' ABDUL HAMEED DOGAR, J.---By a common judgment we propose to dispose of Special Anti- Terrorism Appeals Nos.74 and 75 of 1999 and Confirmation Reference No,21 of 1999 as they arise out of one and same judgment.
2. Appellants Mushtaq Hussain, Zahid Hussain and Waseem Tariq have assailed judgment, dated 3-7-1997 of Mr. Hussain Bakhsh Khoso, Judge, Anti-Terrorism Court No,IV, Karachi, whereby they were convicted under section 365 read with section 34, P.P.C., and sentenced to suffer R.I. For 7 years and fine of Rs,10,000 and in case of default to suffer further R.I. For one year. They we're also convicted under section 302(b) read with section 34, P.P.C., with imprisonment for life and fine of Rs,200,000 each as compensation under section 544-A, Cr.P.C., to the heirs of each deceased and in case of default they would further undergo R.I. For 2 years more. All of them were further sentenced to death under section 7 of the Anti-Terrorism Act, 1997 (hereinafter referred to as the "Act") read with section 34, P.P.C.
3. The case of prosecution in brief is that on 23-4-1998 complainant Abdul Rasheed came back to his house at about 9-45 p.m. After offering Isha prayer and found one unknown lady sitting, who narrated him the facts that his son Asif Ali and Dilsher Ali alias Kashif had come to her house on motorcycle and both of them had been abducted by Waseem Bhutto, Azadi and his 4 companions, who were armed with guns. She further told complainant that Azadi slapped her. The complainant thereafter, started search of his son Asif Ali and, nephew Dilsher Ali @ Kashif and in the morning time he came to know that the dead bodies of both of them were lying in Shadman Town, where he went and found the dead bodies lying there. He further stated in the F.I.R. That his son and nephew have been murdered by Waseem Tariq, Azadi and their 4 companions for their unknown enmity.
His statement under section 154, Cr.P.C., was recorded which was later on incorporated in F.I.R. The appellants were arrested on 13-1-1999 and were put to identification test before Judicial Magistrate Court No,VI, Karachi-East, where they were picked up by P.W. Mst. Hina. On the same day Zahid Hussain and Mushtaq Hussian were produced before the same Magistrate for recording their judicial confession and on their refusal they were remanded to jail custody. On 16-1-1999 appellant Waseem Tariq confessed his guilt before the Judicial Magistrate No,XIV, Karachi-East and, thereafter, was remanded to judicial custody.
4. On completion of investigation they were sent up for trial before the above-mentioned Court, whereas Shahid @ Sheda was shown as absconder.
5. A charge was framed against the appellants, to which they pleaded not guilty and claimed trial.
6. At trial the prosecution examined Dr. Muhammad Talib, who produced the post-mortem report of deceased Dilsher, complainant Abdul Rasheed, who produced his statement under section 154, Cr.P.C., and inquest report, P.C, Abdul Karim, who produced the mashiniama of dead bodies, inquest report and the place of incident, S.I.P. Faraz Gul, S.I.P. Syed Jaffar Abbas, who produced the receipt of dead bodies, Judicial Magistrate Mr. Maqbool Ahmed Memon, who produced 164, Cr.P.C., statement of P.W. Mst. Hina, letter of the along with order and mashirnama of identification parade, Medical Officer Dr. Manzoor Memon, who produced the post-mortem report of deceased, P.W. Mst.
Hina, S.I. Muhammad Younis, who produced the F.I.R., Judicial Magistrate Miss Tasneem Shah, who produced the judicial confession of accused Waseem Tariq and the Investigating Officer Inspector Abdul Lateef, who produced the mashirnama of place of vardat and arrest of accused and chemical report.
7. The appellants in their respective statements under section 342, Cr.P.C., denied the case of prosecution and claimed innocence.
8. Appellant Mushtaq Ahmed produced a separate written reply under section 265-A(5), Cr.P.C., which was kept on record.
9. The learned Trial Court framed the following points for determination:
(i) Whether deceased Asif Ali and Dilsher Ali alias Kashif were killed?
(ii) Whether on 23-4-1998 accused Mushtaq, Waseem, Tariq and Zahid Hussain alongwith absconding accused Shahid alias Sheda and dead accused Asif Kalia being armed with Kalashanikovs at 9-35 p.m. In furtherance of their common intention abducted Asif Ali and Dilsher alias Kashif Ali from the house of P.W. Mst. Hina and subsequently they committed murder of both the abductees by firing at them, and by committing their murders they created terror and sense of insecurity in the general public, as alleged by the prosecution?
10. On the assessm ent of evidence the appellants were found guilty and were convicted and sentenced as above, whereas co-accused Shahid alias Sheda was acquitted.
11. We have heard M/s. Abid Akram and Muhammad Akhtar Jamal, the learned counsel appearing on behalf of the appellants and Mr. Habib Ahmed, the learned Assistant Advocate-General, appearing on behalf of the State, at length and have gone through the record and proceedings of the case.
12. The learned counsel for the appellants mainly attacked the impugned judgment on the grounds that the learned Trial Court while convicting the appellants has relied upon the last seen evidence furnished by solitary witness Mst. Hina. According to them even her evidence is not reliable and worth consideration for the reasons that the same suffers from material contradictions which render the entire case of prosecution to be of highly doubtful nature. He further argued that the F.I.R., in this case has been lodged after preliminary inquiries and delay of 8 hours, for which no plausible explanation has been furnished. In fact the actual culprits, who committed offence, were let off by the police, whereas the appellants, who are innocent, were implicated in the case, which factor was not considered by the Trial Court while convicting them. They lastly argued that judicial confession of appellant Waseem Tariq was recorded on solemn affirmation as such it loses its value and cannot be relied upon for the purpose of corroboration and conviction.
13. On the other side, the learned A.A.-G. Submitted that under the circumstances of the case the impugned judgment is not sustainable in law.
14. In order to arrive at a proper conclusion it would be essential to discuss the evidence abduced at trial in minute particulars
15. F.I.R., in this case was lodged by P.W. Abdul Rasheed, father of deceased Asif Ali and uncle of deceased Dilsher Ali alias Kashif on the basis of information furnished by P.W. Mst. Hina. In F.I.R., the complainant disclosed that on the day of incident he came back to his house at about 9-45 p.m.
After offering Isha prayer and found a girl available, name not known, but identifiable by face. She narrated that about 10 minutes prior Asif Ali and Dilsher Ali alias Kashif had come to her house at Malir Colony on motor-cycle. Waseem Bhutto, Azadi and 4 others companions, names not known, duly armed with guns, entered inside her house and caught hold of them and took them away. She raised cries, on which Azadi slapped her and thereafter, they took away Asif Ali and Dilsher Ali while dragging. On such information the complainant alongwith his relatives started their search along with throughout the night, but could not find any clue. In the morning he came to know that the dead bodies of his son Asif Ali and nephew Dilsher Ali were lying in Shadman. He rushed there and saw the dead bodies of above two persons lying there. Thereafter, he went and lodged F.I.R., that the deceased were abducted by accused Waseem Bhutto, Azadi and their 4 complainants and were killed with fire-arms because of some unknown enmity. Complainant Abdul Rasheed while narrating the above facts at trial further deposed that he went to police station along with the same girl in rickshaw and disclosed facts to S.H.O.., who did not record his F.I.R., and asked to wait.
The girl disclosed to him that she was wife of his deceased son Asif Ali.
16. P.W. Faraz Gul, S.I.P. Of Police Station Sharea Faisal, disclosed at trial that on 23-4-1998 he was Incharge of Police Station when at about 10-00 or 10-15 p.m. Complainant Abdul Rasheed and one lady came there and complainant disclosed that his son Asif and nephew Dilsher have been abducted by the members of MQM Haqiqi. He flashed such information to S.H.O./D.S.P. Of the area and asked to lodge F.I.R., but the complainant refused and asked for the search of abductees. The search was made but the abductees could not be found. On 24-4-1998 at about 5-00 p.m. He received information that two dead bodies were lying in Street No,2 near Poultry Farm, Shadman Town, Karachi. The complainant and his companions went to the place of vardat and saw the dead bodies lying. In cross-examination he admitted that he had stated in his 164, Cr.P.C., statement that the complainant told him that the abductees were taken away by Waseem Bhutto, Azadi and 4 other's. In further cross he also stated that he had gone to the house of Mst. Hina and inquired about the incident from the persons of locality, but no one disclosed the facts of incident to him.
Nobody was present in the house of Mst. Hina, when he visited the same.
17. P.W. Jaffar Abbas, S.I.P. At KESC Police Station, in his statement at trial confirmed that on 23-4- 1998 he was on mobile duty and during the night hours he was called by duty officer of Police Station where he saw complainant Abdul Rasheed and one lady sitting. The complainant disclosed that his son and nephew were abducted by the members of MQM and, thereafter, he alongwith duty officer and the complainant set out for the search of the abductees but could not find. In the morning they came to know that the dead bodies of the deceased were lying in Shadman Town. In cross-examination this witness stated that he in his statement under section 161, Cr.P.C., had stated that the deceased were abducted by Waseem Bhutto and Azadi, which facts were disclosed to him by the complainant.
18. Mst. Hina (in her 164, Cr.P.C., statement) deposed that on 24-4-1998 at about 10-30 O'clock in the night she and her grandmother and Asif were in the house, whereas Kashif had gone to fetch curry.
When Asif went to close the door, he saw Shamim and Kashif alias Dilsher coming together, whereupon Asif tried to hide himself, but in the meanwhile Shamim knocked the door. Shamim was accompanied with 3 other boys to whom she does not know. Thereafter, Shamim with the help of the accomplices took away Asif out of house by force. She tried to rescue Asif, but Shamim slapped her and took away Asif alongwith his other accomplices. She ran after Asif, but Shamim and his accomplices asked her that they would not cause any harm to them, but will take them to Rizwan, whereafter she went to the father of Asif and narrated 'him the above facts and stayed there in the night. At 10-00 o'clock in the morning it was learnt that dead bodies of Asif and Kashif were lying in Shadman Town. She deposed at trial that she was married with Syed Ali Mustafa Shah, who was in jail since last two months whereafter she started residing with her grand-mother. According to her deceased Asif used to visit her house and after seeking divorce from her husband, she intended to perform marriage with him. On 23-4-1998 at about 10-00 or 10-30 p.m. Asif and his cousin Dilsher Ali, an employee of Pakistan Navy, came to her house. Asif inquired from her about the food items, to which she replied that she had prepared 'Masoor ki daal' (Masoor pulse), therefore, he gave Rs,100 to deceased Dilsher Ali for bringing food from the hotel. After few minutes 3 persons entered in her house along with deceased Dilsher Ali, whereas two stood outside the house. The culprits, who entered inside the house, were armed with kalashnikovs. All the 5 culprits were known to her by face, but their names were not known. She has further stated that deceased Asif tried to conceal himself under cot and she also attempted to close the door but was slapped by one of the culprits.
Thereafter, they abducted deceased Asif Ali and Dilsher Ali alias Kashif and took them towards plot situated near their house. The culprits were calling each other as Waseem Bhutto, Azadi and Shamim. Appellant Muhammad Mushtaq was standing outside. She thereafter, went to the house of Asif's father and narrated him the facts, who, after making telephone calls at different places, took her to police station Saudabad. Police did not lodge F.I.R., but asked to search the abductees in the first instance. In the morning the dead bodies of the abductees were found by the police. Her statement under section 164, Cr.P.C., was recorded by Magistrate. Identification of appellant was also arranged before Magistrate wherein she picked the appellants. In cross-examination she was confronted with her statements recorded under sections 161 and 164, Cr.P.C., and it is found that she has been changing the version with regard to the names of the culprits from the stage of narrating the facts in the first instance to complainant till her statement was lastly recorded at trial.
19. It would be relevant to refer here salient features of the said statements in order to adjudicate upon their veracity/truthfulness. Initially as per she disclosed to complainant the names of Waseem Bhutto, Azadi and their 4 unknown companions, who took away deceased Asif Ali and Dilsher Ali alias Kashif from her house at gun points, whereas in her 161, Cr.P.C., statement she nominated Shahid alias Sheda, Haji Nadeem and Naeem as culprits of the case. In her 164, Cr.P.C., statement she nominated Shamim and 3 unknown accomplices whom she did not know to be the culprits, who entered inside the house alongwith Kashif and abducted away deceased Asif Ali and Dilsher Ali alias Kashif. At trial Mst. Hina gave a different version of the incident by deposing that she saw 5 culprits who came alongwith Dilsher Ali, 3 entered inside the house, whereas 2 stood outside the house. The culprits, who entered inside the house, were armed with Kalashnikov and all the 5 were known to her by face, but she did not know their names. They took away the above- mentioned deceased to a plot near her house. They were calling each other as Waseem Bhutto, Azadi and Shamim. The culprit standing outside was Muhammad Mushtaq. In cross-examination she has categorically admitted that she in her 164, Cr.P.C., statement had nominated Shamim and his companions as the accused abducted away the deceased. She has also admitted that she has not taken the name of appellant Mushtaq in her 164, Cr.P.C., statement as he was not known to her by name. She also admitted in Court that she has stated in her 164, Cr.P.C., statement that accused Shamim had slapped her.
20. Irrespective of the above material contradictions, Mst. Hina was a lady of questionable character and she in her statement before the Trial Court has categorically said that deceased Asif used to visit her during the day and night and she intended to have a divorce from her previous husband Syed Ali Mustafa and wanted to perform marriage with deceased Asif, as such they used to visit each other. She also stated that after 3/4 months of arrest of her husband, she developed relations with deceased Asif. Even prior to her friendship with Asif she did not want to live with her husband. Her statement to this effect was supported by P.W. Abdul Latif, Additional S.H.O. Of Police Station, Saudabad, who recorded her 161, Cr.P.C., statement. According to him she had stated that she developed friendship with deceased Asif during the period he was accompanying her to see Syed Ali Mustafa in jail. She had refused to live with her husband though asked by her mother and because of the above facts her mother got angered and left her house. According to this witness she had also stated before him that after bearing Mst. Hina her husband had left her house.
21. S.I.P. Faraz Gul and Abdul Latif Additional S.H.O. In their respective statements recorded at trial have stated that they had gone to the vicinity where Mst. Hina used to reside and no one from the locality disclosed them anything about the incident. Even no one was present in her house at the time they visited her house. Investiagting Officer. Abdul Latif in cross-examination has said that during investigation he came to know that the deceased nominated in F.I.R., were not the real culprits, therefore, he did not try to arrest them. According to him the complainant in his further statement nominated Waseem Bhutto, Azadi and Shamim as culprits of the case and the complainant in his further statement recorded under section 161, Cr.P.C., has disclosed that P.W. Mst.
Hina had given him the wrong facts of the incident and incorrect names of the culprits. He has gone to state that after the identification test of accused he recorded further statement of Mst.
Hina as Shamim was wrongly nominated in the case, therefore, he did not arrest him. According to this witness Mst. Hina had told him that she was sure about the presence of Haji Nadeem, Shahid alias Sheda and Naeem at the time of occurrence.
22. Judicial Magistrate P.W. Maqbool Ahmed, who recorded 164, Cr.P.C., statement of Mst. Hina, has deposed at trial that Mst. Hina did not disclose the name of appellant Mushtaq in her 164, Cr.P.C., statement. She had disclosed the names of Kashif and Shamim as the accused, who abducted deceased. He also admitted that P.W. Mst. Hina had not taken the names of Shahid and Zahid in her statement recorded under section 164, Cr.P.C.
23. From what has been discussed above, it transpires that the entire case hinges upon the statement of Mst. Hina, the sole witness of the last scene incident. Admittedly she has not remained constant on the names of the culprits, who committed the incident and has been changing their names so much so that from her statement as well as the statements of Investigating Officer.
Abdul Latif and S.I.P. Faraz Ali, Additional S.H.O. Of Police Station Saudabad, it is not certain as to who are the real culprits. Her admission before the Trial Court that she did not know the names of the appellants even at the time of holding identification parade is an additional ground to disbelieve her statement. The statement of I.O. Abdul Latif that complainant disclosed in his 161, Cr.P.C., Statement that P.W. Mst. Hina had given him wrong facts of incident and wrong names of the culprits further makes the case of prosecution to be of highly doubtful character and in such circumstances same cannot be given any credential value and is liable to be discarded.
Irrespective of above, Mst. Hina, the sole witness, on whose statement conviction has been based, being admittedly of impeachable character, no reliance worth consideration be given to her words.
24. The prosecution has not been able to adduce any eye-witness account on the incident of killing the deceased, the same is, therefore, an unseen incident. We are fortified by a decision in the case of Sheikh Abdul Hameed, reported in 1992 PSC (Criminal) 284, in which the Hon'ble Supreme Court under the similar circumstances had dismissed the appeal against acquitted in respect of offence under section 364, P.P. C
25. Accordingly we are of the opinion that the prosecution has miserably failed to prove the charge against the appellants beyond any shadow of doubt. They are, therefore, acquitted and their conviction and sentence are set aside and the appeals are allowed. The Confirmation Reference is declined.
' The above are the reasons of our short order, dated 2-9-1999.