1. ' JUSTICE HAZIQUL KHAIRI (MEMBER).--- The abovenamed two appeals filed by the State under section 13 of the Special Courts for Speedy Trials Ordinance, 1992, against acquittal of respondents Nos.1 to 4 are directed against the judgment, dated 4-7-1992 passed by Justice (Retd.) Fakhruddin H. Shaikh, Special Court II (for Speedy Trial), Karachi acquitting the respondents.
2. ' The above acquittal appeals were admitted against respondents 1, 2 and 3, namely, Rajab All Brohi, Muhammad Akram and Bashir Ahmed but were declined in respect of respondent No,4 namely Saleem Memon as there was no piece of evidence against him vide order dated 15-7-1992.
3. ' Briefly the facts of the case are that the above 4 accused alongwith 12 absconders were tried for having conspired to commit murder of Mr. Nabi Sher Junejo, Judge, Special Court (Suppression of Terrorist Activities I), Karachi and in pursuance of the said conspiracy to have committed murder of Mr. Nabi Sher Junejo, his gunman Nishan and his driver Atiq Ghori by shooting them on 18-6-1991.
4. ' The case of the prosecution is that on 18-6-1991 at 9-00 a.m. One Mr. Perwaiz Iqbal, S.H.O. Of Risala Police Station, Karachi while patrolling, received information on wireless set, of firing on All Muhammad Dino Road. He reached the spot and found a Suzuki car in which three persons were lying dead. He took out the dead bodies from the Suzuki car in the presence of several persons present there and took action under section 174, Cr.P.C. The dead bodies identified were of Mr. Nabi Sher Junejo, his driver Atiq Ghori and his gunman, Shah. The dead bodies were despatched to the hospital after preparing inquest reports. He also recorded report of the incident under section 154, Cr.P.C. And got registered an F.I.R. At Risala Police Station the same day. Further, on the basis of information received by him, as to the involvement of a car bearing plate of Government of Sindh, in the crime, he also sent wireless messages to all police check posts etc. ' The Suzuki car in which the said three dead bodies were found, had marks of gunshots and was taken to the police station alongwith fifteen empties and one live cartridge recovered from it, which were sent to the Ballistic Expert under sealed packets.
5. ' On 18-10-1991 Mr. Perwaiz Iqbal S.H.O. Seized under a Mashirnama, a Swift Black Car No,GS 7564 at Shershah Chowk upon receiving information from Shah Nawaz S.H.O. SITE Police Station, its real registration number being R-3557 was found behind the fake number plate. Further investigation was concluded by Mr. Shah Nawaz Khan S.H.O. SITE Police Station which was subsequently taken over by Mr. Hakeem Khan Tanoli, Inspector S.I.C. (South) on 29-6-1991. He arrested accused Muhammad Akram from Golimar on spy information and upon his pointation accused Bashir was arrested. The latter led the police party accompanied by Mashirs Muhammad Siddique and Manzoor Shah to the house of accused Abdul Hameed son of Jilal to get him arrested, where one Klashnikov, two empty magazines, some photographs and 110 live cartridges were found in the cupboard, of which Mashirnama was prepared. An F.I.R. Under the Arms Ordinance was registered accordingly at the Police Station ICalri. Again on the pointation of accused Bashir, the police party was led to the house of Naseer Baloch in Old Golimar which was broken open and an iron box containing one Klashnikov and 65 live cartridges were recovered, of which Mashirnama was prepared and an F.I.R. Again under the Arms Ordinance was recorded at the Pak Colony Police Station.
6. ' On 14-7-1991, Bashir and Akram recorded their confession before Mr. Bahawal Khan, A.C.M.-X (South), Karachi. Earlier on 10-7-1991, he held identification parade of the accused Rajab Ali, Muhammad Akram and Bashir through P.Ws. Shabir Ahmed, Nazir Ahmed, Muhammad Siddique, Muhammad Yakoob and Muhammad Rafiq who were called one by one to identify them.
7. ' According to P.W.10, Karam Hussain, accused Rajab All was arrested in a murder case registered at P.W. Eidgah. So far as accused Saleem is concerned he was a suspect in a case of dacoity and was acquitted.
8. ' In support of the prosecution case as many as 22 witnesses were examined, whereas the evidence of ten witnesses was given up as not necessary or material. Khalid Ahmed, (Exh.37), an eye-witness was given up on the ground that he was won over and P.W.3 Muhammad Yakoob another eyewitness was also declared hostile, while his three employees, namely, Nazir Ahmed, Shabir Ahmed and Muhammad Siddique, who were eye-witnesses as well alongwith him to the gruesome murders were not examined as the prosecution closed its side without giving them up after about 10 months of the commencement of the trial.
9. ' Now the deposition as to the incident as given by P.W.18 Rafiq is that he was a taxi-driver and lived in Jacob Lines. At the time of incident he brought a lady to Defrin Hospital near Naveed Hotel, when he saw a black car parked about 25 paces away from the hotel with four persons sitting inside with fire-arms. He also saw two persons riding on a motor-cycle, who made signals to them and went to the parked car and talked to the persons sitting there. When he gave the fourth signal, the car moved and after about two or three minutes he heard gunshot and found three persons injured inside another car in front of press shops on the back side of City Court. The black car was also parked there but the armed inmates of the car had disappeared, so also the motor-cycle riders, whom he identified as Bashir and Akram before the trial Court as well as before the Magistrate.
10. ' The impugned judgment was assailed on a number of grounds most of which were general and vague in nature and not pressed either by Mr. Ikram Ansari, Deputy Attorney-General or Mr. K.M.
11. Nadeem, AA.-G. What however, was the main thrust of their arguments was that the learned trial Judge grossly erred in law by failing to exercise his jurisdiction under section 540 of Criminal Procedure Code as it was incumbent on him to have examined three eye-witnesses, namely, Nazir Ahmed, Shabir Ahmed and Muhammad Siddique, the employees of Naveed Hotel, who had identified the accused and even though the prosecution had failed to produce them. It was argued that in view of mandatory provisions of section 540, Cr.P.C. a primary duty was cast upon the learned trial Judge in regard to administration of justice which was not fulfilled. It was thus contended that in the circumstances, the case may be remanded to the learned Special. Judge for Speedy Trial for retrial with direction to him to take evidence of the three persons. It would be useful here to reproduce section 540 of the Criminal Procedure Code as under:- "540. Power to summon material witness or examine person present.--- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined, and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."
12. ' In Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95, the honourable Supreme Court while interpreting section 540 of the Code of Criminal Procedure, held that the provision contained therein is divided in two parts; one where it is only discretionary for the Court to summon a Court witness suo motu or on application and the second part where it is mandatory for the Court to do so. In that case questions relating to abduction, marriage and sex offences were held to be more essential to be determined after the enactment of the Family Courts Act (XXXV of 1964) and Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979). Since the trial Court failed in its duty and gave no finding with regard to the Nikah of the abductee and other controversions and contradictions of facts despite sufficient material on record it was held by the honourable Supreme Court that the trial Court has no discretion under second part of section 540, Cr.P.C. But to take additional evidence for just decision of the case. It was also held at the same time that when the action under the said provision amounted to so-called filling of a gap, the Court would for this reason, avoid its duty to admit the additional evidence.
13. ' Learned counsel for the respondents Mr. Shafi Muhammad, Mr. Riaz Brohi and Syed Bahadur All on the other hand contended that while hearing acquittal appeals under section 417 of Cr.P.C. It may not be overlooked that unless the judgment of trial Court was perverse, completely illegal and on perusal of evidence, no other conclusion can be made except that accused was guilty or that there has been complete misreading of evidence leading to miscarriage of justice, the judgment of the trial Court should not be interfered with as was held by the Supreme Court of Pakistan in Yar Muhammad and 3 others v. The State 1992 SCMR 46. Learned counsel also made reference to the case of Muhammad Usman v. The State 1992 SCMR (March issue) 489 where these cardinal principles were further discussed in the light of earlier decision reported in Ghulam Sikandar and another v. Mumtaz Khan and others PLD 1985 SC 11.
14. ' It may be stated here that the Special Courts for Speedy Trials Ordinance, 1992 under section 13 provides only one appeal to the Supreme Appellate Court. On one hand, it is the first appellate Court and on the other hand the Court of last resort. The Supreme Appellate Court even though a Court of last resort cannot divest itself of its functions as First Appellate Court of special criminal jurisdiction. Although by virtue of section 13(8), subject to the provision of the Act, it has all the powers under Chapter XXXI of the Code of.Criminal Procedure, yet the principles relating to acquittal appeals as laid down by the Supreme Court of Pakistan may not be lost sight of.
15. ' Now reverting to the facts of the case, accused Akram has denied having made confession before P.W.11, Bahawal Khan, A.C.M. According to him the confession was dictated by P.W.22 Hakeem Khan, Inspector Police to the clerk of the Magistrate and that before this, his signature was obtained on a plain paper. Accused Bashir has also denied his confession. The A.C.M. In his deposition has admitted that these confessions were not recorded by him but were dictated by him to his clerk.
16. Both these confessions word by word were the same and were recorded when the other accused was also present. The learned trial Judge therefore, did not believe the confessions made by both of them observing further that the confessions were dictated by P.W.22, Hakeem Khan Tanoli, Inspector Police to the clerk of the Magistrate. Learned trial Judge also observed that there is no proof that the motor-cycle recovered at the instance of accused Bashir was used in the crime.
17. Similarly the recovery of Klashnikov at the instance of the said accused was also held to be doubtful by him.
18. 'The findings of facts as to the alleged confessions made by the accused Akram and Bashir are borne out from the record itself in regard to which there is no controversy. Both the confessions are retracted confessions and have to be corroborated by independent reliable evidence. What may further be seen is whether the legal requirements contemplated under section 164 of the Cr.P.C.
19. Have been substantially followed or not. The confession of one accused in the presence of another accused may not be voluntary and may create a doubt that the accused may not have freely exercised his will and that he may not be under some threat or intimidation. Further doubt as to the authenticity of the confession is cast as word by word both confessions are the same.
20. ' The direct evidence now against these two accused persons was of P.W. Rafiq, the taxi-driver who was a chance witness living in Jacob Lines. Contrary to the prosecution case his deposition was that there was another car at the site of incident i,e. Swift Black car in which the four culprits fully armed with awaiting to commit the murdeRs, His deposition according to the learned trial Judge has completely demolished the prosecution case in which there is no mention of this car which was found at Shershah Chowk.
21. ' In so far as Rajab Ali is concerned, there is no eye-witness account of his involvement in the crime.
22. The learned trial Judge rightly held that in the absence of ocular or direct evidence, the recovery of empties of Klashnikov at his pointation or the report of Ballistic Expert (Exh.30) will not call for his conviction as the same can only be taken as corroborative evidence and not substantive evidence.
23. Similarly there is not a single witness who has deposed any thing against Saleem. It is for this reason that these acquittal appeals were not admitted against him for want of evidence vide order of this Court dated 15-7-1992.
24. ' Having come to the conclusion that on the basis of the said material before the learned trial Court, all the accused persons were rightly acquitted by him, it may now be seen whether the two acquittal appeals should be remanded under section 540, Cr.P.C. To the learned trial Court to examine the said three witnesses who were not available during the trial but are available now. At the outset it may be stated that it was the duty of the prosecution to produce these witnessses in which it failed despite the fact that section 8(1) of the Special Courts for Speedy Trials Act, 1992 prescribes a period of thirty days for disposal of a case by the Special Court. What may further be added here is that the prosecution itself closed its side without giving up these witnesses after about ten months of the commencement of trial. It was conceded by learned counsel for the State that at no point of time the prosecution pressed for their evidence as essential to the prosecution case but in view of their non-availability closed its side. Now as held in Muhammad Azam v.
25. Muhammad Iqbal PLD 1984 SC 95 where it is necessary for just decision of a case, the trial Court under second part of section 540, Cr.P.C. Has no discretion but to take additional evidence provided the action does not amount to filling up of a gap. In the present case there is no question of even filling up of a gap as there is no reliable substantive evidence against the accused persons and in any case the benefit of doubt existing in their favour as per record cannot be removed even by the best available additional evidence. The cardinal principles laid down by the Supreme Court of Pakistan in acquittal appeals, under section 417, Cr.P.C. Will serve as guidelines in dealing with appeals under section 13 of the Special Courts for Speedy Trials Ordinance, 1992.
26. ' The impugned judgment is a well-considered judgment and not the least perverse. Nothing has been shown from the record that there was any misreading of evidence leading to miscarriage of justice and the only conclusion which can be drawn from the evidence is that the accused were not guilty. Hence there is no force in the contentions raised by the State.
27. ' These are the reasons for dismissal of the appeals vide our short order dated 10-8-1992.