' MUHAMMAD NAWAZ ABBASI, J.---The appellants, namely, Muhammad Asif alias Khalid son of Muhammad Rafiq and Muhammad Yaqoob son of Habib Ullah, were challaned to face the trial along with Qari Muhammad Siddique, Qari Sarfraz, Muhammad Ajmal alias Akram Lahori and Rashad before the learned Judge Special Court Anti-Terrorism, Rawalpindi Division and Islamabad Capital Territory established under the Anti-Terrorism Act, 1997. The learned trial Judge having found the appellants guilty of the charge under section 302/34/109, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 convicted them vide judgment, dated 4-4-1998 and sentenced both of them to death of six counts for committing Qatl-e-Amd of (1) Martaza Khakpur, (2) Jamshed Kirimi,
(3) Khusraoabadi, (4) Ali Raza Jehani, (5) Hossein Asghari Bashkan and (6) Muhammad Asif deceased. The Appellants were also directed to pay a fine of Rs,20,000 on each count separately and in default thereof to undergo R.I. For two years each on each count. Qari Muhammad Siddique, co-accused of the appellants was acquitted of the charge whereas the remaining three accused, namely, Qari Sarfraz, Muhammad Ajmal alias Akram Lahori and Rashad were declared proclaimed offenders.
2. The appellants being aggrieved of their conviction and sentence filed Criminal Appeal No,85/T of 1998, whereas the Trial Court has sent a Reference bearing M.R. No,62/T of 1998, under section 25 of the Anti-Terrorism Act, 1997 for confirmation of the death sentence. The State has preferred Criminal Appeal No,103 of 1998 against acquittal of Qari Muhammad Siddique. We propose to dispose of all the connected matters through this single judgment.
3. The brief facts of the case in the background as set out in the F.I.R. (Exh.PJ/1) registered at Police Station Westridge, Rawalpindi on the basis of complaint (Exh.P.J.) lodged by Gul Muhammad, a traffic Police Constable (P.W.19) are to the following effect:--- ' That on 19-7-1997 he along with Muhammad Saghir Khan, F.C. (P.W.20) was present on traffic duty at Chohar Chowk, Peshawar Road, Rawalpindi. At 7.05 a.m. a Hiace Vehicle of white colour bearing No,RPT-1145 while coming from Peshawar side when reached Chohar Chowk, a person with beard of the age of about 30/32 years of the height of about 5.8' of whitish colour in black colour Shalwar Kamiz armed with Klashnikov suddenly appearing on the road opened fire at the vehicle causing injuries to the driver and other uniformed persons present in the vehicle. At the same time, another person of the age of 26/27 years of fair complexion and height of 5.9' with a white cap on his head, wearing Badami colour Shalwar Kamiz also armed with Klashnikov appeared at the scene and opened firing at the vehicle. As a result of the firing made by the above said two culprits, five persons travelling through the vehicle succumbed to the injuries caused to them at the spot and one person was removed to hospital in serious condition. The people present near the place of occurrence being frightened ran away and the accused escaped from the place of occurrence comfortably with the help of a third person of the age of 22/23 years with fair complexion wearing blue colour Shalwar, Kamiz who while coming there on a Honda Motorcycle 125 cc without registration number picked them on his motorcycle. The occurrence was also witnessed by Muhammad Saghir Khan P.W.20. Soon after the occurrence, a Government vehicle coming from Peshawar side, carrying Army Officers reached there and the officer travelling through said vehicle immediately removed the injured and the deceased to the Combined Military Hospital and also informed the concerned police about the occurrence.
4: Mirza Jamil Beg (P.W.25), Inspector/S.H.O. Police Station Westridge after recording the statement of Gul Muhammad, F.C., sent the same for registration of the case and himself proceeded to the spot. He during the spot inspection took into possession empty cartridges (Exh.P.5/1-19) with five lead bullets (Exh.P.6/1-5) and a missed bullet (Exh.P.7), vide memo. Exh.P.D. In presence of Sherbaz, and Maqsood Ahmad, S.Is. He also took into possession broken pieces of glasses and blood from the spot through memo. Exh.P.C. After completing the preliminary investigation at the spot, he proceeded to Civil Hospital, Rawalpindi and prepared inquest report (Exh.PX) of Muhammad Asif driver and then moved an application (Exh.P.W.) for the post-mortem examination of his dead body which was identified by Muhammad Aslam and Azhar Mahmood. The Inspector then proceeded to Combined Military Hospital, Rawalpinid and moved applications (Exhs.PY, PZ and PZA, PZB and PZC) for the post-mortem examination of the remaining five deceased (Iranian nationals).
He prepared their inquest reports (Exhs.PZE, PZF, PZG and PZH) in the hospital and the dead bodies were identified by Sqn. Leader Haseeb Baig (P.W.13).
5. Dr. Zain-ul-Abidin (P.W.5) conducted the post-mortem examination on the dead body of Muhammad Asif, driver of the vehicle and found the following injuries on his person during the external examination:---
(1) A lacerated wound of entry of fire-arm with burning around, 3.5 c.m. x 4.5 c.m., present over the back of the chest, below right shoulder and 5 c.m. Medical to right axilla.
(2) A lacerated wound of entry of fire- arm with burning around 2 c.m. x 1 c.m. Present just close to injury No, 1 . The margins of the injury were inverted.
(3) A lacerated wound of entry of fire- arm with burning around 2 c.m. x 2 c.m. Round present on the back of the right side of the chest, 11 c.m. Lateral to the lower end of the thoracic spine. Margins were inverted.
(4) A lacerated wound of entry of fire- arm with burning around, 2 c.m. x 1 c.m., about 2 c.m. Lateral and superior to injury No,3. The margins were inverted.
(5) A lacerated wound of exit of firearm with averted 5 c.m. x 3 c.m., oval shaped present on the back of the chest about 5 c.m. Below the root of the beck slightly right to the midline. It was communicating with injury No,1 i,e,, exit of injury No, 1.
(6) A lacerated wound of exit of firearm with averted edges 3 c.m. x 1.5 c.m., about 1.5 c.m. Superior to injury No,5. It was the exit of injury No,2.
(7) A lacerated wound of exit of firearm 2 c.m. x 2 c.m. At the back of the root of the neck about 3 c.m. Lateral towards right from the midline. It was the exit of injury No,3.
(8) A lacerated. Wound of entry of firearm with burning around, 1.5'c.m. x 1.5 c.m. Round, and inverted margins present on the skull at occiput about 10 c.m. Medial to the right ear.
(9) A burning laceration 3 c.m. x 1.5 c.m. x scalp deep was present at the back of the skull about 3 c.m. Superior to injury No,8.
(10) A lacerated wound of entry of firearm with burning around, 1.5 c.m. x 1.5 c.m. Round, inverted edges present on the abdomen over the right iliac fossa.
' In the opinion of the doctor, the deceased died due to multiple firearm injuries on his chest, abdomen and skull causing serious damage to the major organs of the body. The injuries were found antemortem and sufficient to cause death in the ordinary course of nature. Probable time between the injuries and death was immediate and between death and post-mortem was four to six hours. The tatooing marks were seen scattered around the abovementioned injuries on the chest and abdomen.
6. Dr. Munawar Hussain Gondal (P.W.14) while conducting the external postmortem examination on the dead bodies of Mortaza Khakpur, Ali Raza Jehani, Jamshed Kirimi, Hossain Asghari Bashkan and Muhammad Khursraoabadi, found the following injuries on their person:--- I. MORTAZA KHAKPUR:
(1) A circular wound 2.5 c.m. x 2.5 c.m. On front of left chest, 5 c.m. From left nipple and 6 c.m.
Lateral to midline (with collar abrasion), corresponding cuts were present on shirt and. Vest.
(2) A spindle shaped wound 2.5 c.m. x1 c.m. On front of left shoulder, 11 c.m. Below shoulder top and 12 c.m. From left nipple, tatooing, and blackening were present around wound in an area of 5 x 5 c.m.
(3) A spindle shaped wound of exist 4 x 5 c.m. On right arm, 20 c.m. Above elbow, and 10 c.m. Below shoulder top.
(4) A wound of entry of firearm, 1 x 1. c.m. Showing burning, and blackening on right arm, 4 c.m.
From injury Nos.3 and 16 c.m. Above elbow.
(5) A wound of firearm '1 c.m. x .5 c.m. Just right elbow.
(6) A wound of exist of firearm 7 x 5 c.m. On right lumber reion in mid axillary line. Abdominal viscera and fatty tissues coming out 21 c.m. Supro-lateral to umbilicus and 27 c.m. From roof of axilla.
(7) A grazed wound of impact of firearm 5 x 6 c.m. On anterior aspect of right axilla with adjoining area of 16 x 16 c.m. Showing tatooing, there was fracture of right humerus, a metalic piece was recovered from his clothes. II. ALI RAZA JEHANI:
(1) A wound of entry of firearm, 5 x 3 c.m., with gaping, collar of abrasion, burning, tatooing and blackening were present on right upper chest, with froth and blood in an area of 17 x 7 c.m., up to neck.
(2) A wound of entry of firearm, 1 x 1.5 c.m., on supero posterior aspect of right shoulder, 11 c.m. From
(3) A wound of firearm, 2.5 x 1 c.m. On right postero right lateral aspect of chest with burning tatooing and blackening were present.
(4) A grazed impact of firearm 3 x 1 c.m. On right anterior aspect of right lower leg with charring, burning and blackening as also tatooing were present.
(5)A wound of exit of firearm 8 x 4 c.m. On left side of abdomen, 10c.m. Shows multiple small holes.
(6)A lacerated wound of firearm, 4 in number of medial and posterior aspect of left arm, each measuring 1 x 1.5 c.m.
(7)A wound of entry of firearm 1 x 1.5 c.m., on medial aspect of left upper forearm.
(8)An area of 21 x 5 c.m. Shows tatooing, blackening and burning on back of left lower leg.
(9)A wound of firearm, 1 x .5 c.m., on left heel.
(10)A wound of firearm 1 x .5 c.m., on left postero-lateral aspect of chest.
' JAMSHED KIRIMI: (1)A wound of entry of firearm 6 x 5 c.m., on front of right lateral chest, with charring, 6 c.m. Antro lateral to nipple, 10 c.m. Below top of shoulder.
(2) A wound of entry of firearm 5 x 2 c.m. On right medial upper arm, with tatooing, 11 c.m. Below right shoulder top.
(3) A wound of entry of firearm, 1 x 1 c.m., on back of right middle forearm.
(4 ) A wound of exit 2 x 2 c.m., on medial aspect of right middle forearm, there was fracture right forearm.
(5) A tunnel shaped wound of firearm 7 x 6 c.m., on dorsal aspect of right hand, with tatooing, charring and multiple fracture of thumb index, middle fingers with wrist joint.
(6) A wound of entry of firearm 5 x 4 c.m. On right iliac fossa, gaping, tatooing and burning were present. Abdominal viscera visible.
(7) A wound of entry of firearm 4 x 1.5 c.m. On outer aspect of right hip joint.
(8) A wound of exit 5 x 3 c.m. On right lower abdomen, 4 c.m., in from lateral to umbilicus with 12 small oval injuries varying .5 x .5 c.m. To 1 x 1.5 c.m. In adjoining area superior to right lateral to umblicus. Abdominal viscera was coming out.
(9) A wound of firearm, 1 x 1.5 c.m. On right anterior chest, 2.5 c.m. Below nipple.
(I0) A wound 2 x 2.5 c.m. In the middle of front of chest, 10 c.m. Left and medial to right nipple.
(11) A wound complex showing multiple small hole with varying sizes 15 to 20 in number on front and lateral to neck upto chest.
(12) A wound of entry of firearm, .5 x .5 c.m. On anterior aspect of right lower thigh, 11 c.m. Above knee.
(13) A wound of exit of firearm, 4 x 3 c.m. On back of right lower thigh.
(14) A lacerated wound of firearm, through and through, 2.5 x 2.5 c.m. On penis, with amputation of body of penis and urethra.
(15) A wound of entry of firearm 1 x 1.5 c.m. On back of left upper leg, in an area of 6 x 7 c.m. With multiple oval injuries 7 in number of showing collar of abrasion and tatooing on right buttock near midline.
(16) Three small holes 2 x 2 c.m., each on posterior aspect of back of chest with fracture of thoracic cage. IV. HOSSAIN ASGHARI BASHKAN:
(1) A wound of firearm, 7 x 6 c.m. On right lateral aspect of chest, 6 c.m. From top of anterior axillary fold, 10 c.m. Lateral to midline.
(2) A wound of entry of firearm 3 x 2 c.m., 3 c.m. From injury No,1, and 7 c.m. From midline.
(3) Multiple spindal shaped wounds varying in sizes from 2.5 x .5 c.m., to 2.5 x 3 c.m., almost in middle of right arm, 6 in number, with profuse bleeding and fracture of humerus.
(4) A wound of entry of firearm 2 x 2.5 c.m., on right lateral thigh with gaping, an area of 7 x 2.5 c.m., showing tatooing on superior illiac spine.
(5) A wound of entry of firearm 3 x 1.5 c.m. On medial aspect of right upper thigh,. With burning and tatooing were present.
(6) A grazed wound of firearm, 6 x 1 c.m. On anterior aspect of right lower thigh with charring and blackening.
(7) A wound of entry of firearm 3 x 2 c.m., on back of left upper forearm.
(8) A wound of exit, 5 x 3 c.m. On anterior aspect of left lower forearm.
(9) A wound of firearm, 2 x 2.5 c.m. On medial aspect of left upper thigh. V. MUHAMMAD KHUSRAOABADI:
(1) A wound of entry of firearm 2 x 1.5 c.m., on right superior aspect of , head, 10 c.m. From pinna of *ear, margin inverted and burning were present.
(2) A wound of exit of firearm, 5 x 2 c.m., with gaping outward margin, brain matter was coming out, showing egg shell fracture of skull.
(3) A wound of firearm 2.5 x 2.5 c.m., on front of left chest 2 c.m. Medial to left nipple with circular pink coloration.
(4) A wound of entry of firearm 2.5 x 1 c.m. On anterior aspect of right upper forearm.
(5) A wound of exit of firearm, 7.5 x 1 c.m. Medial aspect of right upper forearm, with laceration of muscular tissues.
(6) A wound of firearm, 1.5 x c.m., on right lateral aspect of upper thigh, 29 c.m. Above knee, with multiple small adjoining injuries, muscular tissues were coming out.
(7) A wound of entry of firearm 1 x 1.5 c.m., on lateral aspect of right knee.
(8) A wound .Of exit of firearm, 4 x 5 c.m., on medial aspect of right knee. Tissues and bony fractures were visible.
(9) A wound of entry of firearm 2 c.m. x 2.5 on medial aspect of left forearm, with inverted margins.
(10) A wound of exit of firearm 5 x 4 cap., on lateral aspect of left forearm, fracture of forearm was visible.
(11) , In an area of 7 x 9 c.m., on left lower medial arm, there was multiple grazing extensive tatooing.
(12) A wound of entry of firearm, 2 x 2.5 c.m., with gaping on left superior illiac crest with fracture left hip bone.
(13) A wound of firearm, 7 x 2.5 c.m., spindle shape on left axillary line, 8 c.m. Below axilla, muscular tissues were coming out tatooing was present, a metalic piece was recovered from medial aspect of right upper thigh.
' In the opinion of the doctor all deceased died due to firearm injuries caused to them, which were sufficient to cause death in the ordinary course of nature. The time between the injuries and the death was immediate, whereas between external post-mortem examination and the death was about six hours.
7. Mirza Jamil Baig (P.W.25), also took into possession the vehicle (Exh.P.U), in which the deceased were travelling, through memo. Exh.PF and collected mat (Exh.P8), boots (Exh.P.9/1-3) and glasses (blood-stained) through a separate parcel vide memo Exh.P.E. He also took into possession the last worn clothes of the deceased and other articles through separate memos. Muhammad Asif appellant upon arrest on 22-10-1997 led to the recovery of Klashnikov (Exh P .12), Magazines (Exh . P .12/2-3) and another Magazine (Exh.P.13/1), 50 live cartridges (Exh.P.14/1-50) from Jisti Box (Exh.P.13) from the residential house of Muhammad Yaqoob, his co-accused, situated in Dhoke Matkal, which were taken into possession vide memo. Exh.PR attested by Muhammad Khalil (P.W.18) in addition to the Investigating Officer. Muhammad Yaqoob co-accused of the appellant produced a key from a bag (Exh.P.15) and got recovered a Klashnikov (Exh.P.16) along with Magazine (Exh .P.17/1-3) and rounds (Exh. P .18/1-50) from a box, which were taken into possession through a sealed parcel vide recovery memo. Exh.P.S. The said accused also got recovered two hand-grenades (Exh.P.19/1-2) lying in the said box, which were taken into possession vide recovery memo. Exh.PT. The above recoveries were also witnessed by Muhammad Khalil (P.W.18). Muhammad Yaqoob, accused while in police custody led to the recovery of motorcycle (Exh.P.10) allegedly used in the occurrence, from the shop of Babu Khan in Banghash Colony, Gali No,1, on 2-11-1997, which was taken into possession through recovery memo, Exh.PL. The recovery was witnessed by Iftikhar Ahmad, S.I. And Muhammad Ayub S.I. Thereafter, the accused were sent to judicial lock-up on 3-11-1997. During their custody with the police, an application (Exh.P.12/A) for the identification parade of Muhammad Asif appellant was moved and in consequence thereof, his identification parade was held on 25-10- 1997 in jail. The recovered weapons i,e,, the Klashnikoves were sent to Forensic Science Laboratory in sealed parcels and the co-accused of the appellants, namely, Qari Muhammad Sarfraz, Muhammad Ajinal alias Akram Lahori and Rashed being not traceable were declared absconders.
Qari Muhammad Siddique, co-accused of the appellants (since acquitted) was arrested from Masjid Aisha Siddiqa on 6-11-1997 and after completing the investigation submitted the challan against the accused for trial before the Special Court constituted under the Anti-Terrorism Act, 1997.
8. The Trial Court while proceeding against the appellants and the acquitted accused separated the case of the absconding accused under section 512, Cr.P.C. The charge against the appellants and the acquitted accused was framed under sections 302/34, P.P.C. And 109/216, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 for the allegation of committing the murder of six deceased and also providing protection to the absconding accused.
9. The prosecution examined 25 witnesses in all in proof of the allegations against the accused.
Azhar Mahmood (P.W.1) identified the dead body of Muhammad Asif deceased at the time of postmortem examination, whereas Nadeem Aslam (P.W.2) escorted his dead body in the hospital and handed over the last worn clothes of the deceased to the Investigating Officer. Liaqat Ali, constable (P.W.3) was given sealed parcels of blood-stained earth, pieces of glasses and empty cartridges for their delivery in the office of Chemical Examiner and the Forensic Science Laboratory at Lahore. Nazir Ahmad, Moharrar H.C. (P.W.4) was given these articles by Mirza Jamil Baig, Inspector in sealed parcels for keeping them in Malkhana, which were to be sent to the office of Forensic Science Laboratory. These parcels were handed over to Iftikhar Ahmad S.I. And the remaining parcels to Ahmad Sher constable for the delivery of the same in the office of Chemical Examiner at Lahore.
' Dr. Zain-ul-Abidin (P.W.5) and Munawar Hussain Gondal (P.W.14) have conducted post-mortem examination on the dead bodies of Muhammad Asif driver and five Iranian national deceased, respectively. Maqsood Ali, S.I. (P.W.6) and Sher Baz, S.I. (P.W.7) have witnessed the recovery of blood-stained earth and pieces of glasses and empty cartridges detailed above. He also witnessed the recovery of vehicle in which the victims were travelling Qamar-ud-Din, Draftsman (P.W.8) on the pointation of the P.Ws. Prepared the site plan (Exh.PG/1). Muhammad Naveed (P.W.9) stated that the motorcycle (Exh.P.10) was sold to him by Muhammad Yaqoob accused for a consideration of Rs,22,000 out of which he paid Rs,10,000 and remaining amount was promised to be paid at the time of handing over the registration book of the motorcycle. The receipt of the sale of motorcycle on a stamp paper (Exh.PH) with the signatures of the accused (Exh.PII/1) was produced by him in confirmation of his statement. He further stated that on 2-11-1997, Muhammad Yaqoob accused led to the recovery of said motorcycle from his shop.
' Iftikhar Ahmad, S.I. (P.W.10) recorded formal P.I.R. (Exh.PJ/1) on the basis of complaint (Exh.PJ) sent by Mirza Muhammad Jamil Baig Inspector/S.H.O. He also witnessed the recovery of key and the klashnikov from Muhammad Asif appellant and kept the same in safe custody for their onward transmission to the Forensic Science Laboratory at Lahore. He also witnessed the recovery of motorcycle at the instance of Muhammad Yaqoob accused from Bangash Colony. Zia Akmal (P.W.11) was deputed to guard the dead bodies of the five Iranian nationals, whereas Zulfiqar Ahmad (P. W.12), Ilaqa Magistrate has supervised the identification parade of Muhammad Asif appellant held on 25-10-1997 in Central Jail, Rawalpindi. The accused was identified by Caul Muhammad (P.W.19) and Muhammad Saghir (P.W.20) during the identification parade. Sqn. Leader Haseeb Tahir Baig (P. W.13) while posted at Pakistan Aeronantical Complex Kamra was performing the duty of Coordination Incharge for training of Iranian Cadets. He on receipt of information about the sad incident reached Combined Military Hospital, Rawalpindi and identified the dead bodies of Iranian cadets, namely, Ali Raza Jehani, Mortaza Khakpour, Hossain Asghari Bashkan, Muhammad Khusraoabadi and Jamshaid Karimi before the doctor. Muhammad Magsood, D.S.P./SDPO (P.W.15) recorded the translated statement of Syed Qazim Hamadi made by him in Persian. Abid Ali, A.S.I.
(P.W.16) was given a sealed parcel containing a klashnikov with three magazines and 50 live cartridges with two hand grenades in black bag and another parcel of klashnikov, three magazines, 50 live cartridges, one iron box along with a key and a lock by Muhammad Zarait Kiani, D.S.P. For keeping the same in Malkhana. Muhammad Basharat, A.S.I. (P.W.17) being Muharrir Police Station Ganj Mandi, Rawalpindi produced an affidavit along with a report (Exh.P.W.17/A) entered in the Rozenamcha regarding the missing of registration book of the motorcycle recovered at the instance of Muhammad Yaqoob accused. Muhammad Khalil Satti, Inspector (P.W.18) being an associate of the investigating team witnessed the recovery of the weapon of offence from Muhammad Asif appellant from the house of Muhammad Yaqoob accused.
' Gul Muhammad (P.W.19) being on traffic duty at the relevant time witnessed the occurrence and lodged the report (Exh.PJ) on the basis of which the case F.I.R. (Exh.PJ/1) was registered. He identified Muhammad Asif appellant in the identification parade as the main participant of the occurrence. Muhammad Saghir Khan, constable (P.W.20) while performing traffic duty at the time 'of occurrence at Chohar Chowk witnessed the occurrence and identified Muhammad Asif appellant in the identification parade held in Central Jail Adiala, Rawalpindi., Muhammad Munir (P.W.21) conveyed the information about the occurrence and also took photographs of the deceased and produced negatives of the same in the Court. He on the direction of Raja Mahboob, D.S.P. Prepared vedio cassette of the confessional statement made by the accused on 28-10-1997 and also played the vedio cassette in open Court. Muhammad Mahboob (P.W.22), D.S.P. Cantt.
Recorded the confessional statement of Muhammad Asif and Muhammad Yaqoob under police custody. The confessional statements of the accused recorded by him were kept in a separate sealed envelope.
' Muhammad Zarait Kiani, D.S.P. (P.W.23) stated that Muhammad Saqlain, S.I./S.H.O., Police Station Airport after arrest of the accused during the night between 21-10-1997 and 22-10-1997 produced Muhammad Asif appellant before him, and upon disclosure about the weapon of offence used by the accused in the occurrence, the same on his pointation was recovered from the house of Muhammad Yaqoob appellant. Ahmad Sher, constable (P.W.24) deposed that two persons of the name of Muhammad Ajmal alias Akram Lahori and Qari Muhammad Sarfraz were seen by him while entering in the mosque in the company of Qari Muhammad Siddique but before he conveyed the information to the police, they disappeared. Mirza Muhammad Jamil Baig, Inspector/S.H.O.
(P.W.25) has conducted the investigation with the association of the remaining police officials of different police stations. The detail of investigation conducted by him has already been described above.
10. The Special Public Prosecutor closed the prosecution case tendering the Reports of Chemical.
Examiner (Exhs.PZJ and PZK), the Reports of Serologist (Exhs.PZL and PZM) and that of the Forensic Science Laboratory (Exh.PZN).
11. The accused in their statements under section 342, Cr.P.C. Denying the allegations against them pleaded false implication. They also denied the recovery of weapon of offence at their instance and of making the confessional statements voluntarily. The accused neither produced any evidence in their defence nor themselves appeared in the witness-box under section 340(2), Cr.P.C.
The application under section 550, Cr.P.C. Moved on behalf of the accused for summoning of the persons named therein as witnesses, was dismissed. The Trial Court at the conclusion of the trial finding the two appellants, namely, Muhammad Asif and Muhammad Yaqoob guilty of the charge convicted and sentenced them in the manner stated above, whereas their co-accused, namely, Qari Muhammad Siddique was acquitted for want of proof of his guilt.
12. Mr. Basharat Ullah Khan, learned counsel appearing on behalf of the appellants raising the following contentions sought the acquittal of the appellants from the charge:-
(i) That unexplained delay in lodging the F.I.R. Created a reasonable doubt about the truthfulness of the story.
(ii) That the occurrence took place in the Bazar on the main road at the Chohar Chowk in presence of number of persons, but none was produced by the prosecution as witness except Gul Muhammad and Muhammad Saghir, the two police constables which is an evident proof of the fact that either no person, was prepared to make a tutored statement or it being un witnessed occurrence, the police has introduced the two police constables as eye-witnesses.
(iii) That Kazam Ahmad and Munir Ahmad, who were travelling through the vehicle, with the deceased and also received injuries, were the natural witnesses, but they were purposely not produced at the trial and thus, the material evidence was withheld with the motive to suppress the actual story.
(iv) That except Muhammad Asif driver of the vehicle, the dead bodies of the remaining deceased were not sent for post-mortem examination, therefore, the cause of death of these deceased was not ascertained. The medical evidence running counter to the eyewitnesses is in conflict to the ocular account.
(v) That as per newspaper publication, the appellants were taken into custody on 18-10-1997, whereas their arrest was shown on 22-10-1997, which made the identification parade of Muhammad Asif appellant doubtful as the possibility of showing the accused, to the witnesses while in custody with Police before holding the identification parade in the jail is not ruled oil,
(vi) That both the appellants have got recovered Klashnikov, the weapons of offence, from an iron box lying in a room of the house of Muhammad Yaqoob in his occupation, which is a fake recovery.
(vii) That the inquest report does not contain the description of the accused as well as the motorcycle, allegedly used in the occurrence, and also the name of Muhammad Saghir as eye- witness.
(viii) That as per site plan the vehicle of the deceased was attacked while coming from Peshawar side to Rawalpindi and the accused being on the opposite direction to the witnesses could not possibly be identified in the given situation.
(ix) That no person from the locality was associated while effecting the recovery of weapons of offence from the accused and the same have been made in violation of mandatory provisions of section 103, Cr.P.C. Cannot be used as incriminating material against the appellants. Further, the joint recovery from the house in possession of Muhammad Yaqoob is of no use and help to the prosecutions.
(x) That the investigation was not conducted fairly and honestly and the appellants have been taken into custody as suspects have been falsely involved in the case.
' Learned counsel pointing out minor discrepancies and citing some case-law in support thereof has questioned the truthfulness of the prosecution story.
13. Conversely, Malik Muhammad Kabeer, learned Assistant Advocate-General argued that the appellants were identified by the police constables present on traffic duty at the place of occurrence. The report of occurrence taken place in broad daylight was lodged by Gul Muhammad, Police Constable on duty without loss of time and, therefore, there was not a remote possibility of the substitution. He argued that Muhammad Asif appellant was correctly identified by the eyewitnesses in the identification parade held in Central Jail Adiala under the supervision of a Magistrate in strict observance of the rules on the subject and that the evidence available on the record does not suggest that the accused were arrested on 17-10-1997 and remained in police custody without producing before a Magistrate till 22-10-1997. The press news is, not admissible as an evidence unless it is proved in proper manner. Learned Assistant Advocate-General with reference ' to the confessional statements made by the accused before the D.S.P. In the police station argued that such statement being admissible under section 26 of the Anti-Terrorism Act, 1997, the guilt of the accused is proved beyond doubt. He alternatively argued that the admission of guilt by the appellants before the D.S.P., if is not considered as confession, it can be used as extra-judicial confession as corroborative evidence. Upon the recoveries, he argued that the crime empties recovered from the spot were dispatched to the concerned offices much before the recovery of the Klashnikoves at the instance of the appellants and, the same being wedded with the weapons of offence recovered from the accused was a strong corroborative evidence. He argued that the joint recovery of weapons of offence used by the appellants in the occurrence from the same place would not be fatal to the prosecution case as they jointly operated the common mission, therefore, the evidence of recovery is not excludable from the consideration on such technical grounds. He further argued that the factum of receiving firearm injuries by the six deceased in the vehicle and the spontaneous death is not deniable and that there being no doubt about the manner of receiving the injuries by the deceased, the non-availability of the postmortem report would not materially effect the prosecution case.
14. We have heard the learned counsel for the appellant as well as the learned Assistant Advocate- General at considerable length and given full attention to the arguments advanced by them in support of their respective stands and also perused the record in detail with their assistance.
15. The prosecution case rests upon the following evidence:---
(a) Ocular account consisting upon the two eye-witnesses, namely, Gul Muhammad and Muhammad Saghir, police constables on traffic duty.
(b) The identification parade of Muhammad Asif appellant.
(c) The confessional statements of the appellants before the D.S.P. In police custody.
(d) The recovery of crime empties from the place of occurrence and the weapons of offence with positive report of the Forensic Science Laboratory.
(e) Report of the Chemical Examiner regarding the blood-stained earth taken from inside the vehicle.
(f) The medical evidence of Muhammad Asif driver deceased and 5 others.
(g) The circumstantial evidence.
' The case is not that of the private enmity or any other background except the sectarian hatred as narrated by the prosecution. The deceased being Iranian nationals had no personal enmity or grudge with any person in Pakistan. They were on official training in Pakistan at Aeronautical Complex Kamm District Attock and were strangers to the witnesses as well as the accused.
Similarly, the accused being local had no acquaintance with the witnesses or the deceased.
Therefore, the motive of sectarian hatred given by the prosecution is found the real cause of occurrence. Factually, the accused had no personal enmity or grudge against the deceased, but they being Iranian Nationals belonging to Shia sect were not tolerable to the accused, statedly being the members of Sipah-e-Sihaba. The clash between the two Muslim sects is not unknown, therefore, the motive for the commission of this heinous offence being sectarian hatred is proved beyond doubt in the facts and the circumstances of the case.
16. Gul Muhammad (P.W.19), a Police Head Constable and Muhammad Saghir (P.W.20), a constable of traffic staff are the eye-witnesses of the occurrence. Gul Muhammad deposed that he while present on traffic duty on 17-9-1997 at Chohar Chowk, Rawalpindi witnessed the occurrence. The witnesses identifying Muhammad Asif accused in Court as one of the culprits, stated that he discharged a burst on the van hitting the driver through wind screen and at the same time, another person armed with Klashnikov discharged a burst on the van, as a result of the firing of the accused, five persons travelling in the vehicle died at the spot, whereas the driver of the vehicle and another were removed in injured condition to the hospital for medical aid. The two accused ran away from the place of occurrence through a motorcycle being driven by their third companion and in the meanwhile, a person while appearing at the scene on Honda 125 CC motorcycle with a clean shave person on the rare seat armed with 30 bore pistol raising Lalkaras fired in the air that if anybody would chase the accused, he will be destroyed by bomb blast. This witness immediately after the occurrence lodged the complaint (Exh.PJ) giving detail of the occurrence containing the names, of Muhammad Saghir, traffic constable and one Munir Ahmad as witnesses of the occurrence. He further deposed that the crime empties were collected by the Inspector and his colleagues from the spot in his presence, and denied that Muhammad Asif appellant was shown to him in the police station before the identification parade was held on 25- 10-1997, wherein he identified Muhammad Asif appellant as one of the culprits. He denied that the appellant had raised objection before the Magistrate that he was shown to the witness in the police station.
17. Muhammad Saghir (P.W.20), who was also performing traffic duty at the place of occurrence, identifying Muhammad Asif appellant as one of the participants of occurrence as accused has supported the prosecution story as disclosed in the F.I.R. And narrated by. Gul Muhammad P.W.19 at the trial. The eye-witnesses corroborated each other on each material point without any describable contradiction. The defence without challenging the presence of the eyewitnesses at the spot seriously contended that they being police officials were not reliable witnesses. The witness identified Muhammad Asif appellant as one of the accused in the identification parade as well as in the Court
18. Zulfiqar Ahmad, Magistrate (P.W.12) conducted the identification parade in Central Jail Adiala, Rawalpindi at 10.25 a.m. On 25-10-1997. He confirmed the claim of Gul Muhammad (P.W.19) and Muhammad Saghir (P.W.20) of correctly identifying Muhammad Asif appellant, amongst the ten other prisoners.
19. The defence despite lengthy cross-examination has not been able to bring anything on record dislodging the evidence of the identification of the accused at the time of identification parade, except the technical objections, which are not material to disbelieve or exclude the evidence of identification from consideration. The direct and independent evidence of two police constables, who witnessed the occurrence, identified the accused not previously known to them at the spot as well as in the identification parade and then in the Court has established the participation of Muhammad Asif appellant as an accused in the occurrence beyond doubt.
20. Dr. Munawar Hussain Gondal (P.W.14) conducted the post-mortem examination on the dead bodies of Mortaza Khakpour, No, 78 of 1997, passport No, A00151431-12-96, Jamshed Karimi, Passport No, A001514431-12-96, Muhammad Khusraoabadi, Passport No, A00151563112-96, Ali Raza Jehani, Passport No, 100149451-9-2-96, and Hossein Asghari Bashkan , Passport No, A00151463-12-96, which were identified by Sqn. Leader Haseeb Tahir Baig, P.A.C. Kamra (P.W.13), and Taba Tabien (Iranian Deputy Leader). The doctor has confirmed the deaths as a result of firearm injuries.
' The crime empties recovered from the place of occurrence were found matched with the weapons of offence i,e, Klashnikov subsequently recovered at the instance of the appellant from the box lying in a room of the residential house of Muhammad Yaqoob appellant. The recovery of Klashnikoves from the house of Muhammad Yaqoob appellant cannot be used as incriminating evidence against Muhammad Asif appellant. The Klashnikoves recovered from the house of Muhammad Yaqoob being in his exclusive possession can undoubtedly be used as corroborative evidence against said accused. There being no evidence that Muhammad Asif was living with Muhammad Yaqoob and was in joint possession of the room from where he got the Klashnikov recovered, matching of the empties recovered from the spot with Klashnikov allegedly recovered from Muhammad Asif would not be a corroborative evidence against him.
Be that as it may, even with the exclusion of evidence of recovery as such, the prosecution has successfully established the charge against Muhammad Asif appellant through the direct evidence of two eyewitnesses, namely, Gul Muhammad and Muhammad Saghir, who have identified the accused in the identification parade held in Central Jail Adiala, Rawalpindi and also in the Court. The taking place of deaths with firearm injuries is proved through the medical evidence. Additionally, the motive of sectarian hatred have been proved is a strong evidence in proof of guilt of Muhammad Asif appellant. Learned defence counsel except pointing out the minor discrepancies and the contradictions in the statements of the P.Ws. And criticizing the manner of investigation has not been able to show us any material on the record to suggest misidentification of Muhammad Asif appellant by the eyewitnesses. Learned counsel has also not been able to convince us through the evidence on record that the two constables were subsequently introduced as eye-witnesses of the occurrence and they were not present at the time of occurrence at the post. The report was lodged immediately after happening of the occurrence containing the names of the eye-witnesses. It being a day light occurrence, on the public road in the bazar, the police could easily introduce many persons as eye-witnesses of the occurrence but the same was not done. The two eyewitnesses being on traffic duty at the place of occurrence were the natural eye-witnesses of the occurrence, therefore, the objection of the learned defence counsel that no person from the public was cited as witness carried no weight in the given circumstances. The occurrence being an act of terrorism, the general public must be disappeared from the scene and, therefore, it cannot be expected that the persons present around the place of occurrence would remain present at the time of such an occurrence. The presence of eyewitnesses at the spot while performing official duty being beyond doubt, their witnessing the occurrence is unquestionable. The witnesses have identified the accused by face without describing' their names and other particulars, which fact fortified their claim of identification of the accused. The review of the evidence of eye-witnesses in detail repels the arguments of the learned counsel that the eye- witnesses were introduced subsequent to the occurrence. The prosecution having established the identification of Muhammad Asif, as one of the accused of the occurrence, who while armed with Klashnikov fired at the deceased has proved his guilt. However, the case of Muhammad Yaqoob appellant is distinguishable on facts.
22. Muhammad Yaqoob appellant, upon arrest was not put to identification parade by the concerned police for the unknown reasons. The most important and basic evidence of the identification of this appellant having destroyed by the Investigating Agency has created an incurable dent in the prosecution case to establish charge against him. The eye-witnesses categorically stated that they identified both the accused at the spot but Muhammad Yaqoob appellant was not taken to the identification parade to be identified by the witnesses, and consequently the participation of this appellant in the occurrence remains unproved. The identification of this accused in Court, by the witnesses without is identification in Jail immediately after arrest was of no value in the facts of the present case. The appellant having not identified by the eye-witnesses in the identification parade with the role played by him in the occurrence, the prosecution has not been able to establish his guilt beyond doubt. The evidence of recovery of Klashnikov at the instance of this appellant from the iron box lying in the room of his residential house and matching of some empties with the same itself is not enough evidence to sustain the conviction. The prosecution gave much importance to the confessional statement of the appellant before the D.S.P. While in custody in the police station. This confessional statement having not made voluntarily did not acquire the status of extra-judicial confession. The D.S.P. Displaying the recording of confessional statement through the video probably wanted to show that it was voluntarily made but he forgot that the appellant was not mentally free. The appellant if was ready to make a confessional statement voluntarily instead of recording of same by the D.S.P. To remove any doubt the appellant should have been produced before a Magistrate. The confession made before a police official of the rank of D.S.P. Was admissible under section 26 of the Anti-Terrorism Act, 1997, but the same still could be rejected by the Court, and necessary to be believed and given effect. Be that as it may, the apex Court in Mehram Ali's case (1998 SCM R 1156) has struck down the provisions of section 26 of the Anti-Terrorism Act, 1997 by virtue of which the confession before the D.S.P. Was made admissible and, therefore, the confessional statement made by Muhammad Yaqoob appellant before the D.S.P. Is not an evidence to be read as such and used against the accused. With the exclusion of the evidence of recovery, the confessional statement of the appellant and he having not identified through identification parade, the evidence of eye- witnesses in the given circumstances is of no help to the prosecution and the conviction and sentence of this appellant being not based on any evidence is not sustainable. We accordingly allow the appeal to the extent to Muhammad Yaqoob appellant and set aside his conviction and sentence. He is directed to be released from jail forthwith if not required in any other case.
23. Learned counsel for the appellants contended that except Muhammad Asif deceased driver only, external post-mortem examination of the remaining deceased have been conducted, the cause of their death being not ascertainable, the sentence of death awarded to Muhammad Asif appellant on more than one Court is not legal. He further argued that it being not clear that Muhammad Asif driver and his companion were killed by the finding of Muhammad Asif appellant or his co-accused, the extreme penalty of death to him is not justified.
24. We having considered the contention raised by the learned counsel for the appellant find no force in it and repel the same. We also do not find any mitigating circumstance in favour of Muhammad Asif appellant in the circumstances of the present case. Notwithstanding the fact that only external post-mortem examination of the deceased was conducted, the doctor has clearly expressed opinion that the injuries were sufficient to cause death in the ordinary course of nature in case of each deceased. Muhammad Asif appellant along with his companion while firing with Klashinkov collectively caused injuries to the occupants of the vehicle and caused death of six persons. The co-accused of the appellant, namely, Muhammad Yaqoob has been benefited for want of identification and direct evidence and not for any other reason, therefore, we are of the considered view that the conviction of the appellant under section 302(b), P.P.C., with death sentence on each count is not interferable.
25. We in the light of the above discussion dismiss the appeal of Muhammad Asif appellant confirming his death sentence on each count and answered the murder Reference to his extent in the positive. Criminal Appeal No,103/T of 1998 filed by the State against the acquittal of Qari Muhammad Siddique is dismissed in view of the observations made above.