Ch. Mushtaq Ahmad, J.--Appellants Muhammad Sadiq alias Hasnain, Muhammad Hanif alias Muavia, Wazir Ahmed, Muhammad Tariq and Bashir Ahmed alias Doctor have challenged their conviction and sentences recorded by learned Judge, Anti-Terrorism Court, D.G. Khan vide judgment dated 14.11.2014 arising out of case FIR No, 384 dated 15.12.2009 registered under Sections 302, 324, 427, PPC read with Section 7 Anti-Terrorism Act, 1997 and under Sections 3 & 4 of Explosive Substances Act, 1908 at Police Station B-Division, D.G. Khan.
2. Accordingly, the appellants were convicted and sentenced under:-- ' MUHAMMAD SADIQ @ HUSNAIN MUHAMMAD HANIF @ MUAVIA ' U/S. 302/109, PPC each and sentenced to Death on 26 counts to each appellant. Both the appellants were also held liable to pay compensation of Rs, 10,00,000/- each to the legal heirs of each deceased in terms of Section 544-A, Cr.P.C. And in case of default to undergo further imprisonment for six months R.I. On each count.
' U/S. 7(a) of Anti-Terrorism Act, 1997 each and sentenced to Death to each appellant with fine of Rs, 1,00,000/- each and in case of default to undergo further imprisonment for six months R.I each.
' U/S. 324, PPC each and sentenced to 10 years R.I. On 57 counts to each Appellant (since 57 injured PWs were examined out of 97 injured) with fine of Rs,10,000/- each on 57 counts to each injured person and in case of default of payment thereof to undergo further imprisonment for four months each.
' U/S. 427, PPC each and sentenced to two years R.I. Each with fme of Rs, 10,000/- each and in case of default of payment thereof to undergo further imprisonment for four months each.
' U/S. 3 of Explosive Substances Act, 1908 each and sentenced to Death on 26 counts to each appellant.
' MUHAMMAD TARIQ WAZIR AHMED BASHIR AHMED @ DOCTOR ' U/S. 302/109, PPC each and sentenced to Imprisonment for life on 26 counts each to each appellant. They were also held liable to pay Rs, 10,00,000/- each as compensation in terms of Section 544-A, Cr.P.C. To the legal heirs of each deceased and in case of default to undergo further imprisonment for six months S.I. On each count.
' U/S. 7(a) of Anti-Terrorism Act, 199.7 each and sentenced to Imprisonment for life to each appellant. They were also held liable to pay fine of Rs, 1,00,000/. Each and in case of default to undergo further imprisonment for six months S.I. On each ' U/S. 324, PPC each and sentenced to 10 years R.I. On 57 counts to each appellant (since 57 injured PWs were examined out of 97 injured) with fine of Rs,10,000/- each on 57 counts to each injured person and in case of default of payment thereof to undergo further imprisonment for four months each.
' U/S. 8 read with Section 6 of Explosive Substances Act, 1908 each and sentenced to Imprisonment for life to each appellant.
' U/S. 427, PPC each and sentenced to two years R.I. Each with fine of Rs, 10,000/- each and in case of default of payment thereof to undergo further imprisonment for four months each.
' All the sentences were ordered to be run consecutively. Benefit of Section 382-B, Cr.P.C. Was, however, extended to each convict.
' Co-accused of the appellants, namely, Moulvi Muhammad Jamshed and Qari Asmat Ullah alias Muavia alias Safdar were acquitted by the trial Court.
3. Alongwith these appeals there is Criminal Appeal No, 542- ATA of 2014 filed by the State against acquittal of Moulvi Muhammad Jamshed and Qari Asmat Ullah alias Muavia alias Safdar, RespondentdNos. 1 & 2 and CSR No, 07/2014 sent by the learned trial Court for confirmation of death sentences awarded to Muhammad Sadiq @ Husnain and Muhammad Hanif @ Muavia, appellants-convicts. We intend to dispose of all these matters through this single judgment.
4. The FIR (Exh.PEEEEE) was registered on the complaint of Azhar Hussain, Inspector (PW-102).
According to him on 15.12.2009 he alongwith Shamsher All SI, Ali Imran SI, Nazir Ahmad ASI, Muhammad Jahangir 898/C, Muhammad Raheel 225/C, Muhammad Suleman 707/C, Saleem Nawaz 919/C, Sabir Hussain PQR, Ramzan PQR with driver Ishtiaq Ahmad 180/C of vehicle No, 9663- DGL was present at Traffic Chowk in connection with duty upon rally of Shabab Milly Jamat-i-Islami where at about 2.45 p.m. He heard huge noise of the blast from southern side of Khosa Market, upon which he alongwith above said police officials rushed towards that direction and witnessed 16 human bodies alongwith 88 injured persons lying around the Khosa Market while the market and its surrounding buildings, shops and several vehicles were found badly damaged. According to immediate information, furnished to him, a vehicle containing ammunition/explosive substance was struck against main gate of Khosa House adjacent to Khosa Market. He informed his high ups about this occurrence, managed to shift the injured persons as well as dead bodies to DHQ Hospital and also called upon the rescue teams. After the blast, rescue '1122, Special Branch and other Heads of the Government Departments and high ups of police reached there. The residents of the locality also came there. He further reported that the unknown terrorist hit a vehicle filled with explosive material to the main gate of Khosa House to terrify the public at large.
5. PW-100 Muhammad Bilal Inspector/SHO, PW-96 Abdul Sattar Pitafi, lnspector/SHO and PW-97 Riaz Ahmed Inspector/SHO conducted the investigation of this case. Muhammad Sadiq alias Husnain, Muhammad. Tariq, Wazir Ahmed and Bashir Ahmed alias Doctor were arrested on 17.1.2010 in this case whereas the date of arrest of Muhammad Hanif alias Muavia, appellant is 17.5.2010.
Moulvt.Muhammad Jamshed and Qari Asmat Ullah alias Muavia alias Safdar (since acquitted) were arrested on 12.6.2010 and 3.6.2010 respectively.
6. After completing the necessary formalities, the I.O. Submitted report under Section 173, Cr.P.C. In Court on 18.3.2010 where the appellants were formally charge sheeted on 24.5.2011 to which they pleaded not guilty and claimed trial.
7. In order to prove its case the prosecution relied upon 103 witnesses alongwith documentary evidence before whom the accused persons made confessional statements for committing the occurrence. According to prosecution Muhammad Sadiq alias Husnain (appellant) made confessional statement recorded under Section 164, Cr.P.C. By PW-88 Mr. Abdul Jabbar, Special Judicial Magistrate, D.G.Khan on 18.1.2010 whereas Muhammad Hanif alias Muavia (appellant) confessed his guilt in Press Conference got conducted. By CW-1 Muhammad Kashif Mushtaq Kanjo, SSP on 20.5.2010 wherein he admitted before Electronic and Print Media that he was master mind of this occurrence i.e, bomb blast at Khosa House. The CD of this Press Conference was prepared by Adnan Khaliq, ASI who appeared as CW-2 before the trial Court.
8. The accused-appellants were examined under Section 342, Cr.P.C. Who denied the very factum of having committed the offences under reference. The appellants, however, did not opt to record their statements on oath in terms of Section 340(2), Cr.P.C. In dis-proof of the allegations against them.
9. The learned trial Court after hearing the arguments of learned counsel for the parties recorded the conviction and awarded sentences to the appellants as mentioned in the opening paragraph of this judgment.
10. Contention of learned counsel for the appellants is that main stay of the prosecution is on two confessional statements, one allegedly made by Muhammad Sadiq alias Husnain and the second by Muhammad Hanif alias Muavia, appellants; that confessional statement made by appellant Muhammad Sadiq alias Husnain was neither voluntarily made nor truthful, rather the same was recorded in violation of safeguard provided to an accused facing capital charge by the superior Courts of this country as well as relevant Rules and Orders of the High Court; that appellant Muhammad Hanif alias Muavia in police custody was exposed to Media where he made a statement as such it would be unsafe to place reliance upon it. Learned counsel adds that statement of appellant Muhammad Hanif is inadmissible in evidence. Further adds that statements made by the appellants are not corroborated on material points by any other piece of evidence produced by the prosecution. While relying upon the provisions of Article 43 of Qanun-e- Shahadat Order, 1984, learned , counsel argued that these statements cannot be used against co- appellants, Muhammad Tariq, Wazir Ahmed and Bashir Ahmed alias Doctor. Further argued that it was not open for the trial Court to proceed with the trial during the pendency of Writ Petition No, 1295/2009 related to the same case and this has caused serious prejudice to the appellants to defend them before the trial Court. Learned counsel further argued that version of the prosecution is discrepant regarding number of vehicles used in the occurrence. Further argued that recoveries have been planted against the appellants to strengthen the prosecution case; that neither any disclosure was made by any of the appellant, nor did they lead to any incriminating article and lastly argued that it was not established that suicide bomber was involved in the blast as alleged by PW-90 Iftikhar Hassan.
11. On the other hand, learned Deputy Prosecutor General argued that appellant Muhammad Sadiq alias Hasnain had confessed his guilt before PW-88 Special Judicial Magistrate after his arrest in this case in which he had furnished detail regarding blast and bringing the explosive material in a vehicle; that place of dumping the explosive material was also pointed out by him during investigation; that his confession being voluntarily made is admissible piece of evidence connecting him with the charge framed against him and that the , appellant Muhammad Hanif had also voluntarily confessed his guilt in a Press Conference in the presence of electronic and print media which fact was preserved/saved through CD produced during trial as Exh.P2/1 and that other appellants were implicated by Muhammad Hanif and Muhammad Sadiq in their confessional statements, hence, prosecution in this case successfully proved charge against all the accused beyond reasonable doubt.
12. We have heard the learned counsel for the appellants as well as the learned Deputy Prosecutor General appearing for the State.
13. In this case place and time of the explosion is not disputed between the parties. It is also clear from the contents of complaint (Exh. PEEEEE/1) lodged by PW-102 Azhar Hussain, Inspector that no accused was nominated in it. During investigation appellants; namely, Muhammad Sadiq alias Hasnain, Muhammad Hanif alias Muavia, Muhammad Tariq, Wazir Ahmed, Bashir Ahmed alias Doctor, Moulvi Muhammad Jamshed (since acquitted) and Qari Asmat Ullah (since acquitted) were arrested. Record in this case shows that appellant Muhammad Sadiq @ Hasnain was produced before PW-88 Mr. Abdul Jabbar, Special Judicial Magistrate, D.G. Khan for recording his confession on 18.1.2010. Learned Judicial Magistrate recorded his statement which was produced during trial as Exh. PGGGGGG and the same is available at pages 397 to 408 at Paper Book-II of this case. Perusal of above statement shows that learned Judicial Magistrate (PW-88) put as many as eight questions to the appellant Muhammad Sadiq alias Hasnain to ensure that he was neither induced to make confession nor it was the result of torture or coercion. The learned Judicial Magistrate has explained in his note that he examined the accused but no sign of injury was found on his body. In his statement appellant Muhammad Sadiq alias Husnain gave details as to how explosive material was dumped at a particular place before the same was brought at the place of explosion in a 'Dalla' driven by suicide bomber, namely, Abdullah. Record shows that thumb impressions of Muhammad Sadiq alias Hasnain were obtained on all pages of his statement. It was denied by the witness that accused was not produced by the police before him for recording his statement. On behalf of the defence it was contended with vehemence that confession could not be relied upon for recording conviction. We have gone through the statement of appellant Muhammad Sadiq alias Hasnain recorded by, PW-88 and have noticed that all necessary steps required under Section 364, Cr.P.C. Were taken to ensure that appellant was not induced by any one to make statement nor was compelled to confess his guilt. He was also told by PW-88 that after making statement he will not be handed over to the police.
14. So far as the case of Muhammad Hanif alias Muavia is concerned his version was saved through CD (Exh.P2/1) which was played in open Court during arguments on the request of learned counsel for the parties and it was found that he had also voluntarily furnished detail of the acts committed prior to the explosion and confessed his guilt before CW-1 Muhammad Kashif Mushtaq Kanju, S. S. P .
15. Record further reveals that Muhammad Kashif Mushtaq Kanju, S.S.P appeared as CW-1 and stated that on 20.5.2010 Muhammad Hanif alias Muavia confessed his guilt before him. His statement was secured vide CD (Exh.P2/1) by CW-2 Adnan Khaliq, A.S.I, who cOnfirmed its contents after visualizing it in open Court on 19.7.2014 when his statement was "recorded. According to Muhammad Hanif alias Muavia he was the master mind of this occurrence i.e, bomb blast at Khosa House. He had planned the bomb blast with the help of his co-accused. CW-2 in cross- examination explained that Exh.P2/1 (CD) was prepared correctly by him without any addition or omission. CW-2 Adnan Khaliq, A.S.I, further deposed that on 20.6.2010 Hanif Gabol was produced before Media persons at PS B-Division, D.G. Khan and in that Press Conference he made confession about his involvement in bomb blast at Khosa House which was converted into CD. He handed over said CD to SHO, PS B-Division in presence of Mukhtiar Hussain, 533/C which was taken into possession by recovery memo. Exh.PZZZZZ.
16. The above mentioned CD (Exh.P2/1) was also played before this Court on the request of learned counsel for the parties during arguments in which it was noted that Muhammad Hanif alias Muavia, appellant had clearly admitted that he was involved in the bomb blast at Khosa House, D.G. Khan alongwith Muhammad Sadiq alias Hasnain and others.
17. Under Article 164 of Qanun-e-Shahadat Order, 1984 it is provided as under:--
164. Production of evidence that has become available because of modern devices, etc. In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques."
Under the law evidence collected through modern devices is admissible in evidence and the same can be used against the accused during judicial proceedings to determine the questions of criminal liability or as the case may be.
18. After going through the evidence in this case we are of considered opinion that charges against appellants Muhammad Sadiq alias Hasnain and Muhammad Hanif alias Muavia were proved on record through reliable and admissible evidence. The conviction recorded and sentences awarded to these appellants by the trial Court are sustainable and there is no valid ground to interfere to their extent. Resultantly, Criminal Appeal No, 486-ATA of 2014 filed by Muhammad Sadiq alias Hasnain, appellant and Criminal Appeal No, 520-ATA of 2014 filed by Muhammad Hanif alias Muavia, appellan. Are dismissed. Capital Sentence Reference No, 07 of 2014 is answered in AFFIRMATIVE.
19. However, case of appellants Wazir Ahmed, Muhammad Tariq, Bashir Ahmed alias Doctor and acquitted accused/respondents Moulvi Muhammad Jamshed and Qari Asmat Ullah is distinguishable. They neither confessed their guilt nor there was any other cogent evidence brought on record by the prosecution to connect them with the alleged offence. It is further to be noted that case of appellants Wazir Ahmed, Muhammad Tariq and Bashir Ahmed alias Doctor was almost identical to the case of acquitted accused/respondents in Criminal Appeal No, 542- ATA/2014 filed by the State. The prosecution has failed to prove charges in this case against these appellants.
20. Resultantly, Criminal Appeal No, 511-ATA/2014 filed by Wazir Ahmed, appellant, Criminal Apeal No, 521-ATA/2014 filed by Muhammad Tariq, appellant & Criminal Appeal No, 527-ATA/2014 filed by Bashir Ahmed alias Doctor, appellant are allowed. They are acquitted of the charges. Their conviction and sentences are set aside. They shall be released from jail forthwith, if not required in any other case.
21. Simultaneously, Criminal Appeal No, 542-ATA of 2014 filed by the State against acquittal of Moulvi Muhammad Jamshed and Qari Asmatullah alias Muavia alias Safdar, Respondents Nos. 1 & 2 is dismissed.