1. ABDULLAH BALOCH, J. --- This judgment disposes of Criminal Appeal No, 234 of 2014 filed by the appellant Zubair Ahmed Son of Hazoor Bakhsh, against the judgment dated 10th September, 2014 (hereinafter referred as, "the impugned judgment") passed by the learned Special Judge, Anti- Terrorism Khuzdar (hereinafter referred as, "the Trial Court"). whereby the appellant along with the absconding accused were convicted under Sections 302. 324, PPC r/w Section 7 of ATA, 1997 and sentenced to death on eight (08) counts and there shall be hanged by neck till they be dead; they were also convicted and sentenced for life with fine of Rs, 100,000/- (Rupees One Lakh) each under Section 436, 427, PPC r/w Section 7 of Anti-Terrorism Act, 1997 and in default to pay fine further suffer imprisonment for one year's S.I.
2. 2.Facts of the case are that on 2nd November, 2012 the complainant Abdul Qadir Qambarani, SI, lodged F.I.R. No, 166/2012 at Police Station City Khuzdar unde Sections 302, 324, 436, 427, 34, PPC r/w Section 7 of the Anti-Terrorism Act, 1997, stating therein that on the day of occurrence he along with other police officials was patrolling the area, when at about 01.45 p.m. through wireless received information that near Jhalawan Complex fire set on a shop, hence on such information he reached at the Jhalwan Complex new Adda and found that the fire was set on a wagon and five shops and due to fire the passengers were stuck inside the wagon. hence through fire brigade the fire was extinguished and on checking twelve persons were burnt inside the wagon and five other dead- bodies were found nearby or inside the shops, while six others were injured. The complainant further averred that on query it revealed to him that Muhammad Ramzan son of Sawal Khan was sitting in his shop, when unknown accused armed with sophisticated weapon came there on motorcycles and made indiscriminate firing upon him, due to which Muhammad Ramzan was seriously injured, while five others namely Muhammad Rafiq, Muhammad Hanif, Allah Bakhsh, Shah Muhammad and Mst. Murwari were also injured. It is also alleged that due to fire five other shops, Chingchi Rickshaw and two motorcycles were completely burnt to ashes.
3. 3.Pursuant to the above FIR, the investigation of the case was carried out by PW-15 Muhammad Murad Jamot, SHO, who. during investigation visited the site and prepared site plan taken the dead-bodies to Civil Hospital and subsequently handed over the same to the legal heirs; he prepared inquest reports, of dead-bodies and prepared receipts regarding handing over the dead-bodies; he obtained medical/death certificates of injured/deceased; recovered 31 Empties of Kalashnikov from the place of occurrence; took into possession the burnt wagon, Chingchi Rickshaw and motorcycles; recorded the statements of witnesses under Section 161, Cr.P.C.; arrested the appellant Zubair Ahmed; recorded the confessional statements of PW2 and PW-3 under Section 164. Cr.P.C.; recorded the disclosure memo. of the appellant, who nominated the absconding accused and on completion of investigation submitted the challan in the Trial Court.
4. 4.On receipt of challan, the Trial Court issued warrants of arrest of absconding accused namely Saadullah son of Haji Muhammad Yaqoob, Muhammad Elliyas son of Noor Muhammad Samiullah son of Haji Abdul Hakeem and Haji Abdul Hakeem son of Khan Muhammad, which were not executed, thus proceedings under Sections 87 & 88, Cr.P.C. were carried out and they were declared as proclaimed offenders.
5. 5.During the trial, the prosecution produced fifteen (15) witnesses, where after the appellant was examined u/S. 342, Cr.P.C. The appellant neither recorded his statement on oath under Section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial and hearing arguments the Trial Court beside awarding life imprisonment to the appellant. also awarded him death sentence as mentioned in para-1 above. The appellant against his conviction and sentence has preferred the Criminal Appeal No, 234 of 2014, whereas the Trial. Court has forwarded Murder Reference No, 11 of 2014 for confirmation or otherwise of the death sentence awarded to the appellant.
6. 6.Learned counsel for the appellant contended that the prosecution has miserably failed to establish the charge against the appellant; that only interested witnesses that were planted at subsequent stage were produced against the appellant at the trial and no independent witness was produced before the Court. which is apparent from the fact that their statements under Section 161. Cr.P.C. were recorded at belated stage, thus being not admissible reliable the statements of such witnesses are liable to be discarded from consideration; that all the witnesses made contradictory statements to each other and even made certain dishonest improvements in their earlier depositions: that disclosure of the appellant is not admissible being recorded whilst in police custody; that the case of prosecution is full of doubts, discrepancies and illegalities whilst committed during investigation and trial of the case, but the benefit of such doubts were not extended to the appellant and the appellant was treated very harshly.
7. 7.Learned Deputy Prosecutor General while supporting the impugned judgment and opposing the arguments so advanced by the learned counsel for the appellant contended that the appellant alongwith other absconding accused made indiscriminate firing upon the passenger wagon, which resulted into setting on fire the wagon, shops and other vehicles and thereby caused losses of 17 innocent and precious lives as well as damage to the properties of general public; that the appellant has absolutely failed to point out any ulterior motives andon the part of PWs with regard to his false implication, hence the appeal deserves dismissal as the Trial Court has rightly awarded penalty of death to the appellant through impugned judgment, which is not open for any interference by this Court.
8. 8.Heard the learned counsel and perused the available record. Perusal of record reveals that the unnatural death of seventeen persons are not disputed. Soon after the occurrence the dead- bodies were shifted to hospital, where PW-5 Ghulam Sarwar and PW-6 Dr Rafiq Ahmed, Medical Officers, D.H.Q. Hospital Khzudar carried out the medical examination of dead-bodies and opined that the dead-bodies were so severely burnt that were unable to recognize even the gender and ages of dead-bodies. PW-5 and PW-6 issued MLCs of dead-bodies as Ex.P/5-A to Ex.P/5-J and Ex.P/6-B to Ex.P/6-J and general detail report as Ex.P/5-M. The perusal of which confines the unnatural death of deceased namely (1) Yasir son of Ahmed, (2) Mst. Kalsoom Bibi, daughter of Raza Muhammad. (3) Bibi Khatoon wife of Muhammad Bakhsh, (4) Muhammad Waris son of Abdul Qadir, (5) Mst. Hoorain daughter of Naseer Shah, (6) Mst. Sameera daughter of Nazeer Shah, (7)
9. Haji Muhammad son of Gul Muhammad, (8) Mst. Khan Bibi wife of Muhammad Umer, (9) Fazal-ur- Rehman son of Abdul Hayee, (10) Abdul Hakeem son of Ghulam Nabi, (11) Abdul Qadir son of Muhammad, (12) Bibi Asha wife of Meer Muhammad, (13) .laved Ahmed son of Muneer Khan. (14)
10. Mst. Meerani wife of Kareem Bakhsh. (15) Abdul Qayyum son of Abdul Hakeem and few other unknown persons dued. The defence has also not disputed the unnatural death of deceased, but pleaded his false implication. PW-5 and PW-6 also taken medical aid to the injured witnesses and issued MLCs with regard to injuries sustained by the injured witnesses.
9. Adverting to ocular testimony produced by the prosecution, which is in the shape of direct, circumstantial and medical evidence. The medical evidence has already been discussed above, hence it would be appropriate to discuss the direct evidence produced by the prosecution in the shape of statements of PW-2 and PW-3, who are the star witnesses of the prosecution. PW-2 Zafarullah, is the Cleaner, while PW-3 Muhammad Arif is the driver of unfortunate Wagon, which was torched on fire. PW-2 Zafarullah stated that on the day of occurrence at about 1.45 at New Adda Khuzdar, he was loading the gallons of Petrol and Diesel on the roof of the wagon. when three armed persons suddenly came over there and enquired about the ownership of vehicle to be owned by Mouia Bakhsh, to which he (PW-3) replied in negative, but they started indiscriminate firing upon the wagon and whilst making firing. two of the armed persons faces unveiled, who were identified as Zubair (present appellant) and Saadullah (absconding accused) PW-2 further stated that the wagon was full of both male and female passengers, while due to firing a passenger namely Rafiq fell down from the roof of the wagon, while he (PW-2) also fell down from the roof of the wagon. but he concealed himself in a nearby hotel. PW-2 further stated that due to firing bullets hit to the passengers and also the wagon was set on fire, due to which the passengers and the nearby shopkeepers burnt to ashes. whereafter the accepted towards eastern side. PW-2 identified the appellant Zubair the Court as a culprit of the occurrence, who made firing upon the wagon and passengers. The second star witness of the occurrence is Muhammad Arif, Driver, who appeared as PW-3 and recorded his statement in line with the statement of PW-2 by corroborating his statement on all counts. PW-3 also stated that whilst making firing two of the culprits were damasked, who were identified as Saadullah (absconding accused) and the Zubair Ahmed son of Hazoor Bakhsh. PW3 admitted in his cross-examination that he is resident of Archanoo, while the appellant belongs to Zehri area and-both the areas are situated at far distance. PW-3 furtehr admitted that he had no business relatins nor relationship with the said Zubair and even he never visited the house of appellant nor the appellant had ever visited his house. PW-3 further admitted that he had no enmity with the appellant Zubair.
11. 10.We at our utmost care, caution and by applying judicious minds analyzed the statements of both the eyewitnesses and found the same reliable, because both the witnesses being the driver and the cleaner of the wagon, their presence at the time of incident is natural as the said wagon was loaded with passengers and was in the way to its destination. Besides, both the PWs will never raise their fingers on innocent person leaving the actual and real culprits, who had not only burnt their vehicle, which was only source of their income, but also had taken the lives of innocent passengers including women, who were travelling in the said wagon coupled with the fact that the lives of both the witnesses were also at risk. it has come on record that both the witnesses had absolutely no relationship with the appellant and also had no business rivalry, landed dispute, tribal enmity or any sort of other disputes, thus there was no occasion for both the PWs to falsely implicate the appellant in the commission of such a heinous crime and that too without any rhyme or reason. Thus, in our view both the witnesses are independent and credible witnesses. The defence has cross-examined both the witnesses at sufficient length, but has failed to give any slightest dent or damage to their testimony, rather from the cross-examination the commission of crime .by the appellant has been confirmed and new facts were emerged. Although, the learned counsel for the appellant attempted to discredit the case of prosecution on the basis of some minor discrepancies in the evidence of prosecution witnesses but in our opinion, those are not substantive enough to justify or create reasonable doubt in the case of prosecution about the involvement and guilt of the appellant.
12. 11.The complainant of the case appeared as PW- 1 who reiterated the contents of fard-e-bayan Ex.P/1-A. According to the PW-1 on the day of occurrence, he alongwith other police was patrolling the area, when received information about the occurrence. thus he rushed to the place of occurrence. where he found burning the wagon, other vehicles and five shops. whereafter the blaze were tackled through the fire brigade and the complainant found twelve dead-bodies in the wagon, while five dead-bodies inside and outside the nearby shops, besides six others were also injured.
13. 12.Adverting to the circumstantial evidence, suffice to observe here that the prosecution has mostly produced the evidence of natural witnesses who were injured or were luckily saved at the time of tragic incident. PW-4 Ali Asghar at the relevant time was present at the place of occurrence, when the tragic incident took place. In which his Chingchi Rickshaw was burnt to ashes. PW-4 confirmed that the fire was ablaze due to sudden firing. PW 7 Muhammad Hanif is the owner of a shop situated nearby the place of occurrence. PW-7 confirmed the arrival of wagon and sudden firing by the muffled faces persons having Kalashnikov and due to such firing two bullets were also hit to the said witness. PW-8 Muhammad Rafiq, was the passenger in the said wagon, who at the time of firing was sitting on the rooftop of the said wagon, but soon after the firing, he jumped from the wagon, but survived despite he received seven bullet injuries. PW-10 Moula Bakhsh is the owner of the wagon, who though was not present at the relevant time, but he has confirmed that the said wagon belonged to him. PW-11 Allah Bakhsh and PW-12 are also shopkeepers. who have narrated the occurrence. The said witnesses had also received bullet injuries. PW-13 is also a shop owner at the place of occurrence and during the said incident his nephew received bullet injuries, but subsequently succumbed to the injuries. PW-14 Skindar the owner of a motorcycle, which was burnt in the said incident.
13. The prosecution has produced the circumstantial evidence through the statements of PW-4.
14. PW-7. PW-8, PW-10, PW-11 PW-12. PW-13 and PW-14. Though none of the witnesses had seen the appellant making firing, but being natural witnesses and mostly shopkeepers, passengers etc. their presence at the time and the place of occurrence was natural, when otherwise most of the witnesses had received number of bullet injuries on their persons. The statements of said witnesses coupled with the statements of other witnesses rebuts the claim of the learned defence counsel, who during cross-examination made an unsuccessful attempt to say that the fire ablaze due to some other reasons as in the past such incidents of blazing had taken place due to open sale of petrol and Diesel and not due to firing of the appellant. All the witnesses have categorically stated that the accused made firing with firearms, which resulted into setting the fire in the vehicles and shops. The contention of the defence has further been rebutted from the recovery of 31 number of empties of Kalashnikov that were taken into possession from the place of occurrence, which is suggestive of the fact that before the incident of burning, indiscriminate firing had been taken place.
15. 14.The case of prosecution has further been strengthened from the disclosure memo. of the appellant recorded by the Investigating Officer, suffice to observe here that the same was recorded in presence of PW-9, who produced the same as Ex.P/9-A & Ex.P/9-B, perusal of which reflects that the same relates to discovery of new facts. The names of accomplices of the appellant were earlier not known to the prosecution. The appellant voluntarily disclosed the names of absconding accused as his accomplices and narrated the manner, in which they planned to launch the attack and after commission of crime their arrival in the house of accused Abdul Hakeem. The appellant also pointed the place of occurrence. Since disclosure of appellant disclosed the discovery of new facts which earlier was not known, therefore, the same is an admissible piece of evidence. In the case titled Muhammad Amjad v. The State (PLD 2003 S.C. 704). the Hon'ble Supreme Court held as under:-- "Further it is noted that as per Article 40, corresponding to Section 27 of the Evidence Act, when any fact is revealed in consequence of information received from any accused in custody of a police officer. such information whether it amounts to a confession or not as it relates distinctly to the fact thereby discovered. may be proved. The information supplied by the appellant under Article 40 ibid relating to incriminating articles is admissible."
16. 15.We have given anxious thought to the submission made by the learned counsel for the appellant with regard to recording the statements of witnesses under Section 161, Cr.P.C. at belated stage and it has been observed that the delay so occasioned in recording the statements of witnesses by the Investigating Officer is well-explained. All of the witnesses were either seriously injured or their close relatives had lost their lives in the said tragic incident and even they were shocked being escaped from the death and had saw the tragic and heartbreaking incident. Most of the witnesses were admitted to the hospitals being received bullet injuries and few witnesses were busy in Fateha. This explains the factum of delay caused in recording statements of witnesses under the provisions of Section 161. Cr.P.C. We are conscious or the fact that in a criminal case when
161. Cr.P C. statement is delayed; such evidence may not be given that sanctity as is generally given to the evidence of a witness whose statement has been recorded promptly soon after the occurrence, but simultaneously where the delay is reasonably and justifiably explained and such explanations appeals to the logic and rings true, the evidence of the -such witnesses cannot be discarded merely on the sole ground of being recorded at belated stage In the case in hand, the delay so caused has well reasonably explained by the witnesses in recording their statements, thus such ground is also not helpful to the case of appellant. Even otherwise, it is the sole discretion of the Investigating Officer to when record the statement of a witness. Reliance to this regard is placed on the case of Haji Allah Bakhsh v. Intisar Ahmad and others. 2012 SCM R 1281, wherein it has been held as under:--- "Learned counsel has vigorously argued that if Talib Hussain was present in the hospital at the time of recording of F.I.R.. he should have made his statement then and there. In this regard, it may be noted that it is dependent upon the Investigating Officer as at what time he would record the statement of a witness..."
17. Likewise the Hon'ble Federal Shariat Court in the case of Shabbir Hussain and others v. The State (1999 M LD 2332). has overruled such-like objection of defence, whereby the 161 Cr.P C. statement of a witness was recorded at belated stage. The relevant portion is reproduced herein below:--- "... However it is worth mentioning that the statements under Section 161, Cr.P.C. of both these P. Ws. were recorded after about ten months of the occurrence ... This explains the factum of delay caused in recording statements of P. W. 4 and P.W. 6. under the provisions of Section 161. Cr.P.C.
18. The reason why the local police opted to occasion such a long delay must be known to, them as nothing is available on record in this connection. However, keeping the very fact in view that P. W.
19. 5 and P. W. 6 had been going to the police throughout after the occurrence for recording their statements, the case of complainant who had no enmity with the accused cannot be allowed to be adversely affected merely for this reason. We may mention here that we are conscious of the fact that in a criminal case when it comes on record that the witness has appeared before the police of first available opportunity but his statement under Section 161, Cr.P.C. was delayed, his evidence may not be given that sanctity as is generally given to the evidence of a witness whose statement has been recorded no sooner he made appearance before the police. However. where the delay in recording the statements has been explained. the evidence of the witnesses cannot be discarded Merely on this ground and especially so when evidence on tote file reflects that the investigation was mala fide, it may also be mentioned that Section 161, Cr. P. C. gives the Investigating Officer discretion in the matter of recording the statements of witnesses but that discretion is to be exercised soundly and not arbitrarily and certainly not in such a manner as to either handicap the accused in their defence or deprive the Court of valuable material ascertaining the truth. Any omission of Investigating Officer an this respect, therefore, must be viewed with caution and weighed properly so that neither any side is prejudiced nor the purpose of law to arrive at just conclusion is frustrated. Therefore, the evidence of P. W. 5 end P. W. 6 which provides an important link in the" chain of events that culminated in the murder of Abdul Razzaq cannot be discarded merely for the reasons that their statements were not recorded in time as sufficient explanation exists on record for the same and they have subsequently made statements on oath before the Trial Court and have been duly subjected to lengthy cross- examination by the defence but to no advantage"
20. Similar view has been taken by the Hon'ble Lahore High Court in the case of Qaiser Hussain alias Kashi alias Kashif v, The State. 2011 P Cr.L.J 1126, wherein it was held that, "Recording of statement of prosecution with delay is not by itself sufficient to discard its value, the circumstances make it so...
21. If statement is delayed due to certain ulterior motives like filling up certain lacunas in prosecution version, then it becomes valueless and if circumstances justified then every statement recorded with delay is not to be discarded." This Court in the case of Allah Dina v. The State, 2003 P.Cr.L.J. page 1946, has held as under:-- "Now reverting, to the contention that, statements of witnesses since were recorded with delay of six months therefore, same may he excluded from consideration. Mr. Aslam Chishti, learned counsel contended that explanation given by the Investigating Officer regarding delay in recording statements is not plausible. We are not persuaded to agree with the learned counsel.
22. Soon after the incident appellant absconded and it appears that relatives of the deceased persons came to the place of incident and before arrival of police, the dead-bodies were removed as they did not want to lodge report, as the parties were closely related. Removal of the bodies further supports this fact, which further strengthens the statement of Investigating Officer.
23. The Elders did not allow for exhumation of dead-bodies and further it has come on record that. the Elders and Notables of the deceased and appellant did not allow the said witnesses to be examined and further when the Notables stopped interference, both the ladies appeared and got recorded their statements. The explanation given by the Investigating Officer regarding delay in recording statements of both the witnesses appears to be satisfactory and appeals to a prudent mind. Thus. the contention of learned counsel regarding delay in recording statements of the witnesses is repelled."
24. 16.The reappraisal of entire prosecution evidence establishes the fact that the prosecution has succeeded in proving the charge against the appellant through direct, circumstantial and medical evidence. No major contradiction or dishonest improvement has been pointed out by the learned defence counsel in the statements of prosecution witnesses. The recovery of 31 empties of Kalashnikov from the place of occurrence coupled with the volunteer recording of disclosure of the appellant have further strengthened the case of prosecution. Throughout the proceedings the appellant has not taken any specific plea with regard to his false implication nor he has brought any or ulterior motives, for his false implication by the witnesses and specially against the PW-2 and PW-3, who being natural witnesses directly witnessed the crime. The learned Trial Court has discussed and dilated upon each and every aspect of the case and rightly convicted and sentenced the appellant for capital punishment as there were no mitigating circumstances to award lesser punishment to the appellant. The impugned Judgment of the Trial Court being well- reasoned is not open for any interference by this Court.
25. For the above reasons, the appeal is dismissed and the Murder Reference sent by the learned Trial Court is answered in affirmative.