h1

P L D 2009 SC 814

Per Nasir-ul-Mulk, J–

(a)        Constitution of Pakistan(1973) Arts. 45 & 185(3)–

 The above case law demonstrates that the effects of the grant of pardon, even full, are not the same as an order of acquittal by a Court of law.  the former is granted in the exercise of executive authority as a matter of grace, regardless of merits, and cannot be a true substitute for a finding of not guilty through judicial determination.  Whereas, the pardon wipes out the consequences of conviction, the conviction itself remains intact untill annulled through a judicial process.  Thus, notwithstanding the pardon granted to the petitioner, whether complete or limited, he remains invested with a cause to get the question of his guilt determined judicially.  Till his acquittal by a Court of law, he will continue to carry the stigma of conviction for a crime.  Every citizen is entitled to have his name cleared, if unjustifiably suisllied, and it should be of particular importance to the petitioner, who remained Prime Minister of the Country twice and is presently leading major political party, to remove the stigma of conviction for a crime and that too of hijacking, generally associated with terrorism.  The first objection raised by the State is, therefore, overruled and we hold the petition maintainable. [p. 828] A

(b)        Constitution of Pakistan(1973) Art. 185(3)–

The period of delay of more than eight years in filing the present petition for leave to appeal can be broadly divided in two phases, the first is the petitioner’s absence from the country for about seven years and the second is his abstinence from approaching this Court for almost a year and a half after his return.  For the purpose of condonation of delay for the first phase, the circumstances under which the petitioner left the country are not as relevant as the resolution of the issue whether the petitioner was prevented from returning to the country.  It has been the consistent stand of the petitioner that despite efforts he had not been allowed to return toPakistan. This stand is substantiated by the judgment pronounced by this Court in the case of Pakistan Muslim League (N) v. Federation of Pakistan and others (PLD 2007 SC 642) (ibid) and the ensuing events.  It was declared that the petitioner was entitled to enter and remain inPakistanand that no hurdle or obstruction was to be created by any authority to prevent the petitioner’s return. Pursuant to the said direction, the petitioner embarked on a return journey to Pakistan and took a fight fromLondonto Islambad.  However, after landing atIslamabad, he was to allowed to leave the airport and was sent out of the country.  IN view of violation of the order of this Court, an application for contempt of Court was filed before this Court.  A similar abortive attempt was earlier made in the year 2004 by the petitioner’s brother, Mian Muhammad Shahbaz Sharif, and he was not allowed to leave the airport and put on a fight destined for overseas.  The above facts clearly demonstrate that the petitioner was prevented from returning to Pakistan.

 The stand taken by the petitioner in the above paragraphs was also taken before us in Review Petition Nos. 45 and 46 of 2009 in Civil Petition Nos. 778 and 779 of 2008 titled Federation of Pakistan v. Mian Muhammd Nawaz Sharif and others.  There the petitioner had not challenged before this Court his disqualification by the Lahore High Court to contest election for the National Assembly nor did he appear as respondent when the judgment of the High Court was assailed by the Federation of Pakistan.  In the said review petitions, a specific issue (Issue No.) regarding his stand was framed: “Whether petitioner’s non-appearance could be condoned for the reasons given by him and whether the findings given without hearing him have led to miscarriage of justice amounting to an error on the face of record to warrant exercise of review jurisdiction?.”  After detailed discussion on the observations made on the question in the judgment under review and extensively guoted there from, we had accepted the petitioner’s explanation for non-appearance in the following terms :

             “……..However, on a deeper appreciation of the stance taken and after hearing their learned counsel, it has been found by us that petitioner’s non-appearance was not attributable to a personal bias against the Court then constituted  but on account of a public stand that they had taken before entering the process of elections i.e. the collective oath which they and all the party candidates had taken on the issues relating to the imposition of “State of Emergency” on 3rd of November, 2007 and a resolve to launch a movement for the restoration of superior judiciary. The restoration of the Hon’ble Cheif Justice of Pakistan and others judges who were deposed on the imposition of “State of Emergency” and the immediate appearance of the petitioners by way of fitting these review petitions indicate that the stance taken was based on a certain moral grounds which stood vindicatred.  The same cannot be dubbed as either contumacious or reflective of acquiescence to warrant the impugned findings.”

 Thus we have already accepted the petitioner’s explanation for his non appearance before the Superior Courts in a case of his disqualification to contest election.  There is all the more reason we accept the same as valid in a criminal matter to condone delay for not filing petition against his conviction and sentence soon upon returning home.

 Additionally, this Court is always slow in dismissing petitions against conviction and sentence on the question of limitation and is more inclined to examine the case on merits in order to prevent grave miscarriage of justice notwithstanding delay.  There is no dearth of case law in support of this proposition, reference, however, may be made to some authorities citied by the learned counsel for the petitioner.

 Under Rule 4 of Order XXIII of the Supreme Court Rules, 1980, leave to appeal in criminal matters are to be filed within 30 days from the date of judgment or final order sought to be appealed from. However, the second proviso to the Rule empowers this Court to extend the time if the petitioner is able to show sufficient cause.  Sufficiency of the cause depends upon the circumstances of each case.  In the light of what has been discussed above, the circumstances which prevented the petitioner from filing petition against his conviction and sentence were indeed extraordinary and we consider these to be sufficient cause for extension of time.  The second objection raised is, therefore, not sustainable. [pp. 830,831, 832, 833] B,C,D & E.

 (c)        Constitution of Pakistan(1973) Arts. 185(3)–
r/w Penal Code (XLV of 1860)– S. 402-B–Civil
Aviation Ordinance (XXXII of 1960), S.6–

From narration of the above facts, we are left in no doubt that serious differences had developed between the petitioner and General Prevail Mascara, the then Chief of Army Staff.  In view of certain moves on the part of the latter, as mentioned by the petitioner in his statement, he was led to believe that General Prevail Mascara was planning a military takeover.  It was in this context that the petitioner brought about change in the military leadership and had reasons to believe that the change could create some restiveness in the Army Ranks which turned out to be true as soon after the flash of the news about the change, the Army made a move.  It was under these circumstances that the petitioner had decided to divert the Aircraft carrying General Prevail Musharraf to another country, according to the defence, with two objective; to prevent division in the Army with two claimants to the office of the Chief Army Staff and secondly, to protect the constitutional government headed by the petitioner.

The question is whether the petitioner was justified in view of the foregoing circumstances to exercise his powers under Section 6 of the Ordinance. The opinion to be formed under the said provision is upon subjective assessment of the facts by the person forming the opinion.  The correctness or accuracy of formation of such opinion cannot be questioned so long as grounds exist from which it is possible to draw such an inference.  The opinion of the petitioner that prevention of General Pervaiz Musharraf from return to the country was necessary for public safety and tranquility was well founded in view of the events that had already taken place. The correctness of the formation of opinion is not to be adjudged on the touchstone of the subsequent development or events but on the basis of the material available at the time of forming the opinion.  The learned Judges in the High Court had erred in holding that since no division took place in the Army on the appointment of the new Chief of Army Staff; the petitioner’s opinion was unfounded.  However, upon this reasoning of the High Court, the petitioner’s apprehension that his government established under the Constitution was under threat from General Pervaiz Musharraf, had turned out to be true.  Even upon applying the objective test a prudent man faced with the circumstances mentioned above would have drawn the same opinion as the petitioner. did.

There is another aspect of the issue of unlawfulness or otherwise of the petitioner’s instructions to Mr. Amin Ullah Chaudhry (P.W.1) regarding diversion of the aircraft.  He being Director General of the Civil Aviation Authority, performed functions under the Civil Aviation ordinance, 1960 and the Rules framed thereunder.  He was the administrative head of the Authority and was expected to be aware of the provisions of the law under which he functioned.  Had the instructions to him by the petitioner been unlawful, he was under obligation not to follow the same, or at least to have brought it to the notice of the petitioner; he had done neither.  Though ignorance of law is no defence, but according to the working of the Government Department and Ministries, if Minister issues an unlawful order, it becomes the bounden duty of the concerned civil servant to bring it to the notice of the Minister that the order is not in accordance with law.  Though P.W. 1 in his testimony before the Court had claimed that the orders were implemented on account of his subordination, he never alleged during the investigation or the trial that the instructions received by him were unlawful.  It can also mean that P.W.1 considered the instruction lawful and thus proceeded to carry them out without hesitation.

The above discussion leads us to conclude that at the relevant time the petitioner was not only possessed with the authority under Section 6 of the Ordinance to order diversion of the aircraft but the evidence on record shows that on the subjective assessment of the circumstances its exercise was not unjustified.  The instructions by the petitioner to divert the fight were, therefore, not unlawful.  The prosecution has thus failed to prove the first ingredient of the offence of hijacking.  The finding of the Appellate Court on this point is reversed.

The learned Prosecutor General, however, argued that the petitioner had not been able to prove good faith in order to claim protection under the said provisions and in this context he referred to the definition of good faith provided in section 52, P.P.C., which reads “Nothing is said to be done or believed in good faith which is done or believed without due care and attention.  “Since we have already held that the petitioner was not only empowered under Section 6 of the Ordinance to order diversion of the airplane but the power was validly exercised, the instructions were not unlawful, it will, therefore, be unnecessary to dilate upon the alternative argument advanced on behalf of the defence.

The prosecution star witness, Aminullah Chaudhry, who statedly implemented the instructions of the petitioner regarding diversion of the aircraft, claims to have received three telephonic calls from the petitioner regarding the Flight. In the first contact made soon after 6-00 p.m. the petitioner is alleged to have instructed the witness to ensure that the aircraft does not land at any airport inPakistan.  In the second call made about 10/15 minutes later, the witness alleges that after he had provided the petitioner detailed information of the Flight, the petitioner reiterated his earlier order, with further direction to divert the aircraft to any country in theMiddle East, other thanDubai.  The witness claims to have received the third call from the petitioner, when notwithstanding that the petitioner was informed about the shortage of fuel in the aircraft, his response was of strict compliance of his earlier orders. This third call has been seriously disputed by the defence and the learned counsel for the petitioner has referred to the evidence to demonstrate that the third call was never made.  The contention has substance.  The Telephone Operator at the Prime Minister House, Muhammad Asif (P.W. 15) mentioned only one call from the Prima Minister to P.W.1 whereas Muhamamd Sadiq (P.W.16) the Telephone Operator of P.W. 1 refer to only two calls from the Prime Minister House.  Thus there is no confirmation of the third call by the petitioner to P.W.1.  Furthermore Zahid Mehmood (P.W. 14), who was present with the Prime Minister at the relevant time, had disclosed that it was Shahid Khaqan Abbasi, who had called him to inform about the insufficiency of fuel in the aircraft for journey to Masqat. The witness went on to add that after he had disclosed this information to the petitioner he directed that Shahid Khaqan Abbasi be informed that the aircraft be diverted to Nawab Shah and after its refueling, be dispatched to Masqat.  This information was conveyed to Shahid Khaqan Abbasi at about 6-15 p.m.  The above narration clearly negaters the claim of P.W. 1 of his conversation with the petitioner regarding shortage of fuel.  the evidence thus shows that the only information regarding shortage of fuel to the petitioner came from Shahid Khaqan Abbasi whereupon the petitioner ordered that the aircraft be allowed to land at Nawab Shah for refueling.  This conclusion from the evidence takes the sting out of prosecution case as it was on strength the evidence takes the sting out of prosecution case as it was on strength of the third call claimed to have been received by P.W. 1 that the prosecution had endeavored, unsuccessfully, to demonstrate that notwithstanding the petitioner’s having gained knowledge of the shortage of fuel he nevertheless ordered that the plane should not be allowed to land any were in Pakistan, and thereby putting at risk the lives of the passengers on board of the plane.

The prosecution’s own case put forth through the testimony of P.W. 1 is that the only direction that the petitioner gave was that the aircraft should not be allowed to land in Pakistan and that it be diverted to another airport in a Middle Eastern country.  It is not the prosecution case that the petitioner had either ordered the closure of the airport at Karachi nor Nawab Shah or that he had given any specific instruction to switch off the lights and block the runway at Karachi Airport in order to prevent the aircraft from landing P.W. 1 did not alleged that the petitioner had instructed blocking of the runway and when questioned, he categorically stated that the petitioner had given no instructions to close the airports at Karachi or Nawab Shah.  On the other hand Nadeem Akbar (P.W. 7) the Air Traffic Control Officer at the Airport, who received the instructions from PW-1 to close the airport, stated in cross-examination that blocking of the runway by placing fire-brigade vehicles was his idea. The witness admitted that for closure of the Airport, it was not necessary to block the runway.  Even if we were to accept the instructions given by the petitioner to P.W.1 in the two calls made to the instructions given by the petitioner to P.W.1 in the two calls made to the latter, the same were only to the extent of diversion of the aircraft.  The petitioner had neither instructed closure of the airports nor blocking the runway, nor indeed was he informed of the same.  It was a decision taken at lower level, without the knowledge of the petitioner. The decision to close the airports was taken by P.W1 and to block the runway by PW Nadeem Akhtar.  It is not even the prosecution case that the petitioner had given any direction to use or show force to prevent the landing of the aircraft nor that the petitioner was at any time informed for his approval of the modes adopted to implement his instructions. The Appellate Court as well as the Trial Court had wrongly burdened the petitioner with the responsibility of acts done without his instructions and knowledge.  For the purpose of fixing criminal liability for acts done pursuant to instructions, it must be shown that those very acts were part of the instructions and cannot deduce by implication, be deduced therefrom.

By the definition of hijacking given in section 402-A, P.P.C. the seizure or control of the aircraft by the hijacker must be the result of use of show of force or by threats of any kind.  Whether the petitioner had taken control of the aircraft would be the subject of the discussion later but presently we propose to examine as to whether the Pilot of the aircraft was in anyway influenced by any use or show of force or any threat.  This is to be seen in the light of the three factors, discussed above, from which the Appellate Court and the trial Court found the exercise of show or threat of force.  In this context we would first refer to the statement of PW-1, who stated in his examination-in-chief that while instructing the Chief Operational Officer, Syed Yousuf Abbas (P.W.2) to monitor the Flight from Air Traffic Control Tower, he had cautioned him not to divulge to the Pilot of the aircraft the reasons for closure ofKarachiandNawab ShahAirports.  The Pilot was, therefore, unaware of the reasons for diversion of his aircraft.  The Pilot, Capt. Syed Sarwat Hussain (P.W.9) confirm this, as he only suspected that this exercise had something to do with General Perviaiz Musharaft, being on board in the Flight.  The Captain was also completely unaware that the runway had been blocked and the lights were switched off.  No such information was conveyed to him.  Rather in his examination-in-chief he stated “after some time we were allowed to park at the international gate and normal passenger disembarkation took place.  We learnt at this point that the air area field was blocked by the vehicles and the lights were turned off”.

The next question is whether the Pilot was under any threat on account of shortage of fuel in the aircraft.  In this connection we would refer to our earlier conclusion that upon learning at about 6-15 p.m. that fuel in the aircraft was insufficient to take it to Masqat, the petitioner ordered its landing and refueling at Nawab Shah.  We may note here that the aircraft eventually landed atKarachiairport at 7-50 p.m. Capt. Syed Sarwar Hussain (P.W.9), did state in his examination-in-chief that the fuel in the aircraft was enough to land at Nawab Shah airfield.  He went on to add that “after some time Karachi ATC gave us clearance to proceed to Nawab Shah and we started towards Nawab Shah in a climb.”  It seems that this direction was in accordance with the instructions already issued by the petitioner and had the same been followed the plane would have very safely landed at Nawab Shah.  While midway to Nawab Shah, the Pilot received another instruction from Karachi ATC at about 7-10 or 7-15 p.m.” for landing atKarachiAirport. This second instruction to the Pilot given about more than half an hour before the actual landing atKarachi, was admittedly not given by the petitioner.  according to the prosecution case, these instructions were given to P.W.1 by Brig. Javed Iqbal (P.W. 19) Military Secretary to the petitioner, on his own initiative, after he was informed about the shortage of fuel in the aircraft by Zahid Mehmood (P.W. 14).  This conversation, however, is not supported by P.W. 14.  Interestingly, the reason given by P.W. 19 for deciding to redirect the plane toKarachi, was the information he claims to have received from P.W. 1 that the plane did not even have enough fuel to reach Nawab Shah. P.W. 1 contradicts this version, who simply stated “a little while later I got a telephonic call from the Military Secretary to the Prime Minister, Brig Javed.  He informed me that now the orders were that the Air Craft should be brought back to Karachi Air Port.”  Syed Yousuf Abbas (P.W.2) who was at the Control Tower, mentioned that he had received instructions from P.W. 1 for landing of the aircraft at Karachi but before he could pass on the instructions to the aircraft, he divulged “at that moment a contingent of Pakistan Army entered the Control Tower and Brig. Jabbar ordered me for return of PK-805 to Karachi, I immediately told Mr. Asif to inform Mr. Manzoor in radar for return of PK 805.  After about 3 to 4 minutes some higher officials of Pakistan Army also entered the Control Tower and strictly ordered diversion of PK-805 to Karachi.  Major General Iftikhar spoke to Mr. Aqeel Ahmed in area Control Centre and gave him similar instructions.  The instructions to the Pilot for redirection of the plane to land at Karachi was thus given on the orders of Army Officers, Brig.  Jabbar and Major General Iftikhar, and not by the petitioner.

 According to the prosecution own showing, the petitioner had directed that the plane be diverted to Nawab Shah for refueling for onward journey to Masqat. P.W. 14  says that the instructions for refueling at Nawab Shah were given by the petitioner at about 6-15 p.m. almost an hour and half before the plane eventually landed Karachi. It is, therefore, not difficult to conclude that in view of the petitioner’s instructions regarding refueling at Nawab Shah, the Pilot was under no threat on account of shortage of fuel.  Implementation of such instruction would have got the aircraft safely landed at Nawab ShahAirport.

 There is another aspect of the issue of closure of Karachi and Nawab Shah Airports and shortage of fuel.  According to the Pilot while midway to Nawab Shah, he received instruction from Air Traffic Control at about 7-10 or 7-15 p.m. to return toKarachi.  He disregarded this instruction from Air Traffic Control in view of the Confusion created in his mind by the different instructions he had received from Air Traffic Control. That he had decided to land atKarachionly after Major General Iftikhar had spoken to General Pervaiz Musharraf and in cross-examination, he categorically stated “it is correct that without the said confirmation I would not have landed atKarachi.” He further admitted that General Pervaiz Musharraf spoke to the Air Traffic Control Tower and that he wanted to know as to who was in control of the Tower.  It is, therefore, clear that when the Pilot received the instruction from Air Traffic Control to return toKarachi, both the airfields, atKarachiand  Nawab Shah, were open to the aircraft for landing.  It appears that the reason for the pilot to delay landing at Karachi for more than half an hour was not on account of any confusion that he claims, as he had received clear instructions from the Tower to land at Karachi but due to General Pervaiz Musharraf’s anxiety that the landing should not be made until all was clear for him.  The record shows that the troops had taken control of theKarachiAirporteven before 7:0 p.m.  This is evident from the statements of two witnesses, the complainant, Ltd. Col. Atiq-uz-Zaman and PW Nadeem Akbar, Air Traffic Control Officer.  At the trial the former stated that the troops of 5 Corps reached the airport at about 7-00 p.m. but when confronted with his written complaint (Exh.50), he admitted that he mentioned the time as 6-45 p.m.  He further confirmed that Lt. Gen. Muzaffar H. Usmani, Commander 5 Corps arrived at the airport at 6-40 p.m.  That Syed Ghous Ali Shah and Rana Maqbool Ahmed arrived at the Airport at 7-00 after the troops had already reached the airport. P.W. Nadeem Akbar stated that he received telephone call at the airport. P.W. Nadeem Akbar stated that he received telephone call at 6-40 p.m. from General Iftikhar, directing him not to divert airplane anywhere.

 It thus follows that since the Pilot was unaware of the blocking of the runway and he had sufficient fuel to land at Nawab Shah as well as at Karachi, he was not influenced by the circumstances alleged by the prosecution and was thus under no threat.

 The above discussion leads us to conclude that since the petitioner had neither ordered closure of the airports nor blocking of the runways, rather he had issued instructions for the plane to land at Nawab Shah once he gained knowledge of insufficiency of fuel.  Furthermore, the Pilot did not remain under any threat.  The findings of the Courts,  on this ingredient, are contrary to the evidence on record and therefore warrants reversal, and it is accordingly so held.

 The third ingredient required to be proved by the prosecution is that as a result of his unlawful act and the use or show of force, the accused had seized of exercised control of the aircraft.  For holding that the petitioner took control of the aircraft, the learned Appellate Court has heavily relied upon the judgment of this Court in the case of Shahsawar v. The State (2000 SCMR 1331) that he offence of hijacking stood completed no sooner the aircraft was diverted forcibly to a different destination.  The learned Appellate Court thus found the petitioner to have exercised control of the aircraft the moment it was diverted on his instructions.  The facts of the cited case are materially distinguishable from those of the present.  There, the accused on board the flight from Turbat toKarachientered the cockpit of the aircraft and at gunpoint ordered the pilot to take the plane toJodhpur,India.  However, upon some clever planning by the pilot, the aircraft landed atHyderabadwhere the accused were overpowered and arrested.  They were tried and convicted for hijacking.  The distinguishing features are that the hijackers in the cited case were physically present in the aircraft and by show of force, had got the aircraft diverted from its scheduled destination, whereas the petitioner was neither physically present in the aircraft nor had he in any way ordered the use of force.  In actual fact, the petitioner had only ordered the landing of the aircraft on another airport and had issued no direction that the aircraft be seized or its control be taken over.  In any case, the Pilot remained in control of the aircraft throughout, so much so that he ignored the instructions of the ATC Tower to land at Karachi, notwithstanding that he was supposed to follow the directions from the ATC and the Radar Control.  There is, therefore, no evidence that the petitioner had either instructed or had personally seized or taken the control of the aircraft.  Rather the control of the aircraft was never taken away from the Pilot.

 In the light of foregoing discussion, we have no hesitation in concluding that the directions given by the petitioner regarding Flight PK-805 were neither unlawful, nor did he use or show force or gave threat of any kind for the implementation of his directions and that he had also not seized or taken control of aircraft directly or indirectly. The prosecution has, therefore, failed to prove any of the three ingredients that constitute the offence of hijacking as defined in section 402-A, P.P.C.

 The above findings based essentially on the petitioner’s lawful exercise of powers under Section 6 of the Ordinance, and taking the prosecution evidence, to a great extent, on its face value, are sufficient to hold the petitioner not guilty.  We however, propose to further address the informalities in the prosecution case pointed out by the learned counsel for Petitioner, as, notwithstanding the plea taken by the petitioner, the prosecution still had to prove its case beyond the reasonable doubt.  it may be reiterated that the petitioner had taken the plea under Section 6 of the Ordinance for the first time at Appellate level with permission of Court whereas the Trial Court had proceeded to decide the case in the background of complete denial by the petitioner of having given any instruction regarding Flight No. PK-805.

 The approver, according to his own statement, was under house detention from 13-10-1999 till he was arrested formally by the police in the present case on 13-11-1999.  However, the investigating officer, Abdul Waqar Malhan, (PW28), the then SHO, Police Station Airport, Karachi, stated that the approver along with Syed Ghous Ali Shah, shahid Khaqan Abbasi and Rana Maqbool Ahmed, were taken into custody from Malir Cantt, Karchi P.W. 21 the then SIP, Police Station Airport, Karachi, stated that the “Army people” had handed over Aminullah Chaudhry along with said accused to the SHO.  The approver thus remained in custody of the Army for a month before he was handed over to the police.  While in police custody he made an application on 19-11-1999 to the Judge, Anti-Terrorism Court, Karachi, through his counsel wherein it was stated “It is submitted that from 15-11-1999 untill today, the above-mentioned accused person has been subjected to acute duress with the result that the accused is undergoing acute mental torture and agonies which has adversely affected his health.  It is, therefore, prayed that this Honourable Court be pleased to refer the above mentioned persons to Psychiatrist today or else the accused might die of shock.  After hearing arguments on the said application on the same day, the Court ordered “As the accused is complaining of mental disturbance. therefore, there is no harm in getting him examined through psychiatrist in order to arrive at proper conclusion about the mental condition of the accused.  Thus, the accused may also be examined through Psychiatrist and report be submitted to this Court.  “The doctor’s report was never produced, however, his police remand came to an end on 22-11-1999 and on the very next day he filed an application before the District Magistrate expressing his wish to make a statement under Section 337, Cr.P.C. on the condition that first he be given pardon and be declared an approver.  The application was allowed on the same day and on that very day he also made his statement implicating the petitioner.

 The circumstances, under which P.W. 1 became an approver, were brought to the notice of the learned Appellate Court but were not given much importance in view of the explanation given by the witness at the trial.  When confronted with the application (Exh. 14) the witness accepted that the application was moved by his counsel, Mr. Muhammad Ashraf Qazi, Advocate, but tried to explain by denying having made verbal complaint to the Court or that he had heard his counsel making such complaint to the Court as he was sitting at the back of the Court Room.  The learned Appellate Court did not give a very clear finding on whether or not the witness had made complaint to the Court but it appears that the said explanation had an influence on the Court.  The Court however had overlooked the fact that the witness had never denied the contents of the application, rather he admitted that the same was moved by his counsel.  His assertion that he had neither made verbal complaint to the Court or that he had not heard his counsel would not negate the factual assertions made in the application, which he never disowned.  There is no reason not to hold that the witness was tortured and remained under duress during the police custody from 13-11-1999 and perhaps the same continued till the such custody came to an end 3 days later on 22-11-1999, a day before he decided to become an approver.

 It is understandable that an accused becomes an approver on motivation of self interest to save his own skin. The circumstances in the present case that led P.W. 1 to become an approver indicate that he was not a free agent.  He was taken into custody by the Army soon after the incident and remained there for about one month and was then in police custody for about 10 days, during which he was tortured to the extent that he feared that ‘he would die of shock’.  Notwithstanding such complaint made to the Trial Court, he was again sent to police remand for further 3 days which ended a day before he became an approver.  he does not appear to be man of strong nerves as according to his own statement he implemented the instructions of the petitioner on account of concern for his own future, after he had heard that the petitioner had replaced the chief of Army Staff.  Additionally, he had tried to suppress truth in his testimony at the trial.  While admitting that he remained under house detention from where he was taken into custody by the police on 13-11-1999, he denied categorically that he was handed over to the police by the ‘Military People’.  This is contradicted by Chaudhry Muhammad Zubair P.W. 21, who stated that the petitioner along with his co-accused Syed Ghous Ali Shah and others were arrested by the SHO from Malir Cantt and that they were handed over to the SHO by ‘Army People’.  When asked during cross-examination he denied having made application to the Anti-Terrorism Court regarding police torture but when confronted with the application he admitted that the same was moved by his counsel.  Again in order to wriggle out of this situation, he gave an unbelievable explanation that since he was sitting right at the back of the Court Room he could not hear the arguments of his counsel.  He denied having been interrogated or investigated before the registration of the case but then went on the concede that he had appeared before a Board of Inquiry.  Above all, he had falsely introduced into the prosecution evidence, as held above, the third call from the petitioner to him which was crucial for the prosecution, who wanted to show that the petitioner was adamant in not allowing the airplane to land in Pakistan, notwithstanding the fuel shortage in the aircraft. These circumstances erode the credibility of the witness.

 To substantiate the approver’s claim that all the instructions regarding Flight No. PK-805 were given to him for implementation, the prosecution had sought corroboration from the testimony of PW 15 and P.W. 16, the telephone operators respectively of the Prime Minister House and the Office of the Director General, Civil Aviation, an the implementation of instructions from the testimony of Wing Commander Ahmed, Farooq, Secretary to P.W. 1. Syed Yousuf Abbas (P.W.2) Chief Operational Officer CAA and Syed Aqeel Abbas (P.W. 6) General Manager, Air Traffic Control. So far as statements of the two telephone operators are concerned, their testimony can any substantiate that telephone contacts were made by the petitioner with P.W. 1 but the same does not in any way go to prove the contents of the conversation.  There is no evidence whatsoever to corroborate the contents of instructions the witnesses claimed to have received from the petitioner.  The testimony of the three other witnesses who were involved in the implementation of the instructions is to the extent that P.W. 1 had disclosed that the instructions had come from the petitioner.  This of course would be hearsay and in admissible.  Furthermore, as pointed out by the learned counsel for the petitioner, the testimony of these three witnesses, PW.2, P.W. 6 and P.W. 20 is tainted evidence.  If P.W. 1 can be labelled as accused for implementing the unlawful orders of the petitioner, the status of these three witnesses would be no better as they were equally involved in implementation of the same instructions.  The testimony of P.W. 1 on the most material particular of the case, the nature of instructions by the petitioner, remains uncorroborated.

 The testimony of the approver fails to satisfy both the tests in that he is neither reliable witness nor his testimony is corroborated in material particulars.

 There is another serious infirmity in the prosecution case, namely, the delay in making the FIR for about a month after the incident.  We my recall that the FIR was made on the written complaint of Ltd. Col. Atiq-uz-Zaman Kiyani, the then Protocol Officer at Karachi, who was present at the airport to receive General Pervaiz Musharraf. He did not have much of personal information about the incident.  He was a mere spectator and was not involved in any move made by the Army at the airport.  After the Army had taken over on the 12th October, 1999.  General Pervaiz Musharrf in the early hours of 13th October, 1999 addressed the nation on electronic media at 3-00 a.m justifying the take over.  In his speech he also mentioned the present incident referring to the fundamentals on which the present case is based, namely, diversion of aircraft to outside Pakistan, actuate shortage of fuel and danger to the lives of the passengers. The speech has been reproduced at page 910 in case of Syed Zafar Ali Shah v. General Pervaiz Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869).  The point of delay in lodging the F.I.R. was urged by the Defence before the Appellate Court but rejected on the ground that in the circumstances of the case, the delay was immaterial in view of the enormous trustworthy prosecution evidence.  The Court accepted the explanation put forth by the special prosecutor that the delay had occurred on account of involvement persons holding top slots and high offices and that in any case the prosecution did not gain any thing from the delay in lodging the FIR.  The Court however did not venture to discuss the consequences of delay on the case.

 Undoubtedly, the F.I.R. could have been lodged soon after the incident as the basic facts were then available, which were even disclosed by General Pervaiz Musharraf within hours of takeover.  Like any other case, the evidence could have been collected during the investigation once the F.I.R. was lodged.  A unique mode was however, adopted in the present case.  The Army had straightaway taken control of the matter and tarted its own probe. This is evident from the statement of as many as 10 witnesses and we may just refer to some of them. P.W. 1 disclosed that “there was a board of inquiry in this connection with regard to the present case during my house detention period. I was asked to appear before the board of inquiry.  I appeared before the board of inquiry on 24th Oct. 1999 and 9th Nov. 199.  My statement was recorded by the board of inquiry on the 24-10-1999, on 9-11-1999 I was required to read it and sign it.  The inquiry board was consisted of a Major General and Air Commandor and 3 gentlemen in civil dress.  I am not aware of the names of the members of the that board.”  P.W. 4 Muhammad Asif, disclosed that before the police contacted him on 13 and 14-11-1999, he had already been contacted by various agencies including those of the Army. Sayed Aqeel Ahmed, P.W. 6 also referred to the interrogation by the Army personnel. To the same effects are of the statements of P.W. 7, P.W. 8, P.W. 9, P.W. 13, P.W. 14, P.W. 15 and P.W. 20.  Since facts of the case were known right from day one, no explanation has been put forth by the prosecution as to why FIR was not lodged immediately instead of the Army making a probe for a month before registration of the case.

 We do not find ourselves in agreement with the Appellate Court that the delay in FIR was immaterial because the prosecution had not gained from it.  Ordinarily, evidence in a case is collected or procured upon registration of the F.I.R.  It appears that this exercise was undertaken by the Army personnel prior to the registration of the case as they had not only constituted a Board for the probe but as many as 10 witnesses were contacted by the agencies. Apart from its irregularity, the mode adopted may have had significant repercussions on certain aspects of the case. Some factual material which could have thrown light on certain serious controversies, like the black box, the audio spools which recorded conversation between the Air Traffic Control and the aircraft were already taken into possession before registration of the case. The original contents of these recordings would have been helpful in finding out the exact conversation between the aircraft and the Air Traffic Control, particularly during the 30 minutes before the landing of the aircraft.  Though the black box and the audio script were produced before the Court but the same were not played. They had been simply handed over to the investigating officer and there was nothing on the record to show as to who had secured them from the aircraft.  Reference may be made to the statement of Nazir Ahmed (P.W.22), who was working as Director Engineering, PIA.  He stated that he had handed over to the police CVR (cockpit voice recorder). PMR (Performance Monitoring Recorder) and DFDR (Digital Flight Data Recorder) and disclosed that the article had already been removed from the aircraft and were kept in some cabinet.  Identity of the person who removed them was not disclosed.  The investigating officer, Ilyas (P.W. 8) who had taken the black box into possession, stated that he had not taken the article immediately after taking over the investigation and in cross-examination admitted that he did not know who had secured the black box from the aircraft.  He had not played the black box to hear the conversation recorded in it.  In the circumstances, when already a probe was going on for more than one month before the F.I.R. was lodged and evidence collected by persons, whose identity was not disclosed, the possibility of tampering with these articles could not be ruled out.

 From the statement of the Investigating Officer, it appears that investigation and collection of evidence had substantially already been done before the F.I.R. was lodged and the materials so collected were simply handed over to the Investigating Officer to be produced in Court.  There is force in the argument of the learned Counsel for the petitioner that such a high profile case was handed over for investigation to a junior police officer, who could not in the circumstances be expected to carry out investigation independently.  The Appellate Court has, therefore, erred in saying that the probe before the F.I.R., was merely an inquiry leading to the registration of the case.  Had the F.I.R. been lodged immediately after the incident, the investigation would have been taken over by the police and important evidence, not only beneficial to the prosecution but perhaps also helpful to the defence would have been taken into possession and preserved. The conversation recorded in the black box and the audio spools at the relevant time was crucial for the prosecution as well as for the defence. The evidence was lost as the material articles produced in the Court had come from undisclosed source. Similarly the log book which records the fuel endurance of the aircraft was also not produced.  In the circumstances, it was wrong to hold that the prosecution has not gained from the delay in the F.I.R. Another major gain to the prosecution was that on account of the delay the prosecution in the meanwhile managed an approver who remained in the custody till the F.I.R. was lodged.  Furthermore, the probe carried out by the Army through a board of inquiry was not an enquiry under the Criminal Procedure Code as even the prosecution did not rely upon the same as it was not produced at the trial. As the FIR was lodged after extensive consultations and deliberations, its veracity stands eroded.

 It thus follows that the F.I.R. was lodged with inordinate delay for which no plausible explanation has been put forth by the prosecution.  The investigation was not carried out independently and the testimony of the approver on which the prosecution is founded had not satisfied the conditions for acceptance of his testimony.  Thus, regardless of the plea taken by the petitioner with regard to section 6 of the Ordinance, the prosecution on its own standing has not been able to prove its case against the petitioner beyond reasonable doubt.

 Looking at the case from any angle, the charge of hijacking, attempt to hijack or terrorism does not stand established against the petitioner.  Consequently, the petition is converted into appeal and allowed.  The conviction and sentence of the appellant are set aside and he is acquitted. [pp. 846, 847, 848, 849, 854, 855, 858, 861] I,J,K,L, M, N, O, Q, R & T

 Khawaja Haris Ahmed, Advocate Supreme Court and

Mehr Khan Malik, Advocate on Record for Petitioner.

 Shahdat Awan A.G. sindh and M. Yousaf Leghari, A.G

Sindh for the State.

 Date of heaing : 8th to 12th & 16th to 18th June, 2009.

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