MOHAMMAD KARIM KHAN AGHA, J.---The appellants Muhammad Danish son of Saleem Siddiqui and Muhammad Rahim son of Muhammad Hanif have preferred these appeals against the judgment dated 03.09.2019 passed by Learned Anti-Terrorism Court No. XIII, Karachi/Judicial Complex at Central Prison, Karachi in Special Case No.1569/2017 arising out of Crime No.167/2017 under sections 302, 120 and 34, P.P.C. read with section 7 of ATA, 1997, Special Case No.1570/2017 arising out of Crime No.175/2017 under section 23(I)/A of Sindh Arms Act and Special Case No.1571/2017 arising out of Crime No.176/2017 under section 23(I)/A of Sindh Arms Act registered at Police Station Orangi Town, Karachi whereby the appellants were convicted and sentenced as under:- 1) Accused Muhammad Rahim son of Muhammad Hanif and Muhammad Danish son of Saleem Siddiqui were found guilty for the offence and convicted under section 302(b), P.P.C. and sentenced to suffer Imprisonment for life as Tazir and also directed to pay Rs.2,00,000/- (two lacs) each as a compensation to L.R.S of both deceased as provided under section 544-A, Cr.P.C. In case of default both the accused were ordered to suffer R.I. for (01) year more.
2) Both the accused were also convicted under section 23(i)/A Sindh Arms Act, 2013 and sentenced to suffer R.I. of seven (07) years with fine of Rs.50,000/- (fifty thousand) each in case of default in payment of fine they were ordered to suffer R.I. for six (06) months more.
All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was also extended to both the accused.
2. The brief facts of the prosecution case as per FIR are that on 19.07.2017 at 1630 hours statement of Abdul Karim son of Abdul Hameed under section 154, Cr.P.C. was recorded by ASI Muhammad Javed of PS Orangi Town, later on same was incorporated into 154, Cr.P.C. book bearing Crime No.167/2017 as per his verbatim, complaint stated therein that his brother namely Abdul Majeed alias Nadeem Moulana who was doing a job in the Water Board and a friend of his brother Rashid Lal were affiliated with MQM London and they left the said party and joined the PSP, then they received the threats of dire consequences from MQM London. On 17.07.2017 his brother namely Abdul Majeed and friend of his brother Rashid were present outside the house, it was 04:45 p.m. or 05:00 p.m. when he heard the voice of firing and came outside the house and found that his brother Abdul Majeed and Rashid Lal sustained the injuries on their heads and blood was oozing.
Then complainant with the help of neighbours shifted the injured to Qatar Hospital for medical treatment in two private vehicles, then Abbasi Shaheed Hospital, where his brother Abdul Majeed and friend of his brother Rashid Lal succumbed to their injuries. On enquiry, the complainant came to know that two persons came on motorcycle and caused them firearm injuries with intention to commit Qatl-i-Amd. Thereafter, the abovementioned FIR was registered against unknown accused, who committed the murder of his brother and friend of his brother and prayed for taking legal action against the accused.
3. After registration of FIR, investigation was entrusted to Inspector Jameel Ahmed Awan, who had visited the place of incident and prepared such memo. and sketch of place of incident, collected one empty, three projectiles and blood stained mud from the place of incident, recorded the statements of PWs. Then empty and projectiles were sent to FSL for examination and report. On 26.07.2017, I.O. of the case along with Inspector Ghafoor Ahmed of Rangers 32 Wing were busy in snap checking. During snap checking, Inspector Ghafoor Ahmed received the spy information that five target killers belonging to MQM London on two motorcycles are going for commission of offence. On receiving such information Rangers and police officials awaited for pointed target killers, meanwhile spy informer gestured towards two motorcycles on which Inspector Ghafoor Ahmed tried to stop said motorcyclists out of them, three persons were sitting on one motorcycle who escaped from the scene and their one mobile phone fell down on the ground, whereas other motorcycle on which two persons were riding were apprehended by them. On enquiry they disclosed their names as Danish and Rahim. On personal search of accused Danish, Inspector Ghafoor Ahmed secured one 9mm pistol bearing No.12006699 along with six live bullets from his possession and cash Rs.25,380/-, CNIC in the name of accused, ATM Card, driving license secured from him. From co-accused Rahim Inspector Ghafoor Ahmed secured one 9mm pistol bearing No.6002705 along with magazine loaded with 8 live bullets, CNIC in the name of accused, one Q- mobile phone from his possession. On demand of license accused could not produce the same.
Accused further disclosed names of their companions as Bilal Anis-ul-Haq (2) Muhammad Rizwan son of Zameer Hussain and (3) Muhammad Awais son of Muhammad Sadiq. Then the complainant sealed the arms and ammunition at the spot and prepared memo. of arrest and recovery. On demand of documents of motorcycle, accused failed to produce the same and as such motorcycle was also seized under section 550, Cr.P.C. The accused and recovered property were brought to PS, where off-shoot FIRs were registered against the above named accused, after registration of FIRs, investigation of these cases were handed over to Inspector Muhammad Jameel, who had visited the place of incident, prepared the such memo., recorded the statement of PWs under section 161, Cr.P.C. obtained the FSL report.
4. After registration of the FIRs and after completion of usual investigation I.O. submitted charge sheet against the accused persons. The accused plead not guilty to the charge and claimed trial.
5. The prosecution in order to prove its case examined 14 witnesses and exhibited various documents and other items. The statements of the accused were recorded under Section 342, Cr.P.C. in which they denied all the prosecution allegations and claimed false implication. The accused declined to give statement on oath under section 340(2), Cr.P.C. in disproof of the prosecution allegations but each accused did call one DW in support of his defence case.
6. After appreciating the evidence on record the trial court convicted and sentenced the appellants as set out earlier in this judgment. Hence, the appellants have filed these appeals against their convictions.
7. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.
8. Learned counsel for the appellants have contended that the appellants are completely innocent and have been falsely implicated in this case by the police at the behest of the rangers; that the sole eye-witness is a put up witness and he was not present at the time of the incident; that the identification parade was not carried out in accordance with the law; that the retracted confessions by the appellants before the magistrate were not made voluntarily and that no reliance can be placed on them; that when the appellants were arrested in a separate arms case the weapons were foisted on them by the rangers/ police and even then the FSL report in respect of recovered weapons did not match the empty at the scene of the murder; that with respect to Danish he was in illegal custody at the time when payments were allegedly paid into his bank account in respect of the murder and thus for any of the above reasons the appellants should be acquitted of the charge by extending them the benefit of the doubt. In support of their contentions they have placed reliance on the case of Tariq Pervez v. The State (1995 SCMR 1345).
9. On the other hand learned Additional Prosecutor General appearing on behalf of the State and assisted by Special prosecutor rangers has fully supported the impugned judgment. He has contended that the sole eye-witness has correctly identified the appellants as the persons who fired upon and murdered the deceased who picked out the appellants before an identification parade conducted in accordance with law and whose evidence was reliable, trustworthy and confidence inspiring and should be believed in terms of the incident and the correct identification of the appellants; that the appellants voluntarily confessed to the murder before a judicial magistrate which confessions were made in accordance with the law and can be relied upon even if later retracted; that the pistols recovered from the appellants lead to a positive FSL match with the empties recovered at the scene; that a deposit slip of Rs.50,000 paid into the account of appellant Danish proved that the appellants had been paid to target kill the deceased and as such the prosecution had proved its case beyond a reasonable doubt and the appeals should be dismissed. In support of his contentions he placed reliance on the cases of Muhammad Zaman v.
The State (2007 SCMR 813), Abdul Haq v. The State (2015 SCMR 1326), Mst. NaseemAkhtar v. The State (1999 SCMR 1744), Niaz-ud-Din v. The State (2011 SCMR 725), Muhammad Ilyas v. The State (2011 SCMR 460), Zulfiqar Ahmad v. The State (2011 SCMR 492), Muhammad Ehsan v. The State (2006 SCMR 1857), Muhammad Waris v. The State (2008 SCMR 784), Khadim Hussain v. The State (PLD (sic) SC 669), Qaiser Khan v. The State (2009 SCMR 471), Muhammad Amin v. The State (PLD 2006 SC 219) and Muhammad Rashid v. The State (2022 YLR 119).
10. Muhammad Rashid v. The State (2022 YLR 119).We have heard the arguments of the learned counsel for the appellants as well as learned Additional Prosecutor General assisted by special prosecutor rangers and have gone through the entire evidence which has been read out by counsel for the appellants, and the impugned judgment with the able assistance of learned counsel and have considered the relevant law including the case-laws cited at the bar.
11. Based on our reassessm ent of the evidence of the PW's, especially PW 7 eye-witness Mateen Ahmed, the complainant and the other prosecution witnesses especially the medical evidence and other medical reports including the post mortem reports of the deceased, recovery of empties and blood stained earth at the crime scene we find that the prosecution has proved its case beyond a reasonable doubt that Abdul Majeed and Rashid (collectively referred to as the deceased) were shot and murdered by firearm at about 1700 hours on 17.07.2017 at plot No.108, Sector 7/C Orangi Town Karachi.
12. The only question left before us therefore is who murdered the deceased by firearm at the said time, date and location?
13. After our reassessm ent of the evidence we find that the prosecution has proved beyond a reasonable doubt the charge against the appellants for which they were convicted for the following reasons keeping in view that each criminal case must be decided on its own particular facts and circumstances;
(a) That the FIR was lodged after a delay of two days. The reason for the delay in lodging the FIR was that the complainant had to go to the hospital to attend to the deceased and then arrange their burial and thereafter lodged the FIR. As such the delay in lodging the FIR has been explained.
Importantly the FIR is against unknown persons and as such there was no attempt to falsely implicate the accused or any other body or else they might have been specifically named in the FIR. Furthermore, the complainant had no enmity with the accused and had no reason to falsely implicate them and as such we find that the delay in lodging the FIR is not fatal to the prosecution case as the delay has been explained, the accused were not nominated in the FIR and as such the delay in filing the FIR has not benefited the prosecution or prejudiced the accused.
(b) We find that the prosecution's case primarily, but not wholly, rests on the sole eye-witness to the murder and his correct identification of the appellants whose evidence we shall consider in detail below;
(i) Eye-witness PW 7 Syed Mateen Ahmed. In his evidence he states that on 17.07.2017 at 5 p.m. the present incident took place. He was with Aftab and left his house to meet his friend Nadeem (one of the deceased). When he reached near the house of Nadeem he saw Nadeem and Rashid were sitting and the accused who came on motor cycle fired upon them before escaping from the scene. He then assisted taking the deceased to hospital.
He lived close to the deceased and was not a chance witness. He saw the incident in broad day light from about 20 feet. The appellant's faces were uncovered and thus he would have been able to get a good clear unobstructed view of them. He recorded his S.161, Cr.P.C. eye-witness statement within 48 hours of the incident and apparently he gave the hulia of the appellants although this is disputed. In any event he states that he can clearly recognize the appellants if he saw them again.
He had no enmity with the appellants and thus had no reason to implicate them in a false case.
This murder according to the prosecution was a target killing based on political affiliation however the eye-witness was an independent witness without any party affiliation. We find that the eye- witness gave his evidence in a straight forward and natural manner and was not dented during a lengthy cross-examination and as such we believe his evidence.
He appeared before an identification parade on 05.08.2017 which was less than one month after the incident and picked out both the appellants with a specific role 6 days after their arrest.
Although it seems that the identification parade was not carried out strictly in accordance with the law in that it was a joint identification parade and thus we are put to caution as to its legal validity.
The slight delay (6 days) in holding the identification parade is not of much consequence and in this respect reliance is placed on the case of Muhammad Zaman v. The State (2007 SCMR 813).
The factum of the eye-witness picking out the appellant at the identification parade with the specific role of shooting the deceased is corroborated by PW 3 Rameez Raja who was the Judicial Magistrate who carried out the identification parade along with his memo. of identification.
Thus, for the reasons mentioned above, whilst being on caution, we find the evidence of the eye- witness to be reliable, trustworthy and confidence inspiring and we believe the same especially with regard to the correct identification of the appellants as the persons who shot and murdered the deceased and can convict on this evidence provided that there is some corroborative/ supportive evidence. In this respect reliance is placed on the case of Muhammad Ehsan v. The State (2006 SCMR 1857). As also found in the cases of Farooq Khan v. The State (2008 SCMR 917) and Niaz-ud-Din and another v. The State and another (2011 SCMR 725). That what is of significance is the quality of the evidence and not its quantity and in this case we find the evidence of this sole eye-witness to be of good quality.
Thus, based on our believing the evidence of the PW eye-witness what other supportive/corroborative material is there against the appellant? It being noted that corroboration is only a rule of caution and not a rule of law. In this respect reliance is placed on the case of Muhammed Waris (Supra)
(c) That both the appellants have recorded confessions before a judicial magistrate which we set out below for ease of reference; Confessional Statement under section 164, Cr.P.C. of appellant Muhammed Danish.
Note: Rest of the document is already in English.
Question 8. What have you to say?
Answer: Muhammad Rizwan alias Jawan, Bilal Anees alias Billa upon their behest in June 2017 I was informed by MQM London's Rizwan alias Jawan, Bilal Anees alias Billa that Bilal Anees remains in contact with London and South Africa via WhatsApp. And Bilal Anees alias Billa informed that he is forming a team of target killers at the start of July. Bilal Anees alias Billa was its leader, Rizwan alias Jawan was its Vice Leader and Muhammad Raheem, Muhammad Awais and myself were included as target killers. Bilal Anees alias Billa informed that Altaf Hussain in London and Nadeem Nusrat in South Africa. Rizwan then sent myself and Raheem and Rizwan said that I will back you up from behind. Then we arrived in the alley of Nadeem Molana and Raheem got off the moving bike. He fired at Nadeem Molana and his companion Rashid Lal Khan on their head and chest seven to eight bullets and we fled away from the scene. I was riding the bike and Raheem was sitting at the back. 19.07.2017 Bilal Anees alias Billa, having called all the friends, got us listen to an audio message which had been received from Abdullah's number wherein Altaf Hussain congratulated us on our work. On 20.07.2017, I got Rs.50,000/- credit in my account. I informed Bilal via message.
Abdul Rasheed alias Bahubali, Qamar-ul-Islam alias Qamar Taidi alias Waseem, Asif alias Abdullah, who are target killers in South Africa, they were in contact with Bilal Anees alias Billa through WhasApp. Bilal Anees alias Billa informed that upon their behest, MQM Pakistan and PSP leaders are to be targeted. On 2 or 3 July, 2017, called me outside the house of Rizwan alias Jawan and asked for my account number which I gave for Habib Metropolitan Bank, Boat Basin Branch then he said PSP's Zonal In-charge Abdul Majeed alias Nadeem Molana is to be targeted. I, Rizwan alias Jawan, Awais and Raheem carried out recce towards the house of Nadeem Molana (words ambiguous) then on 17.07.2017 a final meeting was held at the house of Bilal Anees alias Billa where Bilal Anees alias Billa told me that I have to ride the bike and Raheem will fire bullets and Bilal, Rizwan and Awais will remain on backup on separate bikes. Bilal Anees alias Billa gave us two 9mm pistols and a packet containing 25 bullets. Around 4 O'clock Billa called and informed Rizwan that Nadeem Molana is sitting outside his house with his companion at which Bilal called and informed that this amount has come from the London leadership. After that Rangers and police were carrying out raids at several places and arms were being recovered. On 26 July at 0300 hours we were going to bury it in the park near the house of Billa's friend. I and Raheem were on one bike whereas Bilal, Rizwan and Awais were on another bike. Police and Rangers were carrying out snap-checking near (word illegible) ground where they signaled Bilal to stop and Bilal after briefly stopping over accelerated the bike and his 'mobile' phone fell off from his upper pocket which the Rangers seized into their custody. Then stopped me and Raheem and during physical search, from myself and Raheem one pistol each was recovered. The police and Rangers conducted interrogation and we informed them about the target killing of Nadeem Molana.
LTI and Sd/- of accused.
Sd/- Civil/Family Judge and Judicial Magistrate Court No.III, Karachi West.EX.11/F Confessional Statement under section 164, Cr.P.C. of appellant Muhammed Raheem Note: Rest of the documents is already in English.
Question.8. What you have to say?
Answer: I, Muhammad Raheem son of Muhammad Hanif, resident of House No.630, Sector 1-B, Orangi Town, Karachi was a worker of MQM. In 2010 I joined MQM at the behest of Shan and Kamran. Until 2011, I used to be in the company of Shamshad Iqbal, Noman and Mujahid. Whatever they did, they would inform me. After that my work started. In 2011, I parted always with the party and got busy in, AC work. After that I did not deal with the party. In 2017, I met with Bilal so Bilal informed me that in my discussion with Altaf Hussain and Nadeem Nusrat it has been informed that in South Africa Qamar Taidi, Asif alias Abdullah, Khursheed alias Billi have formed a team in Karachi which Bilal has been nominated as a head and Rizwan alias Jawan has been nominated as vice head and constituted a five member team including Awais, Danish and myself wherein Bilal told me to target PSP and MQM-Pakistan leaders in Karachi wherein after a few days gave message to Bilal from South Africa "to take care of Nadeem Molana's work" at which the five of us started doing recce. 2 or 3 July, 2017 Bilal called at his home, held a meeting and asked all of us to carry out the recce. On 17.07.17 at 1100 hours all of us gathered, Bilal gave two 9mm pistols and 25 bullets to myself and Danish. At 1600 hours on 17 July, Bilal called and informed that Nadeem Molana is sitting outside his house. The five of us gathered at one place and asked Danish to ride the bike and I was asked to sit at the back and carry out firing. One bike will be for the backup on which Bilal, Rizwan and Awais will be riding. We arrived near the house of Nadeem Molana. I, having got off the bike, fired around 7-8 bullets at Nadeem Molana due to which Nadeem Molana and Rashid Lal Khan died on the spot. After that we left for our house. Rangers and police were carrying out raids so we were trying to hide our weapons so Bilal suggested on 26 July that there is a park beside his friend's house and we should bury our weapons there so we agreed to that and were going to bury our weapons so at Qazzafi Chowk, police and Rangers were carrying out snap checking. Bilal, Awais and Rizwan were riding on one bike which was stopped by Rangers and police so Bilal, having slowed down the bike, accelerated it so due to the jerk his mobile fell off his pocket and when we were signaled, we stopped and when our physical search was carried out, two 9mm pistols were recovered from us. The Rangers during interrogation inquired about the target killing of Nadeem Molana and we disclosed that we did it and the police brought us to the PS.
LTI/Sd/- of accused.
Sd/- Civil / Family Judge and Judicial Magistrate Court No.III, Karachi West It is well settled by now that a retracted confession before a magistrate can form the basis of convicting in a capital case however it must be;
(i) Voluntary i.e. without threat or inducement and
(ii) Its object must be to state the truth; assistance for which can be ascertained from (i) whether the confession appears truthful within the context of the prosecution case and (ii) whether there is any other evidence on record which tends to corroborate the truthfulness of the confession and
(iii) Only minor irregularities regarding the rules concerning the recording of judicial confessions can be permitted as determined on a case to case basis the main criteria being that such irregularities have not adversely effected the voluntariness or truthfulness of the confession. In this respect reliance is placed on the cases of Muhammed Amin (Supra) and Mst Naseem Akhter (Supra). find that both the judicial confessions have been (a) made voluntarily and (b) that there object is to state the truth as is apparent from the other evidence on record which fits in with the prosecution case and that there are hardly any procedural irregularities in recording the same and as such we rely upon both the retracted judicial confessions against the appellants which corroborate/ support the evidence of eye -witness PW 7 Mateen as identifying the appellants who murdered the deceased by firearm.
(d) That the names of the other target killers given in the confessional statements ties in with the names which the appellants gave PW 5 Rangers Inspector Abdul Ghafoor, PW 6 Rangers Sepoy Muhammed Amir and PW 14 Jameel Ahmed who was the I.O. from the police at the time of their arrest. Like wise the manner of their arrest and the escape of there accomplices on 26.07.2017 when an unlicensed pistol was recovered from each of the appellants fully corroborates their confession.
These were independent witnesses and had no reason to falsely implicate the appellants and no enmity was suggested against them and as such we believe their evidence in respect of the arrest and recovery of the pistols from the accused. That the police and ranger PW's had no enmity or towards the appellants and had no reason to falsely implicate them in this case for example by making up their arrest or foisting pistols on them and in such circumstances it has been held that the evidence of the police PWs can be fully relied upon. In this respect reliance is placed on the case of Mushtaq Ahmed v. The State (2020 SCMR 474).
(e) Importantly and significantly PW 10 Khizer Illyas gave evidence that on 19.07.2017 his brother Qamar Illyas had called him from South Africa and gave him the account number of appellant Danish which he was to pay Rs. 50,000 into. He gave evidence that on 20.07.2017 he paid the Rs.
50,000 into the account of appellant Danish at Habib Bank Metropolitan.
Appellant Danish's bank statement was exhibited showing a cash payment in the said bank of Rs.
50,000 on the same day.
PW 10 Khizer Illyas is an independent witness who had no reason to falsely implicate the appellant.
His evidence was not dented during cross-examination and we believe the same which fully ties in with appellant Danish's judicial confession. Appellant Danish had no explanation as to why any- body should deposit Rs.50,000 into his bank account shortly after the murder of the deceased.
(f) That the medical evidence and medical reports as discussed above fully support the eye- witness/ prosecution evidence. It confirms that both the deceased were brought to hospital suffering from multiple firearm injuries and expired on account of those injuries.
(g) That although the pistol empty recovered immediately at the wardat did not lead to a positive FSL report the empties found at the scene and handed over by eye-witness PW 7 Mateen to PW 14 Jammel Ahmed who was the I.O. three days after the incident did produce a positive FSL report when matched with the pistols recovered from the appellants on their arrest and as such can be relied upon to link the appellants to the murders of the deceased. Even in some cases non recovery of crime empties has not been fatal to the prosecution case where the eye-witness is believed as in this case. In this respect reliance is placed on the case of Qaiser Khan (Supra)
(h) That all the PW's are consistent in their evidence and even if there are some contradictions in their evidence we consider these contradictions as minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the appellants. In this respect reliance is placed on the cases of Zakir Khan v. State (1995 SCMR 1793) and Khadim Hussain v. The State (PLD 2010 Supreme Court 669). The evidence of the PW's provides a believable corroborated unbroken chain of events from PW 7 witnessing the appellants shoot and murder the deceased to the deceased being taken to hospital and pronounced dead to the correct identification of the appellants at the identification parade to the arrest and recovery of the appellants to the judicial confessions of the appellants to the deposit of Rs. 50,00 in appellant Danish's bank account for carrying out the target killings to a positive FSL report in respect of the empties which were recovered from the gutter at the place of the incident with the unlicensed pistols which were recovered from the appellants on their arrest. (i) Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable doubt but we have also considered the defence case to see if it at all can caste doubt on or dent the prosecution case. The defence case is simply one of false implication by 'the police at the behest of the rangers as each of the appellants had been earlier arrested by the rangers and fixed in this case. Neither of the appellants gave evidence on oath. Each appellant brought one DW being their respective brother to support their case however one of them mentions that his brother went out to buy medicines and then disappeared however he failed to file any petition before the court in this respect whilst the other DW states that the other appellant was picked up from his house by the rangers however he filed no complaint about this abduction to any body and no neighbor even came forward to corroborate his version which DW's appear only to have come forward in order to save the skins of their close relatives. Thus, for the reasons mentioned above we disbelieve the defense case as an afterthought in the face of a reliable, trust worthy and confidence inspiring eye-witness and other corroborative/supportive evidence against the appellants which has not at all dented the prosecution case.
14. That the evidence shows that this was an orchestrated case of target killing whereby the appellants acted on instructions received from outside Pakistan whilst acting as hired guns in order to murder their political rivals and as such no leniency can be allowed in sentencing if the charges are proved as deterrent sentences are the only way to put an end to such practices which seem similar to the circumstances surrounding the death of former MQM leader Imran Farooq whereby assassins were sent from Pakistan to murder him in London, England.
15. Thus, based on the above discussion especially in the face of reliable, trustworthy and confidence inspiring eye-witness evidence and other corroborative/ supportive evidence mentioned above, we have no doubt that the prosecution has proved its case against the appellants beyond a reasonable doubt for the offences for which they has been convicted and hereby maintain their convictions and sentences.
16. As such the appeals are dismissed and the impugned judgment is upheld with the convictions and sentences handed down to the appellants being maintained.