' SARMAD JALAL OSMANY, J.--- The facts and evidence in all the aforementioned three appeals are common having arisen out of F.I.R. No,122 of 1995 of P.S. Ferozabad and hence they are being disposed of through this judgment.
2. Briefly stated the facts of the case per aforestated F.I.R. Lodged on 2-3-1995 at 7-00 hours are that on the night between 1-3-1995 and 2-3-1995 at about 3-15 hours the complainant Inspector Anwar Zaib, S.H.O. P.S. Ferozabad, received a wireless message that firing had occurred at Bungalow No,10-J, Block-2, PECHS, Karachi. The complainant alongwith other officers and staff rushed to the said address where some women and children were present and also a boy Furqan Ayub aged 13/14 years who had fresh bullet wounds on his head. Upon enquiry he narrated the incident that on the same night at about 12-00 hours three accused persons aged between 22-30 years armed with pistols had entered into the house on the first floor. Thereafter on gun-point they assembled the deceased viz. Kamran Ayub, Muhammad Ayub, Maqsood Shah, Munawar Shah, Ejaz Hassan, Hassan Ali, Fayyaz Hassan and Imran Ayub alongwith himself on the second floor while detaining the women folk on the first floor. Thereafter they committed robbery from the houses of both the floors of jewellery cash and clothes etc. Which they transported to the car of Hassan Ali.
Then they tied the hands of all the above persons including Furqan Ayub and pushed them in a bed room when they fired upon them with their pistols as a result of which except Furqan Ayub the remaining seven persons were killed. The accused thinking that Furqan had also died fled away with the robbed articles in the car at about 2-45 a.m. The complainant then entered the bed room of the house at the pointation of Furqan Ayub where he found the dead bodies of the afore-stated deceased persons which were lying scattered with multiple fire-arms wounds. So also empties and household articles were lying in the house at both floors. The deceased were shifted to JPMC for medical examination and after completion of legal formalities the F.I.R. Was registered against three unknown persons for having committed robbery and murder of the seven deceased persons..
3. On 2-4-1995 appellant/accused Mansoor Ali Babar, Umar Hayat, Muhammad Fazil, Karimullah Shareef and one Asif Ali were arrested by I.O. Inspector Muhammad Rind near Akhtar Bilgrami Building, Badar Commercial Area, Phase-V, DHA, on the basis of spy information from a Yellow Tax Cab. Various arms and ammunitions were recovered from the accused alongwith wallets, wrist watches, phone diaries, mobile telephone, driving licences etc. However, other accused who were available in a Toyota Corolla Car made good their escape after abandoning the same, from which a mobile telephone and NIC of appellant Ahmad Bux was found. Thereafter the accused led the police party to a flat in the area and produced certain robbed articles viz. Clothing, watches, hangers, attache case, black suit case, video cassettes etc. Then the identification test of the accused persons as well as the case property was held through the prosecution witnesses and these appellants/accused also recorded their confessional statements before the concerned Magistrate.
4. On 10-4-1995 appellant Saghir Ahmad Shaikh was arrested by I.O. Insp. Muhammad Ali Rind from a flat in Zamzama Area DHA Karachi alongwith 3 other persons. Some clothes, a VCR and others items were recovered from the flat.
5. On 9-5-1995 appellant Ahmed Zahoor was arrested by S.-I. Sajjad Hyder from PECHS area while he was a riding Honda motorcycle from whom a wrist watch and one wallet was recovered.
6. On 15-5-1995 accused Khawaja Saleemuddin was arrested by S.-I. Sajjad Hyder in Sakhi Hasan area in Karachi from a Suzuki Khyber car. A .30 bore pistol alongwith a wrist watch and wallet plus telephone diary was recovered from him. He was put to an identification test and recorded his confessional statement on 21-5-1995 before a Magistrate.
7. Appellant Hafiz Ahmad Bux was arrested on 21-5-1995 from Central Prison Karachi. Nothing was recovered from him.
8. Finally on 28-5-1995 the challan was submitted against all the above named accused showing appellant/accused Fahimul Haq as an absconder. Sections 87 and 88, Cr.P.C. Proceedings were initiated and other formalities were completed thereafter the charge' was framed against the accused persons to which they pleaded not guilty and demanded their trial.
9. In support of its case the prosecution examined P.W.1 A.S.-I. Sarfraz Mashir of Wardat, P.W.2 Dr. Nawaz Ali who conducted postmortem examination of dead body of Ejaz Hassan, Hassan Ali, Fiaz Hassan' and Imran Ayub, P.W.3 Ahmed Ali Mashir who produced the memo. Of inspection of dead bodies. Exh.20 and inquest reports of deceased Kamran, Muhammad Ayub, Masood Shah, Ejaz Hassan, Hassan Ali, Fiaz Hassan and Imran Ayub as Exh.Nos.21 to 27, P.W.4 Dhani Bux Baluch, Magistrate who recorded the confession of accused Salimuddin Exh.29, P.W.5 Dr. Ayaz Ali who examined injured Furqan Ayub and conducted post-mortem examination of the deceased Kamran, Muhammad Ayub, Masood Shah, P.W.6. Majeed Abbas, S.I.P. Who had prepared the Mashirnama of Wardat and sketch, P.W.7, S.I.P. Muhammad Ashraf of Police Station Frere Hall who secured the car of deceased Hassan Ali and handed it over to Anwar Zaib, P.W.8 Manzoor Hussain, S.I.P. Of Ferozabad who prepared the inspection of dead bodies and inquest reports Exh.20 to 27.
P.W.9 Abdul Karim Sehwani, Magistrate who held the identification of robbed property and recorded the confession of accused Mansoor Ali Babar, Umar Hayat and Muhammad Fazil, P.W.10 Mst. Mumtaz Ayub, P.W.11 Furqan Ayub, P.W.12 Nazia Ayub, P.W.13 Faiz Batool, P.W.14, Sofia Hassan (all eye-witnesses), P.W.15 Maqbool Hussain Shah Mashir of recovery P.W.16 Abdul Rasheed Mashir of arrest of accused etc. P.W.17 Tauqeer-ur-Rehman Mashir of recovery of property and arrest of accused, P.W.18 S.I.P. Sajjad Hyder of CIA, P.W.19 Malik Arif Usman Mashir, P.W.20 Shakir Ali process- server, P.W.21 Muhammad Ali Rind Investigating Officer, P:W.22 Anwar Zaib Investigating Officer, who has given the account of his investigation as stated above and produced sealed envelopes received from the Ballistic Expert containing his opinion regarding the arms and finger prints etc. And acknowledged to have received sealed parcel of empties and bullets sent to him by P.W.
Anwar Zaib through letter dated 6-3-1995 and P.W.23 Shariq Hussain Credit Executive (Instaphone).
Learned S.P.P. Then closed the prosecution vide statement Exh.111.
10. The statements of the accused were recorded under section 342., Cr.P.C. The case of the accused is of total denial of the prosecution's allegations and they claimed their innocence on the basis of false implication'by the police. They examined the following witnesses in their defence:--
(a) Accused Mansoor Ali Babar examined his mother D.W. Reliana Begum.
(b) Accused Umer Hayat examined D.W. Gulshan and D.W. Muhammad Zafar.
(c) Accused Muhammad Fazil examined D.W. Muhammad Ameer and D.W. Azhar.
' All these witnesses stated that the accused were arrested from their houses respectively at night on 3-3-1995.
(d) Accused Karimullah Sharif examined D.W. Haji Kifayatuliah Sharif his father who deposed that his son was missing from 27-3-1995 and on 3-4-1995 he came to know about his arrest through the newspapers. So also D.W. Attaullah Khan deposed that accused was taken away by some persons on gun-point from a garage on 27-3-1995.
(e) Accused Ahmed Bux examined D.W. Qari Shamsul Haq and Moulana Abdul Ghafoor who deposed that accused was arrested on 10-3-1995 from the mosque after Juma prayers. Abdul Ghafoor further added that Muhammad Ali Rind had taken the NIC of accused from him.
(f) Accused Saghir Ahmed Sheikh has examined D.W. Abdul Matin who deposed that accused was on duty at his godown on 1-3-1995 from 9 a.m. To 11 p.m. And D.W. Shamsuddin deposed that accused was arrested from a mosque after Juma prayer and this witness further added that accused Salimuddin was arrested on 13-5-1995 from Bufferzone.
(g) Accused Salimuddin also examined D.W. Qamar Wahab who deposed that his stolen Car No,0232 Suzuki was recovered by police and he had seen it at CIA Garden on 3-5-1995.
(h) Accused Ahmed Zahoor has examined his mother in defence who deposed that he was produced at PS CIA Garden.
(i) Accused Ishtiaq (acquitted by the learned trial Court) examined his brother in defence that he was arrested from Sukkur by police of "B" Section Sukkur. But all the accused have declined to examine themselves on oath in disproof of the charge.
11. After having heard counsel for the State as well as for the accused the learned trial Court came to the conclusion that accused Muhammad Fazil, Khawaja Salimuddin, Ah.Mad Zahoor as well as absconding accused Fahimul Haq who had gone to the Flat in question and committed the murder of the deceased were guilty as charged and convicted them under section 302/34, P.P.C.
And awarded death sentence as well as a fine of Rs.1,00,000 each which if recovered would be distributed amongst the heirs of the deceased or in default thereof they were to undergo R.I. For 3 years each. They were also found guilty of having made an attempt over the life of P.W. Furqan Ayub hence convicted under section 307/34, P.P.C. And sentenced to undergo R.I. For 10 years each alongwith fine of Rs.10,000 each, in default thereof they would suffer further R.I. Of one year each. So also the abovenamed accused were found guilty of robbery and hence convicted under section 394, P.P.C. And sentenced to undergo R.I. Of 5 years each as well as to pay fine of Rs.10,000 each in default whereof they would suffer additional R.I. Of one year each. Accused Mansoor Ali Babar, Karimullah Sharif, Umar Hayat, Saghir Shaikh and Hafiz Ahmad Bux were found guilty of abetting the murder of the deceased as well attempt over the life of Furqan Ali as also robbery in question hence they were convicted under section 109 read with section 34, P.P.C. And sentenced to death.
They were further sentenced to pay a fine of Rs.1,00,000 each in default whereof they were to suffer 3 years more R.I. In case of recovery of the fine it was to be equally distributed amongst the heirs of the deceased.
12. Mr. Muhammad Ashraf Kazi appearing for the appellants Mansoor Ali Babar, Umar Hayat, Muhammad Fazil, Khawaja Saleemuddin and Ahmed Zahoor in Criminal Appeal No,202 of 1995 has submitted that the evidence against all the foregoing appellants consists of the following;--
(a) Ocular viz eye-witness account as well as the identification test.
(b) Confessions of the accused actually charged with the murders of the deceased.
(c) Confession of the co-accused.
(d) Recoveries.
(e) Medical evidence.
(f) Circumstantial evidence.
13. Learned counsel has firstly taken up the case of appellants Khawaja Saleemuddin and Muhammad Fazil who were charged with the actual commission of the deceased's murders. In this regard he has submitted that the evidence of eye-witness Furqan Ayub who had been injured could hardly be relied upon as firstly he was a minor when the incident occurred and secondly it could not be expected that he would be able to retain a photographic memory of the accused in the heat of the moment and thus, would be able to pick out the accused in the identification test or before the learned trial Court. Similarly, per learned counsel the other eye-witnesses viz. Mst.
Mumtaz Ayub, Nazia Ayub. Shazia Ayub, Faiz Batool and Safia Hassan are placed in the same situation. He has further submitted that the Judicial Magistrate A. Karim Sehwani has admitted in his cross-examination that only seven dummies were mixed with the accused in the identification parade which is not in accordance with law. In support of this proposition learned counsel has relied upon Saeed Muhammad Shah v. The State 1993 SCMR 550; Muhammad Sadiq v.
Muhammad Sarwar 1979 SCMR 214; Ayab Masih v. The State PLD 2002 SC 1048; Sard Ahmed v.
Zammarrud Hussain 1981 SCMR 795. As regards the confessions of Khawaja Saleemuddin and Muhammad Fazil learned counsel has criticized them as being stereotyped without there being a single error and quite similar to the confessions of co-accused Utnar Hayat, Karimullah Sharif, and Mansoor Ali Babar. In this regard he has further submitted that the confessions of the main accused are contradictory to each other as each of them have given a different version of the incident as well as ascribed different roles to themselves as well as other co-accused. He has also referred to the statements of these accused under section 342, Cr.P.C. Whereby they have retracted their confessions as according to them their signatures were obtained on, blank papers by the police and thereafter the confessions were typed on the same. Hence, per learned counsel in the absence of satisfactory corroboration which is not forthcoming in the case, the retracted confessions of Khawaja Saleemuddin and Muhammad Fazil cannot be taken into consideration in the instant case for the purpose of awarding them capital punishment. Similarly, the confession of the co-accused cannot also be used for this purpose. On this score alone the confessions deserve to he ignored altogether. Finally as regards the confessions of these accused learned counsel has submitted that no certificate under section 364(2), of the Cr.P.C. Has been given by the concerned Magistrate which in the circumstances of the case is a fatal defect which would render the confessional statements inadmissible in evidence. Reverting to the case of Khawaja Saleemuddin learned counsel has submitted that he has been shown as arrested on 15-5-1995 from a car at Sakhi Hassan Roundabout in North Nazimabad by A.S.-I. Sajjad Hyder during an encounter.
However, D.W.1 Qamar Wahab in his deposition has stated that this car was stolen on 26-4-1995 and on the evening of 3-5-1995 upon a message being received from C.I.A. Police Garden, he found his car standing there. He received back the car on 24-5-1995 through the Court. Hence learned counsel has submitted that in the circumstances how could the car be driven by accused Khawaja Saleemuddin on 15-5-1995. Accordingly per learned counsel the arrest and recovery from Khawaja Saleemuddin is entirely fake. As far as the arrest of Muhammad Fazil is concerned, learned counsel has submitted that this was shown on 2-5-1995 from a yellow cab in defence area and again cannot be substantiated. As per statement of I.O. Muhammad Ali Rind there was a police encounter but there is nothing on record o substantiate the same viz. Recoveries of empties etc. Or damage to .He yellow cab in question or for that matter the police vehicle.
14. Taking up the case of appellant Ahmad Zahoor learned counsel has submitted that he has never confessed and nor was he put to any identification test and also nothing was recovered from him which is of any consequence. However, he has been convicted on the basis of the co- accused's confession alone on the theory of abetment/common intention being the person on guard duty outside the building in which the murders were allegedly committed by appellant Muhammad Fazil and Khawaja Salimuddin on the day of incident. Again learned counsel has asserted that as the co-accused's confession is stereotyped etc. And hence hardly reliable for the basis of the conviction of appellant Ahmad Zahoor.
15. As regards the cases of appellants Mansoor Ali Babar and Umer Hayat in Cr. Appeal No,202 of 1995 again learned counsel has submitted that the arrest of these two accused from the yellow cab on 2-4-1995 cannot be substantiated as no evidence has been produced by the prosecution regarding a police encounter etc. Similarly the confession of these two accused are again stereotyped without any typographical errors and similar to the confessions of co-accused Muhammad Fazil and Khawaja Saleemuddin. As these confessions were retracted they had to be corroborated by other pieces of evidence which the prosecution has failed to accomplish. Hence per learned counsel these confessions also cannot be relied upon in the circumstances of the case for the conviction of the two appellants.
16. Learned counsel has next referred to the witnesses examined by the above appellants/accused in their defence viz. D.W. Rehana Begum the mother of Mansoor Ali Babar, D.W. Muhammad Gulshan on behalf of appellant Umer Hayat, D.W. Qamar Wahab on behalf of Khawaja Saleemuddin, D.W. Kifayatullah Sharif the father of the appellant Karimullah Sharif, D.W. Mst. Aysha the mother of appellant Ahmad Zahoor. D.W. Muhammad Aminuddin and D.W. Azhar Hussain on behalf of- the appellant Muhammad Fazil. Per learned counsel the depositions of the foregoing witnesses would show that each of the accused has a very good alibi which would establish firstly that on the day of incident there were available elsewhere, and secondly they were not arrested from the place as per the prosecution version.
17. Mr. Azizullah Sheikh appearing for appellants Hafiz Ahmad Bux and Saghir Ahmad Sheikh in Cr.
Appeal No,202 of 1995 has firstly submitted that both these accused were convicted on the basis of abetment for which the confessions of other co-accused viz. Mansoor Ali Babar, Umar Hayat, Muhammad Fazil, Khawaja Saleemuddin and Karimullah Sharif were relied upon. Per learned counsel all these confessions are contradictory to each other as different roles have been assigned to various accused persons. Secondly these confessions are stereotyped and not a single mistake has occurred which is very strange in the circumstances of the case. Hence as the confessions were retracted they had to be corroborated by independent evidence which is not forthcoming in the matter. Thirdly per learned counsel section 43 of the Qanun-e-Shahadat Order provides that even if a confession is proven to be true it can only be used against a co-accused as a circumstantial piece of evidence which is a very weak type of evidence and cannot on its own form the basis of a conviction. For the proposition learned counsel has relied upon Maqbool Hussain v.
The State PLD 1960 SC 382; Joygun Bibi v. State PLD 1960 SC 313 and Shabiul Hasan v. State PLD 1991 SC 898.
18. Next learned counsel has submitted that the arrest of both the accused is very dubious as it is full of contradictions. Taking up the case of appellant Saghir Ahmad Sheikh per the prosecution he was arrested from a flat in Zamzama area on 10-4-1995 as per the memo. However, per the I.O. He was arrested from the I.-G. Cell on 24-4-1995. Again per a news item in daily Jang dated 4-4-1995 this appellant is stated to have been arrested from Hyderabad whereas Qaumi Akhbar has carried a news item on 1-4-1995 that this appellant was arrested in Hyderabad on the same day. Next per learned counsel a certificate has been issued by the MCB, Market Chowk, Hyderabad dated 28-11- 1995 that appellant Saghir Ahmed Shaikh had been working as a temporary Godown-keeper from 1-2-1995 to 29-3-1995 and on 1-3-1995 he had been working from 9 a.m. To 11 p.m. Such certificate was produced by D.W. Abdul Matin Farooqi the Manager of MCB. Again DW Shamsuddin has deposed that this appellant was arrested on 31-3-1995 at Hyderabad from Madina Masjid Unit No,7, Latifabad. Hence per learned counsel the preponderance of the evidence would establish that the appellant Saghir Ahmad Sheikh was arrested in Hyderabad on 31-3-1995. Taking up the case of appellant Hafiz Ahmad Buz, learned counsel has submitted that his arrest which was shown on 21- 5-1995 from Central Jail, Karachi is again doubtful as.Both D.Ws. Qazi Shamsuddin and Qari Abdul Ghafoor have deposed that he was arrested on 30-3-1995 from a mosque at Karachi.
19. Mr. Mian Khan Malik appearing for Karimullah Sharif in Cr. Appeal 208 of 1995 has submitted that this appellant was convicted on the basis of abetment for which his own confessional statement was relied upon alongwith those of the other co-accused. Regarding such confessional statement as it was retracted there has to be independent corroboration which is missing in the matter.
Secondly learned counsel has supported the arguments of Mr. M.A. Kazi and Mr. Azizullah Shaikh as regards the evidentiary value of all the confession viz. That being stereotyped, contradictory and without any typographical errors, the same could not be relied upon to form the basis of a conviction. In this regard learned counsel has also submitted that there is a delay of four days in recording of the confession as the appellant was arrested on 2-4-1995 and his confession was recorded on 6-4-1995. Secondly, as regards this issue, per learned counsel after recording of the confession the accused cannot be remanded to police custody as was done in this matter and hence the value of such confession would be materially impaired. In support of his submission learned counsel has relied upon Wazir v. The State PLD 1960 Kar. 674; Syed Abid Hussain Shah v. The State 1983 PCr.LJ 882; Amanatullah v. The State 1986 PCr.LJ 523; Fateh Shah v. Muhammad Hassan 1983 PCr.LJ 1893. Finally per learned counsel nothing has been recovered at the pointation of this appellant although some articles were recovered from a flat allegedly rented in his name at the pointation of co-accused which were identified by the eye-witnesses. Per learned counsel in the absence of any concrete evidence that the flat in question was rented by the appellant mere recovery of the incriminating articles would not be sufficient to form the basis of a conviction on the theory of abetment.
20. Mr. Muhammad Ashraf Kazi appearing for appellant Fahimul Haq in Cr. Appeal No,62 of 1996 has submitted that this appellant was declared an absconder by the learned .Trial Court and was convicted in absentia. Per learned counsel the provisions for a trial in absentia are contained in section 5-A of S.T.A. Act according to which such a trial can only be undertaken against an accused after the Court is satisfied upon an inquiry conducted in this behalf, that the absence is deliberate and brought about with a view to impeding the course of justice, provided however, before the trial is undertaken a proclamation should have been issued in respect of the accused in at least three national daily newspapers out of which one should be in the Urdu language; and also after an Advocate has been appointed to defend the accused by the Court. Learned counsel has submitted that as none of the foregoing provisions of law had been complied with by the learned trial Court, hence the trial and conviction of appellant Fahimul Haq in absentia was totally against the law and the same should be set aside. In any event per learned counsel, a trial in absentia has been declared to be violative of Articles 10 and 25 of the Constitution which guarantee safeguards regarding arrest and detention and equality before the law respectively. In support of his submissions learned counsel has relied upon State v. Lal Muhammad PLD 1973 Pesh. 135; Sahib Dad v. The State 1993 PCr.LJ 1778; Ziaullah Khan v. The Government of Punjab PLD 1989 Lah. 554 and Government of Punjab v. Ziaullah Khan 1992 SCMR 602.
' As regards the delay in the filing of the appeal learned counsel has submitted that appellant Fahimul Haq was arrested on 20-2-1996 viz. After the impugned judgment was delivered and he filed the appeal on 3-6-1996 and hence the same is within time' keeping in view the provisions of section 29(2) of the Limitation Act. He has relied upon Ahsan Ali v. The District Judge PLD 1969 SC 167 and Ch. Khan Ali v. The State 1969 SCMR 42.
21. Mr. Muhammad Sarwar Khan, learned Addl. A.-G. Appearing for the State in all the appeals has firstly taken up the case of the alleged perpetuators of the crime viz. Appellant Khawaja Saleemuddin and Muhammad Fazil. In this connection, per learned A.A.-G. The pieces of evidence are firstly the ocular account, secondly the medical reports, thirdly the recoverjes, and finally the confessional statements of these two appellants. As to the ocular account learned A.A.-G. Has submitted that all the prosecution witnesses examined in this connection are natural ones as they were inhabitants of the houses where the gruesome murders took place. He has referred to the deposition of P.W.10 Mst. Mumtaz who picked out appellant Khawaja Saleemuddin and Muhammad Fazil as well as recognized the stolen property both in the identification test as well as in Court. He also referred to the deposition of P.W.11 Furqan Ayub, the injured eye-witness who has also identified Khawaja Saleemuddin and Muhammad Fazil as the persons who had fired at the deceased. Again P.W.12 Nazia Ayub who is the daughter of P.W.10 Mst. Mumtaz and sister of P.W.11 Furqan Ayub has corroborated the testimony of both these P.Ws. Similarly P.W.13 Faiz Batool who was a guest and P.W.14 Safina Hassan who lived on the first floor of the building have both fully corroborated the testimony of other P.Ws. And have picked up both the appellants in the identification test as well as recognized them in Court. As far as the evidentiary value of the identification tests are concerned, learned A.A.-G. Has submitted that per Article 22 of the Qanun- e-Shahadat Order, no time limit has been prescribed for holding the same and if there is any delay in this regard, still the result of the test would be accepted provided such delay can be explained satisfactorily. Similarly, other factors have to be taken into account viz. The quality of the test, the circumstances in which the crime was committed etc. Per learned A.A.-G. Admittedly the accused were present in the building for over three hours and had committed the cold-blooded murder of innocent persons, hence the eye-witnesses had enough time to have a good look at them and in fact the faces of the accused would be buried in their memory forever. In support of his submission he has relied upon Muhammad Afzal v. The State 1982 SCMR 129; Khawand Bux v. The State 1997 PCr.LJ 280 and Solat Ali Khan v. The State 2002 SCMR 820. Finally, as regards the ocular account, learned A.A.-G. Has submitted that none of the eye-witnesses have any enmity with the accused as they were total strangers to each other, hence there is no possibility of false implication at all. As regards the medical evidence on the record, learned A.A.-G. Has submitted that a bare perusal of the same would sufficiently establish that all the deceased had died due to fire-arm injuries and in fact this has not been ever challenged by the defence and hence totally corroborates the ocular account.
22. Next learned A.A.-G. Has referred to the deposition of P.W. Anwar Zaib, the I.O., who has produced the report of the Finger Print Bureau, Government of Sindh, according to which the finger prints lifted at the scene of the crime match those of appellant Saleemuddin and Muhammad Fazil.
Similarly, per learned A.A.-G. The 1.0., has deposed that he had sent the empties. Of .30 bore pistol recovered at the scene of the crime to the Ballistic Expert for his examination and report as to whether they matched the T.T. Pistol seized from the appellant Saleemuddin. Such report has been produced before the learned trial Court and is in the positive. Hence, there cannot be any manner of doubt that the T.T. Pistol seized from appellant Saleemuddin was used in the crime.
23. As far as the confessional statements of these two appellants are concerned, learned A.A.-G.
Has firstly submitted that the Magistrate who recorded the same had complied with all the Rules etc. Including the Criminal Court Circular while doing so. The confessions are voluntary and given without any coercion or duress and so also no- marks of violence were seen on the person of the accused to suggest the contrary. The learned A.A.-G. Has submitted that according to Article 129 of the Qanun-e-Shahadat Order there is a presumption that all judicial and official acts have been performed in accordance with law and procedure. There is no rebuttal of this presumption except that in their section 342, Cr.P.C. Statements the accused have retracted their confessions on the basis that their signatures were taken on blank pieces of paper and they were never produced before any Magistrate for recording their confessional statements. Per learned A.A.-G. Retraction per se would not bind the Court to look for independent corroboration of the confession, where otherwise this rings true and is free from procedural defects as in the present case. He has further submitted that both the appellants have given the motive for commission of the crime in question viz, hatred of Shias. Secondly, if the confessions were indeed false and had been manufactured by the prosecution, there is no reason why such confessions could not have been concocted as regards those accused who did not confess. The obvious conclusion would be that the prosecution had proceeded correctly in the matter and only the confessions of those accused were recorded who voluntarily came forward to do so. In support of his submission learned A.A.-G. Has relied upon Maj. (Retd.) Tariq Mehmood v. The State 2002 SCMR 1493; Solat Ali Khan v. The State; 2002 SCMR 820 and Gokal Chand v. Emperor AIR 1934 Lah.
477.
23. Next learned A.A.-G. Has taken up the cases of the other appellants viz. Mansoor Ali Babar, Umer Hayat, Saghir Ahmed Sheikh, Hafiz Ahmed Bux, Ahmed Zahoor, Karimullah Sharif and Fahimul Haq against whom the pieces of evidence are circumstantial confessional statements and recoveries.
24. As far as the case of Mansoor Ali Babar is concerned, learned A.A.-G. Has submitted that firstly he has confessed to the abetment of the crime in question which is inculpatory and this can be corroborated through the recovery of two mobile telephones from the Toyota Corolla Car and yellow taxi cab which he and appellants Saleerauddin had used on the night of the incident viz. 1- 3-1995 to communicate with each other between the hours of 12-00 midnight to 4-00 a.m. He has referred to the phone bills of these two mobile telephones Nos.0321229826 and 0321229825 which would show that both of these were in use on the night of the incident between 12-00 midnight to 4-00 a.m. Further per learned A.A.-G. In his confession Saleemuddin has stated that after the menfolk of the house had been tied up, instructions were sought from Mansoor Ali Babar who directed that all of them should be killed and so also Umar Hayat gave the same directions on the mobile telephone. Similarly, learned A.A.-G. Has submitted that the confession of this appellant can also be corroborated by the recovery of the robbed articles from his flat which had been identified by the eye-witnesses.
25. As regards the case of appellant Umar Hayat, learned A.A.-G. Has submitted that he too has confessed to the abetment of the crime in question which has been corroborated by the confessional statement of other co-accused viz. Khawaja Saleemuddin, Muhammad Fazil, Mansoor Ali Babar and Karimullah Sharif. Similarly the recovery of the robbed articles from the flat in which this appellant and other co-accused were living and the positive identification of the same by the eye-witnesses is also sufficient proof of abetment.
26. Next learned A.A.-G. Has taken up the case of appellant Karimullah Sharif in which again the main piece of evidence is his confession which is corroborated by those of the other co-accused.
So also per learned A.A.-G., the mobile phones which were used by appellant Khawaja Saleemuddin and Mansoor Ali Babar on the night of the incident were purchased in the name of this appellant which is sufficient evidence to connect him to the crime by way of abetment. So also other evidence is available against this appellant by way of recovery of the robbed articles from his room in the flat in question which had been positively identified by the eye-witnesses.
27. Next learned A.A.-G. Has taken up the cases of appellant Hafiz Ahmed Bux, Saghir Ahmed Sheikh and Ahmed Zahoor who have not given any confessions. Per learned A.A.-G. The only piece of evidence against these appellants is the confession of the co-accused and also as regards the case of Hafiz Ahmed Bux, a copy of his NIC was found in the dash board of the Yellow Taxi Cab from which other co-accused had been arrested. In this connection learned A.A.-G. Has submitted that under Article 43 of the Qanun-e-Shahadat Order confessions can be used against co-accused for which proposition he has relied upon Hakim Ali v. The State PLD 1960 (W.P.) Lah. 31; Muhammad Sabir v. The State 1989 PCr.LJ 2047; Akhtar Ali v. The Crown PLD 1954 Lah. 210; Barendra Kumar Ghosh v. Emperor AIR 1925 PC 1; Fazal v. The State 1970 Cr.LJ 1073 and Pir Mazhar-ul-Haq v. The State 1992 PCr.LJ 1910.
28. Finally, learned A.A.-G. Has taken up the case of appellant Fahimul Haq who being an absconder before the learned trial Court was tried in absentia. In this regard he has submitted that such trial was in accordance with law as the proper procedure had been adopted. He has placed on record two cuttings from Daily Jang and Daily Jaago of June 11, 1995 whereby the appellant was informed to surrender before the learned trial Court which he failed to do. Learned A.A.-G. Has further submitted that as in the cases of appellants Hafiz Ahmed Bux, Saghir Ahmed Shaikh and Ahmed Zahoor, the confessional statements of other co-accused can be used against appellant Fahimul Haq as well as a piece of circumstantial evidence. Learned A.A.-G. Has also submitted that his appeal which was filed on 3-6-1996 is hopelessly time-barred since under section 7(2) of the STA Act the same is to be filed within 30 days of the judgment which was delivered on 26-11-1995.
He has further submitted that limitation prescribed by special law cannot be condoned under section 5 of the Limitation Act for which proposition he has cited The State v. Zahid Hussain 1990 SCMR 164; Abdul Ghaffar v. Mst. Mumtaz PLD 1982 SC 88 and Haji Muhammad Ashraf v. The State 1999 MLD 330. Finally, learned A.A.-G has submitted that, section 5-A(4) of the.. STA Act provides for the readjudication of an absconder's case where within 10 days of. His conviction he appears before the learned Court and satisfactorily explains his absence. This was not done by appellant Fahimul Haq but instead a direct appeal was filed in this Court which is not maintainable to that extent as well.
29. Mr. Syed Nazir Hussain Jafery appearing for the deceased's . Family has fully supported the arguments of the learned A.A.-G. While summing up the prosecution case, learned counsel has submitted that as far as appellant Khawaja Saleemuddin and Muhammad Fazil are concerned there is direct evidence in the shape of the eye-witness account as these two appellants were present in the house and had actually murdered the menfolk. They were picked up by the eyewitnesses in the identification test as well as before the learned trial Court and hence there can be no doubt whatsoever as regards their guilt.
' These two appellants have also confessed to the crime in question which has been given without any duress or coercion. As regards appellant Ahmed Zahoor there is the confession of co-accused who have fully implicated him as being present on guard duty outside the building at the time of the incident. Similarly, as regards the case of appellant Hafiz Ahmed Bux, Saghir Ahmed Sheikh and Fahimul Haq they also have been fully implicated by the co-accused in their confessional statements. In addition the NIC of appellant Hafiz Ahmed Bux was found from the Toyota Corolla Car which further corroborates the confessional statements of the co-accused.
30. As to the case of appellant Karimullah Sharif, learned counsel has submitted that firstly he has confessed to the crime in question by way of abetment and secondly there is circumstantial evidence against him as it has been satisfactorily established before the learned trial Court that the mobile telephones recovered from the Yellow Taxi Cab and Toyota Corolla Car were in the name of this appellant and that on the night of the incident both of these mobile telephones were used in calling each other as per the bills of the same brought on the record. Per learned counsel this circumstantial piece of evidence is fully corroborated by the deposition of P.W. Furqan Ayub who has stated that appellant Khawaja Saleemuddin was talking to somebody on his mobile phone on the night of the incident.
31. Finally as to the cases of appellant Mansoor Ali Babar and Umer Hayat, learned counsel has submitted that they have also confessed to the crime whereas regarding Saghir Ahmed Sheikh and Fahimul Haq evidence is available in the shape of the co-accused's confession.
32. Reverting to the law on confessional statements enunciated by Article 37 of the Qanun-e- Shahadat Order, learned counsel has firstly submitted that it has been well-settled by the superior Courts that conviction could be based on a confessional statement alone if the Court is satisfied as to its authenticity and the fulfillment of procedural requirements even if the same has been retracted. For this proposition he has cited Khan Muhammad v. The State 1999 SCMR 1818; Raza Muhammad v. The State PLD 2002 SC 56; Atir Zaman v. The State 2003 PCr.LJ 35; Major (Rtd.) v. The State 2002 SCMR 1493; Ahmed Hassan v. The State 2001 SCMR 505; Doulat Khan v. The State 1998 MLD 944; Soulat Ali Khan v. The State 2002 SCMR 820; Birey Singh v. The State AIR 1953 All. 735; Muhammad Karim v. The State PLD 1976 Pesh. 135; Sain Gull Wali Khan v. The State 2003 PCr.LJ 234.
As regards conviction based upon the confession of co-accused per Article 43 of the Qanun-e- Shahadat Order, learned counsel has cited Hazrat Bilal v. The State 2000 PCr.LJ 865: Muhammad Karim v. The State 1998 PCr.LJ 1543; Khanzada Mir v. The State PLD 1979 Pesh.
215. Finally as regards the irregularities and omissions in recording the statement of the accused under section 64, Cr.P.C. By the Magistrate learned counsel has submitted that this is curable if it has not prejudiced the accused or in any other manner caused failure of justice. For this proposition he has cited Shahnawaz v. The State PLD 1986 FSC 245; Muhammad Hussain v. The State PLD 1986 Lah.34 and Muhammad Ashraf v. The State 1989 PCr.LJ 1803.
33. We have heard the learned A.A.-G. As well as all the learned counsel and have perused the record with their assistance in detail. Our conclusions are as follows:--
34. We would firstly take up the cases of the alleged perpetuators of the crime viz. Appellants Khawaja Saleemuddin and Muhammad Fazil against whom the. Main pieces of evidence are the positive identity test as well as identification itself in Court by the prosecution witnesses. In this connection it would be seen that as many as five prosecution witnesses viz. P.Ws. Furqan Ayub, Mst.
Mumtaz Ayub, Mst. Nazia Ayub, Mst. Shazia Ayub, Mst. Faiz Batool, Mst. Safia Hassan have identified both the appellants in the identification parade conducted by the concerned Magistrate. As regards Mr. M.A. Kazi's contention that sufficient number of dummies were not mixed with the accused at the time of identification, suffice it to say that at least in the case of identification of appellant Khawaja Saleemuddin by P.W. Safia Hassan, the ratio of dummies was 12:1. It would also be seen that similarly, all these P.Ws. Have correctly picked them out before the learned trial Court.
It would be seen also that according to all these eye-witnesses at least three accused had entered into the building on the night of the incident and had remained there for over two hours where they had committed robbery of various articles and finally had shot the male members of the family in cold-blood. Hence in our view due to the heinous nature of the crime the P.Ws. Would retain a photographic memory of the accused for all times to come. Consequently, we have no occasion to disbelieve the eyewitnesses as admittedly the accused were unknown to them and they have no reason to falsely implicate them. In this connection it would be opportune to mention that P.W.
Furqan Ayub has given graphic details of the crime viz. That these two appellants had loaded their weapons and fired at the deceased. In fact he went a step forward and nominated appellant Saleemuddin to have fired at deceased Hassan Ali, his two sons and Kamran whereas appellant Fazil had fired at deceased Imran, Shaikh Muhammad Ayub, Masood and himself. In this respect reliance can be placed upon Soulat Ali Khan v. The State 2002 SCMR 820; Muhammad Afzal v. The State 1982 SCMR 129 and Khawand Bux v. The State 1997 PCr.LJ 280. The ocular account finds corroboration from the report of I the Finger Print Bureau according to which the finger prints lifted at the scene of crime matched those of these appellants. Similarly the robbed articles which were recovered from the flat occupied by the appellant is further corroboration. Finally there is a positive report of the Ballistic Expert regarding the .30 bore pistol recovered from appellant Saleemuddin viz. That it matched empties taken from the scene of the crime. However, as far as the confessional statements of these two appellants are concerned, we are constrained to observe that not only are they stereo typed but are almost identical to each other as in fact are the confessional statements given by some of the other appellants. It may also be observed that in all these confessional statements the signatures of the Judicial Magistrate have been over typed which is quite strange as normally whenever a person and more so a Judicial Officer signs any type written page it is usually done in the margin. So also the certificate under section 364(2), Cr.P.C. Has been given by the Magistrate before the main body of these confessions which is inexplicable as this is to be given at the end thereof. Finally, it may also be observed that there is not a single typographical error in these confessions. Hence, in our opinion a doubt has arisen as to whether the judicial confessions of these two appellants and for that matter the other appellants were given voluntarily the benefit of which must go to the appellants/accused. In this respect reference can be made to the case of Haq Nawaz v. The State 2000 SCMR 785; wherein the Honourable Supreme Court had laid down that if a judicial confession is given without any coercion or delay then it is to be accepted provided there is no material present on the record from which a Court of law could be persuaded to hold otherwise. However, even if there is delay or certain lapses are made on the administrative side on the part of the Magistrate regarding the confession the same may not be fatal as to the evidentiary value of such confession provided the Court is satisfied that the lapses on the Magistrate's part have not in any way adversely affected the voluntariness or truthfulness of the confession and also that the confessions were not tutored and were in fact, given voluntarily.
Reference in this regard can also be made to the case of Tariq Mahmood v. The State 2002 SCMR 1493. However, we have already come to the conclusion that sufficient evidence is available by way of the ocular account coupled with positive identification of the recoveries as well as positive finger print test. Hence in our opinion the prosecution has been able to prove beyond any reasonable doubt that in fact appellants/accused 1th. Saleemuddin and Muhammad Fazil did commit the brutal murder of the deceased on the day of the incident as well as attempted to murder P.W.
Furqan Ayub and also committed the robbery of the articles in question. Hence as far as these appellants are concerned, we would maintain their conviction and sentences as handed down by the learned trial Court.
35. We would now take up the cases of appellants Mansoor Ali Babar, Umar Hayat and Karimullah Sharif against whom the pieces of evidence are their confessional statements, recoveries and circumstantial evidence. As far as the confessional statements of these appellants are concerned we have already come to the conclusion that these cannot be considered. As far as the recoveries are concerned firstly we would like to take up the issue of the two mobile telephones which were recovered on 2-4-1995 from Toyota Corolla Car No,V-8868 viz. Insta Phone No,229825 and from the Yellow Cab viz. Insta Phone 229826 vide memo. Exh.73. Per Exh.93 produced by I.O. Muhammad Ali Rind which are the receipts for these two telephones it has been proved by the prosecution that Telephone No,229825 was purchased by Muhammad Gulzar and Telephone 229826 was purchased by appellant Karimullah Sharif. So also per the deposition of P.W. Sharif Hussain these two telephones were in constant use in the night between 1 and 2 March, 1995 as per the phone bills produced by him as Exh.109 and Exh.110 which were in the names of Muhammad Gulzar and Karimullah Sharif. This witness has also produced the customer agreement relating to these two telephones in the names of the foregoing persons. However, apart from the confessional statements of the various appellants including the foregoing there is nothing on record to show that in fact any of the above stated telephones were used by these appellants to pass instructions to appellant Kh. Salimuddin and Muhammad Fazil on the fateful night for the purpose of murdering the deceased. We have already held that the confessions in question do not merit any consideration, hence in our opinion the evidence on the record as far as these two mobile telephones are concerned viz. Their recovery from the car and yellow taxi cab occupied by the appellants/other accused who fled away, their use on the fateful night at the time when the murders were committed and their ownership by appellant Karimullah Sharif and one Muhammad Gulzar is not sufficient to establish that in fact appellants Mansoor Ali Babar and Umer Hayat had passed on the instructions to appellants Kh. Salimuddin and Muhammad Fazil to do away with the male members of the family by using these telephones. We would now revert to the recoveries made at the pointation of appellants Mansoor Ali Babar and Umer Hayat which consist of the robbed articles and which have been identified by the various prosecution witnesses. Again the only link between the crime in question and these recoveries at the behest of the aforementioned appellants are their confessional statements as well as that of other co-accused. Since in our opinion these confessional statements do not inspire confidence consequently mere recovery of the robbed articles at the pointation of these appellants is not sufficient evidence to connect them to the crime under any theory of criminal jurisprudence. Consequently for all the aforestated reasons we are of the opinion that the prosecution has failed to establish beyond reasonable doubt that appellants Mansoor Ali Babar, Umer Hayat and Karimullah Sharif in any manner were associated with the crime in question. Hence they stand acquitted of the charges against them.
36. We would now take up the case of appellant Hafiz Ahmad Bux, Saghir Ahmad Shaikh and Ahmad Zahoor. The only piece of evidence against these appellants is the confession of the co- accused plus the factum of recovery of appellant Hafiz Ahmad Bux's NIC from the Yellow Cab in question. We have already observed above that the confession of the co-accused in the matter does not merit any consideration hence there can be no question of confession being used against these appellants. Similarly we are also of the opinion that mere recovery of appellant Hafiz Ahmad Bux's NIC from the Yellow Cab is not sufficient circumstantial evidence to record a positive finding of guilt and that too in a case carrying the death penalty. Consequently, we would also acquit these appellants of the charges against them.
37. We would finally revert to the case of appellant Fahimul Haq in Cr. Appeal No,62 of 1996. He was an absconder before the learned trial Court and as such was tried in absentia and convicted thereafter. The I only piece of evidence against this appellant is the confessional statements of the co-accused which we have already ruled out of consideration. Hence in our opinion this appellant also merits acquittal. As to the submission of the learned A.A.-G. That the appeal is time-barred since it was filed on 3-6-1996 whereas the judgment was delivered on 27-1.1-1995 i,e, beyond the period of 30 days as prescribed under section 7(2) of the S.T. Act, suffice it to say that even where no appeal has been filed by a co-accused and the other accused who were placed in the same circumstances have been acquitted, the non-appealing accused can also be acquitted. For this proposition reference can be made to the cases of Muhammad Aslam v. The State 1972 SCMR 194; Mohabbat Ali v. The State 1985 SCMR 662 and Waqar Zaheer v. The State PLD 1991 SC 447. In Muhammad Aslam v. The State (supra) the Honourable Supreme Court even acquitted one of the co-accused who was an absconder. In our opinion therefore, in order to do complete justice in the circumstances of the case wherein we have found that the case of convicted accused Fahimul Haq is at par with other appellants whom we have acquitted, he also deserves the same treatment.
38. For all the foregoing reasons we would, therefore, maintain the conviction and sentence of appellant Muhammad Fazil and Kh. Salimuddin and hence Cr. Appeal No,202 of 1995 is dismissed to the extent of their cases. However, as far as the remaining appellants are concerned viz. Mansoor Ali Babar, Umer Hayat, Ahmad Zahoor, Hafiz Ahmad Bux and Saghir Ahmad Shaikh in Cr.
Appeal No,202 of 1995 M and Karimullah Sharif in Cr. Appeal No,208 of 1995, they stand acquitted and accordingly their appeals are allowed. These appellants shall be released forthwith if not required in any other case. Similarly we would also acquit convicted accused Fahimul Haq who shall also be released forthwith if not required in any other case. . The confirmation, cases are disposed of in terms of the foregoing orders. Cr. Appeal No,62 of 1996 stands disposed of accordingly.