' IRSHAD HASAN KHAN, C.J.---Through this common order we intend to dispose of Criminal Petitions Nos.92-K to 94-K of 2001 arising out of judgment dated 18-8-2001 passed by the learned Members of a Division Bench of the High Court of Sindh at Karachi whereby Special Anti-Terrorism Appeals Nos.34, 35 and 37 of 1999 were allowed in terms of the Short Order passed on 31-5-2001, which reads thus: ' For the reasons to be recorded later on,the Appeals No,34, 35 and 37 of 1999 filed by nine (9) convicts namely (1) Muhammad Amirullah, (2) Ezazul Hassan, (3) Muhammad Zubair Hussain, (4)
Muhammad Asif, (5) Nadeem Ahmed alias Nadeem Mota, (6) Muhammad Faisal, (7) Muqarrab Ali alias Nazar, (8) M.Abu Imran Pasha and (9) Muhammad Shakir are accepted. The reference for confirmation of death sentences through Confirmation Case No,14 of 1999 is declined. The appellants-convicts are acquitted in the cases. They shall be released forthwith if not required to be detained in any other case."
2. The prosecution case in a nutshell is that on 17-10-1998 Hakim Manzoor Ali complainant alongwith Hakim Abdul Qadir was waiting outside the Hamdard Dawakhana situate at Arambagh Road, Karachi for arrival of Hakim Muhammad Saeed of Hamdard (Pakistan), Ex-Governor of Sindh.
At about 06-02 hours Hakim Saeed's car bearing registration No,AB-1460 Honda Civic stopped near the gate of the Hamdard Dawakhana. The guard sitting in the car came out and opened the door of the car for Hakim Saeed, who alighted from the car and was received by Hakim Abdul Qadir.
Immediately thereafter indiscriminate firing started. Hakim Saeed, Hakim Abdul Qadir, Hakim Manzoor Ali, Wali Muhammad and Maroof received injuries. They were removed to the Civil Hospital where Hakim Saeed. Hakim Abdul Qadir and Wali Muhammad succumbed to the injuries.
3. Hakim Manzoor Ali, injured, caretaker of the Matab, recorded his statement at 07-30 hours, which were reduced into writing on a plain paper (Exh.B) giving first information about the incident His statement was later incorporated as F.I.R. No,216 of 1998 at Police Station Arambagh containing the facts narrated in the preceding paragraph.
4. During investigation, police secured four empties from the place of occurrence, prepared the memo., and sketch map, inquest reports of the deceased and injury sheets of the injured, secured Mazda Van allegedly used in the commission of offence with bullet marks and 26 empties lying inside. The police also secured Honda Civic Car of Hakim Muhammad Saeed and recorded statements of some of the P. Ws. Including driver Gung Khan, Muhammad Siddiq, personal guard of Hakim Muhammad Saeed and Maroof, guard on the same day.
5. The police arrested the respondents, secured weapons and got recorded confessions made by some of them. They, after collecting other evidence including ballistic and chemical examiner's reports, registered two cases: one F.I.R. No,333 of 1998 at Police Station Liaquatabad against respondent Shaikh Amirullah and the other F.I.R. No,398 of 1998 at Police Station Artillery Maidan against Nadeem Ahmed alias Mota. Thereafter, the respondents were challaned along with 15 other absconding accused on 30-13-1998 and sent up to stand their trial before the Special Military Court.
6. The proceedings in the case were still underway before the Military Court when, pursuant to this Court's judgment dated 17-2-1999 passed in Shekh Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504), the Military Courts established under Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance, 1998 (XII of 1998) dated 20-11-1998 were abolished and the case was transferred to the Anti-Terrorism Court No, VII, Karachi. The Anti-Terrorism Court proceeded with the case further from the stage it was left by the Military Court and at the conclusion of the trial convicted all the nine respondents and sentenced them to death and forfeiture of their properties. The case of 15 absconding accused was, however, ordered to be kept on dormant file for their trial upon their arrest. The respondents challenged the decision of the trial Court before the High Court of Sindh at Karachi by filing Special Anti-Terrorism Appeals Nos.34, 35 and 37 of 1999, which were heard alongwith reference sent by the trial Court for confirmation of sentences of death awarded to the respondents.
7. The learned Members of the Division Bench of the High Court, seized of the appeals, after hearing the learned counsel for the parties and discussing the ocular testimony, recovery of weapons at the instance of the accused, confessions made by some of the accused, identification parade and other evidence in detail, came to the following conclusion: "99. In the final analysis of evidence, we are of the considered view that in this case prosecution has failed to prove its case against appellants beyond doubt. Ocular evidence does not inspire whether the eye-witnesses were able to see clearly the assailants/appellants in the circumstances and were so sharp in their memory to be able to pick out the real assailants. Prosecution can seek support from other pieces of circumstantial evidence like motive, mobile phone evidence, identification and recoveries, but each piece of evidence is defective, either on the factual side or on the legal side. It is settled principle of law that one piece of tainted evidence cannot corroborate another piece of tainted evidence. We, therefrom, hold that it is fit case in which benefit of doubt can be given to the appellants."
8. Mr. Raja Qureshi, learned Advocate-General, Sindh contended that through these three petitions the acquittal by the High Court of Sindh of a total of nine accused, seven in one petition, and one each in the remaining two petitions, has been challenged. The learned Advocate-General argued that all the accused were awarded death sentences by the trial Court for the murder of three persons, namely, Hakim Muhammad Saeed, Hakim Abdul Qadir and Wali Muhammad, while on appeal the High Court acquitted all of them mainly on the following grounds:--
(i) the confessional statements of the accused were recorded after considerable delay and were neither voluntary nor corroborated by independent evidence;
(ii) the identification parade of the accused was delayed and defective in that the accused were not only exposed to general public through media but were also shown to the witnesses prior to the actual parade;
(iii) the recoveries of weapons of crime made from the nullah adjacent to the Sindh Secretariat were belated and evidence only by the Police Officials and if private witnesses were not available, the exercise should have been carried out in the presence of a Magistrate;
(iv) the testimony of the approvers was not helpful to the prosecution as pardon was extended to them under sections 337/338, Cr.P.C. Without obtaining the consent of the injured, legal heirs of deceased Hakim Abdul Qadir and Wali Muhammad and all the legal heirs of deceased Hakim Muhammad Saeed;
(v) the motive set up by the prosecution was immatter;
(vi) the ocular evidence was not confidence-inspiring.
9. Mr. Raja Qureshi, learned Advocate-General contended that 31 witnesses were examined in the case out of whom four were eye-witnesses i.e,, Hakim Manzoor Ali, Muhammad Sarwar Baig, Wahid Bux and Muhammad Siddiq. He argued that the prosecution case against the respondents stands proved beyond any reasonable doubt in view of the confidence-inspiring ocular evidence furnished by natural as well as injured witnesses, confessional statements of the accused, recovery of weapons of offence at the pointation of some of the accused, identification parade held in accordance with the procedure prescribed by law and that there was no motive to falsely implicate the accused by the eye-witnesses who were total strangers to them. The medical evidence falls in line with the ocular evidence. Recoveries of incriminating articles including that of the van which was used in the commission of the crime and yielded recovery of 26 empties of SMG did not suffer from any defect or legal infirmity.
10. In Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11) it was ruled, that the principle of appreciation of evidence in acquittal cases is that if the conclusion reached at by the Court is such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in that case in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.
11. The learned Advocate-General also read out some pieces of prosecution evidence to contend that the learned Members of the Division Bench of the High Court have misread the ocular evidence which has resulted in grave miscarriage of justice. He emphasized that the High Court has not considered the material that was available before it and the overwhelming evidence has been discarded on spacious grounds rendering the impugned findings as wholly artificial, shocking and ridiculous.
12. The principle relating to appreciation of evidence and scope of appeal against acquittal has been extensively dealt with by this Court in the case of Ghulam Sikandar (supra). In the instant case, however, a prima facie reading of the evidence shows overwhelming proof against the acquitted accused disclosing misreading of evidence resulting into grave miscarriage of justice as vehemently contended by the learned Advocate-General. Viewed in this perspective, the matter requires deeper scrutiny to examine the contentions raised by the learned Advocate-General.
13. As to the evidentiary value of confession, reference may be made to Muhammad Yaqoob v.
State (1992 SCM R 1983). One of the principles laid down therein is that any delay in recording a confession may not be fatal if the Court is satisfied that retracted confession is not tutored and was, in fact, made voluntarily. In the said case confessions of accused were recorded after they had remained in police custody for 11 to 15 days. This aspect of the matter also needs further consideration.
14. In Khurshid v. State (PLD 1996 SC 305) this Court ruled that while appreciating the evidence, the approach of the court "should be dynamic and not static. It should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the Investigating Agency prosecution, provided that same have not prejudiced the accused in the fair trial. The people are losing faith in the criminal judicial system for the reason that in most of the criminal cases the criminals get away without being punished on technicalities". Here, the accused-respondents were convicted by the trial Court after appraisal of overwhelming evidence against them. The contention being raised by the learned Advocate- General that the learned Members of the Division Bench of the High Court were in error in reversing the findings of conviction by directing acquittal of the accused, thus, required further examination.
15. Attention of the learned Advocate-General was drawn to para.43 of the impugned judgment which reads thus: "43. On the other hand Mr. M. Ilyas Khan, learned Special Prosecutor appearing for the State at the outset of his arguments did not support the convictions and frankly and fairly conceded to the acquittal of the appellants Muhammad Faisal, Muqarrab and Abu Imran Pasha. It was stated that appellant Muhammad Faisal was implicated by only co-appellants Shakir Langra and Amirullah in their judicial confessions. And appellant Muqarrab was implicated by only co-appellant Shakir Langra and Muhammad Zubair. The contention of defence and plea of alibi taken by the appellant Muhammad Muqarrab that he was in jail at the relevant time of incident was not controverted."
' Faced with this, he submitted not to press Criminal Petition No,92-K of 2001 to the extent of respondent No,7/Muqarrab Ali alias Nazar son of Muhammad Hand. As regards the remaining two accused-respondents, he pressed the case against them.
16. Leave to appeal is granted to reappraise the evidence with a view to examine the contentions raised in support of the case as referred to in para.9 above to the extent of Muhammad Amirulah, Ezazul Hassan alias Wazir, Muhammad Zubair Hussain, Muhammad Faisal (respondents Nos.1 to 6 in Criminal Petition No,92-K of 2001), M. Abu Imran Pasha (respondent in Criminal Petition No,93-K of 2001) nd Muhammad Shakir (respondent in Criminal Petition No,94-K of 2001). Non-bailable warrants of arrest be issued against these respondents. After being taken into custody, they shall be lodged in the Central Prison, Karachi till the conclusion of the appeals which, shall be fixed for hearing at an early date.
17. Before parting with this order, it may be pointed out that the observations made herein are purely tentative in nature confined to the points argued and raised before us and shall not prejudice the determination of appeals on merits and in accordance with law.