1. ' MRS. QAISER IQBAL, J.---This Special Anti-Terrorism Appeal No,38 of 2003 has been directed against the judgment dated 30-6-2003 passed by Anti-Terrorism Court No,II, Karachi Division, Karachi preferred by Asif Zaheer @ Asadullah Shuja @ Abid and Rizwan Ahmed @ Bashir against the conviction and sentence awarded to them under sections 3, 4 & 5 of the Explosive Substances Act, 1908,section 302(b), P.P. C , read with sections 120-B, 109 read with sections 34,P.P.C., 337-F(i), 337-L(i), P.P.C , sections 7(a), 7(c) & 7(d) of the Anti-Terrorism Act, 1997, which are enumerated herein below:-
(a) For the offence punishable under section 3 of the Explosive Substances Act, 1908, each of the accused Asif Zaheer, Rizwan Ahmad and absconding co-accused Muhammad Sohail, are awarded death sentence, they are ordered to be hanged by neck till their death;
(b) For the offence punishable under section 4 of the Explosive Substances Act, 1908, read with section 427 P.P.C., each of the accused Asif Zaheer, Rizwan Ahmed and absconding co-accused Muhammad Sohail, are awarded rigorous imprisonment for life; ' Since the accused Asif Zaheer, Rizwan Ahmad and the absconding co-accused Muhammad Sohail have been convicted and sentenced under the provisions of the Explosive .Substances Act, 1908, their whole oroperties shall stand forfeited to went, as provided under section 5-A of the Explosive Substances Act, 1908;
(c) For the offence punishable under section 302(b) P.P.C., read with 120-B, 109 read with 34 P.P.C., for committing Qatl-e-Amd of 11 French Engineers and Technicians namely Delecar Picaitier, J.M.
2. Cheyasutt., Claude Drouet, D-Dupont, Leclerc J.Y. , Bled Cedrick, Pascal De-Counte, J. Pierre Delavie, Laurnet Jaques, Groux Pascal and Donnard Jhifrry and two Pakistani nationals namely Hashim Abbas and Female beggar namely Mewa Begum each of the accused Asif Zaheer, Rizwan Ahmad and absconding co-accused Muhammad Sohail, are awarded death sentence, as Ta'zir, on each count and they are ordered to be hanged by neck till they are dead;
(d) For the offence punishable under section 324 P.P.C., read with 120-B, 109 read with 34 P.P.C., for causing murderous assault on the lives of 10 French Engineers and Technicians namely Chistophe, Bongeat, J-Eustash, Logel, Zenta France, Leveziel, Laupenie, Labet, Etasse Claude and Sanson Gills, and 13 Pakistani Nationals, namely Shafquat Saleem, Lalzada, Muhammad Nazeer, Muhammad Nadeem, Lal Shirin, Ali Haider, Abdul Aziz Khan, Sikandar, Iqbal Shah, Wajib Ali, Abdul Sattar, Sher Ellahi and Kamran Fazal (the complainant), each of the accused Asif Zaheer, Rizwan Ahmad and the absconding co-accused Muhammad Sohail are awarded R.I. For 10 (ten) years each or in defult to undergo R.I. For a further period of five years each;
(e) For the offence punishable under section 337-F(i), for causing JurhGhayr, Jaifah-Damiyah to injured Shafqat Saleem, each of accused Asif Zaheer, Rizwan Ahmed and absconding co-accused Muhammad Sohail are awarded imprisonment of one year each as Tazir;
(f) For the offence punishable under section 337-L(1) P. P.0 . , for causing hurts to injured, i,e,10 French Engineers and Technicians and 12 Pakistani Nationals named above, each of the accused Asif Zaheer, Rizwan Ahmed and absconding co-accused Muhammad Sohail awarded R.I. For seven years each, on each count;
(g) For offence punishable under section 7(a) Anti-Terorism Act, 1997, each of the accused Asif Zaheer. Rizwan Ahmed and absconding co-accused Muhammad Sohail are awarded death sentence, they are directed to be hanged by neck, till they are dead;
(h) For the offence punishable under section 7(c) Anti-Terrorism Act, 1997 each of the accused Asif Zaheer, Rizwan Ahmed and absconding co-accused Muhammad Sohail are awarded imprisonment for life and to pay fine of Rs.3,00,000 (three lac) each, or in default to undergo R.I. For five years more;
(i) For the offence punishable under section 7(d) Anti-Terrorism Act, 1997, each of the accused Asif Zaheer, Rizwan Ahmed and absconding co-accused Muhammad Sohail are awarded R.I.For fourteen years each and to pay fine of Rs.1,00,000 (one lac) each, or in default to undergo R.I. For a further period of one year more; ' The appellants along with absconding co-accused Muhammad Sohail were directed to be hanged till death and to pay compensation of Rs.300,000 under section 544-A, Cr. P .0 . , the compensation if realized was directed to be distributed amongst the legal heirs of the deceased and Rs.300,000 to be paid to each injured. All the sentences were directed to run concurrently. The appellants were convicted in the commission of the crime along with co-accused Muhammad Sohail @ Akram who has been arrested by the police after the conviction was awarded, Adnan Qamar @ Noni @ Osama, Abdul Samad, Basit and Mustafa.
3. ' Succinctly, the facts disclosed in the First Information Report are that on 8-5-2002 between 7:40 and 7:50 hours a severe explosion occurred near footpath of Sheraton Hotel, Al-Bostan restaurant, Club Road, Karachi. Its report was lodged by complainant Kamal Fazal, employee of Pakistan Navy stating therein that a Bus bearing Registration No,4203 of Pakistan Navy was parked near the footpath of Sheraton Hotel for the purpose of picking up the French Engineers and Technicians as they came out from the Sheraton Hotel, boarded in the Navy Bus and all of a sudden a red colour Toyota Car came dashed with the bus, due to collision of the car with the bus, severe, explosion caused death of 13 persons and 23 were injured. Soon after the explosion and the damage caused to the surrounding building the message was flashed on police control as a consequence thereof number of police officers arrived at the place of incident including the team of Investigation from Civil Lines headed by DSP Umar Rashid recorded the statement of the complainant under section 154, Cr.P.C. And the F.I.R. No, 92 of 2002 was registered.
4. ' During investigation, it transpired, that the appellants along with absconding co-accused and arrested accused Muhammad Sohail @ Akram along with suicide bomber namely Rashid since death in furtherance of the common intention hatched a criminal conspiracy, co-accused Sohail (Khalid Mehmood) acquired a House No, E-217/C Phase-II, Defence view Karachi no rent in the month of April, 2002 on rental basis, blown up the naval bus carrying French Engineers and Technicians who were assisting the Pakistan navy in preparation of "Augusta Submarine", at Naval Dockyard and were residing at Avari and Sheraton Hotels, respectively. It was revealed during investigation that in order to achieve, their object co-accused Muhammad Sohail purchased a Toyota Corolla Car bearing registration No,J-6560 under the fake name of Khalid Mehmood from Muhammad Arif which was used in the commission of the crime. On the fateful day the appellants along with co-accused and suicide bomber namely Rashid fitted the substance in Toyota Corolla Car adjust its wires to detonate the exclusive substance in front of the house in Defence View Karachi and committed the offence.
5. ' As a consequence whereof 13 persons were dead including 11 French Engineers and Technicians and 23 persons were injured, their names are as under:-- {{TABLE}} ' Names of deceased persons:--
(1) De Lecar Picaitier (8) Laurnl Jacues
(2) J.M. Cheyasutt (9) Jem Piere Dilor
(3) Clout Drouet (10) Pascal Groux
(4) Pascal Coute (11) Donnart Thirlly
(5) Due Pont (12) Hashim Abbas
(6) Lee Lerjy (13) Mewa Begum
(7) Pleao Seioril Names of injured persons:--
(1) Etasse Claude (2) Sanson Gills
(3) Polidor christopje (4) Eustache Gilbert
(5) Bongert Michael (6) Leveziel Laurent
(7) Labet Fedxeric (8) Laupenie Jean Raymond
(9) Zante Jean Paul (10) Eustache Jerome
(11) Legal Jean Marc (12) Madeclorige
(13) Muhammad Nazeer (14) Abdul Aziz
(15) All Haider Shah (16) Luba' Shah
(17) Sabir Hussain (18) Mt. Champs
(19) Sher Ellahi (20) Abdul Sattar
(21) Wajib Ali (22) Muhammad Nadeem
(23) Laal Zada {{TABLE}} ' The Inspector Muhammad Tariq arrested appellant Asif Zaheer on 8-1-2003, who was earlier arrested on 28-12-2002 by police of TPX (ATW) whereas appellant Rizwan was arrested on 15-1- 2003 under section 54, Cr.P.C. By Inspector Muhammad Ajaz of ATW. Upon completion of the investigation the appellants along with co-accused Sohail, charged 12 points were framed and read over to them to which they pleaded not guilty.
6. ' The prosecution in support of its case examined total 41 prosecution witnesses (P.Ws.) consisting of doctors, injured, mashirs (attesting witnesses), Police Officials, Judicial Magistrate, one witness of last seen evidence and two Investigating Officers. The learned S.P.P. For the State closed the prosecution side. The appellants recorded their statements under section 342, Cr.P.C. And the defence also closed the side.
7. ' That on the basis of the assessm ent of the evidence available, on record, the learned trial Court came to the conclusion that the appellants along with co-accused have committed the charged offence. They were convicted as stated above.
8. ' We have heard the learned counsel for the parties and perused the record.
9. ' The learned counsel for the appellants have contended that the prosecution has produced 41 witnesses in Court amongst them ten were doctors, who had examined the deceased and injured, 9 were injured including the complainant and driver of the bus, others were the mashirs (attesting witnesses) or formal witnesses including the witnesses, who produced the record of the car used in the blast and the tenancy record of House No,E-217/C, Defence View, said to have been occupied by the accused persons prior to the incident and the Judicial Magistrate who conducted identification parades of the appellants and recorded the confessional statement of appellant Asif Zaheer. However, the prosecution case rests upon the evidence of P.W. Zafar Iqbal (P.W.39) learned Judicial Magistrate (P.W.38) and two investigating Officers namely Inspector Muhammad Ejaz and Inspector Muhammad Tarique (P.Ws.40 and 41).
10. ' The learned counsel for the appellants have raised the following points:--
(i) That this a case of no evidence.
11. (ii)That the incident was occurred on 8-5-2002 and till 7-1-2003 no information was available about the suicide bomber or the involvement of appellants in the case.
(iii) That no evidence has come on record that the accused have any connection with the suicide bomber.
(iv) That no evidence has come on record that the appellants were owner or had the possession of said vehicle.
(v) That even on the point of colour of the said car used in blast P. Ws. Have contradicted each other.
(vi) That whole case rests upon the evidence of padded PW-39 Zafar Iqbal, who said to have seen the appellants in his area but not at the place of blast and even no offence was made out on the basis of his evidence. Even otherwise, he was padded and created witness and his evidence should have been rejected outrightly.
(vii) That it is, an admitted fact that as per evidence of the above P.W.39 Zafar Iqbal the appellants were not doing any criminal or unsnap act, which could have preserved in his memory so he could have identified the appellants. Even otherwise, identification parades were held on 8th and 23rd January, 2003 after eight months of the incident, while no features of the accused were said to have disclosed by the P.W.39 Zafar Iqbal, hence lost, its significance.
12. (viii)That the appellant Asif Zaheer was admittedly in custody since 14-12-2002 while his confession was recorded on 8-1-2003, and the same had not been corroborated by any other piece of evidence having no evidentiary value.
(ix) Though there were major illegalities in conducting the identification parades and recording the confessional statement of appellant Asif Zaheer, thus, there was no iota of evidence to connect the appellants in the above case.
(x) That the confession was never been voluntary, on the sole basis of such evidence the appellants cannot be convicted.
(xi) That the prosecution has failed to connect the appellants with the suicide bomber to the recovery of explosive substance from the appellant, which was said to have been used in the blast.
(xii) That it has not been proved by the independent witnesses that the appellants were residing in the House bearing No,E-217/C, Defence View, hence convictions and sentences are liable to be set aside. The learned counsel for the appellants have relied upon the following judgments:--
(i) 2003 PCr.LJ 1229 (Ahmed Saeed alias Saeed Bahram and others v. The State)
(ii) 1995 SCM R 351 (Muhammad Yousuf v. State).
(iii) 2007 SCM R 1404 (Malak Jehangir Khan and others v. Sardar Ali and 2 others)
13. ' Conversely, Mr. Saifullah, the learned Assistant Advocate General, argued that the evidence produced by the prosecution establishes the involvement of the appellants. The voluntary confession of appellant Asif Zaheer brought on record proves the guilt of the appellants, and relied upon the following judgments in support of his arguments:--
(1) PLD 2006 SC 219 (Muhammad Amin v. The State).
(2) PLD 2007 SC 607 (Ayaz Baig v. The State).
(3) PLD 1964 SC 813 (The State v. Minhun alias Gul Hassan).
(4) PLD 2006 SC 30 (Manjeet Singh v. The State)
(5) AIR 1957 SC 216 (Balbir Singh v. State of Punjab).
14. ' We have given due consideration to the arguments advanced and gone through the evidence with the assistance of the learned advocates for the appellants and found that the entire case hinges upon the evidence of P. Ws. 39, 40 and 41 respectively.
15. ' The prosecution case rests upon the following pieces of evidence:--
(i) Last seen evidence (through P.W. Zafar Iqbai a hawker/bread seller).
(ii) Confession of appellant Asif Zaheer.
16. ' That the entire case rests upon the evidence of P.W.39 Zafar Iqbal, who was said to have a chance witness, a bread seller and as per identification test, the appellants were connected in the commission of crime ultimately convicted.
17. It is essential to scrutinize the evidence of P.W. Zafar Iqbal. The salient features of deposition of P.W.
18. Zafar Iqbal are herein below:-- ' He was living in House No,291 C/o Manzoor Railway Wala, Katchi Abadi, near Kala Pul, Karachi for the last 5/6 years and used to sell bread and rusks on bicycle from place to place in the Defence View Area. As usual he left his house at about 4:30 a.m. On 8-1-2003 and reached at Defence View, Khayaban-e-Tauheed near a Chowrangi known as "2000 School", and met with two police officials present there around 5-15 A.M., who made queries regarding his residence and business in the area and asked him about the residents of Bungalow No,E-217/C. He told them that eight months back a family was residing in that bungalow for a month, and he used to supply bread to the said family and eight months back he had seen one gray colour Corolla car in front of that bungalow and also seen four persons present nearby the car while one of them was adjusting wires of the said car and later on he saw the said ,car moving towards Madina Chowk, the said persons were sitting in the car while the person who was adjusting the wires chasing the car on motorcycle. The police officials took his NIC and served upon a notice about 6-00 a.m. On the same morning and also verbally directed him to be present at the main gate of City Courts at 12-00 Noon. He went to city Courts and appeared before a Magistrate at 3-45 p.m. And identified the appellant Asif Zaheer as a person who was adjusting the wires of the car as mentioned above and on 22-1-2003 the P.W.41 came, at his house and directed him to appear on the next day for identification of one of the accused, he identified the appellant Rizwan Ahmed, who was driving the "gray" Corolla car eight months back.
19. ' After going through his deposition it seems that he being a chance witness, left his house at 4-30 a.m. On 8-1-2003 and met the police officials who took the copy of his CNIC and at the same time served him a notice. As per his CNIC he was the resident of Punjab, however, the said CNIC was not verified. No evidence has been provided that he had given his address to police on 8-1-2003.
20. Selling rusks and breads at 4-30 or 5-00 a.m. In the month of January is unbelievable. Moreover, when no attractive or significant incident occurred there was no occasion for this witness to preserve such an ordinary scene in his mind, even he did not disclose the feature of the appellants in his statement. It is admitted, that during identification parade the dummies were of different complexion and stature. Admittedly the identification parade was conducted after 3-45 p.m., in winter season in the month of Ramadan while Court timings were upto 1:30 p.m. Even, his statement simply shows that he saw a person adjusting the wires of a car and later-on riding on motorcycle, while the other was driving the said car some 8 kilometer away from the place of blast and no evidence produced by the prosecution to show that the bomb blast was caused by the appellants.
21. No registration number of the said vehicle was mentioned by the above witness. Even, he had not stated the time when he said to have been seen the appellants eight months back. But during cross-examination he admitted that he had seen the appellants and others in front of the above mentioned bungalow on 8-5-2002 at about 6-00 a.m.
22. ' In absence of concrete evidence it cannot be held that the appellants were responsible for causing the bomb blast. The cases of heinous crime particularly involving capital punishment cannot be decided on mere presumption or surmises while the manner in which the prosecution has made P.W.39 Zafar Iqbal as last seen witness, appears to have been created, even his evidence has not been supported by the independent evidence, hence cannot be relied and ought to have been rejected by the trial Court.
23. ' The learned Judicial Magistrate Erum Jahangir P.W. 38 recorded the confession of the appellant Asif Zaheer on 8-1-2003, which is reproduced as under:-- "My name is Asif Zaheer. I am matriculate and residing at M-83, Block-2 P.E.C.H.S. Earlier I was connected with "Harkatul Ansar" and after dissolving the organization I had no contact. Sohail, Abdul Samad, Shabbir and Usama are my friends. My friend Sohail called me on phone on the night of 7-5-2002 and asked me to go at Super Market, when I reached there and found Sohail, Shabbir, Usama, Abdul Sama and one unknown boy they brought a car. I brought explosive, which had to be used in the suicide blast at Sheraton Hotel from there we all came to house of Sohail, spent night and planned. After offering Fajr prayer I, Sohail, Shabbir, Abdul Samad and unknown boy later on his name came to know as Rashid boarded in a car Corolla-74, Silver Colour, one lady of neighbour saw us and asked Sohail where they are going, he replied they are going to Hyderabad. Thereafter, we all reached at Chowrangi, there I, Sohail and Abdul Samad were separated while Shabbir and Rashid had gone to Sheraton Hotel in the car where they had to collide the car with the bus of the foreigners. Later on this vehicle was collided by Rashid with the bus of French Engineers and also become martyrdom and explosive recovered from us was used in the said proceeding and we had to do more blasts. This is my statement."
24. ' The above confession was recorded on 8-1-2003, in which the time for reflection was allowed from 1550 hours to 1615 hours and the accused was shown to have been arrested on 28-12-2002 by ATW.
25. In the column of questions, since when he had been in custody the appellant had replied "I do not know". The lady Magistrate in cross-examination had replied that the Court timings in the month of Ramadan was from 8-00 a.m. To 3-00 p.m. However, the said confession was recorded after the identification test, while as per witness Zafar Iqbal he appeared before the Magistrate for identification parade at 3-34 p.m., however, the Judicial Magistrate had deposed in cross examination that she signed the Memo of Identification Parade around 3-47 p.m. Or 3-48 p.m. And had admitted that it was after Court timings. She had further admitted that as per police record the appellant Asif was arrested on 28-12-2002 and it was not in her knowledge that he was in custody since 14-12-2002. She also admitted that she had not mentioned in the confessional statement that the warnings were repeated to accused before recording the confessional statement and she had not given him the second chance for reflection. Neither she had given the reasons of her satisfaction for believing that the confession was true and voluntary. She stated that she had given one hour for reflection but as per memo of confessional statement it was 25 minutes. She admitted that she had kept the confessional statement in her custody and nobody had applied for certified copy and neither it was sent to Nazir nor to Session Judge. Finally, she admitted that the confessional statement of the appellant Asif Zaheer was recorded after 23/24 days of his arrest.
26. ' Though she kept the confessional statement with her but the Investigating Officer had claimed that he had obtained the certified copy of the confessional statement by saying in his statement that he had applied for certified copies on 11-1-2003 and memo of identification test on 13-1-2003 but the same was neither supported by the evidence of the learned Judicial Magistrate nor through the record, but having the copy of confessional statement with him clearly shows that the same was not a voluntary confession.
27. ' The retracted confessional statement of the appellant Asif Zaheer appears to be doubtful and cannot be relied upon as Judicial Magistrate herself recorded the same in mechanical manner or under the influence of police crew no proper time for reflection was given to the appellant. Further, the day of arrest was wrongly mentioned though the appellant had replied that "he did not remember since when he was in custody", the learned Magistrate should have refused to record the confession as she should not have expected a person to remember the incident of eight months back. Admittedly, it was the month of the Ramazan and winter season, Court timings were upto 1-30 p.m. And not till 3-00 p.m. As claimed by the learned Magistrate. Even otherwise, P.W.39 Zafar Iqbal has stated that at 3-45 p.m.. He appeared before the Magistrate for identification parade and after identification test the confessional statement was said to have been recorded, which clearly shows that it was not recorded at the time mentioned by the learned Judicial Magistrate. Even otherwise, it was after the Court timings. In peculiar circumstances the confessional statement cannot be sustained, suffice to hold that in view of the above discussion the confessional statement also has no significance even the identification parade appears to be defective and cannot be relied upon.
28. ' No doubt as per judgments relied upon by the learned A.A.-G., it was held that even on the sole basis of confession the accused can be convicted, it should be voluntary. However, in this case as discussed above the details were not given in the confessional statement regarding the events of the incident and the manner in which the confessional statement of the appellant Asif Zaheer was recorded, it cannot be held that it was voluntary as the same hit by the rules, circulars and the guidelines of the honourable Supreme Court of Pakistan. Therefore, with utter respect the facts of the instant case are distinguishable from the above judgments relied upon by the learned A.A.-G.
29. ' That in the case of Ahmed Saeed Berham reported in SBLR 2003 Sindh 648 held as under:-- "(A) Criminal Procedure Code, 1898---Section 164---Retracted confession require corroboration through some other reliable and cogent evidence as a matter of abundant caution----As far as the Confessional statements are concerned, though they appear to have been made in accordance with law, however, as these have been retracted, as a matter of abundant caution and prudence they are not to be acted upon unless corroborated through some other reliable and cogent evidence."
30. In the case of Muhammad Yousuf versus the State reported in 1995 SCM R 351, it was held as under:--- "Section 302--- Retracted confession---Courts generally refrain from basing conviction solely on retracted confession and have always sought for some reliable corroborative evidence regarding material particulars in the confessional statement."
31. ' While in the case of Malik Jahangir versus Sardar Ali reported in 2007 SCM R 1404, it was held as under:- "In this case the only piece of evidence against the respondent is retracted judicial confession which even according to the learned High Court was not corroborated from any other independent piece of evidence and was disbelieved."
32. ' That the car was used in the blast was claimed to be "Red Colour" while the P.W.39 Zafar Iqbal and appellant Asif Zaheer in his confessional statement claimed its colour as "Gray". However, registration number was neither mentioned by the prosecution witness or by the appellant Asif Zaheer. Hence the prosecution also failed to prove even the colour of the car.
33. Even otherwise, if we accept the statement of P.W. Zafar Iqbal and the identification parade then his statement simply shows that he saw the appellants eight months back in the car or on motorcycle, but doing no crime. No evidence has been produced by the prosecution to show that the bomb blast was caused by the appellants. The learned A.A.-G. Was asked to point out any direct or indirect evidence, he could not point out such evidence, as nobody had seen the appellants at the place of blast or plantings explosive in the said car, in the absence of such evidence it cannot be held that the appellants were in connivance and/or responsible for causing bomb blast.
34. The whole case is based upon the evidence of a chance witness appears to be created and padded witness. The confessional statement of the appellant Asif Zaheer is not voluntary and recorded after 23/24 days and even this fact was concealed by the police and the learned Judicial Magistrate as well, therefore, the confessional statement is defective and cannot be relied upon.
35. After considering the material available on record, we are of the considered view that the prosecution has failed to prove the case against the appellants, beyond any reasonable doubt, therefore, the conviction and sentence awarded to the appellants under the impugned judgment are hereby set aside. Appellants are acquitted from the charges levelled against them and are set at liberty. They shall be released forthwith if not required in any other case. Appeal is allowed and confirmation case is dismissed.