' ABDUL HAMEED DOGAR, J.---By common judgment we propose to dispose of Criminal Petition for Leave to Appeal Nos.235-L and 239-L of 1999 and Jail Petitions Nos.117.And 118 of 2000 as they arise out of judgment, dated 8-5-1999 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Criminal Appeals Nos.(SCT)-7 of 1999/(BWP) and (SCT)-10 of 1999/(BWP) whereby in Criminal Appeal No,SCT-7 of 1999 the convidtion and sentence of death awarded to petitioner Ahmad Hussain was maintained whereas the sentence of death of petitioner Muhammad Aslam awarded by the Special Judge, Special Court, Anti-Terrorism, Bahawalpur-I under sections 302/34, P.P.C. Was converted to imprisonment for life. In Criminal Appeal No,SCT-10 of 1999 the sentence of death awarded to the petitioner Ahmad Hussain was maintained and that of imprisonment for life to petitioner Muhammad Aslam was also maintained. Murder Reference No,4 of 1999 in respect of petitioner Ahmad Hussain was accepted whereas the same was declined in respect of petitioner.
Muhammad Aslam. The sentence of fine of Rs,5,00,000 (five lacs) to be paid as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased was, however, maintained against both the petitioners. In case of default they were ordered to suffer six month's S.I. Each.
2. Briefly, stated the facts of the case are that on 10-6-1998 a Rapat No,27 with regard to murder of Malik Muhammad Ashraf, D.I.-G., Bahawalpur was lodged by Muhammad Ahmad Khan, S.P. CIA., Bahawalpur which was incorporated in 154, Cr.P.C. Book and formal F.I.R. No,113 of 1998 was recorded on 11-6-1998 at 12-30 a.m. At Police Station Channi-Goth. In continuation of the above occurrence and in the same transaction the death of Mr. Abdul Rehman Bhatti, Additional Deputy Inspector- General of Police was committed on the same day at 9-00 a.m. In the office of the Deputy Inspector-General of Police, Bahawalpur and the -F.I.R. No,213 of 1998 was lodged at Police Station Cantt., Bahawalpur the facts of Crime No,113 of 1998 as narrated by Muhammad Aslam, S.P. CIA, complainant are as under:-- ' Complainant Muhammad Ahmad Khan, stated that on 10-6-1998 at 9-07 p.m., he reached Police Station, Baghdad-ul-Jadid, Bahawalpur alongwith Muhammad Iqbal Noon, D.S.P. (City), Bahawalpur, there he received a message from Ahmad Hassan, Head Constable No,1255, driver of official Car No,2800/BRD of D.I.-G., Bahawalpur. First of all he got him identified that he was Ahmad Hassan, who was speaking at the wireless, driver of the D.I.-G. Stating therein that he had committed the murder of Malik Muhammad Ashraf, D.I.-G. In the area of Police Station ChanniGoth and Abdul Rehman Bhatti, A.D.I.-G., in the office of D.I.-G. Bahawalpur. It was further stated, if anybody tried to stop him, he will also kill him by firing a brut. All the officers of District Bahawalpur, whose wireless sets were on, heard the voice of Ahmad Hasan and also his message. According to the complainant, he identified the voice of Ahmad Hassan, petitioner very thoroughly, thereafter, complainant on wireless spoke to Ahmad Hassan and told him his name, when the complainant became sure that Ahmad Hassan had identified him. Complainant advised him to have patience, and may not cause further any damage. Complainant also asked Ahmad Hassan petitioner to surrender himself before him and his life will be protected and only legal action will be initiated against him. After long consultation and conversation between these two, Ahmad Hassan petitioner agreed to surrender himself alongwith his weapon of offence and told the complainant that he was proceeding to Police Station Cantt. Bahawalpur and the complainant should also come there, so that he alongwith ammunition be taken into possession. This conversation on wireless was also heard by Ch. Riaz Ahmad, Commissioner. Bahawalpur, Syed Shaukat Ali Shah, Deputy Commissioner, Bahawalpur, Rana Waris Ali, Assistant Commissioner, Bahawalpur, Sardar Muhammad Yaqoob Khan, City Magistrate, Bahawalpur and other police officers and all of them proceeded to Police Station Cantt. Sanaullah Butt, S.I. Who was Additional Station House Officer, P.S. Cantt: after hearing this conversation on wireless, also returned to his Police Station. On his arrival at the Police Station, Ahmad Hasan Constable also reached there, in presence of abovesaid officials, he produced his service revolver, alongwith six live bullets, which were unloaded and three live bullets were also in his holster. At the time of producing the abovesaid ammunition, Ahmad Hassan stated that with this revolver, he had fired six shots on the person of Malik Muhammad Ashraf, D.I.-G. And official Car with its key, of the D.I.-G. Bearing No,2800/BRD which he had brought with himself. Alongwith all other articles were taken into possession through different recoveries memo. Separately. The petitioner Ahmed Hassan, produced dead body of deceased from the diggi of the car which was identified by the complainant, inquest report was prepared and the dead body was sent to B.V. Hospital for postmortem examination. He after opening the door of car produced two Klashnikovs with magazines which were taken into possession under separate memos. Six empty cartridges of 38 service revolver bore were also taken from inside the car and were sealed. Separate parcel of the revolver was also prepared and sealed. The parcel of Kalshnikov was also prepared and sealed. Blood-stained official uniform of the petitioner was sealed into parcel under Mushirnama. The petitioner was formally arrested in the case.
' It would also be relevant to produce here the facts of connected Case No,213 of 1998.
' As per verbatim of Anisur Rehman son of deceased A.D.I.G. The F.I.R. Was registered by Muhammad Siddique, Moharrir Head Constable, under sections 302/34, 120-D, 109, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997. According to the complainant his father was serving as Additional Inspector-General of Police in the office of the D.I.-G. Bahawalpur. On the day of incident at about 7-20 p.m. The complainant was sitting alongwith his friend Kifyatullah and Jamil-ur- Rehman in the lawn of his house when his father arrived from his office in uniform. He received wireless message that D.I.-G., Bahawalpur has cancelled his tour and has directed him to reach his office immediately. His father asked the complainant to bring his private car and then his father Abdur Rehman Bhatti with Jamil-ur-Rehman and Kifayatullah sat in the car and proceeded towards D.I.-G. Office. It was at about 9-00 p.m. The car of D.I.G. Came in the pourch of office, his father got up to receive D.I.-G. But petitioner Ahmad Hassan came out of car having Kalashnikov in his hand and raised Lalkara that he will not spare A.D.I.-G. Mr. Abdur Rehman Bhatti as he had made complaints against them to the D.I.-G. Saying so the petitioner fired brust at his father who sustained injuries and he fell down in the verandah. All of us tried to apprehend the petitioner but he threatened that he will not spare any one who will come near him and thereafter he brandishing the kalashnikov sat in the car of D.I.-G. And drove away the same towards Fareed gate. The complainant party removed A.D.I.-G. To the B.V. Hospital for medical aid but he succumbed to injuries near Fareed gate. The motive behind the incident was that petitioners suspected that deceased A.D.I.-G. Abdur Rehman Bhatti had made complaints against them to the D.I.-G., Bahawalpur.
3. Mr. Nazir Ahmad Sohail, S.H.O., Police Station Bahawalpur Cantt. After registration of case prepared injury statement and inquest report of the dead body and thereafter sent the same for autopsy. He sealed parcel containing blood and three crime empties from the place of occurrence under memo. He also took into possession one lead which had penetrated the wall.
4. On 10-6-1998 investigation was handed over to Muhammad Ahmad Khan, S.P. C.I.A., Bahawalpur.
He arrested the petitioner Ahmad Hassan who confessed before him that he had committed murder of D.I.-G. And A.D.I.-G., Bahawalpur. The petitioner also led to the recovery of Kalashanikov from him and magazine of the rifle containing 26 live bullets alongwith one live bullet in the chamber. Complainant Anis-ur-Rehman made an additional statement under section 161, Cr.P.C.
The Investigating . Officer took into possession copies of entries of Log Book in the Wireless Control Office and copies of Ruppat Nos.11 and 12. He recorded the statement of Muhammad, A.S.I., Shill Incharge and Muhammad Khalid Constable. He inspected the register and confirmed that Kalashnikov was issued to petitioner Muhammad Aslam. He recorded the statement of Rashid Ahmad, Kot Moharrir Incharge of the register. He recorded the statements of Ch. Riaz Ahmad, Commissioner, Syed Shaukat Ali Shah, Deputy Commissioner and Muhammad Yaqoob Khan, Magistrate under section 161, Cr.P.C. Petitioner Muhammad Aslam was arrested on 26-6-1998. Both of them were sent to Judicial Lock-up and an application was made to the Judicial Magistrate, Ahmed Pur East for summoning the petitioners and recording their confessional statements who recorded the same on 27-6-1998 in Criminal Case No,113 of 1998 of the Police Station Channi-Goth.
On completion of investigation they were sent up to face trial before the Court of Judge, Special Court-I, Anti-Terrorism, Bahawalpur.
5. Prosecution in order to establish its cases examined P.W. Abdur Rashid, Patwari, P.W. Haji Ahmad Patwari P.W. Bashir Ahmed, A.S.I., P.W. Shahid Ali, P.W. Hamid Hassan Shah, P.W. Muhammad Siddique, P.W. Taj Muhammad, P.W. Muhammad lqbal, S.I., P.W. Muhammad Khalid, P.W. Hafeez-ur- Rehman, P.W. Taj Muhammad, P.W. Haq Nawaz, P.W. Imtiaz Ahivad, P.W. Razi Khan, P.W. Syed Gul Hassan, P.W. Jan Faiz Ahmad, A.S.-I. P.W. Muhammad Anwar, P.W. Maqsood Ahmad, P.W.
Muhammad Sarwar S.-I. P.W. Khan Bahadur Ali Khan, P.W. Abdur Rashid, P.W. Rashid Ahmed, P.W.
Muhammad Abdullah P.W. Sanuallah Butt, S.-I. P.W. Mushtaq Ahmad P.W. Muhammad Abbas P.W.
Ch. Riaz Ahmad, D.C. P.W. Muhammad Ashraf P.W. Muhammad Yaqoob Khan, P.W. Muhammad Ahmad Khan P.W. Dr. Muhammad Lived Akhter, P.W. Syed Gul Hassan P.W. Rais-ur-Rehman, P.W.
Bashir Ahinad A.S.I., P.W. Muhammad Siddique P.W. Ahmed Raza, P.W. Nazar Hussain, P.W.
Muhammad Khalid, P.W. Muhammad Iqbal S.-I., P.W. Taj Muhammad, P.W. Munir Ahmad, P.W.
Sanaullah Butt S.-I., P.W. Rashid Ahmad P.W. Rab Nawaz, P.W. Anees-ur-Rehman, P.W. Kafayatullah Khan, P.W. Bahadur Ali Khan, P.W. Muhammad Yaqoob Khan, P.W. Haq Nawaz, P.W. Nazir Ahmad Sohail, S.-I. And P.W. Muhammad Ahmad Khan.
6. On 10-6-1998 P.W. Dr. Muhammad Javed Akhter who conducted autopsy on the person of deceased. Malik Muhammad Ashraf Khan noted 16 fire-arms injuries.
7. On 11-6-1998, P.W. Dr. Muhammad Javed Akhtar who conducted autopsy on the persons of deceased Abdur Rehman Bhatti noted 4 tire-arms injuries.
8. We have heard Mr. M.A. Zafar learned Advocate Supreme Court on behalf of the petitioners as well as Miss Yasmin Saigal, Assistant Advocate-General, Punjab and Ch. Nazir Ahmad, Advocate Supreme Court on behalf of the respondent/State and have gone through the record and proceeduings of the case in minute particulars.
9. The learned counsel for the petitioners in Criminal Petitions Nos.235-L and 239-L of 1999 in support of his cases based his submissions on the following points:--
(1) That the incident was unwitnessed one and admittedly no one had seen the actual occurrence and entire case hinges upon the circumstantial evidence which being weakest in nature should not have been made basis for conviction without any independent corroboration;
(2) The judicial confession, said to have been recorded by P.W. Bahadur Ali Khan, Judicial Magistrate was not in accordance with law and rules framed by the High Court hence is not admissible in the evidence for the following reasons:-
(i) It was recorded on oath hence loses its value.
(ii) After recording the same petitioners were handed over to the same police which is violative of the rules and is thus not voluntary in true and should not be relied upon.
(3) The recovery of empties, crime weapons, dead body of D.I.-G., blood beneath the dead body, blood-stained clothes and arrest of the petitioner were effected prior to lodging of F.I.R. And in such circumstances no sanctity could be attached to it.
(4) The last seen evidence rests upon the statements of police officials only as such is weak type of evidence and cannot be relied upon for the purposes of conviction.
(5) The motive as put forth in F.I.R. And in the case of prosecution rests upon the statement of Haq Nawaz, Reader of deceased D.I.-G. Who produced certain anonymous applications against the petitioners and is not established at the trial.
(6) Investigation in this case was conducted by C.I.A. Personnel who are not competent to investigate unless authorised.
' He lastly contended that the conviction and sentence have been mainly awarded to the petitioners on the basis of confessional statement which is recorded only in one case. Since it is separately recorded in another case, as such should not be relied upon in the other case.
10. On the other side Miss Yasmin Saigal, Assistant Advocate-General on behalf of respondent/State vehemently controverted the contentions of the petitioners' counsel and argued that prosecution has fully established its case against the petitioners in both crimes beyond any shadow of doubt. In the case of murder of D.I.-G. Malik Muhammad Ashraf Khan the prosecution has established strong circumstantial evidence such as extrajudicial confession, last seen evidence furnished by P.W. Nazir Ahmad, a private witness, and police officials namely, Jam Faiz Ahmad, A.S.-I., Maqsood Ahmad, FC and Taj Muhammad Driver, the production of dead body of deceased Malik Muhammad Ashraf Khan, D.I.-G. From diggi of the car at the behest of petitioner Ahmed Hassan. Irrespective of above she argued that the recoveries of two kalashnikovs with magazine, six empties cartridges fired from service revolver 38 bore alongwith revolver and bloodstained uniform were the main factor considered against them. According to her both of them volunteered to admit the guilt and their separate confessional statements were recorded by the Magistrate in which they candidly admitted to have killed Malik Muhammad Ashraf Khan, D.I.-G.
And Abdur Rehman Bhatti, A.D.I.-G. In order to avenge the act of their being removed from service.
She argued that since both acts were in the consequence of same transaction as such confessional statement recorded in one case would be valid in other case also. On the competency of confessional statements she replied that it was never recorded on oath. Delay if any in recording the same cannot be considered in such case where it is true, voluntarily and corroborated by other pieces of evidence. Here it is corroborated by the positive report of Forensic Science Laboratory, motive, last seen evidence and recoveries.
11. With regard to Crime No,213 of 1998 she argued that irrespective of strong circumstantial evidence .The eye-witnesses account is furnished by P.Ws. Anisur Rehman, Jamilur Rehman and Kafayatullah which stand fully established on record and could not be shattered though thoroughly cross-examined. In support of contentions she relied upon Khan Muhammad and others v. The State (1999 SCM R 1818).
12. We have given our anxious thought to the contentions raised at the bar and are in full agreement with the submissions of Miss Yasmin Saigal, Assistant Advocate-General. These are the incidents of highhandedness in which the petitioner not only acted in callous manner but in collusion with A each other committed brutal murder of high officials viz: D.I.-G. And A.D.I.-G. And thus did not deserve any leniency. Admittedly they hatched a conspiracy and in consequence whereof asked the Mobile Police following the car of deceased D.I.-G. To search for the mobile of Ahmadpur Sharqia and thus proceeded ahead alone, in order to accomplish their forecious object.
P.Ws. Nazir Ahmad, Jan Faiz Ahmad, Maqsood Ahmad, Taj Muhammad AFC escort driver of D.I.-G.
Have unanimously stated that they had seen deceased Malik Muhammad Ashraf Khan, D.I.-G.
Lastly in the company of petitioners. Ch. Riaz Ahmad, ex-Commissioner, Syed Shaukat Ali, Deputy Commissioner and Muhammad Yaqoob Khan, Magistrate have also stated at trial that they heard conversation in-between petitioner Ahmad Hassan and S.P. C.I.A. Muhammad Ahmad Khan on wireless admitting that he has killed D.I.-G. And A.D.I.-G. And wanted to surrender before him. The evidence of recoveries, extra-judicial confession, confessional statements, motive and medical evidence have been rightly relied upon by the Courts below.
13. Irrespective of the above a strong and independent ocular evidence furnished by P.Ws. Jamilur Rehman, Kafaytullah and Anisur Rehman is fully established on record. Though they were cross- examined at length yet nothing fruitful was gained by the defence. Both cases are so connected in time and space that they constituted one and same transaction as such the objection that separate confessional statements should have been recorded in each case, has no force, particularly when the motive too was common in them. In our view the judicial confessions are not only true and voluntary but stand corroborated by matching of empty bullets recovered from dead body of deceased D.I.-G. And from inside car, their positive ballistic expert report, motive, last seen evidence, extra-judicial confession and recoveries, thus, the delay in recording the same would not be material. This Court in the case of Khan Muhammad and others v. The State (1999 SCM R 1818) has dealt with the above aspect in detail and has concluded that delay in recording of confession by itself cannot render the confession nugatory if otherwise it is proved on record that the same was made voluntary. With regard to the next objection it is observed that the Magistrate in his satement has denied the recording of confessional statement on oath like the case in hand.
14. We have gone through the contents of confessional statement and the evidence of the Magistrate and have noted that the Magistrate had taken all the precautions and complied with all the formalities as required under section 364, Cr.P.C. Before recording the same. The confessional statements on the face of it do not show that the same were recorded after administering oath to the petitioners and the Magistrate has also explicity denied to have recorded the same on oath, as such the contention of the learned counsel has no bearing. About handing over the custody to the same police, we have noticed that the investigation in the matter was conducted by S.P., C.I.A.
Whereas the custody of the petitioners was produced from Jail by D.S.P., Ahmadpur Sharqia (not concerned one) who had handed over the custody to the Jail Authorities only. The petitioners have not been able to show that the said confessional statements were recorded under any inducement, threat or promise as such they are admissible in evidence in view of Article 37 of Qanun-e-Shahadat Order, 1984.
15. The contention that F.I.R. Was lodged after preliminary investigation, consultation and deliberation, lacks force mainly for the reasons that the very basis for registration of prosecution case depends upon the recovery of dead body from the diggi, crime empties, crime weapons at the pointation of petitioners, voluntarily surrendering and subsequent arrest by S.P. Muhammad Ahmad Khan. These pieces of evidence being the connecting links were the natural relevant factors for registration of F.I.R. Motive is also fully established in these cases. P.W. Haq Nawaz, the reader of deceased D.I.-G. Has candidly stated that D.I.-G. Had received numerous complaints in the form of anonymous applications against the petitioners and had asked A.D.I.-G. Another deceased to hold an inquiry into the allegation which prompted the petitioners to commit death of both of them.
16. The petitioners have not been able to show any prejudice caused to them in the investigation conducted by S.P., C.I.A. Muhammad Ahmad Khan as such no weight could be attached to the contention that merely he being complainant in the case was incompetent to be an Investigating Officer.
17. Learned counsel for the petitioners have failed to refer any infirmity, misreading or non- appraisal of the evidence. As such concurrent findings of the facts by the two Courts below did not call for any interference by this Court and the conviction and sentence recorded against the petitioner are maintained. Before parting with the judgment we appreciate the endeavour and assistance rendered by Miss Yasmin Saigal, Assistant Advocate-General Punjab.
' There is no merit in these petitions which as such are dismissed and leave to appeal is refused.