Atta-ur-Rehman & Others (Appellant) VS The State (Respondent)

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CERTIFICATE OF THE COURT IN REGARD TO REPORTING

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HIGH COURT OF SINDH

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Composition of Bench: s. B./D. B.

Mr. Justice Mohammad Karim Khan Agha, Mv. f,,-sh.- /l[-={*l N{(t*-* L.-LL-

Date(s) of Hearing: %lsk,?2.,'"| ,23o'l )2+11 ,nLALZ?'* l ^**r, 2qrZo Decide on lh -cZ -20

(a)Judgment approved for reporting: Yes

CERTIFICATE

certified that the judgment*/order is based upon or enunciates a principle of law */ decides a question of law which is of first impression / distinguishes f over- rules / reverses / explains a previous decision.

* Strike out whichever is not applicable.

NOTE: (i) This slip is only to be used when some action is to be taken.

(ii)lf the slip is used, the Reader must attach it to the top of the first page of the judgment.

(iii)Reader must ask the Judge writing the Judgment whether the Judgment is approved for reporting'

(iv)Those directions which are not to be used should be deleted.

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IN THE HIGH COURT OFSINDHATKARACHI

t ,6( i i Spl. Cri. ATA No.

Q 7 ot' 2006

Atta-ur-RehmanS/oHabib-ur-Rehman. i 2- Shehzad Ahmed Baj wa S/o Mushtaq Ahmed Bajwa l-,-\ Shoaib Siddique S/o Nooruddin Siddiqui ,t-,/ly aqoob Saeed Khan S/o Saeedullah. S-N\ Uzair Ahmed Abdullah S/o Aziz Ahme<j. G \Danish Imam S/o AIi Hashmi.

7' ' VNajeebullah S/o Zahoorullah Hashmi. *,.'{ Khwnmsaifullah S/o Khalid Saifullah. 9- r' Rao Khalid S/o Rao Muhammad Rafiq. l0- \.S,yed.$dnan Shah Sro Syed Abdul Aziz Shah... ... ... .. APPELLANTS rt((. /l/tA(",7L-'-. z.O.cb, f ,>.: r*/ {l (ttqq,;.1' t-'*' r,i (t,-€-i P*.,n. /**T1,,,.SUS ' Ihe State RESPONDTJNT

FIRNo. 165/2004 Dated: l0-6-2004 U/Ss. 302.324.404.34 P.P.C R/w S. 3, 4, & 5 of the Expiosive Substance Act.

tuw S. 7 of ATA 1997 P.S. Boat Basin Karachi, South.

APPEAI, tr/S 410 OF Cr. p. C. R/w SECTTON 25lD oF'f g ag$ieved with and dissatisfied by the order/ judgement dated l-2-2006 passed by the Learned Special Judge of Anti Terrorism Contd. Pi2

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Dats nd c. hea adjo .N THE HIGH C(I,|R' Of SI![,H AT KARACHT (cri.inal Appel late Jurisdiction ) i Special Cririnal Artti-Terrorisx App€al t{o - (, tl of ?(Xl6 1. t;

\, 6,t t Shahzad Mukhtar Al ias Talha ht..

son of Hr.lkthar Ahmed, resident .v l"l t-I of House No-A/L/12, Laraib eaiden' Elock No-1, Gulshan-e-IqbaI ' Karachi, presentlY confined in Central Pr ison, Karachi Appel I an t.

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the SLaLe Responden t.

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-!, t FIR No- 165/2OO4 Under Section 3o2/324/4o4134 PPc ,i 3/4/5 ExPlosive Substances I A(rt, 1gOE}, 7, Anti Terrorism i, Act, 1997.

I P.S- Boat Easin' Karachi South"

APPEAL UIOER SECTIO}I 25 T}F THE ANTI-IERNORTSi P OF ISF)A (trT XT.XXVII tr L*)-I ) REM TITH SECT alo oF CRI llr lg[ C(I)E

Bei.ng aggr ieved and dissatisfi6d wi'th the JudgmenL dated 2I .2-2c,C,6' passed by the learned Special Ant-Terrorism Court No'fI Karachi ' (Mr - FERoI- Judge,

HA iIfiOOD AHATT I ) 1n Special Case No-57/2OO4, (The State t versus Alta-ur-Rehman ancl oLhers) vide FIR No - 16512oo4 ' PPC 3 / 4 /5 , exp.L asi ve unde r Sec tion 3o2 /324 / 4o4 /34

Y Substances Act., 19O4, 7, Anti-Terr-orism Act - 1997, |egistere,J aL Polic SLation Eoat BasI n ' South, Ka rachi ,

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-rnvicting the appellant abovenamed alongwith 1o other's a"s"d persons under secLion 3O2(b) read with 54 PPC

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IN THE

FIR No: 165 U s s 302 / 3 4 5 Ex p,l I 7 Anti-Tr:rro

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SECTION 374'

a datcd 21sr I+e '.all the eleven accuged person 8 na-m:ely thed Bajwa, Muhammari fihoaib Si b S aeed Kh an D n S h mtl frL N A:i ecb fihat zd d M u k h ta t R ao K I.r a id an d nie'dwgrded death sentence as la2ir. od e 6I c lle: No 5 7 / 2AO4 fo r t he o lfe tlc e p ni {a) o f t h AN t TE f r o r s m ACt 1 ,l I on ea ch c ou.n t s ,r-rle] \?02(ll) PPC]. t; l 99 ? 6U bjeet to confiil-ration o f t he sair.l sh C ou rt of S ln d h K a i a ehi r equired $lec tio n 30 of t h e A n t T e rror 5 flr A ct, (](r :

Rqfet-urcc is hereby made for the confi x., to t h e a borie rI am e d ac C s d fh$ R& pc o f th ab{I rnefiti (11 e d I nd 0r.' ieetl{rft 2 tr ral o f t Il: A tt

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THE HIGH COURT OF SINDH AT KARACHI

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Spl. Crl. Anti-Terrorism .

Appeal No.03 of 2006.

Spl. Crl. Anti-Terrorism Appeal No.04 of 2006. ConJirmation Case No.02 of 2006.

Present:

lt'lr. I ustice Moltatnmad Karbn Khan Asha h'Ir, Iustice Abdttl Mobeen Lakho,

Appellants: 1) Atta-ur-Rehman S/o. Habib-ur-Rehman (2) Shehzarl Ahmed Bajwa S/o. Mushtaq Ahmed Bajwa, (3) Shoaib Siddique S/ o. Nooruddin SirJdiqui, (4) Yaqoob Saeed Khan S/ o.

Saeedullah, (5) Uzair Ahmed Abdullah s/o.

Aziz Ahmed (6) Danish Imam S/o. Ali Hashmi, (7) Najeebullah S/ o. Zahoorullah Hashmi, (8) Khurram Saifullah S/ o. Khalid Saifullah, (9) Rao Khalicl S/o. Rao Muhammad Ra{iq and (10) Syecl Adnan Shah S/o. Abdul Aziz Shah and irL Spl. Cr. A.T Appeal No.04/2006 Shahzad Mukhtar alias Talha s/o.

Mukhtar Ahmed all through M/ s Mushtaq Ahmed and Raja Hassan Nawaz, Advocates.

For State Through Mr, Saleem Aklrtar Buriro, Additional Prosecutor Ceneral.

Date of hearing 27.07.2020, 22.01,.2020, 23.01,.2020, 24.01..2020, 27.01,.2020 and 28. 01.2020

't Date of Judgment: 4.02.2020.

TUDGMENT

MOHAMI4AD KARIM KHAN AGHA' f:- Accusecl Atta-ur-Rehman s/o. Habib-ur-Rehmary Shahzad Ahmed Bajwa S/o. Mushtaq Ahmed Bajwa, Shoaib Siddiqui S/o. Nooruddin Siddiqui, Yaqoob Saeed Khan S/o. Saeedullah, Uzair Ahmed AbduilahS/o. Aziz Ahmed, Danish Imam S,zo. Ali Hashmi, Najeebullah Sf o. Zahoorallah Hashmi, Khurram Saifullah S/o. Khalid Saifullah, Shahzad Mukhtar S/o. Mukhtar Ahmed, Rao Khalid S/o. Rao Muhammad Rafiq and Syed Adnan Shah Syed s/o Abdul Aziz Shah were tried by learned Judge, Anti-Terrorism Court No.ll, Karachi in Special Cases No. 57 / 2004 arising out of Crime No.165/2004 U/s.302/32a/404/34 PPC r/w Section 3/4/5 Explosive,

Substances Act 1908, S.7 of ATA, 1gg7 at P.S Boat Basin Karachi South vide judgment dated 21.02.2006 the appellants were convicted and sentenced as under:-

I (a) For causing callous offence of brutal antl broad day light Qatl-e- Amd of innocent deceasecl Persons namely Hav: Manzoor' Hav: Muhbat Baig, LNK Afzal Shakir, Sarwar Shahid Hussain' Sepoy Tariq Nave"ed, LNK Tariq Hussain (Army Personnel) SIP Hassan Asghar, HC Nazeer Ahmed, HC Liaquat Guijar (Police Personnel) and Ashok (Civilian) an of{ence punishable u/s 302(b) r/w 34 PPC and r/w section 7(a) of the Anti-Terrorism Act, L997, all the eleven accused Persons namely Atta-ur- Rahman, Shahzad Ahmed Baiwa, Muhammad Shoaib Siddiqui' Khurram Saifullah, Yaqoob Saeed Khan, Danish Imam' Najeebullah Hashmi, tJzait Ahmed Abdullah, Shahzad Mukhtar, Rao Khalid and Syed Adnan Shah alias Tipu are awarded death sentence as ta'zir, on each count They are directed to be hanged by neck till they are dead' (b) For planting two bombs at the place of irrcident i e attemPt to .urr" explo"sion, an offence punishable under section 4 of the Explosive Substances Act, 1908 all the eleven accused Persons namely Atta-ur-Rahman, Shahzad Ahmed Bajwa, Muhammad Shoalb Sic-ldiqui, Khurram SaiJullah, Yaqoob Saeed Khao Danish Imam. Najeebullah Hashmi, Uzair Ahmed Abdullah' Shahzad Mukhtar, Rao Khalid and Syed Adnan Shah alias Tipu are awarded imPrisonment for life.

(c)Since all the eleven accused Persons namely Atta-ur-Rahman' Shahzad Ahmed Bajwa, Muhammad Shoaib Siddiqui, Khurram Saifullah, Yaqoob Saeed Khan, Danish Imam, Naleebullah Hashmi, UzaiiAhmed Abclullah, Shahzad Mukhtar' Rao Khalid and Syed Adnan Shah alias Tipu have been co /icted under the provisions of the Explosive Substances Act, 1908, therefore' their whole property is directed to be forfeited to the Government as provided i/"i-e of the Explosive substances Act, 1908' (d) For attempting to commit murder oI Corps Commancler Sindh' Karachi Lieutenant Ceneral Ahsan Saleem Haya! an offence '1997 r punishable u/ s 7(b) of the Anti-Terrorism Act, /w 34 PPC a1l the eleven accused Persons namely Atta-ur-Rahman' Shahzad Ahmed Bajwa, Muhammacl Shoaib Siddiqui' Khurram Saifullah, Yaqoob Saeed Khary Danish Imam' Najeebullah Hashmi, UzaiiAhmed Abdullah, Shahzad Mukhtar' Rao Khalid and Syed Adnan Shah alias Tipu are awarded .R I' for 14 (fourteen) years each and to piy fine of Rs'50'000/ - (tnty it orrurr.li each, or in default each of them have to suffer R'I' for six months more.

(e)For causing damage to Toyota Hi-Ace Van bearing Regn No JE- 9255 whicli was uJed by tire accused Persons in the commission of the offence and escort vehicles i e Lancl Cruiser Jeep bearing No 86-7364 Regn. No.88-8263, Lanel Cruiser Jeep bearing-Reg Tovota Land Tolota Corolla Car bearing Regn' No'92-4702' ',

Cruiser Jeep bearing Regn. No. BB'8173 and Toyota Land Cruiser Jeep bearing Regn. No.BC-3621 due to Passage of projectiles of firearms, an offence Punishable u/s 7(d) of the Anti-Terrorism Act, 7997, each of the eleven accused Persons named above are directed to suffer R.l. for 10 (ten) years and to Pay fine of Rs.50,000/- (fifty thousant-l) each or in default to I undergo R.l. for 6 (six) months more.

The sentence of death to all the eleven accused persons named above, is subject to confirmation by the Hon'ble High Court of Sindtu Karachi as provided uf s.374 Cr-l'.C.

(f)The accused are directed to pay comPensation of Rs 1,00,000/- (one lac) each to the legal heirs of each of the cieceased persons Hav: Manzoor, Hav: Muhbat Baig, LNK Afzal Shakir, Sarwar Shahid Hussain, Sepoy Tariq Naveerl, LNK Tariq Hussain (Army Personnel) SIi Hassan Asghar, HC Nazeer Ahmed, HC Liaquat Gujfar (Police Personnel) and Ashok (Civilian) as p.orrid"d u/s.SM'ACr.P.C. or in case of their failure to Pay the compensation each of them shall undergo R.l. for 6 (six) months more.

The amount of compensatiorg if paid, be given to the legal heirs of the deceased Persons at the rate mentioned above and the amount of fine, if realized, be deposited in the Government Treasury.

All the sentences are directed to run concurrently and benefit of section 382-B PPC is also extended to the accused

2.Being aggrievecl and <lissatisfieci by the judgment passed by learned Judge, Anti-Terrorism Cout't No.ll, Karachi, the aforesaid appeals have been preferred by the appellants.

3.The facts of the prosecution case are that on or about the 10th day of lune, 2004, accused Atta-ur-Rehman, Shahzad Ahmed Bajwa, Danish Imam, Khurram Saifullatu Muhammad Shoaib Siddiqui, Shahzaci Mukhtar. Yaqoob Saeed Khan, Najeebullah, Rao Khalid, Syed Adnan Shah alias Tipu and absconding co-accused Muhammad Qasim alias Hamza S/ o. Muhammad Farooq, Shahab, Bilal, Tayyab and Hamad sons of unknown, formed an unlawful assembly and conspired to commit Qatl-i Amd of Corps Commander Karachi, Lt. General Ahsan Saleem Hayat' by making murderous assault upon him with deadly weapons On the same date i.e. 1'0.06.2004 at about 8.45 a.m. in pursuance of the above criminal conspiracy, they in prosecution of the colrunon object of such unlawful assembly, armed with SMGs, Explosive Substances, including bombs'-

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came near the Bridge Store opposite Prince Complex, Clifton, Karachi in Toyota Hi-Ace Van bearing Registration No.JE-9255, took positions on the left and right side of the Clifton bridge, planted one bomb in a plastic bag near a pole and another bomb at the beginning of Clifton bridge in a f flower pot (Camla) lying on the foot path and when the convoy of Corps Commander was passing through the Clifton bridge, all of them intentionally started firing from both the sides, on the convoy, to commit their Qatl-i-Amd. as a result of which the escort of Corps Commander, namely Manzoor Muhbat Baig, Sawar Afzal Shakir, Sawar Shahir Hussain, Sepoy Tariq Naveed, Sepoy Tariq Hussain sustained bullet injuries and succumbed to their iniuries and dieci at the PNS Shifa Hospital, whereas police personnel namely SIP Hassan Asghar, HC Nazeer Ahmed, HC Liaquat Gujjar and Ashok who had also sustained the bullet iniuries succumbed to their injuries and rlied at JPMC, Karachi, whereas Irshad Ali, Muhammad Afzal, Sepoy Gul Bayan Khattak, Sepoy Zahid lqbal, Karim Bux, Abdul Qadir, Muhammad Ilyas , Gulsher, Amjad Siddiqui, Muhammad Hussain sustainecl fire arm injuries. Thereafter the { appellants picked up trvo SMG Rifles and sixty live rounds, which were in possession of deceased LNK Tariq Hussain and LNK Afzal Shakir and made their escape good from the spot in the said Toyota HlAce Van bearing Regn. No.JE-9255. On the same day i.e. 10.06.20(X at about 7.45 a.m. Inspector Wasif Qureshi, SHO P.S. Boat Basin was on usual patrolling, during the course of which he receivecl a wireless message through police control that an incident of firing had taken place at Cli{ton bridge. On receiving the above message, he rushed towards the Clifton bridge, where he saw Army, police personnel and some other persons lying injured in front of the Bridge Store on the main Clifton Road, leading towards Saddar. He called ambulances and shifted the injured to PNS Shifa Hospital, JPMC and Civil Hospital. Blood was lying on the road and empty cases of Kalashnikov bullets were lying scattered at the scene of offence. His superior police officers also arrived at the scene of offence. P.C. Mehmood picked up a bomb wrapped in a plastic bag/shopper threw it in the adjacent open plot, which blasted there. Bomb Disposal Unit was summoned at the scene of offence. They inspected and surveyed the whole area during the course of which one more bomb was found lying near the flowerpot (Gamla) at the end of the Clifton bridge. The,

to) bomb disposal unit took that bomb into their possession and defusecl it. During the presence of Inspector Muhammad Wasif Qureshi, SHO,I'S Boat Basin, at the scene of offence PC Mehmood and HC Javed Iqbal of IIS Boat Basin, who were already present there, informed him that while f patrolling in the area wheru at about 8.45 a.m. they reached near Clifton bridge, they saw convoy oI Corps Commander Sindh coming from Teen Talwar (Three Sword) side, proceeding ahead through main Clifton road' The convoy consisted of five vehicles. They informed him that at that time they saw that some persons, who were duly armed and present in the left side lane, near Clifton bridge, started firing at the convoy JeeP bearing Regn. No.BB-8173. Both the above said Constables further informed him that the above said culprits, after firing at the jeep retreated back and fled away, towards the Railway Track, in Toyota HiAce Van bearing Registration No.JE-9255. From the scene of offence Inspector Muhammad Wasif Qureshi proceeded to PNS Shifa Hospital, where he came to know that some of the Army personnel had succumbed to their iniuries and expired and some of them were lying injured. Those who had died at PNS Shifa Hospital wete Sawar Tarique Hussain, Hawaldar Manzoor, Hawaldar Muhbat Baig, Sawar Shahid Hussain and Sepoy Tarique Naveed, whereas LNK Asif Sohail, LNK Abid Hussain, Sepoy Zahid lqbal, Sepoy Gul Bayan Khattak, were lying injured From PNS Shifa Hospital he proceeded to the JMPC where he came to know that five injured persons who were brought there had succumbed to the injuries and expired. They were Sepoy Afzat Shakir, SIP Hassan Asghar, HC Nazeer Ahmed, HC Liaquat Ali Gujjar and Ashok ancl injured Muhammad Afzal Khan was also lying in the hospital and was under treatment. From JMPC he proceeded to the Civil Hospital where the injured persons of Sindh Secretariat, who were traveling in a secretariat bus along with other persons, were also lying injured Those injured were Abdul Qadir, Muhammad Ilyas, Gulsher, Muhammad Hassary Irshad Ali' Amjad Ali and Karim Bux. From the Civil Hospital he returned back to the scene of offence, where he dictated his FIR, acting himself as complainant on behalf of the State, to HC Mujahid Iqbal and sent the same through ASI Abdut GhaIfar, to PS Boat Basin for its incorporation in the its 154 Cr.PC book, where ASI Syed Imtiaz Hussain Shah incorporated

FIR

contents in the 154 Cr.PC, book word by word and registered formal

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bearing crime No.165/2004, f5 Boat Basin and its investigation was entrusted to Inspector Muhammad Tarique, Incharge Investigation'

4.On the same day i.e 10.06.2004, at about 9 30 a'm lnsPector f Muhammad Tarique, Incharge Investigation Branch of PS Boat Basin' inspected the scene of offence and secured blood of the deceased / iniured persons, sealed in four bottles, Mobile Telephone Set of Nokia' one SIM Card, one detonator, '237 empty shells of bullets of SMG, 6 misfired bullets of SMG, 5 empty shetls of G-3, Rifle, two motorcycles, one bicycle' one piece of shoe, 2 police caps, smashed pieces of glass, one empty magazine of SMG and prepared the memo of insPection and recovery in presence o{ SIP Zalar Nazeer and HC Javed iqbal. ASI Abdul Ghaffar prepared the memo of inspection of the dead body of deceased Sepoy Afzal Shakir' SIP Hassan Asghar, HC Nazeer, HC Liaquat Ali and Ashok and also prepared the inquest rePort uPon the dead bodies of the above named deceased in presence of Naib Sobedar Mushtaq Ahmed, Naik Muhammad Ameen' S I' Tariq Rasheed, HC lameel Ahmed, PC Muhammad Ayub, HC Sher I Zarrran, Nicolas and Vijay Kumar respectively On the same day i e 70.6.2OM., at about 1:00 p.m. ASI Abdul Ghaffar sealed the blood stained police uniform of deceased HC Liacluat Gujiar prepared the memo of seizure in presence of PC Muhammad Ayub and HC Sher Zaman'

5.On the same day i.e 10'06-2004, Inspector Muhammad Tariq' Incharge Investigation Branch, PS Boat Basin received information that Toyota Hi-Ace Van bearing Regn. No.JE-9255, which was used in the commission of this offence, was lying abandoned at Defence View On receiving the above information he along with his subordinate staff reached Defence View at 1.15 p.m. and fountl the above vehicle parked near Baitul Ameen Plaza, police of PS Baloch Colony were Present there and hacl already cordoned off the vehicle' He summoned the Bomb { Disposal Unit and Finger Plints Bureau, who came and checked the vehicle thoroughly and took finger print impressions {rom the vehicle At

about 3.45 pm Inspector Muhammad Tarique, inspected the said Toyota Hi-Ace Van bearing No.JE-9255 ant'l collected one SMG bearing No.2050763, two magazines, one magazine containing 30 live bullets and

another containing 8 live bullets, 40 empty shells of LMG' one live buliet

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of LMG, one empty shell of G-3 Rifle, smashed pieces of glass rear side screen sealed the same in separate parcels, seized the said Toyota Hi-Ace Van and prepared such memo in presence of SIP Bashir Ahmed and ASI Khalid Mehmood.

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6.On the same day i.e 10-05-2004, at about 5.45 p.m ASI Abdul Ghaffar sealed the blood stained pant of deceased Ashok prepared the memo of seizure in Presence of Nicolas and Vijay Kumar. On the same d,ay, at 9.45. p.m., I.O. Inspector Muhammad Tarique seized and secured record of Mobile Telephones No.0300-2756329 (5 pages) in the name of Mst. Shaista, 0300-2566785 (8 pages) in the name of Aurangzeb and one bill of PTCL Telephone NO.4403488 in the name of Shahid-ur-Rahman, from Room NO.29 of Investigation Centre and prepared such memo in presence of ASI Muhammad Jamil and ASI Khalid Mehmood.

7.On 11.06.2004 Inspector Muhammad Tarique inspected the vehicles of Army bearing Regn. No.92 4702 Toyota Corolla, No.86 7364 Escort { Jeep, No.88 8263 MP Jeep, No.BA 87 5890 Toyota Ieep No.BB 8173 Jeep, and prepared such memos in presence of ASI Jameel Akhtar and ASI Khalid Mehmood. On the same day, I.O. Inspector Muhammad Tariq moved letter of request to the DDO Revenue, Saddar Town, Karachi, for preparing sketch of the place of incident and pursuant to it, the sketch of the place of incident was prepared by Tapedar Jameel Ahmed on the pointation and in Presence of eyewitnesses PC Ghulam Farooq and the I.O. Inspector Muhammad Tarique.

8.On 79.06.2004, at 3.15 p.m. accused Danish Imam, Khurram Saifullah, Uzair and Yaqoob Saeed were arrested by AVCC Police from the parking lot of Jinnah View Apartments, near Wireless Gate, Al-Falah Society, Karachi. At that time, accused Danish Imam had a Kalashnikov { with magazine containing 24 live rounds and one in its chamber, accused Uzair Ahmed had a Kalashnikov with magazine containing 21 live bullets and one in its chamber, accused Khurram Saifullah had a Kalashnikov with magazine containing 11 live bullets and one in its chamber, accused Yaqoob Saeed had a T.T. Pistol with magazine containing {ive iive buliets and one in its chamber. On the personal search of accused police secured

loi Rs.480/- from accused Danish Imam, Rs.360/- from accused Uzair Ahmed, Rs.580/- from accused Khurram Saifullah and one hand grenade from the folds of his shalwar and Rs.300/- from accused Yaqoob Saeed and one hand grenade from his shirt pocket. The police arrested the t accused and took into possession all the above articles and also secured two motorcycles parked in front of Jinnah View Apartments bearing Regn. No.KAW-0284 and LHL-2833. The police also collected 15 empty shells of SMG, two empty shells of T.T. pistol and four empty shells of 9MM from the place of occurrence and prepared the memo of their arrest and recoveries of the above articles in presence of mashirs Abdullah and Maqsood Ahmed. On account of recovery of above arms and ammunition, SIP Tasawur Ameer of AVCC retluced his five 5.154 Cr.PC statements and sent the same to I€ Al Falah through SIP Bashir for incorporation in the 154 Cr. PC book. On the basis of his above said 5'154 Cr.PC statements FIR Nos.94, 95,96,97 and 98 of 2004 were registered at 15 Al Falah, The above named accused were interrogated at the place of vardat during the course of which they led the police party to Model 1 Colony graveyard where the police party saw one CG-125 motorcycle bearing Regn. No.MNQ -9682 and one Suzuki Car bearing Regn No.S- 58/7 parked near the graveyard of Model Colony. Four persons were sitting in the Suzuki Car and two persons were sitting on the motorcycle. As soon as the police party reached there and tried to apprehend the accused, the accused, who wete armed, opened fire on the police party, police returned the fire in self defence and apprehended four Persons sitting in Suzuki Car whereas two accused sitting on motorcycle made their escape good leaving their motorcycle behind. The four accused who were sitting in Suzuki Car disclosed their names as Atta-ur-Rahman, Shahzad Ahmed Bajwa, Shoaib and Najeeb and the police recovered one Kalashnikov with two magazines, one containing 30 live bullets and other containing 19 live bullets, one bullet was found in the chamber of 1 Kalashnikov, one hand grenade, one T.T. pistol loadecl with five live bullets in its magazine and cash of Rs.680/- from the possession of accused Atta-ur-Rahmary one Kalashnikov bearing No.14037586 with tlvo magazines, one contained 30 live bullets and other magazine contained 15 live bullets, one live bullet was found in the chamber of Kalashnikov, one hand grenade was found from the folds oI Shalwar and also one T.T.

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pistol loaded with magazine with three live bullets and cash of Rs.300/- from the possession of accused Shahzad Ahmed Bajwa, one.Kalashnikov bearing No.756349 with magazines, containing 21 live bullets, one bullet was found in the chamber of Kalashnikov, one hand grenade was found , from the folds of Shalwar and also one T.T. pistol loaded with magazine with four live bullets and cash of Rs.600/- from the possession of accused Muhammad Shoaib and one Kalashnikov bearing No.Z18 with magazines containing 13 live bullets, one bullet was found in its chamber, one hand grenade, and cash of Rs.425/- from the possession of accused Najeebutlah. Two kit bags were also found lying in the Diggi of Suzuki Cari those kit bags contained illicit arms and ammunitions, i.e. 5 Kalashnikovs out of which one was non-assembled , fo:ur magazines each containing 30 live bullets, two G-3 Rifles, out of which one was without butt with two magazines, one containing 10 live bullets and other containing 8 live bullets, two LMGs, belts containing 200 live rounds and 400 live bullets of LMGs, in all 600 live bullets, two grenade firers. 15 detonators, one First Aid Medical Box. The police also collected 33 empty -{ shells from the scene of offence, out of them 23 were of SMG and 10 were of 9MM pistol, and prepared memo of arrest and recovery of the above named four accused in the presence of mashirs Muhammad Akram and Maqsood Ahmed.

9.On 15.6.2005 I.O. of the case Inspector Muhammad Tarique harJ taken finger print impressions of accused Muhammad Shoaib Siddiqui, Najeebullah, Khurram Saifullah, Yaqoob Saeed Khan, Uzair Ahmed Abdullah Danish Imam, Shahzad Ahmed Baiwa and Atta-ur-Rahman at AVCC Garden and sent the same to the Incharge Finger Prints Bureau for comparison with the finger prints detected fronr the vehicle Toyota Hi- Ace Van bearing Regn. No.JE-9255 and one SMG bearing No.2050763 recovered from above said Toyota Hi-Ace Van. The report of the Finger \ Print Expert showed that the fingel prints of accused Atta-ur-Rahman match with the finger prints found on SMG bearing No.2050763 and finger prints of accused Muhammad Shoaib Siddiqu i, Uzair Ahmed Abdullah, Shahzad Ahmed Bajwa. Danish Imam and Najeebullah matched with the finger prints detected from the Toyota Hi-Ace Van bearing Regn. No.JE-9255.

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10.On 19.06.2004 LO. Inspector Muhammad Tarique sent 237 crime empties of 7.62 mm bore, one 7.62 mm bore magazine, six 7.62 mm bore mis-fired cartridges, five 7.62 (G-3) bore crime empties, one 7.62 (G-3) bore -r^ crime empty, one 7.62 mm bore SMG Rifle No.12050763 along with two magazines, 38 7.62 mm bore live cartridges, 40 7.62S}dG Crime Empties, one 7.62 mm LMG bore live cartridge and on 24.O6.2OM AVCC had sent 12 SMCs, two G-3 Rifles,2 LMGs to the Ballistic Expert for comparison with each other and the Ballistic ExPert rePort dated 16.7,2O04 shows that fourteen 7 .62 mm bore crime emPties were fired from the 7 .62 bote SMC Rifle body No.12083586, which was recovered from the possession of accused Atta-ur-Rahman at the time of his arrest and seven 7.62 mm bore crime empties were fired from Rifle No.15158739, ten7.62 mm bore crime empties were fired from Rifle No.94379, nine 7.62 mm bore crime empties were fired from No.33141, eight 7.62 mm bore ciime emPties were fired from No.24723, G-3 Rifle No.012650, eleven 7.62 mm bore crime empties were fired from LMG Rifle No.231, which were recovered from the Diggi of Car at the time of arrest o( accused Atta-ur-Rahmary Shahzad Ahmed Bajwa, Shoaib and Najeebullah.

11,. On 19.06.2004 four vehicles, i.e. one Land Cruiser Jeep bearing Regn. No.88 8263, one land cruiser Jeep bearing Ilegn. No.86 7364, one Toyota Corolla Car bearing Regn. No.92 4702 and one Toyota Land Cruiser Jeep bearing Regn. No.BB-8173 were sent by the I O. Inspector Muhammad Tarique to the Ballistic Expert, who reported that these vehicles were bearing holes caused by passage of fired projectiles of fire artns

"12. On 22.O6.2O04 accused Danish Imam, Uzair Ahmed Abdullah, Khurram Saifullah, Atta-ur-Rahman, Yaqoob Saeed Khan, Shahzad -1" Ahmed Bajwa, Muhammad Shoaib Siddiqui, Shahzad Mukhtar and Najeebullah were correctly identified by eyewitnesses PC (Traffic) Ghuiam Farooq, Ghulam Rasool, Bakhtiar Khan, LNK Muhammad Safdar, Hav. Zafar Abbas, Hav. Muhammad Rasheecl, Hav. Umar Daraz, Sepoy Sharakat Zaman and Ghulam Abbas before Judicial Magistrate Court No.XIV, Karachi South.

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13.On 24.O5.2004 the I.O. Inspector Muhammad Tarique sent the blood, blood stained earth, pieces of brain secured from the place of incident, blood stained pant and shirt of deceased Ashok, blood stained shirt. pant and vest of deceased HC Liaquat, blood stained shirt, pant and underwear of deceased HC Nazeer, blood stained white shirt of injured Karim Bux, blood stained shirt of injured Amiad Ali to the Chemical Examiner who reported that all the above articles are stained with human blood. On 24.06,2004 one Toyota Land Cruiser Jeep bearing Regn. No.BC- 3621. was also sent by the I.O. Inspector Muhammad Tariq to the Ballistic Expert, who has reported that it was bearing holes caused due to Passage of projectiles of fire arm.

1.4. On 25.05.20M, at about 4.45pm Inspector Muhammad Tarique recorded confessional statements of accused Atta-ur-Rahman and Shahzad Ahmed Baiwa in lwo video and audio cassettes thlough photographer Abbas and prepared such memo in presence of SIP Zafar { Nazeer and photographer Abbas. On 30.06.20M confessional statement of accused Atta-ur-Rahman and Shafuad Ahmed Bajwa were recorded u/s. 164 Cr.P.C by the learned IXth Judicial Magistrate, Karachi South' On 3-7- 2004 the I.O. Inspector Muhammad Tarique sent one 8 mm bore crime bullet to the Ballistic Expert, who has reported that it was firecl from 8 mm bore fire arm.

15.After completion of the Investigation the I.O. submitted charge sheet No.125/20M before the Court on 26.07.2004 forwarding accused Atta-ur-Rahman, Shahzad Ahmed Bajwa, Shoaib Siddiqui, Yaqoob Saeed Khan, Uzair Ahmed Abdullah, Danish Imam, Najeebullatu Khurram Saifullah and Shahzad Mukhtar in judicial custody while names of Syed Adnan Shah. Muhammad Qasim alias Hamza, Rao Khalid alias Haris, -t Shahab, Bilal Tayab and Hamad were placed in column No.2 with red ink as absconders, on the basis of which above case was registered. Accused Rao Muhammad Khalid, who was shown absconder, was arrested on L3.08.2004 and I.O. submitted supplementary charge sheet No.125-A/2004 on 25.08.2004. After completion of necessary formalities against the absconding accused Syed Adnan Shah alias Tipu, Muhammad Qasim, Ll

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alias Hamza, Shahab, Bilal Tayab and Hamad were cleclared as absconders vide order dated 25.08.2004.

1,6. The charge was framed against the accusecl Persons and read over , to the above named ten arrested accused to which they pleaded not guilty and claimed trial of the case. Accused Syed Adnan Shah alias Tipu alias Muhammad son of Syed Abdul Aziz was arrested on 15.10.2004 and produced before the court, remanded to the police custody. On 26.10.2004 I.O. submitted supplementary charge sheet No.125-B,12004. Thereafter amended charge was framed and read over to all the above named eleven arrested accused Persons, to which they pleaded not guilty and claimed to be tried.

"17. In order to Prove its case, the prosecution examined 32 witnesses and exhibited numerous documents and other items and thereafter the side of the prosecution was closed. The Statements of the accused persons were recorded u/ s 342 Cr.P.C. respectively who all claimed false -{ implication in the case. None of the appellants examined themselves on Oath or called any witness in support of their defense case.

18.The facts o{ the case as well as evidence produced before the trial court find an elaborate mention in the judgment dated' 21..02.2006 (the impugned judgment) passed by the concerned trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary reperition.

19.Mr. Mushtaq Ahmed, learned counsel for the appellants has contended that there was an unexplained delay of about 8 hours in registering the FIR which lead to a false case being concocted against the appellants; that no PW was present at the place of incident and that all the PW's in respect of the incident were put up witnesses; that the fact that .1 this was a concocted case is illustrated by the fact that according to the prosecution the incident took place at about 8.45 am yet some bodies from the incident reached the respective hospitals before this timei that the appellants had been acquitted from the police encounter case and arms case which lead to their arrest; that the conJessions could not be relied upon as they had been recorded after a delay of 1tl days and there were

t\o numerous defects in the manner in which the confessions had been recorded especially as the appellants who confessed had been handecl back to the police after making their confessions; that the identification parade of all the appellants had been held after a long delay and that no + role had been assigned to the appellants when they were identified at the identification parades; that there were other legal defects in carrying out the identification parades which meant that they could not be safely relied upon; that the empties and recovered SMG's had been sent for FSL together after a long delay and as such the FSL report could not be safely relied upon; that the finger prints of the appellants had been planted in the van after their arresti that appellant Uzair who lecl the police to the uniforms in the house was not the only person livil.rg in the house and as such these uniform could have been put in the house by other occuPants of the house; that questions regarding the hi facking of the van had not been put to the appellants when they recorded their 5.342 CI.PC statements and as such this evidence could not be used to convict them and that for any of the above reasons based on the benefit of the doubt being extended to the appellants all the appellants should be acquitted of the charge antT /or in the alternative if this court was of the view thatlthe charge had been proven by the prosecution beyond a reasonable doubt the defects which existed in the Prosecution case amounted to mitigating circumstances and the appellants should be awarded the lesser alternative sentence of life imprisonment. ln support of his contentions he has relied on Muhammad Pervez V The State (2007 SCMR 670), Azeem Khan V Mujahid Khan (2016 SCMR 274). Muhammad Fazil V The State (2006 SCMR 1432), Khuda Bux V The Crown (1969 SCIMIf 390), Bahadur Khan V The State (PLD 1995 SC 336), Mah Gul V The State (2009 SCMR 4), Aala Muhammad V The State (2008 SCMR 649), Muhammad Ismail V The State (2017 SCMR 898), Taj Wali Shah V The State (2014 P Cr.LJ 323), Tooh V The State (7975 P Cr. L I 440), Muhammad Israr V The State -1. (2002 P Cr. LJ 1072), Kanwar Anwaar Ali, Special fudicial Magistrate in the matter of Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No.259 of 2018, an unreportet{ judgment of this Court in Special Cr. ATAs No.29 of 2006 and 27 and 28 of 2007 (Muhammad Shaukat and others v. The State), Mian Sohail Ahmed and others v. The State and others (2019 SCMR 956), Azhar Mehmood and others v. The,

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State (2017 SCMR 135), Sabir Ali v. The State (2011 SCMR 563), Muhammad Ayaz and others v. The State (2011 SCMR 769), Nazir Ahmad v. Muhammad Iqbal and another (2011 SCMR 527), Kamal Din alias Kamala v. The State (2018 SCMR 577), Bacha Zeb v.'fhe State (2010 SCMR 1189), Muhammad Ibrahim v. Ahmed Ali and others (2010 SCMR 637), Muhammad Fazil v. Bashir Ahmad and another (2009 SCMR 1382), Akhtar Ali and others v. The State (2008 SCMR 6), Muhammad Mansha v. The State (2018 SCMR 772), Basharat Ali v. Muhammad Safdar and another (2017 SCMR 1601), Muhammad Zubair and 2 others v. The State (2010 P. Cr. LJ'1892), Ghulam Akbar and another v. The State (2008 SCMR 1064), AIi Sher and others v. The State (2008 SCMR 7071, Asad Rehmat v. The State and others (2019 SCMI{ 1156), Amin Ali and another v. The State (2011 SCMR 323), Mst. Rukhsana Begum and others v. Sajid and others (2017 SCMR 596), Nadeem Hussain v. The State (2019 SCMR 1290), Hayatullah v. The State (2018 SCMR 2092), Faqir Ullah v. Khalil-uz-Zaman and others (1999 SCMR 2203), Muhammad Akram v. The State (2009 SCMR 230),T ariq Pervez v. The State (1995 SCMR 1345), Imtiaz alias Tai (2018 SCMR 344), Muhammad Saddique v. The State (2018 SCMR 71), Application by Hussain Nawaz Sharif in the matter of C.M.A. No.3986 in C.M.A. No.2939 of 2077 in Constitutional Petition No.29 of 2016 etc. decided 611 2gttt lune, 2077 (PLD 2079 Supreme Court 196) and an unreported judgment of Hon'ble Supreme Court of Pakistary in Criminal Appeals No.25-K and 26-K of

20.On the other hand Mr. Saleem Akhtar Buriro, Additional Prosecutor General has fully supported the impugned iudgment. He contended that there was no delay in the loc'lging of the FIR which lead to the prosecution having a chance to concoct a case against the appellants; that the judicial confessions could be relied upon as they had been carried out in accordance with law; that the eye witness evidence

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was reliable, trustworthy and confidence inspiring and as such the prosecution could convict the appellants on the basis of this ocular evidence alone; the appellants had also been picked out at an identification parade which had been carried out in accordance with the law; that finger print evidence against some of the appellants suPported

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the prosecution case; that the recovery of empties at the scene along with recovery of weapons and positive FSL report supported the prosecution case as did the positive chemical report and CDR data which linked the appellants to the unexploded bomb and that for all the above reasons the .t. prosecution had proved its case against each of the appellants beyond a reasonable doubt and as such their appeais be clismissed and their convictions including the death penalty maintained against each of the appellants as there were no mitigating circumstances ln support of his contentions he has relied on Solat Ali Khan v' The State (2002 SCMR 820), an unreported Judgment of this Court in Spl. Crl. ATA No.39 to 41 of 2010 dated 16.72,2079 (Muhammad Ashfaq Qureshi & others v' The State), Khan Muhammad and others v. The State (1999 SCMR 1818), Muhammad Amin v. The State (PLD 2006 Supreme Coutt 219), Joygun Bibi v, The State (PLD 1960 Supreme Court (Pak.) 313), Nazeer alias V,{azeer v. The State (PLD 2007 Supreme Court 202), The State v. Minhun alias Gul Hassan (PLD 1964 Supreme Court 813), Noor Muhammad v. The State (1999 SCMR 2722), Raz Muhammad v. The State (PLD 2002 Supreme Court 56), Rafaqat Ali and others v' The State (2016 SCMR '1.766), Muhammad Afzal and 2 others v. The State (2003 SCMR 1678), Zttlfiqar Ahmed and another v. The State (2011 SCMR 492) and Nizamuddin v. The State (2010 SCMR 1752).

21,. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the learned counsel for the appellants, the impugned judgment with their able assistance and have considered the relevant law.

22.In our view after our reassessment of the evidence based on the prompt lodging of the FIR i.e. around 8 hours after the incident where chaos and mayhem reined after the incident and the immediate concern L was to attend to the injured, secure the scene and deluse any other bomb in our view such delay in lodging the FIR has been adequately explained which lead to no time to concoct a false story against the appellants, the evidence oI the PW witnesses (including eye witnesses), PW MLO's, post mortem reports and other medical evidence. IO's evidence, recovery of empties, weapons and an unexploded bomb and mobile at the scene of the

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inciden! positive chemical and FSL reports, damaged vehicles of the convoy from the scene of the incident we are satisfied that the prosecution has proved beyond a reasonable doubt that on 10-06-2004 at about 8.45 am a murderous assault was launched through bomb and firearm against the .P Karachi Corps Commander with attempt to murder him and his convoy which lead to the murder of 10 persons named earlier in this judgment whilst the convoy was crossing Clifton bridge Karachi.

23.The issues therefore, in our view, left before us are:

(a)whether it was the appellants o, some other persons who launched the murderous attack against the Corps Commander and his convoy which left 10 people dead.

(b)Whether the murderous attack against the Corp. Commander and his convoy which lead to the murder of 10 people was a part of a criminal conspiracy made between the appellants.

(c)Whether during the attack on the Corps Commander and his convoy offenses under the Explosive Substances Act 1908 were cornmitted

(d)Whether the murderous attack agairlst the Corp. Commander and his convoy which lead to the murder of 10 people was an act of terrorism which fell within the purview of the ATA.

Turning to the main prosecution evidence in respect of each of the above aspects.

1.Confessional Statements before the judicial magistrate.

24.In our view one of the foundational pieces of evidence in respect of the prosecution case are the two con{essional statements made by appellants Atta-ur Rehman and Shahzade Ahmed Bajwa which for ease of reference are set out below:

S. 364 Cr.P.C. Confession of Atta-ur-Rehman. Exhibit 106, L "Question:'Nhat you haue to sny in this case?

Answer: Pakistani Gozrcrnment lus announced ultimatwn of 24 hrs and lhereat'ter operation has to start in Wana. Operation zuas against tht persons, ruho lmoe sacrifced tluir lioes in the any of Allah. Pakistsni gol,emment and the Army had already killed the Muslims of Wana mercilessly duing operation. 'flrcy martyred 5 ladies and 7 children in a oehicle, destroyed their houses by bombing, martyred and arrested tlem arul the foreign Muiahidin zoere handed ol)er to America by arresting. Our orSanizntion,

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lund-Allah" nfier consultation deciderl to kill corp commander pior to commencing the operation. We utere Ttractiang the same for the last one month so that tlu Pakistani gouernnent may easily understand tfutt in case tluy kill any Mttslim on the wisles of Ameica zpe shall kill tlw persons partner 70ith General Mttslurraf in potiq making and tfu Generals dso understnnd that they are not tlw godfathers of Ptkistan and cannot rule the country in accordance ruith American Agency against the wislus of People l directed my cottpanion Bilat to got booking of one HIX for thz Picnic, tuho did tlu same ruith Najeeb and tlirected to arritte at tle atldress situated behind llBL Sports Complet 5.00 am. Naieeb was flot auare about our plan. On the next day at 5.30 anr Atta-ur-Rehman, Shahzad. Ahmed Bajzua, Bilal, Aziz Abitullah and me rotle in rented Toyotn and took Naieeb front his lrcme nnd uent behind LIBL Sports Complex, rulrcre tlu HIX zoas already aoailable. Najeeb, Shahzail Ahmeil Baiwa, Bilal anil Azizullah rode in the aoailqble Hilex md nsked the driuer to go to Gulistan-e-lauhar for collecting otlrr goods. The HIX dritter proceeded totonrds Gttlistan-e-lauhar by taking them and I proceeded in the Toyota behind tlanr. Wlrcn ute reacled Gulistnn' e-lauhar, my companion aimed guns totttards driuers and cleaners and I directed Najeeb to inject them sleeping injections uhic'h ute had already purchased. We droppetl them after injecting. On the zony Naieeb started zoeeping tlrcn zoe also droppeil him in the area of Airport. We resched model colotty in the z.,ehicle, patl<ed the HIX in nbandoned street afld all tfu conryanions rode in I Toyota ztehicle reached the house o;f Shahzad. Wrcre Ltll the companions Qasim, Shahbaz, Bilal, lr/an, Shahid alias Sad, Yaqoob, Saeed Khan, Felrmi alias Hamad, Shoaib Ahmed Siititiqui, Shahzad, Khalid Rao, Aziz Abdullah ancl me rode in our Toyota Vehicle. We took tzLto bngs of arms nnd nmmunition. All our companions excePt Hamad and nte rode in HIX and I leatl them. Hamad follorued me and tlu HIX follorued us. In this shape of cont'oy we reached Defent:e ztieru and ot tlrc already settled place this conuey storyed. I deliuered key of try oehicle to Hamad awl rodt in HlX. HIX proceetlcd totrtards Clifton bndge. Our six companions wore police uni/otm and we stopped the oehicle under the bntige. All the persons took already settled positions. Hamad and Shaluail Baiua utere itt the aehicle, whereas Aziz Abilullqh u,as on tle ditting sent. We kept explosioe mateial's bags at the already settled places, As the canL,oy of Corp commantler arriaed Shahzad pressed remote button to blast the oelicle of military police but failed. Thereaftet u'e started firing from our respectiae positions. Ftnrr oelicles pLying ruith the pehicle of corp connnnder receiued ottr fres but rapidly crossing while one ztehicle left behind ruhich Khalid Rao L anil me opened fircs ancl killed all the persons by reaching near the ztehicle. We also took their tzuo SMG rifles As Qasim receiaed bullet shot under let't fnger therefore, I directed all the companions to sit in HIX 4n1l 71te proceeded .from there. We forget to su)itch on the mobile timer of the bag of explosioe substance. We reached Defence Viezo and shiftetl in my uehicle nnd tht rented Toyotn uehicle. Tlrcreafter, ue ptoceeded touards model colony anrl reached my horne.lNhere ttte prm'ided frst aid to the injured hand of Qasim antl nutde hhn to sleep my l'tome and all tle other compnnions proceeded to thtir sentices. Next dty l.

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took Dr, Arshad Waheed to ltome, uho tttrote medicines for Qnsim. Tlis action utas taken by us solely without direction of anyone- We haae old terms utith Dr. Arshad and Dr. Akmal utho sent us Vana to Eid Muhammnd for training".(bold addecl)

S. 364 Cr.P.C. Confession of Shahzad Ahmed Baiwa. Exhibit 107.

" Question: lMat you lnae to say in this cnse?

Ansatr: Atta-ur-Rehman got booked HIX through Bilal which reacherl at the settled place behind UBL Sports Complex tt 6.00 anr on tle day of incident. To bing the same Shahzail Ahmecl Bajwa, Atta-ur-Rehman, Bilal anil Aziz Ahmed Abdullah reached thtre in Toyota uhicle. On the way tte purclused stlittge for injecting sleeping injection to drioer and conductor. We picked Naje'eb from Star gate. Aziz Ahmeil Abtlullah and me reached Gulshan+Jqbal in HIX by picking Naieeb. Were Abdullah and me got seated Driuer and Conductor on tlv renr seat on gwtpoirtt' Thereafter, both the persons u)ere injected tlrough Naieeb and Abdullah plied HIX. We dropped Ditter and Conduttor in Culistan-e-Jaultar ruith the gnpe nnd reacled ntodel colony after dropping Naieeb too ort the zoay. Where rue parked HIX at lhe abandoned plnce, sit in Toyot{r aehicle zoith Atta-ur'Rehnan and renched rry home, uhere too of our compnniotrs Yaqoob and Qasim zoere auailable since night, tphereas otlrcr compnniols including Khalicl Rao, Hamad, Sad, Shshab, Shahzad, Mukhtiar, Shoaib Siddiqui anil Ailnan Shah reacled tn the morning, From my home ue took nnns and sntmunitiorts and sat in Atta-ur-Rehman's Mefuan and tlu other rented rchicle by Tleaing Polia Llniform antl reachcd to tlu HIX anrl transferred all the orticles and the persons in HIX. Thereafter, Atta-ur-Rehman in Mehran car, othel persons in HIX and ne in rented ttehicle proceeded toruards Defence aietu, ruhere ute purked Atta-ur- Rehman's Mehran car and tle rented telicle and by leaz'ing Hamad ruith the kerls of tlese t'elicles there. Atta'ur'Rellmart get roith us and ute proceeded tou,ards Clifton bridge in HIX and reachetl tlere at 8:i5 am. Some persons haue ruorn Police Unifonns in the uehicle per the settled plan including Bilnl, Adnan Slmh, Shnhazad Mukhtinr, Shoaib Siddiqui and Yaqoob. At about 8:45 atn some companions including Adnan Shah alias Muhammad, Bilal, Shahzad Mukhtiar, Shoaib Sitldiqri, Qasim, Rao Khaliit, Atta-ur-Rehman, Shahab and Yaqoob alighted from the HIX and took positions. Wtereas Abdullah uas rennin seated in the rchicle at t\rc driaer seat, Shahzatl Ahmed Baiwa, Saacl antl me toere taken positiotts roith LMG. Qasin kept ofie bag of , explosioe mateial bettueen the tuo road, tuhich hatl to explocle at the atival of corP-cornrfiander cottuoys, Tlnt coalil not be exploded consequently Saad anil ,ne statted firing toith LMG on the first aehicle. Immeiliately all the other companions started fiting on the tnrgetetl oehicles, tuhich continued from one to one and half minutes. In the meantime, bullet entanglerl in my gtur and dit'erted my attentiott for sonrc hme. I took second rille anrl ruhen tlrmon ruy attention again I witnesse(l tlnt Rao Khaliil was picking anns form the,

ztictimized aehicles. Tlareafter, they cune toutards HIX tnd sat tpith me. One of our accomplices Qasim receiped bullet shot at his hand, therefore, zue hurriedLy proceeded Jbrm there. In this huniedness we forget to switch on the mobile tiner o/ other etcplosioe material bag. Thereafter, ue reached Defence Vieru and by tnking tle keys from already aztailable person namely Hamad relined him. After that zt,e reached Atta-ur-Rehman's lnuse uith the arms and I proceed in the rented ttehicle by tnking some arms touards my home. In 2003 I uisited Vnnn on tle directions of Atta-ur-Rehman for training. We harl old consulting terms witlt Dr. Arshad and Dr. Akrza".(bold added) Law on retraction of judicial confessions.

25.After a review of the relevant law on the legal valiclity of judicial confessions the Hon'ble Supreme court in the case of Ch. Muhammad V Yaqoob V The State (1992 SCMR 1983) reache<t the following conclusion:

"The legal position, tohich has emerged from the aboue reports, seems to be tlwt in orrler to judge the eoidentiary t alue of retracted confession, the Court is to adoert to the question, whether the same appearc to haoe been made aoluntarily, toithout any inducement, duress ot { coercion uith the obiect to state the truth. If the Court is satisfieil on the aboae aspect, tlrc mere fact that there zoere sonte irregularities in recording of a confession, zooulil not lt,sfiant disregarding of the same".(bold added)

26.It is settled law that a retracted iu,Jicial confession can be legally admissible and used against its maker in certain circumstances. In the later case of Muhammed Amin (Supra) it was held at P.224 Para 9 as under;

"9. There is no caoil to the proposition that cotaiction cotltl hatte been azuarileil on the basis of retracted confession zL,hich proposition utas examined in case of MsL loygun Bibi zr. The State PLD 1960 (SC (Pctk) 373 as rmder:- "We are unable to support the proposihon of loto laid down by L the barned Judges in this regard. The retraction of a confession is a ciruunstance ruhich lns no bearing ztthntsoetter upon the question zulrctlur in the frst instance it ruas trtluntarily nnde, nnd on the further question uhether it is true. Tle fact that the naker of the confession later does not adhere to it cannot by itself hme any effect upon the fndings reached as to u'hether tht confession was uoluntary, and if so, whether it Ttas true, for to utithdrau t'rom a self-acutsing statement in direct fate of tlrc consequences of the acatsntion, is explicable fully by the,

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lr-l proximity of those consequences snd. need haoe no connection whatsoeuer with either its aoluntnry flntule, or the truth of the facts stnted. Tle learned lttdges ruere pe*ctlv ight in f rst deciding these trLto questions, and the ansavrs being in the affirmatioe, in declaing that the confession by itself uas sufficient, taken ruith tlrc other facts and circunstances to support Abdul Majirl's conuiction. The retroctiol o/ the confessiot uas uholly immaterial once it usas found that it was ooluntary as uell as true."

70.Similarly in the case of the State p. Minhun alias Gul Hassan PLD 1964 SC 813 this Court has obsented as Lmder:- "As for tfu confessions tla High C-ottrt, it a1tpears, u,as duly conscious of tlrc fact tlut retracted confession tolrcther judicial or ertla judicial, could legnlly be.taktn into considsation agninst the maker of tlrcse confessions hiruself, and if tlrc confessions u'ere found to be tnrc and oolunttry, then tlure utas no need at all to look for firrther corroborntion. It is zoell- settleil that as against the maker himsef his confession, jutlicial or extra judicial, Tohether retracted or not retracted, can in law aalidly form the solc basis of his conaiction, if the Court is satisfied and belieaes that it uas ttue afld ooluntary snd utas not obtained by torture ot coercion orind cefient." (bold added)

{ 27. Thus, the court laid down a two pronged test as under (a) whether the retracted judicial confession appears to have been made voluntarily, without any inducement, duress or coercion and (b) was made with the object to state the truth.

28.Notably it was also held that if both (a) and (b) were satisfied that even if there were some irregularities in recording of a confession it would not warrant disregarding of the same. In our view however following the case of Azeem Khan V Muhahid Khan (2016 SCMR 274) such irregularities must be of a minor nature and must not have detracted from either the voluntariness or truthfulness of the confession.

29.In the case of Bahadur V State (PLD 1,996 SC 336) although it was suggested that a judicial confession alone can be made the basis of L conviction the safer course was to look to see if there was any corroborative material available to determine its truthfulness

30.In the case of Manieet Singh V State (PLD 2006 SC 30) a further requirement seemed to be added that in determining the rruthfulness of the confession it had to be placed within the context of the whole of the prosecution evidence/case.

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31.In our view therefore we are not in an1, d6p!1 that a retracted confession before a magistrate can be the basis of convicting in a capital case however it must be;

(a)Voluntary i.e. without threat or inducement and

(b)Its object must be to state the truth assistance for which can be ascertained from (i) whether the confession appears truthful within the context of the prosecution case and (ii) whether there is any other evidence on record which tends to corroborate the truthJulness of the confession and

(c)Only minor irregularities regarding the rules concerning the recording of judicial confessions can be permitted as determined on a case to case basis the main criteria being that such irregularities have not adversely effecteci the voluntariness or truthfulness of the confession.

32.In our view based on the evidence of PW 9 Rajab Ali who was the judicial magistrate who recorded the con{essions the judicial confessions have been made voluntarily without tfueat or inducement and the confessions are truthful when based in the context of the prosecution case and other corroborative material which we will discuss later. Even if we give very little weight to the video recordings and tapes provided by the police of the two appellants confessing before them despite them being policemen in view of S.21 (H) of the ATA they provide some measure of corroboration even if slight whilst also keeping in view ,4'.164 Qanoon-e- Shahadat 1984 concerning production of evidence which has become available because of modern devices.

33.In our view if there are any irregularities in recording the con{essions these are only minor in nature ancl have no bearing on the voluntariness and truthfulness of the confessions and can be ignored and thus we rely on the con-fessions. In the case of Raz Muhammed (Supra) it was held that a delay in recording judicial confession would not be fatal

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2.Identification of the Appellants.

34.All the appellants except Danish Imam and Khurram Saifullah are named in both the confessional statements which we are relying upon. Thus, we must see what other evidence of identification is available against each appellant in respect of this incident.

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35.In this respect we must consider the eye witness evidence against each appellant. In this respect we observe that none of the eye witnesses knew the appellants before this incident and thus the safer course would be for such eye witnesses to have itlentified the particular appellant from L an identity parade especially as none of the appellants were arrested on the spot although this was a day light incident.

Turning to the eye witnesses of the appellants.

(a)Eye witness PW 23 Zaffar Abbass (P.401). He was an escort commander in the military police. He was in the lead vehicle of the convoy followecl by the Corp. Commander at the time oI the incident. He noticed a Hi-roof van parked on the service road from where the attack was launched. Near the vacant plot he saw some armed persons with SMG's near the vacant plot some of whom wore police uniforms and others in civilian clothes. He recognized one accused during the incident who was firing at the convoy. On the next day his 5.161 CI.PC statement was recorded. v On 22.06.2020,12 days after the incident, at an Identification parade he picked out and identified appellant Atta-Ur-Rehman (who also gave one of the above re{erred judicial confessions) as one of the persons who was firing on the convoy. Admittedly he gave little, if any, hulia, in his 5.161 statement and at the identification parade he did not give a role to the appellant which ordinarily might be fatal to the correct identification of the appellant. However based on the particular facts and circumstances of the case where the identified person had made a judicial confession to his role in the attack which we have already found we believe and are relying upon, that his 5.161 statement was taken promptly, that he had no reason to falsely implicate the appellan! that in his evidence he has assigned a role to the appellant which corroborates the role I assigned by the appellant himself in his confession, that it was a day time incident and that he was not far from the appellant at the time of the incident we are of the view that he has correctly identified the appellant. We accept that there might have been some defects in the icientification parade as per the decision of the Hon'ble Supreme Court in the case of Kanwar Anwaar Ali (PLD ')

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201,9 g: 48).However in distinguishing Kanwar Anwaar Ali (Supra) based on the particular facts and circumstances of this case we rely on a more recent unreported case of the Supreme Court which discussed Kanwar Anwaar Ali (Supra) being the case of Muhammed Siddique and others V State dated 02-01-2020 (unreported) in Crim.Jail Appeal No's 24,69,21,5,486 of 20-16 and 682 of 2017 which held as under at Para 5 which is set out below;

"5. Castigating severelv the evidence of test identification parade, the learnecl counsel relied upon the guidelines laid down in the case of Kanu,ar Antunr Al, (PLD 2019 Supreme Court 488) to urge exclusion thereof. The supra case indeed a fine piece of juridical Iiterature, nonetheless, does not eitend much help to the convicts; it mainly addressed laconic approach adopted by a Magistrate in holding the test identification paracle in the said case while highiighting general principles of law' on the subject.

Test identification parade is a method of proof contemplated by Article 22 of the Qanun-i-Shahadat Order, 19M, reproduced below for the convenience of reference:-

"Facts necessary to etplain or introduce a fact irt issue or relerant fact, or uhich stLpport or rebut stt inference suggested by a fact in issue or relettant fnct, or ruhich establish the identity of anqthing or person ulnse identity is relettant, or fx the time or place at uhich any fact in issue or releztant fnct happened, or ruhich slrcw tlrc relation of parties by zuhom any such fact uas transacted, gre releaant in so far as they are necessary for that purpose".

The above framework provides enough space to admit evidence in prosecution of offenders previously unacquainted with the victims or the witnessesi appraisal of such evidence is subject to same principles as are universally applicable to any piece of evidence, under consideration in a criminal triali there f are no additional barricades as is evident from the plain reading of the Article iDid; without prejudice to the safeguards available to an accused at each stage of trial, essentially fair as guaranteed under the Constitution, nonetheless, it does not cast an artificially heavier onus on the prosecution to meet./

lz\ standards of proof beyond human capacity. Each criminal case is to be decided having regard to its own peculiar facts and circumstances. A test to be essentially applied is one case rnay absolutely be L. irrelevant in another, as the crimes are seldom committed in identical situations; there may be cases wherein prosecution must assign distinct roles played during the occurrence by the culprits for determination of their guilt as weII as consequences thereof, however, there are cases in which totality of transaction may not warrant reparability for such determination, Iike the one in hand. Cases involving abductions, dacoities and sudden assaults, more often than not, constitute episodes wherein different roles played by the culprits merge into integral totality of the crime, thus, it would be too harsh as well as unrealistic to demand exact reenactment of roles by the witnesses. Capacities even intellectually most sharp dwindle drastically in calamitous situations, therefore, the administration of criminal justice, in such peculiar situatione, has to be dynamically balanced upon fair trial without prejudice to the accused as well as due weightage to the prosecution evidence without being swayed by illusory notions, subjectively structured upon hypothetical beliefs

Having found the witnesses with no axe to grind, in a comfortable unison on all the salie'nt features of the prosecution case as well as events collateral therewith, we do not feel persuacled by the L arguments, couched on hyper technical premise' Petitions fail. Dismissed."(bold addecl) The case which we are currently deciding attracts the above dicta as it is a case of sudden assault. Even a delay in

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holding the identification parade of over a year was not fatal to the identifier correctly identifying the accusecl. In this respect reliance is placed on the case of Solat Ali Khan (Supra) and in any event evidence flowing from an identification parade is only a corroborative piece of evidence and cannot supersede reliable, trustworthy, confidence inspiring direct evidence.

Thus, we are of the view that PW 23 Zaffar Abbass has correctly identified appellant Atta-Ur-Rehman as firing at the convoy of the Corp. Commander which lead to the murder of 10 people.

(b)Eye Witness PW 24 Muhammed Safclar. P.408. He was escorting the Corp. Commander at the time of the incident under the command of PW 23 Zaffar Abbass and thus corroborates PW 23 Zatfar Abbass's presence at the scene at the time of the incident. According to his evidence when the convoy reached near Clifton bridge it came under attack by firearm. He saw some persons standing near the vacant plot armed with SMC's which were firing at the convoy. He also saw one Hi-Ace Van parked at the service road. The people in his jeep sustained bullet iniuries. His 5.161 statement was recorded the next day. On 22-06-2004 l-re attended an identification parade where he pickerl out and identified Khurram Saifullah as one of the persons who was firing on the convoy. Generally the same considerations apply to him as for eye witness PW 23 ZaLfar Abbass except that he has given some hulia in his 5.161 statement and his name does not appear in any of the confessions and thus we are of the view that PW 24 Muhammed Safdar has correctly identified appellant Khurram Saifullah as firing at the convoy of the corps commander which lead to the murder of 10 people.

(c)Eye witness PW 25 Muhammed Rashid. P.422. On the day of the incident he was slightly ahead of the convoy as he was piloting it on his motor bike. When he reached the,

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vacant plot near Clifton bridge he saw two policemen in uniform with SMG's and a little further on two more policemen in uniform along with some persons in civil dress but wearing police caps all of whom were armed with L SMC's. He was only travelling at 15KMH, had no helmet on and was looking from side to side whilst he was driving and thus he was able to get a good view of the appellants. He heard firing after he crossed Clifton bridge and got off the bike with his pillion rider Umar Darez. He saw culprits firing at the escort car and then making their escape good in a Hi Ace van which was parked on the service road under the bridge. His 5.161 Statement was given on the foliowing day. On 26.02.2004 at an identification parade he identified Shahzad Mukhtar and Shoaib as firing on the Corp. Commander's convoy both of whom have been named in both of the two judicial confessions which we rely upon. The same considerations apply to him as for PW 23 Zalfar Abbass and thus we are of the view that PW 26 Muhammed Rashid has correctly identified appellant Shahzad Mukhtar and Shoaib as firing on a jeep which was a part of the convoy and being present at the scene when the convoy of the Corp. Commander was attacked and which lead to the murder of 10 people.

(d)PW 27 Umer Daraz P.430. On the day of the incident he was travelling as pillion rider on PW 26 Muhammed Rashid's motor bike as they were both piloting the convoY. He corroborates PW 26 Muhammed Rashid's evidence. As the motor bike slowed he was able to identify two Persons wearing police uniforms near the vacant Plot who he later saw firing at the jeep which was a part of the convoy when he and PW 26 Muhammed Rashid were at Clifton bridge after the firing had started and then making their escape gootl in a Hi Ace van which was parked <>n the service road under the bridge. His 5.161 Statement was Siven on the following day. On 26-02-2004 he attendecl an identification parade and identified Shoaib who was also named in the

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judicial confessions. The same considerations apply to him as for PW 23 Zaffar Abbass and thus we are of the view that PW 27 Umar Daraz has correctly identified appellant Shoaib as firing on a jeep which was a part of the convoy and being L present at the scene when the convoy of the Corp. Commander was aftacked and which lead to the murder of 10 people.

PW 27 Umer Daraz attended another identification parade held on 7948-04 where he identified appellant Rao Khalid as being one of the persons in police uniform who he saw with an SMG on the day of the incident. The same considerations apply to him as for PW 23 Zaffar Abbass and thus we are of the view that PW 27 Umar Daraz has correctly identified appellant Rao Khalid as being present at the scene of the incident wearing a police uniform and armecl with an SMG where the murder of 10 people occurred who is also named in both judicial conJessions.

(e)Eye witness PW 28 Salman Bin Masood.P.440. He was ADC to the Corps Commander who was sitting in the back o{ the Corps Commander's vehicle with the Corps Commander on the day of the incident. lust before Clifton bridge he saw an object omitting smoke and thereafter heavy firing commenced on the corps commander's car. He saw some persons wearing police uniforms standing on the side of the road firing with SMG's.He saw and identified one person who was firing. He gave his statement two days after the incident where he gave some hulia. On 26.06.2004 at the identification parade he identified appellant Shahzad Mukhtar who was firing on the Corps Commander's car. He is the second eye witness aftet PW 26 Muhammed Rashid to have identified Shahza<l Mukhtar from an identification parade who was firing on the convoy who has been named in both the judicial confessions. The sarne considerations apply to him as for PW '23 Zaff.ar Abbass and thus we are of the view that PW 28 Salman Bin Masood has correctly

lzf identified appellant Shahzad Mukhtar as being present at the scene of the incident and firing on the convoy of the Corps Commander which lead to the murder of 10 people.

(f)Eye witness FtV 29 Ghulam Farooq. 449. In our view he is one of the most important eye witnesses especially when it comes to the identification of the appellants. At the time of the incident he was a policeman on traffic duty by Clifton bridge. At about 8.30am he saw the Toyota HiAce Van bearing registration No.9255 parked on the service road near Clifton bridge. He saw three persons sitting in the van. One in the drivers seat and 2 behind him all of whom were armed with SMG's.He personally went up to the van and spoke to and saw the occupants who told him that they were on a special mission and that he shoulcl go back to his post.When he returned to his post near Clifton bridge he saw 6 persons in police uniforms all with SMC's.When the convoy approached all the persons he had scene started firing at it and thereafter fled in the Hi Ace Van which he had scene earlier. He recorded his statement a few hours after the incident on the same day at the place of vardat. On 22-6-2008 he appeared before an identification parade where he identified three of the appellants. On 19.08.2004 he again appeared before an identification parade where he identified one appellant. On 22.10.2004 he yet again appeared before an identification parade where he identified one appellant. In total he identified appellants Rao Khalid, Uzair Ahmed, Danish Imam. Adnan Shah and Khurram Saifullah, All of whom had been named in both judicial conlessions except Khurram Saifullah but this was the second time that he had been picked out of the identification parade by a different eve witness. It was also the second time that Rao Khalid had been picked out by a second eye witness at an identification parade. The eye witness attended three separate identification parades since some of the appellants were arrested on different dates after one or two identification parades had been held and as such seParate identification,

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parades had to be held for them. The same considerations apply to him as for PW 23 Zaffar Abbass and thus we are of the view that FIV 29 Ghulam Farooq has correctly identifie<I appellants Rao Khalid, Uzair Ahmed, Danish Imam, Adnan Shah and Khurram Saifullah as being present at the scene of the incident and firing on the convoy of the Corps Commander which lead to the murder of 10 people.

(g)Pw 30 Ghulam Abbas P.458.He was running a Rent-a- car Business who was approached by two youngsters to rent them a van at 2.30 pm on 09.06.04 which was the afternoon before the incident. One disclosed his narne as Aslam and arrangements were made to rent the van. They took 300 RS token money, their address and their rnobile number all subject to production of their NIC'S. On the same day at 9pm one of them called him on his mobile phone about delivery of the van however this could not materialize so he made an alternate arrange with Hammed Bhai to send van No.JE 9255 with Ghulam Rasool as the driver who reached the given address at 6 am on 10-06-04.He was inJormed on the same day that the vehicle had been snatched and went with Hammed bhai to PS and learnt that the van had been used in a serious crime. He recorded his 5.161 statement in the evening on the same day. At 22.06.2004 he appeared at an identification parade and identified appellant Naieebullah who had come to him to book the van with Aslam. The booking was made during the day time and the eye witness would have had a good look at the appellant from close range. He gave his 5.161 statement on the same day and had no reason to falsely implicate the appellants. The same considerations apply to him as for PW 23 Zatfat Abbass and thus we are of the view that PW 30 Ghulam Abbas has correctly identified appellant Najeebullah who is also mentioned in both the confessional statements as the Person who rented a van from him on the day before the incident'

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(h)Eye witness PW 31 Ghulam Rasool is in our view an important eye witness is respect of those appellants who hi-jacked the van. He corroborates PW 30 Ghulam Abbas's evidence that van No.JE 9255 was driven by him at 6am on 20.06.04 to the address given by the youngsters to Ghulam Abbas when they booked the van. He found 3 youngsters by his vehicle when he went to the house for collection. The 3 youngsters boarded and they set off for Gulshan-e-lqbal and when they reached one of the youngsters called some one who then came with a pistol. Two of the other three youngsters in the vehicle also pulled pistols and they hi- jacked the van and made him sit at the back with his conductor Bakhtiar. He and his conductor were injected with a sedative drug which made them drowsy. First Bakhtiar was dropped off and then he was droppecl off by the 4 people in the van before the incident. Therelfter he re united with Bakhtiar who had been droppecl off close to him and they informed the police of the hijacking who were sitting at a hotel who called "15"and took them to PS Shariah-e-Faisal from where they called Hameed Bhai. He recorded his 5.161 statement on the same day. On 22-06-04 he appeared at an identification parade and identified appellant Najeebullah who gave him the iniection, appellant Uzair who had snatched the van from him and driven the van and appellant Shezade who was sitting on the from seat with appellant Uzair. All three appellants are named in the two confessional statements be(ore the judicial magistrate. His 5.161 statement was recorded promptly. It was a day light incident as it was June and he was in close proximity to all the 4 appellants from the time he collected the initial 3 appellants to the time the van was Hi-jacked and he was later released and as such he would have got a good look at all of them over a sufficient period of time to again later correctly identify them. He has no enmity with any of the appellants and no reason to falsely implicate them. The same considerations aPply to him as {or P\N 23 Zaftar Abbass and

lzz thus we are of the view that PW 31 Ghulam Rasool has correctly identified appellants Najeebullah, Uzair and Shezade who are all mentioned in both the confessional statements as the persons who hi-jacked the van on the day of the incident and in Najeeb's case gave injections to Ghulam Rasool and his conductor.

Conclusion on eye witness evidence and the identification of the appellants.

36.It is well settled by now that police witnesses (and presumably Army witnesses) are as reliable as any other witness unless any ill will or enmity has been attributed to them which has not been done in this case. Like wise it is well settled that simply because a witness is related does not make him an interested witness and unreliable unless he has reason to falsely implicate the accused, or he is biased, partisan or inimical to the accused which there is no evidence of in this case. In this respect reliance is placed on Ijaz Ahmed V The State (2009 rcMR 99)

37.We have also noted that some of the eye witnesses did not pick out some of the appellants which in our view goes to their honesty as if these were fixed or set up identification parades all the appellants would have been identified by each and every eye witness. That there are no major contradiction in the eye witness evidence and it is well settled by now that minor contradictions which do not effect the materiality of the evidence can be ignored. In this respect reliance is placed on Zakir Khan V State (1995 rcMR -1793). It was a day time incident. None of the eye witnesses were chance witnesses. Most eye witnesses gave their statements reiatively promptly and as mentioned earlier by relying on the case of Muhammed Siddique and others V State datecl 02-01-2020 (unreported in Crim.Jail Appeal No's 24,69,215,486 of 2016 and 682 ot 201'7) any defects in the identification parade in our view based on the particular facts and circumstances of this case can be discarded especially as their is sufficient other independent corroborative evidence to show the involvement of the appellants in the incident such as the two judicial confessions which we have placed reliance on and finger print evidence. Thus, we believe that all the following appellants have been correctly identified as per the role ascribed to them by the above eye witnesses PW's in their evidence.

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3.Discovery of Hi-Ace Van No. No.|E 9255 and Finger Prints.

38.The van used in the incident as proven by the above eye witnesses from the time of its booking to the time of its hi-jacking to the time of its taking the appellants to launch the attack on the Corps Commander and its use to enable the appellants to make their escape good from the scene of the incident was discovered in defense view area relatively close to the scene of the incident at about 1.30pm on the same day. From it was recovered a KK and a large number of empties. A finger print expert was called and after the taking finger prints from the van and then comparing them with the finger prints of the accused when they were arrested the expert in his report found that the following appellant's finger prints were on the KK and the van. It is notable that the veracity of this expert report was not seriously challenged and the defense took the plea that their finger prints were put on the van after they were arrested and as such have admitted their finger prints being on the van and SMG as belonging to them or having been snatched by them at the scene of the incident and have only challenged the manner in which their finger prints got on the van and SMG. The expert finger print rePort in our view is further skengtheneti by the fact that not all of the appellants' finger prints were found on the van. If this had been a set uP case or their was any truth in the allegation of the appellants that all their finger prints were placed on the van after their arrest in order to falsely implicate them in this case then all of the appellant's finger prints would have matched those founcl on the van as per the report. Whereas in fact as Per the rePort since some finger prints were not clear enough or were only partial some of the appellants' finger prints could not be matched and only the following appellant's finger prints were found on the SMG recovered from the van and the van

(a)On the SMG (KK) recovered from the Van appellant Atta-ur-Rehman

(b)On the van

(i)Muhammed Shoaib

(ii)Uzair Ahmed Abdullah

(iii)Shazade Ahmed Baiwa

(iv)Danish Imam (") Najeebullah.

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4.Recovery of police uniforms on pointation.

39.A sigrri{icant piece of prosecution evidence is the recovery of the police uniforms and explosive substances at the house of appellant Uzair Ahmed on 26-06-04 who was also one of the appellants who made a judicial confession. This recovery is significant as the police would have had no idea where these uniforms were and that only the appellant would have known and that these uniforms were used by the appellants in their well planned attack on the Corps Commander ancl his convoy. Sigrrificantly, discarded police caps were also recovered from the scene of the incident where a number of appellants according to the confessional statements and eye witness PW's were also in police uniform or else in civilian clothes but wearing police caps.

5.The unexploded bomb and recovery of mobile and SIM.

40.According to the con.fessional statements one of the bombs planted near the bridge was not set off as in the heat of the moment the appellants forgot to donate it.PW 25 Abid Farooque who is the Bomb Disposal expert in his evidence stated that near the service road of Clifton bridge by using his detector he found a plastic bag which contained explosive material and also in the bag was a nokia mobile 3310 which was connected to an electric detonator which he defused. Such mobile phone, SIM and detonator and explosive material was recoveted and the SIM matched the no. given to one of the appellants who wished to rent a van from PW 30 Ghulam Abbas which cell No. was 0300 27556397 as per CDR which again links the appellants to the attack on the convoy.

6.The prosecution evidence fitting in with the iudicial confessions 41.. In our view again it is oi significance that the judicial conlessions made by Atta-ur-Rehman and Shezade Ahmed Bajwa which we have found to be reliable and we are relying on fits in with the Prosecution evidence

42.In this regartl the prosecution produced evidence through PW's 30 Ghulam Abbas and PW 31 Ghulam Rasool that at 6am on 10-06-2004 (the day of the incident) the van No.JE 9255 was booked and hijacked by Atta- ur-Rehman, Shezade Ahmed Bajwa, Uzair Ahmed Abdullah and that

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Najeeb injected PW 31 Ghulam Rasool which.made him drowsy and thereafter he and the conductor (Bakhtiar) were released from the van. The van then proceeded to collect Qasim and appellants Yaqoob, Khalicl Rao, Shazade Mukthar, Shoaib Siddique, Adnan Shah, Shezade all o{ whom were seen near the Clifton bridge armed and some wearing police uniforms at the place of the incident firing on the convoy as identified by PW's 23 Zaffar Abbass, PW 24 Muhammed Safdar, PW 26 Muhammed Rashid, PW 27 Umer Daraz, PW 28 Salam Bin Masood, PW 29 Ghulam Farooq which resulted in the murder of 10 people. Thereafter on the same day at 1.30pm the Hi-jacked van was found containing empties and the finger prints of appellants Atta-ur Rehman, Ivluhammed Shoaib, Uzair Ahmed Abdullah, Shezade Ahmed Bajwa, Danish Imam and Naleebullah.Later on appellant Uzair Ahmed took the police to his house where on his pointation the police uniforms used in the attack were recovered along with explosive material..

43.Thus, in our view the prosecution evidence fully supports and corroborates the judicial confessions which again goes to the truth of such confessions and shows that there was a clear plan and motive (as explained in the iudicial confessions) to attack the Corps Commander's convoy and murder the Corps Commander on account of the military operation being carried out in the northern areas of Pakistan by the armed forces of Pakistan and the launching by the armed forces of Pakistan of an operation in wana at that time against militants.

Turning to the the evidence against each appellant.

1.Atta-ur- Rehman

(a)He made a judicial confession setting out the whole plan along with his involvement and that of the co-appellants and admits firing on the convoy.

(b)He is identified by eye PW 23 Zaff.ar Abbass as firing on the convoy

(c)His finger prints are found on the SMC recovered for the van used to escape from the scene.

(tl)On arrest on 13-06-04 near model coloney grave yard before independent mushir PW 19 Muhammed Akram was found with SMG which produced Positive with empties.

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found at the scene of the attack on the convoy per FSL report. Even if their had been a delay in sending the empties to FSL this cannot out weigh reliable ocular evidence as in this case. In this respect reliance is placed on the case of Nizamuddin (Supra)

2.Shezade Ahmed Bawja.

(a)He made a judicial confession setting out the whole plan along with his involvement and that of the co-appellants and admits firing on the convoy.

(b)He is identified by eve PW 31 Chulam Ilasool whose van was hi-jackec{ as being involved in hijacking the van and being its driver and he admits in his conlession being one of the Hijackers of the van.

(c)His finger prints are found on the van which was used to bring the appellants to the scene of the offense ancl to enable them to make their escape good.

(d)On arrest on 13-06-04 near model coloney grave yarcl before independent mushir PW 19 Muhammed Akram was found with SMG which produced positive with emPties found at the scene of the attack on the convoy per FSL report.

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3.Shoaib Siddiqui

(a)He is named in both the judicial confessions as playing a part in the plan and being present at the scene and as firing on the convoy with his co- appellants.

(b)He is identified by eye PW 26 Muharnmed Rashid and eye witness PW 27 Umer Daraz as being present at the scene and firing at the convoy which corroborates the role given to him by both judicial confessions.

(c)His finger prints are found on the van which was used to bring the appellants to the scene of the offense and to enable them to make their escape goocl.

(d)On arrest on 13-06-04 near model coloney grave yard before independent mushir PW 19 Muhammed Akram was found with SMG which produced positive with empties a found at the scene of the attack on the convoy per FSL report.

4.Yaqoob Saeed

(a)He is named in both the judicial confessions as playing a part in the plan and being present at the scene and as firing on the convoy with his co- aPpellants.

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(b)He is not identified by any eye witness who gave evidence.

(c)His finger prints are not found on the van which was used to bring the appellants to the scene of the offense and to enable them to make their escape good.

(d)On arrest on 13-06-04 in front of Jinnah apartments before an independent Mushir (PW 17 Abdullah Siddiqui) was found with pistol which produced positive with empties found at the scene of the attack on the convoy per FSL report.

5.Abdullah Uzair Ahmed.

(a)He is named in both the judicial confessions (under the name of Abdullah) as playing a part in the plan and Hi jacking the van and being present at the scene and as firing on the convoy with his co- appellants .

(b)He was iclentified by eye witness PW 31 Ghulam Rasool as one of the persons who hijacked his van.He was also identified by eye PW 29 Chulam Farooque, one of the most reliable eye witnesses who was the traffic policeman who was on duty at the scene of the incitlent as being present at the scene and firing at the convoy which corroborates the role given to him by both judicial confessions.

(c)His finger prints are found on the van which was used to bring the appellants to the scene of the o{fense and to enable them to make their escape good.

(d)On arrest on 13-06-04 in front of Jinnah aPartments before an independent Mushir (PW 17 Abdullah Siddiqui) was found with SMG which produced positive with empties found at the scene of the attack on the convoy per FSL report.

(e)Significantly it is he who takes the police on his pointation to his house where the police uniforms used in the attack on the convoy are found along with the explosives which is a hiding place which only he could have known about.

5.Danish Imam.

(a)He is not named in either the judicial conJessions.

(b)He was identified by eye witness PW 29 Ghulam Farooque, one of the most reliable eye witnesses who was the tralfic policeman who was on duty at the scene of the incident as being present at the scene and firing at the convov.

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(c)His finger prints are found on the van which was used to bring the appellants to the scene of the offense and to enable them to make their escape good.

(d)On arrest on 13-06-04 in front of Jinnah apartments before an independent Mushir (PW 17 Abdullah Siddiqui) was found with SMG which produced positive with empties found at the scene of the attack on the convoy per FSL report.

7.Najeebullah

(a)He is named in both judicial conlessions as taking part in the booking of the Hi ACE van and the Hi-Jacking of the van and injecting PW 31 Ghulam Rasool with something which made him drowsy. Although in both iudicial confessions it is stated that he did not know about the plan and that he was let out of the vehicle prior to the incident although him being let out of the vehicle is retuted by PW 31 Ghulam Rasool .

(b)He was identified by eye witness PW 30 Ghulam Abbas as being one of the persons who originally came to book the van and PW 31 Ghulam Rasool as the persorr who injectecl him with some thing which made him drowsy. He was not scene at the place of incident.

(c)His finger prints are found on the van which was used to bring the appellants to the scene of the offense and to enable them to make their escape gooc.l which ties in with the judicial confessions.

(d)On arrest on 13-06-04 near moc{el coloney grave yard before independent mushir PW 19 Muharnmed Akram was founcl with SMG which produced positive with empties found at the scene of the attack on the convoy per FSL report.

8.Khurram Saifullah.

(a)He is not name.l in either juclicial confession

(b)He was identified by eye witness PW 24 Muhammed Safdar as one of the persons who was firing on the convoy and eye witness PW 29 Ghulam Farooque, one of the most reliable eye witnesses who was the traffic policeman who was on duty at the scene of the incident as being Present at the scene and firing at the convoy.

(c)His finger prints were not found on the van which was used to bring the aPpellants to the scene of the offense and to enable them to make thejr escape gootl.,

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(d)On arrest on 13-06-04 in front of Jinnah apartments before an independent Mushir (PW 17 Abdullati Siddiqui) was found with SMG which producecl positive with empties found at the scene of the attack on the convoy per FSL report.

9.Shazade Muktar

(a)He is named in both the judicial confessions as playing a part in the plan and being present at the scene and as firing on the convoy with his co- appellants.

(b)He was identified by eye witness PW 26 Muhammed Rashid as one of the persons who was firing on the convoy and also PW 28 eye witness Salaman Bin Masood as one of the persons who was firing on the convoy.

(c)His finger pdnts were not found on the van which was used to bring the appellants to the scene of the offense and to enable them to make their escape good.

(d)Interrogated whilst already under arrest in another case.

10.Rao Khalid.

(a)He is named in both the judicial confessions as playing a part in the plan and being present at the scene and as firing on the convoy with his co- appellants and in particular opening fire and killing all the personnel in one jeep.

(b)He was identified by eye witness PW 27 Umer Dataz as one of the persons who was present at the scene when the firing on the convoy took place and eye witness PW 29 Gulam Farooque, one of the most reliable eye witnesses who was the traffic policeman who was on duty at the scene of the incident as being Present at the scene and firing at the convoy.

(c)His finger prints were not found on the van which was used to bring the appellants to the scene of the offense and to enable them to make their escape good.

(d)Interrogated whilst already under arrt:st in another case'

11.Adnan Shah.

(a)He is named in both the judicial confessions as playing a part in the plan and Hi jacking the van and being present at ih" and as firing on the convoy with his co- appellants' ".e.,u

(b)He was identified by eye witness PW 29 Ghulam iurooq.ru, one of the most reliable eye witnesses who was

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the traffic policeman who was on duty at the scene of the incident as being present at the scene and firing at the convoy.

(c)His finger prints were not found on the van which was used to bring the appellants to the scene of the offense and i to enable them to make their escape good.

(d)Interrogated whilst already under arrest in another case.

Improvements in evidence of PW's and other defense arguments not already dealt with.

M. We agree that there has been some improvements in the evidence of some PW's however in our view these improvements on the whole based on the particular facts and circumstances of the case are generally not material and do not effect the prosecution case when we consider some of these so called improvements in context. For example, it was suggested to numerous Army PW's that they had not mentioned in their 5.161 statements what time they left for the Corps commanders HQ in order to collect him as a part of his convoy. When we consider the horrific r nature of the incident where 10 people have been murclered near Clifton bridge and 9 others seriously injured in broad day light when an average person shortly after that event is asked to give his 5.161 statement he is only realistically going to narrate the offense which occurred before him. Namely the murderous assault that was launched on the Corps Commanders convoy on the Clifton bridge. Realistically the witness is not Boing to start from the moment he got up, took breakfast, the time he left for the corps commanders house and what tirne he left from the corp. commanders house. Instead he would go straight to the crux of the offense. Namely that he was a part of the security of the corPs commander convoy when it was attacked antl give details of the attack. Thus, when considered in context and the prevailing situation on he ground at that time we do not find any of these imProvements made in the 5.161 a statements of the PW's to be of any significance.

45.As regards to the timing of the attack and when the bodies reached the hospitals we find the short time difference inconsequential. That since we have believed the evidence of the PW's which in terms of Presence at the scene of the incident which finds corroboration from other evidence

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we find this argument without merit.There were some delays in some aspects of the case but based on the facts and circumstances of the case we do not find these fatal to the prosecution case. Even some irregularities have been explained by the prosecution. For instance, after the con-fession the appellants were handed back to the police instead of the judicial custody however the evidence shows that there was no malafide or ill intention in this as this irregularity has been duiy explained in the evidence. Namely, that as the conJessions {inished late their was no one from the jail authorities present and hence the appellant were handed over to the police who retuned them to judicial custody the next day.

The defense case

46.With regard to the defense of the appellants they simply state that they were arrested from their homes and that they had nothing to do with the incident. However none of them gave any evidence under oath to enable cross examination in order to test their evidence and. none of them called a single DW in suPPort of their defense. On the other hand the prosecution produced reliable witnesses with regard to the arrest of the appellants which was supported by independent mushirs in most cases who had no reason to faisely implicate the appellants and at the time of most of the appellants artest SMG's and bomb making material was recovered from them and those SMG's were subiect to a positive FSL report and thus we find the defense case completely with out merit. It has been contended by the defense counsel that in their 5.342 Cr.P.C statements no questions were Put to the appellants about the booking and Hi-jacking of the van. In our view this is covered by question No.1 which concerns criminal conspiracy and it is even unclear whether this evidence has been used to convict the three concerned appellants Najeeb, Shazade and lJzair. Even otherwise the failure to put such a question to the appellants will only be of assistance to appellant Naieeb as there is plenty of other incriminating evidence against Shezade and Uzair even if this evidence is excluded from consideration.

47.Of course the onus relies on the prosecution to Prove its case beyond a reasonable doubt regardless of the defense case but after a careful reappraisal and consideration of the evidence as discussed above

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we are of the view that the prosecution has proved its case beyond a reasonable doubt against nearly all the appellants through cogent, reliable trust worthy oral and corroborative evidence.

Conclusions.

48.Since we have found both the iudicial confessions of appellant Atta- ur-Rehman and Shezade Ahmed Baiwa to be both voluntary, truthful and tying in with the prosecution case with only tninor irregularities which woulct not detract from either their voluntariness and truthfulness ancl we believe the eye witnesses whose evidence, as discussed above based on the particular facts and circumstances of the case to be reliable, trust worthy and confidence inspiring and in such cases corroborative evidence is not necessary. In this respect reliance is placed on Muhammad Ehsan v' The State (2006 SCMR 1857) where it was held at P.1860 at Para 6 as under:

"6. It is tne that tlu"re is ottly ocular testimontl of P W. 4 Mst. Kluttun Bibi corroborsted by nedicnl elidence, P.W. 6 Dr. Muhamnmd Snrfraz Stal. The fact thnt there is ortly ocular testimony of one P.W. nlich is unimperchable onrl c onfi de nce -in spirin g cor r ob o ra te cl by mt: d ic nl ett i den ce u o u kI be sut'ficient to base conuiction. lt has been noted that this Court has time anil again held that the rule of conoboration is rule of abundant caution ancl not a manilatory rule to be applietl iwsariably in each case rather this is settleil pinciple thnt if the Court is satisfied about the truthfirlness of ditect eztidetce, the requircment of corroboratiae ex,idefice zoould not be of much significance in tlrat, as it marl as in the preseflt case eye-zaitness accourtt uhich is unimpeachable and confidi.ence-inspiring charactet and is conoborated by medical eaidence". (boLd added)

49.Thus, we are satisfied that the eye witness PW's have safely identified nearly all of appellants at the scene firing on the convoy and that the identification parades can also be safely relied upon and when we take all the evidence including the above referred two judicial confessions together including other corroborative finger print evidence, Positive FSL from weapons recovered Iorm the appellants on their arrest, recovery of police uniforms on pointation, police caps at the scene, recovery of the van, corroborative medical evidence and other evidence on record we find that the Prosecution has proved its case against the appellants listed below beyond a reasonable doubt in terms of planning (criminal conspiracy) to

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murdet the murder of 10 people, the attempt to murder the Corps Commander and the possession and use of explosives substances and therefore uphold the convictions against them. In this respect we have been guided by the case of State V Farman Hussain (PLD 1995 SC1) which I was cited with approval by the Supreme court in the later case of Noor Muhammed V State (1999 SCMRP.2722) at P.2725 in the following terms;

" Houeaeq we fiay obserae that the people are lositrg faith in the dispensation of criminal justice by the ordinary ciminal Courts for the rcason that they either acquit the acctsed persons on technical grountls or take lenient oieu in azuarding sentence. It is high time that the Courts should realize that they ozue iluty to the legal heirshelations of the aictims and also to the society, Sentences stoarded should be such tohich shoulil act as a ileteruettt to the cotnmission o/ offences. One of us (Ajmal Minn, C.J., as lu then toas) has highlighted this aspect, inter oLin in the case of State through the Adpocste-Gtneral Sindh, Karachi u. Farrnan Hussain and others (PLD 1995 SC'l), relet ant portion uhereof nt page 19 rends as folkttos>

(3)lt is matter of public knouledge that in Sindh, on account of kidnapping for rtnsont, connnission of tlacoihes and otlrr offences, the people nre feeling insecure. The learned trial Court h.as dilated upott tltese aspects in detail. I am inclined to subscibe to tlu oieztt found faaour zoith it. The appro.lcl, of tle Court in matters like the case in hand should be dvnamic and if the Court is satisfied that the offence has been committeil in the manner in ztthich it hns beert alleged by the prosecution the techflicalities shoulil be oztetlooked uithottt causing any miscarriage of iustice". (bold addecl)

50.Hence the convictions are upheld in respect of the following appellants whose appeals are dismissed:

1.Atta-ur-Rehman

2.Shezade Ahmed Bajwa

3.Shoaib Siddique

I

4.Abdullah Uzair Ahmed

5.Danish Inam

6.Khurram Saifullah 7 . Shezade Muhtar

8.Rao Khalid.

9.Adnan Shah

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51.We are however of the view that the prosecution has not proved its case beyond a reasonabie doubt against yaqoob Saeed and Najeebullah who are entitled to the benefit of the doubt as the only evidence against Yaqoob saeed are the judiciar confessions which have not been corroborated by an independent source and Najeebullah since having believerl the judicial confessions it appears that he did not know of the plan, that he got out of the van after injecting pW 31 Ghulam Rasool with a sedative. that he was not seen by any eye witness pW at the scene of the incident and since admittedly he was in the van it was only natural that his finger prints were found on the van and thus both yaqoob Saeed and Najeebullah are acquitted of the charge and sharl be released unless wanted in any other custody case.

52.With regard to sentencing we note that this was a brutal brazen ferocious attack by heavy firing and bomb in broad day light on the security forces of this country which reatl to the brutal murder of ten innocent persons and where the lives of other innocent men, women and children were also put in serious danger in a busy part of Karachi. We have no doubt in our minds that the object, purpose and design of the attack was to create terror and cause fear and insecurity in the minds of the general public which was in fact caused and the offenses so charged fall squarely within the purview of the ATA. We also do not find any mitigating circumstances in this case but rather aggravating circumstances and as such see no reason to interfere with the sentences handed tlown by the trial court and as such in respect of the appellants whose appeals were earlier dismissed in this jurlgment and their convictions up held their sentences are also upheld as per the impugned judgment and as such in respect of these appellants the con-firmation reference is answered in the affirmative.

53 The above appeals and confirmation reference stand dis posea o3fm the above terms.

D {.\, o pE * C:^.. R.T

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