JUDGMENTMIAN . MUHAMMAD NAJUM-UZ-ZAMAN, J.-~Appellant Muhammad Abbas alongwith his co-accused Shah Nawaz, Ijaz Ahmad alias jail and Shabhir alias Sohail alias Sultan alias Nasir son of Bashir Ahmad (in absentia) were tried in case F.I.R. No. 258/1997, dated 9.8.1997 registered under Sections 302/115/34, PPC at Police Station, Khangarh, District Muzaffargarh by the Judge, Special Court, Anti-Terrorism Act, 1997, D.G. Khan who vide judgment dated 6.2.1998 while acquitting Ijaz Ahmad alias jail accused, convicted Muhammad Abbas appellant, Shah Nawaz and Shabhir alias Sohail alias Sultan alias Nasir accused under Section 302/34, PPC read with Sections 6 and 7(i) of Anti-Terrorism Act, 1997 and sentenced each of them to death as well as to pay a fine of Rs.
5,00,000/- each or in default whereof to undergo five years R.I. Each. They were also directed to pay compensation amounting to Rs. 2,0, 000/- each to the legal heirs of Haji Ahmad Pehlwan deceased as required under Section 544-A, Cr.P.C, or in default whereof to undergo six months R.I. Each.
2. Feeling aggrieved by the said judgment appellant Muhammad Abbas filed Crl. A. No. 6/1998 while for the remaining accused/convicts who were tried in absentia, Trial Court has made a reference (M.R. No. 3- T/1998) seeking confirmation of their death, sentence.
Shabhir Ahmad convict was later on arrested and he has also filed W.P. No. 1688/2002 challenging his conviction and sentence. All these matters are being disposed of together by this judgment.
3. Concisely the prosecution case as narrated in the F.I.R. Exh.PJ, lodged by Irshad Hussain complainant PW.10 is that on 9.8.1997 at Fajjar Prayer time when complainant alongwith Muhammad Raza PW.I 1 and Khadim Hussain (given up) PW was on his way to the Mosque for offering Prayer, suddenly a motorcycle came from the side of Mondka and stopped near the cot of Haji Ahmad Pehlwan, a person with dark complexion with heavy body, small beard wearing Shalwar and kamiz pointed his rifle whereas Shah Nawaz alongwith another accused of middle height whitish colour, well built, thin moustache-, wearing Shalwar and kamiz of white colour, both armed ;th pistols got down from the motorcycle, reached near the tc; of Haji Ahmad Pehlwan and started firing from their respective pistols on Haji Ahmad Pehlwan who succumbed to the injuries at the spot. Statedly the occurrence was seen by the witnesses in the light of torch and due to fear they did net go near the assistants. Allegedly this occurrence had taken place at the instance of Haji Khalil Ahmad, Haji Riaz Ahmad and Maulvi Abdullah.
4. During investigation on 18.8.1997 Shah Nawaz convict and Muhammad Abbas appellant were arrested by Habib Ahmad Khan, DSP PW.17. During the personal search of Muhammad Abbas appellant kalashnikov Exh.P.H, two magazines P.28/1-2 and sixteen bullets P.19/1-16 were recovered from him which were taken into possession vide recovery memo. Exh.PQ, A membership form of Sipah-e-Sahaba Organization P.14 was also recovered from him and the same was taken into possession alongwith wallet and currency notes amounting to Rs. 412/- vide recovery memo. Exh.
PR. Upon the personal search of Shah Nawaz accused pistol 30 bore P.16 alongwith two magazines P.20/1-2 and sixteen live bullets P.19/1-16 were taken into possession vide memo. Exh. PS. The Investigating Officer also took into possession two mats P.23/1-2, two bed sheets P.24/1-2 and one tumbler (glass) P.25 vide recovery memo. Exh. PU from the place. These persons were arrested. The Investigating Officer also took into possessions motorcycle P.26 from the said place vide recovery memo. Exh. PV. Accused Shah Nawaz during the investigation made confessional statement before Jalil Imran Khan, Inspector PW.8 and Pervaiz Tareen, DSP PW.9 stating that he alongwith Muhammad Abbas appellant and Shabhir Ahmad alias Sohail alias Sultan alias Nasir accused had committed this offence, a video film of his confessional statement was also prepared by the said police official. Since the whereabouts of Shabhir Ahmad alias Sohail accused were not known the agency after complying with legal formalities, under Section 87/88, Cr.P.C, got issued proclamation and submitted challan showing Shah Nawaz, convict. Muhammad Abbas (appellant) and Ijaz Ahmad alias jail accused as under arrest and Shabhir Ahmad alias Sohail as absconder. Trial Court on taking the cognizance of the matter, after complying with legal formalities declared Shabhir Ahmad ^ alias Sohail as absconder, started proceedings in absentia. During the trial on 26.12.1997 Ijaz Ahmad alias jail and Shah Nawaz accused succeeded in escaping from Central Jail, D.G. Khan and Trial Court after conducting necessary legal formalities while declaring them as proclaimed offender started proceeding against them in absentia as well.
5. Before the Trial Court prosecution produced 17 witnesses to prove the charge against the appellant and his co-accused.
6. Dr. Muhammad Sadiq PW.I conducted postmortem examination on the dead-body of Haji Ahmad Pehlwan and*observed two fire-arm injuries on his person. Ghaffar Ahmad Patwari PW.2 prepared scaled site plan Exh.PD/1 and PD/2. Rab Nawaz , AS1 PW.3 took the parcels of blood- stained earth and two crime empties to the office of Forensic Science Laboratory, Lahore and delivered the same intact. Fazal Hussain, HC PW.4 kept the parcels in the Malkhana for safe custody and later on delivered the same to Rab Nawaz, AS1 PW.3 for onward transmission to the relevant offices. Mumtaz Hussain, FC PW.5 escorted the dead-body to mortuary for post-mortem examination and after the post-mortem handed over the last worn clothes of the deceased to the Investigating Officer. Abdul Hakeem, S.I. PW.6 took the non-bailable warrants of arrest for service f the accused but the same were returned un-served. Muhammad Javaid PW.7 identified the dead-body of his father at the time of post-mortem examination. Jalil Imran Khan, Inspector PW.8 and Pervaiz Tareen, DSP PW.9 recorded the confessional statement of Shah Nawaz accused in the form of video film. Irshad Hussain PW.10 and Muhammad Raza PW-11 being the eye-witnesses of the occurrence narrated the circumstances under which the accused had committed the murder of Haji Ahmad Pehlwan.
Uaqat Ali PW.12 deposed that in his presence Muhammad Abbas appellant got recovered kalashnikov alongwith magazines and membership forms of Sipah-e-Sahaba Organization. These articles were taken into possession by the I.O. Vide memo. Exh. PQ. Muhammad Ajaz Khan Firearm Expert PW-13 examined the crime empties and pistols and prepared report Exh. PY. Hameed Ullah Khan, EAC, Muzaffargarh, PW-14 deposed that under his supervision identification parade was held and the accused Muhammad Abbas was identified by the witnesses. Mukhar Hussain PW.15 identified accused Muhammad Abbas in Jail during the identification parade. Liaquat Ali Ayaz, S.I.
Conducted * investigation and after complying with legal formalities submitted challan before the Trial Court. Habib Ahmad Khan, DSP PW.17 arrested Muhammad Abbas appellant and Shah Nawaz accused. Both the accused got recovered weapon of crime etc. As observed earlier.
7. Trial Court also examined the appellant and his co-accused under Section 342, Cr.P.C. All the accused while denying the charges pleaded that they are innocent.
Muhammad Abbas appellant while answering to' the question, why this case is against you, replied as under:-- "After the occurrence of this case the police hauled up 100 members of Sipah-e-Sahaba Organization of the district for interrogation of the case and their houses were searched. I was also hauled up from my house on 15.8.1997 and upon search of my house, a photograph of my brother- in-law Muhammad Muneer was also taken into possession taking that of Riaz Basra ex-Salar of Lashkar-e-Jhangvi. In this respect my father, brothers were also taken into custody by the police.
Later on Muhammad Muneer was produced before the police to satisfy that the photograph was not of Riaz Basra. Thereafter the police released my father and brother, but in the meanwhile police had already completed the proceedings, involving me in this case. Then police have involved me in this case to show efficiency."
Neither the appellant or his co-accused made any statement under Section 340(2), Cr.P.C, nor produced any evidence in defence. .8. Trial Court after appraisal of evidence, available on record, vide judgment dated 6.2.1998 convicted and sentenced the appellant and his co-accused as narrated earlier.
Learned counsel for Muhammad Abbas appellant while challenging the legality of the impugned judgment submitted that it was a dark night occurrence; appellant was not known to the witnesses prior to this occurrence and it was not possible for them to identify the appellant in the light of torch from a distance of 15 karams i.e. About 80 feet, In' the light of said argument it was submitted that identification parade was a futile exercise and the said evidence of the prosecution could not be relied upon, it was submitted that according to the prosecution case the witnesses had thrown light of torch, (battery) at the accused but none of the accused fired at them, the conduct of the assailant was unnatural and also belies the story of the prosecution case. Further submitted that during the identification parade none of the eye-witnesses had explained the role qua the accused person and thus this piece of evidence being highly doubtful could not be relied upon, it was submitted that according to the prosecution case at the relevant time appellant Was armed with pistol but during the investigation Kalashinkov was recovered at his instance and the possibility that recovery evidence was tailored during the investigation could not be ruled out. It was submitted that to bring the case within the fold of sectarian rivalry between the parties, fake recovery of a membership form of Sipah-e-Sahaba Organization was planted on the appellant and this piece of evidence if accepted to be true even then no case against the appellant is made out.
Learned counsel further submitted that the Writ Petition No. 2688/2002 filed by Shabhir Ahmad be treated as appeal and his conviction-be set aside because it is a case of no evidence against Shabhir Ahmad convict and that the entire case of the prosecution against this accused/convict rests upon the confessional statement of Shah Nawaz co- accused who allegedly had confessed his guilt before the police officer, it was submitted that under Section 26 (now repealed) of the Anti-Terrorism Act, 1997 the confessional statement of Shah Nawaz accused was brought on record and in he light of case titled Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SCM R 1156), this type of evidence could not be relied upon. Conversely, learned Special Public Prosecutor while supporting the impugned judgment vehemently opposed the arguments advanced by the learned counsel for the appellant, it was submitted that the data available on record is sufficient to show the involvement of the appellant and other convicts against whom reference was made by the Trial Court, it was submitted that the witnesses had identified Muhammad Abbas appellant during the identification parade conducted under, the supervision of Hameed Ullah Khan, Magistrate P.W.14. It is further submitted that from the spot two empties ? Were recovered which had matched with the pistol recovered at the instance of Shah Nawaz convict and this piece of evidence renders ample corroboration to the ocular account to uphold the conviction of the appellant and other convicts.
9. With the able assistance of learned counsels for the parties we have minutely gone through the record of this case and have observed that this occurrence took place on 19.8.1997 at Fajarwela when it was still dark and statedly witnesses had seen the occurrence in the light of torch. At the relevant time only Shah Nawaz was known to the witnesses whereas the remaining accused persons were not known to them, but their features were observed by the witnesses in the light of torch. We have observed that according to the prosecution case (as mentioned in the site plan Exh.
PD) witnesses had seen the occurence from a distance of 15 karams from the place of occurrence (i.e. More than eighty feet) and in the light of torch identification of the accused who were not known to the witnesses from such a distance is highly doubtful. We get guide-line for coming to such conclusion from the observations of their Lordships in case titled Dil Muhammad Mondal v.
The Crown (PLD 1956 Federal Court 402), Ali Nawaz and another v. The State (1988 P.Cr.L.J. 1736) and Ayyub v. The State (1994 P.Cr.L.J. 1057). In this view of the matter we find much force in the arguments of the learned counsel for the appellant that in the circumstances putting Muhammad Abbas appellant to the test of identification parade was a futile exercise. We have also observed that Muhammad Raza PW.I 1 though had identified Muhammad Abbas during the identification parade but while deposing before the Trial Court had specifically stated that he had not identified a/any accused person during the identification parade. This statement of the witness is also sufficient to doubt the credibility of the prosecution case qua the identification parade.
Another piece of evidence relied upon by the prosecution was the evidence of Wajtakar. Statedly, immediately after the occurrence Mukhtar Hussain PW.15 had seen Shah Nawaz alongwith two unknown persons while riding on a motorcycle about one furlong away from the place of occurrence. The said persons were not known to him and he also never knew their description but in spite of that this witness had identified Muhammad Abbas during the identification parade which was held in District Jail, Muzaffargarh. Not only that the evidence of this witness qua the identification parade in the said circumstances is full of doubts, if it is presumed that at the relevant time Muhammad Abbas appellant was riding on a motorcycle alongwith other accused even then this evidence alone is not sufficient to hold that Muhammad Abbas appellant had also participated in this occurrence.
With regard to Shabhir Ahmad convict we have observed that according to the prosecution case he remained absconder during the investigation as well as the trial and was arrested on 9.1Q.1999 when he challenged the impugned order through W.P. 2688/2002. To prove his involvement for the commission of this offence, prosecution has relied on the confessional statement of Shah Nawaz accused which he had made before the force officials namely Jalil Imran Khan, Inspector PW.8 and Pervaiz Tareen, DSP PW.9. Under Section 26 (since omitted) of Anti-Terrorism Act, 1997 confession of the accused before the police official not below the rank of Deputy Superintendent of Police is admissible but a careful perusal of the said section reveals that the said confession can be used only against the person making the confession and not against the co-accused, In this view of the matter there is no evidence against Shabhir Ahmad alias Sohail convict except the evidence of abscondence and this piece of evidence in isolation is not sufficient to -uphold his conviction and sentence. "
This case was decided on 6.2.1998 whereas case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1156) was decided on 15th May, 1998. Their Lordships while declaring that provisions of Section 26 of-the ibid Act as not valid in its present form, also observed that the said observation would not affect the cases already decided as the position is in the present case, In this view of the matter the argument of learned counsel that Trial Court has erroneously relied upon the confessional statement of Shah Nawaz accused before the police official has no force..
With regard to Shah Nawaz convict we have observed that his name finds mentioned in the promptly lodged F.I.R, with a specific role of causing injuries to the deceased with pistol. Before the Trial Court both the witnesses namely Irshad Hussain PW.10 and Muhammad Raza PW.I 1 while supporting the prosecution case have specifically narrated with regard to the participation of Shah Nawaz convict. During investigation two empties were also recovered from the spot and the same were sent to the Forensic Science Laboratory on 18.7.1997. After his arrest Shah Nawaz also led to the recovery of pistol P.16, which was also sent to Forensic Science Laboratory for comparison and the report from the said office i.e. Exh.PY is positive. The recovery evidence in the circumstances of this case has rendered a very strong corroboration to the ocular account narrated by independent and disinterested witnesses.
No doubt Shah Nawaz convict was tried in absentia but we have observed that Trial Court after complying with all the legal formalities as required used ur Section 19(10) of the ibid Act i.e. Declaring Shah Nawaz as proclaimed offender proceeded with the matter, In case titled Haji Muhammad v. The State (PLD 2003.S.C. 262), their Lordship have already held that a special Court constituted under Anti-Terrorism Act, 1997 is competent to convict and sentence a person in absentia, after complying with all legal formalities as it has been done in the present case.
The crux of the above observations is that case against Muhammad Abbas and Shabhir Ahmad alias Sohail is full of doubt and they are entitled to get the benefit of the same. Accordingly, Crl.
Appeal No; 6/1998 filed by Muhammad Abbas appellant is allowed, his conviction and sentence is set aside and the appellant stands acquitted from the charge. He shall be released forthwith if not required in any other case.
Death sentence of Muhammad Abbas appellant is not confirmed and the murder reference to his extent is answered in the negative.
Similarly, reference to the extent of Shabhir Ahmad convict is answered in the negative. His conviction and sentence is set aside and stands acquitted from the charge. He shall be released forthwith, if not required to be detained in any other case. Death sentence of Shabhir Ahmad is not confirmed.
As far Shah Nawaz convict as observed earlier there is ample evidence on record to connect him with the commission of offence and to his extent reference is answered in the affirmative. Death sentence of Shah Nawaz is confirmed.
Through W.P. No. 2688/2002 Shabhir Ahmad has challenged the legality of the impugned judgment but admittedly, neither he moved any application before the Trial Court as required under Section 19(12) of the ibid Act nor filed any appeal and in this view of the matter the writ petition being not maintainable stands dismissed.