Syed Muhammad Tehseen (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

Composition of Bench: B./D. B Mr. Justice Mohammad Karim Khan Agha, M* 3.-^ t- -/-ttl+. {i

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Date(s) of Hearing: ?Z - n - lS ). l\ - tr - lf Decide on: . ,l -20L9

(a)Judgment approved for reporting: Yes l)t

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 / over- rules / reverses / explains a previous decision.

* strike out whichever is not applicable

NOI E (i) Thjs slip is only to be used when some action is to be takeo.

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

(iir) Reader must ask the Judee writing the Judgment whether the ludgment is approved for reporting.

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

a.x *r'l+) { lo

IN THE HIGH COURT OF SINDH AT KARACHI

(C RLT NAL AP},LLI.A7'I: JLIR|SDICIION)

t/./ A.T.A APPEAL NO, 0'j 2007

r of SYed Muhammad Nascer Uddin.

,)"ft\jl, I , adult resident o[ Karachi tlv Conlined at Death Ccll at Prison at

APPELLANT

Versus tte RESPONDEN?

UNDER SECTION 2 OF ANTI TERRO SM

ACT 1997

ling aggieved b1, and dirsatisfied witJr t}Ie judgpent dated passed by the Leamed Judgc of Anti 'lerrorism Court llr. Saghar Ilusain Zaidi, in Special Casc No. 18/2005, in (FIR J| dated 3O.O5.2OO5 of Police Station Gulashan c-lqbal at Lrdcr Section 3531324130)/4'27,/34 of Pakistan Penal Codr Saction 3/5 of Explosivc Substalce Act .rnd Section 6 &,7 of Act, and In FIR bearing No. 286/2OO5 dated 3O.O5.2O05, 13-D Arms ,urd Ordinance widc Special Case No ftE State .... Versus ..... Syed Muhammad Tehscen and t Lrarncd Judge rvhilc convicting thc Present Appellant and fr mdn accused nameh Muhammad Altaf ad Mufti @l Shahid, Sar-\r,ar while giving them benefit of tlottltt under section

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IN THT, ANTI - I,ATACEI

TF.RPORTSM cotm T NO.III NO, A, T,C, [i/K/ AT , 6d nmt. KARACHI I)ATET' 22 .03, lo,

Thc Registrar, Honot_nable High Coun ofSindh_ Aarach r.

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't i . The R&ps of tho afqceaid cases (utich have been rlecide(., on 22,03,2OO?), are beirg acnt herewith rn view crf Srtition 25(2) of Artri. Tenprilm Ad. 1997 &rr n(esssrv nctiorl and fo coofrtn liofl of dorth scItcn(r or otherrvise Kindly ac*no*ledge the receipt ofthc Barirc ) Ene.l: Ar above

I (SYED SAGI{AR I

IUSSAIN ZAII,N

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I ANTI TPRRORISM COT'RT

NO.M

KARACH]

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IN THE HIGH COU ](T O[ SINI]H AT KARACTII

Specinl Crl, Anti.Terrorisn APPeal No,05 of 2007' Speiial Crl. AntlTerroris,n A(quittal APPeal No 18 <.rf 2007 Conlirmation Case No.01 of 2007

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Appellant Sved Muhammad thhseen S/o. SYed Muhammad Nasceruddin through Mr' Abdul Razzak. Advocatc.

Complainant: Ivfst. l\'laroof @ Mah Rukh ttuough Syed Iasawtr FIussain, Acl\'()cate.

For Statc lhrough li,tr Muhammud Iqbal Aw'an, Deputy Prosecutor Ceneral.

.llgtti,ls t ruil Ltl

For Appellani: Msi. Marool alias N'lah Rrrkh (NcIn,r) For Respondcnt Ivluhanlmad Altaf alias Nlulti alias ShahiLl (Ne'no)

Date ol hearing: 28.11.?019 and 29. t t.201(l

I)ate ol announccment r 2. 2019

UDCI\IIiNl' Mohammad Karim Khan Agha, J.- Appellant Syed Muhamnrad Tahseen S/o. Muhammad Naseeruddin and NIst. I\4arooi @ Mah Rukhv W,ro. Naad Ali Shah @ Ali Muharnmad have prefcrred thesc aPPeals a8ainst the imPu8ned judgmcnt dated 22.03 2m7 Passed by the learne'l Judge Anti-Terrorism Court No lll, Karachi in SPe.ial Case No'18 of2005,

F.l,R. r.wo.235 of 2005 u/s. 353/324/302/427/34 I,PC r/w section 3/5 Explosive Substance Act & Section 6 & 7 of A. 1 .A 1997 registered as l' S Gulshan-e-lqbal, Karachi whercbv the aPPcllant Syed Nluharruriad Tahseen r^as convicted and serltenced to death u/s. 302(b) r/rv 34 I'PC and r/!v 7(a) of the Anti-:lcrrorism Act, 1997 subject to conJirmation b! this court. Accused Syetl Muhammad Tahgecn was also convicted and senten e.l to RiEorous Imprigonment for 10 ycars under section 3 of the t,

Explosives Substance Act \W r/w 427 Pt'C. The accused was lurther sentenced to suffer R.l. for 07 years and fine of Rs.10,000/- under section l3-D of the Arns Act. In casc of default in Payment ol line he lvas ordered to suflcr R.t. for one year more whereas a(cused Muhamn,ad Altaf (, Nlulti S/o Chulam Sarwal was acqLritted and ordered to bc released ,orthwith if not required in any oth€r case. Hence crirninal Anti' Terlodsnr Acquittal Appeal No.lti/2007 has bern file.l by APPellant Mst. Maroof alias Mahrukh.

2.The brief facts of the Prosecution case as Per FIR are that on 30-05.2005 at about 2100 hours the complainant Zafar Hussain Lodged FIR through his lA C!.P.C slatement stating therein that he rcsidcs at A/309/2, r.i'rrc View Aparhnent 8lffk-13/D Culshan-e-lc1bal, Karachi and is rrustee of lmambargah Madinatul iljm since thc last 25 years On 30.5.2005 nt about 7:40 p.nr he along with other namazies ia'as offering his Mallhribain prayer whcn suddcnl) li ng starlcd at the mairr gate ol mosque / Imambargah. Due to that all the namazies bloke their nanraz and sta ed scattering when just alter a few seconds [here was a heaw bon'rb blast in the courtyard ol the said mocque thereafter the firing at the main gate $,as also stopped. LIe then rusherl out-side the Saie and $aw that body searcheB namely Raza Hiadcr antl Azam $'cre il'ing on thc earth duly injured. Whereas one police HC was also lying in a pool of blood across the road in front oI the main gate who was killed by the firing of terrorists and was prompdy shifted to hosPital along raith other iniurcd pcople. Whcn he came back in the courtlard of lmambalgah a lot of people had already gathered there. On enquiry he came to know tl1at two teEorists forcibly entered into the lmambargah from the main Satc and when thcy reached in the.ourtyard the bomb was exPloded. Oneof thc terrorist had affixed the bomb to his body, hence due to exPlosio the suicide tx)mber n'as killed and parts of his body viz ntrk etc were scattered in the (ourtyard, There were pellet marks on all the tfuee sides of the wall of Imambargah due to said exPlosiolt, and glasses ol doors were broken and glasses oI lvindor4s torvards western side were also broken into pieces which expl)sion had caused injuries to Muhammad Ali and Fida Hussain and following othcl namazics namely Muhamlnad Ashral, Chufran Hyder, Ghazi. Rizwan Shah, Saleem Amir, Ad[an, Amir Raza, Raia Nayyar Abbas, Abbas Hyder, Akhter Hussain, Sved Saghar

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Hussain, Iratli Hussain, lvluhanrmad Ali, Sajjad Hussain, Ov\'ais, Muharnmad Slukeel, Muharnmad Bilal, S.M. Hyeier Naqvi, shifaat Ali al1d a child namely Faheem also received seve* injuries who wcre sent to hospital for thcir teahnent. In the meantime Bomb DisPosal E't€ort a5 well as other poli.e officials leached the sPot and they collected diflercnt things including the neck and other Parts of the body of the suicitle bomber which they took away atong h'ith them. He then .ame at thc nrain gate and sa$' that one te olist was killcd bY the Police fi encounter while ihe other accused rcceived iniuries who was aPPrehcnded by SHO Irfan Zaman along with a Pislol duly loaded with a magazine with two live bullcts and an emPty magazine. h&creas six live bullcts duly l(udcd in magazine u'ere also recovcted from the Po(ket of the other unknown terrorist wlro was killed during thc en(ounter with the Police Eoth the terrorists were scen firing at thc gate by body searchers as welt as other people. Hc clainred and lodged rePort agaiist thjee unknown Persons for causing injuries to both the body scarchers as wcll as other injured persons by firing and to kill the Police llc dcPuted ai the gate of lmambargah/ Masjid Madinatul Ilim so also Providiflg cover an'l helPing in making bornb blast whereby 30/32 namazies ol the said lrnambargah received injurics and properly was damaged.

3.Subsequent to the registration uf this case undcr Section 7 A'tA 1997 r/w Section 353/324/302/4?7/34Pl'C and 3/5 ExPlosive Substance Act, anothe! FII( bearing No.2ll6/2005 was also registercd against the accused S)'ed Muhantnad Tahseen under Section 13(d) of Arms Ordinance,1965.

4.Alter usual invcstiSation the chaltan aS.rinst boih the accuscd pc$on-s, was submitted beforc the Administrative ludge for AlCs (SPe'ial Courts) rvho assiSned the same to thc Anti-IeForism Court Nolll, Karachi for trial accordin8 to law. ChalgP was framed against the accused which was later arnended to lvhich they Plead not Suilty and claime'l Elal 5. [n order to Prove its case the Prosecution eramined 28 PW's wllo exhibited various do<uments and othcr items in supPolt ol the prosecution case $'here alter the Prosecution closed its side The appellant/dccused rc.ordcd his statement under 5.342 Cr.I'C 1a'herebY he claimed that hc was a passer by at the time of thc incidcnt who had been/

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injurcd by the bomb blast and had l,eerr fa]selv implicated in thc casc bv thc police. He did not examine himseif on oath an(l did ntlt call any witnesses in support of his defense case.

6 tearned Judge, Anti-Terroris Court-XX, Karachi after hearin8 the learned counsel for the parties and assessrncnt of cvitlence available on record, vide the impugned iudgment dated 22.03.2007, convicted and scntenced the appellant as stated above, hence this aPPeal has been liled by the appellant against hrs conviction.

7.'Ihe lacts of the case as well as evidcnce Ploduced beforc the trial court lind an elabontc mention in thc imPugncd judgment, thcrefcrre, the same are not rcproduced here so as to avoid duPlication an(l unnecessary repetition.

8.I.arned counsel for the appellant has contcncled that thc none of the eye witnesscs arc named in the FIR; that none ol the so callerl eye witnesses was actually prescnt at the sceie of the incjdenU that thcy are put up witnesses; in the alternative they are chance witnesses u'ho (annot be believed cspecially as their behavior does not appeal to natural human conduct as some of them did not even go to help thc injurcd; that therc was a clelay in rcaording the s.161 statemenls of the evera'itneli'ses and as such their evidence.an be ignored; that there is rlo reliable identificatiorr oI the appellant that the identilicahon parade was deiective, that under the ATA the IO ia'as not authoriscd to carry out the investigation as he was a Sub-lnspector as oPposed to an lnsPcctori that although the appellant rvas prescnt at the scenc he rvas sinrply a passer bv tvho lvas injure(l by the blast and has bcen lalsciv inrplicated in this case bv thr police in order to show their cfficiency to their high ups; that th.'rc rs ncither any direct or circumstantial evidence against him; that the.o_ accusetl has b!'en acquitted on identical evidence and he was there[ore also entitle(i to be acquitted and thus for any one of the above reasons hc be acquittcd by being extcnded the benefit of the doubt. In suPport of his contentions he has placcd reliance on Muhammad Zaman V The State (201,1SCMR 719), Akhtar Ali V The State (2008 >L-NIR 6), Tariq l'ervez v The State (1995 SCMR 1345), Muhammad Saleem v The State (2010 SCMR 374), Mst. Sughra Begum and another V Qaiset Pervez and othe.c (2015 SCMR 1142), Muhammad Ali V The State (20'15 SCMtt 137), Mn

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Muhammad atias trlIRO V The State (2009 SCMR 1188), Umar Farooque V The State (2006 SCNIR 1605), Muzaffar Ali v The State (I'LD t96l (W.P) Lahore 32), Farman Ahmed v Nluhammad Inayat (2007 g:luR 1825), lmran Ashraf and 7 others V The Stnte (2001 SCMR 421), Gul Hassan V fhe Statc (2008lvllD 668), Muhammad Ishaqu V farman Shah 0'LI) 196.1 (W.P) Pcsharvar 58), Sohail Abbas and others V Kashif .nd others (PLD 2001 Supreme Court 516) Shafqat Nlchmood and others V 'Ihe state (2011 sc-MR 534, Sabir Ali alias F'AUJI V The Srate (2011 SCI{R 563), Sabir Ali V The Staie (2011 SCNIR 629), Ntuhammad Ayaz V 'Ihe State (2011 SCMR 769), Iramid Nadeem V The State (2011 SCMR 1233), Maula Bux and others V Chief Administrator of AUQAF, Lahorc (201.I SCNIR 2A7\, Malik Muhammad lqbal V The S(nte (2005 P Cr. l. J 768), Atta Muhammad v The State ('1968 P Cr. L I 962), Wahab Ali v The State (2010 P Cr. t.I 157), Bukhshu V The Stnte (2009 P Cr t- I 405) and Muhimmad Uzair V The State (2005 YLR 1533).

9.On the other hand leamed Deputv Prosecutor Geneml has contended that the prosecution has proved its case agarnst the accused beyoncl a reasonable doubt and that the impugned judgment does not require intcrfcrence and that the appeal should be diqmissed and tlie death sentcncc maintained. tle has submitted that that the accuscd $as arleste.l on the spot in an injurcd condition with a Pistol in his hand outside the mosquej that Lhe eye witnesses are leliable and saw him in thc mosque alonS with the suicide bomber and that the medical evitlen.e fully suppo s the proseclrtion case. ln support of his contentions he has placed leliance on Dadullah V The State (PLJ 2015 SC 628), Rafaqat Ali v The stare (2016 liCN,lR 1766), Niaz-ud-din v The State (2011SCMR 725), Muhammad Astuaf V The State (2011 SCNfR 104tt), Abdul Haq V The State (2015 SC\4R 1326), Manieet Sinth V The State (PLD 2006 5C 30), Muhammad Zaman v The State (2007 SCMR 813), Aiiaz Nau'az alias BABA V The State (2019 P.Cr L.J 1775), and Rehman Ali alias BABA V The State (20{-12 YLR 3{i60). l-eatned counsel for the ComPlalnant ddoPted the arguments of the DPG.

10.IVe have heard the arguments of the learned coun-sel for the Parties, gone through the entire evidcnce which has been read out by the appellant and the imPugned iudgment with their able acsistance and have considered the relcvant law includiflg that cited al the bar.,

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11.Before pr(reeding lurther r4'e haee noted itorn the record that the charge was framed on 02.08.2006 and after the Prosecution had lead most of ils evidence the charge !r'as amendcd ofl 20.12.2006 with the consent oI the both the proseaution and defense counsel. Thereafter no witness $as re examined. lt appears that the charge was amended to add one sPecific paragraph which aimed to fully bring the case rvithin the ambit of the

12.lt is apparent that the intcnt behind the amended charge was to show that the offenses fcll squarely rvithin the ATA. In our view such amendment was not necessarv as the original charBe made it clear that the offenses concerned were also under the ATA No new accused rvas added to the trial and all the evidence had been recorded in front of both the accused who cross examined the $'itnesses and conducted thei defenscs cases based on thic casc falling under the A'I A lhus, in out vievr'no prejudice has been caused to the accused by amending the charge which the accused through their defense counsel conscnted to before the trial court and made no applicatioh to rccall anv PW. Before commcncing these p!(recdings we categorically askcd couNel fol the accused, the I)PC and the complainant whether the abovc situation warlanted the case to be lemanded as a nutter of law a,rd all of them conJirmed that it did not and el,en otherrvise lcamed counsel for the apPellant sPecifically stated that the appeilant had not becn preiudiced at trial and that he wantcd the appeal to be decided on merits and the case not to bc remanded since lhe appellant had aheady been in custody for a vcry long time. Thus, base(l on the above discussion lve find that no preiudice has Leen caused to the appellant by amending the charge afte! most of the Proscclltion evldence had been rccordcd and these PW's were not r€"called to give thcir evrdence aJter the framing ol the amended charge and suclr this is not a casc oi renund and we will decide the same on merits.

13.In oul vicw after our rcasscssmcnt of the evidence based on the evidence of the PW's includin{ thc PlV NlLO's, inqucst rePorts u/s 174 Ci,PC the tact that many PtV's suflered iniuries caused b)' Pellets rvhich are co unonly used in suicide bomber attacks as they are often placed irl the suictle vest along u'ith ball barring in ordci to cause maximum injuries to casualhes and damage to ProPerg , rscoveries oI emPties and pellets at the sccne, blast darnage, BDU rePort and other evidence on

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rccord we are satisfied that tlte prosscution has proved be1-ond a rcasonable doubt that on 30.05.2005 at about 740pm an unknown suicidc bomber along with his armed accornplices startcd iiring on thc lnain gate oI masjir.l/lmanbargah Ma(linatul-llim and entered thc samc and as a result of the firing and detonating the suicide bomb at least 3 peoPle ll'ere killed (HC Raia lrshad, Muhammcd Ali and Fida Hussain) and at lca$t 20 othe$ !ve!e injured and a large amount oI rlamagc was also caused to ploperty. ThL positiori is not disputccl b-v the aPPcllant.

14.I he only issue there{ore, in our view, lelt before us is \r'hether lhe appellant !\,as one (, the persons who forced his lvay into thc masjid whilst iiring at the guards of the masjid and othe$ inside the mostluc along hith the suicide bomber r^ho bleu himself up in the.oufi varLl o[ the masiid and thercby through common intention caused the dcath of at Ieast three people in and out side the masjid and injured over 20 others in the masjid.

15.In our view aJter our rea$sessment of the evidence we find thal the prosecution has proved its cas€ against the aPPellant beyond a reasonable doubt for thc following reasons;

(a)That the UR has been lod8ed promPtly within (,ne and a halt hours d the inci(lent by PW 1 Zafar Hussain who was the trustee ol the masiid lor ab()ut 25 years and was Prescnt at thc time of thc blast. lt colers all material aspects of the Prosecution case including Lhe names of some of rhc injured who he would know as he had been attending the n'uejid for the last 25 years and imPortantiv statcs tllat one tefforist had been captured in injured conditt)n within the coult yard of the mosque. Hc does not nominate any perst),r in the FIR wlich is against 3 uriknor4'n ac(used persons This is logical as he would not knotv the names of the pcrsons whc) carried out the attack. Since the FIR has been lo(l8c,-l PromPtly !\'c are of thc vielv that there has bctn no chancc o, anv concocti()n especially as lhele arc so many PW's !o thc incidcnt. Thc fact that the accusell are not nominated also shoh's that he had no inttrlhotr of falscly implicaiing any Pariicular Person in thc .asc SigniJicantly, he has state,i about the Prescnce of the injurcd terrolist who h'as caPtured at thc s(ene of thc tlcident by SH() lrfa[ Zaman. lt is true that he has not named the eye lvitnesses in tlle FIR but we do not cor$ider this as being of great si8nificance as at the time hc would not have known who the eve rvitnesses i'!'ere although one oI thcm did turn out to be one of the injurell na rcd ;n the FIR being key eye witnese I'W 11 Syed Muhammad zaidi

(b)lYith rega.d to thc oflinses clulged in our view the case will mainly turn on whether we find the evidencc of the PW evc

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witnessl,s to be reliable, h'ustworthy and conlidcnce inspirinli esFeciallv in terms of their idenlifi.ation of the ac<uscd as being one of the percon's who carried out the attack on the mosque as opposcd to being an innocent pnsser by who was inadvertently caught up in ihc blast which is the defense case. Thus, we rvill need to assess the evidencc of each eire witness vcr\' caretully keel)iig ilr vielv tlrc pre\,ailing chaotic cilcumstances rvhi.h k)ok place during thc atta€k by firearnr and then subsequcnt lromb blast which iniurud many pcople ai lhe masjid.

Before lurning to the individual ef ialence oI caclt eye r^'itness however we would like to address thc identification Pdrade. Irom thc cviclence it has come on record that this was a joint identui(adon pande and as such no rcliance.an be Plarcd on it ln this rcspect reliance is placed on Kamal Din V State (2018 SCNIR 5n).

Even otherwise we have also noted a numbet of procedural defdts in the idenhfication parade such as there beinB about 20 dummics, tlrat the durnrnics were not all aiike and in Particula! that the acaused was the only person who hacl a face ilriury amongst thc other dunlmies and as such any identification of the accused at the idcntilication parade in our vieu' cannot be safei)' relied uPon. In this respect ive place reliance on Kanlyat Anwar Ali (PLD 2019 S(: 48u),

The question then arises as to whether \1'e can convict on the basis of an eve n'itness who did not knola ihe accused bcfore the incidcnt and had not scen him for a particularly I('Irg tiine without the holding oI an identification Parade. In our view lvc car based on the particular facts and circumstances of this case where the accused was arrested on the sPot and as su.h thc (luestio[ 01 ,Distaken identit) does not arise. in this rcsPect reliance is Placed on Itafaqat Ali (Supra) and Dadullah (Supra)

Turning to thc cvidence of each eye r4itness vis a vis th. identifi(ation of the accuged and his rolc in the offense.

1, Eye witneEs PW 4 luuhammad lrlan Zarnan. I Ie was SI IO IS Culshan-c-lqbal (Culshan) who reached the scene sh()rtly alter the irrcitlent lr hir cvi,lenr.e he.tntes that s,rh dn uftonsLlou\ Perltin who was bleecling lrom diflercnt Parts of the bodv wh() also ha.l a pistol of 30 bore ir his hand &'ho was also accomPanying de.cascd accused (terrorist).Hc took the Pistol which had 2live bullcts irl its magazine and found an cmpty magazine on him lvhilst takint! his personal search. IJe states irl his eviden.e that he came to know that the injureLi accused who rvas anestecl from the sPot was namer,l Tehseen who he identified in court. His S.161 statement was r€corded on the next (la)'lr'hich is lcss thall 2'l hours aitcr the incident as he reached the placc of incident at about 8pm and as such there lvas no (lelay in recording his 5.161 statemcnl.

ln his memo of arrest and recovery elatcd 30{5-05 at 8 05Pm he lus specifically noted that he salv one killed terrcrist lying on thc ground and near to him onc injured terrorist in semi conscious condition holding;n his hand one TT pjstol 30 bore black rvith 2

sac

live bullets and one enrptv mallnzine lvho was unable to disdose his name. Hulia of the aacused was also given in the memo which matahed thrt of the aa(ured. 'l hc a.cuscd \ras arrested. his pistoi and bullets seized and sealecl on the spot and the a(used was sent for medical treatment through police mobile and a cas€ u/s 13 (D) of the Arms Ordinamc h'as lodgcd against him.

e nity or ill against the accused and I his PW eye tvitness has no had no rcason to lalscl), implicotc him in this c.1sc. llc rvas not dentcd dcspitc lcnBthy cross cxaminatio| and ir our vieh' he has correctly i,lentified thc accuscd ivho he arrested in an iniured condition on the spot with a firearm. !\re con-si(ler him to be a reliable, trustlvorthy and conJidence inspiring lvitness and 14'e have no rcason [o doul.rt his evidcr,ce especiallv rcgarding thc arresl oi the accuscd on the slx)t with a $,eapon in lris hand h'hirh in our vien tlearlv ir)dicates that he \-ar a person rvho was involveri in the attack on the masjid and rvas not an innocent pas5er by. His finding of thc accused in an injured condition $,ith a pistoi in his lrand is also corroborated by PrN 1 Zaltar Hussain who is thc corirplainant in this case and who once ngain is an independcnt persrx who hail no ill will or enmity with the accuseel ancl ncr reason tr) falselv i,nplicate him in this case. Both FM Zaffar Hussain who tvas a trustee of the masjid and PW 4 Muhammed Irfan Zaman who is SllO PS Culshan arc natural u'itnesses and not chancc witncsses- We can ('o[vict lhc ac.uscd based on this cvidLrn.c provided il is.orrohtrated by sonre supi)()rtive evidencL, In this respeL-t reliance is placed on Ehsan v, The State (2006 SCI\,IR t854 although notably in thc casc of Muhammad Afzal and 2 otlrers v. The State (2003 SCMR 1678) it was held that arrrr(,lx)ration !vas ru* a mandatory requirement of eye witnesses evidence but was only requircd by way of abundant caution and was only requircd iJ thc eyc wilncss cvidclcc wns doubtlul or lacking in vcracity. ln this case we do ot [ir.l thc eye *,ihresses identifi.ation of the acftsed being ffirnd in an injure.l condition on (l1c spol holding a pistol as being cltrubtful or lacking in veracity but instea(l to be entirely believable. ln the case of Niazuddin (Supra) it was even held that ra'c could convict on thc basis o[ llrc evidence of a singlc cyc witncss ill a murdcr(:ilsc il la. considcred his eviden(p t{) be relialrle and of a gootl clualiry. Agtain this legal position is entirely logical as under the 1aw a pcrson can bc convictcd in a (apital (ns€ basEd or1 .ircrunstantial eviderrce alone without lheir being any direct evidence against him.Thus, based on the cvidence of thi! witne6s we lind that the accused was not a pasuer by but a person who played an active part in the aRack on the masiid.

Interestingly, it is suggested in cross examination to this PW that the appellant lvas not arrested at the spot but was arrested later on which (:()ntradiat$ the appellant's own case as scl ()ut in his 5.342 Cr.PC statcment that he was present at the spot but he was an innoccnl passcr by i'ho Bot inadvertently hii b), the blast rather than onc of thc pcrpetrators o[ tllc criore.

2.Lye witne$ fW 8 liaquat Ali, He was a PC of Gulshan who on the day oI the incident was on guard duty at the Masjid with HC_

Raja Arshad rvho was killed during the attack ol1 th!'mosquc and IlC Toute€q. In his evidcnce he statcs that hc shot one o[ ihc persons rvho was firing at the mosque and therealter another pcfsr)n duly iniured also came fronr the inside of the fiosquc and tell dolr,n on thc road who he caught hold of ard thel his suPeriors caine. He corroborates PW 4 Muhammed I an Zaman lhat thL' injured accused was arrested. the Pistol and magazine uas recovered frorrr him and that he was then sent to hosPital for keatment. He recorded his 5.16l statement cm the same dav He identilied the accuscd in court as being the same petson. 'the lame consid('rations apply to hinr as PW 4 Mshamnrad Irfnn Zaman is tern$ of the injured a.cused bein8 arested in an iniureli condition outside the masjid with a pistol in his hand and imporlantly he also stales that thig accused calrre frool inside thc nrosque in an iniured .onneclion. In or vicrv the evidcnce,ri this I']W again disproves the dcfensc casc that thc accuspd lvns an innocent passer by as he \|as seen conring iniured from inside thc mosque alte, the blast.

It is also interesting that no one else lvho was outsidc the mosquc as the accused clairncd to be as he rvas a passer by $'as injured by the blast. This again slrpports the prosEcution aasc that lhc accused was not an innocent passer by but h'as inside the mosque at the timc of thc blast which caused him blast injurics all conJirnrcd by his medical report. ln noting this we stress that lve are full!' coglrizant of the fact tlmt it is not for thc accused to Pro!'c hit inno.ence but for thc pr(,sccution to prove the charge against him beyond a reasonable doubt atul disProYin8 the (l€[ense case rvil] not discharge that burden as thc prosccution will havc to prove its oiln case beyond a reasonable dotrbt tfuough reliable, trustworthy and cogent evidcnce.

3.Eye witne8s FW 9 Syed Safdar Abbas Rizvi. Had Sone to the masiid to offer his prayerc. Hc was inside the mosque lvhen he saw thc pcrson who was the suicidc bomLrer come into the courtyard of the mosque lvith a man with a pistol behinrl him. Thcy wete raising anti shia slo8ans. lle saw the suicidc bomber trolv hiDrsclf up and also saw that the pcrson behirrd the suicide bonrbcr lvith a pistol was injurcd by pellef,s (rom the blast w'ho thcn ran outsi,le the mosquc holding his face in an iniured condition. Hc !\'ent outsiLle the mosque gate and saw thc injured pcrson n'ho had a pistol lvho u'as behind the suicirle bonrber laying iniured outside thc n'losque. I{e r.tognized thc accused in court as tilc person who hc sau' behind the suici(le bofiber who lvas iniured on account ol the blast and then fled the mosque n'ho he Iountl outside injured He was Prescnt when thc eDrPlics, Pellets etc !^'ere secured from thc spot. His account of the inrident ties in '!,, ith the other l'!V's who werc prescnt at the time of the blast. This witness was a nafural r,,, itr1css as he was on his way home and stoPped to saY his pa-vers. His 5.161 Statenrent was recolded on the same day a fen' hnurs alter the incident. A8ain he has no enn'tiry* or ill will torvards the accuse(i and has no rcason to falselr- implirale him. Hc is an indcpendcnt witness" l{e was not dcnted at all during cross examination and we luve r1o reason tlr doubt his evidenc('which

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although c()ntaining some improvements from his S.l6] statcment when in the ligh{ of the othe! eYidence ol the Pl\I's and its consistcncy with such evidcnce ra.c believc his t.videncc. _the important aspecl of his evidence is Ihat he saw the ac(used inside the mosque with a piskrl cloae to the suicide bomber and thal he saw hiDr beint iniured after the blast and run out of the mosque where hc again saw him in an injured condition.

iVhereas the carlier e.ve lvitness evidence although disprovil]g thc appelldnt's defe'rse that the accused was a lrasser by lhe evidencc of this PW puis lhe ac(used inside the mosque .lose to the sui.ide bomber carrying a pistol and clearly indicates that he plaved an active role i!t the altack on lhu mosquc.

4.tjye witncss PW 10 Syed Ibrar llusBain Abdi. He wa! corning to say his pravers *'hen he witnesscd the exchange .tf Iire betwcen the police guar(ls and the attackers outside the nlasjid. Hc corroboratcd the evidence oI eye witness PW 8 Liaquat Ali ra ho wirs the potice guard rvho alter the blast he saw shoot one terrorist and thcn savv the injured ac'cuseri conre f(om inside thc nosque anei lay tirrlvn He dlso witrlcsscd the recover! by the p,'lr,u uf lhe pisrol arrJ llve bullets and magazine from the a..used. He rccognizcd in court the a.cusecl who had come out of the rnosque in injurell condition afld was arrestcd bv the police. He recorded his 5.161 statemcnt on thc same .lay. Hc lives close to the Masjid and as such ra,ltlot be regarded as a chan.e lvitness. Hc u'as not dentcd in cross examination. He l-Iad no jll rv,ll or eflmitv lvith the a(..used or at]v reasons to lalsel),inlpliaate him in this case. He was closc to the firing outside the mosque and had a clear view, oi it being on\, about 25/30 paces awav. He llas not dented Lluring a lengthy cross examination and $.e find his evidence to fit in h,ith the evidcnce (,F thc other P!V's and we believe thc same.

Yet aSain this wit|ess pr(rves that ihe a.cuspd wis not injrrre(i h'hilst bcing an innocent passcr by but rather he came out of the mosque after the blast in an iniured condition and was armed with . pistol. lnterestingly, no relative or anv other person aanre iorwarcl as a witness lo support his coltcntion that h!'was a passcr bv rathcr than a culprit which would be cxpectcd if his deJcnse was true.

5.Eye witness PW 11 Syed Muhammad Znidi. Hc rvas inside tle mosque savirlg his praycrs lahcn he heard firinti outside the gate of thp nrasjid. According to lris evidcnce he wcnt out side tht, [osque ind into the courtlalLl and sarv tr,\,o persons one of .lvhom l1ael a pistol and rvas Bhouting against the shia's Hc pushed the other I)erson an(j they both lcll down and therealter thcre was a boml) blast and he bccame un.onscious an(i cantc to nltcr about 4 or 5 days aud founr.l himself in the Patel hospital as hc had bcen seriously iniured. He could not speak due to his iniuries ancl ht remaincd in the hospital ior one month When he r,'as alrle to hc f,ave his 5.161 statenlent to thc polire on 23.06.2005 whilst still ir1 hospital. He rcmained bedrid(len for 4 rnonths or account of hi\ injurics and a particle of bomb rvas removcd from hjs stomach b\ stugeL,ns. In (ourt he identified the ac(uEe.I ns beint the person who was the pe$on wiah the pistol behind lhe bomb blaster at

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the time of the incident. He was about 1 and % feet away from the sui.ide bomber at the time of the blast and aE such his ability to idertify the a(c sed cannol be doulrted. Although therc are \rrrle improvements i1r his L.vidence l^'e find this PW to Lrc n nirtural lvitncss \a41o like the other Pl\'s had no t.cason to lals(lv implicate thc a.cused. He is.lso named as an iniured in the [lR. lhc i.i.i tlrat he rvas so lradlv iniured supports his evtdencc that hc \!as rerr c[,se lo thc.-i,rLlelrrrtrranLl6ot.rtouJ luuk dt ll'c dru.e,i wh. was bchind tlle suici(ie bomber lvho was also seriously in;urcd by thr l)orirb blast. He lras not particuldrlv dentecl during his cross c\amination and we [)elieve his evitlence \.r,hi.h ,!{, Iirl(l to L,e relialrle trust$'orthl an(l conJidence inspiring. He is a key witness who actually saw and identified the nc(used with thc suicide bomber playing an active role in the atta(k on the nrosque.

Ihus, h,hen we rorrrjilier all the PW eye witllcss evidence in a holisti. manner, although r'e are alvarc that the Supreme Court has dcprtcated althoqSh not completcly ruleci out in court idcntification based or the particular fa(ts and circumstanccs oi thc case wherc the accuse(l r4'as ;rrrested on lhe spot in an iniured condition arisirlg out oF a bomb blast holding a TT pistol aJter conring from inside the fiosque where he was seen armed alonB lvitlr the suicide bofiber shoutilg anti shia slogans w'c have no dorbt that the accused wa3 not a passer t1y but instead took pirrt nr the attack on thc masiid. The eye r.,r,itness evidencc shows tlrat he was Prcscnt at the front of the mosquc, lorccd his lvav insicle the nrosque with a pistol along \^.ith the suicide bomber, that hc was shouting anti shia slogans, that he was an accompli.e oi the suicide bonrber antl that he himselJ was injured in the blast and not b.y liredrrn, that afte! the blast being badly injured in the face he lcft the masjid and collapsc(l outside the masjid whcrc he lvas arrested on the spot in an iniured condition and his pistol lvas recoverell (rom him.

Thc ncxt i$ue is whether there is an, corroborative evidence to sqpport lhe oral eviden(e against the a(aueed.

(c)That thc medical evidence provided by PW 14 l)r. Abdul Shakoor proves thal thc accused rea.hed JPNIC at about 8.,15 pm shorth,after the blast and that he lvas suffering irom blast iniuries lshich lead to him bcing hospitalized and operated on 03-06-2005 dnd then moved to PNS Shifa for his re(overy This co obor.itcs the fact that the accuselt was inside the mosque at thc tiff. ol the bomb blast as he rrreived blast injuries to his lacc and was not a passer by outside the mosquc and supports th€ oral PIV evi(lcnce in this rcspect.

I

(d)I'hat pistol empties, SMC emptics and pellels usually uscll by suici e bomLrers wcre recovered at the scene w,hich supports thc evidence of the I,W's

(c)'Ihat some of the recovcrcd pistol enrpties were fired from the pistol which was re.overed ftom the appellant as provcd by a positive FSL report. There may travc been soure delay in sending the enrptics but this b€.comcs ol little significance when faced u'ith the otherwise overwhclming evidence againsl the accused Reljance,

_!2q

in this respe(t is placed on the case of Muhanrmed Ashraf (Supra) (i)'lhat the motive by design, object and irltcnt wa5 h) murder and ifljury as manv members of the shia sect/community as possiblc tlroulih an act of terrorism which was aahieved.

(g)That the PW's are all corrobotative of each othcr and that thcre are no major contrallictions in their cvidence which lvould adversely impact on thc prose(ution case. Admittedly a number ol the PW's are police witnesses. However it is ,cll settled by now that a police tvitness is as good as any othcr witness provided that no ill &'ill, enmitl', Dralafide or pcrsonal interest is proven against him vis a vis the appellant. [n thili respcct reliance is place(i on lliaz Ahmad V State (2004 SCMR 988), Zafar V Stare (2008 SCMR 125,1) and Abba6 V State (2008 SCMl,i 108) In this case no ilt wiI or enmity has been suggestcd agaiflst any police ollicer as would lead to him talsely implicatinB the accused in this casc. All the orher PW's are independent persons rvho did not know thc accused prior to this incident and none of them had an!'ill'w.ill or ennlitv or ()rhe. reasdr to ialselv jmpli.ate the accused.

(h)Fven ii there are any contradictions in the eviderrce oI the pw,s we conside! these contradictions as minor in nature and not material and certainly not of such materiality so as n) affect th€ prosecution casc and thc conviction of the nppellant. In this respect reliance is placed on Zakt t<han V State (1995 SCMR 1793)

(i)That thc case of the appellant is not the same as the casc of his eo- accused who was acquitted. As a matter o[ fact and evilcnce they <rrc on a nruch dillerent tooting. For example, the appellant was arrestcd on the spot in an iniured condition and a pistol r,!,at recovercd Ironr him on the spot b'hereas thr' Co-a(.(used \,tas n()i arrested on thc spot, he was unirjured arul no recovery ra,as made Irom him and ns such dte evidence against eath ol the accuscd is somewhat different.

0)Thdt thc prosecution evidence provides a believatrle chain oi evidence frorn the time o, the accused and his accompli(es entering the nusjid bv force of arms to the dekmating of rhc suicide bonlb to the a.cused bring injured by thc bomtr blast, making his u'a!, our of the masjid where he collapsed on a.count of his bomb blast iniuri('s r^,here after he was arrcsted and sent for mcdical treatment fi,r bomb blast iniurics to his idcntification by the eyc witness PW's ns heing part of the arme.l group lvhi(h .rttacked the masji(i wlich detonatcd a suicidc dcvice therein lvhich kilied at le.ast 3 people an(t iniured uver 20.

(k)With regard to the fact that the in!'estigation leas carried out b) an ASI instead of an lnspector we are of the view thai such a minor irrcgularjty irr such a heinor]s offense can be over looked as lhe law always prefeis for cases to be decidcd on mcrits rdthcr tha technicalities.

gLs

16.Turning to the olfensec under the ATA. After our reassessnrent of t}re evidence we are of the vierv that the object, dcsig[ and intcnt to attock the mosquc and detonate the suicide bomb inside the mosque was in orde! kr areate terror and insecurity in the mi ds oI the public turd in particular on sectarian grounds in order to create lear and terror amongst the shia sect/community and evcn nlake them too atlaicl even to conjugate at their place of worship and as such thc offense so charged falls squarely within thf purview of the ATA. lf the accused had an individual grievance with a particular member of the shia sect then he would llave murdered him alone at some othe! place or alone in the rnosque rather than targeting the whole lfial shia sect in the mosque at prayer time where the maximum number of loc61 members oI the shia sect rvere gathered at one place with a sui(ide bomber whilst shouting anti shia slogans. ln this respect reliance is placed on thc recent gupreme Court case of Chularll Huesain V State (unreported) dat.d 30-10'2019 jn Criminal Appeals 95 and 96 of 2019 and Civil Appeal No,10 L r, 2017 and Criminal Appeal63 of 2013.

17- The next issue is of genten(ing. Based on the cvidenae we find that the accused along rvith hb accornpli.es carried out acts of multiplc premeditated murder, including of policenren and members oI the public ol1 sectarian grounds who had peacefully gathered for religious purposes oI whom at le.1st 20 were also injured including a voung boy throul,i both firearm-s and a suicide bomb blast wirich h?1s plnnncd with thc desi8n, object and intent to target the shia sect/communitv and caube Iear, rerror and a panic not only amongst them but also amongst the gcneral public which obitrt rtas achieved and amounted to an act (tf terrorism

18.Keepinl{ in !'iew the barbaric, brutaland heinous nature ol this Pre mediated ahack rvhich by objcct, design and intcnt murdered 3 inno.ent peoplc and seriously injured 20 others including a young child (and was intended to murder and injury many more) and rvhich crated feal and panic and terro! amonBst a certain segment of society based on reliSious grounds w'hieh was carricd out at a Place oI worshiP which ra'as also severely danraged with n() mitigatin8 circumstances but rathcr onlr_ aggravating circumstanccs we coflsider that a case of this [afute desen'e.s

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no leniency an.l that a dcte[ent punishment is called for to dissua.ie othcrs from carrying out such acts.

19.ln this respcct reliance is placed on Dadullah,s (ase (Supra) which at P,862 Para t held as underi

"9. Conccptrlally punishment to an acr usecl is awdrdecl on the con.ept of rckibution, dcteffen.e or rcfoflnalicxr. Ihe purpose behind infliction ol sentence is rlvo folcl. Firstly, it rvouti ciearc such atrriospl,cre, hl'irh ,1,JI(l Lcrome;r riete,.rence tor th( peoplr who havt rnclinatjon towards crime andi secondly, to rvork as d rrrcrlurrr rn rptormin|; the ,,rt'ence Uetcrrent punishmcnt is not only to maintain balance with gravity of wrong done by a person but also to make an example for others as a preventive m;asure for reformdtion of thc society. Concept of minor punishntent ln larv is to ntake an attempt to reflntn a| indjvidual ,,\,r.ongdo!,1. Howevcr, in 6uch like aases, where the appellanls haYe commiltcd a pre-planned dacoity and killed two person. no lcniency should be shor,lr to the culprits. Sentence of death would create in the soaiety due to which no other person would dare to (omntit the offence of mlrder. If in an, proved casc Ienient view is takcn, then peaa€, tranquility and harmony of socicty would be ;eopardized and vandalisrn would prevail in the so(iety. The Coult6 should not hcsitate ill awarding th€ maximum punishmenl in such like cases where it hac been proved bcyond any shadoyr of doubt that the a(au6ed was involved in the offence. Detelrcn(e is a factor to be taken into consideration while awarding senlenc€, specially the sentence of death. Vprl rvjde discletiur in thc matter (!f scntence has beefi giveD to the courts, whi.h must be exerciscd judiciouslv. Death senten(e in a murdcr case is a nornral penalty and the Courts while diverling towards lesscr sentence should have to gii,e .letailed reasons. Ihe appella,rts have connnitted the murder ol two innocent citizens and also looted the bnnk in a \^.anton. ( ruot and callous manner. Now a days the crime in the society has rea(hed an alarminB situation and the nrental propensity towards thc comnrissiol of thc (ri e wilh impunitv is in(reasing. Sense (,f fear in the mind of a criminal before embarking upon its commission rould only be inculcated whcn he is certain of its punishment provided by Iaw and it is only then that the purpose and obiect of puni3hnlent could be assiduously achleved. If a Court of law al nny stage reiaxcs its gip, the hardcned crimjnal $'ould lake thc society on the snme page, atlorring the habilunl recidivist to nro away scot-free or with punishment not collmensurate with the propogition of crime, brinting the adnrinistration oI criminal justice to ridicule and rontempt. Courts could not sacrifice suah deterr€nce and tetribrtion in lhe namc of mcrcy and expedienq'. Sparing thc accus..d lvith death sentencc is.ausilg a [!r.ive miscarriage r]f justicc and in order k) restore its suprcma.y, scntcn(e of death shorjld bc imposetl orr the ( ulprits v! hcr( lhc c,rsv has lrcn froverl.

10 'l his C-ourt i'l Ni,{,/ Mrr,d, ,,,ild rlalq (1999 Sa-,VIR 2/22) has also adverted to this aspLtt of the mattcr and has olrscn'ed is

"However, rve rnay otrserve that the people are losing [aith irl the dispensation oI crimirai jusuce by the ordinarl' criminal courts for the reason that they either acquit (hE accused persons oJr technical ilounds or take a ienient view- in awarding sentence. It is high time lhat the Courts should rcalize ihat they owe duty to the legal heir$/telations of the victims and also to the society. Seltences awarded should be such r,/hi.h should act as a deferrenl to the commission of offences. One of us (Ajrnal Nfian, C.J., as he tllen rvas) has highlighted ihis aspect, lnt.r .1lia irr the case of Statc through tlc Advocate Cencrhl Sindh, lGrachi v. Farman Hussarn antl others (PLD 1995 SL-' 1), rcl€vant pottion $,hereoI at pagc l9 !e!(ls as Iollows:-

(3)lt is n matter of public knoRledge that in Sindh, on dccounl of kidnapping Ior r.rnsom, comnissron of dacoities ancl other offences, the people are fecling unsecured. fhe lcarned trial Colrrt has dilated upon these aspects in detaii. I am inclinctl to subscribe to the view found lavour !,!ith it. The npproach of the Court in mnttets likc the case in hand should be dynamic and if the Court ic satisfied that th€ olfence has been.ommitted in the nrxnner in which it has been alleged by the prose(ution the te.hni(alilies should be overlookcd without.ausing any miscarriage of iu8ti.e". (bold aLtded).

20.Likewise in the more recent cases of Tariq Iqbal V State (2017 SCMR 594) and Khalid Mehmood V State (2017 trNIR 201) the Suprem€ Cou has conJirmed the death penalty in cases of a brutal .rnd merciless nature as in this casc.

21.As such we uphold all the sentences for each offcnse in the impuBned judgment and confirm the death sentence handcd do$,n to the appellant whilst dismissing his appeal aBainst (.onviction.

22.the appeals a8ainst conviction and conJLmatioi rcference art, disposed of in the above terms.

2i. With regard to the appeal against acquittal in respect of the respondent Muhammad Altaf who lvas acquitted by thp irnpugrnc.l judgment we ootc from the order sheets that this appeal does not appear to lmvc bcen admitted to reglla! hearing. No onc has put in an aPpcarance for the apPellant in this appeal for many vcars despite noticc being given. IVc note from the order shccts that pre admission notices were issued on this appeal against acquittal ot 09.07.2007 largely on

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account of thc fa.t that according to the appellant on the same set ot evidencc the respondent had becn acquitted &,hilst the appellanr had tJecn convicted and as such the respon.lent should also have been corvicted. By order dated 30.08.2007 that pre admission notice was rc.alled and it appears the position has rcmained the same hll date ard the appcal against acquittal has not been admittcd. Be that as nray we have read the impugnecl judgment and have found that the rcspondeflts case was on a dif(erc^t footing to the app€llants case. Namely, that he was not arrestecl fuom the spoL he was not injured and no recovery was made from hinr and having already discarded thc identification parade in this Judgment \4'e are of the vie&'that the appeal against acquittal does not jusrily admission ard evcn if it lvas admitted for regular hearing there is no such inJirmity in the impugncd judgment as would enable it to meet the very narror^, leg,al scope which would enable an appeal against acquittal ro succeed and as such the appeal against acquittal is dismissecl

1.i'he appeal against conviction is dismissed and the c(nrfirmation relerence is answered in the aJfinnative.

2.Th€ appeal against acquittal is disntssed

24.Thc appcals stand disposed oI in the abovc temls.

J.,

JLIDCL t 1,..t,.,

II rr-i\i