CH. MUSHTAQ AHMAD, J:- Behram alias Sufi Baba appellant has filed Criminal Appeal No.260-ATA of 2013 against his conviction and sentence, whereas Umar alias Fidai appellant has filed Criminal Appeal No.280-ATA of 2013 against his conviction. Besides these appeals, Capital Sentence Reference No.06 of 2013 has been sent by the trial court for confirmation of death sentence awarded to appellant Behram alias Sufi Baba.
2. Both the appellants Behram alias Sufi Baba and Umar alias Fidai were tried by learned Judge, Anti Terrorism Court No.IV, Lahore (Camp at D.G. Khan) in case FIR No.70/11 dated 03.04.2011 registered under Sections 302, 324, 34, 37 PPC, Sections 3, 4 of Explosive Substances Act, 1908 read with Section 21(I) and 7 of Anti Terrorism Act, 1997 at Police Station Sakhi Sarwar, Dera Ghazi Khan, who vide his judgment dated 06.03.2013, convicted and sentenced both the appellants as under:- APPELLANT BEHRAM ALIAS SUFI BABA. i) Death on 52 counts under section 7 (a) read with section 21-I of ATA, 1997. ii) Rigorous Imprisonment for 14 years under section 7(b) ATA, 1997 and with fine Rs.1,00,000/- . iii) Imprisonment for life under section 7(c) read with section 21-I of ATA, 1997 and with fine Rs.1,00,000/- on 73 counts. iv) Rigorous Imprisonment for fourteen years under section 7 (d) read with section 21-I of ATA, 1997 and with fine Rs.1,00,000/- v) Imprisonment for life under section 7(ff) read with section 21-I of ATA, 1997. vi) Death on 52 counts as Tazir under section 302 (b) read with section 34, 37 of PPC and to pay compensation Rs.1,00,000/- to the heirs of all the deceased each and Rs.50,000/- to injured persons each. In default in payment of said amount, to suffer further imprisonment for four months each. vii) Rigorous Imprisonment for ten years on 73 counts under section 324 read with section 34, 37 PPC. viii) Rigorous Imprisonment for two years under section 427 read with section 34, 37 PPC and with fine Rs.50,000/-. ix) Death under section 03 of Explosive Substances Act, 1908 read with schedule 03 clause (V) and section 21-G, ATA, 1997 with fine Rs.1,00,000/-. x) Imprisonment for life under section 04 of Explosive Substances Act, 1908 read with schedule 03 clause (V) and section 21-G, ATA, 1997.
APPELLANT UMAR ALIAS FIDAI. i) Imprisonment for life on 52 counts under section 7 (a) read with section 21-I of ATA, 1997 and with fine Rs.1,00,000/- on 52 counts. ii) Simple Imprisonment for 14 years under section 7(b) ATA, 1997 and with fine Rs.1,00,000/-. iii) Imprisonment for life under section 7(c) of ATA, 1997 and with fine Rs.1,00,000/-. iv) Simple Imprisonment for fourteen years under section 7 (d) read with section 21-I of ATA, 1997 and with fine Rs.1,00,000/- v) Imprisonment for life under section 7(ff) of ATA, 1997. vi) Imprisonment for life on 52 counts under section 302 (b) read with section 34, 37 of PPC and to pay compensation Rs.1,00,000/- to the heirs of all the deceased each and Rs.50,000/- to injured persons each. In default in payment of said amount, to suffer imprisonment for four months each. vii) Imprisonment for ten years on 73 counts under section 324 read with section 34, 37 PPC. viii) Imprisonment for two years under section 427 read with section 34, 37 PPC and with fine Rs.50,000/-. ix) Imprisonment for life under section 03 of Explosive Substances Act, 1908 read with schedule 03 clause (V) and section 21-G, ATA, 1997 with fine Rs.1,00,000/-. x) Imprisonment for life under section 04 of Explosive Substances Act, 1908 read with schedule 03 clause (V) and section 21-G, ATA, 1997.
3. FIR in this case was registered on the complaint made by Syed Zahid Hussain Inspector/SHO of Police Station Sakhi Sarwar, District Dera Ghazi Khan. Succinctly, but relevant facts as set out in the FIR are that on 03.04.2011, complainant Syed Zahid Hussain Inspector alongwith Rehmatullah 890/C, Muhammad Aslam 683/C, Ghazanfar Abbas 1312/C, Sabir Husnain ASI, Sajjad Hussain 4349/C, Muhammad Kamran 4221/C, Jaffer Hussain 394/C, Muhammad Ashraf 4426/C, Mazhar Abbas, Muhammad Arshad, Sughran Maai, Muhammad Akram and Muhammad Farrukh were present at security duty at Darbar Sakhi Sarwar. Four persons whose features have been fully described in FIR, tried to enter Darbar, whom police officials directed to wait their turn and to be in the line. In the meanwhile, a huge explosion took place and in consequence thereof, injured people as well as dead bodies were scattered. Police got vacated the courtyard of Darbar and one human head was found therefrom. After twenty minutes, one more explosion took place at backside of Darbar, where one person was present in injured condition. Complainant was informed that said person tried to blast his explosive jacket which could not blast and only igniter was exploded, due to which left arm of said person was shattered. Then said person wanted to throw hand grenade, whereupon police made firing and consequently his right arm was injured. Said person was arrested by the police, whose name was disclosed as Umar alias Fidaai (appellant). Name of expired suicidal terrorist was known as Ismail alias Abdullah. Two unknown terrorists taking benefit of huge gathering of people, succeeded in fleeing away.
4. Investigation in this case was conducted by PW-22 Syed Zahid Hussain Inspector, who is also complainant of this case. Investigation was in progress when PW-22 went to Sehala for advance course. Thereafter, investigation was conducted by Joint Investigation Team. PW-23 Liaqat Ali Inspector was the convener of Joint Investigation Team, who deposed about the steps taken for investigation. Both the appellants made confessional statements under section 164 Cr.P.C before PW-21 Abdul Jabbar, Special Judicial Magistrate. Apart from appellants, co-accused Farooq, Saleem Jan, Muhammad Asghar and Bashir Ahmad were also arrested in this case with the allegation of involvement in the occurrence. Co-accused Zara Ali could not be arrested, who was declared as Proclaimed Offender. After completion of necessary steps of investigation, supplementary report under section 173 Cr.P.C was submitted before the court for trial.
5. Umar alias Fidaai appellant/convict was declared of the age of 13 to 15 years vide report of medical board dated 23.05.2012. So, he was given benefit under the provisions of Juvenile Justice System Ordinance, 2000. Learned trial court after observing pre-trial formalities, framed charge against appellants and aforementioned co-accused (since acquitted), to which they pleaded not guilty and claimed trial.
6. At the trial, prosecution, in order to prove its case, produced as many as 33 witnesses, whereas PWs Mohsin Ali Sub Inspector, Muhammad Aslam 683/C were given up being unnecessary.
Attendance of remaining prosecution witnesses could not be procured without expense of inordinate delay, so, right of prosecution to produce further evidence was closed by the trial court
7. Medical evidence in this case was furnished by PW-2, PW-3, PW-4, PW-5, PW-6 and PW-26.
8. Statements of the appellants were recorded under Section 342 Cr.P.C wherein they again pleaded innocence. They both did not opt to make statement on oath as required u/s 340(2)
Cr.P.C. They also did not show their intention to produce any defence evidence. Appellant Behram while answering to the question why this case against him and why the PWs have deposed against him, stated as follows:- "I am falsely involved in this case only because of the reason that main accused Zara Ali (since absconder) is resident of my village".
Appellant Umar alias Fidai while answering to the same question, replied as under:- "My father has died. I am the only earning hand of my family. I had come to pay homage to the saint Hazrat Sakhi Sarwar on his tomb. Police injured me by firing and pressurized me to get record my statement according to their whim and wishes and threatened me to kill otherwise. I know nothing about the procedures of the courts as there are no such systems in my area. I am child. I am falsely involved in this case".
9. At conclusion of trial, the appellants were convicted and sentenced as mentioned above, hence these criminal appeals as well as capital sentence reference.
10. Learned counsel for appellants contended that the appellants had no connection with the suicidal bomber Ismail and there is no such evidence on the file in this regard; that the appellants have been involved falsely in this case by the police just to show efficiency; that the confessions were not voluntarily made because the appellants were in police custody and had been tortured by police in order to make confession before the court and they were extended threats of dire consequences in case they did not make confession, therefore, such confession could not be made basis for conviction; and that, the prosecution has failed to prove its case against the appellants.
11. Learned DPG has opposed the submissions by arguing that the appellant Umar alias Fidaai was apprehended from the spot when luckily his explosive jacket could not blow off, hence, there is no doubt regarding his involvement in the occurrence; that confessional statements of both the appellants have been recorded by the learned Special Judicial Magistrate while following the procedure laid down in the law, therefore, there is no reason to disbelieve such statement; that the confessional statements of the appellants have been fully corroborated by the prosecution evidence and as such both the appellants have been rightly convicted by the learned trial court.
12. We have heard the exhaustive arguments of the learned counsel for the parties and have gone through the record with their valuable assistance.
13. As per prosecution story mentioned in the FIR, four unknown persons tried to enter into shrine of Sakhi Sarwar at the eve of Urs when there was a large gathering of people. One of said persons exploded his suicidal jacket in the middle of gathering, resulting into 52 causalities and 73 injured.
After the brutal incident of first suicide blast by Ismail alias Abdullah, an attempt was made for suicide explosion by appellant Umar alias Fidaai, however, his suicide jacket could not blast fortunately and he was apprehended on the spot. The other two companions of the suicidal bombers succeeded in fleeing away taking advantage of large gathering at the shrine. This case was investigated by Joint Investigation Team, of which PW-23 Liaquat Ali Inspector was convener.
Formal arrest of appellant Umar alias Fidaai was made on 16.04.2011, who on the same day got recorded his confessional statement before Special Judicial Magistrate (PW-21), wherein he disclosed the story of his involvement as well as his role played in the occurrence. Confessional statement of appellant Behram was recorded on 27.04.2011 by PW-21. Both the appellants in their statements recorded under section 164 Cr.P.C, described the story of occurrence, confessed their guilt and also implicated each other in the occurrence with their active role despite the fact that statements of both of them were recorded on different dates. Before recording confessional statements of the appellants, the Magistrate (PW-21) himself examined the body of appellants in order to rule out possibility of use of coercion, inducement or persuasion. PW-21 while recording confessional statements of the appellants complied with all the necessary formalities enumerated in Sections 164 and 364 Cr.P.C. Confessional statements of the appellants were recorded by the Magistrate in his own handwriting. Appellants had brought nothing on record to show that the confessions were not voluntary or the same were obtained through coercion, maltreatment or inducement. No irregularity has been pointed out by the defence to be committed by PW-21 while recording confessional statements of the appellants. In the attending circumstances of this case, we are of the view that confessional statements of appellants were not the result of maltreatment and coercive measures.
14. PW-15 Imtiaz Hussain ASI and PW-22 Syed Zahid Hussain Inspector were performing duty at the place of occurrence when this unfortunate incident took place. They both have corroborated the story as narrated in the FIR. PWs were cross examined at length, however, their credence could not be shaken by the defence. In the FIR, features of four persons who tried to enter the shrine by breaking the procedure of security checking, have been fully mentioned. One of the said persons expired in suicide blast by himself, whereas appellant Umar alias Fidaai is unsuccessful suicide bomber. He was apprehended from the place of occurrence while he remained unsuccessful in exploding his suicide jacket, which was removed from his body by the police and he was sent to Hospital for treatment. A hand grenade was also recovered from his possession and the same was defused on the spot. Head as well as legs of the successful suicidal bomber were recovered from the spot. Photographs of his head were taken by the police. Whole of the oral and documentary evidence is relevant for the purpose of proving prosecution case against the appellants.
15. Appellants have not denied suicide blast by Ismail alias Abdullah, resulting into 52 causalities and 73 people wounded. In his statement recorded under section 342 Cr.P.C, appellant Behram took the plea that he was involved in this case for the reason that the main accused Zara Ali (since absconder) is resident of his village. However, he did not justify his continuous contact with said accused/P.O Zara Ali at Dera Ghazi Khan before the occurrence. He also did not produce any evidence to substantiate his plea. No mala fide on the part of police has been alleged by appellant Behram regarding his implication in this case. Likewise, appellant Umar alias Fidaai could not give any reason for his alleged false implication. He also did not bother to produce any evidence in defence. By now it is well settled that conviction can be based on retracted judicial confession provided it is corroborated by independent circumstantial evidence.
16. In the instant case though the confessions were retracted by the appellants but the same were corroborated through evidence of recovery, ocular account to the extent of appellant Umar Fidai and the medical evidence, hence, the same is reliable piece of evidence. Learned trial court correctly appreciated the evidence available on the record. It was a case of carnage which resulted in too many deaths and caused serious injuries to those who had come at the shrine to pay homage to the sacred personality buried therein. In such like cases leniency could not be extended to the culprits. Admittedly, the incident had brought sense of fear, insecurity and terror not only amongst those who were present at the place of occurrence but also in the society.
17. After reappraisal of evidence we are of the view that prosecution had proved its case against appellants beyond any shadow of doubt. We are not persuaded to interfere with the findings recorded by the trial court. Consequently, appeals filed by Behram alias Sufi Baba and Umar alias Fidai fail and the same are DISMISSED. Resultantly death sentence imposed upon the appellant Behram alias Sufi Baba is CONFIRMED and Capital Sentence Reference No.06 of 2013 is answered in the AFFIRMATIVE.