RAJA SHAHID MEHMOOD ABBASI, J: - This single judgment shall dispose of Crl.A.No.62 of 2011 titled "Hameed Ullah v. The State" filed by Hameed Ullah (appellant), against his conviction and sentence, as well as Capital Sentence Reference No.01-T of 2011 titled as "The State vs. Hameed Ullah", transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Hameed Ullah (appellant) being originated from the same judgment dated 29th of January, 2011 passed by the learned Judge, Anti-Terrorism Court-II, Rawalpindi Division & Islamabad Capital Territory in case FIR No.556 dated 21-08-2008 under sections 302,324,435,436, 120- B/34 PPC, 3,4,5,6 EA, 7 Anti-Terrorism Act, 1997, registered at Police Station, Wah Cantt. District Rawalpindi, whereby the appellant Hameed Ullah was convicted and sentenced as under:-
1. U/S 120-B PPC and the Third Schedule to the Anti-Terrorism Act read with clause (a) of section 7 of the Anti-Terrorism Act and Section 302 PPC, sentenced to death on 69 counts with fine of Rs.two lacs on 69 counts. In default of payment of fine, he was further held liable to further undergo S.I. for six months on each default.
2. U/S 120-B PPC and the Third Schedule to the Anti-Terrorism Act read with clause (b) of section 7 of the Anti-Terrorism Act and Section 324 PPC, sentenced to rigorous imprisonment for ten years 44 counts with fine of Rs.one lac on 44 counts. In default of payment of fine, he was further held liable to further undergo S.I. for three months on each default.
3. 120-B PPC and the Third Schedule to the Anti-Terrorism Act read with clause (c) of section 7 of the Anti-Terrorism Act sentenced to rigorous imprisonment for ten year 35 counts with fine of Rs.one lac on 35 counts. In default in payment of fine, he was further held liable to further undergo S.I. for three months on each default.
4. Under Clause (d) of Section 7 of the Anti-Terrorism Act read with Sections 435, 436 PPC, imprisonment for ten years (R.I.) with fine of Rs.one lac. In default of payment of fine, he held liable to further undergo three months S.I.
5. U/S 4 Explosive Substances Act, imprisonment for seven years (R.I.) and
6. U/S 5 Explosive Substances Act imprisonment for fourteen years (R.I.).
All the punishment was order to be run concurrently. Benefit of Section 382-B Cr.P.C. was extended in favour of the appellant.
2. Succinctly, the facts of the case as narrated in the complaint dated 21-08-2008 Ex.PZ is that the complainant Subedar Major Ghulam Rasool along with Naib Subedar Muhammad Rafique, Subedar Munawar Hussain and Havaldar Muhammad Aslam was standing near the gate of Nurain Mosque on 21-08-2008 at about 2.00 pm and at that time seven youngsters came out from the mosque and out of them four headed towards link road leading to main gate. The complainant along with Subedar Muhammad Rafique was standing near the gate and at about 2.35 PM, sound of blast was heard and at that moment one out of the three youngsters intruded the employees who were coming out from the gate and blew himself up. In the meanwhile, other two youngsters tried to run away and out of them one was apprehended by the complainant and said Subedar Muhammad Rafique, who told his name Hameed Ullah. The said Hameed Ullah was wearing explosive jacket. In the blast 25 persons lost their lives on the spot whereas about 50 persons got injured besides motorcycles and the bicycles were also damaged. The complainant was also came to know that another youngster had thrown one grenade at the main gate but the same was not exploded. On the basis of complaint, the FIR was chalked out.
3. After receipt of challan against the present appellant/accused, charge was framed against him to which he pleaded not guilty and claimed trial. In order to prove its case the prosecution examined as many as 33-PWs in all to bring home the guilt of accused/appellant . PWs No. 1 to 16 except (PW.10) are the witnesses, who received injuries during two blasts each at gate No.1 and main gate of POF Wah Cantt. Subedar Munawar Hussain, (PW.17), Muhammad Rafique, Naib Subedar (PW.18) and Subedar Major Ghulam Rasool (PW.31) are the witnesses of ocular account.
Mukhtar Haider, constable (PW.25) and Sher Afsar, Inspector (PW.27) are the witnesses of recovery.
Sadaqat Khan, SHO (PW.26), Abdul Sattar, Inspector (PW.30) are the investigating officers of this case, who stated the various steps taken by them during investigation. The Medical evidence in this case was furnished by Doctor Muhammad Masood, (PW.24).
4. The statement of the appellant under Section 342 Cr. P.C. was recorded. He denied the allegations levelled against him and claimed his innocence. In answer to a question, "why this case against you and why the PWs had deposed against you", appellant/accused replied as under:- "I am innocent. I have been roped in the instant case falsely. I am resident of Waziristan and Pathan by caste. I was arrested from Waziristan after the alleged occurrence on suspicion. I have no concern with the alleged offence nor having any connection with the co-accused. PWs deposed against me on the instruction of their high ups to make un-witnessed case to be made strong. All PWs were partial witnesses. No private impartial witness had been produced by the prosecution. If I had any explosive articles on my body, I would have exploded myself at the time of arrest."
The appellant opted not to appear as his own witness under Section 340(2) Cr. P.C. in disproof of the allegations levelled against him by the prosecution nor opted to produce defence evidence.
5. Upon completion of the trial the learned trial court found the case against the appellant to have been proved beyond any shadow of doubt and thus convicted and sentenced him as mentioned above. Hence, the appeal before this Court.
6. The learned trial Court having heard the learned counsel for the parties passed the above said conviction and sentences, which is being impugned herein.
7. The learned counsel for the appellant inter alia, contends that the appellant was falsely involved in the case and its subsequent point of time as he was not arrested at the spot as is being asserted by the prosecution; that Ghulam Rasool, prosecution's star witness who architected the entire edifice of the prosecution categorically stated that the occurrence took place on 21-10-2008 but not on 21-08-2008, this being so, the entire prosecution's edifice raised to the ground; that after having given the date other than the fateful day, all the subsequent proceeding including the seizer have become inconsequential; that the case property was not proved during the trial and examination-in-chief of the witnesses was recorded into piecemeal, which caused prejudice to the appellant; that statements of the PWs on the salient features of the case are so contradictory; that one set of statement cannot be taken into consideration without excluding the others in vis versa; that all the recoveries including the suicidal jacket planted on the appellant so as to advance the prosecution case in a dishonor manner; that the language used in the complaint is typically symptomatic of the parlance used by the police and not by the military personals; in particular the learned counsel has drawn our attention to the manner of arrest of the appellant which according to him is mutually destructive; that there is no positive proof to bring the case of the appellant into the mischief of Section 120 (b) of PPC as his mere presence or arrest at the spot even if believed would not ipso facto frame him with the charge admittedly point out some other suicide bomber as it requires positive prove independently; that incriminatory evidence has not been put to the appellant in his examination under Section 342 Cr.P.C. and as such cannot be pressed into service, in particular the eventful day has not been properly put to him. Learned counsel for the appellant has concluded that the prosecution has not been able to bring home charge against the appellant beyond any shadow of doubt and is entitled to clean acquittal.
8. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes the contentions raised by the learned counsel for the appellant and, inter alia maintains that prosecution has proved its case to its hilt; that the appellant is involved in heinous offence and the judgment of the learned trial court is well reasoned; that the eye witnesses of the case remained consistent and they have no previous enmity with the appellant to falsely implicate him; that all the evidence clearly established that appellant alongwith his co-accused murdered of persons and he does not deserve any leniency; that presence of the security personnel of POF, Wah namely Subedar Munawar Hussain, Havaldar Muhammad Aslam, Naib Subedar Muhammad Rafique besides Subedar Major Ghulam Rasool (complainant) are natural witnesses; that appellant was apprehended from the spot while he was wearing explosive jacket and having one grenade with him including his personal belongings and finally prayed that the appeal should be dismissed.
9. We have heard the learned counsel for the parties and scanned the record.
10. The occurrence took place at 2.35 pm whereas the FIR was registered at 3.55 pm. Such a prompt FIR excludes the chances of any fabrication or consultation. The complainant i.e. Subedar Major Ghulam Rasool, (PW.31) has stated that at about 2.35 pm, he alongwith Naib Subedar Muhammad Rafique, (PW.18), Subedar Munawar Hussain, (PW.17) and Havaldar Muhammad Aslam (given up PW) was present at Gate No.1 of Wah Factory. Seven persons came out from Masjid Zulnurain and out of them four went towards main gate on link road whereas other three remained outside the main said masjid. Naib Sobedar Muhammad Rafique and he himself remained at gate No.1 whereas Havaldar Muhammad Aslam and Subedar Munawar Hussain went to the main gate on official vehicle. At about 2.35 pm, one of the said three persons, who were standing near the masjid came towards gate No.1 and blast himself in between the employees, who were coming out from gate No.1 as it was closing time of duty. The other two persons, who were standing near the mosque, ran towards the main road and out of them one was caught by the complainant and Naib Subedar Muhammad. The accused was apprehended just after occurrence of second blast at gate No.1 by them disclosed his name as Hameed Ullah, who was wearing explosive jacket and one grenade was also with him. The Investigating Officer took into possession the explosive jacket, Ex.P1 and hand grenade P.2 through recovery memo Ex.PA. As a result of two blasts at the gates of POF, Wah, 69 innocent persons died at the spot whereas 35 persons received different injuries besides motorcycles and bicycles were damaged. The spot arrest of the appellant alongwith explosive jacket, hand grenade and personal belongings has furnished a solid proof of his guilt. No malafide against the prosecution witnesses could be brought on record. The appellant/accused, who is admittedly resident of Waziristan could not furnish any explanation to be present at the spot alongwith suicide jacket and grenade and could not explain why all the eye witnesses have unilaterally nominated the appellant in the case. The deposition of the PWs establishes that he was involved in the offence. In the instant case, the ocular account was furnished by Subedar Major Ghulam Rasool, (PW.31), Naib Subedar Muhamamd Rafique, (PW.18) and Subedar Munawar Hussain, (PW.17). They corroborated each others statement on all material particulars of the case.
The PWs are natural witnesses and they have specifically explained the reasons for being at the spot. Their depositions are sufficient enough to prove the case against the appellant. The prosecution also examined Fazal Elahi, Bomb Disposal Squad, (PW.32), who after making search at the spot had opined that four to five kilograms explosive substance was used in the blast occurred at gate No.1 of POF of Wah and 3 1/2 and 4 1/2 Kilograms explosive substance was used in the blast occurred at gate No.2 of POF, Wah Cantt. He prepared reports in this regard as Ex.PJJ and Ex.PKK. On 27-08-2008, he examined suicider jacket worn by the appellant and hand grenade possessed by the appellant at the time of occurrence and opined that the said grenade was alive of Russian made and detonator, was also in working condition. He found 2408 steel bolls and 4 Kgs explosive substance in the said jacket. The opinion of this PW lends full support to the prosecution case.
11. The medical evidence in this case was furnished by Doctor Muhammad Masood, Senior Medical Officer, POF, Hospital Wah Cantt. (PW.24), who examined dead bodies of deceased and issued death certificates Ex.PC/1-65. He also examined the injured persons, who were in serious condition and he provided them medical treatment. In addition to this the prosecution successfully got examined before the court, the injured PWs, who proved the occurrence in a natural manner and their statement have also not been rebutted by the defence. We have also noted that Hameed Ullah, appellant led the police party in the area of Akorra Khattak and got recovered from the house of Bilal huge quantity of explosive material, detonators, explosive jackets, rocket launchers, grenades etc. and a separate case was registered regarding that recovery in Police Station, Akorra Khattak.
12. The defence taken by the appellant was that he was apprehended from Waziristan after the alleged occurrence on suspicion is very vague and same is not borne from the record. The appellant failed to produce any evidence in his defence to substantiate his version. He has even failed to make statement under Section 340 (2) Cr.P.C. in order to disproof the allegations leveled against him. According to the eye witnesses, Hameed Ullah, appellant was apprehended just after the occurrence of second blast at gate No.1 at about 2.35 pm, while he was wearing explosive jacket. The appellant was caught red handed by the eye witnesses, while his companion blew themselves up in two different gates of POF, Wah Cantt. The above mentioned circumstance leads us to the conclusion that Hameed Ullah, appellant was one of the culprits, who hatchet conspiracy alongwith his companions, who blew themselves up but he was caught while wearing explosive jacket and possessing a grenade. The learned counsel appearing on behalf of the appellant failed to convince us as to why the appellant would be involved in a false case of this nature. The prosecution led best available evidence, available under the peculiar circumstances of the case instead of fabricating fake piece of evidence. The statements of Subedar Major Ghulam Rasool, (PW.31), Subedar Munawar Hussain (PW.17) and Naib Subedar Muhammad Rafique (PW.18) are so consistent, straightforward and confidence inspiring that every hypothesis stands excluded. The prosecution has successfully proved the charge against Hameed Ullah, appellant/accused to the effect that he had hatchet conspiracy with suicide bombers. As a result of which 69 innocent persons lost their lives and 35 received injuries. The prosecution has also successfully proved through cogent and confident inspiring evidence that he was wearing explosive jacket and was possessing one grenade.
13. For what has been discussed above, the prosecution has proved its case against the appellant beyond any shadow of doubt. The appeal having no merit is hereby dismissed.
14. Capital Sentence Reference No. 01-T of 2011 sent by the trial Court for confirmation or otherwise of death sentence of appellant-convict Hameed Ullah is answered in affirmative and death sentence awarded to the appellant is confirmed.