' RAHMAT HUSSAIN JAFFERI, J---This judgment will dispose Spl. Anti-Terrorism Appeals Nos.39 to 42 of 2002, 28 of 2002 and Confirmation Case No,2 of 2002 as they arise out of a common judgment.
2. The present appeals have been directed against the judgment dated 15-4-2002 passed by the learned Judge Anti-Terrorism Court No,III, Karachi in Special Case No,205/2001 arising out of Crime No,57/2001 for offences punishable under sections 302, 34 P.P.C., read with section 7 (a) of Anti- Terrorism Act, 1997 of Police Station Gul Bahar; Special Cases Nos.242 to 244 of 2001, F,I,R.s Nos.85,84 and 83 of 2001 Tor offences punishable under section 7 (1) (c) of Illicit Arms Ordinance, 1965 read with section 13(d) of Pakistan Arms Ordiannce, 1965 by which the learned Judge convicted and sentenced the appellants. The operative part of the judgment reads as under:-- "(1) Convict the accused Muhammad Talha Hussain alias Noman son of Ishrat Hussain and accused Khalil Ahmed alias Hassan Jan son of Nawabuddin under section 302(a), 34, P.P.C. Read with section 6(1)(c), 6(2)(a) and section 7 (a) of A.T.A. 1997 and sentence them to death sentence.
They shall be hanged by neck till their death. The sentence of death shall not be executed unless confirmed by the Hon'ble High Court in view of section 374, Cr.P.C. An amount of Rs,1,75,000 is also imposed on each of them being diyat, which should be paid to the legal heirs of the deceased.
(2) Convict the accused Muhammad Shahid Hanif alias Mufti Shahid son of Qazi Muhammad Hanif under section 302(a)/34, P.P.C. Read with section 6(1)(c), 6(2)(a) and section 7(a) of A.T.A. 1997 and sentenced him to suffer life imprisonment. An amount of Rs,1,75,000 is also imposed on him being Diyat, which should be paid to the legal heirs of the deceased.
(3) Convict all the accused under section 13-D of Arms Ordinance 1965 and sentence them to suffer 7 years' R.I. And a fine of ' Rs,50,000 each. In case of default in payment of fine, they shall suffer further R.I. For one year each.
They shall be entitled to the benefit of section 382-B, Cr.P.C."
3. Brief facts of the prosecution case are that deceased Syed Zafar Hussain Shah was serving as Director Laboratory, Ministry of Defence. On 30-7-2001, at about 7-40 a.m. The deceased left his house to go to office in his official Suzuki FX Car which was being driven by P.W.4 Syed Safdar Shah.
After 2 or 3 minutes of leaving the house, the complainant P.W.1 Mst. Nasreen, wife of deceased, heard fire-arm reports, therefore, she ran towards the main gate of her house. In the meantime, driver P.W.4 Safdar Shah came running and informed the complainant that the deceased was attacked who had received fire-arm injuries. P.W.2 Sayed Murtaza Hussain, son of the deceased, already reached there. Then they went towards the car which was parked near the house in which the deceased was lying on the rear seat of the car in injured condition. The deceased was taken to Abbasi Shaheed Hospital in the same car where the doctor pronounced him dead. Such intimation was sent to the police. Thereafter, the police arrived in the hospital. The P.W.6 SIP Muhammad Ameer also reached the Abbasi Shaheed Hospital where he completed the formalities.
4. P.W.8 Muhammad Arif Khan, the S.H.O. Police Station Gul Bahar, also arrived in the hospital who tried to record the statement of the complainant but she was not in her full senses. P.W.8, along with P.W.4 driver Sayed Safdar Shah, went to the place of the incident where they found three empty cartridges lying there, which were secured and sealed by the police. Thereafter the S.H.O.
Returned to the hospital where at about 12 noon he recorded the statement of complainant, which was sent to police station to incorporate it in 154, Cr.P.C. Book for registration of case. The car was parked in the hospital. The S.H.O. Found blood lying on the rear seat and foot mat of the car. The blood was secured. He recorded the statements of witnesses. On 31-7-2001, P.W.8 was transferred.
On 28-9-2001 P.W.11, SIP Saeed Ahmed Rind arrested the appellants near Delhi Pakwan House, Rahman Market, Nazimabad-I, Karachi. One Kalashnikov was secured from the possession of appellant Mufti Muhammad Shahid, TT Pistols were secured from the possession of appellants Muhammad Talha Hussain and Khalil Ahmed. The articles were sealed in presence of two private witnesses namely Majid Gul and Akram. The accused were brought to the police station where the SIP registered the F.I.Rs, Nos.83, 84 and 85 of 2001 against the appellants for offence punishable under section 13(d), Pakistan Arms Ordinance, 1965. On 29-9-2001, P.W.13 S.H.O. Who received the investigation papers made formal arrest of the appellants as they were arrested in the cases of offence punishable under section 13 (d), Pakistan Arms Ordinance, 1965. On 2-10-2001, the appellants were produced before the Magistrate for holding identification test through P.W. Sayed Safdar Shah who identified the appellants to be the culprits of the crime. The appellants were involved in other cases, therefore, the S.H.O. Of Police Station Gul Bahar brought the appellants to Judicial Magistrate for recording their judicial confessions where their confessions were recorded in which they confessed the guilt of the present case. The P.W.13 sent the crime empties to the Ballistic Expert for examination and report as the arms secured from the possession of appellants were already sent to Ballistic Expert. The report shows that the crime empties matched with the pistol secured from the possession of appellant Muhammad Talha.
5. After completing usual investigation, the appellants were challaned before the administrative Judge of Anti-Terrorism Courts Karachi in F.I.R. No,57 of 2001 of Police Station Gul Bahar of this incident whereas the appellants were challaned before the Magistrate for offences punishable under section 13(d), Pakistan Arms Ordinance, 1965. The case pertaining to F.I.R. No,57 of 2001 was assigned to the Anti-Terrorism Court No,III. The Magistrate sent the cases of abovementioned three F.I.Rs, of offence punishable under section 13(d), Pakistan Arms Ordinance to the Anti-Terrorism Court No,III. With the consent of the Prosecution and defence counsel all the cases were consolidated with each other and case pertaining to F.I.R. No,57 of 2001 was made the leading case in which the evidence was recorded. The learned trial Judge also found that the Magistrate had framed the charge in the cases, therefore, he started the proceedings from the stage of recording the evidence as per order dated 21-2-2002, appearing at page No,26 of the paper book.
6. On the same date the trial Court framed the charge against the appellants. In support of the case the prosecution examined 13 witnesses. The appellants in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. The appellant Muhammad Shahid Hanif in his further statement stated as under:-- "I am Pesh Imam of mosque situated at Malir City, I belong from Fiqah Hanfia and is follower of Dev Bandi Maslak. I have given statement and prayer for all the parties and alliances who belong from Dev Bandi Maslak and also pray for them, who belong from Dev Bandi Maslak and also pray for them. I am not worker of any Tanzeem of Sipah-e-Sahaba including Lashkar-eJhangvi. I am innocent and have been implicated falsely. Presently the Government is taking action against the religious parties and Madaris and oftenly the leaders of religious parties and Madaris are behind the bar and I have been arrested because of the said Anti-Muslim Policies of Government in Juma congregations and on every available stage therefore, the Government is against me. I was called from my house and when I came out I was blind-folded and took in the mobile van and was brought at police station to admit the murder of case of Shokat Hussain of PSO who was already killed because of sectarian violence. I was severally tortured by the police during the course of my confinement with them. My two teeth were also broken in custody because of torture of police. I was also shown the vicinity where, I was kept by the police after my arrest which was an isolated type of Jungle and I was threatened by police either to admit the guilt of the present case including murder case of Shokat Hussain or prepare to die because according to them I had no alternate to accept anyone of their conditions thereafter they had obtained my signatures on blank papers on 28-9-2001. I am innocent and have been implicated falsely."
6. The appellants did not examine themselves on oath or lead any evidence in their defence.
7. The learned trial Judge after considering the material available on the record and hearing the parties counsel convicted and sentenced the appellants, as mentioned above under the impugned judgment. The appellants were dissatisfied with the said judgment, therefore, they have preferred the present appeals. The State was also dissatisfied with the sentence, passed against appellant Muhammad Shahid Hanif, therefore, they also filed Appeal No,28 of 2002 for enhancement of sentence. The learned trial Judge has sent the reference under section 374, Cr.P.C.
For confirmation of death sentence.
8. We have heard the Advocates for the appellants, A.A.-G. For the State and perused the record of this case very carefully.
9. The learned Advocates for the appellants have stated that the prosecution has relied upon four pieces of evidence (1) Ocular testimony,(2) identification test, (3) Confession, and; (4) Recoveries.
They have stated that the ocular testimony consists of one witness viz. P.W.4 drivers Sayed Safdar Shah who was not present at the scene of the incident or saw the incident, because, he had not received any injury and the culprits who were allegedly terrorists would have not left the driver to identify them subsequently and that the evidence of sole witness is not enough to convict the appellants unless he is a truthful witness as held in Gulistan v. State (1995 SCM R 1789). They have further stated that the evidence is full of infirmities and discrepancies which is not supported and corroborated by other pieces of evidence; that the statement of the P.W.4 was recorded after delay of 10 hours without any explanation though he was with police throughout the period which creates doubt in his evidence. As regards the identification test, they have stated that the Magistrate had not changed the dummies, as in all identification test, the dummies were same, but only the accused persons were changed, therefore, such identification test carries no weight. They have relied upon the case of Taha v. State (2003 YLR 166). As regards Confessions they have stated that the appellants were arrested on 30-9-2001; that their confessions were recorded on 10-10-2001 as such there is delay of 10 days in recording the confessions which has affected the truthfulness of the confessions; that the confessions were recorded after Court hours and the custody was handed over to DSP; that the Magistrate did not mention in the remand order that their confessions were recorded, which violates the rules of Federal Capital and Sindh Courts Criminal Circulars, therefore, the confessions carry no weight. As regards the recoveries, they have stated that only pistol of appellant Muhammad Talha Hussain, matched with the crime empties, whereas the weapons of other appellants did not match with the crime empties, hence, they cannot be relied upon. They have further stated that the charge was defective, as such, the trial has vitiated. They have relied upon Dur Muhammad v. State (1994 M LD 1493).
10. Conversely the learned A.A.-G. Has stated that the defect in the charge is curable under section 535, Cr.P.C. As regards the ocular testimony, he has stated that it is quality and not quantity which can determine the fate of the case; that the sole eye-witness has fully supported the prosecution case and implicated the appellants in the commission of the crime; that there are no infirmities in the evidence of P.W.4 and the infirmities pointed out by the learned Advocates for the appellants are minor in nature which are in respect of the facts after commission of the crime, therefore, the same have not affected the evidentiary value of the witness. As regards the identification test, he has stated that in all the three identification tests, the dummies were changed, as clear from the evidence of P.W.4 and P.W.7; that in the cross-examination the P.W.7 admitted that she had arranged 10 dummies in each identification parade; that the appellants were correctly identified by P.W.4 who had assigned them the role which they had played at the time of incident. As regards the confessions, he has stated that the Magistrate (P.W.12) had performed all the legal formalities and then recorded their confessions; that the confessions are voluntary and true, which have been supported and corroborated by other pieces of evidence available on the record and that the confessions are sufficient to convict the appellants. As regards the recovery, he has stated that the appellants were arrested; that Kalashnikovs and pistols were recovered from their possession; that three crime empty bullets were secured from the place of incident; that the said bullets matched with the pistol secured from the possession of appellant Muhammad Talha Hussain, therefore, the prosecution has proved the recoveries, only, against the appellant Muhammad Talha Hussain; and that the above circumstance supports the confessions in which it has been stated that pistol of appellant Talha was used as the pistol of appellant Khalil was jammed, whereas appellant Muhammad Shahid had not used the pistol. He has supported the impugned judgment and further added that the sentence of appellant Muhammad Shahid Hanif may be enhanced, as the offence would fall under the then section 7(a)(i) of Anti-Terrorism Act, 1997, because, the offence was committed on 30-7-2001 and the sentence provided thereunder is only death.
11. We have given due consideration to the arguments, gone through the evidence with the help of learned Advocates for the appellants and found that the prosecution case rests upon four pieces of evidence; (1) Ocular testimony, (2) Identification test, (3) Confessions, and; (4) Recoveries.
12. First of all, we will deal with the ocular testimony, which consists of P.W.4 Sayed Safdar Shah. His evidence reveals that he was serving as driver in the Ministry of Defence for the last 16 years.The deceased was Director Laboratory, Ministry of Science and Technology Organization, Karachi. He used to drive his official Suzuki FX Car, bearing Registration No,GP-3427. On 3-7-2001, at about 7-45 a.m., he went to the residence of the deceased, situated in Nazimabad No,2, to take him to the office. After parking the car, he went to the house of the deceased and informed him about his arrival. Thereafter, the deceased came and occupied the rear seat on the left side of the car. He started the car and covered few paces, when two persons came in front of the car. They came towards the side, where the deceased was sitting and started firing on the deceased. Thereafter, they both crossed the car. Their another companion came on a scooter/motorcycle in front of his car. Thereafter both the culprits sat on the motorcycle on the rear seat and went away from there.
After the departure of the culprits, he rushed to the house of the deceased and informed the matter to the wife of the deceased. Thereafter, the wife P.W.1 and son P.W.2 of the deceased came with him. They took the deceased to Abbasi Shaheed Hospital in the same car. He remained present near the side of the car, whereas the wife and son of the deceased took the deceased to Emergency Ward. Thereafter, the police arrived in the hospital.
13. He further stated that fire-arm shots were fired from the left side of the car where the deceased was sitting. The seat of the injuries on the person of the deceased shows that the deceased had received one injury on the forehead, two fire-arm injuries on the right side of the chest, one injury on the right forearm and a lacerated injury on the right eyeball. This clearly indicates that when the deceased saw somebody coming from his left side, he must had turned himself to see the said persons, therefore, his right side and front side were exposed to the persons who were standing on the left side of the door of the car. In such a position, the deceased had received one injury on the forehead; two injuries on the right chest; one injury on the right forearm and one injury on the right eyeball. Thus his statement is fully supported and corroborated by the medical evidence. His statement is further supported from the fact that the car had a bullet hole on the rear right door.
The bullet had entered from inside the car and came out from outside the car, as clear from the Expert report, Exh.P.72. The Investigating Officer also found the said marks on the car. The said marks must have been caused when the bullet was fired from the left window, entering from the inner side of the right door of the car and coming out from the said door from its outer side. As such the circumstantial evidence also supports and corroborates the ocular testimony of P.W.4.
14. The evidence of P.W.4 is further supported and corroborated by P.Ws.1 and 2 viz. Complainant Nasreen Zafar, wife of deceased and Murtaza Hussain, son of the deceased. Their evidence reveals that on the date of the incident at about 7-45 a.m. They were present in the house. The deceased left the house to go to office in his official Suzuki FX Car, which was being driven by P.W.4. After some time, they heard fire-arm reports, therefore, they rushed towards the main gate. In the meantime, P.W.4 also reached the house and informed them about the incident. Thereafter, they went to the car, where they found the deceased lying injured on the rear seat of the car. They took the injured in the same car to hospital where the doctor informed them that the deceased had died. From the above evidence it is clear that the presence of the P.W.4 at the scene of incident has been established from the evidence of P.Ws.1 and 2. The presence of the deceased on the rear seat of the car further establishes that the driver P.W.4 was present; otherwise, there was no occasion for the deceased to have sat on the rear seat of the car. Thus, there is no doubt with regard to the presence of P.W.4, at the place of incident. He categorically stated that two persons came, who fired at the deceased and then their third companion came on a motorcycle. Thereafter, they left the scene of the incident. From the evidence, it is clear that the culprits were unknown to the P.W.4.
The P.W.4 was a natural and independent witness whose presence at the scene of the incident cannot be doubted in the circumstances of the present case. Thus the prosecution has proved the ocular testimony.
15. The learned Advocates for the appellants have attacked the evidence of P.W.4 on the ,ground that his statement was recorded after 8 hours and such delay has not been explained, therefore, it casts doubt upon his evidence. It is pertinent to point out that his presence at the scene of incident has been established from the evidence of P.Ws.1 and 2. His name appears in the F.I.R. As a witness.
He was with the police showing the place of incident and other places and then his statement was recorded at about 11-00 p.m. As per statement of Investigating Officer. Whereas P.W.4 stated that his statement was recorded at 1-00 p.m. However, this discrepancy in the evidence is minor in nature which cannot affect the veracity of this witness whose evidence is supported and corroborated by other pieces of evidence. He is a natural witness. His presence at the scene of incident cannot be doubted. He has no motive or cause to falsely implicate the appellants in this heinuous crime. There is no enmity between the P.W.4 and appellants nor any enmity has been suggested against him. Therefore, mere delay of few hours in recording the evidence per se is not fatal to his evidence. Reliance is placed in the case of Hamid Javed v. State (PLD 1988 SCM R 39).
16. As regards the identification test, the prosecution examined P.W.7, Mrs. Fazana Mushtaq, Judicial Magistrate. Her evidence reveals that on 2-10-2001 at 9-30 a.m. P.W.4 Safdar Shah attended her Court and she made him sit in a room of Bailiff Branch, situated adjacent to her Court. Thereafter, the appellants were produced with muffled faces. Their handcuffs were removed. Then she arranged 10 dummies of similar height, feature and nature of the accused through staff of the Court. First the identification test of Muhammad Shahid Hanif was conducted through P.W. Safdar Shah who identified the appellant. Then the identification test of accused Talha was conducted. He was also mixed up with 10 dummies. The P.W.4 also identified him. Thereafter the appellant Khalil Ahmed was called. He was also mixed up with dummies to whom the P.W.4 also identified. P.W.4 in his statement stated that on 2-10-2001, he had gone to the Court of Judicial Magistrate-VIII Karachi, Central. He was produced before the Magistrate, who after satisfying his identification, asked him to sit at the back of the Court room. At about 9-45 a.m., he was called inside the Court Room, where he saw 12/13 persons standing in a row and the lady Magistrate asked him to identify the accused, to which he identified one accused person. Thereafter, he was sent back. Again, he was called. He identified one accused person from 12/13 dummies. Then, he was again sent out of the Court. After 10 or 15 minutes, he was again called and he identified the third accused from the dummies. He further stated that in all the three identification tests, he identified different accused amongst the dummies. He further stated that appellant Shahid was on the scooter/motorcycle and the remaining two accused persons had opened fire-arm shots at the deceased.
17. In the cross-examination, P.W.4 further stated that the accused who was having beard was mixed up with the dummies who were with beard and the other accused who were without beard, were mixed with the dummies with no beard. From the above statement, it is clear that the dummies were different in all the three identification tests. P.W.7 Judicial Magistrate also stated in the cross-examination that she had arranged 10 dummies in each identification parade in toto. If this statement is read along with the statement of P.W.4, then there is no hesitation in holding that the dummies in each identification test were different. However, the learned Advocates for the appellants have interpreted, the word "toto", as total dummies 10 in all the identification tests and the accused were mixed-up with the said dummies. The relevant portion of the statement of the Magistrate reads as under:-- "I then arranged 10 dummies in each identification test in toto".
18. The word "each" mentioned in the above sentence, clearly indicates that 10 dummies were in each identification parade. The word "toto", does not mean that in all there were 10 dummies for all the three identification tests. As already observed that this point has been clarified by the P.W.4 who categorically stated that the accused who was with beard was mixed up with the dummies who were with beard and the other accused were mixed up with the dummies who were without beard. It clearly demonstrates that the dummies were different in each test, therefore, the alleged confusion created in the evidence of the Magistrate has been clarified by P.W.4. As such, there is no, illegality in the identification tests. P.W.4 has assigned the role to each appellant in his statement recorded in the Court. Therefore, such role fulfils the requirements of law as held in the case of Solat Ali Khan v. State (PLD 2002 SCM R 820).
19. Now we will deal with the confessions. In order to prove the confessions of the appellants, the prosecution examined P. W.12, Judicial Magistrate, S.M. Naqi. He stated that on 10-10-2001, the appellants were produced before him for recording judicial confessions. He gave all the warnings to the accused separately and specifically informed them that they were not required to make confessions, and; in case they gave confessions, the same would be used against them as evidence; that they would be remanded to judicial custody if they made confessions or otherwise.
All the other required formalities were completed by the Magistrate. Then, he gave two hours time to the appellants for reflection Thereafter, the Magistrate again warned the appellants separately and repeated the warnings, but they were ready to confess their guilt. Therefore, the Magistrate started recording their confessions at 3-30 p.m. And finished at 5-30 p.m.
20. From the evidence of the Magistrate, it is clear that the Magistrate had completed all the required formalities for recording the judicial confessions and then he recorded the confession of each accused separately. The Magistrate produced the confessions as Exhs.60 to 62. A perusal of confessions reveals that apart from the confessing the guilt, of the present crime, they confessed the guilt of some other crimes. With regard to the present crime the appellant Khalil Ahmed in his confessional statement stated as under:-- "I live in Millat Town near Malir Halt. I sit in a shop. About 3 years back, I met with Mufti Muhammad Shahid Hanif, Mufti Muhammad Shahid Hanif was 'Khatib' of Noorani Mosque Malir No,15 and due to this reason, I oftenly used to meet him. Last year I accompanied with him to Afghanistan where we spent 2 months in war and got training in camp for two months. After getting training, I mentally prepared, then we both returned back and I became busy in my shop keeping. On 31st May, 2001 Mufti Sahib took me for my first job and it was the murder of Doctor Raza Mehdi.
' After some time Mufti Sahab asked me for second job of the Director of Defence Ministry Zafar Zaidi and he showed me his residence and car one or two times. I myself saw his face personally (for committing job). Then one day at 6-45 or 7 O'clock in the morning, (Mufti Sahab) picked me from Malir Halt, at that time Talah was accompanying him. From there we went to the house of Zafar Zaidi at Nazimabad via Lalu-Khait Dak Khana. Mufti Sahab parked the Motorcycle at the corner of lane and we went on foot towards the car, which had started to run, but Talha opened firing. Mufti Sahab started the motorcycle and came to us. I had gone to the driver's side (of the car) and Talha had opened firing at Zafar Zaidi, I also tried to shoot him, but my firing was missed.
We boarded on the motorcycle and Mufti Shaba dropped both of us at Lalu Khait, from where me and Talha boarded in a bus and went to Malir Halt, where Mufti Sahab came and I handed over my 'Saman' (arms) to him, and he took away Talha with him. After some time, gap I, performed third job of Ali Hasnain Naqvi.
(2) STATEMENT OF ACCUSED MUHAMMAD TALHA HUSSAIN.
"I live in Golimar area. In 1998, I left my study, those days I was studying in Islamia College. I used to offer 'JUMA' prayers and to listen 'KHUTBA' in SIDDIQ-E-AKBAR Mosque.
' NAGAN CHORANGI, where I got introduction with Zeeshan Bhai who was a resident of Enquiry Office area, Nazimabad. He gave me knowledge about 'SHIA' people, and he got me introduced with Asif Ramzi. Thereafter, no contact was made with him. Then Zeeshan Bhai got me introduced with MUFTI MUHAMMAD SHAHID HANIF and I got meeting for performance of work. I performed first job of (killing) Doctor Ishrat along with Hyder.
' I mostly used to remain with Mufti Sahab. After many days of this incident, Mufti Sahab showed us the face, residence and house of the Director of Ministry of Defence Mr. Zafar Zaidi. Then I, Mufti Sahab and Khalil Ahmed alias Hassan Jaan, went on motorcycle from Malir to Nazimabad Khamosh Colony. Mufti Sahab remained standing at the corner of lane along with the Motorcycle and we stood in front of the house of Zafar Zaidi. Zafar Zaidi came and sat in the car. As soon as the driver started the car and it moved slightly, I opened 4/5 shots at Zafar Zaidi, Khalil Ahmed alias Hassan Jaan went towards the driver side, but his pistol did not work. Immediately Mufti Sahab took the motorcycle and both of us boarded with him on the motorcycle and he dropped us at Liaquatabad No,10. From where we hired a car and went to Malir area and reached at the shop of Khalil, where also Mufti Sahab came and collected arms etc from us. After some period, about one month or 1-1/2 month, Mufti Sahab gave us assignment to kill Altaf Bangish.
(3) STATEMENT OF MUHAMMAD SHAHID HANIF.
' I live in "Al-Falah Soceity Malir, and I am Ithateeb' in Noorani Mosque, Malir City. I had performed 'Dars-e-Nizami' from Dar-ul-Uloom Korangi. On 31st May 2001, I and Khalil Ahmed went to Gulshan- e-Iqbal, by riding on Motorcycle No,BRF-9832, where clinic of Doctor Raza Mehdi Jafri was situated.
' After some period, I, Khalil and Talha on the same Motocycle went to Nazimabad from Malir, where the car of Zafar Zaidi was parked. I stopped the motorcycle in a lane, while Talha and Khalil went towards the car. As soon as Zafar Zaidi came out of the house and sat in the car, both of them opened firing at him, as a result of which he died. Later on, I came to know that the victim was killed due to firing made by Talha, because Khalil's pistol did not work. Just after firing, I took them both on motorcycle and dropped them at a stop of Lalu Khait and boarded on Motorcycle and went to the shop of Khalil situated at Malir. Later on both of them came there by riding in a Bus.
21. The appellants have retracted from the confessions. It is settled principle of law that retracted confession can be based for convicting an accused person if the confession is voluntary and true, but as a rule of procedure, prudence and caution; the confession is required to be corroborated on material particulars. Reference is invited to Muhammad Gul v. State (1991 SCM R 942). Muhammad Yaqoob v. State (1992 SCM R 1983) and Haq Nawaz v. State (2000 SCM R 785).
22. In order to examine, whether the confessions are supported and corroborated by other pieces of evidence, we have examined the confessions of each appellant and evidence available on the record and found that the confessions of each appellant is more or less similar to each other.
According to confessions,, the appellant Muhammad Shahid Hanif picked the appellant Khalil Ahmed and that time appellant Muhammad Talha Hussain was on motorcycle. Then in the morning they all went to the house of the deceased where appellant Muhammad Shahid parked his motorcycle at the corner of lane. Then appellant Khalil Ahmed and Muhammad Talha Hussain went to the car. They started firing from their weapons but the pistol of appellant Khalil Ahmed was jammed. The fire-arm shots from the pistol of appellant Muhammad Talha were fired and the deceased received injuries. Then appellant Muhammad Shahid Hanif brought the motorcycle on which they went away. All these facts have been supported and corroborated by P.W.4 who gave the same details of the incident, as stated by the appellants. Thus on the facts, the confessions are fully supported and corroborated by P.W.4. The confessions are further supported and corroborated by the fact that only pistol of appellant Talha was used in causing injuries to the deceased, whereas the pistol of appellant Khalil was not used, as the same was jammed and fires were missed. Three empty bullets were secured from the place of incident, as stated by P.W.4 and supported and corroborated by the Investigating Officer. The said empties were sealed at the spot.
The pistol secured from the possession of appellant Talha was also sent to the Ballistic Expert for examination and report, who reported that all the three empties were fired from the pistol of appellant Talha. This is a very strong circumstantial piece of evidence, which supports and corroborates the confessional statements of the appellants. In the confessional statements the appellants have also shown the motive of causing the murder and the motive was sectarian killing.
The proceedings conducted by the Magistrate, in recording the confessions clearly demanstrate that confessions were voluntary and true which are sufficient to convict the appellants in their individual capacity which have further been supported and corroborated by ocular and circumstantial evidence. Therefore, the prosecution has proved this piece of evidence against the appellants.
23. The main objection raised by the learned Advocates for the appellants is that the confessions were recorded after Court time. It is pertinent to point out that the Magistrate started recording the confessions at about 3-30 p.m. And finished them at about 5-30 p.m. It has also come in the evidence through the Magistrate that first he gave the warnings to the appellants separately and then he gave two hours time to them for reflection purpose and then he recorded the confessions of accused one after other. If the objection of the learned Advocate for the appelants is taken into consideration, and if the reflection period started from 3-30 p.m. Then it must had finished at 5-30 p.m. The Magistrate was clear that he started recording the confessions at 3-30 p.m. One after another and finished them at 5:30 p.m. Which clearly shows that the initial proceedings must have started during the Court hours, as two hours time of reflection, must had been finished at 3-30 p.m.
Therefore, initial proceedings of warnings etc must had started before 1-30 p.m. Which was the Court time. Thus the arguments of the learned Advocates for the appellants have no force at all.
24. They have further stated that there was delay of 10 days in recording the confessions, therefore, it has created doubt. The point in hand was considered by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Ismail v. State (1995 SCM R 1615) and it was held that delay in recording judicial confession per se is no ground to discard it unless it is proved or emerges from the circumstances to have been obtained by coercion, threat, pressure etc. It has further been held in the case of Muhammad Yakoob v. State (1992 SCM R 1983) that delay in recording confessions may or may not be fatal. When the accused were in police custody for 11 or 15 days, it was not considered fatal as the Court was satisfied that the retracted confessions were not tutored and were voluntary. In the present case, from the proceedings of the Magistrate, it is clear that the confessions were not obtained under threat or pressure. The Magistrate examined the body of the appellants, he did not find any mark of torture. No complaint was made before him about any torture, threat or cercion by the police or from any quarter. There is no allegation that police or anybody had tutored the appellants to confess the guilt in any particular manner. The appellants are involved in terrorist activities and committed the crime which falls within the definitions of terrorism. It is not expected that accused involved in such type of offence can be tutored, particularly the accused who are indulged in sectarian terrorism, because they have certain fix notions in their mind against the rival sect. The confessions themselves show that the appellants had stated that by committing the murder they had not committed any sin, which further demonstrates that they found it their religious duty to kill the deceased who belonged to a rival sect. Thus we are fully satisfied that the confessions were voluntary made. Hence the arguments are not sound.
25. As regards the recoveries, P.W.4 has stated that three empty bullet shells were secured from the place of the incident, which were sealed there and such mashirnama was prepared by the Investigating Officer. P.W.8 S.H.O. Muhammad Arif, who took the P.W.4 to the place of the incident where he found three empty bullet shells lying which were secured and sealed in presence of P.W.4.
The appellants were arrested on 30-9-2001 at about 1-00 a.m. In the night in presence of private mashir P.W.10 Akram. From the possession of appellant Muhammad Shahid a Kalashnikov and bullets were secured. From the possession of appellant Muhammad Talha and Khalil Ahmed TT Pistols were secured with bullets. All the articles were sealed at the place of recovery. P.W.10 private witness Muhammad Akram fully supported the P.W.9 and categorically stated that he along with his friend P.W. Nazir GuI were returning to the house when at about midnight they were stopped by police to act as mashirs in the case. Then they apprehended the appellants and from the possession of appellant Muhammad Shahid a kalashnikov with bullets were secured and from the possession of remaining two appellants TT pistols and bullets were secured which were sealed. The P.W.13 Muhammad Nadeem S.H.O. Police Station Gul Bahar who received the investigation papers sent the articles to Ballistic Expert for examination and report. The Ballistic Expert's report has been produced as Exh.73 which shows that the crime empties were fired from the pistol involved in F.I.R.
No,84 of 2001 which is in respect of appellant Muhammad Talha. As such, it has been established that the pistol of appellant Muhammad Talha was used in the commission of this crime. Therefore, the prosecution has proved the recoveries to the above extent.
26. As regards the defect in the charge, it is pointed out that the learned trial Judge while framing the charge had not framed the charge for offence punishable under section 13(d), Pakistan Arms Ordinance, 1965. The said defect can be cured under section 535, Cr.P.C. Which reads as under:-- "535. Effect of omission to prepare charge. ---(1) No finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby.
(2) if the Court of appeal or revision thinks that a failure of justice has been occasioned by an omission to frame a charge, it shall order that a charge be framed, and that the trial be recommenced from the point immediately after the framing of the charge."
27. Now it is to be seen whether the appellants have been prejudiced in their defence by such defect. We have gone through the file and found that before the trial started, the point of consolidation of all the cases, including the section 13(d), Pakistan Arms Ordinance cases, was considered. At that time the defence counsel agreed to the amalgamation of all the cases. Thus, they knew that the trial would be in respect of all offences, including the offence punishable under section 13(d), Pakistan Arms Ordinance, 1965. The required evidence of the P.W.9 SIP Muhammad Aamir and mashir P.W.10 Akram was recorded. They clearly stated that the arms and ammunition were secured from the possession of appellants. The witnesses were thoroughly cross-examined by the defence. The statements of the appellants under section 342, Cr.P.C. Were recorded in which specific questions with regard to the said recoveries were put to the appellants but they denied the same. They did not lead any evidence, as such every opportunity was provided to the appellants to meet with such allegation. They heard allegation and knew that such evidence had been brought on record. The witnesses were thoroughly cross-examined by the defence counsel, as such, no prejudice has been caused to the appellants in respect of abovementioned defect. Therefore, the arguments are not sound.
28. After considering the material available on the record we are of IS the considered view that the prosecution has proved the case against the appellants beyond any reasonable doubt.
29. As regards the conviction and sentence, it is pointed out that the incident took place on 30-7- 2001. At that time the amendments, which were made in the Anti-Terrorism Act were not made, as the said amendments were made on 15-8-2001. Therefore, the appellants would be dealt with as per law, prevailing at the time of incident. From the perusal of judgment it is clear that the appellants have been convicted for offence punishable under section 302(a), P.P.C. For convicting the said offence the evidence as required under section 304, P.P.C. Should have been led by the prosecution but no such evidence was led. The learned A.A.-G. Has conceded that in the absence of the required evidence of section 304, P.P.C. The appellants cannot be convicted under section 302(a), P.P.C. We also agree with the learned A.A.-G. From the facts and circumstances of the case, it is clear that an offence punishable under section 302(b), P.P.C. Has been committed. It is further clear from the judgment that the appellants have been convicted under the new provisions of law which were enacted through amendments on 15-8-2001 by Ordinance XXXIX of 2001, therefore, the learned trial Judge was not right in convicting the appellants under section 302(a), P.P.C. And for offence punishable under the Ordinance XXXIX of 2001 but the appellants are required to be convicted and sentenced for offences, which were prevailing on the date of incident. From the facts of the case it has been established that the appellants have committed offence as defined under the then section 6(a) and punishable under section 7(i)(a) of Anti-Terrorism Act, 1997. Under that provision the sentence provided is death only. No lesser sentence has been provided for the said offence. Therefore, the appellants are required to be sentenced under the abovementioned sections.
30. As regards the cases of the appellants in respect of offences punishable under section 13(d), Pakistan Arms Ordinance 1965, the then Item No,5 of Schedule, attached to the Anti-Terrorism Act, 1997 reads as under:-- "Any offence including an offence punishable under Pakistan Arms Ordinance 1965 (W.P. Ordinance No,XX of 1965) committed conjointly with any other offence punishable under this Act."
31. Thus the offence punishable under section 13(d), Pakistan Arms Ordinance, 1965 can be tried by Anti-Terrorism Court, if it is committed conjointly with the offence under the Act. In the present case, the incident took place on 30-7-2001. The appellants were arrested on 30-9-2001. After two months of the incident. From their possession, arms and ammunition were secured. The pistol secured from the possession of appellant Muhammad Talha matched with the empties secured from the place of incident. As such, the pistol of appellant Talha was used for commission of schedule offence, therefore, the offence punishable under section 13(d), Pakistan Arms Ordinance in respect of appellant Talha was committed conjointly with the offence of section 7(i)(a) of Anti- Terrorism Act, therefore, his trial was legal and proper. In order to prove the case the prosecution examined two witnesses viz. P.W.9 and P.W.10 who have fully supported the prosecution case and implicated the appellant Talha, therefore, ha has committed offence punishable under section 13(d), Pakistan Arms Ordinance, 1965. As such, he is liable to be convicted and sentenced for the said offence.
32. As regards the other appellants, the prosecution has failed to connect the arms and ammunition secured from them with the scheduled offence, therefore, the appellants Muhammad Shahid and Khalil Ahmed had not committed the offence punishable under section 13(d), Pakistan Arms Ordinance conjointly with any offence of Anti-Terrorism Act, therefore, the Anti-Terrorism Court had no jurisdiction to try the said appellants. Hence their cases are required to be transferred from the Court of Anti-Terrorism to the ordinary Court having jurisdiction in the matter.
33. Above are the reasons of our short order dated 22-2-2006 by which we have disposed of the appeals in the following manner: "The appellants Muhammad Talha Hussain alias Noman son of Ishrat Hussain, Khalil Ahmed alias Hassan Jan s/o Nawabuddin and Muhammad Shahid Hanif alias Mufti Shahid son of Qazi Muhammad Hanif are convicted for offences punishable under section 302(b), read with section 34, P.P.C. And the then section 7(i)(a) of Anti-Terrorism Act, 1997 for offence as defined under the then section 6(a) of Anti-Terrorism Act, 1997 and sentenced to death. They shall be hanged by neck till their death. They are directed to pay Rs,100,000 (Rupees one lac, each to the legal heirs of the deceased as provided under section 544-A, Cr.P.C.
' Appellant Muhammad Talha Hussain alias Noman son of Ishrat Hussain is further convicted for offence punishable under section 13(d), Pakistan Arms Ordinance, 1965 and sentenced to suffer R.I.
For seven (7) years and fine of Rs,5000 or in default thereof to suffer R.I. For one (1) year with benefit of section 382-B, Cr.P.C.
' The conviction and sentence awarded to the appellants Khalil Ahmed alias Hassan Jan son of Nawabuddin and Muhammad Shahid Hanif alias Mufti Shahid son of Qazi Muhammad Hanif for offence punishable under section 13(d), Pakistan Arms Ordinance, 1965, are set aside as the said offence in their respect was not committed conjointly with the scheduled offence of Anti-Terrorism Act, 1997. The trial Court is directed to transfer the cases of said offence of the above named appellants to the ordinary Court having jurisdiction in the matter by exercising powers under section 23 of the Anti-Terrorism Act, 1997.
' With the above modification in the conviction and sentence, the Appeals Nos.39, 41 of 2002 are dismissed, whereas Appeals Nos.40 and 42 of 2002 are allowed in the above terms. The Confirmation Case No,2 of 2002 and State Appeal No,28 of 2002 are allowed."