulam Sikandar's case (PLD 1985 S.C. 11) is taken as the paramount exposition of law and while evaluating the evidence guidance would be taken from the same, albeit the principles of law quoted in other judgments cited above and the settled norms of evidence will equally be considered. Similarly, on the point of conspiracy or abetment by conspiracy and the pertinent rule/procedure appreciating the evidence the principles enunciated in Zulfiqar AH Bhutto's case (PLD 1979 S.C. 53) will" be followed extensively and the rule laid down in the other authorities would, of course, be given due weight if the exigencies called for as such.
185. Now the evidence is to be discussed and it is to be ascertained if the Trial Court committed any mistake in reading and evaluating the same.
Respondent Mian Muhammad Shehbaz Sharif:
186. As regards the role of respondent Mian Muhammad Shehbaz Sharif the prosecution relied on the evidence, mainly of those witnesses who were at Islamabad - in particular, PW-15 Muhammad Asif, PW-19 Javed and PW-14 Zahid Mehmood. Muhammad Asif (PW-15), at the relevant time, was operating two telephone exchanges in the Prime Minister House. His evidence has briefly been stated at para 22 of this judgment. Previously he had worked as Telephone Operator in the' house of Mian Muhammad Nawaz Sharif at Lahore on the strength of Ittifaq Company but he was appointed as OSD in Prime Minister House. Regarding respondent Shehbaz Sharif he stated that Shehbaz Sharif, who was present in his bedroom situated in Prime Minister House, asked him to connect him with his residence at Lahore and also with Ch. Nisar Ali. When he connected the line Begum Sahiba came on the line and he connected her to respondent Shehbaz Sharif while the Operator of Ch. Nisar informed him that the latter had left for Prime Minister House and he conveyed such information to Mian Muhammad Shehbaz Sharif. After some time he connected Hamza Shehbaz Sharif on the telephone installed at the TV Lounge. Thereafter he received a call from IG Police namely respondent Rana Maqbool Ahmed which he connected with the telephone at TV Lounge. Since Mian Muhammad Shehbaz Sharif was present in the TV Lounge he received the same. His evidence only shows that Shehbaz Sharif, at his own, had talked to his wife at Lahore and although he tried to have a talk with Ch. Nisar, the latter could not be connected as he was out of station.
187. As far incoming calls are concerned his son Hamza Shehbaz Sharif had spoken to him and since the text of conversation is not known it can only be treated as a usual and routine call. The other incoming call was of- respondent Rana Maqbool but from the evidence of Muhammad Asif it cannot be gathered that the caller had intended to talk to none else but Shehbaz Sharif.
Notwithstanding the fact that this witness was brought in any Army plane from Rawalpindi to Karachi, his evidence by itself does not implicate Shehbaz Sharif with any of the elements of conspiracy viz. Agreement of conspiracy, union of minds and utterances etc. At the most it can be said that he was present in Prime Minister House at that time.
188. Brig. Javed (PW-19), whose evidence has been stated in paras 19 and 20 of this judgment, was produced in custody for giving evidence. As admitted by him, he was in the custody of Army since 12.10.1999. He has not assigned any role to respondent Shehbaz Sharif. According to him, Defence Secretary, while discussing the matter with Prime Minister about appointment of new Army Chief, advised him to discuss the issue with the then Chief Minister Punjab Mian Muhammad Shehbaz Sharif and Ch. Nisar AN Khan but the Prime Minister did not make any reply to this suggestion.
However, at quarter to six p.m. He was asked by the Prime Minister to go to TV Station, Islamabad and disarm few soldiers who had taken over the TV Station. He contacted Commander 111 Brigade but could not locate him. Then in a police car accompanied by three policemen he went to TV Station but at the gate of Prime Minister House he spotted some police personnel who had come as escort with respondent Shehbaz Sharif. He further stated that before leaving for TV Station he had seen Man Muhammad Shehbaz Sharif and Ch. Nisar AN in the Prime Minister House. Thus, his evidence is only to the extent of seeing respondent Shehbaz Sharif in the Prime Minister House a little before 5.45 p.m. When he left for TV Station. What was Mian Shehbaz Sharif doing or what did he say is not spoken about by this witness. His evidence is also of little value on the point of conspiracy as against Shehbaz Sharif.
189. The prosecution is then left solely with the evidence of Zahid Mehmood (PW-14), whose deposition has been briefly stated at para 21 of this judgment. He has deposed that when Military Secretary Brig. Javed informed the Prime Minister that he had spoken to Chairman, PIA Shahid Khaqan Abbasi who confirmed all arrangements at Nawabshah Airport, as directed earlier by the Prime Minister, Saifur Rahman, Mian Muhammad Shehbaz Sharif and Saeed Mehdi were present.
Again, when this witness, under the directions of Prime Minister, went to the main gate of Prime Minister House to check the position of troops and found the Army Troops present there, he returned back and informed the Prime Minister that the number of troops was 12 to 15. According to this witness, when he spoke to Prime Minister Gen. Ziauddin, Saifur Rahman, Saeed Mehdi and Mian Muhammad Shehbaz Sharif were also present. Beyond presence of Shehbaz Sharif at these two occasions he did not ascribe any role to respondent Shehbaz Sharif of uttering any word or displaying a gesture towards the alleged conspiracy.
190. Faced with this situation Mr. Zahoorul Haque, learned Special Public Prosecutor was unable to refer to any direct evidence of involvement of Shehbaz Sharif but tried to impress upon us that when elite force of Chief Minister Punjab Mian Muhammad Shehbaz Sharif was present at the main gate and the witnesses spoke about his presence in the Prime Minister House these pieces of evidence may be taken as circumstantial evidence. He further contended that within the meaning of Article 23 of kanun-e-Shahadat the -utterances of Saifur Rahman and Saeed Mehadi implicated Shehbaz Sharif also. We regret our inability to agree with him as mere presence without an act done or a word spoken by an accused does not even make out his association in the conspiracy.
The utterances of co-accused do not serve as circumstantial evidence of conspiracy when a particular accused person is himself silent and there is no evidence that at least he should have nodded his head in agreement to display mutual consent at a particular point of time. If mere presence at a particular juncture would form an element of conspiracy then how could Brig. Javed and Zahid Mehmood be absolved of any liability, or even any one else present in Prime Minister House. The contention is, thus, without substance and as such repelled.
191. Learned Trial Court has jointly dealt with the case of Shehbaz Sharif, Saifur Rahman and Muhammad Saeed Mehdi and held that the evidence of relevant witnesses named above was insufficient for want of corroboration to lead to conviction of these respondents on the allegation that they conspired with Mian Muhammad Nawaz Sharif for the purpose of main offence, It may be remarked that the case of Shehbaz Sharif was distinctly of no evidence and he could have been dealt with separately on the score of evidence discussed above. Anyhow, this being a case of lack of evidence the finding of acquittal of respondent Mian Muhammad Shehbaz Sharif is held to have been rightly recorded, which is accordingly maintained.
Respondent Saifur Rahman:
192. Learned Trial Court while dealing with the case of Mian Muhammad Shehbaz Sharif, Saifur Rahman and Muhammad Saeed Mehdi has evaluated the testimonies of relevant witnesses namely; Muhammad Asif PW-15, Telephone Operator, Prime Minister House; Commander Zahid Mehmood, Director Protocol, Prime Minister House; and Brig. Javed Iqbal, Military Secretary to Prime Minister PW-1 9 and taken the view that the prosecution failed to prove the act of conspiracy between the aforesaid respondents and Mian Muhammad Nawaz Sharif and consequently found them entitled to benefit of doubt. The Trial Court, keeping in view the legal position obtaining from the case-law Yar Muhammad v. State (1992 SCMR 96), Niaz v. State (PLD 1960 S.C. 387) and Contempt against the Daily Frontier Post in re. (PLD 1 992 S.C. 69) that if there are exaggerations in the statements of witnesses and their veracity is doubtful independent corroboration should bPLD 1954 Sindh 136), Ghulam Muhammad v. State (1976 P.Cr.L.J. 258), Wazir v. State (PLD 1960 (W.P.)
Karachi 674) and Pir Bux v. State (PLJ 1979 Cr.C. (Karachi) 588) learned Trial Court opined that PW Zahid Mehmood's version and that of PW Asif each requiring corroboration could not corroborate each other, In this manner the testimonies of PWs Muhammad Asif, the Telephone Operator, Brig.
Javed and Commander Zahid Mehmood were held to be insufficient for convicting the respondents.
193. At the outset it may be mentioned that in this judgment the case of Shehbaz Sharif has already been dealt with without applying the above analogy of learned Trial Court as his case was of no evidence. As regards the other observations of learned Trial Court it may, in the first instance, be recalled that while dealing with A.T. Appeal No. 43 of 2000 it has been observed at para(<62 of this judgment that it is not in every case that adverse inference be drawn against the prosecution in terms of illustration (g) to Article 129 of the Qanun-e-Shahadat (formerly Section 114 of Evidence Act) owing to non-production of certain evidence, and looking to facts and circumstances of each case an adverse inference can only be drawn if it is shown that a material witness or say, documentary evidence has been withheld owing to some oblique motive and for considerations not supported on the record.
194. Secondly, a portion of the deposition of Zahid Mehmood lifted from his cross-examination has been quoted by the Trial Court wherein this witness has replied that he did not recall or he did not remember those facts and in view of such replies he has been confronted with his version given in his statement under Section 164, Cr.P.C. These are not contradictions in broader sense within the meaning of Article 140 of Qanun-e-Shahadat. The version that the witness did not remember a fact would not amount to denial or affirmance of a fact, as rightly argued by Mr. Zahoorul Haque, It has been observed by Lahore High Court in PLD 1978 Lahore 523 that a witness may omit to furnish details in his previous statement, or the previous statement may be absolutely devoid of details but the omission of details would not amount to contradiction. Nevertheless, the versions which are not included in the previous statement recorded under Section 164, Cr.P.C, may be viewed adversely if such improved statements are made with dishonestly and with a view to strengthening the case as observed in Saeed Muhammad Shah v. State (1993 SCMR 550). Zahid Mehmood's version reproduced by the Trial Court mostly relates to role of Saeed Mehdi with respect to typing of the notification of appointment of the new Chief of Army Staff. These are minor improvements and a witness cannot be characterized as a dishonest witness merely for these versions although it may be agreed that independent corroboration would ordinarily be required before relying on such evidence as the sole basis of conviction.
195. Similarly, evidence of Asif, the Telephone Operator may not be viewed with doubt merely because of lack of record of Telephone Section of Prime Minister House, It was to be scrutinized with precision as to on what factual aspects his version is to be disbelieved. For instance, there is no reason to disbelieve him on the fact of his connecting the call between Mian Muhammad Nawaz Sharif with Aminullah Chaudhry and other calls connected by him from Prime Minister House. If he fails to give a proper account and exorbitantly differs as regards the timings those portions would certainly be excluded but his testimony cannot be brushed aside as a whole. Yet, because of deficiencies in his versions, his evidence alone will not serve as sole foundation of conviction and corroboration if it be required. The principle falus in uno falus in omnibus is not applicable in our country and the testimony of a witness cannot be thrown overboard as a whole, but as argued by Mr. Zahoorul Haque, chaff is to be sifted from the grain. All the same, as rightly contended by learned counsel for respondents the slightest benefit of doubt should be resolved in favour of the accused.
196. The case incidentally is being examined from point of view of involvement of other respondents on the I asis of their alleged conspiracy with Mian Muhammad Nawaz Sharif for the purpose of hijacking the plane within the parameters laid down by the Hon'ble Supreme Court in Zulfiqar AH Bhutto's case (PLD 1979 S.C. 53) and if necessary, assistance is to be sought from other cases cited earlier.
197. As far the role of respondent Saifur Rahman is concerned, the evidence of Asif (PW-15) is blank.
He has not assigned any incriminating act to Saifur Rahman throughout his evidence. Similarly, the evidence of Brig. Javed Iqbal, Military Secretary to Prime Minister (PW-19) is wholly blank as far the charge against respondent Saifur Rahman is concerned, In his entire examination-in-chief he has not implicated Saifur Rahman with any overt act for the purpose of alleged conspiracy in commission of the offence of hijacking. The prosecution is then left with the evidence of Commander Zahid Mehmood alone who was then acting as Director Protocol in Prime Minister House.
198. The noteworthy version that has come from the mouth of Zahid Mehmood in his examination- in-chief is reproduced below:- "............... At that time, Saifur Rahman, Shehbaz Sharif and Saeed Mehdi were present' there. The accused Saifur Rahman remarked as to why the aircraft should not go to Peshawar. I informed him that Peshawar airport was as for away as Muscat, on which nothing more was said by Saifur Rahman. When I entered there I saw Saifur Rahman talking with other persons present there they were taking between themselves which I could not hear, It was few minutes before 6.30 p.m."
"............... At that time, Gen. Ziauddin was also present with the Prime Minister along with Saifur Rahman, Saeed Mehdi and Shehbaz Sharif. Thereafter I returned to the office of Military Secretary."
199. Last portion of the above version does not indicate any overt act, but speaking rationally it can be taken as evidence of silent presence of Saifur Rahman with newly appointed Chief of Army Staff namely General Ziauddin, the Prime Minister, Saeed Mehdo and Shehbaz Sharif. Indeed, the first portion is the only version that the prosecution can resort to for seeking proof of the alleged role of Saifur Rahman in the conspiracy, It will not be out of the place that Saifur Rahman along with others has: been indicated for all the offences with which Mian Muhammad Nawaz Sharif was charged including hijacking of the plane but his role was apparently that of joining the conspiracy in the commission of the said offence which made him liable for the offence; and the above solitary version is the only foundation on which the prosecution can turn around to seek conviction .Of Saifur Rahman. In fact, Saifur Rahman has figured, for the first time, in the prosecution evidence, as above, when according to Zahid Mehmood the. Military Secretary informed the latter that arrangements at Nawabshah Airport had been confirmed. This event, according to Zahid Mehmood, had taken place a few minutes before 6.30 p.m. On a plain reading of the above version it would appear that Saifur Rahman had only remarked as to why Peshawar could not be selected for landing. At that time Mian Muhammad Nawaz Sharif had not said a word nor was there any discussion between Saifur Rahman and Mian Muhammad Nawaz Sharif as is evident from the above ' narration, In reply to the remarks of Saifur Rahman it was this witness who repulsed instantly that Peshawar Airport was as far away as Muscat, In essence, both of them Zahid Mehmood and Saifur Rahman stand on same pedestal, one is dubbed as a witness and the other is pushed in the story as in accused. No doubt, such sort of version could, in substances, form a part of corroborative evidence provided there was basically some evidence to show conspiracy between Saifur Rahman and the other co-conspirators. The version that the plane could go to.
Peshawar by itself cannot form the elementary component of conspiracy but on a bare understanding it was any body's remark who was present there like Zahid Mehmood who vehemently clarified that Peshawar was as far away as Muscat. Obviously, the word Muscat was never used by Saifur Rahman.
200. All the same, PW Zahid Mehmood has very cleanly given an exonerating remark in the same portion of his evidence that consequent upon his reply there was no rejoinder from Saifur Rahman but, as stated by Zahid Mehmood, Saifur Rahman said nothing more and diverted himself towards the common talk with other persons, the subject whereof was, perhaps, something not of any importance. However, this witness did not hear him making any other remark, In cross-examination PW Zahid has further cleared the position of respondent Saifur Rahman by admitting that Saifur Rahman did not know the fuel position of the aircraft and it was he who informed him (Saifur Rahman). The entire evidence against Saifur Rahman produced by prosecution read together would amount to an unconcerned remark as to why the plane could not land at Peshawar. To make it a conspiratorial activity some independent evidence was required to which if the above piece of evidence appended, an act of conspiracy would be made out, in absence whereof 'the above remark by .Itself is simply a superficial observation.
201. Notwithstanding the above infirmities it may be noted that the most authentic evidence of PW- 13 Manzoor, who was performing duties of Approach Radar Control at Karachi Airport, comes I conflict with the timings given by Zahid Mehmood. The Approach Radar Control is the frontline communication system of the aircraft and any aircraft would, in the first instance, come in contact with Approach Radar Control who would, accordingly, seek necessary instructions from the airport control tower and convey essential instructions to the aircraft. Manzoor was operating the Approach Radar Control and he has deposed that on that day at 6.29 p.m. He received a message from control tower through Muhammad Asif (PW-4) that Karachi Airport was closed for all traffic operations. However, the relevant piece of evidence to be cited here is that he stated in specific terms that the aircraft PK-805, at that time, was not in contact with him but it contacted him at 6.33 p.m. On his frequency No. 125.5 MHz from holdover Air Control Centre East Karachi and the aircraft was at 1 5 nautical miles South-East of Karachi Airport. The aircraft was advised to proceed to Marvi holding point maintaining 10,000 ft. Height and he monitored the aircraft on his radar scope. At about 6.39 p.m. The aircraft Entered the control zone boundary i.e. 25 miles South of Karachi and at 6.45 p.m. This witness received advice from Anwarul Haq, Acting Facility Operating Officer that the aircraft may be informed that even the Nawabshah Airport was closed. The aircraft reached Marvi holding point at 6.40 p.m. And was advised to hold overhead Marvi point until further advice. At that time he asked the Captain of the aircraft regarding total persons and remaining fuel endurance, In this way, the fuel position came in the knowledge of all concerned through the responsible person Manzoor for the first time at 6.47 p.m. Zahid Mehmood's version that a few minutes prior to 6.30 p.m.
He conveyed the fuel position to Saifur Rahman is irreconcilable with the above position. On this score alone, the cited portion of his evidence could be excluded from consideration being inconsistent.
202. Yet, another deficiency in the case in favour of Saifur Rahman can be discerned from the F.I.R, wherein no role has been assigned to him like respondent Saeed Mehdi. As already pointed out, the F.I.R, was recorded on 10.11.1999 that is to say after 28 days of the occurrence and that too after inquiry, scrutiny and deliberations etc. Even then he was not found responsible for any incriminating act. This drawback would also add to the shortcomings pointed out above.
203. On the whole, the above analysis of the evidence against Saifur Rahman would lead to the safest inference that the prosecution failed to produce evidence beyond reasonable doubt implicating respondent Saifur Rahman with the alleged conspiracy of hijacking the plane PK-805.
The evidence was extremely weak, as discussed above, to support the charge against him. The finding of acquittal cannot, at all, be questioned in the circumstances and is, accordingly, maintained.
Respondent Muhammad Saeed Mehdi:
204. Respondent Saeed Mehdi, allegedly, aided, abetted and/or conspired to the commission of offence of hijacking in the process of performance of his functions as Principal Secretary to the Prime Minister. At the outset it may be mentioned that in the F.I.R, five persons have been found responsible for the incident and their names have been specifically mentioned but Saeed Mehdi and Saifur Rahman are not nominated therein. The prosecution, however, for establishing the case against Saeed Mehdi has again turned to the evidence of PW-19 Zahid Mehmood, Director Protocol, Prime Minister House; PW-14 Brig. Javed Iqbal, Military Secretary to Prime Minister; and PW-15 Muhammad Asif, the Telephone Operator of Prime Minister House. As against the principal accused the evidence of these with^feeses was brought forward for corroborating the version of approver Aminullah Chaudhry and it is interesting to note that Aminullah Chaudhry himself has not implicated Saeed Mehdi so much so that he has not been cross-uttered in his examination-in- chief was that he tried to contact Muhammad Saeed Mehdi but could not talk to him. Confronted with such a situation Mr. Zahoorul Haque, learned Special Public Prosecutor attempted to seek support from the evidence of Zahid Mehmood, Brig. Javed Iqbal and Muhammad Asif.
205. Evidence of Brig. Javed Iqbal shows that when the Prime Minister was proceeding to Multan Saeed Mehdi was not with him and on return they reached Islamabad Airport at 3.15 p.m. But even at that time Saeed Mehdi was not present. The Prime Minister, however, asked this witness to remain on look for the car of Principal Secretary. Since the time was running short the Prime Minister continued talks with Defence Secretary and while travelling in the car it was disclosed that the new Army Chief would be It. General Ziauddin in place of General Pervaiz Musharraf. After getting off the car this witness along with Saeed Mehdi and Defence Secretary went inside the Prime Minister House. Then this witness, in capacity of Military Secretary, asked Saeed Mehdi and the Defence Secretary to prepare a notification whereby General Pervaiz Musharraf would be retired and replaced by It. General Ziauddin. The story of the active role of Saeed Mehdi begins from here with a direction from Military Secretary on behalf of the Prime Minister'to prepare a notification. Normally, the Principal Secretary was supposed to prepare drafts as directed by him (Prime Minister), therefore, it was a routing business and more precisely, a compliance of direction falling much beyond the sphere of a conspiratorial act and conceivably, was not an agreement in the conspiracy, or union of mind or even an overt act towards conscious execution of conspiracy.
206. According to Brig. Javed Iqbal the Prime Minister asked him to raise *the volume of television so that secrecy of the discussion between Secretary Defence and Muhammad Saeed Mehdi be maintained. This fact is not supported by the other relevant witness Zahid Mehmood. Brig. Javed Iqbal has further stated that he took the Secretary Defence and respondent Saeed, Mehdi to the office of Prime Minister and then he himself went to his own office. He rang up It. General Ziauddin and passed on the message to him in between 3.30 and 3.45 p.m. General Ziauddin reached Prime Minister House at 4.00 p.m. And then Prime Minister, being informed so, came out of his office and went to the meeting room, but before entering the meeting room respondent Saeed Mehdi got the approval of draft notification. On the other hand, Zahid Mehmood has given a different version and stated that at about 4.00 p.m. He was called by Military Secretary at his office where Principal Secretary Saeed Mehdi asked for a copy of the letter by which General Pervaiz Musharraf was appointed as COAS. He had no copy, therefore, he got a print of the copy from his own computer and gave it to Saeed Mehdi, who, after making necessary alterations, gave it to him (Zahid Mehmood) for retyping. The retyped copy was given to Saeed Mehdi who again made corrections in it and returned it for final draft. When he was typing the final print Saeed Mehdi advised him to prepare more copies and then 'Saeed Mehdi left his office, It would be noticed that the timings given by these two witnesses are inconsistent as according to Brig. Javed Iqbal, Saeed Mehdi brought the draft and got it approved from rime Minister before meeting of General Ziauddin with Prime Minister, whereas the above version would show that sufficient time was consumed by Zahid Mehmood after arrival of General Ziauddin. Nevertheless, all these acts related to preparation of a notification in compliance with the direction of Prime Minister and in these pieces of evidence no complicity or any other component of conspiracy could be visualized.
207. Evidence of both these witnesses further shows that the Prime Minister had a meeting with President and thereafter formal meeting with new COAS was arranged and upto that stage nothing could surface from these testimonies about diversion of the plane. The only eventful fact disclosed by Brig. Javed Iqbal was that after putting on new batches of rank on General Ziauddin in the formal meeting wherein Saeed Mehdi was also present the camera team left the Prime Minister's office and after about half an hour i.e. At about quarter to six the Prime Minister again called this witness and advised him to disarm the soldiers who had taken over PTV Station, Islamabad. He did so and came back. On return, Commander Zahid Mehmood told him that the aircraft carrying Army Chief has been diverted on the instructions of Prime Minister to Nawabshah.
What did Saeed Mehdi do in that behalf is not appearing in the evidence of this witness.. At the most from the evidence of this witness it may be gathered that respondent Saeed Mehdi, as also Defence Secretary and Zahid Mehmood, were responsible for typing, drafting and preparing the notification. What special features were there, to implicate respondent Saeed Mehdi and single him out from those persons (witnesses) is a void.
208. Evidence of Zahid Mehmood, Director Protocol, Prime Minister House is primarily confined to preparation of a notification and in that direction previous copy was furnished to Saeed Mehdi by this witness. Can this really be termed as an act of conspiracy? The simple answer is 'No'. But if the prosecution insists upon an then there is no reason to absolve Zahid Mehmood and Defence Secretary. The rational understanding of these pieces of' evidence would, however, proceed towards an inference in favour of respondent Saeed Mehdi and it may be remarked that the person who lodged the F.I.R, was conscious of this situation and did not rope him in as an accused person.
209. PW Muhammad Asif, the Telephone Operator has, however, come up with a different version.
He. Has spoken about Saeed Mehdi on the same lines as discussed above, but thereafter he has added a few words saying that Prime Minister had asked him to connect the line with Syed Ghous Ali Shah and from the same extension respondent Saeed Mehdi asked him to connect the line with IGP Sindh Rana Maqbool Ahmed as the Prime Minister wanted to speak to him. At that time he could not connect the calls, but thereafter Managing Director PTV, Chairman, PI A and Director General, CAA had made calls after some intervals which were connected telephone at TV Lounge.
Those calls were attended by Saeed Mehdi, Shehbaz Sharif and some times Brig. Javed Iqbal. Brig Javed Iqbal, in his evidence is silent about presence of Saeed Mehdi on that occasion and receiving calls. Even then it cannot be doubted that the Principal Secretary of the Prime Minister could not remain aloof and in routine manner he could have attended and transmitted the calls.
What was the substance of those calls when Saeed Mehdi attended the same is not known.
Involvement of Saeed Mehdi cannot be established on the basis of transmitting the calls which was equally done by Muhammad Asif and Brig. Javed Iqbal.
210. Lastly, a version is attributed to Saeed Mehdi that during conversation about the plane, he said that in case the plane lands at Karachi the Army would be present there also. According to learned Special Public Prosecutor such utterances on the part of Saeed Mehdi would reflect his participation in implementation of the plan of diversion of plane. This, no doubt, could have been considered as one of the dominant ingredients of conspiracy but the prosecution has not been able to find any support for this testimony from any other witness. This version was given by Zahid Mehmood alone but the sequence in which he has given evidence would demonstrate no direct role of Saeed Mehdi as he has not been spoken about by other witnesses on any other aspect of the diversion of plane. All the same, this solitary version also does not tally with the timings as already pointed out. This solitary version, is, therefore, of no material significance in absence of direct and independent corroboration.
211. Tested on the touchstone of the principles laid down by the Hon'ble Supreme Court as regards the concept of conspiracy, as per observations made in Zulfiqar AH Bhutto's case (PLD 1979 S.C. 53) at paras 742 and 743 of the said judgment there was neither express nor implied agreement of diverting the plane on the part of Saeed Mehdi nor it could be presumed that there was tacit agreement on his part. Basic requirement is that there should be a union of two or more minds in a thing done or to be done or mutual consent to do the same thing, but none of these witnesses has attributed a single allegation to Saeed Mehdi in this context. No finding of conviction in that event can be rendered against respondent Saeed Mehdi. His acquittal by Trial Court is, therefore, affirmed.
Respondent Shahid Khaqan Abbasi:
212. Case against Shahid Khaqan Abbasi was to be proved through a number of witnesses namely, PW-14 Zahid Mehmood; PW-15 Muhammad Asif; PW-1 Aminullah Chaudhry, the approver; PW-16 Muhammad Sadiq; PW-20 Wing Commander Ahmed Faruq, PW-19 Brig. Javed Iqbal and PW-8 Shah Nawaz Dara. Gist of their testimonies has been given while dealing with A.T. Appeal No. 43 of 2000 filed by Mian Muhammad Nawaz Sharif. As regards the role of Shahid Khaqan Abbasi, learned Trial Court has excluded the evidence of PW Zahid Mehmood from consideration being inadmissible as a hearsay evidence on the ground that according to Zahid Mehmood he had gone to ADC Office and brought mobile phone and handed it over to Military Secretary Brig. Javed Iqbal, but this fact was not confirmed by Brig. Javed Iqbal, therefore, being a hearsay evidence, was not admissible. To this extent the observations of Trial Court cannot be questioned.
213. It is, however, significant to note that the evidence of Zahid Mehmood is being projected as the basic evidence on the point of conveying directions of Prime Minister to respondent Shahid Khaqan Abbasi. This witness has stated has stated that he conveyed the message of Prime Minister to Shahid Khaqan Abbasi who rang him back and confirmed the same but again after few minutes informed him that the aircraft did not have enough fuel to go to Muscat and could only land at Nawabshah. Thereafter Prime Minister advised him to inform Shahid Khawan Abbasi that the aircraft should be diverted to Nawabshah where it should be refuelled and then it should depart for Muscat. This was, no doubt, most adventurous feature of the incident but this witness has stated that when he conveyed the last mentioned message to Shahid Khawan Abbasi it was about 6.15 p.m. Respondent Shahid Khaqan Abbasi, therefore, vehemently argued that the above version is wholly blurred by the most technical and authentic evidence of PW-13 Manzoor, who was performing duties at Approach Radar Control of Karachi Airport. As already pointed out in earlier part of this judgment, at 6.35 p.m. PK-805 made contact with PW Manzoor for the first time and thereafter at 6.47 p.m. When the aircraft reached the overhead Marvi holding point the Captain informed him that there were 198 persons on board including COAS and that they had 48 minutes fuel for holding over at Marvi. It was also' clarified that the remaining fuel endurance was one hour and ten minutes at that time, In this way, for the first time, the fuel position came to limelight at 6.47 p.m., therefore, it could not be conceived how Zahid Mehmood informed the Prime Minister much before 6.15 p.m. About fuel position and then after obtaining instructions from Prime Minister came up with advice from Prime Minister to Shahid Khaqan Abbasi about diversion to Nawabshah and refuelling, In fact, this portion the evidence of Zahid Mehmood provides benefit to Shahid Khaqan Abbasi. The conversation between Military Secretary and Shahid Khaqan Abbasi through mobile has also become inadmissible, as already pointed out.
214. Brig. Javed Iqbal himself has not assigned any role to Shahid Khaqan Abbasi about diversion of plane but he has referred to the evidence of Zahid Mehmood which has been excluded from consideration as far the role of Shahid Khaqan Abbasi is concerned. As regards Telephone Operator Muhammad Asif he has stated that at 6.00 p.m. He connected Prime Minister with Shahid Khaqan Abbasi and after few minutes thereof the Prime Minister talked to Aminullah Chaudhry.
Again at a subsequent stage Brig. Javed Iqbal asked him to connect him with Syed Ghous Ali Shah and Shahid Khaqan Abbasi and he connected him with Shahid Khaqan Abbasi but the evidence of Brig. Javed does hot provide support to this version.
215. Aminullah Chaudhry, the approver, has stated that he was trying to contact Captain Shah Nawaz Dara, Director Flight Operation PIA but he came to know that Shah Nawaz Dara was sitting with Shahid Khaqan Abbasi, Chairman PIA. He talked to Chairman Shahid Khaqan Abbasi who confirmed to him that instructions were also received by him from Prime Minister and Shahid Khaqan Abbasi further told him that the plane was carrying about 6 to 7 tons of fuel and will not be able to go to Muscat. This witness has, however, stated in unequivocal terms that it was the duty of Civil Aviation Authority and Civil Aviation Division to implement the orders of Prime Minister. Learned Trial Court has, therefore, rightly observed that respondent Shahid Khaqan Abbasi, in capacity of Chairman PIA was not responsible' for permitting any aircraft to land or divert to any other airport.
The evidence of Aminullah Chaudhry, however, does not ascribe a positive role to Shahid Khaqan Abbasi to indicate that he had extended "his express, implied or tacit consent in the matter. He had only spoken about receipt of the directions issued by Prime Minister which actually were being implemented by Aminullah Chaudhry himself. This piece of evidence does not, therefore, assign any conspiratorial role to Shahid Khaqan Abbasi. Evidence of PW-8 Shah Nawaz Dara too, is to the effect that Shahid Khaqan Abbasi told him that he had received message from Prime Minister about diversion of Flight PK-805, but when this witness told him abut fuel policy Shahid Khaqan Abbasi did nothing and simply kept himself busy with his usual office business. Thus, he does not implicate Shahid Khaqan Abbasi with any part played by him to demonstrate his consent or intention to join in the operation of diversion of plane.
216. Muhammad Sadiq was Telephone Operator of Aminullah Chaudhry, DG CAA. He had connected Aminullah Chaudhry with Chairman PIA Shahid Khaqan Abbasi. This is the entire evidence in connection with the role of Shahid Khaqan Abbasi deposed to by him. What was the result of the talk between the two has already been discussed above. The evidence of this witness has, therefore, no special bearing on the case against Shahid Khaqan Abbasi. PW-20 Wing Commander Ahmed Faruq has also in the same terms spoken about a telephonic call between Aminullah Chaudhry and Shahid Khaqan Abbasi. It shall have also no consequence in view of the observations made earlier.
217. It may be summed up that there is no direct evidence to give the slightest indication of Shahid Khawan Abbasi's association with any conspiracy displaying his express, implied or tacit agreement or otherwise . Making an overt act in implementation of the plan, if any. On the contrary, evidence of Shah Nawaz Dara would show that during this course Shahid Khaqan Abbasi diverted himself towards other office work. That is to say, he cared a little for diversion of the plane. His conduct, as stated by this witness, extends to him a clear exoneration. Nonetheless, the discrepancy about timings of fuel endurance is an important factor which shall be resolved in favour of this respondent. On the whole, the material placed on record by prosecution was insufficient to establish beyond reasonable doubt the essential elements of the charge against Shahid Khaqan Abbasi with regard to diversion of Flight PK-805. Finding of acquittal, recorded by the Trial Court, shall, therefore, not be disturbed.
Respondents Syed Ghous AH Shah a id Rana Maqbool Ahmed:
218. A common role has been assigned to respondents Syed Ghous Ali Shah and Rana Maqbool Ahmed. Both of them had allegedly taken joint action and practically associated themselves in the conspiracy. The former was acting as Advisor to Prime Minister on Sindh Affairs while the latter was Inspector General Police of the Province of Sindh. Most of the witnesses, on whose testimonies the prosecution has placed implicit reliance, belonged to Karachi, simultaneously the witnesses at Islamabad have also been relied upon. The evidence of witnesses at Islamabad has already been reproduced briefly while dealing with A.T. Appeal No. 43 of 2000 and' so also the testimonies of the witnesses connected with Karachi Airport have been thoroughly scrutinized. We would now evaluate the evidence of the remaining witnesses at Karachi and Nawabshah falling in Categories-IV, V & VI formulated at para 17 of this judgment.
219. PW-3 Muhammad Akbar was DIG Police Karachi and PW-11 Bashir Ahmed Memon was SSP Karachi East on the day of incident; PW-10 Rukhsar Ahmed was Personnel Security Officer to Syed Ghous Ali Shah, PW-5 Ihsanullah Gondal was SP Nawabshah and PW-25 Inspector Manzoor was Shift Incharge of the Control Room situated at Central Police Office, Karachi, It will be relevant to give a brief account of their evidence.
220. Muhammad Akbar, DIG Karachi deposed that on 12.10.1999 at about 6.'40 p.m. He received telephone call from respondent Rana Maqbool Ahmed to reach Karachi Airport immediately. He' rushed to airport and on the way picked SSP Bashir Ahmed Memon, who informed. Him that respondent Rana Maqbool Ahmed had conveyed message to all SSPs to reach airport and also to dispatch one APC each to airport. They had, however, no idea about the purpose of their presence.
They reached airport at about 7.40 p.m. And saw some army vehicles lined up on both sides of vehicles of Syed Ghous Ali Shah and Rana Maqbool Ahmed, In VIP room they saw Syed Ghous Ali Shah sitting in front of a telephone set while Rana Maqbool Ahmed was seen coming from washroom and in their presence accused Syed Ghous Ali Shah asked Rana Maqbool Ahmed if he could take over the airport right then. Rana Maqbool Ahmed/ in turn, put this question to this witness who repulsed with a query as to what was the purpose. He was told that it was an order from the top as the plane of Army Chief was coming there which was not to be allowed to land there and such arrangements had been made by Civil Aviation Authority and PIA. This witness regretted his inability in take over the airport. He further told them that Army was present at the airport and they could not do anything more as such it was better to leave, and then they started going out of the room. They left the airport immediately. This witness directed Bashir Ahmed Memon to return the Police force that had moved to the airport. He gave similar message to all SSPs. On return he received a message to see respondent Rana Maqbool Ahmed at his residence and he went there but could not find him.
250. Bashir Ahmed Memon's evidence is also to the same effect. He stated that he had accompanied DIG Muhammad Akbar and in the VIP room Syed Ghous Ali Shah inquired from Rana Maqbool Ahmed if he could take over the airport who, in turn, put the same question to DIG Muhammad Akbar, but when Akbar inquired about the purpose he was informed that it was an order from the top as the plane of Chief of Army Staff was not to be allowed to land and they had to provide protection to Civil Aviation Authority and PIA who had made such arrangements. When informed about presence of Army at the airport all of them immediately left the Airport.
251. Rukhsar Ahmed, PSO to Syed Ghous Ali Shah has stated that while Syed Ghous Ali Shah was attending the meeting Maqbool Shaikh talked to him on telephone and Syed Ghous Ali Shah stated that "DO Kl LARA! MAN RK KO JANA PARTA HAY". He then informed the meeting that General Pervez Musharraf had been removed, It was 4.40 p.m. Again at about 5.45 p.m. When he entered the office of Syed Ghous Ali Shah he found respondent Rana Maqbool Ahmed sitting along with Col. Mushtaq Tahir Khel. Rana Maqbool Ahmed asked him to tell the Telephone Operator of CM House to connect him with SP Nawabshah, Ihsanullah Gondal. The cal! Was (sic) Ihsanullah Gondal. On the advice of Rana Maqbool Ahmed he left the office for about 50 minutes. Afterwards, vehicles were arranged and Syed Ghous Ali Shah, Rana Maqbool Ahmed and Col. Mushtaq Tahir Kheli along with this witness proceeded to airport where they reached at about 7.20 p.m. Later DIG Muhammad Akbar and SSP Bashir Ahmed Memon also reached there. Syed Ghous Ali Shah inquired from Rana Maqbool Ahmed if he could take over the airport who put the same question to DIG Muhammad Akbar and there was same conversation as already stated above. DIG replied that he could not take over the airport. Thereafter, Syed Ghous Ali Shah, Rana Maqbool Ahmed and Col. Mushtaq Tahir Kheli left the lounge and went away. From the evidence of this witness it transpires that the DIG Muhammad Akbar did not tell the respondents that the Army was present outside, therefore, he could not take over, but simply when he stated that he is not able- to take over the airport the respondents left the lounge and returned.
252. From the evidence of DIG Muhammad Akbar, SSP Bashir Ahmed Memon and Rukhsar Ahmed it appears as if a stage was set at VIP lounge only to ask DIG Muhammad Akbar if he could take over the airport and on his negative reply everybody should leave back. Otherwise, the Army was already present outside the airport and everybody had been seen it. Evidence of PW-7 Col. Atiquzzaman is to the effect that he being Protocol Officer of 5 Corps Karachi reached Quaid-e- Azam International Airport at 6.00 p.m. To receive General Pervaiz Musharraf. General Muzaffar Usmani, Commander of 5 Corps along with Major Zafarullah reached there at 6.40 p.m. Brig. Tariq Ali, Commander of Logistic Area and Brig. Naveed Nasar, Commander Airport Security Force were also present there. Syed Ghous Ali Shah and Rana Maqbool Ahmed had arrived in his presence and proceeded to domestic lounge. Them DIG Muhammad Akbar and SSP Bashir Ahmed Memon also reached the airport, In this manner, presence of army at the airport was conspicuous when Syed Ghous Ali Shah and Rana Maqbool Ahmed arrived but surprisingly when DIG Muhammad Akbar spoke about them Syed Ghous Ali Shah and Rana Maqbool Ahmed immediately turned back and left the Airport. This piece of evidence, fairly speaking, does not appeal to mind to be a believable feature.
253. Next, there is evidence of Ihsanullah Gondal, SP Nawabshah who has come out with a new story that from Chief Minister House at 6.30 p.m. He received a call whereby respondent Rana Maqbool Ahmed directed him to take sufficient number of police force to Airport Nawabshah and take General Pervaiz Musharraf in his custody and shift him to Rest House who was travelling from Colombo to Pakistan and his plane was about to land at Nawabshah. He further stated that. DIG Akbar Memon also reached the Rest House, Nawabshah and at 7.30 p.m. He narrated the facts to him. From Rest House DIG Akhtar Memon spoke to Rana Maqbool Ahmed and then he informed Ihsanullah Gondal that earlier orders were cancelled and now the plane should only be surrounded disallowing anybody to disembark from the plane or enter it. Subsequently, a big plane landed at airport which was surrounded by him, but it transpired that it was a plane in the use of Prime Minister Mian Muhammad Nawaz Sharif and not the plane of General Pervaiz Musharraf. Thereafter, the Army took over airport Nawabshah.
254. An important drawback to be noted is that the prosecution has failed to examine the Telephone Operator of C.M. House to confirm that actually the telephones were so connected at the relevant time. At the most, PW Manzoor, Incharge of CPO Control Room has been examined who has stated that at about 6.53 p.m. He received call from I.G. Police Karachi directing him to convey message to all SSPs of five Districts of Karachi that they should reach Karachi Airport along with their APCs. But again there is a gap as, according to Manzoor, he directed SI Anwar and SI Munir to convey the message of IGP as directed, but both, Anwar and Munir, have not been examined to support the version of PW Manzoor. Likewise, no operator from IGP House has been examined to corroborate the fact of telephone connections. This has gained further eminence because of difference of timings given by Rukhsar Ahmed, Ihsanullah Gondal and others.
255. Evidence of Ihsanullah Gondal is clear that he received the call at 6.30 p.m. But Rukhsar Ahmed has stated that he got them connected at 5.50 p.m,. This creates an uncertainty about the correctness of both versions. Further, both these versions are washed away by Muhammad Asif, Telephone Operator of Prime Minister House who, as deposed by hi, had not joined his duties before 6.00 p.m. He was, for the first time, contacted the telephone with Shahid Khaqan Abbasi at Karachi and few minutes .Later a call was connected with Aminullah Chaudhry. Prime Minister then talked at his residence at Lahore while Saeed Mehdi spoke to MD, PTV who was not available, but he responded after 3 or 4 minutes thereof. Subsequent thereto Shehbaz Sharif spoke with his wife. An attempt was also made to connect Ch. Nisar and only thereafter Prime Minister asked this Telephone Operator to connect him with Syed Ghous Ali Shah and from. The same extension Seed Mehdi told him to connect Rana Maqbool Ahmed also, as Prime Minister wanted to speak to him.
Obviously, Asif would have been able to connect the call to Syed Ghous Ali Shah or Rana Maqbool Ahmed long after 6.00 p.m. And not at 5.45 p.m. Or earlier. This has created a wide gap, in consequence whereof the prosecution and not these respondents shall suffer.
256. Again, according to Ihsanullah Gondal, he had complied with direction of DIG Akhtar Memon to whom instructions were given by Rana Maqbool Ahmed. The Trial Court has rightly rejected this piece of evidence as being hearsay and inadmissible, since Akhtar Memon was not examined by the prosecution to plug the gap. The Trial Court had also rejected the evidence of Ihsanullah Gondal because of his exaggerations and improvements made against his earlier statements recorded under Section 164 and 16.1, Cr.P.C., inter alia, on the ground that he had gone even beyond the story of prosecution, by adding a fact that he was directed to arrest General Pervez Musharraf which was absolutely outside the domain of alleged conspiracy.
257. Evidence has also come on record that no APC was seen at airport and although Manzoor has stated that he was asked to convey message to all SSPs but it seems, either the message was not conveyed or this is an appendage to strengthen the story. Anyhow, absence of APCs, as stated by SSP Bashir Ahmed Memon, creates a further blank in the evidence as regards the allegation that respondent Syed Ghous Ali Shah and Rana Maqbool Ahmed were posed to take over the Airport.
Learned Trial Court, while dealing with this point, has correctly opined that the alleged preparations made by respondent Rana Maqbool Ahmed were hardly feasible to take of the airport in presence of Airport Security Force. Despite this, as already stated, it could not reasonably be conceived that in presence of Army these respondents could muster courage to control the airport in presence of well-armed Force. They could hardly be expected to deploy few police officers in head on confrontation with such strong Force. The Trial Court was also justified in discarding this part of the story when the discrepant versions given by Atiquzzaman and Rukhsar Ahmed were irreconcilable.
The Trial Court has rightly gathered the impression that it was not probable that these two personalities of the Province would wait for the startling advice of DIG Muhammad Akbar to frighten them and then leave the airport.
258. It seems, the prosecution has attempted to strengthen the case by levelling allegations to create an impression that Syed Ghous Ali Shah and Rana Maqbool Ahmed, with full force, had participated in the conspiracy, but in doing so the prosecution witnesses exaggerated the facts and gave different timings and made irreconcilable statements which were discrepant and unbelievable. Proof of conspiracy needs evidence with regard to a particular design and then the Court has to look toward express, implied or tacit agreement between such participants and in that event even utterances would be relevant but the testimonies placed on record as against these respondents have diverged in different dimensions. Certainly, in such circumstances, the doubt obtaining from the testimonies is to be resolved in favour of the accused persons, and exactly the same has been done by the Trial Court. There is no reason to interfere with it's finding, which is accordingly maintained.
259. In result of the foregoing discussion it is concluded that the Acquittal Appeal fails. We may, however, repeat that these are the reasons for the short order dated 30.10.2000.
260. In the end, we would earnestly record our note of great appreciation for the enormous and valuable assistance rendered by the learned counsel for both parties who, with their rich legal experience and acumen enabled us to understand, determine and interpret questions of law as also to evaluate and assess the evidence of a large number of witnesses.
SARMAD JALAL OSMANY, J. - I have had the privilege of going through the detailed reasons recorded by1 the Hon'ble Chief Justice and my learned brother Wahid Bux Brohi, J. In all the above Appeals.
As per the short order dated 30.10.2000 I had already agreed to the conclusions reached by them in Special 'Cr. A.T. Acq. Appeal No. 46 and Special Cr. A.T. Appeal No. 50 of 2000 and also respectfully agree with the detailed reasons for both of these Appeals. As far as Special Cr. A.T. Appeal No. 43/2000 is concerned, however, I had differed only as to the crime which had been committed by the appellant viz. Wheres the Hon'ble Chief Justice and my learned brother had come to the conclusion that the appellant was guilty of having committed the crime of hijacking I had opined that he had committed the crime of abduction punishable under Section 365, PPC and accordingly had imposed a lesser sentence with regard to imprisonment only whereas the sentence with regard to fine was the same. The following are my reasons for having arrived at this conclusion.
2. Before I dilate on such reasons, I would like to record that I respectfully agree with the Hon'ble Chief Justice and my learned Brother as far as their reasoning is concerned and the conclusions which they have reached with reference to the following:-
(A) The veracity and acceptability of approver Aminullah Choudhry's testimony and satisfaction of the double test . Viz. That the approver is a reliable witness and sufficient corroboration is forthcoming as to his testimony.
(B) The reliability of other witnesses, particularly PW-15 Muhammad Asif, the Telephone Operator in the Prime Ministers House, Islamabad, PW-16 Muhammad Sadiq, Telephone Operator of PW-1 Aminullah Choudhry, PW-2 Syed Yousuf Abbas, Chief Operating Officer, Civil Aviation Authority, PW- 14 Wing Commander Ahmed Faruq, Secretary to PW-1 Aminullah Choudhry, PW-6 Aqil Ahmed, General Manager Traffic, Civil Aviation Authority, PW-4 Muhammad Asif, Air Traffic Control Officer, Civil Aviation Authority, PW-7 Nadeem Akber, Air Traffic Control Officer, Civil Aviation Authority, PW12 Asadullah Shaikh, Shift incharge, Civil Aviation Authority, PW-13 Manzoor Ahmed, Air Traffic Controller, Civil Aviation Authority, PW-9 Sarwat Hussain, Captain of flight PK-805 PW-18 Brigadier Tariq Nadeem, PW-14 Commander Zahid Mahmood and PW-19 Brigadier Javed Iqbal, Military Secretary to the appellant.
Consequently, while relying upon the testimony of the aforementioned witnesses I have no hesitation in answering point No. 1 in the positive viz. That the appellant prevented PI A Flight PK-805 from landing at its scheduled time and place and ordered its diversion to a destination out of Pakistan. However, cis already observed above, with respect, I am unable to agree that this act amounted to commission of the offence of hijacking as defined in Section 402-A, PPC which is the second point for determination. In this connection, it would be seen that Section 402-A defines hijacking as follows:- "Whoever unlawfully, by the use or show of force or by threats of any kind seizes, or exercises control of an aircraft is said to commit hijacking."
Section 402-B prescribes the punishment for hijacking vfz:- Whoever commits or conspires or attempts to commit, or abets the commission of hijacking shall be punished with death or imprisonment for life, and also be liable to forfeiture of property and fine."
Consequently, it would be seen that Section 402-A contains the following essential ingredients as highlighted in the majority opinion:-
(a) that the act itself should be unlawful;
(b) there should be use or show of force; or
(c) there should be any threats of any kind; and
(d) above acts should resuit in seizing and exercising control of an aircraft.
In my humble opinion, the most important ingredient from amongst the afore-mentioned is that the act itself should be unlawful as this term appears in the opening part of Section 402- A. This is for good measure as the law maker in its wisdom had contemplated a situation whereby although control of an aircraft was seized or exercised by use or show of force or by threats of any kind the same was done lawfully, In short, an exception has been made to the crime of hijacking viz. When it could be established that the control of an aircraft was lawfully. Seized by use or show of force etc. The next question would be as to the nature of a lawful seizure or exercise of control over any aircraft? The answer in my opinion would be found in Section 6(1 )(B) of the Civil Aviation Ordinance, 1960 which provides: "In the event of war or other emergency, or in the interest of public safety and tranquility, if the Federal Government is of the opinion that the issue of all or any of the following orders is expedient, it may by notification in the official Gazette:- "(B) Prohibit either absolutely or subject to such conditions as it may think fit to specify in the order, or regulate in such manner as may be specified in the order, the flight of all or any aircraft or class of aircraft over the whole or any part of Pakistan."
In this connection it would further be seen that the appellant was the then Prime Minister of Pakistan, It has also come on the record that he was the Defence Minister as well and hence exercised full administrative control over the Civil Aviation Authority, which is a part of the Ministry of Defence. Consequently, in my view, the appellant had the power and the necessary authority to divert the aircraft if the conditionalities present in Section 6(1 ^(B) were satisfied. Admittedly the country was not in a state of war on 13th of October, 1999 in which event it remains to be seen whether there was any emergency or in the interest of public safety or tranquility that the diversion of the aircraft would be justified.
3. The evidence on the record as to whether there was an emergency or whether it was in the interest of public safety or tranquility to order such diversion on the day of occurrence can be fund firstly in the evidence of PW-19 Brigadier Javed Iqbal, the Military Secretary to the appellant. An analysis of his testimony would establish that on 13th October, 1999 during the journey from Islamabad airport to the Prime Minister's House the appellant was discussing with the Defence Secretary some development with respect to the Chief of the Army .Staff viz. Regarding a news item on It. General Tariq Pervez's retirement on the basis that he had met the appellant without the prior approval of the GHQ, which the appellant disapproved of. At this, the Defence Secretary observed that perhaps the matter could be discussed with the Army Chief to which the appellant replied that the time for this discussion was over. Upon arrival at the Prime Minister's House the appellant informed the Secretary Defence that the new Army Chief would be General Ziauddin, the then Chief of ISI and had directed the witness to immediately call him to the PM House. By this time, the Principal Secretary Saeed Mehdi had also arrived at the PM House, whereupon the appellant had instructed him as well as the Secretary Defence to prepare the necessary notification*for the replacement of the Army Chief. This was between 3.15 to 3.30 p.m. On the fateful day. General Ziauddin had reached the PM House at about 4.00 p.m. And met the appellant in the Meeting Room. At about 4.20 p.m. The Secretary Defence along with the Principal Secretary came to the Meeting Room with the notification in their hands for the purpose of getting it signed by the appellant. He did so and left the Prime Minister House at about 4,30 p.m. For the President's House.
The appellant returned to the PM House just after 5 O'clock and then at about 5.15 p.m. He asked the witness to arrange a formal meeting with the new Army Chief along with photo coverage, whereafter the appellant had put on the new badges of rank on General Ziauddin. At about quarter to 6, the appellant had instructed the witness that he should immediately go to the PTV station at Islamabad where, some soldiers had taken it over. The witness did so in a police car accompanied with three policemen and also took with* him a few police personnel from the gate of the PM House. The witness returned to the PM House at Between 6.15 to 6.30 p.m. After he had disarmed the few soldiers at the PTV station. The witness accordingly informed the appellant about the completion of his task and when he had come out from the appellant's office, PW14 Commander Zahid Mahmood told him that the aircraft which was carrying the Army Chief had been diverted at the instruction of the appellant to Nawabshah where it was be re-fueled and sent to a destination in the Middle East. Then the witness spoke to D.G. Civil Aviation Authority who informed him that only 30 minutes' fuel was left in the aircraft. The D.G. Also repeated that since only 30 minutes' fuel was left, therefore, what should be done, upon which the witness asked the D.G. To make the aircraft land at Nawabshah immediately, the D.G. Said that the aircraft could only land at Karachi, whereupon the witness immediately replied that this should be done in view of the emergency.
Then at about 7 p.m. He. Was informed that the army had taken over the PM House.
4. Reverting now to the deposition of PW-14 Commander Zahid Mahmood, his version is that after he had typed out the notification for change of army command and had given the same to Saeed Mehdi he saw the appellant leaving for Aiwan-e-Sadar. At about 5 p.m. The witness saw a special TV bulletin that General Pervez Musharraf had been retired and General Ziauddin had been appointed in his place after his promotion. The witness has fully corroborated PW-19 Brig. Jawed Iqbal's testimony that about 5.45 p.m. The latter had left for the PTV Station. Earlier the witness had also stated that at about 5.30 p.m. The Chairman PTV Centre Pervez Rasheed, who was present at the PM House, called the PTV station inquiring about the presence of army troops there.
Consequently, at this stage it would be safe to conclude that after the news of change in the army command was flashed on PTV at 5 p.m. (or 5.30 p.m.) some of the army personnel had reacted adversely and had started taking steps to thwart the same and in this connection army troops had been sent to the PTV Centre in order to take it over.
It would also be seen that according to the deposition of PW Zahid Mahmood at about 5.45 p.m.
The appellant had asked the witness as to the arrival time of PIA flight from Male and when he was informed that this would be at 7 p.m. The appellant had asked the witness to contact Chairman PIA Shahid Khaqan Abbasi and directed him to divert the flight to Muscat. This message was passed by the witness to the Coordination Officer of Chairman PIA. Then the Chairman PIA called up the witness and informed him that the aircraft did not have enough fuel and could only go to Nawabshah and not Muscat which information was also conveyed to the appellant who then remarked that why not let it land at Karachi. At this Saeed Mehdi advised that this course of action would be dangerous as the army would be present at Karachi, to which the appellant replied that the army could!J also be present at Nawabshah as it was only a matter of time. Thereafter the witness informed the Chairman PIA that the aircraft should be diverted to Nawabshah and after refueling it should depart for Muscat. This was done at about 6.15 p.m. Under cross- examination, the witness had admitted that within half an hour of the special TV bulletin the army had reached PTV station and also that it had reached the Prime Minister's House at 6.30 p.m. And had taken over control of the telephone exchange at 6.45 p.m.
5. PW-1 Aminullah Choudhry has also confirmed in his deposition that the first call received by him from the appellant regarding diversion of the aircraft was a little after 6 p.m. And this has been corroborated by PW-20 Wing Commander Ahmed Faruq, Secretary to Aminullah Choudhry who has deposed that the latter had informed him about the appellant's instructions regarding diversion of the aircraft a little after 6 p.m. So also PW15 Muhammad Asif the Telephone Operator of the PM House, had stated that at about 6 p.m. He had connected the appellant to Chairman PIA Shahid Khaqan Abbasi and a few minutes later to PW-1 Aminullah Choudhry. Again PW-16 Muhammad Sadiq, the telephone Operator of Aminullah Choudhry has. In his turn confirmed that the first call by the appellant to Aminullah Choudhry was made after 6 p.m. When the second call was connected after 10 minutes of the first call. From the foregoing it in quite evident that the appellant had spoken both to Chairman PIA Shahid Khaqan Abbasi and PW-1 Aminullah Choudhry after 6 p.m. Regarding the diversion of the aircraft in question. Similarly the instructions given to PW-14 Zahid Mahmood regarding such diversion to be passed on to Chairman PIA was done after 6 p.m. It would also be seen that as per the evidence on the record particularly PW-19 Brigadier Jawed Iqbal, the appellant had announced the replacement of General Pervez Musharraf, the Army Chief of Staff, on the way from Islamabad airport to PM House between 3.15 p.m. To 3.30 p.m. On the fateful day and at about 5.15 p.m. The badges of rank were affixed on the new army chief General Ziauddin by the appellant in front of TV cameras. The news of change of command was flashed on PTV through a special bulletin at 5.30 p.m. And the army had reacted to the same by sending some troops to the PTV station in order to take it over, since as per Commander Zahid Mahmood, the Chairman PTV Centre Pervez Rasheed, who. Was present at the PM House, had called the PTV Centre at about 5,30 p.m. Inquiring about the presence of the army troops there. The presence of such troops has also been fully authenticated through the version of Brigadier Jawed Iqbal, who had at about 5-45 p.m. Left for the PTV station In order to disarm army troops present there, In my view, therefore, the appellant had realized that the army had reacted adversely to the change of command and he, in turn, had firstly asked Brigadier Javed Iqbal to control the situation at the PTV station and thereafter decided to divert the aircraft carrying the Army Chief of Staff in order to protect himself and his Government for which purpose he had spoken directly to Chairman PIA and D.G. CAA. This was an emergency as' far as the appellant was concerned, It would be significant to note here that Section 6(1)(b) of the Civil Aviation Ordinance provides that the order, inter alia, of diversion of any aircraft could be made if in the opinion of the Federal Government it was necessary due to war and other emergency or in the interest of public safety and tranquility. As the opinion was that of the Federal Government and at that time the appellant was the Prime Minister as well as the Defence Minister, in my view, it was his opinion which has not been displaced in the circumstances of the case. For all the foregoing reasons I am of the opinion that no offence of hijacking was committed by the appellant on 13th October, 1999 when he ordered the diversion of flight PK-805 from. Karachi to Nawabshah and thereafter out of Pakistan.
6. Having reached the conclusion as afore-mentioned the next question would be, as to what if any crime had been committed by the appellant when he ordered the diversion of the aircraft, In this regard, it would be seen that under the scheme of the Pakistan Penal Code most of the offences prescribed thereunder are ipso facto unlawful unless af course they can be covered under the exceptions available in Sections 76, 79 and 81 thereof, which provide for condonation of offences where they are committed under mistake of fact by a person, who thinks that he was bound by law to do so or if justified by law and done in good faith or if done without any intention of causing harm and so as to prevent the loss of life and property. Consequently, although there may be a diversion of an aircraft which may be lawful as already observed above, in my opinion there cannot be a lawful murder, abduction, kidnapping etc. Of course these crimes may be condoned under Sections 76, 79 and.81 PPC. In my opinion, therefore, while diverting the aircraft in question on 13th October, 1 999 although the offence of hijacking was not committed by the appellant, he certainly committed the offence of abduction, It may be said that the offence of hijacking necessarily includes the offence of abduction, but as observed above if the offence of hijacking can be condoned as being lawful it does not necessarily follow that the offence of abduction is lawful too, because the two offences are very much distinct and operate in their own particular spheres, In this regard, reference may be made to Section 362, PPC which defines abduction as, "whoever by force compels, or by any deceitful means induces, any person to go from any place is said to abduct that person". Section 365 prescribes the punishment for kidnapping or abduction with intent to secretly and wrongful confine a person to be seven years imprisonment of either description plus fine, In this context, it would be seen that the general exceptions as afore- mentioned in Sections 76,'79 and 81, PPC would also not apply to the facts of the case, as the burden of proving the same were upon the appellant mere Article 121 of the Qanun-e-Shahadat Order, In this regard, I would respectfully agree with the Hon'ble Chief Justice and my learned Brother that this burden has not been discharged by the appellant particularly in view of Article 122 of the Order, which enjoins that where any fact is specially within the knowledge of any person the burden of proving that fact is upon him. Hence in my view the appellant was guilty of having committed the offence of abduction when he ordered the diversion of PK 805. Point No. 2 is, therefore, answered in the foregoing terms.
As far as Point No. 3 is concerned viz. Whether the appellant committed an act of terrorism when he ordered the diversion of the aircraft in question this is answered in the positive since Section 365, PPC is included in the schedule to the Anti-Terrorism Act, 1997. Finally with regard to Points Nos. 3 and 4 as to the quantum of punishment handed down to the appellant by the learned Trial Court for the reasons as stated afore-said, in my view, the punishment of three years rigorous imprisonment for having committed an act of abduction would be justified in the circumstances of the case plus fine to the extent of Rs. 5 crore. These points are answered accordingly.