' M. JAVED BUTTAR, J.---The appellants, Muhammad Rashid, Noor Rehman, Javed Shah alias Amjad Shah and Shams-ud-Din, were tried by the Judge, Special Court, Anti-Terrorism-II, Rawalpindi Division and Islamabad Capital Territory, in case F.I.R. No,194 (Exh.P.M/1) dated 23-9-1998, registered at Police Station Kohsar, District Islamabad, at 9-05 p.m.. For the offences under sections 302/381, 411/34, P.P.C., for the Qatl-e-Amd of Mst. Amina Aftab (65), dilring the course of theft/dacoity. The learned trial Court vide its judgment dated 22-5-2000 convicted the appellants under. Section 302(b), P.P.C. And sentenced them to death and under section 382, P.P.C., sentenced them to 7 years' rigorous imprisonment with a fine of Rs,10,000 each or in default to suffer 6 months' simple imprisonment. The appellants were also directed to pay, under section 544, Cr.P.C., compensation of an ,amount of Rs,3,00,000 (Rupees three lacs) jointly, to the legal heirs of the deceased and in case of default to pay the share, each is to suffer six months' simple imprisonment in lieu thereof.
The sentences of imprisonment were directed to run concurrently with a benefit of section 382-B, Cr.P.C. If any, available to the accused. The legality of their convictions and sentences has been challenged by the appellants through the present appeal.
2. The complainant, Aftab Akhtar (73), got recorded his complaint (Exh.P.M) at 8-30 p.m. At PIMS Hospital, Islamabad, recorded by Muhammad Bashir, S.I/Investigating Officer, Police Station Kohsar, Islamabad, to the effect that he was resident of House No,1-C, Street No,21, Sector F-7/2, Islamabad, he was Advisor of Islamabad Chamber of Commerce and was residing in the said house along with his wife and children for the last seven years, his two sons namely Jehangir Akhtar and Hummayun were residing with him whereas his daughters were living in their own homes, he went to his office in the morning, his sons left the house at 4-30 p.m. For joining seminar, he joined them at the seminar and thereafter at about 8-00 p.m. When they reached home, they saw that the doors of the house were lying open, the articles of the rooms were lying scattered thrown out of the window and his wife Amina Aftab, the deceased, aged 65 years' was lying unconscious on the floor of the kitchen, her hands and neck were bound with a string a tape was pasted on her mouth, hopping for her survival the strings were cut, tape was removed from the mouth and she was immediately shifted to PIMS Hospital but the Doctors declared her dead. The complainant further narrated that when his sons left home, his both servants, namely, Muhammad Rashid land Noor Rehman (the appellants) and Amjid (the appellant), who was on visiting terms with the servants, were available at the house and when they came back, they were absent and many valuable articles were missing from the house, the details of which were to be given by him later on, after the checking. It was further narrated that 2/3 days ago, both servants had committed a theft of certain articles from the house, upon which they were admonished by his wife and his son and he was certain that the accused Rashid, Noor Rehman and Amjid etc. In furtherance of common intention, took advantage of their absence and killed his wife and committed theft from the house of valuable articles and jewellery and had run away.
3. Muhammad Bashir, S.I. (P.W.15). Received the information and reached the PIMS Hospital alongwith other police officials and recorded the complaint dictated by the complainant at 8-30 p.m., on 23-9-1998, examined the dead body, prepared the inquest report (Exh.P.0), gave an application (Exh.P.P) for the conduct of the post-mortem examination, gave an application (Exh.P.Q) to the C.M.O, PIMPS to keep the dead body in the mortuary of the hospital, thereafter proceeded to the place of occurrence, prepared rough site (Exh.P.R) of place of occurrence, took into possession, during spot inspection, seat of chair (P.5), Softy Chappal (P.6), two pieces of Scotch tape (P.7/1-2), string of Shalwar (P.8), two pieces of cotton rope (P.9/1-2), a glove of left hand (P.10), Churri/Knife (P.11), Hair Clips (P.12 /1-13), a threatening writing/letter (P.13) vide recovery memo. Exh.P.0 and further took into possession, from the upper storey of the house, an adjustable Wrench P.1, a Screw Driver P.2, three broken brief cases P.3/1-3, a steel almirah, whose drawers and locks were found to be broken, P.4, vide recovery memo. Exh.P.B, recorded the statements of the P.Ws. Under section 161, Cr.P.C. And on the following day i,e, 24-9-1998, the complainant produced before him list of stolen articles (Exh.P.X) and on the same day, he received information that the accused had been apprehended by the police of Police Station Per Wadhai with lots of golden ornaments, cash and other articles, he alongwith the Police Constables went to Police Station Per Wadhai, accused Muhammad Rashid, Noor Rehman and Javed Shah alias Amjid Shah (the appellants) were in the police lock-up of Police Station Pir Wadhai, they were made to join the investigation and were interrogated and during interrogation, they made a disclosure that their another companion/co-accused Shams-ud-Din (the appellant) had managed to run away from the Bus Stand Pir Wadhai, after postmortem examination, he handed over the dead body to complainant, obtained its receipt Exh.P.W and recorded, the statements of the P.Ws. Under section 161, Cr.P.C., on' 25-9-1998, he went to Police Station Pir Wadhai, recorded the statement of P.Ws.
Nazir, Inspector/S.H.0, Ghulam Murtaza, S.I, Muhammad Akram, A.S.I, Munazar, L.H.C, Syed Arif Hussain Shah and Syed Kamal Shah, under section 161, Cr.P.C., on the same day, Nazir, Inspector/S.H.0, Police Station Pir Wadhai, handed over photostat copy of Identity Card of accused Shams-ud-Din, recovered by him from Muhammad Rashid accused, Exh.P.W.15/A and on the same day, he went to PIMS Hospital and secured post-mortem examination report.
4. On 30-9-1998, this witness got transferred Muhammad Rashid, Noor Rehman and Javed Shah alias Amjid Shah accused and arrested them in the present case and obtained their physical remand. On 11-10-1998, he arrested Shams-ud-Din accused and obtained his physical remand, on 16-10-1998 Shams-ud-Din led to the recovery of a Golden Chain (P.54), two currency notes of 100 American dollars (P.53/1-2), a golden ring (P.55), from the house of his maternal uncle Saddar-ul- Din situated in Sector F-7/2, Islamabad, lying concealed in a polythene shopper (11.52), which were taken into possession vide recovery memo. Exh.P.K, site plan of place of recovery is Exh.P.K/1 and he recorded the statements of the P.Ws. Under section 161, Cr.P.C. In this regard, these articles were identified by Jehangir Akhtar, P.W., vide identification memo. Exh.P.L. The witness further stated that during interrogation, Shams-ud-Din accused made a disclosure that during the occurrence, the threatening letter/writing P.13 was written by him, so he submitted an application Exh.P.N/9 before the Illaqa Magistrate for obtaining specimen writing of Shams-udDin accused for its comparison, with the original threatening letter/writing P.13, the specimen writings in fast, medium and slow speeds (Exh.P.N to Exh.P.N/8) were sent to the Handwriting Expert, F.I.A., Islamabad, along with questioned writing (P.13) in a sealed parcel and the report was obtained: On 1-10-1998, he took the draftsman to the place of occurrence, site plans Exh.P.O and Exh.P.O/1 were produced before on 6- 10-1998 and after the completion of the investigation, he got challaned all the four accused/appellants.
5. P.W.10, Manzar Abbas Shah, H.C, Police Station Pir Wadhai, stated that on 23-9-1998, he was present at the Travel Adda, Pir Wadhai, Constable Muhammad Rashid was also on duty with him, at 7-40 p.m. Kamal Hussain, Security Guard of the said Adda/Bus Stand told him and his companion that three passengers had come to the Adda and they wanted to book an independent Wagon for Mansehra, the three passengers were identified by this witness before the trial Court at the time of recording of his statement as the accused Muhammad Rashid, Noor Rehman and Amjid, these three passengers were respectively carrying a Bag (P.48), Gunny Bag (P.49) and a Shopper (P.50).
On suspicion, the luggage of the accused was checked and found that it contained golden ornaments, tape recorder, camera, key rings, letter pad and currency of various countries and in the meanwhile, Haji Muhammad Nazir, Inspector/S.H.O, Police Station Pir Wadhai, reached their place alongwith Ghulam Murtaza, S.I. And Akram Khan, S.I. The above said three accused/appellants were produced before Haji Muhammad Nazir, Inspector/S.H.O, who recorded the statement (Exh.P.F) of this witness.
6. P.W.6, Haji Muhammad Nazir, Inspector/S.H.O, Police Station Pir Wadhai, stated that on 23-9-1998, he along with police contingent comprising of Ghulam Murtaza, S.I, Ibrar, S.I, Akram, A.S.I, Muhammad Iqbal, L.H.C, Javed Akhtar, Constable, were patrolling in the area when the above said accused were produced before him by Manzar Abbas, L.H.0 and Constable Muhammad Rashid, who were carrying bag and a shopper, as mentioned above. He took into possession all the articles and prepared a recovery memo. Drafted a complainant under section 411, P.P.C. And despatched the complaint through Javed Akhtar, Constable, for the registration of formal F.I.R.
' A note written by the learned trial Court shows that the case file of F.I.R. No,460 (Exh.P.F) dated 23- 9-1998, pending in the Court of Mr. Mashkoor Ali Khan, Judicial Magistrate, Rawalpindi, was requisitioned wherefrom a photostat copy of the F.I.R. And the recovery memo. Attested by the Court (originals seen and returned) were placed on, the file of this case, recovery memo. Is Exh.P.D.
On the following day all the recovered articles were identified by the complainant, vide memo.
Exh.P.E, Dr. Zaheer Piracha son of Din Muhammad and Jehangir Akhtar son of Aftab Akhtar also identified these articles. Golden bangles P.14/1-20, 8 golden rings P.15/1-8, golden paamo 8 in number P.16/1-8, 10 earrings P.17/1-10, silver set P.18, 600 US dollars P.19 and Pakistani currency amounting to Rs,10.000 P.20. These articles were recovered from the bag of Muhammad Rashid accused. 24 golden bangles P.21/1-24, 2 golden rings P.22/1-2, 8 golden necklaces P.23/1-8, golden bracelet P.24,5 golden lockets P.25/1-5, 12 golden earrings P.26/1-12, another golden earring P.27, 20 earrings P.28/1--20, Bundey ) and Koke ) 15 in number P.29/1-15, 6 key rings P.30/1-6, wrist watch P.31, another wrist watch Exh.P.32, 3 silver rings P.33/1-3,653 American dollars P.34, 500 Yen. P.35, 180 Pounds P.36, Israeli currency P.37, Pakistani currency amounting to Rs,16,433 P.38, were recovered from the gunny bag of Noor Rehman accused.
' The shopping bag of Amid accused contained 4 golden Kangans ( Crw) P.39/1-4, 2 silver Bundey )
P.40/1-2, a ring P.41, a chain P.42, a camera P.43, hair band P.44, a walkrnan P.45, a Sony Radio P.46 and a Tape Recorder P.47.
' This witness further stated that after due investigation of case F.I.R. No,460 of 1998 (Exh.P.F), he challaned all the three accused and during interrogation they had disclosed that their co-accused Shams-ud-Din had fled away from the place of arrest.
7. The learned trial Court charged the accused/appellants for the offences under sections 382/302/34, P.P.C. The accused pleaded not guilty and claimed trial.
8. The prosecution, to prove its case, produced 15 witnesses.
9. P.W.1, Dr. Muhammad Nasir, stated that the dead body was brought in the Emergency Ward of PIMS Hospital on 23-9-1998 at 8.00 p.m. And post-mortem examination was conducted by him and Lady Doctor Farhat Parveen on 24-9-1998 at 9-30 p.m.
' He generally found that it was the body of an old lady, only Shirt was bloodstained, the dead body was in a state of rigor mortis and there was post-mortem lividity and following injuries were found:-
(1) Very faint ligature mark on the middle of whole neck measuring.1 x 0.5 c.m.
(2) Bruising and scratches marks "over the nose and sides of the mouth.
(3) Ligature mark on the whole right wrist measuring 1 x 1 c.m.
(4) Ligature mark on the whole left wrist measuring 1 x 1 c.m.
(5) Ligature mark all around the right and left ankle measuring 1 x 1 c.m.
' On scalp dissection membranes of the brain and brain matter were found to be congested and there were petechial haemorrhagic spots., ' On thorax examination, it was discovered that both lungs and ear were having petechial haemorrhagic spots and there was blood-stained from in the tracheae.
' Both sides of the mouth had contusion and scratches.
' In his opinion, the deceased was strangulated and suffocated, which resulted in the blockage of the respiratory tract, causing first hypoxing, later on anoxia causing respiratory arrest and death.
All , injuries were found to be ante-mortem in nature and were sufficient to cause death in the ordinary course of life. The probable time between injuries and the death was 35 minutes and between death and postmortem was 15-16 hours. Post-mortem examination report is Exh.P.A and pictorial diagram of the injuries is Exh.P.1/1.
10. P.W.2, Lady Doctor Farhat Parveen, who conducted the post-mortem examination jointly with P.W.1 Dr. Muhammad Nasir, gave a statement on the lines of the statement of P.W.1 Dr. Muhammad Nasir.
11. P.W.3, Mrs. Neelam Ayub, daughter of the deceased, stated that on 23-9-1998 at about 5-3D p.m., she left from her house and went to her parents' house, stopped her car outside the house and below the horn, nobody came out, below the- horn again, upon which Noor Rehman accused came out of the house and when she was trying to come out of her car and had already opened its door, the accused Noor Rehman came to her side and told her that there was nobody else in the house and told her that her mother had gone to Airport with her brothers, she told him that she was going to Jinnah Market, may come back after short while, the accused Rashid was also present at the moment standing near them and he heard their conversation, both of them were in nervous state and were in a puzzled condition, she, however, went to Jinnah Super Market and came back after half an hour and when she reached at the crossing at the back side of her parents' house, adjacent to a college, she saw the accused Nocr Rehman and Rashid along with two others (duly identified in the Court as well, pointed out the accused/appellants Amjad and Shams-udDin) all four sitting in a taxi and came to her parents' house, saw that the car was not present in the car porch and finding no response to the repeat ringing of the bell, she concluded that her parents had not come back as yet and left for her house. In the, cross-examination, she affirmed that Noor Rehman had been admonished by her mother a couple of days earlier for having committed a theft of some socks and clothes. She further stated that Javed Shah alias Amjad Shah and Shams- ud-Din accused were known to her previously, though not by names, as they used to visit her parents' house every day in the afternoon to see Rashid accused and it was a normal routine that Rashid and Noor Rehman used to accompany the abovesaid two accused in the afternoons.
12. P.W.4, Aamer Shahzad, stated that he was on visiting terms in the house of the complainant as he had brotherly relations with his son-in-law Zaheer Hussain and his son Jehangir Akhtar and, therefore, knew the servants Muhammad Rashid and Noor Rehman and their friends Javed Shah and Shams-ud-Din, who used to visit the house and on 23-9-1998 at 5-00 p.m. He visited the house of the complainant and when he reached the western side of the house, he saw a person scaling over the back side of the wall of the house of the complainant, he came to the main gate and pressed the call bell, Rashid accused came to the gate, he was in a nervous condition, co- accused Javed, Noor Rehman and Shams-ud-Din followed him to the gate, he inquired from Rashid accused that who had scaled over the wall of the house and was pointed to Shams-ud-Din accused and was rendered an explanation that since the main gate was locked, he had used the back wall for his entry in the house.
13. P.W.5, Ajmal Waheed, had accompanied Muhammad Bashir, S.I, to the place of occurrence on 23-9-1998 and is witness of recovery memos. Exh.P.B and Exh.P.C.
14. The role, of P.W.6, Muhammad Nazir, Inspector/S.H.O, Police Station Pir Wadhai, has already been described in para. 6 above.
15. P.W.7, Aftab Akhtar, complainant, detailed and reaffirmed the facts of the complaint (Exh.P.M). He is also witness of recovery memos. Exh.P.B and Exh.P.C. He is also witness of identification of the dead body and a signatory, to the inquest report. He further narrated that after coming from Hospital, he prepared the list (Exh.P.J) of the stolen articles with the assistance of his daughters, which was handed over to the Investigating Officer and another to S.H.O, Police Station Pir Wadhai.
He also signed the memo. Of identification (Exh.P.E) of the articles recovered from the accused. He identified three accused Muhammad Rashid, Noor Rehman and Amjad Shah at Police Station Pir Wadhai. The articles were released to him on Superdari and were brought by him in Court for the purposes of identification of each article to prove the recoveries from the accused. In the cross- examination, he stated that the police recorded his statements for four times, firstly the complaint, then for the identification of the dead body: another for the recovery of articles taken into possession from his house and the one when he identified the articles recovered by Police of Police Station Pir Wadhai from the accused. The witness claimed that the ornaments/jewellery recovered from the accused belonged to his wife, the daughters and some of them were purchased for the bride of Jehangir Akhtar, P.W. Whose marriage ceremony was to follow shortly.
16. P.W.8, Jehangir Akhtar, son of complainant, stated that on 23-9-1998, he along with his brother Dr. Hummayun Akhtar left their house at about 4-30 p.m. And at that time his mother, the deceased,, was present in the house along with the accused Muhammad Rashid, Noor Rehman and their friend Amjad alias Javed Shah and when they came back at 8-00 p.m. Along with their father, they saw that the doors of the house were open and their mother was lying tied in the kitchen, her mouth and nose were gagged with a tape, the rope was cut, the tape was removed and she was taken to Hospital where she was declared dead. He claimed that his mother was put to death for the jewellery, cash and many other articles, which had been stolen. He further stated that on the same night, his father, brother-in-law and sisters went on to Police Station Pir Wadhai and identified the stolen articles. He is also witness of recovery memos. Exh.P.K and Exh.P.L, Which deal with the recoveries from the accused Shams-ud-Din. He went on to state that there were marks of violence on the neck, wrists and ankles and there were . Scratches on the nose of the deceased and the blood was oozing from her mouth and nose.
17. P.W.9, Syed Arif Hussain Shah, Proprietor, Safeways Transport Company, Pir Wadhai, Rawalpindi, stated that on 23-9-1998, he was present in his office and at about 7-40 p.m., the accused Muhammad Rashid, Amjad Shah and Noor Rehman came to him and desired to book a vehicle for Mansehra and after booking the same, these accused sat therein along with their luggage. He directed his security guard Kamal Khan, P.W., to sort out the luggage of the accused and ,on finding ornaments and cash etc. a Head Constable and a constable standing nearby were informed and in the meanwhile, S.H.O, Pir Wadhai, also arrived there and the recoveries, detailed above, were effected from the accused in his presence and he witnessed the memo. Exh.P.D.
18. The role of P.W.10, Manzar Abbas Shah, has already been detailed above in para. 5.
19. P.W.11, Badi-uz-Zaman, recorded the F.I.R. Exh.P.M/1.
20. P.W.12, Mian Muhammad Javed, Magistrate Section 30, Islamabad, stated that on 17-10-1998, the specimen writings of accused Shams-ud-Din in slow, medium and fast speed, Exh.P.N to Exh.P.N/8, were taken in his presence and attested by him, on the request of the police.
21. P.W.13, Qamar-ul-Din, Draftsman, prepared the site plans Exh.P.O and Exh.P.0/1.
22. P.W.14, Munir Ahmad Shah, Inspector, examiner of questioned document, F.I.A, Headquarter, Islamabad, compared the threatening letter (P.13) with specimen writings Exh.P.N to Exh.P.N/8 of accused Shams-ud-Din and found that they were similar in characteristics and accordingly gave his report Exh.P.P.
23. The investigation conducted by P.W.15, Muhammad Bashir, S.I, has been detailed above in paras. 3 and 4.
24. The prosecution gave up Ghulam Murtaza, S.I, Akram Shah, A.S.I and Kamal Shah, Security Guard, as unnecessary.
25. Muhammad Rashid accused in his statement under section 342, Cr.P.C. Admitted that he and Noor Rehman were employees of the complainant. The allegations were denied. In answer to Question No,17 that why this case against you, he stated that the case was false and it was their normal routine to go out in the afternoons every day, on the day of the occurrence, he and Noor Rehman went out of the house at 2-00 p.m. And returned at 6-00 p.m. And during their absence the deceased was done to death by someone and at 8-00 p.m. When the complainant and his sons returned home, they were weeping, the complainant and his sons locked them in a room and called the police.
' He also tendered in evidence copy of Form '13' issued by Directorate-General of Registration Exh.D and School Leaving Certificate Exh.D.
' Noor Rehman accused also gave a similar statement under section 342, Cr.P.C. As given by Muhammad Rashid accused.
' Jeved Shah alias Amjad accused in his 'statement under, section 324, Cr.P.C.., while denying the allegations, stated that Noor Rehman and Muhammad Rashid were not his friends, although they knew each other and he never visited them in the house of the complainant. He further stated that the family members of the complainant knew that he, Noor Rehman and Muhammad Rashid were residents of District Mansehra.
26. The accused Shams-ud-Din in his statement under section 342, Cr.P.C. Merely denied the allegations.
27. None of the accused opted to appear under section 340(2), Cr.P.C.
28. We have heard the learned counsel for the appellants, the complainant and the State and have also seen the record with their help.
29. It is submitted by the learned counsel for the appellants that the appellants are innocent, they have been falsely involved merely on the basis of suspicion, it was an unseen occurrence, the offence had no nexus with terrorism, no charge under section 7 of Anti-Terrorism Act, 1997 was framed, no conviction under section 7 of Anti-Terrorism Act, 1997 was recorded, the offence of section 382, P.P.C. Is not a schedule offence, a simple case falling under section 302, P.P.C. Is not triable by Anti-Terrorism Court, therefore, the learned Anti-Terrorism Court had no jurisdiction to try the present case and the trial suffers from a basic illegality. It is submitted next that the signatures of the appellants were not obtained by the learned trial Court on the statements under section 342, Cr.P.C. And the trial Court did not give any certificate under section 364(2), Cr.P.C., therefore, the trial is vitiated as the defect is not curable and the case has to be remanded back to the learned trial Court at the stage of the recording of the statements of the accused under section 342, Cr.P.C.
It has also been argued in this regard that non-certification has prejudiced the case of the accused as the questions regarding theft were not properly framed and the documents produced by the appellant Muhammad Rashid, regarding his age, were not properly exhibited and the learned trial Court failed to take the notice of the same. In support of his contentions, he has placed reliance on the following judgments:
(i) Wahid Bakhsh Rana v. The State (NLR 1989 Criminal 264),
(ii) Allah Ditta alias Gana v. The State (1997 P.Cr.LJ 533),
(iii) Gulan Jehan v. The State (1998 M LD 288), ,
(iv) Shaikh Zahid Bashir v. Sarkar and another (1995 P.Cr.LJ 877),
(v) Muhammad Khan v. The State (1995 P.Cr.LJ 1676).
(vi) Ashraf Mian v. The State (1990 P.Cr.LJ 1079) and Sikandar v. The State (1990 P Cr LJ 396).
' Lahly, it has been argued that at the time of occurrence, the appellant Muhammad Rashid was less then 18 years of age and the appellant Noor Rehman was only 14/15 years of age and the learned trial Court acted illegally- in ignoring the age factor by awarding maximum penalty of Death and in the alternative, it has been argued that the sentence is harsh and excessive because it is not known that which accused caused the actual killing.
30. The contentions have been vehemently opposed by the learned counsel for the complainant and the State and the reliance has also been placed on Liaqat Ali v. The State (2002 P.Cr.LJ 230).
31. We have gone through the entire evidence and placing the defence version in just a position with the prosecution evidence, it is our opinion that the prosecution through cogent and reliable evidence was able to successfully prove its case against the appellants, the chain of all the events leading to the theft and the murder of the deceased were properly linked with each other, the charges were fully proved and they were correctly convicted.By the learned trial Court. It is an admitted position that the appellant Muhammad Rashid and No'or Rehman were employed by the complainant and his family members, on the fateful day after 4-30 p.m. The deceased was left alone in the company of her servants, named above, and Javed Shah alias Amjad Shah, who being friend of the said servants, was already introduced and known to the complainant family. The appellants, Muhammad Rashid and Noor Rehman, in their statements under section 342, Cr.P.C., have 'stated that on the fateful day, they were present in the house and went out of the house at about 2-00 p.m. And returned at 6-00 p.m. And the offence was committed by someone during this period. Their conduct thereafter till 8-00 p.m. When the complainant and his sons returned home is most unnatural They did not inform anybody of the 'death of the deceased. The medical evidence qua the time of the death also negates their version as the same would fall between 7-00 to 8-00 p.m. The appellants, Muhammad Rashid, Noor Rehman and Amjad alias Javed Shah, were apprehended at about 7-40 p.m. At the Travel Adda, Pir Wadhai. Their story that they were available in the hOuse at 8-00 p.m. At the time of the return of the complainant and his sons has, therefore, been established to be false. The recovery of large quantity of ornaments, cash, foreign currency, electronic articles, duly identified by the complainant and his.Family members, directly connects the appellants with the commission of the offences of theft as well as murder of the deceased. The appellants, killed the deceased, looted the valuable articles and decamped. Their apprehension soon thereafter at the travel Adda led to the apprehension of Shams-ud-A Din. His presence on the spot at the time of the commission of the offences of theft and the killing of the deceased is proved by the document Exh.P.13, a threatening letter proved to be written in his own hand and the recoveries of ornaments and cash from him; identified by the P.W. Jehangir Akhtar further established the link. The P.Ws. Had no motive to falsely implicate the appellants. Their testimony was consistent, sound and credit worthy. Nothing in favour of the accused came out in their cross-examination. They committed the murder of the deceased Mst. Amina Aftab by use of force, they tied her limbs with the rope, gagged her mouth with scotch -tape and strangulated her with a rope. They have been correctly convicted under section 302(b), P.P.C.
32. The arguments of the learned ,counsel for the appellants in regard to the jurisdiction of the learned trial Court have no force. We do not want to make any comment regarding the nexus of the offence with terrorism as the appellants have not been convicted for the same. Suffice it to ; say that their trial by the Judge, Special Court, Anti-Terrorism, is not vitiated merely because, they were not charged under the provisions of Anti-Terrorism Act or convicted under the same. The arguments of the learned counsel for the appellants regarding the violation of sectary 364(2), Cr.P.C. Have also no force. The case-law on the subject was discussed by Division Bench of Karachi High Court in Liaqat Ali v. The State (2002 P.Cr.LJ 230), and avoiding the repetition and unnecessary details etc. It was correctly held that, " The earlier judgments in which it was held that the absence of signature/thumb-impression of accused on the statement under section 342, Cr.P.C. Or absence of certificate under section 362 in the handwriting of the trial Judge were fatal, stand overruled and has further been correctly concluded that the absence of signature of accused on the statement under section 342, Cr.P.C. And absence of certificate under section 364(2), Cr.P.C. In the handwriting of the trial Judge is not ipso facto and illegality, thereby vitiating the entire proceedings or making the proceedings from the stage of recording of the statement of accused onward unsustainable in law, necessitating remand of the case to the trial Court. On the contrary it is only an irregularity and the case is to be remanded back to the trial Court for fresh proceedings from the state of recording of statement of the accused, if an accused is able to show that the absence of the signature of the accused on the statement under section 342, Cr.P.C. Or absence of certificate of the trial Judge in his own handwriting had caused any prejudice to the accused causing any injustice. If no prejudice has been caused to the accused and no miscarriage of justice is shown Co have taken place the irregularity is curable and is not fatal to the conviction and sentence". We are in agreement with our learned brothers of the Karachi High Court and we adopt the same view.
33. We have scrutinized, in the light of the law discussed above, the questions asked by the learned trial Court to the appellants while recording their statements under section 342, Cr.P.C. And we do not find any illegality or infirmity in the same to lead us to a conclusion, as urged by the learned counsel for the appellants, that the same caused prejudice or caused injustice to the accused. The argument that the documents produced in defence by the accused/appellant, Muhammad Rashid, were not properly exhibited has also no force. Both the documents tendered by him in evidence while answering question No,19 stand exhibited and were considered by the learned trial Court while writing the judgment. It may, however, be mentioned her that the School Leaving Certificate produced by the appellant Muhammad Rashid as Exh.D Iiys not been signed by the learned trial Court: We are, therefore, of the view that the appellants have failed to show that the absence of their signatures on their statements under section 342, Cr.P.C. Or the absence of certificate of the trial Judge in his own handwriting had caused any prejudice or injustice to them and, therefore, these omissions are not fatal to their conviction and sentence or to the prosecution case. It has not been shown that what prejudice has been caused to the accused/appellants.
34. The prosecution has not, pointed out that who amongst the appellants caused the actual killing and we are, therefore, of the view that sentencing all the appellants to death for the Qatl-e-Amd of Mst. Amina Aftab was unwarranted, therefore, while maintaining the conviction of the appellants under section 302(b), P.P.C. The sentences of death awarded to them are altered to sentences of life imprisonment to each of them. The rest of the sentences and fines and the amount of compensation as recorded by the learned trial Court are maintained. The sentences of imprisonment shall run concurrently with a benefit of section 382-B, Cr.P.C. The appeal is accordingly dismissed.
Sentence reduced.