' JAWWAD S. KHAWAJA, J.---These two appeals arise out of the judgment of the Baluchistan High Court dated 5-9-2005. Bibi Sakina is the appellant in Criminal Appeal No,42 of 2007 and is the widow of Haji Muhammad Naseem who was one of the two persons murdered in case F.I.R. No,12 of 2004. She seeks reversal of the judgment of the High Court to the extent it has acquitted Muhammad Azam and Muhammad Akbar respondents-accused. Criminal Appeal No,41 has been filed by Faizullah one of the co-accused in the aforesaid case who has been convicted under section 7(a) of the Anti-Terrorism Act, 1997 and has been sentenced to death on two counts.
Faizullah seeks the setting aside of the conviction and sentence and has prayed for his acquittal.
2. The case of the prosecution initiated by F.I.R. No,12 of 2004 has been set out in the impugned judgment and through the evidence led before the trial Court. The same, therefore, need not be reproduced in extensor. It will suffice for the present to state that two persons namely Haji Muhammad Nasim, late husband of Bibi Sakina appellant and Juma Khan were murdered on 23-1- 2004. There were in all six persons who were accused of the crime; namely Faizullah appellant, Ubaidullah, Muhammad Azam, Inayatullah Daulat and Muhammad Akbar. The first three namely Faizullah, Ubaidullah and Muhammad Azam were convicted by the trial Court under section 7(a) of the Anti-Terrorism Act and each of them was sentenced to death on two counts. Inayatullah and Daulat were charged as abettors under section 109, P.P.C. They were convicted under section 395, P.P.C. And were sentenced to four years rigorous imprisonment. The last named accused Muhammad Akbar who had absconded was convicted for committing dacoity and was sentenced to ten years rigorous imprisonment.
3. Ubaidullah accused has died in jail during the pendency of the appeal before the High Court.
Four of the remaining accused namely Muhammad Azam, Inayatullah, Daulat and the absconding accused Muhammad Akbar have been acquitted by the High Court on the ground that "the prosecution has failed to prove its case against them". As such of the six persons who were prosecuted and convicted in the case, the conviction and sentence of Faizullah alone has been maintained by the High Court. Here it is important to note that the only material distinction between the case of Faizullah appellant and that of the remaining co- A accused is a confessional statement which stiltedly was made by Faizullah on 31-1-2004 under section 164, Cr.P.C. Before Rehmatullah Umami, Judicial Magistrate (P.W.7). In all other particulars the evidence adduced has been found insufficient to sustain the conviction as it is on the same evidence that the remaining accused have been found innocent.
4. In the circumstances, it is therefore, necessary to examine the confessional statement (Exh.P/7- B) which has been relied upon by the High Court and constitutes the singular point which distinguishes the case of Faizullah appellant from the case of the others who were co-accused with him and though convicted by the learned trial Court were acquitted by the High Court on appeal. For this reason it is important to scrutinize the confessional statement along with the attendant circumstances in which it was made and to appraise its probative value.
5. Rehmatullah Umrani, Judicial Magistrate, who had recorded the confessional statement of Faizullah was examined by the prosecution as P.W.7. He also produced the confessional statement Exh.P-7/B. At the outset, it may be said that the procedural safeguards prescribed by law and elaborated in precedent, were not adhered to by the said witness/Magistrate. Firstly, it will be seen that in his examination in chief, P.W.7 testified that he had given one hour to Faizullah for reflection but this was not mentioned in Exh.P-7/B itself. This circumstance has relevance and affects the evidentiary value of the confessional statement taken as a whole. Secondly, it is to be noted that in response to question No,5 as to the duration of his confinement with the police, Faizullah stated that he had been in police custody for nine days. This statement is also consistent with the fact that Faizullah though arrested on 23-1-2004, had been kept in the jail ward of the hospital at Quetta and was discharged on 31-1-2004. He was immediately thereafter taken to Qila Abdullah where P.W.7 recorded his statement under section 164, Cr.P.C. Thirdly, it is the case of the prosecution and has been acknowledged by Faizullah in his statement under section 342, Cr.P.C. That firearm injuries were caused to him by the Inspector Police/SHO, Police Station Chaman on the date of his arrest. The said SHO namely Malik Arshad Iqbal has deposed to the same effect while appearing as P.W.10. It is significant that the police who had fired upon and injured Faizullah had brought Faizullah to the Magistrate straight from the hospital after keeping him in detention for nine days.
Considering this circumstance and also bearing in mind that no independent time for reflection was given to Faizullah, a serious doubt is cast on the probative worth of the confessional statement. Fourthly, another important circumstance which undermines the value of the confessional statement is the extent and nature of firearm injuries caused by the police to Faizullah. He was neither physically examined by the Magistrate P.W.7 nor did he notice firearm injuries on the body of Faizullah. Had P.W.7 been diligent, he would have been alerted to the possibility not only of torture but actual firearm injuries caused to Faizullah by the very functionary who had produced him before the said Magistrate. This fact seriously undermines the statement made by P.W.7 that the confessional statement (Exh.P/ 7-B) was made without fear and was completely voluntary. These serious flaws in the confessional statement Exh.P-7/B constitute violation of the substantive rights of the appellant Faizullah and also highlight the absence of procedural due process. It would, therefore, be extremely unsafe to give credence to the confessional statement of Faizullah and to maintain the death sentence awarded to him by the learned trial and appellate Courts.
6. We have also gone through the impugned judgments and have noted that important considerations relating to the admissibility of confessional statements and the legal principles enunciated by this Court in respect thereof have not been duly considered. As a consequence, there has been a miscarriage of justice. The High Court has made reference to the case titled Ch. Muhammad Yaqoob and others v. The State and others (1992 SCM R 1983) but has merely recapitulated some legal principles enunciated in the cited precedent. Some of these legal principles which have been referred to in Para 19 of the judgment of the High Court are not even relevant for the adjudication of this case. For instance, rules relating to exculpatory confessional statements or retracted confessions have been extracted from the aforesaid case although the same have no bearing on the outcome of this case. In an unthinking and mechanical way, it has been observed in the impugned judgment that "in order to judge the evidentiary value of retracted confession; the Court is to advert to the question, whether the same appears to have been made voluntarily, without any inducement, duress or coercion". The circumstances, however, which have been noted in the preceding paragraph, have neither been examined nor applied to the statement Exh.P-7/B. Strangely, the Court has noted that there are irregularities in recording the confessional statement but has nevertheless, proceeded to base the conviction of Faizullah on the said statement.
7. In view of the foregoing discussion, we are quite clear that the confessional statement was neither voluntary nor was it made without duress or fear. It, therefore, cannot be relied upon to convict the appellant Faizullah and to award capital punishment to him. This is particularly so considering that the other evidence adduced by the prosecution has been found by the High Court to be unworthy of credence.
8. We have also heard the learned counsel for Bibi Sakina appellant in Criminal Appeal No,42 of 2007 and note that the judgment of the High Court acquitting Muhammad Azam is unexceptionable. It will suffice to say that the story set up by the prosecution is highly implausible.
Moreover, the most appropriate, natural and logical witnesses who could have supported the case of the prosecution have not even been examined during investigation let alone being produced in Court. In particular, the driver of the tanker on which the accused were allegedly attempting to escape has not been examined. Likewise the residents of the house in which Faizullah statedly attempted to hide himself and where he was injured by the Inspector/SHO (P.W.10), has neither been investigated nor cited as a witness in the challan or produced in Court. In addition, there are other serious discrepancies in the prosecution evidence including the extraordinary circumstance that the respondent Muhammad Azam was arrested on 14-2-2004 but his house was raided 12 days earlier on 2-2-2004 from where a sum of Rs,23,500 was allegedly recovered as case property.
We are not in any doubt that the prosecution had set up an unbelievable cock-and-bull story. We need not speculate on the reasons why this was done nor is it necessary to comment on the gross incompetence of the investigation. There is no basis, therefore, for convicting the respondent Azam, on the available evidence. The appeal of Bibi Sakina to the extent of Muhammad Akbar accused (respondent No,2) is adjourned.
9. The foregoing are our reasons in support of the short order dated 16-12-2011 which was passed in the following terms:-- "For the reasons to be recorded separately, by majority of two (Justice Mian Shakirullah Ian and Justice Jawwad S. Khawaja, JJ) to one (Justice Amir Hani Muslim) while setting aside the impugned judgment. The appeal filed by Faizullah (Criminal Appeal No,41 of 2007) is allowed and he is acquitted of the charges, and according to minority view (Justice Amir Hani Muslim, J) while dismissing his appeal his sentence is modified from death to imprisonment for life. The appeal of the complainant (Criminal Appeal No,42 of 2007) to the extent of Muhammad Azam, convict, is dismissed while against Muhammad Akbar, accused, it is adjourned to a date in office. Non- bailable warrants of arrest be issued against him and after his arrest the appeal be fixed for hearing. To be enlisted in the Regular Cause List".
' (Sd.) (Sd.)
' Mian Shakirullah Jan, J Jawwad S. Khawaja, J ' For the reasons given in the dissenting judgment I have dismissed Criminal Appeal No, 42 of 2007 whereas Criminal Appeal No,41 of 2007 was also dismissed while commuting the death penalty to life imprisonment.
(Sd.)
Amir Hani Muslim, J ' AMIR HANI MUSLIM, J.---I have gone through the majority judgment authored by my learned brother Mr. Justice Jawwad S. Khawaja. With respect, I do not agree with the reasoning for acceptance of Criminal Appeal No,41 of 2007 of the convict. My dissenting judgment is as follows:--
2. Facts of the case as they appear from the record are that Haji Abdul Qahir (complainant) made a statement to the police at Civil Hospital, Chamman, that on 23-1-2004 at about 4-30 p.m. He was present at Dil-e-Ram Road, Chamman, when a Suzuki Alto white color having black glasses bearing registration No,151-Karachi came there. Three persons came out of the car and went into the Shop of Haji Khairullah while the fourth one remained sitting on the driving seat. After a while, he heard gunshots and the said persons while armed with. Kalashnikov and pistol came out and escaped in the said vehicle towards Sinasun Road. He has also stated that out of them he identified one Faizullah son of Haji Muhammad Ali, Caste Malezai, resident of Adda Kahol, who was armed with pistol. He entered into the shop of Haji Khairullah and saw his nephew Jumma Khan and Haji Muhammad Nasim in injured condition, who were immediately removed to the Civil Hospital, Chaman. He has also stated that both the injured succumbed to their injuries. According to him, the incident was also witnessed by the D.C.O, Chaman, Dr. Saqib Aziz. He further stated that accused Ubaidullah Suleman Khail, Muhammad Azam, Faizullah and their unknown companion looted Rs, 30,000 from the said shop and also made firing.
3. The above-statement of the complainant was sent to the Police Station for registration of F.I.R upon which F.I.R. No,12 of 2004 dated 23-1-2004 was registered. P.W.10 Malik Arshad Iqbal along with other police officials went in search of the accused persons. When he reached Chaman bye-pass, he saw four persons riding a motorcycle who were going towards the bye-pass. On seeing the police, they turned and started firing on them which was retaliated and the police party went to chase them. The accused persons, who were going on a motorcycle, entered a Graveyard on Bokhara Road and as there was no road for the vehicle, the I.O. Chased them on foot. He was informed in the graveyard that two persons alighted from the motorcycle and boarded on a water tanker while the other two accused fled away on the Motorcycle. The, I.O. Directed S.I. Abdullah to chase persons who left on motorcycle while he himself went in pursuit of water tanker on another motorcycle. When the I.O. Reached near the water tanker accused Faizullah stared firing with pistol upon him from the water tanker, which was retaliated. Faizullah and Obaidullah came out of water tanker and Obaidullah ran in opposite direction whereas Faizullah entered in a house. He was injured due to cross-firing and was overpowered by the I.O. On personal search, an amount of Rs,65000 was recovered from his pocket, which he disclosed as his share from the .Looted money.
The said amount was taken into possession vide Memo Exh.P/3-A. A pistol along with four live cartridges was also recovered from Faizullah, which was also taken into possession vide Memo Exh.P/3-C, upon which a Murasala for registration of case under section 13-E of the Arms Ordinance was sent to the Police Station. Convict Faizulah was brought to the Police Station where doctor was called for his treatment.
4. Thereafter, the I.O. Went to the place of occurrence and took in to possession blood stained carpet, two empties and two leads of bullets vide memo Exh.P/3-G. He also prepared site plan of the occurrence (Exh.P/10-A). He recorded statements of the witnesses under section 161, Cr.P.C. And came back to the Police Station and interrogated the convict Faizullah who disclosed that he can point out the Alto car used in the offence which was abandoned near the College Road at an open place. On his potation, the vehicle Alto Car Registration No,AB-151 (Karachi) used in the crime was recovered vide Memo Exh. P/4-B.
5. Since convict Faizullah was injured, he was shifted to Jail Ward of the Civil Hospital, Quetta for medical treatment. On 28-1-2004, the I.O. Recorded the statement of the accused Faizullah under section 161, Cr.P.C. In which he disclosed the names of other co-accused. On 30-1-2004, the I.O.
Arrested co-accused (since acquitted) Inayatullah and Daulat Khan. Faizullah volunteered to record his confessional statement. On 31-1-2004, after his discharge from the Jail Ward, he was produced before the Judicial Magistrate, Qilla Abdullah, who recorded his said statement under section 164, Cr.P.C. On 2-2-2004, the I.O. Raided the house of co-accused Muhammad Azam, arrested him and recovered an amount of Rs,23,500 on his pointation. Muhammad Azam also led to the recovery of motorcycle from the house of absconding co-accused Muhammad Akbar, on which they made good their escape, which was taken into possession vide Memo Exh.P/3-K. He arrested Obaidullah (since dead) from Khuzdar, who led to the recovery of Kalashsnikov with which he fired at the deceased persons. The said weapon was taken into possession vide memo Exh.P/3- M. The I.O. Collected the Medical Certificates of deceased persons (Exh.P/8-A and 8-B). Initially he submitted incomplete challan against appellant Faizullah and co-accused Daulat Khan and thereafter submitted challan against Obaidullah. On obtaining report of Chemical Analyzer (Exh.P/10-E), he submitted challan and on receiving the report of Ballistic Expert, Karachi, (Exh.P/10- E), he submitted final challan.
6. Charge was framed against the accused persons to whom they pleaded not guilty and claimed trial. The prosecution in order to bring home the guilt of the accused persons examined as many as 1D witness. The accused examined themselves under section 342, Cr.P.C. Denying the charges. On conclusion of the trial, the appellant Fiazullah and others were convicted and sentenced, by the trial Court, in the following terms:-- ' Faizullah, Obaidullah and Muhammad Azam: ' Death on two counts with fine of Rs,1,00,000 each to be paid to the legal heirs of the deceased under section 7(a) of the Anti-Terrorism Act.
' Ten years' R.I. With fine of-Rs,50,000 or in default to further undergo S.I. For one year for committing dacoit in the shop of Haji Khairullah.
' Inayatullah and Daulat: ' R.I. For four years and fine of Rs,5,000 each or in default of payment of fine to undergo S.I. For two months under section 395, P.P.C.
' Muhammad Akbar: ' R.I. For ten years and pay fine of Rs,50,000 or in default to undergo S.I. For one year for committing dacoit in the shop of Haji Khairullah.
7. All the convicts filed appeals before the High Court of Baluchistan, Quetta, challenging their conviction and sentences. Convict Obaidullah died during pendency of the appeal before the High Court. The learned High Court maintained the conviction and sentence of the Convict Faizullah while acquitted all the other accused. Absconding co-convict Muhammad Akbar was also acquitted.
8. Convict-Faizullah filed Jail Petition No,366 of 2005 from jail while Bibi Sakina widow of Haji Muhammad Nasim and others filed Criminal Petition No,45-Q of 2005 against acquittal of Muhammad Azam and Muhammad Akbar. On 9-4-2007, leave was granted in both petitions by this Court to reappraise the evidence in the interest of safe administration of criminal justice.
9. The learned counsel Mr. Ali Ahmed Kurd representing the convict-Faizullah in Criminal Appeal No,41 of 2007 nas contended that the judgments of the learned High Court and the trial Court are not sustainable in law. According to him, the prosecution has failed to bring home the guilt of the appellant. He submitted that no identification parade was conducted by the police and the evidence of the complainant P.W.5 and the D.C.O. Qila Abdullah at Chaman Dr. Saqib Aziz, P.W.6, who have identified the appellant is not confidence inspiring. His further contention was that the recovery of Rs,6,500, pistol and the car used in the crime, on the potation of the appellant was also fabricated.
10. His next contention was that the appellant remained in the police custody from 23-1-2004 to 31- 1-2004 and was never produced before a Magistrate. According to him, no plausible explanation was offered by the prosecution for not producing the convict before the Magistrate within the time stipulated in terms of section 61, Cr.P.C., which makes the prosecution story doubtful. He further submitted that since the appellant remained in police custody for 9 days, therefore, his confession statement recorded by the Magistrate on 31-1-2004 would have no evidentiary value and no conviction can be awarded on the basis of such confessional statement.
11. It was further contended by the learned counsel for the convict that it is an admitted fact that the appellant had received injuries at the time of his arrest, and it was next to improbable to believe that he led the police to the recovery of car used in the crime on the same day. He submitted that the aforesaid instances clearly establish that the prosecution has failed to prove the case against the appellant beyond reasonable doubt and the convict is liable to acquittal.
12. As against this, the learned counsel for the complainant in Criminal Appeal No,42 of 2007 has contended that the complainant P.W.5 and the D.C.O P.W.6 who were present at the time of occurrence have identified the convict who was nominated in the F.I.R. He next contended that specific role was assigned to the convict by the two witnesses namely Abdul Qayyum P. W.1 and Gul Ahmed P.W.2, in their depositions, who were present in the shop in which occurrence took place.
He further contended that the role of the convict according to the P.Ws.1 and 2 was that the robber carrying- pistol came forward and started drawing out money from table/draw and took out Pakistani Rupees 30,000 and two American Dollars and they were not cross-examined. He submitted that besides the pistol used in the crime looted amount was also recovered from the convict on his arrest. The vehicle which was used in the crime was also recovered on the pointation of the convict.
13. As per the learned counsel for the complainant, the identity of the convict was established by the evidence of by the witnesses namely Haji Abdul Qahir P.W.5 and the D.C.O Dr. Saqib Aziz P.W.6.
He contended that identification parade in such eventuality when the accused has been nominated is not a requirement. He submitted that an accused could be identified in Court by witnesses. He next contended that the prosecution witnesses were not cross-examined by the defence counsel on the point of identity of the convict.
14. He next contended that the complainant was the real uncle of the deceased who lodged the F.I.R and there was no enmity of the convict either with the complainant or with any of his family members. He next contended that the evidence of the two prosecution witnesses present inside the shop at the time of occurrence cannot be overlooked who had given honest statements assigning specific role to the convict.
15. He next contended that illegal detention of the convict-Faizullah from the date of his arrest i,e,, 23-1-2004 to 31-1-2004 has also been fully explained by the police, as the convict received first-aid in the Police Station and then admitted to the Jail Ward of the Civil Hospital, Quetta. The moment the convict was discharged from the hospital, he was produced before the Magistrate. He submits that the provisions of section 60, Cr.P.C. Warrant such a situation and non-production of the convict from 23-1-2004 to 31-1-2004 would neither absolve him from being prosecuted for the offence which he has committed prior to his arrest nor would vitiate the trial proceedings.
16. Arguments heard and record perused. The trial Court as well as the High Court have convicted Faizullah, inter alia, on the ground that he was arrested within few hours of the incident after encounter. On arrest, recovery of his share in the looted money, pistol and vehicle used in the crime was effected On 31-1-2004, he made voluntary confessional statement before the Magistrate Qila Abdullah.
17. The learned counsel for the convict has contended that no identification parade was conducted therefore, the judgment impugned is erroneous. It is an admitted fact that identification parade was not conducted by the police, as the convict was nominated in the F.I.R. In law, identification parade is merely a corroborative piece of evidence and has no significance if the complainant has identified the accused and has nominated him in the F.I.R. If the identity of the convict is proved by other convincing direct or circumstantial evidence, identification test would become immaterial.
This Court in number of cases has held that identification parade is necessary only when a witness gets momentary glimpse, but in the case in hand, the complainant P.W.5 and the D.C.O P.W.6 identified the convict-Faizullah, duly armed with pistol, as his face was unveiled while he was sitting in the car after coming out of the shop. Both these prosecution witnesses were told the name of the convict by the people who gathered at the place of occurrence. Additionally, these two prosecution witnesses were examined by the police and in their depositions in Court they have specifically stated that they have identified the convict-Faizullah besides both of them identified the convict in the trial Court. This, by itself, is sufficient to hold that the convict-Faizullah was identified by the witnesses who were neither inimical to him nor was there any previous enmity with the convict. The D.C.O. Qila Abdullah, at Chaman, P.W.6, present at the time of occurrence, was neither related to nor had any acquaintance either with the convict or the complainant party and his evidence could not be brushed aside.
18. The convict-Faizullah was nominated in the F.I.R. And the P.Ws.5 and 6 who identified the convict were not cross-examined by the defense counsel on the question of identity of the convict.
Therefore, I hold that the findings of the High Court and the trial Court on identity of the convict were correctly recorded.
19. The second question was about arrest and recovery effected from the convict. The convict was arrested within few hours of the occurrence after the encounter and he admits in his statement under section 342, Cr.P.C. That he has received injuries at the hands of the police. On his arrest he was found in possession of a pistol and on his personal search, his share of looted money of Rs,6,500 was also recovered. The police also recovered the vehicle used in the crime on his pointation. The I.O. Had appeared in the witness box as P.W.10 and was not cross-examined on the recoveries stated to have been effected from the person of the convict besides the recovery of vehicle on his potation.
20. The I.O. Has further deposed that since the convict has received injuries, he was given first-aid in the Police Station and was then taken to the Jail Ward of the Civil Hospital, Quetta, as at the relevant time, two dead bodies of the deceased persons were lying in the Civil Hospital Chaman and in case if the convict was taken to Civil Hospital Chaman, there was a possibility of a law and order situation. The I.O. Has not retained the custody of the convict. In fact, the convict was in custody of the Medical Superintendent, Civil Hospital, Quetta, as the Jail Ward of the hospital is controlled by him and not by the police. -On 31-1-2004, the convict was discharged from the hospital and was produced before the Magistrate where he got recorded his confessional statement voluntarily. The I.O. Has given explanation for non-production of the convict within 24 hours of his arrest as provided under section 60, Cr.P.C. And such explanation condones the delay.
In the given circumstances, when such explanation of the I.O. Has not been challenged by the defence in cross-examination, I hold that the I.O. Has offered plausible explanation for non- production of the convict on his arrest before the Magistrate in terms of section 61, Cr.P.C. Which at best could lead to departmental proceedings against the I.O., but it would not restrict the I.O. From investigating cognizable offence, in which two human lives were lost nor will it absolve or exonerate the convict from being prosecuted under the law for an offence which he has committed before his arrest. The language of sections 60, 61 and 167 Cr.P.C. Provides the procedure for arrest of an accused by the police, but noncompliance of the same on the justifiable grounds would neither vitiate the trial nor exonerate nor absolve the accused for the offence, which he has committed prior to his arrest
21. The corroborative piece of evidence of P.Ws. 1 and 2 clearly speaks of the role of convict- Faizullah. Both the P.Ws. Stated that the person carrying pistol forbade their movement and came forward and started pocketing money from the draw. Both the witnesses were not cross-examined at all.
22. The Magistrate, who recorded confessional statement of the convict, was examined as P.W.7. He appeared and produced the confessional statement of the convict recorded under section 164, Cr.P.C. As Exh.P/7-B and Exh.P/7-C. In his deposition, he has stated that the convict was produced before him who confessed his guilt. This confessional statement was recorded by the Magistrate in his own handwriting in Urdu. Each question which he put to the convict and answer bears the thumb impression of the convict. The Magistrate recorded the statement of the convict verbatim in urdu in his own handwriting and then he had issued the certificate stating therein that he explained to the convict that he was not bound to make a confession and that if he will do so, such confession can be used as evidence against him. The Magistrate further certified that he was satisfied that the convict had made voluntary confession in his presence within his hearing, which was read over to him, who admitted its contents to be correct. All these questions answers, statement of the accused and the certificate are in the handwriting of the Magistrate, which were produced and exhibited without any objection. Non mentioning of the reflection time by the Magistrate in a confessional statement by itself is not sufficient ground to discard the confessional statement when there was other material produced by the prosecution to prove the guilt of the convict. It is now well settled that mere technicalities of the nature referred to hereinabove ought to be overlooked without causing any miscarriage of justice. Reference may usefully be made to the cases of Imran Ashraf v. The State (2001 SCM R 424) and Khurshid v. The State (PLD 1996 SC 305).
23. No suggestion was made to him that the convict was never produced before him whereas in his statement under section 342, Cr.P.C. The convict has stated that he was never produced before the Magistrate. Normally admission or denial of a convict under section 342, Cr.P.C. Has no significance and it does not absolve the prosecution from proving the case beyond reasonable doubt, but in the case in hand, the plea taken by the defense was of torture by the police, whereas under section 342, Cr.P.C. a contrary plea was taken by the convict that he was never produced before the Magistrate. This, by itself, would reflect that the case against convict was proved by the prosecution. The convict was identified by the complainant and the D.C.O Dr. Saqib Aziz, recovery of looted money and pistol was effected from. The vehicle used in the crime was also recovered on the pointation of the convict. He was assigned specific role by the P.Ws. 1 and 2. All these pieces of evidence coupled with his confession before the Magistrate connects the convict with the commission of the alleged offence.
24. The complainant and the P.W.6 Dr. Saqib Aziz were independent witnesses, who have identified the convict through the people who were attracted at the place of occurrence. These two witnesses had no enmity or acquaintance with the convict. The role of the convict has been fully specified by the two prosecution witnesses namely Abdul Qayyurn and Gul Ahmed, who were inside the shop and they were not cross-examined, which evidence corroborates the evidence of P.
W. 5 and 6'.
25. Under these circumstances, I am of the considered view that the prosecution has succeeded in proving the case against the convict Faizullah beyond reasonable doubt and the trial Court and the learned High Court were justified in convicting Faizullah. Both the Courts have awarded death penalty to the convict. Since the two Humble Judges of the Bench have acquitted the convict, therefore, proprietary demands that I should commute the death penalty of the convict to that of life imprisonment on this ground alone. For the aforesaid reasons, I have dismissed Criminal Appeal No,41 of 2007 filed by Faizullah with above modification in the sentence.