JUDGMENT IMAM BUX BALOCH, J.---By this judgment we propose to dispose of S.1. Anti-Terrorism Appeal No.43 of 2002 filed by appellants Muhammad Shahid Hanif, Muhammad Talha. Hussain and Haider Ali against the judgment dated 15-4-2002 of Anti-Terrorism Court No.III at Karachi, Criminal Reference No.4 of 2002 for confirmation of death sentence of appellant Muhammad Talha, S.1. Anti- Terrorism Appeal No.44 of 2002 filed by appellant Haider Ali against Judgment dated 15-4-2002, whereby, he has been awarded sentence to suffer 7 years' R.I and a fine of Rs.50,000 and Special Anti-Terrorism Appeal No.26 of 2002 filed by the State for enhancement of the sentence of accused Muhammad Shahid Hanif and Haider Ali. Through Special Cr. ATA No.43 of 2002, the appellants Muhammad Shahid Hanif, Muhammad Talha Hussain and Haider Ali have been convicted as under:--
(i) Convict the accused Muhammad Talha Hussain alias Noman son of Ishrat Hussain under section 302(a)/34, P.P.C. Read with sections 6(1)(c), 6(2)(a) and section 7(a) of A.T.A 1997 and sentenced him to death sentence. He shall be hanged by neck till his 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.175,000 is also imposed on him being Diyat which should be paid to the legal heirs of the deceased.
(ii) Convict the accused Muhammad Shahid Hanif son of Muhammad Hanif, and accused Haider Ali son of Sabir Hussain under section 302(a)/34, P.P.C. Read with sections 6(1)(c), 6(2)(a) and section 7(a) of A.T.A 1997 and sentenced them to suffer life imprisonment. An amount of Rs.175,000 is also imposed on each of them being Diyat, which should be paid to the legal heirs of the deceased.
(i.e) Convict accused Haider Ali son of Sabir Hussain under section 13-D of Arms Ordinance 1965 and sentence him to suffer 7 years' R.I and a fine of Rs.50,000. In case of default in payment of fine, he shall suffer further R.I for one year. He shall be entitled to the benefit of section 382-B, Cr . P.0 .
The remaining accused have also been convicted under section 13-D of Arms Ordinance, 1965 in Special Case No.205 of 2001 as such double punishment could not be awarded to them for a single offence as such there is no need to convict them in the present case under section 13-D of Arms Ordinance 1965.
2. The prosecution case in brief is that Dr. Ishrat Hussain was brother of the complainant, who was running his private clinic in the name of De Silva Clinic at De Silva Town, North Nazimabad, Karachi.
On 8-7-2001, Dr. Ishrat Hussain (brother of the complainant) had proceeded his clinic as usual in his Car bearing Registration No.C-9010 and when he reached near House No. B-52, Block-P, North Nazimabad, he was intercepted by 3 unknown persons, who were riding on motorcycle, killed him by inflicting firearm injuries. On 8-7-2001 the complainant received information on telephone that his brother Dr. Ishrat Hussain has been killed by some unknown persons by inflicting firearm injuries. As such he reached at the spot where he was informed that his brother has been removed to Abbasi Shaheed Hospital. He immediately went to Abbasi Shaheed Hospital where he found that his brother was dead. The accused were arrested on 29-9- 2001.
3. During trial, prosecution has examined Ejaz Rasheed as P.W.1 at Exh. No.20, he produced Mashirnama of place of Wardat and Recovery at Exh.21, Rough Sketch of place of Wardat as Exh.22, Riaz Ahmed as P.W.2 at Exh.23. He produced Mashirnama of Inspection of Dead Body at Ex.24, Inquest Report at Exh.25, Complainant Yousaf Hussain as P.W.3 at Exh.27. He produced statement under section 164, Cr.P.C. At Exh.28, Dr. Syed Sajid Ali as P.W.4 at Exh.29. He produced Post Mortem Report of deceased Dr. Ishrat Hussain at Exh.30, Police Letter at Exh.31, Zulfiqar Ali P.W.5 at Exh.32. He has produced F.I.R. In Crime No.105 of 2001 of Police Station Shahrah-e-Noor Jehan at Exh.33, Javaid Akhter, Judicial Magistrate as P.W.6 at Exh.34. He produced Letter along with photocopy of NIC of Saeed Ahmed Khan at Exh.35, two memos of Identification Parade at Exhs.36 and 37, Saeed Ahmed Khan as P.W.7 at Exh.38, Kashif Rizvi as P.W.8 at Exh.39, Inspector Muhammad Aamir as P.W.9 at Exh.40. He produced Mashirnama of Arrest and Recovery at Exh.41, F.I.R. In Crime No.86 of 2001 of Police Station ATW/CID, Karachi at Exh.42, photocopy of F-I R. No.85 of .2001 of P.S ATW/CID at Exh.43, photocopy of F.I.R. In Crime No.83 of 2001 of P.S ATW/CID at Exh.44, photocopy of Entry at Exh.45, Inspector Saeed Rind P.W.10 at Exh.46. He produced Blastic Expert Report at Exh.47, Judicial Magistrate S.M. Naqi as P.W.11 at Exh.48. He produced attested photocopy of the Police Letter at Exh.49, Judicial Confession of Haider Ali at Exh.50, photocopy of Judicial Confession of Muhammad Shahid Hanif at Exh.51, photocopy of Judicial Confession of Muhammad Talha at Exh.52, Remand Letter and order of accused Hadier passed by the Judicial Magistrate-V, Karachi West at Exh.53, photocopy of Remand and Order of accused Mufti Muhammad Shahid Hanif at Exh.54, photocopy of Police Letter and Order passed by Judicial Magistrate for remand of accused Muhammad Talha at Exh.55, photocopy of Letter of Judicial Magistrate remanding accused Haider Ali to the jail custody at Exh.56, Inspector Ejazuddin as P.W.12 at Exh.57. He produced Mashirnama of Arrest of accused at Exh.58, Mashirnama of Pointation of place of Wardat by accused at Exh.59, Chemical Report at Exh.60, another Blastic Report at Exh.61, Carbon copy of Ramachandra of Police Station ATW CID, Karachi at Exh.62, copy of Roznamcha Entry of Police Station Shahrah-e-Noor Jehan at Exh.63. After completing the prosecution evidence, its was closed through statement at Exh.64.
4. Statements of appellants were recorded under section 342, Cr.P.C. Appellant Haider Ali examined Rehan Wasi as D.W.1 at Exh.68, Adnan as D.W-2 at Exh.69, Defence closed its side vide statement dated 4-4-2002 at Exh.70. After hearing the parties the impugned judgment was passed.
5. We have heard Mr. Ilyas Khan, learned counsel for the appellants and Mr. Abdul Rehman's Kolachi, learned A.P.-G and have perused the available record.
6. Mr. Muhammad Ilyas Khan, learned counsel for the appellants mainly contended that the prosecution case is doubtful as there is no eye-witness of the incident. The alleged two eye- witnesses P. Ws. Saeed Ahmed Khan and Kashif Rizvi are chance witnesses and set-up by the police. None from the locality was cited as witness. Identification of the appellant through P.Ws.
Saeed Ahmed Khan and Kashif Rizvi loses its value as during Identification Parade no role was assigned by the witnesses against the appellants. He further argued that confessional statements of the appellants are not voluntary and not recorded under the provisions of sections 164 and 364, Cr.P.C. And no independent corroboration is sought by the prosecution to base conviction of the appellants on the retracted judicial confession. The confessional statements have been recorded in other crimes and photocopies have been produced which is a secondary evidence and could not be relied upon in like a case where capital punishment has been awarded against the appellants. Learned counsel further argued that according to the prosecution P.Ws. Saeed Ahmed Khan and Kashif Rizvi were present at the place of Wardat and police has also reached at the place of incident within 15/20 minutes of the occurrence but their statements were not recorded at the spot instead of their statements were recorded at 11-30 p.m. Learned counsel further argued that so many people gathered at the place of Wardat but none could made witness out of them. The names of P.Ws. Saeed Ahmed Khan and Kashif Rizvi, who posed themselves as eye-witnesses, their names have not been mentioned in the F.I.R. By the complainant. He further argued that the police has not informed the complainant about the presence of P.Ws. Saeed Ahmed Khan and Kashif Rizvi.
Learned counsel further argued that the Rough Sketch of place of Wardat prepared by the police is silent about the presence of witnesses at the time of incident and there is a bakery near the place of Wardat by name and style of Shakeel Bakers but the Investigating Officer has not shown Shakeel Bakers in the Rough Sketch. Learned counsel further argued that according to the prosecution case, one person, who was sitting on the motorcycle was empty-handed but during investigation police foisted a Kalashinkov upon appellant Muhammad Shahid Hanif. The prosecution has failed to establish the motive against the appellants and once the motive is set up by the prosecution in case of failure thereof' adverse inference can be drawn and prosecution has to suffer. In the last learned counsel argued that the prosecution has miserably failed to establish its case beyond reasonable shadow of doubt against the appellants and the defence has succeeded to create doubt in the prosecution case, even a slighted doubt is extended in favour of the appellants/accused. Learned counsel has relied upon the following case-laws:-
(i) Muhammad Bashir alias Pervaiz and another v. The State (2005 PCr.LJ 1135)
(ii) Syed Azeem Shah v. The State (PLD 1987 Quetta 96).
(i.e) Khalid Javed v. The State (2003 SCMR 1419)
(iv) Mehboob Ahmed v. The State (1995 SCMR 127)
(v) Lal Pasand v. The State (1971 SCMR 569)
(vi) Khadim Hussain v. The State (1985 SCMR 721)
7. Conversely, Mr. Abdul Rehman's Kolachi, learned Assistant Prosecutor-General Sindh argued that Saeed Ahmed Khan and Kashif Rizvi are natural eye-witnesses of the incident. They could not be termed as chance witnesses as they were present at the time of incident. He further argued that the witnesses have identified the appellant in an Identification Parade held before the Magistrate.
He further argued that during investigation, the appellants have voluntarily confessed their guilt and their judicial confessional statements were recorded after observing all the legal formalities.
The weapons have been recovered from the possession of the appellants. He further argued that confessional statements of the appellants have been corroborated by independent evidence produced in shape of recovery of weapons and identification parade. Learned Prosecutor further argued that the sentence awarded to the appellants Mufti Muhammad Shahid and Haider Ali may be enhanced and penalty of death sentence may be awarded to them. Learned Additional Prosecutor General has relied upon Muhammad Irshad v. The State (1992 PCr.LJ . 756) and Muhammad Gul and others v. The State (1991 SCMR 942).
8. With the assistance of the learned counsel for the parties, we have scanned the entire evidence.
P.W.1. Ejaz Rasheed is Mashir of place of Wardat and recovery of empty cartridge and magazine and two bullets. He stated in his evidence that on firearm shots, he came out from his house and found that the incident took place 5/7 houses ahead from his house and the people were collected around a Blue Datsun Car No.120-Y and found that its driver was lying in the said car and blood was collecting on the seat of the car. After 15 minutes police reached at the place of incident. Other people were also available. The police removed the dead body of the victim. At about 10-30 p.m.
He was called by police where Inspector Ejaz Inspected the place of incident as well as the Car. The police also secured two empty cartridges near the Car and one empty cartridge was also secured from the left side of the Car. A magazine lying near the Car with two alive bullets was also secured by the police. Such memo was prepared and his signatures were obtained. In cross-examination he stated that his statement was also recorded at Police Station on the same night at 11-00 p.m. He has returned to his home at 1-00 a.m in the same night. He admitted that no identification marks were put on magazine or alive cartridges by the police at the time of these recoveries.
9. P.W.2 Riaz Ahmed, who is brother-in-law of deceased Dr. Ishrat Hussain. He has produced Mashirnama of Inspection of Dead Body. He stated that in his presence Investigating Officer examined the Dead Body. P.W.3 Yousaf Hussain is brother of deceased Dr. Ishrat Hussain. His statement under section 154, Cr.P.C. Was recorded at Abbasi Shaheed Hospital. He stated that he received telephone message that his brother Dr. Ishrat Hussain has been killed and dead body is lying in Abbasi Shaheed Hospital. On such information he firstly reached at the place of incident and then went to Abbasi Shaheed Hospital, where his statement was recorded. In cross- examination he stated that he belonged to Sunni Sect of Islam and his brother was also of Sunni Sect. He admitted that he reached at place of Wardat. He further stated that the police party was present at the place of Wardat.
10. P.W.4 Dr. Syed Sajid Ali, who has conducted postmortem of dead body of Dr. Ishrat Hussain, who received following injuries:--
(i) Fire-arm wound entry 0.5 cm in diameter margins are inverted. No blackening and singering are seen. On lateral aspect of right side of chest, with corresponding wound of exit 0.75 cm in diameter margins are averted from mid chest.
(ii) Fire-arm wound of Entry 0.5 cm. In diameter margins are inverted on lateral aspect of right shoulder no blackening and singring seen with corresponding wound of exit 0.75 cm in diameter, margins are averted from front of right shoulder.
(iii) Fire-arm wound of Entry 0.5 cm. In diameter margins are inverted, no blackening and singering are seen on right upper arm with corresponding wound of exit 0.75 cm in diameter margins are averted from left side lower lateral chest.
(iv) Fire-arm wound of Entry 0.5 cm. In diameter margins are inverted, no blackening and singering are seen over right upper arm with corresponding wound of exit 0.75 in diameter from right axilla.
(v) Fire-arm wound of Entry 0.5 cm. In diameter margin- are inverted, no blackening and singering are seen, on anterior aspect of left forearm. Middle 1/3rd with corresponding wound of exit 0.75 cm in diameter from lower 1/3rd anterior aspect of left forearm.
(vi) Clinical fracture of right humerus seen.
(vii) Clinical fracture of left radius and ulna is seen.
This witness has stated in cross-examination that no charring was noted by him on the injuries mentioned in Colomn-13 .
11. P.W.5 S.I.P. Zulfiqar Ali Arain has incorporated statement of complainant under section 154 Cr.P.C.
Produced by S.I.P. Muhammad Azam. P.W.6. Javaid Akhtar, Judicial Magistrate, stated that on 1-10- 2001, he was posted as Judicial Magistrate IV, Karachi Central. On the same day S.H.O. Police Station Sharah-eNoor Jehan submitted an application for holding Identification Parade of accused and he has allowed the said application and fixed the time for holding the Identification Parade on 2-10-2001. On 2-10-2001 at 1-00 p.m accused Mufti Muhammad Shahid Hanif, Muhammad Talha and Haider Ali were produced before him with muffled faces, he made them sit behind chamber and arranged 12 dummies and removed handcuffs of the appellants and got their muffles removed. He further stated that P.Ws. Saeed Ahmed Khan and Kashif Rizvi have identified the accused. In cross-examination this P.W. Admitted that he has not prepared the list of dummies and their particulars and both P.Ws. Have not stated the specific role of each accused during the commission of the crime. He admitted that in the Corridor, the identification parade was held, official of the prosecution branch used to sit there. P.W. Saeed Ahmed Khan, who is said to be eye- witness of the incident, has stated that on 8-7-2001 at about 7-00 p.m he along with P.W. Kashif Rizvi were going to De Silva Town to a hotel, for purchasing fried meat. He further stated that they were on motorcycle when they reached at main road towards P Block De Silva Town, North Nazimabad. He saw a blue colour car while crossing his motorcycle and speed of the car was slow down due to speed breaker. A by was standing on left side of foot path near the speed breaker, who fired two shots on the occupant of the Car when the car stopped, the said by then crossed them and came towards right side of the car and then fired 4 shots on the driver of the car. He further stated that a person was standing just prior to speed breaker and was armed with pistol and on the left side of the speed breaker a person with beard was trying to start a motorcycle but motorcycle could not be started by him, the by pushed the motorcycle and all decamped from the scene of the offence. After the incident he along with Kashif Rizvi went near said Car and so many other people of locality gathered there. Muhallah people identified victim as Doctor Ishrat Hussain running Clinic in De Silva Town. After 15 minutes police reached at the place of Wardat. He and Kashif informed the police about the incident. The police after noting their particulars asked them to attend the police station at 11-30 p.m. On the same night. After 4/3 days police called them at Police Station and shown them photographs of the culprits. On 1-10-2001 he received notice, for identification parade, which would be held on 2-10-2001. Kashif also informed him about the notice received to him. On the next day he along with Kashif reached at City Court and they informed the Reader of the Court about their arrival and. Magistrate asked them to sit to the adjoining court. At 1-15 p.m. He was called by the Magistrate where 12/13 persons were standing in a row and Magistrate asked him to identify the accused where he identified one accused having beard at the time of incident, who was driver of the Motorcycle. After the identification, his name was disclosed to him as Mufti Muhammad Shahid. Simultaneously he had identified Muhammad Talha and Haider Ali. He further stated that Kashif also identified the accused in identification Parade. In cross-examination he admitted that he has not stated about the role of the accused before the Judicial Magistrate when he had identified the accused/appellants. He further admitted that some dummies were different and some were same at the time of identification parade. He denied that prior to the identification parade, the accused were shown to him.
12. P.W.8 Kashif Rizvi has stated the same facts as stated by P.W. Saeed Ahmed Khan. In his cross- examination, this witness has stated that he has not noted the registration number of the Motorcycle at the time of incident and he has got education up to matriculation. He admitted. That the place of incident is surrounded by houses and bungalows. He also admitted at some distance from place of incident some boys were playing cricket in the same Gali where the incident took place. He further admitted that dummies were entirely different. On first and second occasions of Identification Test and on third occasion some new dummies and some previous were mixed-up along with the accused. He admitted that he had not assigned the specific role of the appellants before the Magistrate at the time of identification parade. He denied the suggestion that prior the identification parade, the accused were shown to him.
13. P.W.9 Inspector Muhammad Aamir Arain has deposed that on 29-9-2001 he was posted as S.I.P.
CID ATW Branch Napier Road Branch. At about 11-30 p.m. Or 12-00 midnight he received spy information that some religious activists had assembled at Rehman's Market, Nazimabad, on such information he proceeded to the pointed place. He picked up two mashirs of the locality namely Nazeer Gul and Muhammad Akram near from Qudsia Mosque situated on the back side of Rehman's Market and informed the mashirs about his target. He further stated that they encircled the culprits and arrested them who on enquiry disclosed their names as Mufti Muhammad Shahid Hanif, who was armed with Kilashinkov loaded with .30 alive bullets, Khalil Ahmed armed with T.T.
Pistol loaded with 6 alive bullets, Muhammad Talha armed with T.T. Pistol loaded with 5 alive bullets and Haider Ali armed with T.T. Pistol loaded with 5 alive bullets as the accused had no licence for the weapons, hence he registered separate F.I.Rs. Under section 7(1)(c) Surrender of Illicit Arms Ordinance, 1991.
14. P.W.10 Saeed Ahmed Rind stated that on 28-9-2001 he accompanied S.I.P. Aamir for arrest of religious Activists. He has deposed same facts as deposed by Inspector Muhammad Aamir Arain.
He has further stated that he has conducted investigation of 13-D cases registered against the appellants and got the appellants interrogated. He further stated that he got the judicial confessional statements of the appellants recorded on 10-10-2001 before the Judicial Magistrate and produced them on 11-10-2001 before the Superintendent Central Prison on the order of Judicial Magistrate. In cross-examination he admitted that after 29-9-2001 he has not submitted in his application before the Magistrate for recording confessional statements of accused till 10-10-2001.
He denied the suggestion that after arrest of the accused, he, S.I.P. Aamir and DSP Farooq Awan were promoted and they were awarded prizes by the Government.
15. P.W-11 Judicial Magistrate S.M. Naqi stated that on 10-10-2001 he was posted as Judicial Magistrate-V, Karachi West. On the same day he was directed by Registrar High Court of Sindh through Sessions Judge West to record the confessional statements of accused persons arrested by ATW Police Station. After receiving the letter from S.H.O. ATW Inspector Qamar-uz-Zaman, such order was passed by him and accused were produced in handcuffs and sent them in the kitchen of his Court and deputed his Court peon to watch the accused. He further stated that he informed the accused that their confessional statements would be recorded one by one and asked that they are not bound to record their confessional statements and if they volunteer for the said purpose then the confessional statements would be used as evidence against them. He further stated that he has informed the accused that if they are not willing to record their confessional statements then their custody would not be given to the police but would be remanded to judicial custody.
After observing all the legal formalities he had recorded the confessional statements of the appellants and he satisfied himself that the confessional statements of the appellants are true and voluntary. In cross-examination he admitted that he had completed the confessional statements of the accused at about 5-30 p.m and after recording confessional statements of the accused they were handed over to D.S.P. Farooq Awan. He admitted that he has not stated in the remand order that the accused have made the confessional statements, therefore they are remanded to judicial custody. He further admitted that confessional statement of each accused contains the particulars of different offences. He admitted that he had recorded the confessional statements of the accused on the direction of High Court and the Sessions Judge. In his cross-examination he has also admitted that he has not produced order in writing with him issued by the High Court for recording the Confessional Statements of the appellants/ -accused.
16. P.W.12 Inspector Ejazuddin has stated that on 8-7-2001 he was posted at Police Station Shahrah- e-Noor Jehan and he was on patrolling duty where he received wireless message from control room that there was firing in De Silva Town. He then reached there where he found Dr. Ishrat Hussain expired lying in the Car. He further stated that he inquired from the persons present there about the detail of the incident but they informed that they had not seen the occurrence. Two persons, who had Motorcycle were also present there. They informed him that they have witnessed the incident after noting their particulars, he directed them to come at Police Station at 11-00. p.m.
He prepared Inspection Memo and Inquest Report of the Dead Body and recorded the statement of Yousaf Hussain under section 154, Cr.P.C. And prepared memo of place of incident. On 29-9-2001 he received message from Police Station ATW that accused arrested by ATW Police are confessing their guilt about the murder of Dr. Ishrat Hussain. On 30-9-2001 he went to Police Station ATW and interrogated the accused/appellant Mufti Muhammad Shahid Hanif, Muhammad Talha and Haider Ali, who admitted their guilt that mistakenly they have committed murder of Dr. Ishrat Hussain.
Mufti Muhammad Shahid further stated that he is ready to pay the Diyat Amount regarding murder of Dr. Ishrat Hussain to his family members. Other appellants/accused also confessed their guilt in the same manner as confessed by accused Mufti Muhammad Shahid. He then arrested the accused/ appellants. He further stated that he produced the appellants before the Magistrate for identification parade and after Identification parade, the custody of the appellants was handed over to him.
17. We have examined the case-law cited by the learned counsel for the parties. In the case of Syed Azeem Shah (ibid), a Division Bench of Baluchistan High Court has held as under:-- "The delay of five days clearly indicates that the appellant had not made a confession and it was either extracted from him or he was coerced into making the same or some inducement was offered to him for making the confession. The evidentiary value of the confession is further made doubtful by the circumstances that it was not explained to the appellant that he would not be handed over back to the police whether he made the confession or not. In this respect Question No.10 on the form of the confessional statement is worth perusal. This question is not clear in this respect. Moreover, the appellant retracted from the confession. The retraction and the delay in recording the confession make it highly doubtful. We are, therefore, unable to take into consideration the confessional statement of the accused as its evidentiary value is next to zero."
18. In the case of Khalid Javed and another (supra), the Hon'ble Supreme Court has observed as follows:-- "Perusal of confessional statement Exh.PE indicates that it has been prepared in accordance with the prosecution case as it has been set up in the supplementary statement Exh.DB in order to substantiate that the version introduced later by the complainant was correct qua the F.I.R Exh.P/O.
Even if for the sake of arguments the objections raised by the appellant's counsel on the admissibility of confessional statement are overruled despite that it is duty of the prosecution to prove that appellant Aleem Ahmad made voluntary and true confessional statement. It may be observed with justification that a statement which has been recorded after a considerable delay from the date of arrest without offering any explanation for not producing the accused before the Magistrate as early as could be possible creates a doubt on its voluntariness. Assuming for the sake of arguments that appellant Aleem Ahmad was arrested on 21st February, 1993 and recovery of incriminating articles i.e. Dagger Article P-7 was effected from his possession on 3rd March, 1993 as well as blood-stained clothes on the same day then there was hardly any justification to keep him into custody up to 7th March, 1993 when he was produced before P.W. Malik Masood Ahmad for recording his confessional statement. If this aspect of the case is viewed in the prospect of the appellant's charge that he was subjected to torture no other inference can be drawn except that prosecution detained the appellant in custody in order to extract confessional statement from him.
It is well-settled that the confessional statement of an accused must be recorded as early as possible. In this behalf reference may be made to the case of Shaukat Saeed v. The State (PLD 1978 Quetta 1) wherein after having taken into consideration number of judgments including the one reported in Syed Sharifuddin Prizada v. Sohbat Khan and 3 others PLD 1972 SC 363 Full Bench of High Court of Baluchistan observed "No doubt confession obtained after a long period of detention in police custody have rightly been looked upon with suspicion and that casts a duty on the Court to scan the confession and other evidence deeper and to look for any other evidence which may taint the confession itself, but surely a short period of detention in police custody for 24 hours preceding the recording of confession would not make it inadmissible."
19. In the case of Muhammad Bashir alias Pervaiz and another (ibid), a Division Bench of Lahore High Court has held as under:-- "20. Raja Zahoor Hussain P.W.15 is resident of village Sahotra which is situated at a distance of 1/2 miles. Similarly, Muhammad Ashraf P.W.16 had his Dera in Baila. Both were therefore, chance witnesses. They were also closely related to the complainant. In case reported as Zafar Hayat v. The State 1995 SCMR 896 it has been ruled that, "chance witnesses if corroborative evidence is not available to support his statement, the same has to be excluded from consideration". In case reported as Noor Muhammad and 3 others v. The State 1973 PCr.LJ 891 it has been held that, "chance witness closely related to the deceased assumes special significance. No reliance could be placed on their testimony in the absence of unimpeachable corroboration". In case of Mumtaz Khan v: The State 1984 PCrLJ 407 it was held that, "Chance witness cannot be relied upon without any corroborative piece of evidence". The occurrence allegedly took place at 8-00 a.m. But report Exh.P.B. Was lodged through Raput No.9 at 10-20 a.m. There is about two hours and twenty minutes delay in lodging the F.I.R. Both the witness had neither gone to lodge the report nor stated any reasons in the complaint fo'r not lodging the same,"
20. In the case of Mehmood Ahmad and 3 others v. The State (supra), the Hon'ble Supreme Court has observed as follows:-- "(8) The prosecution also relied upon identification parade in which Qamar-uz-zaman had identified the appellants. The learned Judges of the High Court have relied upon it as a corroborative piece of evidence. We have examined the record of the identification proceedings and find that it suffers from' infirmity and illegality. There were 24 persons mixed with the appellants jointly and it seems that on a query from the Magistrate whether the police had got them identified their answer was in the negative and further that they had come with muffled faces. According to the report Qamar-uz-zaman was called in, who without any hesitation identified Muhammad Safdar, Mehmood Ahmed and Nasir Ahmad and the identification parade ended. It is quite clear from the entire evidence relating to identification parade that the accused named were not identified by their role in the crime. They were merely picked up and the role attributed to them was not stated by the witness. In such circumstances the settled law is that identification could not be relied upon and was of no evidentiary value."
21. In the case of Lal Pasand (supra), the Hon'ble Supreme Court has held under:- "Now, in the instant case, the explanation of the State is that there had been a joint identification parade with the result that it was not possible to find a sufficient number of other persons to be intermingled with the accused. And, the learned Magistrate who conducted the identification parade appears to have assumed that all the five accused had to be identified. That assumption was wholly erroneous, because Saddullah Khan had seen only two of the five assailants.
However, on the footing that five persons had to be identified, it would have been unreasonable to mix them with fifty other persons, because such a large number of persons could only have confused the identifying witnesses. Therefore, the proper course in such cases is to have separate identification parade for each accused. And, no explanation has been given in the instant case for not holding separate identification parades."
22. In the case of Khadim Hussain (supra), following observation was made by the Hon'ble Supreme Court:-- "Abdul Waheed and Sadiq were not witnesses of the involvement of Ghulam Abbas appellant and identification of Abbas by them was of no value. It is not clear from the entire evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes. If it was the identification of their role then it should have been specific so as to complete the picture of the crime and reinforce the case against them fot commission of the crime. The value of such an identification parade was pointed out as early as 1924 in Lal Singh v. Crown I L R 51 Lah. 396 in following words:- "The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It might merely mean that the witness happens to know that accused person.
The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight."
23. We have also examined the case-law cited by the learned Assistant Prosecutor General. In the case of Muhammad Gul and others (ibid), the Hon'ble Supreme Court has made following observation:-- "I may also observe that a retracted confession is sufficient to make the basis of recording conviction but the Court as rule of prudence seeks corroboration of the same on all material particulars. In the instant case the Special Court has pointed out the above various acts which furnish corroborative pieces of evidence besides the ocular testimony of the various witnesses including of the persons from whose places the explosive materials were recovered at the pointation of the appellants concerned."
24. In the case of Muhammad Irshad (supra), the Single Judge of this Court has observed as follows:-- "20. Lastly, there is evidence of retracted judicial confession of appellant (Exh.52), which is sought to be proved through Mr. Khursheed Naeem Malik (P. W.14) who was working as A.C.M. (South) Karachi and who recorded the confession after observing the legal formalities and after being satisfied that it was made voluntarily. The most important point that the learned counsel for the appellant has been able to bring out is that, the confession was recorded on 21-11-1984 after one week of the arrest of appellant who was admittedly taken into custody on 14-11-1984. No time as to the recording of the confession is prescribed by law and delay simpliciter in recording of a confession is not fatal. It appears that feeling the prick of conscience, the appellant was obviously actuated by an extreme sense of regret and remorse of having murdered a girl to whom he loved blindly and thus sought the expiation of his sin. The observations made in the case of Sher Zaman alias Shero v. The State reported in 1983 PCr.LJ 2519, are relevant on the point in issue."
25. The prosecution has relied upon the Judicial Confession of the appellants, Identification Parade of the appellants, motive and recoveries of weapons from the possession of the appellants.
According to the prosecution the appellants were arrested on 29-9-2001 and their confessional statements were recorded on 10-10-2001 after a delay of more than 10 days and the prosecution has failed to explain this inordinate delay in recording the confessional statements. Only the confessional statement of the appellant Haider Ali (Exh.50) is produced in original, whereas, confessional statements of appellants Mufti Muhammad Shahid Hanif and Muhammad Talha are Photostat copies. The confessional statements of the appellants are Mot corroborative by any independent piece of evidence. According to the evidence of Judicial Magistrate S.M. Naqi on the direction of this Court he was empowered to record the confessional statements of the appellants but he has not produced any documentary evidence that this court had directed him to record the confessional statements of the appellants. The identification parade was conducted by Judicial Magistrate-IV Karachi Central on 2-10-2001 and if the appellants volunteer to make any confessional statement then it must be recorded on the same day, on 2nd October, 2001, when the identification was held and the P.Ws. 7 and 8 identified the appellants while the investigation was also completed and the Magistrate ought to have remanded the appellant in judicial custody but he did not do so. This aspect of the case creates doubt in the case of the prosecution. It appears that the Investigating Officer wanted to procure the statement of the appellants by torture, duress and pressure. In these circumstances, after 8 days of the Identification Parade, the confessional statements of the appellants were recorded, which appears to be not voluntary and true and also generate doubt in the prosecution case. The witnesses have not assigned any role to any of the appellant at the time of identification parade, which also creates doubt in the prosecution case.
The recoveries as alleged were effected in presence of Nazeer Gul and Akram but the prosecution has failed to examine them. The non-examination of the private witnesses also creates serious doubt in the prosecution case. If they had examined they might not have supported the prosecution case. In these circumstances the recoveries are doubtful. We have also observed that P.Ws Saeed Ahmed Khan and Kashif Rizvi are the chance witnesses as according to their evidence they were going to a hotel for purchasing fried meat from a hotel situated in De Silva Town.
Admittedly, no person from the locality was examined by the prosecution. P.W. Saeed Ahmed and Kashif Rizvi are not resident of the locality where the incident took place. Their evidence is not corroborative by independent piece of evidence. In such circumstances their evidence has to be excluded from the consideration. Admittedly, the persons from locality had appeared on the scene after hearing of firearm shots and the boys were also playing cricket near the place of incident but the prosecution has failed to collect evidence of a single witness from the locality. We have also observed that the complainant has not given the names of P.Ws. Saeed Ahmed Khan and Kashif Rizvi in his statement under section 154 Cr.P.C., which later on were incorporated in 154 Cr.P.C. Book.
In these circumstances, the evidence of P.Ws. Saeed Ahmed Khan and Kashif Rizvi cannot be taken into consideration. The case-law cited by the learned counsel for the appellants also supports his contention.
26. An overall consideration of evidence on record and what has been discussed above, leads to the conclusion that it does not satisfy the accepted requirements of safe administration of criminal justice. Hence the appellants were entitled to the benefit of doubt. The S.1. Anti-Terrorism Appeals being Nos.43 and 44 of 2002 are allowed and the impugned judgment of the Lower Court is set aside. The appellants are acquitted of the charge. The Criminal Reference is replied in negative.
The appellants be released forthwith if not required in any other case.
27. In view of the above decision, the S.1. Anti-Terrorism Appeal No.26 of 2002 filed by the State for enhancement of sentence of the appellant Mufti Muhammad Shahid Hanif and Haider Ali is dismissed.