1. Amanullah Khan, J.--This judgment will dispose of Criminal Jail Appeals Nos, 41 and 42 of 2004 and Criminal Appeals Nos, 131 and 134 of 2004, respectively filed by Muhammad Azam, Obaidullah, Faizullah and Inayatullah, as well as Murder Reference No, 9 of 2004, sent by Special Judge, Anti- Terrorism Court No, II, Quetta, as all these matters arise out of common judgment dated 15-5-2005.
2. The appellants have assailed the conviction and sentences recorded by the trial Court, detailed hereinbelow: Appellant Faizullah son of Haji Muhammad Ali, Appellant Ubaidullah son of Lal Muhammad and Appellant Muhammad Azam son of Haji Akhtar Muhammad (i) Under Section 7(a) of Anti- Terrorism Act, sentenced to death on two counts and to pay fine of Rs, 1,00,000 (one lac) payable to the legal heirs of deceased, (ii) For committing dacoity in the shop of Haji Khairullah to suffer R.I. for ten years and to pay fine of Rs, 50,000 and in default to further undergo one year's S.I. Appellant Inayatullah son of Abdul Samad and Appellant Daulat son of Khudaidad. (i) Under Section 395, P.P.C. to suffer R.I. for four years and to pay fine of Rs, 5,000 and in default in payment of fine to undergo S. I. for two months. Absconding accused Muhammad Akbar. (i) For committing the dacoity in the shop of Haji Khairullah to suffer R.I. for ten years and to pay fine of Rs, 50,000 and in default to further undergo one year's S.I. Briefly; the prosecution case is that, on 23-1-2004 P.W.10 Malik Arshad Iqbal (Investigating Officer) received telephonic information at about 4-30 p.m. that, a dacoity has been committed at, Dil-a- Ram Road, Chaman and two persons namely Haji Muhammad Naseem and Jumma Khan, have been murdered, whose dead bodies are lying in the Hospital. On receiving such information he went to the Hospital, prepared inquest report of the deceased Jumma Khan and Haji Muhammad Naseem (Exhs.P.O/J and 10/K), took into possession blood-stained clothes of deceased persons wide separate memos. (Exhs.P.3/A and 3/B). P.W.5 Abdul Qahir, got recorded his Fard-e-Biyan, averring therein that at about 4-30 p.m. he was standing at Dil-a-Ram Road, when a white Alto Car, Registration No, 151-Karachi having black glasses came and parked in front of the shop of Haji Khairullah. From the vehicle three persons came out and entered in the shop, whereas one person was sitting on the driving seat. Thereafter, there was firing in the shop and after a while the said persons came out, duly armed with kalashnikov and pistol and boarded in the vehicle and drove towards Sanathan Bazar. Out of the said persons he recognized appellant Faizullah who was having a pistol in his hand. He thereafter entered in the shop and found Haji Naseem and Jumma Khan in injured condition, who were taken to hospital. During this time Dr. Saqib Aziz, D.C.O. who had also seen the incident came. Both the persons succumbed to their injuries. Haji Abdul Qayyum present in the shop informed him that an amount of Rs, 30,000 has been taken by the said persons.
3. After recording Fard-e-Biyan the same was sent to the police station for registration of case.
4. Thereafter, P.W.10 Malik Arsha4 Iqbal initiated the investigation, he alongwith other police officials went in search of accused persons and while he reached Chaman Bye-pass, four persons were riding on a motorcycle towards the By-pass. On seeing the police, they turned and started firing on them, which was retaliated and police party started chasing them. The said persons went in a graveyard near Boghra Road and as there was no road for the vehicle, the Investigating Officer chased them on foot. In the graveyard he was informed that, two persons alighted from the motorcycle and they boarded on a water tanker and the other two fled away on the motorcycle.
5. The Investigating Officer directed S.-I. Abdullah to follow the accused persons who left on motorcycle and he himself followed the water tanker on a private motorcycle. When he reached near the water tanker, accused Faizullah started firing with pistol, which was retaliated. However, accused persons alighted from the tanker and accused Obaidullah ran in opposite direction, whereas accused Faizullah entered in a house, he chased and fired upon him while entering in the house. Due to firing accused Faizullah got injured and he was overpowered. During interrogation at the spot, appellant Faizullah disclosed that his share in the looted amount was Rs, 6,500, which was in his pocket. The said amount was taken into possession vide memo. Exh.P.3/A. From the possession of appellant Faizullah a pistol alongwith four live cartridges was also recovered vide memo. Exh.P.3/C. On basis of recovery of pistol, a Marasala for registration of case under Section 13-E of the Arms Ordinance was sent to the police station. Then he brought the appellant Faizullah to police station, since he was injured, the doctor was called in the police station for providing him treatment. Thereafter the Investigating Officer came to the place of incident and took into possession the blood-stained earth, two empties and two leds of bullets vide memo. Exh.P. 3/G.
6. After recording statements of the witnesses under Section 161, Cr.P.C. be came back to police station and " started interrogation from appellant Faizullah, who during course whereof, made disclosure (Exh.P.4/A) that, he can point out the Alto Car used in the offence, abandoned near the College Road at an open place. Thereafter, on his pointation an Alto Car with its Registration No, AB-151 (Karachi) was taken into possession vide memo. Exh.P.4/B. Since appellant Faizullah was injured, therefore, he was shifted to Civil Hospital, Quetta, for treatment. He then prepared the site plan of the place of incident (Exh.P.10/A) and on 28.1.2004 he recorded statement of appellant under Section 161, Cr.P.C. wherein he disclosed the name of other co-accused persons. On 30-1- 2004, on the statement of appellant Faizullah, he arrested appellants Inayatullah and Daulat Khan.
7. On 31-10-2004, appellant Faizullah was discharged from the hospital, thus, he was accordingly arrested in the case. Appellant Faizullah showed inclination to record his statement under Section 164, Cr.P.C. therefore, he was produced before the Judicial Magistrate, Qilla Abdullah, who recorded his 164, Cr.P.C. statement. On 2-2-2004, he raided the house of appellant Muhammad Azam and recovered an amount of Rs, 23,500 and arrested appellant Muhammad Azam, who made disclosure (Exh.P.3/1) that he can get recovered the motorcycle on which they made their escape.
8. Then on his pointation the motorcycle was recovered from the house of absconding accused Muhammad Akbar, which was taken into possession vide memo. Exh.P.3/K. He arrested appellant Obaidullah from Khuzdar and brought him to Chaman. During investigation, he disclosed that he can get recovered the kalashnikov with which, he fired at the deceased persons. Thereafter, on his pointation the kalashnikov was recovered and the same was taken into possession vide memo.
9. Exh.P.3/M. He collected the medical certificates of deceased persons (Exhs.P-8/A and 8/B). Initially he submitted incomplete challan (Exh.P.10/B) against appellants. Faizullah and Daulat Khan and thereafter submitted challan (Exh.P.10/C) against appellant Obaidullah. On, obtaining the report of Chemical Analyzer, (Exh.P.10/E) he submitted challan (Exh.P.10/D) and on receiving the report of Ballistic Expert, Karachi (Exh.P.10/E) he submitted final challan Exh.P.10/F).
10. During pendency of the appeal, Obaidullah appellant in Criminal Appeal No, 42 of 2004, passed away in jail, thus, appeal filed by him stands abated.
11. At the trial, charge was framed against all the appellants and absconding convict Muhammad Akbar, under Section 7(a)(b)(h) and 21-L of the Anti-Terrorism Act, read with Sections 302/324/353/392/109/ 120- A/34, P.P.C. Appellant pleaded 'not guilty' to charge and claimed trial. To substantiate the accusation, prosecution led evidence of following witnesses:
(1) P.W.1 Abdul Qayyum, gave ocular account of the incident deposed that, on the day of incident, he was present in the shop of Haji Khairullah alongwith deceased persons at about 4-30 p.m. three persons entered in the shop, who had muffled their faces. Two were armed with kalashnikovs and one was having a pistol. The person armed with pistol opened the cash box and took away Rs, 30,000 and two currency notes of U.S. Dollars and one of the persons holding kalashnikovs fired at deceased Haji Muhammad Naseem and Jumma Khan. He could not recognize the dacoits, as their faces were muffled.
12. (2)P.W.2 Gul Ahmed. He gave ocular account of the incident. His statement is identical to that of P.
13. W. 1.
14. (3)P.W.3 Abdullah Khan, S.-I. He is marginal witness to the recovery of blood-stained clothes of deceased persons taken into possession vide memos. Exh.P.3/A and 3/B. He was also one of the members of police party who chased the accused persons. He is also witness to the disclosure memos. made by accused _ persons and the recoveries effected on their, pointation, as detailed hereinabove.
15. (4).P.W.4 Nazar Jan, A.S.-I. In his presence appellant Faizullah made disclosure Exh.P.4/A, and on the pointation of appellant Alto Car was recovered and taken into possession vide memo. Exh.P.4/B.
16. (5)P.W.5 Abdul Qahir. He is the complainant and reiterated the contents of the Fard-e-Biyan.
17. (6)P.W.6 Dr. Sakib Aziz, D.C.O. He supported the contents of the Fard-e-Biyan. He deposed that on 23-1-2004, he was D.C.O. Chaman and at the relevant time, he was present at the crossing of Trench Road, from Dil-a-Ram Road, he heard firing and went towards that place; saw an Alto Car parked in front of the shop of Haji Khairullah. Three persons came out, one armed with pistol and two with kalashnikovs. The person armed with pistol while sitting in the vehicle, the cloth with which he had covered his face fell down, and he saw his face. Thereafter the dacoits decamped from the place of incident. Persons present at the spot said that the said person was Faizullah.
18. (7)P.W.7 Rehmatullah Umrani, Judicial Magistrate. He recorded the confessional statement of appellant Faizullah Exh.P.7/B.
19. (8)P.W. Dr. Abdul Malik. He examined both the deceased persons and issued medical certificates Exh.P.8/A and 8/B. He found the following injuries on the persons of deceased Haji Muhammad Naseem and Jumma Khan:--
(a) Deceased Haji Muhammad Naseem.
(1) Entrance wound on right lumber region anterior side in size 1/4" x 1/4";
(2) Exit wound on left scapula lateral side in size 2/3" x 1/2".
(b) Deceased Jumma Khan.
20. (1)Entrance wound on right side chest 1/4" x 1/4" in size, exit wound on the backside (supra scapular region in size (1/2)x (1/2)
21. (2)Entrance wound on right arm 1/4" x 1/4" exit wound on right forearm 4" x4"; (3)Entrance wound on right iliac region 1/4" x 1/4" in size, exit wound on the right thigh middle size 2" x 2".
22. (9)P.W.9 Haji Nazar Jan. He received the dead bodies of deceased persons without post-mortem vide memos. Exh.P-9/A and 9/B.
23. (10)P.W. 10 Malik Arshad Iqbal, Investigating Officer. He conducted investigation of the case and ultimately submitted the challan.
24. The appellants were examined under Section 342, Cr.P.C. wherein they denied the prosecution case and pleaded innocence. However, none of them opted to give statement on oath as envisaged under Section 340(2), Cr.P.C. nor produced any defence evidence.
25. On the conclusion of trial, the learned Special Judge, A.T.C., vide impugned judgment convicted and sentenced the appellants as well as absconding accused, detailed hereinabove.
26. Messrs Kamran Murtaza, Mehmood Khokhar, Naeem Akhtar and Jamal Khan Mandokhel, Advocates appeared for appellants Faizullah, Muhammad Azam, Inayatullah and Daulat Khan respectively. Mr. Ehsanul Haq, Advocate appeared for the complainant and Mr. Khalid Dogar, Public Prosecutor, represented the. State.
27. Mr. Kamran Murtaza, learned counsel, raised the following contentions:-- (A)That the F.I.R. is based on hearsay evidence, as the persons, who allegedly saw the appellants were not examined; and (B)The detention of appellant Faizullah was illegal and without lawful authority, as he had not been produced before any Magistrate, thus, on the basis of such detention, the confessional statement, which has been retracted, may not be believed and further, there is no other evidence to corroborate the confessional statement.
28. (C)Messrs Naeem Akhtar, Jamal Khan Mandokhel and Mehmood Khokhar, learned counsel, emphatically contended; that as far as the appellants Muhammad Azam, Inayatullah and Doulat Khan, are concerned, there is no direct evidence to connect them, with the commission of offence and as regards the confessional statement, the same cannot be used against them, as a substantive piece of evidence without any corroboration, in view of Article 43 of the Qanun-e- Shahadat Order, 1984. While opposing the appeals, Mr. Ehsanul Haq, learned counsel argued that F.I.R. was not based on hearsay evidence. He explained, that, appellant Faizullah was arrested soon after the incident, after being identified by the people present at the time of incident. His confessional statement is duly supported by the recovery of pistol and the amount, which he produced before the Investigating Officer and further led to the recovery of Alto Car, used in the commission of offence. He argued that under the Qanun-e-Shahadat Order. 1984, even confessional statement of co-accused, can be used as an evidence against the other accused, and thus, the trial Court was right in using the confessional statement of appellant Faizullah, as a substantive piece of evidence against the other appellants. Mr. Khalid Dogar, learned Public Prosecutor, adopted the arguments of learned counsel for the complainant. We have heard the learned counsel for parties at length and with their assistance have also minutely gone through the evidence.
29. Adverting to the argument of Mr. Kamran Murtaza, learned counsel that F.I.R. is based on hearsay evidence. The learned counsel argued that the Fard-e-Biyan, recorded by P.W.5 Abdul Qahir was based on hearsay. It may be noted that, soon after the incident the accused persons came out of the shop and boarded in the Alto car while sitting in the vehicle, the cloth, with which appellant Faizullah muffled his face, fell down and he was identified by the persons present there. It may be pointed out that, such evidence cannot be termed as hearsay, as anything said soon after the occurrence by the people gathered there, is admissible as res gestae. Reference in this behalf may be made to 1992 SCM R 1625. It may be seen that, after the incident, while sitting in the car appellant Faizullah was identified, as people saw his face. Inasmuch as, his father's name and Tribe was also mentioned. After a short while of the incident, he was arrested and a pistol was also recovered from his possession. P.W.5 Abdul Qahir, who at the time of incident, was present outside the shop of Haji Khairullah stated that cloth, with which he muffled his face fell down and further at the relevant time, P.W.8 Dr. Saqib Aziz, D.C.O., Killa Abdullah also came and he also corroborated the statement of P.W.5 Abdul Qahir. Further, after arrest, appellant admitted that, he is Faizullah and belongs to Malezai Tribe. He further disclosed that amount of Rs, 6,500 which was the share of looted amount, is in his pocket and he produced the said amount, which was taken into possession. Thereafter, the appellant himself led, to the vehicle, in which, he and others committed the offence. Even the registration number of the vehicle was mentioned in the Fard-e-Biyan, which was not disputed.
30. Thus, the contention of learned counsel Mr. Kamran Murtaza, regarding hearsay evidence, has no substance.
31. Reverting to the next, contention; that appellant was kept in illegal custody. In this regard, the statement of Investigating Officer P.W. 10 Malik Arshad Iqbal is very relevant. He deposed that, he chased the appellant Faizullah, who tried to flee away on a water tanker and in cross-firing, the appellant got injured and thereafter the doctor was called in the police station, where he was given medical treatment and thereafter he was sent to Provincial Headquarter Hospital, Quetta, as in the given situation, it was not advisable to provide him medical treatment at Chaman. However.' he remained under treatment at Quetta, till 31-1-2004, soon after when he was discharged from the hospital he was arrested in the instant case and produced before the Magistrate on the same day, where he got recorded his confessional statement. It is worth-mentioning that defence has not disputed that appellant Faizullah was under treatment in the Jail Ward Civil Hospital, Quetta till 31- 1-2004, when thereafter he got recorded his confessional statement and was remanded to judicial custody. It may be pointed out that, there was no occasion of producing appellant Faizullah, before any Judicial Magistrate, for remand, as per statement of Investigating Officer because during all this period, he remained hospitalized till recording his confessional statement.
32. Now coming to the next contention whether the confessional statement was obtained under duress coercion and torture. In this behalf, it may be observed that Honourable Supreme Court in the case of Ch. Muhammad Yaqoob and others v. The State and others 1992 SCM R 1983, has laid down the following parameters for taking into consideration the confessional statement of an accused person: "(19)From the above cited cases, inter alia, the following principles of law are deducible:-- (i)That if a statement of fact made by an accused in a. confession is of the nature that if it is assumed to be true, it would negate the offence alleged to be confessed, it is called an exculpatory confession.
33. (ii)That a statement of an accused that contains self- exculpatory matter cannot amount to confession.
34. (iii)That a retracted confession is sufficient to sustain a conviction for a capital offence, if the Court is of the view that the same voluntary and is true, but as a rule of prudence, it 'has been consistently held by the superior Courts that the same should not be acted upon unless corroborated by some other reliable evidence in material particulars.
35. (iv)That though the confession of a co-accused cannot be made foundation of conviction but it may be used in support of other evidence.
36. (v)That the confession of a co-accused is an evidence of a weak, character.
37. (vi)That under Islamic Jurisprudence, in order to make a confession reliable it should be voluntarily made and not on account of any coercion, duress or violence.
38. (vii)That any delay in recording of a confession may, or may not, be fatal as to the evidentiary value of a retracted confession as in the case of Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others PLD 1972 SC 363, this Court has held that the factum that the accused were in the police custody for 11 to 15 days, was not fatal as to the credibility of the retracted confessions for the reason that the Court was satisfied that the retracted confessions were not tutored and were, in fact, made voluntarily.
39. (viii)That any lapse on the administrative side on the part of a Magistrate recording a confession, may not be fatal as to the evidentiary value of such confession provided the Court is satisfied that the lapses on his part have not, in any way, adversely affected the voluntariness or truthfulness of the confession.
40. (ix)That if an accomplice's evidence is not corroborated in material respects, it cannot be acted upon and that the evidence of an accomplice cannot be used to corroborate evidence of another accomplice.
(20) The legal position, which has emerged from the above reports, seems to be that in order to judge the evidentiary value of retracted confession, the Court is to advert to the question, whether the same appears to have been made voluntarily, Without any inducement, duress or coercion with the object to state the truth. If the Court is satisfied on the above aspect, the mere fact that there were some irregularities in recording of a confession, would not warrant disregarding of the same. The above alleged irregularities in respect of recording of the confessions highlighted by Mr. Abid Hassan Minto, referred to hereinabove, in our view, would not be fatal as to the evidentiary value of the same if we were to be satisfied that the same have not, in any way, adversely affected the voluntariness or truthfulness of the retracted confessions. It may be observed that a perusal of the record of the trial Court indicates that the confessions have been recorded on the prescribed pro forma, containing the requisite questions, answers and endorsements, but the same have not been reproduced in the paper books of the appeals. It is the true that according to P.W.23 Khuda Bux, six accused were produced on 17-8-1977 for getting their confessions recorded, whereas, according to P.W.19 Shamsuddin, the recording Magistrate, three of them were produced for remand. But, in our view, the above conflict in the above two versions is reconcilable as admittedly the Magistrate had granted remand on 17-8-1977 in respect of the three accused, whose confessions were not recorded. Similarly, the fact that the three accused' were produced together before the Magistrate, and they were given time for reflection together and they were brought back together after lapse of reflection time, would not render their confessions defective, if the perusal of the same indicates that the accused/ convicts were not tutored or coerced to make the same.
41. Adjudging the confessional statement of appellant Faizullah, on the touch-stone of aforementioned parameters, it may be seen that, though the confessional statement was recorded after seven days of his arrest i,e, on 31.1.2004, but as observed hereinabove, it has come on record that, on the day of incident, the appellant in cross-firing with Investigating Officer received bullet injuries and thereafter he was shifted to Civil Hospital, where he remained under medical treatment till (sic) the defence. After he was discharged, on the same very day, he was produced before the Judicial Magistrate (P.W.7 Rehmatullah Umrani) who recorded his confessional statement. Nothing has come on record to show that appellant was ever tortured, while he was under treatment in the Civil Hospital. The day he was discharged, he was produced before the Judicial Magistrate for recording of confessional statement. It may be noted that perusal of the confessional statement shows that, it was voluntary, true and confidence-inspiring, but still it has been corroborated by other evidence. It may be observed that, in the confessional statement, he stated that, at about 4-30 p.m. he alongwith other co-accused persons came in Alto Car. He was armed with a pistol and other accused persons were armed with kalashnikovs. Soon after his arrest, Suzuki Alto Car bearing Registration No, AB-151 (Karachi) was recovered at his instance, which was left abandoned by the appellants and other co-accused persons, after the incident. He was seen by the witnesses, while boarding the car and after his arrest; he has not denied that, he was Faizullah. The confessional statement of appellant has been orroborated in material particulars by reliable evidence and there is no reason to discard the same. As far as the delay is concerned, it may be observed that, it has been consistently held by the superior Courts that if some irregularity has been committed, while recording the confessional statement, that may be ignored, if it appears that the confessional statement in itself is voluntary, true, without inducement, duress and coercion and satisfies the conscience of the Court. Thus, in view of the above discussion, we have no reason to disbelieve the confessional statement of appellant Faizullah, to the extent of his own involvement in the commission of offence. Reverting to the contention of Messrs Naeem Akhtar, Jamal Mandokhel and Mehmood Khokhar, learned counsel that as far as appellants Muhammad Azam, Inayatullah 'and Doulat Khan, and even the absconding accused Muhammad Akbar, are concerned, there is no other evidence to connect them with the commission of offence and they have only been convicted on the basis of confessional statement of appellant Faizullah. The allegation against the appellants Inayatullah and Doulat Khan is that they informed Faizullah and other appellants that huge amount of currency business is daily carried out in the shop of Haji Khairullah and further planned to commit dacoity in the said shop. The allegation against absconding convict Muhammad Akbar is that he was driving the Alto Car and kept sitting in the car while the other three accused persons entered the shop. The accusation against the appellant Muhammad Azam is that he alongwith other two appellants entered the shop to commit dacoity. Learned counsel contended that under Article 43 of the Qanun-e-Shahadat Order, 1984, it has been mentioned that the confession of co-accused can be used as a corroborative piece of evidence, if there is other evidence against the co- accused, corroborating the confessional statement. It may be pointed out that under Article 43(b) of the Qanun-e-Shahadat Order, the Court may take into consideration confession made by one accused, as a circumstantial evidence against other person. The confessional statement of co-accused can only be used against other accused, if there is other evidence, direct or circumstantial connecting the accused with such crime. It is well-settled that if confession made by one accused can be taken into consideration against another accused, not as a substantive piece of evidence but as, a corroboratory piece of evidence which requires independent corroboration. In this regard, reference may be made to following case-laws:
(i) State v. Asfandyar Wali and 2 others 1982 SCM R 321, wherein the following observations were made: "The Court may take into consideration such confession as against such other person as well as against the person who makes such confession". Clearly, therefore, the confession of a co-accused is no evidence against another accused, the moreso when it is retracted. And, as pointed out by Sir John Beaumount in Bhubani Sahu u. The King PLD 1949 PC 90, a confession of a co-accused: "Does not indeed come within the definition of evidence contained in Section 3. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross- examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of these infirmities. Section 30, however, provides that the Court may take the confession into consideration and, therefore, an accused makes it evidence on which the Court may act; but the section does say that the confession is to amount to proof. Clearly, there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. The confession of a co- accused can be used only in support of other evidence and cannot be made the foundation of a conviction." (ii) Faridullah alias Farid u. The State 1990 PCr.LJ 1937 wherein it was observed as under: "It is well-established principle that the evidentiary value of a retracted confession against a co- accused is considerably less and such a retracted confessional statement requires full corroboration. It is also a well-recognized principle of law that retracted confession of an accused cannot be used against the co-accused except other independent evidence establishing the connection of such an accused with the commission of the crime in which case reliance can, however, be placed even on similar retracted confession."
42. The said view was also affirmed by the Honourable Supreme Court in Criminal Appeal No, 167 and Criminal Jail Petition No, 14/Q of 2002, wherein while interpreting the provisions of Article 43 of Qanun-e-Shahadat Order, it was held as under: "In a case where more than one accused are facing trial can legally be used as substantive evidence only against the maker thereof, reference may be made to Article 43 of Qanun-e- Shahadat Order as under: "43. Consideration of proved confession affecting person making it and others jointly under-trial for same offence. When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons is proved-- (a) such confession shall be proof against the person making it; and (b) the Court may take into consideration such confession as circumstantial evidence against such other person." From a bare perusal of the above Article 43, it is absolutely clear that a proved confession of an accused in a case where other accused are facing joint trial for the same offence can be used as evidence/proof against person making it and as against other accused person, it may be taken into consideration as circumstantial evidence."
43. Mr. Ehsanul Haq, learned counsel, however, reluctantly conceded that, there is no evidence against the other appellants, but contended that since there is change in the language of Article 43 of the Qanun-e-Shahadat Order, from its corresponding Section 30 of the Evidence Act, the Court can convict the accused, on the basis of confessional statement of co-accused. We are not in agreement with the learned counsel, in view of the aforesaid discussion and the case-law laid down by the Honourable Supreme Court. The confessional statement of co-accused cannot be termed as substantive evidence against other accused.
44. Thus, in our considered opinion, the trial Court erred in relying upon the confessional statement of appellant Faizullah while convicting the appellants Muhammad Azam, Inayatullah and Doulat Khan, as there is no other corroborative evidence to connect them with the commission of offence.
45. Lastly, an attempt was made by Mr. Kamran Murtaza, learned counsel that, admittedly, firing at the deceased persons was made by deceased Ubaidullah, who had died in jail during pendency of appeal. Therefore, the death sentence awarded to Faizullah may be altered. We are not inclined to accept the said argument. It may be observed that, under, Section 386, P.P.C. the appellant is also vicariously liable for committing the offence.
46. In view of the above discussion, it is held that prosecution has proved its case against appellant Faizullah, beyond any reasonable doubt and no mitigating circumstances exist for awarding him lesser penally, as appellant alongwith other accused persons, in furtherance of common intention, went into the shop of deceased and during course of dacoity, two persons were killed. As regards appellants Muhammad Azam, Inayatullah and Doulat Khan and absconding accused Muhammad Akbar, the prosecution has failed to prove its case against them. Consequently, Criminal Appeal No, 131 of 2004 filed by appellant Faizullah is dismissed, whereas the appeals filed by appellants Muhammad Azam, Inayatullah and Doulat Khan are accepted and they, are acquitted of the charge. They be set at liberty, if not required in any other case. Though convict Muhammad Akbar has not filed any appeal and is absconding, since his case is at par with that of appellants Muhammad Azam, Inayatullah and Doulat Khan, therefore, he is also acquitted of the charge.
47. Accordingly Murder Reference No, 9 of 2004 sent by Special Judge, Anti-Terrorism Court No, II, Quetta, is answered in affirmative, 'only to the extent of appellant Faizullah son of Haji Muhammad Alt and the death sentence awarded to him is confirmed.