' KARAMAT NAZIR BHANDARI, J.--- This judgment will dispose of Criminal Petitions Nos.29-K, 30-K, 43- K to 45-K, 50-K and 53-K to 56-K of 2004 (ten in all) which arise against the common judgment of the High Court of Sindh dated 6-4-2004 in the following circumstances.
2. Number of accused were tried on charges of murder, robbery and acts of terrorism arising out of F.I.R. No,122 of 1995 of Police Station Ferozabad, F.I.R. 115 of 1995, of the same police station and F.I.R.
No,85 of 1995 of Police Station New Town, Karachi. Criminal Petitions Nos.50-K, 53-K to 56-K of 2004 are by the State against the acquitted accused. These petitions are barred by 23 days. Learned Additional Advocate-General, Sindh has prayed for condonation of delay on the ground that in any case these cases have to be heard on merit with the connected criminal petitions of the convicts namely Criminal Petition No,29-K of 2004 (arising out of F.I.R. No,122 of 1995) and Criminal Petition No,30-K of 2004 (arising out of F.I.R. No,111 of 1995). He further prayed that if convicts are granted leave to appeal then he would stress and pray that leave be also granted as against the acquitted accused even though the petitions may be barred by time. State has also filed Criminal Petition 43-K, Criminal Petition 44-K, Criminal Petition 45-K, all of 2004 against acquittal of respondents in these petitions. In the circumstances we have heard all the petitions on merits.
3. The common feature in these petitions is that while the trial Court believed the confessional statements of the accused, the High Court discarded the same. It may be noted that all the confessions were retracted and in such a case, law requires independent corroboration of the confessional statements. The High 'Court has not only knocked out the confessional statements by dubbing them as stereotyped and for noncompliance of the mandatory provision of section 364/164, Cr.P.C. But also for lack of corroboration from an independent source. The High Court concluded that as against Muhammad Fazil and Kh. Saleemuddin (petitioner in Criminal Petition 29-K of 2004) and petitioners in Criminal Petition 30-K of 2004, namely Syed Asif Ali, Muhammad Fazil and Kh. Saleemuddin, independent corroboration was available in the form of oral testimony of Mst. Mumtaz Ayub P.W.10, Furgan Ayub, P.W.11, (the injured P.W.), P.W.12, Nazia Ayub, P. W.13 Faiz Batool, and P. W.14 Sofia Hassan. Corroboration was also available as against these convicts from the positive identification parade, evidence of Finger Print Expert and recovery of pistol as well as the looted goods.
4. Mr. Azizullah Shaikh, Senior Advocate Supreme Court appearing for the convicts has strenuously urged that the High Court has erred in relying on the factum of having been correctly picked up in the identification parade inasmuch as only 7 dummies were mixed up with 5 accused. According to him, the High Court has also incorrectly relied upon the evidence of recovery and the statement of Mashir or of the recovery witnesses. He has argued that the recovery of the looted articles had not taken place at the pointation of the convicts or from their flats. To the crucial point as to why conviction cannot he sustained on the basis of the testimony of eye-witnesses particularly the injured P.W. Furgan, Mr. Azizullah Shaikh, answered that these witnesses cannot be supposed to remember correctly the faces of persons who killed 6 of the male inmates of the house and who had ordered the eye-witnesses to keep their heads down to the surface. He finally submitted that the police has falsely involved these convicts to gain out of turn promotion.
5. We regret our inability to agree with Mr. Azizullah Shaikh. Even if the evidence of recovery, identification parade and of confessional statements is excluded, we are of the affirm view that conviction of these petitioners can be safely based on the testimony of eye-witnesses. Not only that Furqan, P.W.11, himself suffered the bullet wound and was the only lucky male to survive but he vividly recalled the details of the occurrence and no suggestion whatsoever was made to the witnesses regarding false involvement. Indeed we feel that in the facts and circumstances of the case nothing is available on the record indicating false involvement. Mr. Azizullah is not correct in submitting that eye-witnesses could not be expected to identify the accused because of the normal lapse of memory. He has further failed to point out from the testimony of the Investigating Officer or other Police Officers that they falsely involved these petitioners for ulterior motives. We therefore, have no hesitation to hold that the High Court has correctly convicted and punished the petitioners in Criminal Petition No,29-K and 30-K of 2004 namely Muhammad Fazil, Kh. Saleemddin and Syed Asif Ali. Leave is refused in these petitions and the same are dismissed.
6. As regards the acquittal appeals against Fahimul Haq (Criminal Petition 45-K of 2004), the learned Additional Advocate-General, Sindh has contended that the respondent having been convicted and sentenced in absentia by the trial Court, his appeal in the High Court was incompetent and the only course available to him was to surrender in the trial Court and to claim retrial. In his submission the High Court should have remanded his case rather than acquitting him.
He also argued that in any case his appeal in the High Court is barred by time and in absence of any application showing sufficient cause, the High Court could not have condoned his appeal and decide the appeal on merits. As regards acquitted respondents in Criminal Petition 55-K of 2004 namely Umer Hayat, Karimullah Sharif and Mansoor Ali Babar, he has strenuously urged that their confessional statements should have been accepted in spite of retraction. He has argued that eye-witnesses have stated that Muhammad Fazil, Saleemuddin and Asif Ali, were receiving calls on their mobiles and prosecution has been able to establish that these calls were made from the mobiles phones belonging to these respondents and recovered from them at the time of their arrest. He has referred to statement of P.W.23, the representative of the Mobile Company as also the phone bills showing the calls having been made from their mobile phones at the relevant time i,e, the night between 1st and 2nd March, 1995.
7. We do not find any force in the submission of learned Additional Advocate-General that the absconding accused who is tried and punished in his absence, cannot maintain the appeal against the conviction. Section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 confers the right of appeal on a person "sentenced by a Special Court". This provision of law does not make a distinction between a person sentenced in absentia and a person who is sentenced while present. At best, it could be said that such a person has option of either surrendering in the trial Court and seeking fresh trial or filing an appeal in the High Court, if he feels that the evidence recorded against him in absentia does not justify conviction. We hold that the appeal of Fahimul Haq, respondent in Criminal Petition 45-K of 2004 was maintainable. The High Court in any case seems to be right that it can pass order of acquittal in favor of even non-appealing convict. The learned Additional Advocate-General has not been able to show that this conclusion by the High Court was in any manner incorrect or illegal. From this point of view the submission of the appeal being barred by time and should have been dismissed as such, loses significance. In Muhammad Ashfaque alias Chief and 18 others v. The State 1998 PCr.LJ 1486 a Division Bench of the High Court came to the same conclusion and we respectfully affirm the view that the person convicted in absentia has equal right of filing the appeal and seeking its adjudication on merit.
8. The High Court has acquitted Fahimul Haq, Umar Hayat, Karimullah Sharif and Mansoor Ali Babar (the latter three being respondents in Criminal Petition No,55-K of 2004) on the ground that their confessional statements have been retracted and there was no independent corroboration of the same. Learned Additional Advocate-General pointed out that at the time of their arrest, kalashnikov was recovered from Umer Hayat and Mansoor Ali Babar, and while sten-gun was recovered from Karimullah and these recoveries furnished corroboration of the confessional statement. He further urged that corroboration as against them was also available from the recovery of robbed articles at their behest. He, however, failed to name such articles.
9. We are inclined to uphold the view of the High Court. The confessional statements have been recorded in English language and the recording Magistrate did not bother to question the confessor as to whether he was conversant with English 1anguage. Further the confessions are stereotyped and stand recorded in such a perfect manner that not only there is no overwriting but also there has been no correction in any of the confessions. These are good reasons for not placing reliance on such confessions in the facts and circumstances of the cases, particularly when these are recorded not immediately or soon after disclosure to the Investigating officer but after about 6 to 8 days. We cannot be disregardful of the pleas of these accused that their signatures/thumb impressions were got by Investigating Officer on plain/blank papers. In any case, the confessions having been retracted, corroboration from independent source was required for recording conviction, safely. Learned Additional Advocate-General has not been able to point out any valid corroboration. He could not name the robbed articles which according to him furnish the corroboration. The arms allegedly recovered from these respondents do not furnish corroboration as they have not been shown to have been used in the occurrence.. While there is evidence to believe that these respondents may be in contact with the convicts through mobile phones, there is no evidence whatsoever of actual incriminating conversation. Therefore, even this piece of evidence does not improve the case of learned Additional Advocate-General.
10. It is well-settled that leave against acquittal is granted only if the impugned judgment is either perverse or arbitrary or the conclusions arrived therein cannot be arrived at all Mere possibility of another F finding/conclusion will not entitle a petitioner to claim leave against acquittal. After extensive review of the material on record, the learned Additional Advocate-General has not been able to show any arbitrariness or perversity in the impugned judgment.
11. For what has been stated above Criminal Petitions Nos.43-K, 44-K, 45-K, 50-K, 53-K, 54-K, 55-K and 56-K of 2004 are also dismissed. Leave is refused in all these ten petitions.