SADIQ MAHMUD KHURRAM, J. Qari Ahmed Khan, Moulvi Muhammad Siddique, Noor Badshah, Muhammad Suleman alias Zohair , Nisar Ahmad, Abdul Basit and Abdul Monim (convicts) were tried by the learned Judge, Special Court-II, Anti-T errorism, Rawalpin di alongwith their co-accused, namely Qari Muhammad Suleman son of Muhammad Azam (since acquitted) in case FIR No. 215 of 2004 dated 30.07.2004 registered at Police Station Fateh Jang District Attock in respect of offences under sections 302,324, 120-B,148,147,149 and 109 PPC., under section 7 of the Anti-T errorism Act, 1997 and under sections 4 and 5 of Explo sive Substances Act, 1908 for conspiring to murder Mr. Shaukat Aziz, a candidate in the elections for the seat of the member of National Assembly from the constituency NA. 59, Attock and being complicit in the suicide blast resulting in the deaths of as many as seven persons (Abdul Rehman, Liaquat Khan, Majid Shah, Moula Bakh sh, Fida Muhammad, Rasheed Muhammad and Muhammad Bashir) and injuries to forty seven persons.The learned trial court vide judgment dated 22.05.2006 convicted Qari Ahmed Khan, Moulvi Muhammad Siddique, Noor Badshah, Muhammad Suleman alias Zohair , Nisar Ahmad, Abdul Basit and Abdul Monim (convicts) and sentenced them as under: Qari Ahmed Khan: i) Death under section 120-B PPC read with section 7 (a) of the Anti-terrorism Act, 1997 and directed to pay fine of Rs.500,000/- and in case of default thereof, the convict was further directed to undergo one year of rigorous imprisonment; ii) Rigorous Imprisonment for ten years under section 120-B PPC read with section 7 (c) of the Anti-terrorism Act, 1997 and directed to pay fine of Rs.100, 000/- and in case of default thereof, the convict was further directed to undergo one year of rigorous imprisonment; iii) Rigorous Imprisonment for two years under section 120-B PPC read with section 427 PPC.
The convict was ordered to be hanged by his neck till dead.
Moulvi Muhammad Siddique: i) Death under section 120-B PPC read with section 7 (a) of the Anti-terrorism Act, 1997 and directed to pay fine of Rs.500,000/- and in case of default thereof, the convict was further directed to undergo one year of rigorous imprisonment; ii) Rigorous Imprisonment for ten years under section 120-B PPC read with section 7 (c) of the Anti-terrorism Act, 1997 and directed to pay fine of Rs.100,000/- and in case of default thereof, the convict was further directed to undergo one year of rigorous imprisonment; iii) Rigorous Imprisonment for two years under section 120-B PPC read with section 427 PPC.
The convict was ordered to be hanged by his neck till dead.
Noor Badshah: i) Death under section 120-B PPC read with section 7 (a) of the Anti-terrorism Act, 1997 and directed to pay fine of Rs.500,000/- and in case of default thereof, the convict was further directed to undergo one year of rigorous imprisonment; ii) Rigorous Imprisonment for ten years under section 120-B PPC read with section 7 (c) of the Anti-terrorism Act, 1997 and directed to pay fine of Rs.100,000/- and in case of default thereof, the convict was further directed to undergo one year of rigorous imprisonment; iii) Rigorous Imprisonment for two years under section 120-B PPC read with section 427 PPC.
The convict was ordered to be hanged by his neck till dead.
Muhammad Suleman alias Zohair: i) Death under section 120-B PPC read with section 7 (a) of the Anti-terrorism Act, 1997 and directed to pay fine of Rs.500,000/- and in case of default thereof, the convict was further directed to undergo one year of rigorous imprisonment; ii) Rigorous Imprisonment for ten years under section 120-B PPC read with section 7 (c) of the Anti-terrorism Act, 1997 and directed to pay fine of Rs.100,000/- and in case of default thereof, the convict was further directed to undergo one year of rigorous imprisonment; iii) Rigorous Imprisonment for two years under section 120-B PPC read with section 427 PPC.
The convict was ordered to be hanged by his neck till dead.
Nisar Ahmad: i) Imprisonment for life under section 120-B PPC read with section 7 (a) of the Anti-terrorism Act, 1997 and directed to pay fine of Rs.500,000/- and in case of default thereof, the convict was further directed to undergo one year of rigorous imprisonment; ii) Rigorous Imprisonment for ten years under section 109 PPC read with section 7 (c) of the Anti-terrorism Act, 1997 and directed to pay fine of Rs.100, 000/- and in case of default thereof, the convict was further directed to undergo one year of rigorous imprisonment; iii) Rigorous Imprisonment for two years under section 109 PPC read with section 427 PPC.
The convict was extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr .P.C.).".
Abdul Basit: i) Imprisonment for life under section 120-B PPC read with section 7 (a) of the Anti-terrorism Act, 1997 and directed to pay fine of Rs.500,000/- and in case of default thereof, the convict was further directed to undergo one year of rigorous imprisonment; ii) Rigorous Imprisonment for ten years under section 109 PPC read with section 7 (c) of the Anti-terrorism Act, 1997 and directed to pay fine of Rs.100,000/- and in case of default thereof, the convict was further directed to undergo one year of rigorous imprisonment; iii) Rigorous Imprisonment for two years under section 109 PPC read with section 427 PPC.
The convict was extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr .P.C.).".
Abdul Monim: i) Imprisonment for life under section 120-B PPC read with section 7 (a) of the Anti-terrorism Act, 1997 and directed to pay fine of Rs.500,000/- each and in case of default thereof, the convict was further directed to undergo one year of rigorous imprisonment; ii) Rigorous Imprisonment for ten years under section 109 PPC read with section 7 (c) of the Anti-terrorism Act, 1997 and directed to pay fine of Rs.100,000/- each and in case of default thereof, the convict was further directed to undergo one year of rigorous imprisonment; iv) Rigorous Imprisonment for two years under section 109 PPC read with section 427 PPC.
The convict was extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr .P.C.).".
The co-accused of the convicts namely Qari Muhammad Suleman son of Muhammad Azam was however acquitted by the learned trial court.
2. Feeling aggrieved, Qari Ahmed Khan, Moulvi Muhammad Siddique and Noor Badshah (convicts) lodged Criminal Appeal No. 250-T of 2006 assailing their conviction and sentences. Muhammad Suleman alias Zohair (convict) lodged Criminal Appeal No. 254-T of 2006 assailing his conviction and sentences. Nisar Ahmad, Abdul Basit and Abdul Monim (convicts) lodged Criminal Appeal No. 226-T of 2006 assailing their conviction and sentences. The learned trial court submitted Reference under section 374 Cr.P.C. read with section 30(2) of Anti- Terrorism Act, 1997, which has been numbered as Capital Sentence Reference No. 04-R WP of 2009, for confirmation or otherwise of the death sentences of Qari Ahmed Khan, Moulvi Muhammad Siddique, Noor Badshah and Muhammad Suleman alias Zohair (appellants). We intend to dispose of the Criminal Appeal No. 250-T of 2006, Criminal Appeal No. 254-T of 2006, Criminal Appeal No. 226-T of 2006 and the Capital Sentence Reference No.04- RWP of 2009 through this single judgment.
3. Precisely the facts necessary , as stated by Riaz Hussain Inspector/S.H.O. (PW-49), the complainant and the Investigating Of ficer of the case, are as under:- "On 30.07.2004 the then finance Minister Mr. Shaukat Aziz had the address a jalsa at Jafer in connection with by- election in NA 59 Attock City in which he was a candidate. Elite force and police officers from other districts in the range had also been deputed apart from the police of Attock District for security and arrangements regarding the said jalsa. I was also present in the jalsa gah on duty. The participants of the jalsa were about 3000. It started at about 6.15 p.m and ended at about 7.15 p.m. After the jalsa. Mr. Shoukat Aziz, Mr. Tahir Sadiq District Nazim and Col/Malik Anwar provincial Minister sat in car No. 8083 IDF Mercedes. The driver started the car. The other persons also sat in their cars. The police officers and escort staff also started taking seats in their vehicles. Some police staff in uniform and plain clothes was present near the car of Mr. Shouket Aziz for security reasons and for taking out the car out of rush. The car of the Minister travelled about ten yards distance when a young man suddenly dashed himself with the left door of the car. It was driving seat of the car. There was a loud explosion. The said person had explosive on his body . The driver of the car namely Abdul Rehma n was seriously injured in the explosion. He expired at the spot. The suicide attacker was also killed. His organs scattered in the area. I with the help of DPO Attock and others took out the Minister from the car and took him immediately alongwith his companions to the back side of the pand al and cordoned them. The vehicles of Zila Nazim and Finance Minister were also damaged at the spot. Majeed Shah, Moula Bakhsh, Fida Muhammad, Liaqat Khan and Habib were seriously injured and they were immediately sent to the hospital. Except Habib, the other four succumbed to the injuries subsequently . Abdul Ghafoor Afridi ASP, Khurshid Ahmed Inspector , Kamal Hussain Shah ASI, Muhammad Asghar , Mulazim Hussain, Abdul Hameed, Ghulam Mustafa police constables and many others were injured in this occurrence. They were sent to different hospitals for treatment. This was a Sabotage against the country by terrorists and was terrorism (under object ion). I drafted complaint Ex.PC regarding this occurrence adding Section 7 ATA also and sent it to the PS for registration of the case through Mehboob Ahmed Constable. I deputed Nisar Ahmed ASI to got to Civil Hospital for post mortem of the dead bodies and for treatment of the injured persons, from P.S. I remained at the spot. From the place of occurrence, I sent Muhammad Aslam ASI to the hospital to assist Nisar Ahmed ASI in civil hospital. I cordoned the place of occurrence by placing constables at different places and using ropes. The generator was on at the place of occurrence. Had lights of the vehicles were also on.
The constables had also torche(sic). I prepared inquest report Ex.PP and application for post mortem Ex.PO of Abdul Rehman deceased and sent his dead body to the hospital for p.m. examination through Mubashir Ahmed constable. Muhammad Akram ASI, and Muhammad Afzal ASI were sent with the dead body for security and for identification of the dead body . I recorded statement of Mr. Shouket Aziz u/s 161 Cr.PC. Mehmood Ahmed constable came back from the P.S. alongwith original complaint ant copy of FIR. I sent the limbs of unknown suicide attacker to civil hospital Fateh Jang for p.m, examination under the escort of Abdul Rehman constable after preparing inquest report Ex. PR and application for p.m. Ex.PQ. Mehmood Ahmed and Zafer Iqbal constables were sent to escort the limbs and for identifica tion. Abdul Khaliq of village Gulial informed me that Habib injured was alive and was admitted in PIMS Islamabad (under objection). I inspected the place of occurrence in presence of the witnesses. During my spot inspection, Muhammad Yousaf SI PW informed me that Rasheed injured of this occurrence expired in DHQ hospital Rawalpindi (under objection). I collected blood from the seat of the car where Abdul Rehman deceased was injured with the help of cotton swabs through recovery memo Ex. PRRRR and sealed it into parcel. I secured blood from the place of injury of Majeed Shah deceased through recovery memo Ex.PSSSS and sealed it into the parcel. Blood from the place of injury of Liaquat deceased was taken into possession through recovery memo Ex.PTTIT and was sealed into parcel. Blood from place of injury of Fida deceased was taken into possession through recovery memo Ex.PUUUU and was sealed into parcel. Blood from the place of injury of Moula Bakhsh deceased was taken into possession through recovery memo Ex.PVVV and sealed into parcel. Blood from place of injury of Rasheed deceased was taken into possession through recovery memo Ex.FWWWW and was sealed into parcel. Blood was secured from the place where right leg of suicide attacker was found. It was taken into possession through recovery memo Ex.PXXXX and was sealed into parcel. A partly damaged hand grenade P-70 was recovered from the place of occurrence which was taken into possession through recovery memo Ex.PYYYY and was sealed into parcel. Two tubes containing mercury Ex.PV 71/I-2 and wires were recovered from the place o occurrence through recovery memo Ex.PVVVVV and sealed into parcel.125 pellets were recovered from the place of occurrence which were taken into possession through recovery Ex.PZZZZ and sealed into parcel P72. 17 small pieces of iron were recovered from the place of occurrence through recovery memo Ex. PAAAAA and sealed into parcel P73. Some Burnt wires were recovered from spot through recovery memo Ex.PCCCCC and sealed into parcel P74. Cars No. IDF 8083, 9239 LEG, Land Cruiser No. 591 IDN and land cruiser No. 9347 STB were taken into possession through recovery memo Ex. PDDDDD, PEEEEE, PFFFFF and PGGGGG. Broken parts etc of the vehicles were taken into possession through recovery memo Ex.
PHHHH. They are in the shape of Bundle P75. Blood stained torne cloths of the suicide attacker including collar P1 of his shirt having sticker of Arif Tailor Attack City were recovered from the spot and were taken into possession through recovery memo Ex.PJJJJJ. I prepared site plans without scale, Ex. PHHHHHHH of the place of occurrence in which marginal notes are in my hand. It is signed by me. Muhammad Haneef draftsman inspected the place of occurrence in my presence and in presence of the witness and took rough notes on our pointation. He prepared site plan Ex.PQQQQ and Ex. PQQQQ/1, and handed over the same to me on 4.8.2004. I gave marginal notes in red ink, in the said site plan. I prepared recovery memo Ex. PQQQQ/3. After P.M examination of Abdul Rehman deceased, Mubashir Ahmed constable brought p.m. repot and last worn clothes of the deceased alongwith two sealed phials which were taken into possession through recovery memo Ex.P SSS. After post mortem of the remains of the dead body of the suicide attacker , Abdul Rehman constable brought p.m reports alongwith a 'pancha'of shalwar P-76, remains of dead body . I took the same into possession through recovery memo Ex.PRRR.
Tahir Iqbal photographer took photo graphs of different poses of the head of the suicide attacker . He prepared photographs P2/1-3, P3/1-2, P4/1-2 and produced the same to me which were taken into possession through recovery memo Ex. PAAAAAAA. I handed over two arms and two legs of Suicide attacker to Abdul Rehman constable for taking them to Municipal Committee for burrial. The head of suicide attacker was sent to civil hospital Fateh Jang through Waheed Akhtar and Javed Iqbal constables for safe custody and identification (under objection). I went to civil hospital Fateh Jang, Ghulam Abbas constable met me in the Civil Hospital. He produced before me p.m. report alongwith signed shirt P7 and shlwar P8 of Moula Bakhsh deceased which were taken into possession recovery memo Ex.pE. signed clothes of Liaqat deceased shirt P9, Shalwar P10 and bunyan P11 were produced through recovery memo Ex.PF . Qamiz P12 and Shalwar P13 of Fida Muhammad deceased were produced by him through recovery memo Ex.PG. Ayub constable handed over to me MLRs and applications/injury statements of the injured persons. The said applications were prepared by Nisar Ahmed ASI who had given the same to him (under objection). Muhamma d Arif Tailer PW of Attock City appeared before me. He saw Collar P1 and also0 photographs of the face of suicide attacker P2/1-3, P3/1-2 and P4/1-2. He also saw his register and identified the suicide attacker as Zeeshan for whom he had stitched the clothes, collar of which was Ex.P1. He produced his register P5 before me which was taken into possession through recovery memo Ex.PA. I went to DHQ hospital Rawalpindi, where Nisar ASI met me. He produced before me inquest report and injury statement of Rasheed deceased and injury statements of 14 injured persons and 2 zimnies recorded by Muhammad Yousaf SI of PS Ganjmandi. Nisar Ahmed Injured constable and Sher Khan injured PW produced their MLRs before me. I came back to the P.S. The case property was handed over to the moharrer . I added Sections 147,148,149,149 PPC. I had recorded statements of the witnesses of different events of investigation at relevant time. Nisar Ahmed, Abdul Basit, Abdul Munam sons of Qari Bashir Ahmed, Moulvi Imtiaz, Usman of Pindi Seral, Zeeshan suicide attacker and three unknown persons were found involved in this occurrence in view of the investigation conducted so far.
(under objection). On 1.8.2004 I conducte d raid on the houses of Nisar Ahmed, Abdul Basit and Abdul Munam but they were found absent from their houses. I went to PIMS and from there I sent constable Sultan Ahmed to fetch the head the suicide attacker from civil hospital Fateh Jang and directed him to reach CMH, Rawalpindi and wait for me there. Nisar Ahmed ASI handed over to me injury statements and MLRs of 13 injured persons in PIMS Islamabad. I reached CMH Rawalpindi where Sultan Ahmed constable was present with the head of Zeeshan suicide attacker . The head was placed in CMH for custody and for further identific ation. I went to RGH Rawalpindi where Nisar Ahmed ASI produced before me two injury statements alongwith MLRs. I recorded statements of the relevant witnesses.
On 2.8.2004 Dr. Tariq of Police Dispensary handed over to me a sealed parcel containing material collected from remains of dead body of suicide attacker . I sent it through Bashir SI to Bio Medical Gen, Engg. Division, AQ Khan Laboratory for DNA test. I came to village Awanpur and searched for the accused Nisar , Basit and Munam but they could not be traced. Bashir ASI came back after delivering the parcel in the laboratory and made statement before me. I went to Pindi Seral and searched for the accused Moulvi Imtiaz and Usman but they were not traced. I recorded statement of Iftekhar Hussain Shah PW in chowk Fateh Jang.
On 3.8.2004 Muhammad Akram ASI was deputed to trace the particulars and ownership of motorcycle No. 1323 CHA from Excise Office Chakwal. Iftekha r r/o Tallagang was found owner of the said motorcycle who was traced but he could not be found. (under objection). I obtained print record of mobi link telephone numbers 0300-5204368 from Nasir Rasheed Butt Coordination Manager , Islamabad. The print record is P23/1-5 and it was taken into possession through recovery memo Ex.PBBB. I recorded statements of the witne sses. It was taken on 6.8.2004.
On 8.8.2004 I obtained print record of mobile telephone No. 0300-5140703 from Mobi Link Office Islamabad, The print record is Ex.P24/1-12. The recovery memo is Ex.PWWW . I recorded statements of the witnesses. I went to PS Hazro where I recorded statement of Amir Zaman SI/SHO. I went to Madressa Muhammadia Qasimul Uloom. I took into possession a register from the madressa Ex.P22 through recovery memo Ex.PXXX, Mobile telephone Nos. 0300-5204368, 0300-5140703 and 0300-5564869 and other telephones numbers were written on one page of the said register . I recorded statement of Mehmood Ahmed constable.
On 10.8.2004 I obtained print record of telephone No. 05774 410330 from telephone department. The print record is P25/1-4. Recovery memo is PYYY . I recorded statements of the witnesses.
On 11.8.2004 Muhammad Akram ASI I sent Muhammad Akram ASI to inquire about motorcycle No. 1323 to Tallagang. He informed me that Iftekhar r/o Tallagang had sold the said motorcycle to Iftekhar r/o Drabi who could not be traced.
On 12.8.2004 I obtained print record of mobile telephone No. 0300-5288387 Ex.P68/10-14. Recovery memo Ex.PKKKKK was prepared in this behalf. I also obtained print record of telephone No. 0300-5564869 Ex.P68/1-9 from the concerned office. Recovery memo Ex.PKKKKK pertains to both the record. I recorded statements of the witnesses.
On 17.8.2004 Muhammad Afzal ASI produced before me report of Bomb Disposal Expert. I recorded his statement and Statement of Shah Ferous MHC.
On 19.8.2004 Sultan Ahmed constable and Shah Ferdous MHC were examined by me u/s 161 Cr.P.C. regarding the parcel.
On 29.8.2004 Muhammad Akram ASI made statement before me regarding sale of motorcycle to Javed Aziz by Iftekhar r/oDharabi (under objection). Two photographs were posted at the Notice Board of P.S. Fateh Jang on 15.9.2004 Muhammad Akram ASI identified one photo as that of Irfan of Lahore and other photo of Umer Aqdas.
(under objection). I placed the proclamations on record. Akram ASI had identified the photo of Irfan of Lahore as of the suicide attacker . (under objection).
On 19.9.2004 I recorded statement of Khalil ur Rehman Security Sub Inspector . On 20.9.2004 Muhammad Akram ASI was sent to the residence of Irfan of Lahore whose house was found locked. I sent Akram ASI again on 24.9.2004 for verification of correct address of suicide attacker , and for collecting report regarding his parents. I recorded statement of Muhammad Yasin PW on 26.9.2004. The same day Mukhtar Ahmed father of suicide attacker and his mother Mst. Ameena Bibi appeared before me. They identified their son Muhammad Irfan after seeing the photograph of suicide attacker . On 27.9.2004 Dr. Tariq of Police Hospital Rawalpindi obtained blood of the parents of suicide attacker and sealed them into two separate parcels which were handed over to me. I sent them to AQ Khan Laboratory Islamabad thorugh Muhammad Bashir SI for DNA test. The SI came back after delivering the parcels and I recorded his statement. I obtained warrants of arrest of the accused Nisar Ahmed Abdul Masit, Abdul Munam, Moulvi Imtiaz and Usman who had absconded. The application is Ex.PIIIIIII. The warrants of Nisar is Ex.PJJJJJJJ. Warrants Abdul Basit Ex.PKKKKKKK, warrant of Abdul Munam is Ex.PLLLLLLL, the warrant of Moulvi Imtiaz is Ex.PMMMMMMM and warrant of Usman is Ex.PNNNNNNN. They had absconded after the occurrence. I returned the warrants to the court with my reports on their backs and made statement in the court.
The reports are Ex.PJJJJJJJ/1 to PNNNNNNN/1.
On 11.10.2004 I submitted application for getting proclamation of the said accus ed, and obtained proclamations which were handed over to Sher Baz Constable. I recorded statement of Javed Aziz of Nara on 1.10.2004. He produced before me motorcycle No. CHA 1323 alongwith its registration book and photo copy of sale receipt which were taken into possession through recovery memo Ex.PZZZ. Registration book is Ex.P26 and photocopy of sale receipt is Ex.P27. I recorded statements of the recovery witnesses. I handed over the case property to the moharrer after reaching P.S. The same day Muhammad Bashir SI brought report regarding DNA test which was placed on record. I added Section 109 PPC in view of the material collected during the investigation. On 12.10.2004 Muhammad Ramzan and Nazir informed about the death of Muhamm ad Bashir in PIMS Islamabad.
(Under objection). They produced death certificate which was placed on record. I submitted application on 30.10.2004 to the court for recording statements of Javed Aziz, Muhammad Arif, Muhammad Yasin u/s 164 Cr.P.C.
After their statements I obtained copies of the same which were placed on record. The application is Ex.PH. (the court time is almost over. The statement of the witness is fairly lengthy . Even the examination in chief cannot be concluded today . To come up on 14.9.2005.
Dated: 8.9.2005 PW49 Riaz Hussain xxxxxxxxxx Examination continued.
I have heard my previous statement.
On 11.11.2004 Nisar Ahmed, Abdul Basit, Abdul Munam, Moulvi Imtiaz and Usman again said their proclamations were obtained earlier which were returned by process server to the court on the said date. I recorded his statement u/s 161 Cr.PC. I obtained warrants of arrest of Qari Ahmed Khan, Moulvi Muhammad Siddique, Noor Badshah and Muhammad Suleman alias Zuhair accused who had absconded after the occurre nce. They were not traceable. I returned their warrants to the court on 22.11.2004, with my reports and obtained their proclamations after making statement in the court. I entrusted the proclamations to Sher Bahadar constable for posting. Sher Bahadar returned the proclamations with his report on 22.12.2004 to the court. I recorded his state ment u/s 161 Cr.PC. I recorded statement of Mukhtar PW on 17.1.2005. On 18.1.2005 I took up nakabandi near Uniuon Council Gulial on the basis of secret information. I was accompanied by my staff. At 5 a.m. the accused Nisar Ahmed, Abdul Basit and Munam whose names transpired later on came from the side of village Gagan. I called them but they tried to run away . I apprehended them with the help of my staff. A bandolier was hanging with the right shoulder of Abdul Munam accused. The bandolier is Ex.P57. Pistol P54 was recovered from it. Five rounds Ex.P55/1-5 were recovered from the pistol. Nine rounds P56/1-9 were recovered from the bandolier/belt. The same were taken into possession through recovery memo Ex.PKKKK. He could not produce any licence due to which I prepared separate complaint against him u/s 13/20/65 (AO).
Basit accused was having a belt around his waist which is P60. It was taken into possession. Loaded pistol P58 containing six live rounds P59/1-6 was recovered from the belt. Five more rounds live were recovered from the belt which are P60/1-6. The same were taken into possession through recovery memo Ex.PLLLLL. He could not produce any licence for the said arms and ammunition and I rafted separate complaint against him u/s 13.20.65 (A.O). An amount of Rs. 530/- was recovered from the personal search of Basit accused. An amount of Rs. 715/-, mobile phone No. 0300-5288387 Ex.P66 were recovered from the personal search of Abdul Munam accused which were taken into possession through recovery memo Ex.PNNNN (under objection). The mobile had a sim, P66/1.
Licenced pistol P61 alongwith licence P62, amount of Rs.70/- Will deed regarding Jehad P64/2 were recovered from Nisar Ahmed accused which were taken into possession through recovery memo Ex.PMMMM. I separately investied (sic) the cases u/s 13.20.65 (A). I also prepared the site plans of the places of the recoveries. Ex.PLLLL/A is the site plan of place of recovery of Abdul Basit, Ex.PKKKK/A is the site plan of place of recovery of Abdul Munam. I recorded statements of recovery witnesses. I directed the accused to muffle their faces telling them that they had to be joined in identification parade. The accused muffled their faces accordingly . They were produced before Illaqa Magistrate at Fateh Jang. He directed us to produce them in this court saying that he was not having jurisdiction. I accordingly produced them in this court the same and obtained their judicial remand. They were sent to judicial lock up Attock Jail as their identification parade was to be held. On 19.1.2005 I submitted application Ex.PL to Sessions Judge Attock for deputing some Magistrate for the identificati on parade. The application was marked to Mr. Ikramullah Khan Niazi, Special Judicial Magistrate. The Magistrate directed to produce the witnesses on 24.01.2005. Identification parade was held in Attock Jail. I obtained its copy. On 28.1.2005 Mukhtar father of Muhammad Irfan alias Zeeshan suicide attacker was shown the head of the attacker in CMH Rawalpindi. He identified it as his son's head. He submitted application Ex.PQQQQQQQ (under objection) on which my report was obtained. I appended report Ex.PQQQQQQQ/A on this application. The court directed to hand over the head to him at which I handed over the head to him against a receipt. I have brought this receipt today which is Ex.
PQQQQQQQ/B (objection to ). On 1.2.2005 I obtained physical remand of the accused Nisar Ahmed, Abdul Basit and Abdul Munam. They were kept in the lock up of PS City Attock. On 2.2.2005 at 5/5.15 a.m. I accompanied by SHO PS Hazro took up nakabandi at bank of river Sind in the area of village Haroon on the basis of secret information that the accused Qari Ahmed, Moulvi Siddiqu and Noor Badshah would pass from there for going to village Haroon (objection to as in admissible). We were accompanied by our staff. The said three accused came from the side of river Sind at about 6 a.m. and they were apprehended. On the personal search of Qari Ahmed Khan accused currency notes P28/1-4 and a tasbih Ex.P29, were recovered which were taken into possession through recovery memo Ex.PAAAA. An amount of Rs. 130/- in the shape of currency notes P30/1-4 and Soorat Yaseen P31 were recovered from Moulv i Siddique accused which were taken into possession through recovery memo Ex.PBBBB. An amount of Rs. 195/- in the shape of currency notes P32/1-7, a white cap P33 were recovered from Noor Badshah accused which were taken into possession through recovery memo Ex.PCCCC. I recorded the statements of recovery witnesses who had attested the memos. The said accused were produced in the court and their physical remand was obtained. They were kept in the lock up of P.S Fateh Jang. On 5.2.2005 Qari Ahmed Khan accused made disclosure during interrogation and lead us to his house in village Haroon. He got recovered a bag P43, tooth paste P44, brush P45, comb P46, his shalwar qamis P48/1-2 and cassette P59 from a box lying in a room of his house. He had opened the lock of the box with a key. The lock P50 and key P51 were also taken into possession. Recovery memo Ex.PGGG G was prepared which was signed by the witnesses. Noor Badshah accused made disclosure and lead us to his house in village Haroon and got recovered a pair of clothes P52/1-2 from an almirah of a room of his house. The clothes were taken into posse ssion through recovery memo Ex.PHHHH, attested by the witnesses. I recorded statements of the recovery witnesses. The video cassette recovered from Qari Ahmed Khan accused was checked and played on a V.C.R. I saw in it that Irfan alias Zeeshan and Sultan Sikandar alias Zubair (PO) were placing belts on their bodies after making speaches against Mr. Shouket Aziz and the Rulers (Objection to on the ground that contents of the cassette cannot be proved through oral evidence). I sealed the cassette into parcel. I handed over all the case property to the moharrer . (The case was taken up today late due to occupation of the learned Senior Counsels in a reference held on the demise of a senior member of the bar namely Malik Muhammad Nawaz advocate. The learned counsel for the accused Nisar Ahmed etc has to go to School to bring children. It is 2.20 p.m. Adjourned the case 7.10.2005 on his request. The witness to appear on that date).
Dated: 4.10.2005.
22.10.2005 Riaz Hussain Inspector(continued) on Oath..........
(I have heard my previous statement.).
On 06.02.2005 Basit accused who was on physical remand disclosed during investigation in P.S. Attock City that he could lead to the recovery of explosive belt from his house which was given to him by Sultan Sikandar alias Obaid PO (latter portion under objection). He accordingly lead us to his house in village Awanpur , to his residential room. An iron chest was lying alongwith Western wall of the room. The kunda of the chest was broken and a carton was found in it. The accused got recovered explosive best in two parts Ex.P14/1-2 from the said carton. Two leads P15/1-2 and murcurry switch P16, were also recovered from the carton. I placed the same them in the same carton and sealed them and took them into poss ession through recovery memo Ex.PTTT . I prepared separate complaint against Abdul Basit accused u/s 4/5 Explosives Act and sent it to the P .S. for registration of the case.
The same day Abdul Munam accused who was also on physical remand disclosed during interrogation in PS City Attock that he could lead to recovery of hand grenade which was kept by him in his house in village Awanpur which was given to him by Sultan Sikandar alias Obaid PO. (Latter portion under objection). He accordingly lead us to his house in village Awanpur , to his residential house. There was an almirah in South Eastern corner of the room. It was locked. He uprooted its kunda. A hand grenade P17 was got recovered by Abdul Munam accused which was in black shopper lying in a cart on which was placed in the lower shelf of the almira h. The hand grenade was put in the same shopper and carton which was sealed into parcel. I took it into poss ession through recovery memo Ex.PUUU. The recovery memos were attested by the witnesses. I prepared separate complaint against Abdul Munam u/s 4/5 Explosives Act and got a case registered against him in this behalf. The cases under Explosives Act were separately investigated. I inspected the places of recoveries and prepared site plans Ex.PTTT/1 and PUUU/1 with marginal notes. I recorded the statements of recovery witnesses. I handed over the case property to the Moharrer .
On 9.2.2005 I recorded statements of Muhammad Afzal ASI and Gharib Nawaz Moharrer HC.
On 10.2.2005 Muhammad Afzal ASI brought report of Bomb Disposal Expert before me which was placed on record. On 16.2.2005 I recorded statement of Malik Muhammad Aslam u/s 161 Cr.PC. The same day I arrested Muhammad Suleman alias Zuhair accused. On his personal search at the time of his arrest, amount of Rs. 95/- in the shape of currency notes P36/1-6, a diary P35 containing telephone numbers, mobile telephone P36, Sim No. 0300-5568869, P37 were recovered from him which were taken into possession through recovery memo Ex.PDDDD. I recorded statements of the witnesses. The case property was handed over to the Moharrer the same day. On 17.2.2005 the accused Suleman alias Zuhair was produced in the court for judicial remand. He showed his willingness to the court for making confessional statement, I submitted application Ex.PJ for recording his statement which was marked to the Illaqa Judicial Magistrate Fateh Jang. His statement was recorded the same day copy of which was obtained by me. The Illaqa Magistrate handed over the accused to Sher Ali ASI I/C of Judicial guard Fateh Jang for taking him to District Jail Attock. I prepared incomplete challan on 23.2.2005 and submitted in the court. I arrested Qari Muhammad Suleman accused on 9.3.2005. On his personal search an amount of Rs.103/- in the shape of currency notes P38 and two coins P39 and P-40 were recovered from him which were taken into possession through recovery memo Ex. PEEEE. I recorded statements of the witnesses.
The property of Jam-e-tala-shi was handed over to the Moharrer . On 13.3.2005 Qari Muhammad Suleman accused during physical remand made disclosure and lead us to his house in village Shakardara from where he got recovered a mat P42 and a blanket P41 which were lying on the shade of the wall of his room (Marhani). The same were taken into possession through recov ery memo Ex. PFFFF . I recorded statements of recovery witnesses. The case property was handed over to the Moharrer . I prepared site plan of the place of recovery Ex. PFFFF/1 after spot inspection. Supplementary challaned was, submitted against him on 15.3.2 005. On 19.3.2005 I submitted application Ex.PRRRRRRR for getting warrant of arrest of Matiur Rehman etc who had absconded after the occurrence. The warrants of Nazeer alias Osama and Matiur Rehman alias Abdul Samand etc were handed over to Muhammad Akram ASI. The warrant of Qari Muhammad Yasin alias Aslam was entrusted to Khan Badshah SI. The warrant of Muhammad Idrees alias Ratta Moulvi was handed over to Muhammad Arshad ASI. The warrant of Qari Abdul Majid was handed over to Muhammad Afzal ASI. The warrant of Sultan Sikandar alias Obaid was entrusted to Muhammad Sher SI. The said accused were not traceable. Their warrants were returned to the court and statements of the Process Servers were recorded. I submitted application on 22.3.2005 for getting their proclaimations. I entrusted proclamation s of Nazeer alias Osama and Matiur Rehman alias Abdul Samad to Muhammad Akram ASI. Proclamation of Qari Muhammad Yasin alias Aslam was handed over to Irshadullah constable. The proclamation of Sultan Sikandar alias Obaid was entrusted to Mulazim Hussain constable and that of Idrees to Asad Mehmoob constable. The proclamation of Qari Abdul Majid accused was handed over to Muhammad Afzal ASI. I submitted challan against the POs u/s 512 Cr.PC on 27.3.2005 after recording the statements of process servers. The father of Nisar Ahmed, Abdul Basit and Abdul Munam accused filed writ petition in order to save his sons from punishme nt u/s 21 L ATA 1997 due to their absconsion, which was subsequently with-drawn by him. I completed investigation and submitted challan. (At this stage the witness took out some papers from his file. The learned SPP has asked from the witness what he wants to produce. The learned defence counsel states that this is objectable and this objection be brought on record. It is very insignificant that asking of learned SPP from the witness what he was producing be noted but it has been brought on record on the insisting of learned defence counsel.) I had obtained print of call record of Mobi Link Telephone No. 0300-5288387 of Abdul Munam accused (under objection). His name was incorrectly recorded as Abdul Manan in the print record Ex.P68/10 to 14. We obtained the original record from NADRA regarding his ID card number . I produce letter Ex.PSSSSSSS, print record Ex. PTTTTTTT in this behalf. (under objection on the ground that the documents are not signed by the witness nor he is their scribe and they cannot be produced at this stage and they have been brought today .). A contact No. 05775/212322 was found in the print record P68/10 to 14 I have obtained attested copy of calls record of that telephone number from PTCL and have brought it today which is Ex.PUUUUUUU (under objection on the same ground and on the ground that these papers have been fictitiously prepared after cross examination of other witnesses)."
4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellants namely Qari Ahmed Khan, Moulvi Muhammad Siddique, Noor Badshah, Muhammad Suleman alias Zohair , Nisar Ahmad, Abdul Basit and Abdul Monim along with their co-accused namely Qari Muhammad Suleman son of Muhammad Azam (since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 06.04.2005, to which the accused pleaded not guilty and claimed trial. The co-accused of the appellants namely Moulvi Muhammad Imtiaz, Muhammad Usman, Nazir Ahmed alias Osama, Mati- ur-Rehman alias Abdul Samad, Nazir alias Osama, Qari Zafar alias Qari Abdul Majeed Muhammad Yaseen alias Hakeem Aslam, Sultan Sikander alias Obaid and Idrees alias Ratta Mouvi were declared as proclaimed offenders. (Subsequently , Moulvi Muhammad Imtiaz, Muhammad Usman and Nazir Ahmed alias Osama were arrested, tried and acquitted by the learned trial court vide judgment dated 12.05.2009).
5. The prosecution in order to prove its case got recorded statements of as many as forty-nine witnesses. The prosecution produced various witnesses to establish the charge of criminal consp iracy against the appellants and their presence at the spot with the suicid e bomber at the place of occurrence. Muhammad Yaseen (PW-2) stated that on 26.09.2004, the appellants name ly Abdul Monim, Muhammad Suleman alias Zohair appellants and one Molvi Muhammad Imtiaz (then a proclaim ed offender however subsequently arrested, tried and acquitted by the learned trial court vide judgment dated 12.05.2009) confessed to having conspire d to eliminate Mr. Shaukat Aziz albeit without success. Mukhtar (PW-3) stated that on 16.01.2005 Abdul Monim, Abdul Basit, Muhammad Suleman alias Zohair and one Molvi Muhammad Imtiaz (then a proclaimed offender however subsequently arrested, tried and acquitted by the learned trial court vide judgment dated 12.05.2009) confessed to having conspired to eliminate Mr. Shaukat Aziz albeit without success. Javed Aziz (PW-4) was declared hostile by the learned Special Public Prosecutor . Muhammad Aslam (PW-5) stated that on 16.02.2005 Muhammad Suleman alias Zohair (appellant) confessed to having conspired to eliminate Mr. Shaukat Aziz. Aslam Pervez (PW-6) stated that on 30.07.2004 he saw Abdul Monim, Nisar Ahmad and Abdul Basit (appellants) along with Molvi Muhammad Imtiaz and Muhammad Usman (then proclaimed offenders however subsequently arrested, tried and acquitted by the learned trial court vide judgment dated 12.05.2009) coming out of the house of Qari Bashir while in the company of four unknown persons. Iftikhar Hussain Shah (PW-14), Khalid Mehmood S.I. (PW-15), Madad Khan (PW-16), Muhammad Aslam A.S.I. (PW-25) and Muhammad Akram A.S.I. (PW-26) stated that they had seen Abdul Basit, Nisar Ahmad, Abdul Monim and Muhammad Suleman alias Zohair , (appellants) at the place of occurrence in the company of the suicide bomber identified as Irfan alias Zeeshan. Mehmood Ahmad 229/HC (PW-27), Muhammad Afzal, A.S.I. (PW-28) and Muhammad Bashir S.I. (PW-29) gave evidence conc erning the recovery of different articles from the appellants. Ameer Zaman S.I. (PW-48) stated that on 23.07.2004 he had seen Qari Ahmad Khan, Molvi Muhammad Siddique, Noor Badshah and Muhammad Suleman alias Zohair (appellants) present along with the suicide bombers in a room of Madrassah Qasim ul Uloom in village Haroon. Shah Firdous 748/HC (PW-7) recorded the formal FIR (Exh. PC/1) on 30.07.2004. Riaz Hussain, Inspector (PW-49) investigated the case from 30.07.2004 till 27.03.2005 and detailed the facts of his investigation in his statement before the learned trial court.
6. The prosecution also got Dr. Muhammad Shoaib Bhatti (PW-21), Dr. Arshad Mehmood (PW-22), Dr. Irfan Khilji (PW-37), Dr. Shahid Iqbal (PW-38), Dr. Muhammad Shakeel Ahmad (PW-41) and Dr. Tariq Iqbal (PW-43) examined. Dr. Muhammad Shoaib Bhatti (PW-21) conducted the post mortem examination of the dead body of the Abdul Rehman deceased. Dr. Arshad Mehmood (PW-22) conducted the post mortem examination of the dead bodies of the Liaquat Khan (deceased), Majid Shah, (deceased), Moula Bakhsh (deceased), Fida Muhammad (deceased) and of the suicide bomber later identified as Irfan alias Zeeshan. Dr. Arshad Mehmood (PW-22) also examined the injured namely Khalid Mehmood S.I. (PW-15), Ghairat Khan, Muhammad Aksar , Muhammad Ahsan, Muhammad Waheed, Muhammad Dawood, Madad Khan, (PW-16), Sardar Mumtaz Khan, Dost Muhammad, Qaisar Hayat, Anwar Khan, Syed Kama l Hussain, Muhammad Riaz Khan, Jamshed Khan, Muhammad Sher, Ghulam Muhammad, Muhammad Asghar , constable, Faiz and Khursheed Ahmad, Inspector . Dr. Irfan Khilji (PW- 37) conducted the post mortem examinat ion of the dead body of Rasheed Muhammad (deceased) and medically examined the injured namely Abdul Rashid, Karam Khan, Muhammad Ashraf, Nazim Hussain, Abdul Hameed, Ghulam Mustafa, Jehangir , Maskeen, Liaquat Ali, Muhammad Waqas, Safarash Khan, Nawab, Sikandar , Nisar Ahmad and Sher Khan. Dr. Shahid Iqbal (PW-38) medically examined the injure d namely Abdul Ghafoor Afridi, Muhammad Riaz, Mazhar Aziz, Bashir Khan, Amir Khan, Asif Iqbal, Muhammad Sajjad, Mehboob, Asif Khan, Arif Khan (PW-18), Habib Khan and Muhammad Ali. Dr. Muhammad Shakeel Ahmad (PW-41) medically examined the injured Abdul Ghafoor and Muhammad Altaf. Dr. Tariq Iqbal (PW-43) stated that Muhammad Bashir died of his wounds on 06.10.2004.
7. The learned Special Public Prosecutor gave up the remaining prosecution witnesses and closed the prosecution evidence on 15.12.2005 after tendering in evidence the reports of the Chemical Examiner to Government of Punjab, Lahore (Exh.P AAAAAAA to Exh. PGGGGGGG), the reports of the serologist (Exh.PHHHHHHH to Exh.
PNNNNNNN) and the report of Dr.A.Q Khan, Research Laboratories, Islamabad (Exh. POOOOOOO) establishing the parentage of the suicide bomber namely Irfan alias Zeeshan.
8. After the closure of prosecution evidence, the learned trial court
9. examined the appellants namely Qari Ahmed Khan, Moulvi Muhammad Siddique, Noor Badshah, Muhammad Suleman alias Zohair , Nisar Ahmad, Abdul Basit and Abdul Monim under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, the appellants namely Qari Ahmed Khan, Moulvi Muhammad Siddique, Noor Badshah , Muhammad Suleman alias Zohair , Nisar Ahmad, Abdul Basit and Abdul Monim replied that they were innocent and had been falsely involved in the case due to suspicion.
The appellants namely Qari Ahmed Khan, Moulvi Muhammad Siddique, Noor Badshah, Muhammad Suleman alias Zohair , Nisar Ahmad, Abdul Basit and Abdul Monim further stated that they had not committed any offence and had no connection whatsoever with the suicide bomber namely Irfan alias Zeeshan. The appellants namely Qari Ahmed Khan, Moulvi Muhammad Siddique, Noor Badshah, Muhammad Suleman alias Zohair , Nisar Ahmad, Abdul Basit and Abdul Monim opted not to get themselves examined under section 340(2) Cr.P.C, however , got Muhammad Ishaq (DW -1), Basharat Ali (DW -2) and Abdul W aheed (DW -3) examined in their defence.
9. On the conclusion of the trial, the learned Judge Special Court II, Anti-T errorism, Rawalpindi convicted and sentenced the appellants as referred to above.
10. The contention of the learned counsels for the appellants precisely is that the whole case is fabricated and false. The learned counsels for the appellants submitted that the prosecution rema ined unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsels for the appellants further contended that the statements of prosecution witnesses were not worthy of any reliance. The learned counsels for the appellants also submitted that the appellants had no connection with the suicide bomber .
The learned counsels for the appellants also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake procee dings. The learned counsels for the appellants finally submitted that the prosecution has totally failed to prove the case against the appellants beyond the shadow of a doubt.
11. On the other hand, the learned Deputy Prosecutor General contended that the prosecution has proved its case beyond the shadow of any uncertainty by producing independent witnesses. The learned Deputy Prosecutor General further argued that the appellants conspired to murder Mr. Shaukat Aziz and due to the suicide bomber blasting himself, seven people lost their lives whereas forty-seven persons receiv ed injuries. The learned Deputy Prosecutor General further argued that the recoveries from the appellants also corroborated the prosecution account. The learned Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses to substitute the real offenders with the innocent in this case. Lastly , the learned Deputy Prosecutor General prayed for the rejection of appeals.
12. We have heard the learned counsels for the appellants, the learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial.
13. After consideration of contentions raised by learned counsel for the respective parties and scanning the evidence, it is pertinent that in the instant matter the prosecution produced various witnesses to establish the charge of criminal conspiracy against the appellants and their presence at the spot with the suicide bomber at the place of occurrence. We propose to deal with the statements of the witnesses regarding the various aspect of the prosecution evidence separately . Firstly , we shall examine the statement of Muhammad Yaseen (PW-2) who stated that on 26.09.2004, the appellants namely Abdul Monim, Muhammad Suleman alias Zohair and one Molvi Muhammad Imtiaz (then a proclaimed offender however subsequently arrested, tried and acquitted by the learned trial court vide judgment dated 12.05.20 09) confessed to having conspired to eliminate Mr. Shaukat Aziz albeit without success. This witness admittedly made dishonest and blatant improvemen ts to his previous statement and was duly confronted with the same. Muhammad Yaseen (PW-2) in his statement before the learned trial court stated that Muhammad Suleman alias Zohair made the same confession and repeated the same in the same words as was done by his co-accused Abdul Monim, the appellant and their co-accused namely Molvi Muhammad Imtiaz (then a proclaimed offender however subsequently arrested, tried and acquitted by the learned trial court vide judgment dated 12.05.2009), however when Muhammad Yasin (PW-2) was confronted with his statement recorded by the learned Magistrate under section 164 of the Code of Criminal Procedure, 1898 it was revealed that he had made a dishonest improvement to his statement in this regard. During the cross examination of Muhammad Yaseen (PW-2) the learned trial court observed that in the statement of Muhammad Yaseen (PW-2)
(Exh.DB) it had not been recorded that the appellant namely Muhammad Suleman alias Zohari and one Molvi Muhammad Imtiaz (then a proclaimed offender however subsequently arrested, tried and acquitted by the learned trial court vide judgment dated 12.05.2009) also confessed their guilt, one after the other . During the cross- examination of Muhammad Yaseen (PW -2), the learned trial court recorded as under:- "I stated before the Magistrate that the other two namely Suleman and Moulvi Imtiaz narrated the same attrance
(sic) one after the other . (not so recorded in Ex.DB)."
Muhammad Yaseen (PW-2) made the above mentioned improvement to his statement knowing fully well that a joint confession has no evidentiary value and the same is inadmissible and irrelevant. In order to portray the confession of the appellants as being separate, the witness made the above mentioned improvements. This reason alone is sufficient to cull his statement from consideration. To compound the matters further Muhammad Yaseen (PW-2) also made improvements in his previous statement with regard to his identity of the appellants prior to the making of their above mentioned confession. Muhammad Yaseen (PW-2) stated before the learned trial court that he knew the accused previously , however , was also confronted with this portion of his statement and it was brought on record that it was not stated by him in his statement recorded by the learned Magistrate (Exh.DB) that he knew the confessing accused previously . The august Supreme Court of Pakistan in the cases of "Muhammad Ashraf Vs. State" (2012 SCMR 419), "Muhammad Mansha Vs. The State" (2018 SCMR 772) and "Muhammad Arif Vs. The State" (2019 SCMR 631) took serious notice of the improvements introduced by witnesses and rejected their evidence. We have also noted with concern that Muhammad Yaseen (PW-2) stated that he met the appellants namely Abdul Monim and Suleman alias Zohair per chance and the said appellants found it necessary to confess their guilt during the said chance encounter . This narrative of Muhammad Yaseen (PW-2) is not only unbelievable but also absurd. No reason has been mentioned by Muhammad Yaseen (PW-2) as to why the appellants namely Muhammad Suleman alias Zohair and Abdul Monim would have confessed their guilt before him when neither he was a confidant of theirs nor a person of any importance having the capacity to procure any benefit for the said confessing appellant. Muhammad Yaseen (PW-2) admitted during cross-examination that neither he was a Nazim nor a councillor nor a chairman of any committee which could have persuaded the appellants namely Muhammad Suleman alias Zohair and Abdul Monim to have confessed their guilt being impressed by his position in the society .
Muhammad Yaseen (PW-2) further stated during cross-examination that the whole conversation took place while standing on a road and thereafter the accused proceeded towards the jungle. Riaz Hussain, Inspector (PW-49, the Investigating Officer of the case, during cross-examination, admitted that Muhammad Yaseen (PW-2) did not show him the place where he had the chance meeting with the appellants namely Abdul Monim and Muhammad Suleman alias Zohair and the place where the said appellants namely Abdul Monim and Muhammad Suleman alias Zohair confessed to their guilt. In this manner , the assertions of Muhammad Yaseen (PW-2) with regard to the alleged confession of both the appellants namely Abdul Monim and Muhammad Suleman alias Zohair remained not proved. Muhammad Yaseen (PW-2) admitted that he did not make any attempt to inform the police authority with regard to the said conversation or made any effort to get the confessing accused arrested. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. V . Hodge, (1938) 2 Lewin 227) where he said: "The mind was apt to take a pleasure in adapting circumstances to one another , and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
Furthermore, one finds it hard to understand as to why the appellants namely Abdul Monim and Muhammad Suleman alias Zohair would confess when apparently , they were under no compulsion to oblige the prosecution which was clueless about the circumstances of the occurrence. These peculiar facts speak volumes regarding the lack of veracity in the statement adduced by Muhammad Yaseen (PW-2) and the prosecution failed miserably to prove that Muhammad Yaseen (PW-2) could be believed despite his evidence narrating an unusual behaviour on the part of the witness as well as the accused and the same was even otherwise contrary to the normal human behaviour . To make confession in order to give outlet to one's burden on mind and conscience is possible, however , one does this only before a strong and close confidant. In the instant case, the position of the witness Muhammad Yaseen (PW-2), before whom the alleged extra-judicial confession was made, was such that he barely knew the accused before the alleged confession and Muhammad Yaseen (PW-2) was neither a close confidant of the accused in any manner nor said to be sharing any habit or association with the accused. Furthermore, Muhammad Yaseen (PW-2) also admittedly was neither a councillor nor holding any position of importance which could have entailed in him the capacity to procure any favour for the appellants namely Abdul Monim and Muhammad Suleman alias Zohair and any such status, which in turn could have struck the said appellants as being such that Muhammad Yaseen (PW-2) could procure any service for them. Both the possibilities of confessing the crime, for the purpose of boasting and ventilating or for gaining any advantage, in the circumstances are excluded from consideration. Furthermor e, the Investigating Officer of the case, during the investigation, did not visit the place where the appellants namely Abdul Monim and Muhammad Suleman alias Zohair had allegedly confessed their guilt to Muhammad Yaseen (PW-2). Additionally , Riaz Hussain, Inspector (PW-49), the Investigating Officer of the case, admitted during cross-examination that he did not obtain the warrants of arrest of the appellant namely Muhammad Salman alias Zohair till 11.11.2004 despite the fact that it was asserted by Muhammad Yaseen (PW-2) that Muhammad Suleman alias Zohair (appellant) had confessed to his guilt on 26.09.2004 and Muhammad Yaseen (PW-2) had got recorded his statement under section 164 of the Code of Criminal Procedure, 1898 on 30.10.2004. In these eventualities, the story introduc ed by Muhammad Yaseen (PW- 2) about the extra-judicial confession of the appellants namely Abdul Monim and Muhammad Suleman alias Zohair seems improbable. Even otherwise, extra-judicial confession is a very weak type of evidence and the same obviously needs impartial and strong corroboration from other independent sources which is missing in this case.
The evidentiary value of the extra-judicial confession came up for consideration before august Supreme Court of Pakistan in the case of "Sajid Mumtaz and others v. Basharat and others" (2006 SCMR 231), wherein, at page 238, the Apex Court of Pakistan observed as under:- "17. This Court and its predecessor Court (Federal Court) have elaborately laid down the law regarding extra- judicial confessions staring from Ahmed v. The Crown PLD 1951 FC 103-107 up to the latest. Extra judicial confession has always been taken with a pinch of salt. In Ahmed v. The Crown , it was observed that in this country (as a whole) extra-judicial confession must be received with utmost caution. Further , it was observed from time to time, that before acting upon a retracted extra-judicial confession, the Court must inquire into all material points and surrounding circumstances to "satisfy itself fully that confession cannot but be true". As, an extra-judicial confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction.
18. It has been further held that the status of the person before whom the extra-judicial confession is made must be kept in view, that joint confession cannot be sued against either of them and that it is always a weak type of evidence which can easily be procured whenever direct evidence is not available. Exercise of utmost care and caution has always been the rule prescribed by this Court.
19. It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the background of a human conduct.
20. Why a person guilty of offence entailing capital punishment should at all confess. There could be a few motivating factors like: (i) to boast off (ii) to ventilate the suffocating conscience and (iii) to seek help when actually trapped by investigation. Boasting off is very rare in such-like heinous offences where fear dominates and always done before an extreme confident as well as the one who shares close secrets. To make confession in order to give vent to ones pressure on mind and conscience is another aspect of the same psyche. One gives vent to ones feelings and one removes catharses only before a strong and close confident. In the instant case the position of the witnesses before whom extra-judicial confession is made is such that they are neither the close confident of the accused nor in any manner said to be sharing any habit or association with the accused. Both the possibilities of boasting and ventilating in the circumstances are excluded from consideration.
21. Another most important and natural purpose of making extra-judicial confession is to seek help from a third person. Help is sought firstly , when a person is sufficiently trapped and secondly , from one who is authoritative, socially or officially.......
22. As observed by the Federal Court, we would reiterate especially referring to this part of the country , that extra- judicial confessions have almost become a norm when the prosecution cannot otherwise succeed. Rather , it may be observed with concern as well as with regret that when the Investigating Office r fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confessions. Such confessions by now, have become the signs of incompetent investigation. A judicial mind, before relying upon such weak type of evidence, capable of being effortlessly procured must ask a few questions like why the accused should at all confess; what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship or friendship of the witnesse s with the maker of confession and what, above all is the position or authority held by the witness".
In the case of "Mst. Asia Bibi v. The State and other s" (PLD 2019 Supreme Court 64) wherein, the august Supreme Court of Pakistan was pleased to observe as under:- "In this regard it is to be noted that this Court has repeatedly held that evidence of extra-judicial confession is a fragile piece of evidence and utmost care and caution has to be exercised in placin g reliance on such a confession.
It is always looked at with doubt and suspicion due to the ease with which it may be concocted. The legal worth of the extra judicial confession is almost equal to naught, keeping in view the natural course of events, human behaviour , conduct and probabilities, in ordinary course. It could be taken as corroborative of the charge if it, in the first instance, rings true and then finds support from other evidence of unimpeachable character . If the other evidence lacks such attribute, it has to be excluded from consideration. Reliance in this behalf may be made to the cases of Nasir Javaid v. State (2016 SCMR 1144), Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274), Imran alias Dully v. The State (2015 SCMR 155), Hamid Nadeem v. The State (2011 SCMR 1233 ), Muhammad Aslam v. Sabir Hussain (2009 SCMR 985), Sajid Mumtaz and others v. Basharat and others (2006 SCMR 231), Ziaul Rehman v. The State (2000 SCMR 528) and Sarfraz Khan v. The State and 2 others ( 1996 SCMR 188 )."
Keeping in view the guidelines given by august Supreme Court of Pakistan in the above mentioned judgments, we palpably discard the evidence of extra-judicial confession manufactured by the prosecution to strengthen its case against the appellants namely Abdul Monim and Muhammad Suleman alias Zohair . This part of the evidence is nothing but a tailored story , which was arranged with the help of the Investigating Agency thus, it is of no legal worth and being absolutely unreliable, is excluded from consideration.
14. The prosecution also got Mukhtar (PW-3) examined who stated that on 16.01.2005 at about 7.00 p.m Abdul Monim, Abdul Basit, Muhammad Suleman alias Zohair (appellants) and Molvi Muhammad Imtiaz (then a proclaimed offender however subsequently arrested, tried and acquitted by the learned trial court vide judgment dated 12.05.2009) came to his house and confessed to having conspired to eliminate Mr. Shaukat Aziz albeit without success. This witness namely Mukhtar (PW-3) also admitted that he was not related to any of the deceased or the injured and in this manner did not hold any sway over the witnesses or the legal heirs of the deceased to obtain any favour for the confessing appellants namely Abdul Monim, Abdul Basit, Muhammad Suleman alias Zohair . In this manner , Mukhtar (PW-3) failed to furnish any justification for the appellants namely Abdul Monim, Abdul Basit, Muhammad Suleman alias Zohair to have come to his house and confessed to their guilt when Mukhtar (PW-3) was a man of no importa nce. Furthermore, Mukhtar (PW-3) was the resident of village Taja Bara and during cross-examination was confronted with the fact that he had not told the police regarding his previous relationship or even the fact that he knew the accused previously , who allegedly came to his house and confessed their guilt. Mukhtar (PW -3) also admitted during cross-examination as under:- "The accused never visited my house in routine in the past."
Mukhtar (PW-3) also admitted during cross-examination that he did not report the matter to the police on the next day despite the fact that according to him the appellants namely Abdul Monim, Abdul Basit and Muhammad Suleman alias Zohair had come to his house, confessed their crimes and told him that they would be returning on the next day so that they could be arrested. Mukhtar (PW-3) was so nave so as to believe that the appellants would be returning on the next day and for this reason he made no effort to apprehend them when they had confessed to the commission of such heinous crimes. Mukhtar (PW-3) also did not report the matter of confession of the appellants to the police on the said day so that if the accused returned on the next day, they could be arrested. Mukhtar (PW-3) made no effort to apprehend the confessing accused at the time when they were present in his company and admittedly not armed with any weapon which could have preve nted their detention by Mukhtar Ahmad (PW-3). According to Mukhtar (PW-3), the confessing accused namely Abdul Monim, Abdul Basit and Muhammad Suleman alias Zohair were ready to surrender on the day when they were allegedly confessing their guilt, however , despite the said claimed readiness of the confessing accused namely Abdul Monim, Abdul Basit and Muhammad Suleman alias Zohair to surrender , Mukhtar (PW-3) made no effort in this regard on the day of their meeting. This conduct of Mukhtar (PW-3) was not normal in the circumstances. Furthermore, Mukhtar (PW-3), by his own admission, did not report the matter to the police till the next day and this delay is also indicative of the fact that he had made a false statement. Abdul Monim, Abdul Basit and Muhammad Suleman alias Zohair (appellants) had no reason to confess when apparently , they were under no compulsion to oblige the prosecution which was clueless about the circumstances of the occurrence. These peculiar facts speak volumes regarding the absence of truth in the statement of Mukhtar (PW-3) and also shows his unusual behaviour and the same was even otherwise contrary to normal human conduct. As mentioned above, to make confession in order to give an outlet to one's burden on mind and conscience is possible, however , one does this only before a strong and close confidant. In the instant case, the position of the witness Mukhtar (PW-3), before whom the alleged extra-judicial confession was made, was such that he barely knew the accused before the alleged confession and Mukhtar (PW-3) was neither a close confidant of the accused in any manner or said to be sharing any habit or association with the accused.
Furthermore, Mukhtar (PW-3) also admittedly was neither a councillor nor holding any position of importance which could have entailed in him the capacity to procure any favour for the appellants namely Abdul Monim, Abdul Basit and Muhammad Suleman alias Zohair and any such status, which in turn could have struck the said appellants as being such that Mukhtar (PW-3) could procure any benefit for them. Both the possibilities of confessing the crime, for the purpose of boasting and ventilating or for obtaining any advantage, in the circumstances are excluded from consideration. Furthermore, the Investiga ting Officer of the case, during the investigation, did not visit the place where the appellants namely Abdul Monim, Abdul Basit and Muhammad Suleman alias Zohair had allegedly confessed their guilt to Mukhtar Ahmad (PW-3). The narrative of Mukhtar (PW-3) about the extra-judicial confession of the appellants namely Abdul Monim, Abdul Basit and Muhammad Suleman alias Zohair is improbable and unbelievable. In view of the above discussion, the statement of Mukhtar Ahmad (PW-3) is also culled from consideration.
15. The prosecution also got Muhammad Aslam (PW-5) examined who stated that on 16.02.2005 the appellant namely Muhammad Suleman alias Zohair came to his Darbar and made a detailed confession. A perusal of the statement of Muhammad Aslam (PW-5) reveals that the alleged extra-judicial confession is so detailed and comprehensive that it covers almost every aspect of the prosecution case; it is, in fact, an encyclopedia of the prosecution case. A man under the stress of compunction of his conscience is not supposed to give such minute details that too on the assurance of help. We have also noted with great disquiet that according to Muhammad Aslam (PW-5), the appellant namely Muhammad Suleman alias Zohair was taken to the house of one Muhammad Afzal, DSP Fateh Jang from where he was subsequently arrested, however , Riaz Hussain, Inspector (PW-49), the Investigating Officer of the case, admitted during cross-examination that he did not record the statement of the said Muhammad Afzal, DSP Fateh Jang, during the investigation of the case, from whose house the appellant namely Muhammad Suleman alias Zohair was arrested. Riaz Hussain, Inspector (PW-49) further admitted during cross- examination that the said Muhammad Afzal DSP Fateh Jang also did not sign any recovery memo of the personal search of the appellant namely Muhammad Suleman alias Zohair prepared at the time of his arrest. The said Muhammad Afzal, DSP, Fateh Jang also did not appear before the learned trial court so as to prove that the appellant namely Muhammad Suleman alias Zohair was actually taken to his house by Muhammad Aslam (PW-5) and from there he was subsequently arrested. Muhammad Aslam (PW-5) was also confronted with his previous statement (Exh.DD) wherein the time and the place of the production of the appellant namely Muhammad Suleman alias Zohair as being the house of the said Muhammad Afzal, DSP, Fateh Jang, was not mentioned. Another aspect of the evidence of Muhammad Aslam (PW-5) is that he was of Shia sect whereas the appellant namely Muhammad Suleman alias Zohair was a Sunni (follower of the Deobandi movement) and in this manner no reason existed with the appellant namely Muham mad Suleman alias Zohair to have confessed his crime to Muhammad Aslam (PW-5), when the appellant namely Muhammad Suleman alias Zohair , being a follower of the Deobandi movement, would have had a necessary religious disagreement. To confess in order vent one's burden on mind and conscience is possible, however , one does this only before a strong and close confidant. In the instant case, the position of the witness Muhammad Aslam (PW-5), before whom the alleged extra-judicial confession was made, was such that he barely knew the accused before the alleged confession and Muhammad Aslam (PW-5) was neither a close confidant of the accused in any manner or said to be sharing any habit or association with the accused. Muhammad Aslam (PW-5) during cross-examination also admitted that he did not hold any position of importance which would have struck the appellant namely Muhammad Suleman alias Zohair as being important enough to have confessed his crime before Muhammad Aslam (PW-5), whereas the evidence suggests otherwise that the said witness could not offer any benefit to the appellant. Muhammad Aslam (PW-5) also admitted during the cross-examination that prior to 16.02.2005 he did not know as to who were the accused of this occurrence and he also did not know as to whether Muhammad Afzal, DSP, Fateh Jang knew about the accused involved in the occurrence. Muhammad Suleman alias Zohair (appellant) had no reason to confess when apparently , he was under no compulsion to oblige the prosecution, which by then was clueless about the circumstances of the occurrence and the involvement of Muhammad Suleman alias Zohair (appellant). Muhammad Aslam (PW-5) also stated during cross-examination that the appellant namely Muhammad Suleman alias Zohair remained with him for a period of about 1 1/2 hour and his younger son served them tea, however , state d that he did not call any of his relatives, who were residing at the said Darbar , to hear and witness the conversation of the appellant. Muhammad Aslam (PW-5) also admitted during cross-examination that he did not state before the police that how and in what manner he knew the appellant prior to the occurrence. Furthermore, Muhammad Aslam (PW-5) also admitted during cross-examination as under:- "I am not councillor . Volunteered that I contused elections for councillor seat. I am not member of Zakat and Ushr Committee. I was once member of a political party but nowa-days I am not member of any political party .
I was not member of any political party on 16.2.2005. I was once member of a religious party but I was not member of any religious party on 16.2.2005. I am not regular member of any social welfare organization."
Muhammad Aslam (PW-5) was also confronted with his previous statement (Exh.DD) wherein it had been recorded that the appellant namely Muhammad Suleman alias Zohair had confessed to his guilt on the providing of assurance to him that he will not be killed in a fake police encounter . Article 37 of the Qanun-e-Shahadat 1984 provides as under:- "37. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding . A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him."
In this manner , the alleged extra-judicial confession of the appellant namely Muhammad Suleman alias Zohair is also not relevant as it had been procured after a promise had been made by Muhammad Aslam (PW-5) that the appellant shall not be killed in a fake police encounter . The learned trial court observed that the said making of promise to the appellant by the witness was recorded in the previous statement (EXh.DD) of Muhammad Aslam (PW-5) .We have also noted that Muhammad Aslam (PW-5) also made blatant and dishonest improvement in his previous statement (Exh.DD) and was duly confronted with the same. As mention ed above, the august Supreme Court of Pakistan in the cases of "Muhammad Ashraf Vs. State" (2012 SCMR 419), "Muhammad Mansha Vs. The State" (2018 SCMR 772) and Muhammad Arif Vs. The State (2019 SCMR 631) took a serious notice of the improvements introduced by witnesses and rejected their evidence. Sir Alfred Wills in his book "An Essay on the Principles of Circumstantial Evidence" (pages 173 to 190 of the Fifth American, from the Fourth London Edition published in 1872) lays down the following rules specially to be observed while appreciating evidence: "RULE 1.--The facts alleged as the basis of any legal inference must be clearly proved, and indubitably connected with the factum probandum.
RULE 2. The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability RULE 3.-- In all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits .
RULE 4.- In order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.
RULE 5.-- If there be any reasonable doubt of the guilt of the accused, he is entitled, as of right, to be acquitted."
Undoubtedly , suspicion, however grave it may be, can never be treated as a substitute for proof. We are of the considered view that Muhammad Aslam (PW-5) made a false statement with regard to the alleged confession of Muhammad Suleman alias Zohair (appellant) and miserably failed to prove the same.
16. The learned Deputy Prosecutor General has laid much stress on the statement of Muhammad Iqbal Harel, Magistrate (PW-17) who stated that on 17.02.2005 he recorded the statement of the appellant namely Muhammad Suleman alias Zohair (Exh. PK) under section 164 of the Code of Criminal Procedure, 1898, who confessed having committed the offences and the said confession, though retracted, was alone sufficient to convict the appellant namely Muhammad Suleman alias Zohair and had to be considered as circumsta ntial evidence against the other appellants by virtue of the provision of Article 43 of Qanun-e-Shahadat, 1984. Chapter 13 of Volume III of the High Court Rules and Orders provides guidelines for recording the judicial confession of any accused by a Magistrate and provides as under:- "CHAPTER 13 CONFESSIONS AND ST ATEMENTS OF ACCUSED PERSONS Statements of accused at various stages explained.--The provisions of sections 164, 342 and 364 of the Criminal Procedure Code with regard to the confessions and statements of accused persons should be carefully studied.
Section 164 deals with the recording of statements and confessions at any stage before the commencement of an enquiry or trial. Section 342 deals with the examination of accused persons during the course of the enquiry or trial.
Section 364 prescribes the manner in which the examination of an accused person is to be recorded.
2. Use of confession of accused during Police trial recorded by Magistrate.-- The object of Section 164, Criminal Procedure Code, is to provide a method of securing a reliable record of statements or confessions made during the course of the Police investigation, which could be used, if necessary , during the enquiry or trial. Under Article 38 of the Qanun-e-Shahadat, 1984, a confession to a Police Officer is in-ad missible in evidence, and hence when an accused person confesses during the Police investigation, the Police frequently get it recorded by a Magistrate under section 164, Criminal Procedure Code, 1898, and it can then be used to the extent to which it may be admissible under the Qanun-e-Shahadat, 1984.
3. Presumption attached to confessions recorded by Magistrate and its evidential value. Safeguards provided in law to obtain a voluntary and precisely recorded confession.--Under Article 91 of the Qanun-e-Shahadat 1984, a Court is bound to presume that a statement or confession of an accused person, taken in accordance with law and purporting to be signed by any Judge or Magistrate, is genuine, and that the certificate or note as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such statement or confession was duly taken. The words "taken accordance with law" occurring in this section are very important and it is essential that in recor ding a statement or confession under section 164, the provision of that section shall be strictly followed. The evidential value of a confession depends upon its voluntary character and the precision with which it is reproduced and hence the section provides safeguards to secure this end. These safeguards are of great importance, as confessions are often retracted at a later stage and it becomes necessary for the court to ascertain whether the alleged confession was actually and voluntarily made. The mere fact that a confession is retracted does not render it inadmissible in evidence, but the Court has to scrutinize any such confession with the utmost care and accept it with the greatest caution. Experience and common sense in fact show that in the absence of some materi al corroboration it is not safe to convict merely on a retracted confession, unless from the peculiar circumstances under which it was made and judging from the reasons, alleged or apparent, of retraction, there remains a high degree of certainty that the confession, notwithstanding its having been resiled from, is genuine.
4. Important features of Section 164, Crim inal Procedure Code.-- Some important features of section 164 are:-
(a) Statements or confessions made in the course of an investigation can be recorded only by a Magistrate of the first class or of the second class who has been specially empowered by the Provincial Government.
(b)Confessions must be recorded and signed in the manner provided in section 364.
(c) Before recording any such confession the Magistrate shall explain to the person making it that he is not bound to make a confession, and that if he does so it may be used in evidence against him.
(d) No Magistrate shall record any such confession unless upon questioning the person making it he has reason to believe that it was made voluntarily , failure to question has been held to vitiate the confession.
(e) The memorandum set forth in section 164 (3) must be appended at the foot of the record of the confession.
(f) It is not necessary that the Magistrate receiving or recording a confession or statement should be Magistrate having jurisdiction in the case.
(g) Any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity of cross-examining the witness making the statement. [See Sub-Section (1-A) of Section 164 Cr.P.C.]
5. Form prescribed for recording confessions.-- For recording confessions taken under section 164 of the code the following form shall be used:- RECORD OF CONFESSION MADE BY AN ACCUSED PERSON (Section 164 of the Code of Criminal Procedure) ------Division In the Court of ---------- THE ST ATE, Versus The confession of------ taken by me-------, a Magistrate of the---------- District, this------ day of------ 19.
Memorandum of Enquiry (The Magistrate shall first, as required by section 164(3), Code of Criminal Procedure, explain to the accused person that he is not bound to make a confession, and that if he does so, it may be used as evidence against him, and shall then put and record answers to the following questions. If the answers are of such a character as to require him to do so, he should put such further questions as may be necessary to enable him to judge whether the accused person is acting voluntarily . In arriving at his conclusion on this point the Magistrate should consider inter alia the period during which the accused person has been in Police custody and make sure that the confession is not the result of any undue influence or ill-treatment. Special care should be taken when women or children are produced by the Police for their confessions being recorded)
1. Q.--Do you understand that you are not bound to make a confession?
A.
2Q. Do you understand that your statement is being recorded by a Magistrate, and that if you make a confession, it may be used as evidence against you?
A. ------ 3.Q.---How long have you been in police custody?
A. ------ 4.Q. Do you understand that after making a statement before me you will not be remanded to police custody , but will be sent to the judicial lock-up?
A. ----- 5.Q.--Understanding these facts, are you making a statement before me voluntarily?
A. ----- 6.Q--What are your reasons for wishing to make a statement?
A. ------ Statement of accused (Mark or signature of accused). Magistrate.
I have explained to-------that he is not bound to make a confession, and that if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it, and admitted by him to be correct, and it contains a full and true account of the statement made by him.
Dated___________Magistrate.____________
6. Instructions for recording confessions .--Unless there are exceptional reasons to the contrary confessions should be recorded in open Court and during Court hours. Police officers investigating the case should not be present.
7. Accused who has made a confession should not be kept in Police custody , but should be kept in Judicial lock-up separate from other prisoners .--An accused person who had made a confession before a Magistrate should be sent to the judicial lock-up and not made over to the Police after the confession has been recorded. If the Police subsequently require the accused person for the investigation, a written application should be made giving reasons in detail why he is required, and an order obtained from the Magistrate for the purpose of making a confession, has declined to make a confession or has made a statement which is unsatisfactory from the point of view of the prosecution he should not be remanded to Police custody .
7-A.When remanding to the lock-up an accused person who has made a confession, the Magistrate shall record an order for him to be kept separate from other prisoners as far as may be practicable."
We have examined the statement of Muhammad Iqbal Heral, Magistrate (PW-17) , who recorded the confession of the appellant namely Muhammad Suleman alias Zohair on 17.02.2005 and find that he did not follow the instructions of this Court as well as the august Supreme Court of Pakistan while recording the said statement (Exh.PK) of the appellant. Muhammad Iqbal Heral, Judicial Magistrate, (PW-17) was conscious of the flaws, errors, illegalities and omissions he had made while recording the statement (Exh. PK) of the appellant namely Muhammad Suleman alias Zohair on 17.02.2005 and therefore, while appearing before the learned trial court, made dishonest and blatant improvements, however , was duly confronted. Muhammad Iqbal Heral, Judicial Magistrate, (PW-17) during cross-examination stated that he had recorded each and every necessary detail of the proceedings conducted by him on 17.02.2 005 with regard to the recording of the statement of the appellant namely Muhammad Suleman alias Zohair . Muhammad Iqbal Heral, Judicial Magistrate, (PW-17) admitted during cross- examination that the removal of hand cuffs was an important aspect while recording the confession of any accused, however the removal of the same was not mentioned in the proceedings recorded by him. Muhammad Iqbal Heral, Judicial Magistrate, (PW-17) also admitted during cross-examination that he did not mention in the application (Exh.PJ) or anywhere in the proceedings conducted by him that the hand cuffs of the accused were removed before recording the statement of the accused . Muhammad Iqbal Heral, Judicial Magistrate, (PW-17) also admitted during cross-examination that the question regarding the assurance to the appellant namely Muhammad Suleman alias Zohair that he shall not be handed over to the police, irrespective of the fact whether he got recorded his statement or not, was also not mentioned in the proceedings dated 17.02.2005. Muhammad Iqbal Heral, Judicial Magistrate, (PW -17) during cross-examination further admitted as under:- "It is correct that I did not specifically mention in my proceedings that I put question to the accused and told him that he would be sent to judicial lock up if he made statement or even if he did not make statement.
This question is not mention in these words anywhere in my proceedings"
Muhammad Iqbal Heral, Judicial Magistrate, (PW-17) also admitted during cross-examination that he did not ask the appellant as to whether he was making the said statement on the promise of him being made an approver . We have also noted that Riaz Hussain, Inspector (PW-49), the Investigating Officer of the case, stated during cross- examination that the appellant namely Muhammad Suleman alias Zohair did not tell him that he wanted to make a statement under section 164 of the Code of Criminal Procedure, 1898 till his presentation before the court with an application for his judicial remand. We have also noted that the appellant namely Muhammad Suleman alias Zohair actually did refuse to become an approver in the case and this fact was admi tted by the witnesses who had appeared before the learned trial court in order to state that they had no objectio n to Muhammad Suleman alias Zohair (appellant) becoming an approver in the case. Riaz Hussain, Inspector (PW-49), the Investigating Officer of the case, during cross-examination, admitted as under:- "Proceedings remained pending in this court for making Muhammad Suleman alias Zohair as approver . It is incorrect that I tortured him and his other relatives including his brothers and uncle for getting his consent to become approver . The statements of almo st all injured witnesses and legal heirs of the deceased were recorded in the court regarding the said proceeding. None out of the injured witnesses including police officials appeared before me to make statements against Muhammad Suleman alias Zohair accused during the period when proceeding were pending in this court regarding making him approver in this case."
Similarly , Madad Khan (PW-16) during cross-examination stated that on 03.03.2005 he made a statement before the learned trial court that he had no objection if Muhammad Suleman alias Zohair (appellant) became an approver and also admitted that subsequently , Muhammad Suleman alias Zohair (appellant) refused to become an approver .
Khalid Mehmood S.I. (PW-15) admitted during cross-examination that he appeared before the learned trial court to make a statement that he had no objection if the appellant namely Muhammad Suleman alias Zohair was made an approver and also stated that on the said day the appellant namely Muhammad Suleman alias Zohair was in police custody . Iftikhar Hussain Shah (PW-14) also stated during cross-examination that the police was trying to make Muhammad Suleman alias Zohair an approver in the case. Iftikhar Hussain Shah (PW-14) in his cross-examination stated as under:- "I learnt that police tried to make Suleman alias Zohair an approver in this case. Volunteer that I had come to the court to give consent in this regard."
In this manner , it is proved on record that the statement of Muhammad Suleman alias Zohair (appellant) (Exh. PK) was procured after he was promised that he would be accorded the status of an approver . Muhammad Iqbal Heral, Judicial Magistrate, (PW -17) also admitted during cross-examination as under:- "I did not mention anywhere in my proce edings the time when the accused was produced before me or the time when I put him preliminary questions or the time when he again appeared before me after thinking over and the time when I recorded his statement. I did not mention in my proceedings that time of 30/45 minutes was given to the accused to think over,. I mean that I did not mention the duration of time of thinking over. I did not mention in my proceedings that the accused was made to sit in the court and he stood up and came to me after half an hour or quarter to an hour. Volunteered that I did not deem it proper to give this detail in the proceedings. I did not mention in my proceedings that I repeated the previous questions to the accused and he came to me after thinking of 30/45 minutes. I did not mention in my proceedings that I was fully satisfied that the accused was giving statement voluntarily and without any fear of promise before recording his statement."
This portion of cross-examination of Muhammad Iqbal Heral, Judicial Magistrate, (PW-17) clearly establishes that he failed to follow the directions of this court as well as the august Supreme Court of Pakistan while recording the statement of Muhammad Suleman alias Zohair (appellant). Another very important and crucial question which was to be asked by Muhammad Iqbal Heral, Judicial Magistrate, (PW-17) from the confessing accused prior to recording his statement was the date since when he was under arrest , however , the said question was also not asked from the accused before recording his statement.
Muhammad Iqbal Heral, Judicial Magistrate, (PW-17) also admitted that his signatu res or the thumb impressions of the accused were not present on pages No.2,3,4 and 5 of the statement of the accused (Exh. PK). The test whether the confession was admissible in evidence as having been recorded according to law and being true and voluntary was considered in the case Mst. SAID BEGUM versus THE STATE (PLD 1958 (W.P.) Lah. 559) and it was observed by this Court as follows:- "9. The same objection applies to another point raised on behalf of the appellant as to whether the Magistrate ha d questioned the accused to satisfy himself if she was making a voluntary confession. The Magistrate has admitted that no such question were put by him at the stage of the recording of the confession, although he had put some questions earlier when she had been produced before him. The subsection clearly prohibits 'the Magistrate to record a confession, unless by questioning the prisoner , he is satisfied that it is being made voluntarily . It must be a real endeavour on the part of the Magistra te to find out in the confession is being made voluntarily . We do not think that the purpose is really achieved by putting the set questions as given in the printed forms prescribed for recording a confession. In the form given in Chapter 13 of Volume III of the High Court Rules and Orders, the following note is given for the guidance of the Magistrates:- .
"The Magistrate shall first, as required by section 164 (3), Code of Criminal Procedure, explain to the accused person that he is not bound to make a confession, and that if he does so, it may be used as evidence against-him, and shall then put and record answers to the following questions. If the answers are of such a character as to require him to do so, he should put such further questions as may be necessary to enable him to judge whether the accused. person is acting voluntarily . , In arriving at his conclusion on this point the Magistrate should consider inter alia the period during which the accused person has been in police custody and make sure that the confession is not the result of any undue influence or ill-treatment.. Special care should be taken when women or children are produced by the police for their confessions being recorded."
This necessarily implies that besides putting the set questions the Magistrate is required to make a real endeavour to find out the voluntary nature of the confession. It goes without saying that it is a solemn duty which should be performed with great care and caution, and not mechanically .
10. In the present case it appears that no questions were put to the accused to find out the period during which she remained with the police. Even this question was not put as to whether she was making the confession under any threat, promise or inducement. We think that the Magistrate will be well advised to adopt the following procedure in this connection. As soon as a person is produced before a Magistrate for gettin g his confession recorded, his handcuffs should be removed and all the police officers shall be turned out of the Court room, arid he should be informed that he was before a Magistrate and that whether he made an statement or not, he will not be handed back to the police, but will be sent to the judicial lock up. He should then be given sufficient time to ponder over the matter . Then he should be warned that he was not bound to make any statement and if h did so, it may be used as evidence against him and then the following questions should be put to him:-
(1) For how long have you been with the police?
(2) Has any pressure been brought to bear upon you to make a confession?
(3) Have you been threatened to make a confession?
(4) Has any inducement been given to you?
(5) Have you been told that you will be made an approver?
(6) Why are you making this confession?
Then if the Magistrate is satisfied that the prisoner is making the confession voluntarily , he should put the set questions; as given in the printed form and then record the confession. The job is, no doubt, thankless and somewhat tedious, but it must be remembered that on it depends the fate of the prisoner . It is well known that it is only in cases where the prosecution feels, its helplessness in procuring legal evidence against a culprit that he is produced before a Magistrate for getting a confession recorded. It is very rare, that a culprit is produced before a Magistrate for getting the confession recorded, when the evidence for the prosecution is otherwise strong. As such, a greater duty is cast upon a Magistrate recording a confession, to be satisfied that such a confession is voluntarily made, and to that end he must conscientiously devote his inquiry before recording the confession. "
Similarly , the august Supreme Court of Pakistan in the case of AZEEM KHAN and another Vs. MUJAHID KHAN and others ( 2016 SCMR 274 ) had enunciated the following principles of law:- "15. Keeping in view the High Court Rules, laying down a binding procedure for taking required precautions and observing the requirements of the provision of section 364 read with section 164, Cr.P.C. by now it has become a trite law that before recording confession and that too in crimes entailing capital punishment, the Recording Magistrate has to essentially observe all these mandatory precautions. The funda mental logic behind the same is that, all signs of fear inculcated by the Investigating Agency in the mind of the accused are to be shedded out and he is to be provided full assurance that in case he is not guilty or is not making a confession voluntarily then in that case, he would not be handed over back to the police. Thereafter , sufficient time for reflection is to be given after the first warning is administered. At the expiry of that time, Recording Magistrate has to administer the second warning and the accused shall be assured that now he was in the safe hands. All police officials whether in uniform or otherwise, including Naib Court attached to the Court must be kept outside the Court and beyond the view of the accused. After observing all these legal requirements if the accused person is willing to confess, then all required questions formulated by the High Court Rules should be put to him and the answers given, be recorded in the words spoken by him. The statement of accused be recorded by the Magistrate with his own hand and in case there is a genuine compelling reason then, a special note is to be given that the same was dictated to a responsible official of the Court like Stenographer or Reader and oath shall also be administer ed to such official that he would correctly type or write the true and correct version, the accused stated and dictated by the Magistrate. In case, the accused is illiterate, the confession he makes, if recorded in another language i.e. Urdu or English then, after its completion, the same be read-over and explained to him in the language, the accused fully understand and thereafter a certificate, as required unde r section 364, Cr.P.C. with regard to these proceedings be given by the Magistrate under his seal and signatures and the accused shall be sent to jail on judicial remand and during this process at no occasion he shall be handed over to any police official/officer whether he is Naib Court wearing police uniform, or any other police official/officer , because such careless dispensation would considerably diminish the voluntary nature of the confession, made by the accused.
16. In the instant case, the Recording Magistrate namely , Ch. Taufiq Ahmed did not observe least precautions, required under the law. He was so careless that the confessions of both the appellants were recorded on oath, grossly violating the law, the same, therefore, has rendered the confession inadmissible which cannot be safely relied upon keeping in view the principle of safe administration of justice.
17. The Recording Magistrate committed successive illegalities one after the other as after recording the confessions of the appellants on oath, both were handed over to the same police officer, who had produced them in the Court in handcuffs. This fact bespeaks volumes that the Recording Magistrate was either not knowing the law on the subject or he was acting in the police way desired by it, compromising his judicial, obligations. This careless attitude of the Magistrate provided prem ium to the Investigating Agency beca use it was thereafter , that the recoveries of the so-called incriminating articles were made at the instance of the appellants, detail of which is mentioned above.
18. In our considered view, the confessions of both the appellants for the above reasons are of no legal worth, to be relied upon and are excluded from consideration, more so, when these were retracted at the trial. Confessions of this nature, which were retracted by the appellants, cannot mutually corroborate each other on the principle that one tainted evidence cannot corroborate the other tainted piece of evidence. Similar view was taken by this Court in the case of Muhammad Bakhsh v. The State (PLD 1956 SC 420), while in the case of Khuda Bux v. The Crown (1969 SCMR 390) the confession made, was held not voluntary because the accused in that case was remanded back to the police after making confession."
Likewise, the august Supreme Court of Pakistan in the case of INTEKHAB AHMAD ABBASI and others Versus The ST ATE and others ( 2018 SCMR 495 ) had enunciated the following principles of law:- "21. We are constrained to re-emphasize that this sacred judicial obligation must be performed in a strict judicial manner observing all safeguards and precautions as laid down in the High Court Rules and Orders. Printed proforma containing questionnaire is not to be used because it amounts to filling the blanks and is not in accord with the requirements of law and rules. In view of the changing trend of investigation, particularly in sensitive cases and keeping in view the phenomenon of forced disappearance of people and because in some cases the accused are not kept in the lock up of the notified police station therefore, the following additional questions may be put to accused person, when a situation of this nature arises, which is as follows:-
(i) When and by whom you were arrested and from which place?
(ii) Where you were kept during custody by the police/investigating agency?
(iii) Whether previously you were produced before any other Magistrate for recording confession and you had refused to confess?"
As mentioned above, Muhammad Iqbal Heral, Judicial Magistrate, (PW-17) failed to observe any of the directions of this Court as well as of the august Supreme Court of Pakistan while recording the statement (Exh. PK). More worryingly , Muhammad Iqbal Heral, Judicial Magistrate, (PW-17), while appearing before the learned trial court, made improvements to bring his statemen t in line with the correct procedure to be followed and by making the said improvements, impeached his credit. In our considered view, the confession of the appellant namely Muhammad Suleman alias Zohair (Exh. PK), for the above reasons is of no legal worth and is excluded from consideration, more so, when the same was retracted at the trial.
17. We have also examined the statement of Aslam Pervez (PW-6) who stated that on 30.07.2004 at about 5.00 p.m, he saw Abdul Monim, Nisar Ahmad and Abdul Basit (appellants) along with Molvi Muhammad Imtiaz and Muhammad Usman (both then proclaimed offender however subsequently arrested, tried and acquitted by the learned trial court vide judgment dated 12.05.2009) coming out of the house of Qari Bashir while in the company of four unknown persons. We have found that Aslam Pervez (PW-6) failed to prove the correctness of his statement made before the learned trial court. Aslam Pervez (PW-6), while appearing before the learned trial court, had stated that he had seen Abdul Monim, Nisar Ahmad and Abdul Basit (appellants), while he was going to the house of his friend namely Nawaz driver situated at village Awanpur as he had to get money from the said Nawaz driver . Aslam Pervez (PW-6) during cross-examination admitted that he was not the resident of village Awan Pur, which village was at a distance of three miles from his place of residence, nor he had been registered as a voter , resident of the said village . Aslam Pervez (PW-6) further admitted that he had never travelled with Abdul Monim, Nisar Ahmad and Abdul Basit (appellants) nor had served with them anywhere. Aslam Pervez (PW-6) also admitted during cross- examination that he did not mention the reason of knowing the accused in his statement before the police and he was not on visiting terms with any of the accused he had allegedly seen on 30.07.2004. Given his own admission, Aslam Pervez (PW-6) failed to establish that he could have identified the appellants namely Abdul Monim, Nisar Ahmad and Abdul Basit when he himself admitted that he had no previous interaction with them. Aslam Pervez (PW-6) also admitted that he had not shown the Investigating Officer of the case the place where he had seen the appellants on 30.07.2004 and had also not pointed out the place where he himself was present on the said date when he had allegedly seen the accused. Aslam Pervez (PW-6) more importantly admitted during the cross- examination that the said Nawaz driver never met him on 30.07.2004 and till his appearance before the learned trial court he had not obtained the loan from Nawaz driver . Aslam Pervez (PW-6) also admitted during cross- examination that he had not provided any reason, in his statement, for which he needed the money from Nawaz driver . In this manner , Aslam Pervez (PW-6) failed to prove the reason for his visit to the village Awan Pur on 30.07.2004. We have also noted that it was the claim of Aslam Pervez (PW-6) that he had seen Abdul Monim, Nisar Ahmad and Abdul Basit (appellants ) along with Molvi Muhammad Imtiaz and Muhammad Usman (both then proclaimed offender however subsequently arrested, tried and acquitted by the learned trial court vide judgment dated 12.05.2009) coming out of the house of Qari Bashir while in the company of four unknown persons, however Riaz Hussain, Inspector (PW-49), Investigating Officer of the case, admitted during cross-examination that no door of any room of the house of Qari Bashir opened towards the road which could have enabled Aslam Pervez (PW-6), who was present on the road, to have seen the accused coming out of the same. Aslam Pervez (PW-6) failed to prove as to how he could identify the appellants namely Abdul Monim, Nisar Ahmad and Abdul Basit in the said circumstances as mentioned above. Aslam Pervez (PW-6), in his statement before the learned trial court, stated that he could also identify the appellant namely Muhammad Suleman alias Zoha ir as being one of the accused whom he had seen coming out of the house of Qari Bashir . Aslam Pervez (PW-6) admittedly had never named or identified the appellant namely Muhammad Suleman alias Zohair as being one of the accused whom he had seen coming out of the house of Qari Bashir prior to the recording of his statement by the learned trial court.
Furthermore, Riaz Hussain, Inspector (PW-49) also admitted during cross-examination that he had obtained the warrants of arrest of Muhammad Suleman alias Zohair on 11.11.2004 and previous to the said date he had not done so as there was no evidence against Muhammad Suleman alias Zohair till then. In view of the above discussion, we have reached an irresistible inference that Aslam Pervez (PW-6) made a false statement and no reliance could be placed on the same.
18. We have also perused the statements of Iftikhar Hussain Shah (PW-14), Khalid Mehmood S.I. (PW-15), Madad Khan (PW-16), Muhammad Aslam A.S.I. (PW-25) and Muhammad Akram A.S.I. (PW-26) who stated that they had seen Abdul Basit, Nisar Ahmad, Abdul Monim and Muhammad Suleman alias Zohair , (appellants) at the place of occurrence in the company of the suicide bomber identified as Irfan alias Zeeshan prior to the explosion. Out of the said witnesses, Muhammad Aslam A.S.I. (PW-25) and Muhammad Akram A.S.I. (PW-26) took part in the test identification parade proceedings (Exh. PM) held within the premises District Jail, Attock on 24.01.2005 and supervised by Ikram Ullah Khan Niazi, Judicial Magistrate (PW-20) and accordin g to prosecution evidence, they identified the appellants namely Abdul Basit, Nisar Ahmad and Abdul Monim as being present at the place of occurrence in the company of the suicide bomber identified as Irfan alias Zeeshan and their co-accused. We have noticed that the test identification parade proceedings were not conducted as per the law and in violation of the Police Rules, 1934. The August Supreme Court of Pakistan in the case of Mian SOHAIL AHMED and others Vs. The State and others (2019 SCMR 956) has enunciated guiding principles for the appreciation of evidence regarding the test identification parade and the statements of the witnesses participating in the same. We have scrutinized the statements of the two witnesses namely Muhammad Aslam A.S.I. (PW-25) and Muhammad Akram A.S.I. (PW-26), who joined the test identification parade held to establish the identity of the assailants, in light of the said judgment. The August Supreme Court of Pakistan in the case of Mian SOHAIL AHMED and others Vs. The State and others ( 2019 SCMR 956 ) has held as under:- "13. In the late 1960s, the courts around the world , began to set the standard for review ing eyewitness identification evidence. Reliability and credibility of the witness was termed as the linchpin in determining the admissibility of identification testimony .14 US Supreme Court in the case of Manson v Brathwaite , UK Court of Appeal (Criminal Division) in Regina v. Turnbull and Another ,16 New Jersey Supreme Court in State v Madison and Oregon Supreme Court in State v. Classen settled the following factors for assessing the reliability of the witness:
(1) the opportunity of the witness to view the suspect at the time of the crime;
(2) the witness's degree of attention;
(3) the accuracy of the witness's prior description of the suspect;
(4) the level of certainty demonstrated at the confrontation (seeing the accused in court); and
(5) the time between the crime and the confrontation (seeing the accused in court).
It is interesting to note that these factors were drawn from earlier judicial rulings and not from scientific research.
The scientific research refutes the notion that memory is like a video recording, and that a witness needs only to replay the tape to remember what happened. Human memory is far more complex. The memory is a constructive, dynamic, and selective process. The process of remembering consists of three stages: acquisition-"the perception of the original event"; retention-"the period of time that passes between the event and the eventual recollection of a particular piece of information"; and retrieval-the "stage during which a person recalls stored information". The process of memory retention and retrieva l may be affected by a number of factors. The scientific literature divides those variables into two categories: system and estimator variables. System variables are factors like lineup procedures which are within the control of the criminal justice system and in our jurisprudence are referred to as the Test Identification Parade. Whereas Estimator variables are factors related to the witness - like distance, lighting, or stress - over which the legal system has no control. Our courts have marginally attended to this aspect of witness reliability before placing reliance on the identification evidence (see above). The scientific research establishes that the following non-exhaustive list of "estimator variables" negatively affect the memory process:- i. Stress: Even under the best viewing conditions, high levels of stress can diminish an eye-witness' ability to recall and make an accurate identification. It may be noted "while moderate levels of stress improve cognitive processing and might improve accuracy , an eye-witness under high stress is less likely to make a reliable identification of the perpetrator ."12 13 15 17 18 19 20 21 22 23 24 ii. Weapon Focus: When a visible weapon is used during a crime, it can distract a witness and draw his or her attention away from the culprit. "Weapon focus" can thus impair a witness' ability to make a reliable identification and describe what the culprit looks like if the crime is of short duration. iii. Duration: The amount of time an eye-witness has to observe an event may affect the reliability of an identification. There is no minimum time required to make an accurate identification, however , a brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure." iv. Distance and Lighting: A person is easier to recognize when close by, and that clarity decreases with distance.
We also know that poor lighting makes it harder to see well. Thus, greater distance between a witness and a perpetrator and poor lighting conditions can diminish the reliability of an identification. v. Witness Characteristics: Characteristics like a witness' age and level of intoxication can affect the reliability of an identification. Children between the ages of nine and thirteen who view target-absent lineups are more likely to make incorrect identifications than adults. vi. Characteristics of Perpetrator: Disguises and changes in facial features altered between the time of the event and the identification procedure affects the accuracy of an identification. vii. Memory Decay: Memories fade with time and memory decay "is irreversible"; memories never improve. As a result, delays between the commission of a crime and the time an identification is made can affect reliability .
The scientific research referred to above has not only appeared in the peer reviewed journals but also has been considered "credible" by various courts in different jurisdictions. New Jersey Supreme Court in State v.
Henderson observed that "virtually all of the scienti fic evidence" that had emerged in recent decades "reveals that an array of variables can affect and dilute memory and lead to misidentifications." Also see State v . Lawson .
14. The laws of evidence maintain that in order for the court to take judicial notice of scientific facts they must be part of the general knowledge of men or must be agreed upon by reputable men in a particular field of science beyond reasonable dispute. For judges to determine the degree of consensus on a particular scientific fact they may refer to any reputable and recognized reference sources. The House of Lords in Regina (Quintavalle) v.
Secretary of State for Health held that the laws have to be construed in the light of contemporary scientific knowledge and in order to give effect to a plain parliamentary purpose, the statute may be held to cover a scientific development not known when the statute was passed. This Court can take judicial notice of the credible scientific development under Article 112, Qanun-e-Shahadat, 1984. The question is can we shut our eyes to credible scientific research and development, which has already been recognized and acknowledged by the courts in various other jurisdictions. If scientific research can help and assist the court in understanding and appreciating evidence more fully and more meaningfully , the risk of miscarriage of justice stands minimized. Therefore, the courts don't shy away from scientific developments but instead reach out and embrace them. Reliance on scientific research and the factors evolved by science to assess the reliability and credibility of the eye-witness can improve the quality of identification evidence and as a consequence the quality of justice. Our jurisprudence had already travelled in this direction and now credible scientific research by providing us additional factors or "estimator variables" (which are not exhaustive) has provided additional factors to certify the credibility and reliability of the eye-witness and as a result the veracity and probative value of the identification evidence."
The perusal of the proceedings of the test identification parade proceedings (Exh. PM) reveals that the said identification parade of three accused was conducted jointly . It is further recorded in the proceedings of the test identification parade (Exh. PM) that all the three accused were made to sit in one single row along with the dummies at different serial numbers. The perusal of the proceedings of test identification parade (Exh. PM) reveals that there is no mention of either the heights of the other prisoners used as dummies nor the colour of their skin is mentioned. Furthermore, while holding the test identification parade, Ikram Ullah Khan Niazi, Judicial Magistrate (PW-20) failed to observe and mention the description of heights, complexions of their skin and weight of the dummies being used during the test identification parade and of the appellants namely Abdul Basit, Nisar Ahmad and Abdul Monim, who were to be identified, which observations were necessa ry to rule out any possibility of collusion and helping out the witnesses by making the appellants stand out during the test identification parade proceedings. Ikram Ullah Khan Niazi, Judicial Magistrate (PW-20) admitted during cross-examination that the test25 26 27 28 29 30 31 32 33 34 35 36 identification parade held to establish the identity of the appellants namely Abdul Basit, Nisar Ahmad and Abdul Monim was a joint one. Ikram Ullah Khan Niazi, Judicial Magistrate (PW-20) admitted during cross-examination as under:- "It is correct that it was a joint test identification parade of the three accused. All the accused and inmates of the jail were sitting in one curve line."
The August Supreme Court of Pakistan in case of Hakeem and other Vs. The State (2017 SCMR 1546 ) at page 1550 while enunciating the principles of law relating to the identification parade has held as under:- "The proper course is to have separate identification parades for each accused"
The August Supreme Court of Pakistan in case of Kamal Din alias Kamala Vs. The State (2018 SCMR 577) at page 580 held as under:- "Apart from that the test identification parade held in this case was a joint parade wherein two accused persons had been made to stand with dummies in two lines and their identification had taken place simultaneously in one go.
This Court has also clarified in the cases of Lal Pasand v. The State (PLD 1981 SC 142), Ziaullah alias Jaji v.
The State (2008 SCMR 1210 ), Bacha Zab v. The State (2010 SCMR 1189), Sahfqat Mahmud and others v. The State (2011 SCMR 537) and Gulfam and another v. The State (2017 SCMR 1189) that the identification of many accused in one go is not proper besides being unsafe."
Reliance is also placed on the case Crl. Misc. Appln. No.183 of 2019 in Crl.A .No. 259 of 2018 reported as PLJ 2019 SC (Cr.C) 153 wherein the august Supreme Court of Pakistan has issued guidelines in conducting the identification parade and has clearly held that if there are more accused persons than one, separate identification parade should ordinarily be held in respect of each accused person. Hence, because of the abovementioned flaws of the test identification parade proceedings (Exh. PM), we are of the considered view that the identification of the appellants namely Abdul Basit, Nisar Ahmad and Abdul Monim by the witnesses namely Muhammad Aslam A.S.I.
(PW-25) and Muhammad Akram A.S.I. (PW-26) during the said test identification parade proceedings (Exh. PM) was of no evidentiary value and does not prove any fact.
19. We have also noted that none of the witnesses namely Iftikhar Hussain Shah (PW-14), Khalid Mehmood S.I.
(PW-15), Madad Khan (PW-16), Muhammad Aslam A.S.I. (PW-25) and Muhamm ad Akram A.S.I. (PW-26), who stated that they had seen Abdul Basit, Nisar Ahmad, Abdul Monim and Muhammad Suleman alias Zohair , (appellants) at the place of occurrence in the company of the suicide bomber identified as Irfan alias Zeeshan, could prove that they were in a position to do so. Out of the above witnesses, Iftikhar Hussain Shah (PW-14), Khalid Mehmood S.I. (PW-15), and Madad Khan (PW-16) claimed that they knew the appellants namely Abdul Basit, Nisar Ahmad and Abdul Monim prior to the occurrence whereas Muhammad Aslam A.S.I. (PW-25) and Muhammad Akram A.S.I. (PW-26) claimed to had identified the appellants namely Abdul Basit, Nisar Ahmad and Abdul Monim during the test identification parade proceedings. We have already mentioned that the said test identification parade proceedings (Exh. PM) were flawed and of no evidentiary value and did not prove any fact.
Moreover , we have noted with concern that Muhammad Aslam A.S.I. (PW-25) claimed to have seen the appellants namely Abdul Basit, Nisar Ahmad and Abdul Monim while being present with the suicide bomber and one Molvi Muhammad Imtiaz (then a proclaimed offender however subsequently arrested, tried and acquitted by the learned trial court vide judgment dated 12.05.200 9) prior to the explosion near the railway line, however , admitted that he had been deputed on duty within the Jalsa Gah. In this manner , there was no possibility that Muhammad Aslam A.S.I. (PW-25) could have seen the appellants namely Abdul Basit, Nisar Ahmad and Abdul Monim while being present with the suicide bomber and one Molvi Muhammad Imtiaz (then a proclaimed offender however subsequently arrested, tried and acquitted by the learned trial court vide judgment dated 12.05.2009) prior to the explosion near the railway line. Muhammad Hanif, draftsman (PW-32) stated that the distance between the place of explosion and the railway line was as much as 70 feet. Muhammad Aslam A.S.I. (PW-25) repeatedly admitted during cross-examination that he remained within the Jalsa Gah from about 5.15 p.m till even after the explosion.
Muhammad Aslam A.S.I. (PW-25) further admitted during cross-examination that the Jalsa Gah had been covered from all the four sides by use of canvas walls. Muhammad Aslam A.S.I. (PW-25) during cross-examination admitted as under:- "I continued performing duty at the same place inside the Jalsa Gah even after the explosion.
The place where the Minister was received was not visible from inside where espe cially I was present. There were Kanats toward that side"
Muhammad Aslam A.S.I. (PW-25) also claimed that he identified the suicide bomber namely Irfan alias Zeeshan as he had seen him earlier; on 20.07.2004 at the shop of his tailor namely Muhammad Arif (PW-1) when he had gone to the said shop to get his clothes stitched. Muhammad Aslam A.S.I. (PW-25) failed to establish his said claim that on 20.07.2004 he had gone to the shop of Muhammad Arif (PW-1) and admitted during cross-examination that he had not entered his departure in the Register Roznamcha on the said date. Muhammad Aslam A.S.I. (PW-25) also admitted during cross-examination that on the day of occurrence he did not tell Riaz Hussain, Inspector (PW-49), the Investigating Officer of the case and Nisar Ahmad A.S.I. (PW-40), whom he had met at the hospital, that he had identified the suicide bomber at the time of occurrence. Riaz Hussain, Inspector (PW-49), the Investigating Officer of the case also admitted during the cross-examination that the name of the suicide bomber was mentioned as unknown in the notes made by him on the site plan as prepared by Muhammad Hanif draftsman (PW-32) on 04.08.2004. If the witnesses had alrea dy identified the suicide bomber then his identity should have been mentioned by Riaz Hussain, Inspector (PW-49), the Investigating Officer of the case. More importantly , Muhammad Aslam A.S.I. (PW-25) admitted during cross-examination that on the day of occurrence he had not informed Riaz Hussain, Inspector (PW-49), the Investigating Officer of the case and Nisar Ahmad A.S.I. (PW-40) that he had seen the suicide bomber interacting with the accused prior to the occurrence. Why Muhammad Aslam A.S.I. (PW-25) did not tell the Investigating Officer that he had seen the suicide bomber at the shop of the tailor on 20.07.2004 also proves that Muhammad Aslam A.S.I. (PW-25) deposed falsely . Then we have noted that Muhammad Aslam A.S.I.
(PW-25), in his statement before the learned trial court, also stated that he could also identify the appellant namely Muhammad Suleman alias Zohair as being one of the accused who he had seen in the company of the suicide bomber prior to the occurrence. Muhammad Aslam A.S.I. ( PW-25) admittedly had never named or identified the appellant namely Muhammad Suleman alias Zohair as being one of the accused whom he had seen at the place of occurrence in the company of the suicide bomber prior to his statement before the learned trial court. Furthermore, as mentioned above, Riaz Hussain, Inspector (PW-49) also admitted during cross-examination that he had obtained the warrants of arrest of Muhammad Suleman alias Zohair on 11.11.2004 and previous to the said date he had not done so as there was no evidence against Muhammad Suleman alias Zohair (appellant) till then. In this manner , no reliance can be placed on the statement of Muhammad Aslam A.S.I. (PW -25).
20. We have also ascertained that Muhammad Akram A.S.I. (PW-26), the other witness who took part in the test identification parade proceedings (Exh. PM), also failed to establish that he could have identified the appellants namely Abdul Basit, Nisar Ahmad, Abdul Monim and Muhammad Suleman alias Zohair , at the place of occurrence in the company of the suicide bomber identified as Irfan alias Zeeshan. Muhammad Akram A.S.I. (PW-26) admitted during cross-examination that on the day of occurrence he had not told Riaz Hussain, Inspector (PW-49), the Investigating Officer of the case, that he had seen the appellants namely Abdul Basit, Nisar Ahmad, Abdul Monim and Muhammad Suleman alias Zohair , at the place of occurrence in the company of the suicide bomber identified as Irfan alias Zeeshan. Muhammad Akram A.S.I. (PW-26) admitted during cross-examination that Riaz Hussain, Inspector (PW-49) met him prior to his departure to the hospital, however he did not narrate any detail to him regarding him having seen the appella nts namely Abdul Basit, Nisar Ahmad, Abdul Monim and Muhammad Suleman alias Zohair , at the place of occurrence in the company of the suicide bomber identified as Irfan alias Zeeshan. Muhammad Akram A.S.I. (PW-26) also admitted during cross-examination that as many as three thousand people had attended the politic al meeting on the said day i.e the day of occurrence and it would have been impossible for him to have noted the presence of the appellants at a distance of about more than 25/30 yards from the place of his duty. We have also noted with concern that Muhammad Akram A.S.I. (PW-26) did not name the appellant namely Muhammad Suleman alias Zohair as being present on the day of occurrence along with the other co-accused while getting his examination-in-chief recorded on 16.06.2005, however on the proceedings which were recorded by the learned trial court on 23.06.2005, the said Muhammad Akram A.S.I. (PW-26) named the appellant namely Muhammad Suleman alias Zohair as being present on the day of occurrence along with the other co-accused with the suicide bomber , after the learned Special Public Prosecutor started to read out the examination-in-chief of the witness already recorded on 16.06.2005. Muhammad Akram A.S.I. (PW-26) then in his statement before the learned trial court stated that he could identify the appellant namely Muhammad Suleman alias Zohair as being one of the accused who he had seen in the company of the suicide bomber namely Irfan alias Zeeshan before the explosion. Muhammad Akram A.S.I. (PW-26) admittedly had never named or identified the appellant namely Muhammad Suleman alias Zohair as being one of the accused whom he had seen at the place of occurrence in the company of the suicide bomber before his statement was recorded by the learned trial court.
Furthermore, as mentioned above, Riaz Hussain, Inspector (PW-49), the Investigating Officer of the case, also admitted during cross-examination that he had obtained the warrants of arrest of Muhammad Suleman alias Zohair on 11.11.2004 and previous to the said date he had not done so as there was no evidence against Muhammad Suleman alias Zohair till then. For these reasons, we are convinced that the statement of Muhammad Akram A.S.I.
(PW-26) has no value and cannot be used.
21. We have also gone through the statem ent of Khalid Mehmood S.I. (PW-15) who also claimed that on the day of occurrence he had seen the appellants namely Abdul Basit, Nisar Ahmad, Abdul Monim and Muhammad Suleman alias Zohair , at the place of occurrence in the company of the suicide bomber identified as Irfan alias Zeeshan.
Khalid Mehmood S.I. (PW-15) admitted that he had not been posted at the police station having jurisdiction over the place of residence of the appellants namely Abdul Basit, Nisar Ahmad, Abdul Monim and Muhammad Suleman alias Zohair rather admitted that he had been posted at police station Bhattar . Khalid Mehmood S.I. (PW-15) admitted during cross-examination that the village of the accused, whom he claimed to have known prior to the occurrence, did not fall within the jurisdiction of police station Bhattar . Khalid Mehmood S.I. (PW-15) also admitted during cross-examination that he was a resident of village Saiden , which village was at a distance of about 30/35 kilometres from the village Awanpur , the place of residence of the appellants namely Abdul Basit, Nisar Ahmad and Abdul Monim. Khalid Mehmood S.I. (PW-15) failed to establish that how he knew the appellants namely Abdul Basit, Nisar Ahmad, Abdul Monim and Muhammad Suleman alias Zohair prior to the occurrence, enabling him to have named them in his statement recorded by the Investigating Officer. Khalid Mehmood S.I. (PW-15) also admitted during cross-examination that on the day of occurrence he did not make any statement before Nisar Ahmad A.S.I. (PW-40), who was present in the hospital, that he had identified the appellants namely Abdul Basit, Nisar Ahmad, Abdul Monim and Muhammad Suleman alias Zohair as being present with the suicide bomber . Dr. Arshad Mehmood (PW-22) had examined Khalid Mehmood S.I. (PW-15) and according to him, Khalid Mehmood S.I. (PW-15) was fully oriented in time and space. There was no reason for Riaz Hussain, Inspector (PW-49), Investigating Officer of the case not to have recorded the statement of Khalid Mehm ood S.I. (PW-15) on the day of the occurrence or for Khalid Mehmood S.I. (PW-15) not to have named the accuse d seen by him on the day of the occurrence, on that very day. The delayed recording of the statement under section 161 of Code of Criminal Procedure, 1898 of Khalid Mehmood S.I. (PW-15) has resulted in our drawing a conclusion that the said delay was used to concoct and invent a false narrative. Khalid Mehmood S.I. (PW-15) also admitted that the suicide bomber came to the place of the explosion alone. Khalid Mehmood S.I. (PW-15) also admitted that there were many vehicles which were parked between the railway line and the new road and in the said scenario for him to have identified the appellants, is an ability , the possession of which by Khalid Mehmood S.I. (PW-15) was not proved.
Khalid Mehmood S.I. (PW-15) in his statement before the learned trial court also stated that he could also identify the appellant namely Muhammad Suleman alias Zohair as being one of the accused who he had seen in the company of the suicide bomber prior to the occurrence. Khalid Mehmood S.I. (PW-15) admittedly had never named or identified the appellant namely Muham mad Suleman alias Zohair as being one of the accused whom he had seen at the place of occurrence in the company of the suicide bomber prior to the recording of his statement by the learned trial court. Furthermore, as mentioned above, Riaz Hussain, Inspector (PW-49) also admitted during cross- examination that he had obtained the warrants of arrest of Muhammad Suleman alias Zohair (appellant) on 11.11.2004 and previous to the said date he had not done so as there was no evidence against Muhammad Suleman alias Zohair(appellant) till then. As mentioned above, Riaz Hussain, Inspector (PW-49) also admitted during cross-examination that even Khalid Mehmood S.I. (PW-15) had not named Muhammad Suleman alias Zohair (appellant) as an accused and stated as under:- "Proceedings remained pending in this court for making Muhammad Suleman alias Zohair as approver . It is incorrect that I tortured him and his other relatives including his brothers and uncle for getting his consent to become approver . The statements of almo st all injured witnesses and legal heirs of the deceased were recorded in the court regarding the said proceeding. None out of the injured witnesses including police officials appeared before me to make statements against Muhammad Suleman alias Zohair accused during the period when proceeding were pending in this court regarding making him approver in this case."
This proves the dishonesty on part of Khalid Mehmood S.I. (PW-15) who subsequently named Muhammad Suleman alias Zohair(appellant) as one of the accused identified by him . The learned Deputy Prosecutor General has laid great stress on the fact that Khalid Mehmood S.I. (PW-15) was injured in the occurrence hence, he having the stamp of injuries on his body , is to be relied upon. The august Supreme Court of Pakistan has repeatedly held that the stamp of injuries on the person of a witness can be a proof of his presence at the place of occurrence, however , it can never be held that he also will tell truth .It has been held that the facts which an injured witness narrates are not to be implicitly accepted rather they are to be attested and appraised on the principles applied for the appreciation of evidence of any prosecution witness regardless of him being injured or not. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Nazir Ahmad vs. Muhammad Iqbal and another (2011 SCMR 527) where at page 534 the august Supreme Court of Pakistan was pleased to hold as under: "It is settled law that injuries of P.W are only indication of his presence at the spot but are not affirmative proof of his credibility and truth".
Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Amin Ali and another Vs. The State (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to hold that presence of injuries does not stamp a witness to be a truthful one. We are thus convinced that the statement of Khalid Mehmood S.I. (PW -15) cannot be relied upon for convicting the appellants.
22. We have also gone through the statement of Madad Khan (PW-16) who also claimed that on the day of the occurrence he had seen the appellants namely Abdul Basit, Nisar Ahmad, Abdul Monim and Muhammad Suleman alias Zohair , at the place of occurrence in the company of the suicide bomber identified as Irfan alias Zeeshan.
Madad Khan (PW-16) admitted during cross-examination that he had never seen the residence of any of the accused. Madad Khan (PW-16) also admitted that he had given no reason in his statement for him knowing the accused before the occurrence. In absence of this proof that Madad Khan (PW-16) knew the accused prior to the occurrence, his statement of identifying the accused has no worth. More importantly Madad Khan (PW-16) during cross-examination as under:- "I never joined investigation. (Learned SPP states that witness does not know the mean-ing of joining investigation.
The court itself clarified to the witness if he ever joint (sic) investigation at which witness said No.)
This portion of cross-examination of Mada d Khan (PW-16) and the observation of the learned trial court is sufficient to prove that the said witness had deposed falsely . Madad Khan (PW-16) continued to admit in his cross- examination that he did not tell even the officials at the hospital that he had seen the appellants in the company of the suicide bomber on the day of the occurrence. Dr. Arshad Mehmood (PW-22) had examined Madad Khan (PW- 16) on 30.07.2004 and according to him Madad Khan (PW-16) was fully oriented in time and space. There was no reason for Riaz Hussain, Inspector (PW-49), the Investigating Officer of the case not to have recorded the statement of Madad Khan (PW-16) on the day of the occurrence. The delayed recording of the statement under section 161 of Code of Criminal Procedure, 1898 of Madad Khan (PW-16) has resulted in our drawing a conclusion that the said delay was used to devise and create an untruthful account of the occurrence. Madad Khan (PW-16) also admitted during cross-examination that he had not shown the Investigating Officer of the case, either the place where he was present or the place where he had allegedly seen the accused . Madad Khan (PW-16) in his statement before the learned trial court also stated that he could also identify the appellant namely Muhammad Suleman alias Zohair as being one of the accused who he had seen in the company of the suicide bomber prior to the occurrence. Madad Khan (PW-16) undeniably had never named or identified the appellant namely Muhammad Suleman alias Zohair as being one of the accused whom he had seen at the place of occurrence in the company of the suicide bomber prior to his statement before the learned trial court. Furthermore, as mentioned above, Riaz Hussain, Inspector (PW-49), the Investigating Officer of the case, also admitted during cross-examination that he had obtained the warrants of arrest of Muhammad Suleman alias Zohair (appellant) on 11.11.2004 and previous to the said date he had not done so as there was no evidence against Muhammad Suleman alias Zohair (appellant) till then. As mentioned above, Riaz Hussain, Inspector (PW-49) also admitted during cross-examination that none out of the injured witnesses including police officials appeared before him to make statements against the appellant Muhammad Suleman alias Zohair during the period when the proceedings were pending regarding making the appellant namely Muhammad Suleman alias Zohair an approver in this case. The learned Deputy Prosecutor General has laid great stress on the fact that Madad Khan (PW-16) was injured in the occurrence hence, he having the stamp of injuries on his body , is to be trusted upon. The august Supreme Court of Pakistan has recurrently held that the stamp of injuries on the person of a witness can be an indicator of his presence at the place of the occurrence, however , it can never be held that he also will tell the truth. In view of the above, we have determined that the statement of Madad Khan (PW-16) does not prove the case against the appellants beyond any shadow of a doubt.
23. The prosecution also got Iftikhar Hussain Shah (PW-14) examined who stated that that on the day of the occurrence he had seen the appellants namely Abdul Basit, Nisar Ahmad, Abdul Monim and Muhammad Suleman alias Zohair , at the place of occurrence in the company of the suicide bomber identified as Irfan alias Zeeshan and other co-accused. Iftikhar Hussain Shah (PW-14), however , admitted during cross-examination that he had been transferred from Rawalpindi in the year 2003 to Rajanpur and from Rajanpur to Kot Chitta on 23.07.2003 and to Dera Ghazi Khan on 21.01.2004 and on 20.05.2004 he was transferred to Chiniot and during the days of occurrence he was posted at Chiniot. Iftikhar Hussain Shah (PW-14) admitted during cross-examination that the city of Chiniot was at a distance of 300 kilometres from the place of occurrence. To establish conclusively that the said witness had not seen the occurrence, he himself admitted during cross-examination as under:- "On the day of occurrence I was present on my duty at Chiniot and my presence was marked."
In order to wriggle out of his predicament that he was working at Chiniot on the day of occurrence and therefore, his presence at the place of the occurrence, which place was at a distance of 300 kilometres from the place of his work, was not possible, Iftikhar Hussain Shah (PW-14) stated that he had left his office at 10.00 a.m. Despite this assertion, Iftikhar Hussain Shah (PW-14) failed to prove that he had indeed left his office at 10.00 a.m and did not produce any documentary or oral evidence to support his assertion. Iftikhar Hussa in Shah (PW-14), during cross- examination admitted as under:- "I did not obtain short leave in writing, but left the of fice after orally informing the manager .
I did not tell the police while making statement that I had left the office at 10.00 a.m after informing the manager orally because police did not inquire in depth about my leaving the of fice."
Iftikhar Hussain Shah (PW-14) further admitted during cross-examination that his statement was recorded by the police on 02.08.2004, whereas the occurrence had taken place on 30.07.2004. Iftikhar Hussain Shah (PW-14) admitted during cross-examination that during the said period he did not tell anybody that he had seen the appellants on the day of occurrence, whereas his claim was that he reached the hospital within 10-15 minutes of the occurrence. Iftikhar Hussain Shah (PW -14) also admitted during cross-examination as under:- "During all this period I did not inform the police or anybody else that I had seen the accused running away from the spot or talking with each other ."
Iftikhar Hussain Shah (PW-14) also admitted that he was not the resident of village Awanpur . Iftikhar Hussain Shah (PW-14) also admitted during cross-examination as under:- "I am not resident of village Awanpur . They did not serve along with me nor I and the accused ran joint business. I never undertook journey with the accused jointly . The ac never remained my class fellows."
This portion of cross-examination also begs the question as to how Iftikhar Hussain Shah (PW-14) , who had no previous acquaintance or connection with the appellants, was able to identify them. Furthermore, in his statement before the learned trial court Iftikhar Hussain Shah (PW-14) stated that he could also identify the appellant namely Muhammad Suleman alias Zohair as being one of the accused who he had seen in the company of the suicide bomber prior to the occurrence. Iftikhar Hussain Shah (PW-14) undeniably had never named or identified the appellant namely Muhammad Suleman alias Zohair as being one of the accused whom he had seen at the place of occurrence in the company of the suicide bomber before his statement before the learned trial court. Furthermore, as mentioned above, Riaz Hussain, Inspector (PW-49) admitted during cross-exam ination that he had obtained the warrants of arrest of Muhammad Suleman alias Zohair on 11.11.2004 and previous to the said date he had not done so as there was no evidence against Muhammad Suleman alias Zohair (appellant) till then. As mentioned above, Riaz Hussain, Inspector (PW-49) also admitted during cross-examination that none out of the injured witnesses including police officials or the legal heirs of the deceased appeared before him to make statements against the appellant Muhammad Suleman alias Zohair during the period when the proceedings were pending regarding making the appellant Muhammad Suleman alias Zohair an approver in this case. Iftikhar Hussain Shah (PW-14) was one of the legal heirs who had admittedly appeared before the learned trial court in the proceedings and also stated that the police had tried to make the appellant namely Muhammad Suleman alias Zohair an approver in the case. The failure of Iftikhar Hussain Shah (PW-14) to name and identify the appellant namely Muhammad Suleman alias Zohair as an accused by getting his statement recorded in this regard to the Investigating Officer during the said period of his appearance before the learned trial court for making his statement regarding the grant of his permission to make the appellant namely Muhammad Suleman alias Zohair an approver , fully establishes that the witness namely Iftikhar Hussain Shah (PW-14) had made a false statement that he had seen the appellant namely Muhammad Suleman alias Zohair on the day of occurrence in the company of the other accused and the suicide bomber . We are settled in our minds that Iftikhar Hussain Shah (PW-14) failed to prove his presence at the place of occurrence.W e are also convinced that Iftikhar Hussain Shah (PW-14) was a false witness.
24. We have also noted that according to the prosecution witnesses namely Iftikhar Hussain Shah (PW-14) , Khalid Mehmood S.I. (PW-15) , Madad Khan (PW-16) , Muhammad Aslam A.S.I. (PW-25) and Muhammad Akram A.S.I.
(PW-26) they had seen Abdul Basit, Nisar Ahmad, Abdul Monim and Muhammad Suleman alias Zohair , (appellants) at the place of occurrence in the company of the suicide bomber identified as Irfan alias Zeeshan near the railway line while deboarding from their vehicles (a car and a motorcycle) which had been parked there. This assertion of the prosecution witnesses was also found to be incorrect. Mujahid Siddique Awan (PW-47), stated during cross-examination that no one was allowed to park their vehicle near the railway line. Muhammad Siddique Awan (PW-47) was not cross-examined by the learned Special Public Prosecutor nor he was declared a hostile witness. This statement of Muhammad Siddique Awan (PW-47) totally shatters the very basis of the prosecution case as according to the prosecution witnesses namely Iftikhar Hussain Shah (PW-14), Khalid Mehmood S.I. (PW- 15), Madad Khan (PW-16), Muhammad Aslam A.S.I. (PW-25) and Muhammad Akram A.S.I. (PW-26) they had seen Abdul Basit, Nisar Ahmad, Abdul Monim and Muhammad Suleman alias Zohair , (appellants) at the place of occurrence in the company of the suicide bomber identified as Irfan alias Zeeshan near the railway line while deboarding from their vehicles which had been parked there, however it is proved on record that no such parking area had been established near the railway line. Muhammad Siddique Awan (PW-47) during cross-examination stated as under:- "The parking was towards South of Jafer , i.e. towards South of main double G.T. Road . Every body was taking his vehicle towards parking and so I also took my car to the parking instead of parking it near Jalsagah. Railway track is towards North of main doublt G.T. Road . There was no parking arrangement between this main road and railway line, due to security reasons.
Police was not allowing vehicles coming towards that side for security reasons."
We have also noted that Muhammad Hanif, draftsman (PW-32) prepared the scaled site plan of the place of occurrence (Exh.PQQQQ) on 04.08.2004, however still did not mention either the names of the accused or the names of the witnesses in the same. Muhammad Hanif, draftsman (PW-32), during cross-examination, stated as under:- "Neither the police nor any witness told me the name of suicide attacker or his particulars or the name of any accused till 4.8.2004, and I had not mentioned the same in the site plan. Had the said facts been told to me, by that time, I would have mentined them. I have not shown the presence of Muhammad Akram A.S.I., Muhammad Aslam A.S.I., Iftekhar Hussain Shah, Amir Hussa in Shah and Muhammad Taj councillor PWs in the site plan. I would have mentioned their presence in the site plan had it been pointed out to me. The place of presence of the suicide attacker and others was not pointed out to me nor was mentioned by me in the site plan. I would have mentioned it in the site plan if it was pointed out to me.
Similarly , Riaz Hussain, Inspector (PW-49) also admitted that he had not mentioned the names of the witnesses and the names of the accused in the notes dated 04.08.2004 made by him on the site plan (Exh. PQQQQ). The prosecution also got Muhammad Arif (PW-18) and Mulazim Hussain 2/C (PW-19) examined, however , both the said witnesses namely Muhammad Arif (PW-18) and Mulazim Hussain 2/C (PW-19) did not name any appellant as an accused or identified any appellant as being involved in the occurrence while appearing as witnesses before the learned trial court. The conclusion of the above discussion, regarding the ocular account of the occurrence as furnished by the witnesses, is that the prosecution failed to establish the presence, complicity , abetment and the involvement of the appellants in the occurrence.
25. We have scrutinized the prosecution evidence produced before the learned trial court to prove the charge of criminal conspiracy against the appellants. Before deliberating upon the prosecution evidence produced before trial Court to substantiate the accusation of criminal conspiracy , we consider it appropriate to observe that privacy and secrecy of an agreement, may be oral or written, to enter into a criminal conspiracy is the essence to establish that prior to the commission of the offence, two or more persons have entered into a conspiracy for committing an unlawful wrong. It has been held in Bayyappanavara Munishwamy and others v. State (AIR 1954 Mysore 81) as under:- "Privacy and secrecy are more character istic of a conspiracy than a loud discussion in an elevated place open to public view in the garden of a stranger . These are considerations for assessing the evidence of these witnesses with special care and caution."
It would be appropriate to reproduce hereinbelow section 120-A, P .P.C., in extenso:-- "120-A. Definition of criminal conspiracy . ---When two or more persons agree to do, or cause to be done,-
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
As far as commitment between two or more persons who have conspired together to commit an offence is concerned, it is a relevant fact as against each of the persons believed to be so conspiring as well as for the purpose of proving the existence of the conspiracy as far as the purpose of showing that any such person was a party to it within the meaning of Article 23 of Qanun-e-Shahadat Order , 1984. Article 23 of Qanun-e-Shahadat Order , 1984 reads as under:-- "23. Things said or done by conspirator in reference to common design.---Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such persons was a party to it."
A perusal of above Article 23 of Qanun-e- Shahadat Order , 1984 suggests that the Court seized with the matter has a duty to satisfy itself that there is a reasonable ground to believe the existence of a conspiracy in pursuance of an agreement among the accused to comm it an unlawful act, existed, therefore, it becomes obligatory upon the prosecution to produce evidence for the purpose of establishing that two or more persons have conspired for the commission of a crime or unlawful act by way of entering into an agreement and making a commitment to fulfill it for the purpose of achieving the object. If the prosecution has failed to bring on record evidence to show that before the actual commission of the offence there was any agreement, may be oral or written, amongst two or more persons for the commission of the offence, then it would not be possible to conclude that prior to the commission of the offence any criminal conspiracy was hatched to attract the provisions of section 120-B, P.P.C. In order to prove the said criminal conspiracy , the prosecution relied upon the judicial and extrajudicial confessions of the appellant namely Muhammad Suleman alias Zohair and the extrajudicial confessions of the appellants namely Abdul Basit and Abdul Monim. We have already rejected the prosecution evidence with regard to the said confessions. The prosecution also got examined Amir Zaman S.I. (PW-48) who stated that on 23.07.2004 at about 3.00 p.m he met Javed Aziz (PW-4) at Madrassa Qasim ul Aloom situated in village Haroon and after meeting him he entered the room where he saw the appellants namely Qari Ahmad Khan, Molvi Muhammad Siddique, Suleman alias Zohair , Noor Badshah and Molvi Muhammad Imtiaz and Muhammad Usman (both then proclaimed offenders however subsequently arrested, tried and acquitted by the learned trial court vide judgment dated 12.05.2009) sitting in the room along with five unknown people out of whom he identified one as being the suicide bomber namely Irfan alias Zeeshan. Obviously , Amir Zaman S.I. (PW-48) did not hear any conversation which had allegedly taken place between the persons who were present in the said room. Amir Zaman S.I. (PW-48) only stated that when he entered the room he saw the above-mentioned persons sitting there. Amir Zaman S.I. (PW-48) did not give any evidence that he was in knowledge or had witnessed any of the accused entering into a contract, express or implied, to commit an illegal act. In absen ce of this evidence, the charge of crimin al conspiracy cannot be proved.
Amir Zaman S.I. (PW-48) made no statement before the learned trial court proving the existence of a conspiracy in pursuance of an agreement among the accused to commit an unlawful act. The prosecution was relying upon the statement of Javed Aziz (PW-4) made before the Investigating Officer of the case so as to prove the charge of criminal conspiracy against the appellants, however , the said Javed Aziz (PW-4) did not support his statement recorded under section 161 Code of Criminal Procedure, 1898 by Riaz Hussain, Inspector (PW-49),the Investigating Officer of the case, during the investigation of the case rather Javed Aziz (PW-4), while appearing as a prosecution witness before the learned trial court, claimed that he had not witnessed or heard any conversation between any of the accused, agreeing to commit any illegal act. Javed Aziz (PW-4), while appearing before the learned trial court, refused to support the prosecution case against the appellants. Javed Aziz (PW-4) denied that he had ever gone to Madrassa Qasim ul Aloom situated in village Haroon on 23.07.2004 and also denied that he had met Amir Zaman S.I. (PW-48) there on the said date. Javed Aziz (PW-4) also denied that he had heard any conversation of the appellants namely Qari Ahmad Khan, Molvi Muhammad Siddiq ue, Suleman alias Zohair , Noor Badshah and Molvi Muhammad Imtiaz and Muham mad Usman (both then proclaimed offenders however subsequently arrested, tried and acquitted by the learned trial court vide judgment dated 12.05.2009) conspiring to commit the occurrence Javed Aziz (PW-4), on being declared hostile by the learned Special Public Prosecutor and in answer to the cross-examination conducted by him, stated that he had made a false statement to the Investigating Officer of the case that on 23.07.2004 he had heard the accused conspiring to commit the occurrence, for the reason that he had been severely tortured by the police for more than 2 1/2 months. Javed Aziz (PW-4) stated that all the details as recorded in his statement recorded under section 161 of the Code of Criminal Procedure, 1898 and as recorded in his statement under section 164 of the Code of Criminal Procedure, 1898 regarding him being a witness of hatching of the criminal conspiracy , were untruthful, made under coercion and a result of severe police torture. He repeatedly agitated before the learned trial court that it was because of the agony and torture by the police that he had made the said statements. Therefore, as Javed Aziz (PW-4) did not support the narrative of his statements recorded under sections 161 and 164 of Code of Criminal Procedure, 1898, no reliance could be placed on the said statements. The said statements of Javed Aziz (PW-4) recorded under sections 161 and 164 of Code of Criminal Procedure, 1898 could not have been used by the prosecution to prove any fact. Section 162 Code of Criminal Procedure, 1898 provides for the use of the statement recorded under section 161 of the said act which is to be used only for confronting a witness by the accused and if the statement under section 161 of Code of Criminal Procedure, 1898 is used for confronting any witness during cross- examination, only then the same can be used in re-examination for the limited purpose of explanation of any fact brought on record during cross-examination. Section 162 Code of Criminal Procedure, 1898 reads as under:-
162. Statements to police not to be signed, use of such statements in evidence: (1) No statement made by any person to a police-of ficer in the course of an investigation under this Chapter shall if reduced into writing be signed by the person making it; nor shall any such statement or any record thereof whether in a police-diary or otherwise or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any of fence under investigation at the time when such statement was made:--- Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid the Court shall on the request of the accused , refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by Section 145 of the Evidence Act, 1872.
When any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination:--- Provided further , that, if the Court is of opinion that any part of any such statement is not relevant to the subject- matter of the Enquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, it shall record such opinion (but-not the reasons therefore) and shall exclude such part from the copy of the statement furnished to the accused.
(2) Nothing in this section shall be deem ed to apply to any statement falling within the provisions of Section 32, clause (1) of the Evidence Act, 1872 or to af fect the provisions of Section 27 of that Act."
In this case, Javed Aziz (PW-4) was not cross-examined by the accused nor his statement recorded under section 161 Code of Criminal Procedure, 1898 was used by any of the accused, hence, the said statement was inadmissible and irrelevant to prove any fact in issue. The learned trial court committed illegality by relying upon the statement of Javed Aziz (PW-4) recorded under section 161 of Code of Criminal Procedure, 1898. Javed Aziz (PW- 4), in no uncertain terms, clearly stated before the learned trial court that he had not witnessed any of the accused hatching a criminal conspiracy and hence, his statement made under oath before the learned trial court had to be considered as the only relevant evidence. Reliance in this regard is placed on the case of IMRAN ASHRAF and 7 others Vs. The State ( 2001 SCMR 424 ) wherein the august Supreme Court of Pakistan observed as under:- "The statement of the witness also does not indicate that before hatching the conspiracy accused entered into an agreement written or oral to do Karvai in Khana-e-Farhang nor his evidence fulfils other conditions to establish that crime was committed in pursuance of a conspiracy by the accused."
Reliance in this regard is placed on the case of INTEKHAB AHMAD ABBASI and others Versus The STATE and others ( 2018 SCMR 495 ) wherein the august Supreme Court of Pakistan observed as under:- "The nation is victim of the terrorist activities which are carried out by highly trained and skilled terrorists and the militant commanders would never venture to send such raw hand and inexperienced persons for targeting the most high profile person and the place like GHQ. Even the accused were not taken to the place for pointing out where they first made unsuccessful attempt on the cavalcade of the then Chief of Army Staff and this part of the story is till a mystery . How the accused knew about the layout plan and about the location of the office of the Chief of Army Staff when no map or guideline materials were recovered from them, is another lacuna in the case."
Another aspect of the case is that Qari Muhammad Suleman son of Muhammad Azam, the co-accused of the appellants, was also tried along with the appellants, however the learned trial court acquitted the said Qari Muhammad Suleman son of Muhammad Azam. The prosecution had alleged that Qari Muhammad Suleman son of Muhammad Azam (since acquitted) was also a part of the criminal conspiracy and both the suicide bombers along with Moulvi Muhammad Imtiaz and Muhammad Usman (both arrested, tried and acquitted by the learned trial court vide judgment dated 12.05.2009) went to the mosque of Qari Muhammad Suleman son of Muhammad Azam (since acquitted) along with explosive material. The appeal filed against the acquittal of Qari Muhammad Suleman son of Muhammad Azam was also dismissed by this Court vide its order 15.04.2015. The matter with regard to the acquittal of Qari Muhammad Suleman son of Muhammad Azam, the co-accused of the appellants, was not agitated any further . The learned Deputy Prosecutor General submits that the acquittal of Qari Muhammad Suleman son of Muhammad Azam, the co-accused of the appellants, had attained finality . The question for determination before this Court now is that whether the evidence which has been disbelieved qua the acquitted co-accused of the appellants, can be believed against the appellants. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of the same offence, is now a settled proposition. The august Supreme Court of Pakistan has recently held that partial truth cannot be allowed and perjury is a serious crime. This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. We have noted that the view should be that "the testimony of one detected in a lie was wholly worthless and must of necessity be rejected."
If a witness is not coming out with a whole truth his evidence is liable to be discard ed as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 reported as PLD 2019 Supreme Court 527 has also affirmed the above view. Therefore, the prosecution witnesses who were disbelieved with regard to their assertion that Qari Muhammad Suleman son of Muhammad Azam (since acquitted) was also a part of the criminal conspiracy , cannot be believed in this respect with regard to the appellants. Then Mr. Shoukat Aziz, the person for whose elimination the criminal conspiracy was allegedly hatched, never appeared before the learned trial court to make any statement. We have also noted that at the time of the drafting of the complaint (Exh. PC) by Riaz Hussain, Inspector (PW-49), section 120-B, P.P.C. was also inserted therein when by then, the accused were neither arrested nor they had disclosed about the place, time where they hatched the conspiracy nor any witness was available to state about the same. This fact by itself would suggest that the investigating agency from the very beginning virtually acted under the influence of the self-crafted theory of labelling the case as a high profile case. We have observed with worry that till the close of the investigation, the Investigating Officer of the case, could not wriggle out of the influence that this was a high profile case wherein the future Prime Minister of the Islamic Republic of Pakistan was targeted and therefore did not act with fairness and application of independent mind. To the contrary , every effort was made, albeit fallaciously , to score points in the subject case after it had got extraordinary publicity and to earn undue fame at the cost of lives of the accused. In this manner , the prosecution failed miserably to establish the charge of criminal conspiracy against the appellants.
26. The prosecution has also relied upon the Call Data Record collected during the investigation of the case so as to prove the guilt of the appellants. No voice call record data or its transcript has been brought on record relating to any mobile phone and the subscriber identification module (SIM) card recovered during the investigation of the case. Riaz Hussain, Inspector (PW-49), Investigating Officer of the case, stated that during the investigation of the case, the appellant namely Abdul Monim was arrested on 18.01.2005 and the mobile phone (P-66) and the subscriber identification module (SIM) card (P-66/1) were recovered from his poss ession. Riaz Hussain, Inspector (PW-49), Investigating Officer of the case, admitted during cross-examination that he did not obtain any record from the relevant office to establish as the place from where the phone calls had been made or from where the phone calls had been received on the said mobile telephone (P-66) and subscriber identification module (SIM) card (P- 66/1). Riaz Hussain, Inspector (PW-49), the Investigating Officer of the case, admitted during cross-examination that he did not mention the model and the name of the company regarding the mobile phone (P-66) which was allegedly recovered from the possession of the appellant namely Abdul Monim. Riaz Hussain, Inspector (PW-49), the Investigating Officer of the case, also admitted that he had produced the print record (Exh.P-68/10-14) relating to the phone (P-66) and SIM card (P-66/1 ) before the court for the first time and the same had been lying with him and had not been submitted earlier along with the other documents. Riaz Hussain, Inspector (PW-49) also admitted that the telephone number mentioned in the print record (Exh.P-68/10-14) was installed in the name of one Bashir Ahmad and not of the appellant Abdul Monim. Riaz Hussain, Inspector (PW-49) also admitted that many calls had been mentioned in the print record, however , he did not conduct any investigation to establish as to in whose name the said phone numbers were registered from where the alleged calls had been made. Riaz Hussain, Inspector (PW-49) also stated that the appellant namely Muhammad Suleman alias Zohair was arrested on 16.02.2005 and on the same day the mobile phone (P-36) and the SIM card (P-37) were recov ered from his possession. Riaz Hussain, Inspector (PW-49), the Investigating Officer of the case, admitted during cross-examination that he did not mention the model and the name of the company regarding the mobile phone (P-36) which was allegedly recovered from the possession of the appellant Muhammad Suleman alias Zohair . Riaz Hussain, Inspector (PW- 49) admitted during cross-examination that though the appellant namely Muhammad Suleman alias Zohair was arrested from the house of Ch. Muhammad Afzal, DSP/SDPO Fateh Jang, however , he did not obtain the signatures of the said Ch. Muhammad Afzal DSP/SDPO Fateh Jang on any recovery memo. Riaz Hussain, Inspector (PW-49), Investigating Officer of the case also admitted during cross-examination that he did not obtain any record from the relevant office to establish as the place from where the phone calls had been made or from where the phone calls had been received on the said mobile telephone (P-36) and the SIM card (P-37). Riaz Hussain, Inspector (PW-49) admitted during cross-examination that he did not contact Zahid Yasin, the person whose contact number was found on the print record relating to the mobile phone (P-36) and SIM card (P-37). Riaz Hussain, Inspector (PW-49) also admitted that he did not make any effort to join the said Zahid Hussain in the investigation of the case. The learned Deputy Prosecutor General submitted that during the investigation of the case Riaz Hussain, Inspector (PW-49) on 08.08.2004 took into possession a register (Exh.P-22) from the Madrassa Muhammadia Qasim ul Aloom , wherein mobile phone numbers 0300 5204368, 0300 5140703 and 0300 5564869 were mentioned, which register was produced by the appellant namely Qari Ahmad Khan. The learned Deputy Prosecutor General is unable to explain as to how the recovery of the said register (Exh.P-22) furthers the prosecution case in view of the admissions of Riaz Hussain, Inspector (PW-49) and Muhammad Ahmad 229/HC (PW-27) that beside the above mentioned three mobile phone numbers, many other mobile phone numbers were also mentioned in the said register (Exh.P-22). In this manner , the recovery of the mobile phones and the SIM cards does not further the case of the prosecution against the appellants in any manner . As mentioned above, in absence of the voice call record or its transcript relating to the calls made and received from the recovered mobile phones and the SIM cards, the mere recovery of the same does not prove any fact relevant to prove the charge against the accused. Reliance is placed on the case of "Azeem Khan and another Vs. Mujahid Khan and others" ( 2016 SCMR 274 ), wherein, it has been held as under:- "The cell phone call data collected is of no help to the prosecution for the reasons that numerous calls have been made indicating continuous interaction between the two cell phones, contrary to the evidence given by Muhammad Wali (PW-3), who has stated at the trial that the unknown caller made calls on his cell phone four times. No competent witness was produced at the trial, who provided the call data, Ex.P-1 to Ex.P-5. No voice record transcript has been brought on record . Similarly from which area the caller made the calls, is also not shown in it. Above all, the most crucial and conclusive proof that the cell phone was owned by the accused and SIM allotted was in his name is also missing. In this view of the matter , this piece of evidence is absolutely inconclusive and of no benefit to the prosecution nor it connects the accused with the crime in any manner ."
27. The learned Deputy Prosecutor Gene ral has also relied upon the evidence of the recovery of an explosive belt in two parts (P-14/1-2) from the appellant namely Abdul Basit on 06.02.2005 however the same cannot be relied upon as the fact remains that Investigating Officer of the case did not join any witness of the locality during the recovery of the explosive belt in two parts (P-14/1-2) from the appellant namely Abdul Basit which was in clear violation of section 103 of the Code of Criminal Procedure, 1898 and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence.
The prosecution witnesses candidly admitted that no effort was made to join in investigation any person of the locality despite the fact that many were residents of the vicinity of the place of recovery . The august Supreme Court of Pakistan in the case of "Muhammad Ismail and others Vs. The State" (2017 SCMR 898) at page 901 has held as under:- "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr .P.C. had flagrantly been violated in that regard."
Another aspect of the case is that the learned trial court de-sealed the video tape (P-49) and played the same in the court on 18.05.2006 and also recorded its observation in this regard. The learned trial court observed that the belt worn by one of the suicide bombers namely Obaid (the name of the second suicide bomber was mentioned as Obaid by the learned Special Public Prosecutor and as Sultan Sikandar alias Zubair by Riaz Hussain, Inspector (PW-49), the Investigating Officer of the case) was different from the belt (P-14/1-2) allegedly recovered from the appellant namely Abdul Basit and brought by Riaz Hussain, Inspector (PW-49) to the learned trial court and produced before the court. The learned trial court in its observation recorded on 18.05.2006 after viewing the videotape (P-49) observed as under:- "Now the same man whose name was told by the learned SPP Obaid is standing . He is wearing belt on his body likes the belt brought today . There is howe ver difference between the belt worne (sic)by him and the belt brought by inspector today . The belt worne (sic) (S.I.) by "Obaid" is one piece belt but the belt brought by the Inspector today is in two separate parts."
This observation of the learned trial court also conclusively proves that the recovered explosive belt( P-14/1-2) was not the one which had been intended to be used by the second suicide bomber namely Obaid ( or Sultan Sikandar alias Zubair as named by Riaz Hussain, Inspector (PW-49) , the Investigating Officer of the case). The learned Deputy Prosecutor General has also relied upon the evidence of the recovery of the pistol( P-54) from the appellant namely Abdul Monim on 18.01.2005 however the same cannot be relied upon as the fact remains that Investigating Officer of the case did not join any witness of the locality during the recovery of the pistol ( P-54) from the appellant namely Abdul Monim which was in clear violation of section 103 of the Code of Criminal Procedure, 1898.
Furthermore, none of the eyewitnesses had alleged that the appellant namely Abdul Monim was in possession of the said pistol at the time of occurrence or that he had used the said pistol during the occurrence. The learned Deputy Prosecutor General has also relied upon the evidence of the recovery of a grenade (P-17) from the appellant namely Abdul Monim on 06.02.2005 however the same cannot be relied upon as the fact remains that Investigating Officer of the case did not join any witness of the locality during the recovery of the grenade (P-17) from the appellant namely Abdul Monim which was in clear violation of section 103 of the Code of Criminal Procedure, 1898. Furthermore, none of the eyewitnesses had alleged that the appellant namely Abdul Monim was in possession of the said grenade at the time of occurrence or that he had used the said grenade during the occurrence. The learned Deputy Prosecutor General has also relied upon the evidence of the recovery of a video tape (Exh.P-59) from the appellant namely Qari Ahmad Khan on 05.02.2005 however the same cannot be relied upon as the fact remains that Investigating Officer of the case did not join any witness of the locality during the recovery of the videotape (P-49) from the appellant namely Abdul Basit which was in clear violation of section 103 of the Code of Criminal Procedure, 1898. Besides, the appellant namely Qari Ahmad Khan does not figure anywhere in the footage preserved in the videotape (P-49). Another aspect of the case is that the learned trial court de-sealed the said videotape (P-49) and played the same in the court on 18.05.2006 and also recorded its observation in this regard. The learned trial court observed that the appellant namely Qari Ahmad Khan did not figure in the said videotape (P-49). There is no evidence on record to suggest that the appellant namely Qari Ahmad Khan had recorded the footage in the videotape (P-49). Furthermore, the said videotape (P49) was not sent to the office of Punjab Forensic Science Agency , Lahore so as to determine whether the footage contained in the same was genuine or otherwise. In this manner , the recoveries as mentioned above, do not further the prosecution case against the appellants.
28. The plea of the learned Deputy Prosecutor General that because the prosecution witnesses were having no enmity to falsely implicate the appellants in such a heinous crime thus, the evidence adduced should be believed, is entirely misconceived one. It is a cardi nal principle of justice and law that only the intrinsic worth and probative value of the evidence would play a decisi ve role in determining the guilt or innocen ce of an accused person. Even evidence of an uninterested witness, not inimical to the accused, may be corrupted deliberately while evidence of an inimical witness if found consistent with the other evidence corroborating it, may be relied upon. Reliance in this regard may be placed on the case of Waqar Zaheer vs. The State (1991 PSC 281). It is also a well embedded principle of law and justice that no one should be construed into a crime on the basis of presumption in the absence of strong evidence of unimpeachable character and legally admissible one. Similarly , mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused person being indefeasible and inalienable right of an accused. In getting influence from the nature of the crime and other extraneous consideration might lead the Judges to a patently wrong conclusion. In that event the justice would be the casualty .
29. Learned Deputy Prosecutor General has also laid much premium on the abscondence of the appellants as proof of their guilt. The fact of abscondence of an accused can be used as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with a substantive piece of evidence. The august Supreme Court of Pakistan has held in the case of Asadullah v. Muhammad Ali (PLD 1971 SC 541) that both corroborative and ocular evidence are to be read together and not in isolation. As regards abscondence, the august Supreme Court of Pakistan has held in the case Rasool Muhammad v. Asal Muhammad (1995 SCMR 1373 ) that abscondence is only a suspicious circumstance. In the case of Muhammad Sadiq v. Najeeb Ali (1995 SCMR 1632 ) the august Supreme Court of Pakistan observed that abscondence itself has no value in the absence of any other evidence. It was also held in the case of Muhammad Khan v. State (1999 SCMR 1220 ) that abscondence of the accused can never remedy the defects in the prosecution case. In the case of Gul Khan v. State (1999 SCMR 304), it was observed by the august Supreme Court of Pakistan that abscondence per se is not sufficient to prove the guilt but can be taken as a corroborative piece of evidence. In the cases of Muhammad Arshad v. Qasim Ali (1992 SCMR 814), PirBadshah v. State (1985 SCMR 2070 ) and Amir Gul v. State (1981 SCMR 182) it was observed that conviction on abscondence alone cannot be sustained. In the present case, substantive pieces of evidence in the shape of ocular account and the alleged confessions, judicial and extrajudicial, have been disbelieved, therefore, no conviction can be based on abscondence alone. Relianc e is also placed on the cases of "Muhammad Farooq and another Vs. The State" (2006 SCMR 1707 ) and "Nizam Khan and 2 others Vs. the State" ( 1984 SCMR 1092 ) and Rohtas Khan vs. The State ( 2010 SCMR 566 ).
30. It is a known and settled principle of law that prosecution primarily is bound to establish guilt against the accused without a shadow of reasonab le doubt by producing trustworthy , convincing and coherent evidence enabling the Court to draw a conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that charges, so impute d against the accused, have not been proved beyond a reasonable doubt, then the accused becomes entitled to his release on getting the benefit of the doubt in the prosecution case. In such a situation the Court has no jurisdiction to abridge such right of the accused. To ascertain as to whether accused is entitled to the benefit of the doubt the Court can conclude on considering the agglomerated effect of the evidence available on record as held in the cases of Safdar Ali v. The Crown (PLD 1953 FC 93) and Muhammad Luqman v. The State (PLD 1970 SC 10). In the instant case we have scanned the prosecution evidence in-depth and we are persuaded to hold that the prosecution has failed to produce trustworthy , confidence-inspiring and consistent evidence against the appellants. Conversely , the evidence so brought on record appears to have been fabricated to prove the prosecution case. Even otherwise the evidence suffers from material discrepancies, contradictions and omissions and for such reasons it has not proved the case against the accused persons intrinsically and if the evidence of such defective quality is accepted it would produce an illusory judgment which apparently Would not be sustainable in the eye of law in view of the principles laid down by this Court in the judgments referred to hereinabove. Even otherwise the prosecution evidence is inconsistent to each other , thus, on basis of the same appellants cannot further be immured because they have every right to claim guarantee of the Constitution which provides that every citizen of the country shall be dealt with in accordance with the law .
31. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Qari Ahmed Khan, Moulvi Muhammad Siddique, Noor Badshah, Muhammad Suleman alias Zohair , Nisar Ahmad, Abdul Basit and Abdul Monim (appellants ) in the present case. It is settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha Vs. The State" ( 2018 SCMR 772 ) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Muhammad Akram v . The State ( 2009 SCMR 230 ) and Muhammad Zaman v . The State ( 2014 SCMR 749 )."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan "Muhammad Akram Vs. the State" ( 2009 SCMR 230 ) in which it has been observed in paragraph No.13 of page 236 as infra: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
32. For what has been discussed above, Criminal Appeal No. 250-T of 2006 lodged by Qari Ahmed Khan, Moulvi Muhammad Siddique and Noor Badshah (appellants) is allowed. The Criminal Appeal No. 226-T of 2006 lodged by Nisar Ahmad, Abdul Basit and Abdul Monim (convicts) is allowed and Criminal Appeal No. 254-T of 2006 lodged by Muhammad Suleman alias Zohair (appellant) is also allowed. The conviction and sentences of Qari Ahmed Khan, Moulvi Muhammad Siddique, Noor Badshah, Muhammad Suleman alias Zohair , Nisar Ahmad, Abdul Basit and Abdul Monim (appellants) awarded by the learned trial court through the impugned judgment dated 22.05.2006 are hereby set-aside. Qari Ahmed Khan, Moulvi Muhammad Siddique, Noor Badsh ah, Muhammad Suleman alias Zohair , Nisar Ahmad, Abdul Basit and Abdul Monim (appellants) are ordered to be acquitted. Qari Ahmed Khan, Moulvi Muhammad Siddique, Noor Badshah , Muhammad Suleman alias Zohair , Nisar Ahmad, Abdul Basit and Abdul Monim (appellants) are directed to be released forthwith if not required in any other case.
33. Capital Sentence Reference is answered in Negative and the death sentences of Qari Ahmed Khan, Moulvi Muhammad Siddique, Noor Badshah and Muhammad Suleman alias Zohair are Not Confirmed.