Muhammad Ashfaq Quereshi (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.

=e/D.

Mr. Justice Mohammad.Karim Khan Agha, Mt J "r-L; %rt,u Aq* s\" Date(s) of Hearing: t13- lz- lf f o Li - r) - i] Decideon: (L - l?- -2079

(a)Judgment approved for reportinB Yes 1 ry

CERTIFIC TE

Certified that the judgment*/order is based upon or enunciates a principle of law */ decides a question of iaw which is of first impression ,/ distinguishes / 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.ludgment whether the .Judgment is approved for reporting.

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

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lN Tlrc n.v., Of StnOX. af XenACXf =Jtt cR. ANTI /vo.

1 -MUHAMMAD ASHFAQ

QURESHI

70.ITTJHAMMAD Ar{HLAQ, -(ESENIED t . / 2.MI,HA]IIMAD AKIAR

XHAN

S/O. HAJI TN'AR DIN XHAN,

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o nbqo Boti Muslims, adults, R/o. Karachi. lrihr (1, At presently confined irr -3) 60

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Vpnsus t TIIE STATE....... ....,.,.,..,RESPoNDENT I F.I.R O. e5 ()F 2006 u I s. 324 / 427 / t0g I \2O / 34 P.P.C

R/W SECTION 3/5 EXPLOSIVE

suBS. ACT l9O8 R/W SECTTON 7(Al ATA t997

P,S. MUBINA TOWN

? r.I.R. O.332 0F 2006 u /s. 324 /4271 t}g/ t2ol34 P.P.C.

& sgc. 3/s EXPL. SUBSTANCE ACT.

1908, R/W SECfION 7{A) OF ATA 97

P S, SACHAL IAVCC] KARACHI

PPEAL UNDER STI,CTION 7 OF THE ANTI

TERRO t?lsM ACT. 7997

Being agglieved and dissatisfied rvith the lmpugned. &rdgment ddte.i A6h siepten1Lber, 2OrO p6,!ssed. bg the led.rned. Jt.d.ge oJ Anfi Terrorlsm Couft litr. fil, Kar(rchl, thereby corlvlcfing the sentetclrtg the Appellant lvo, 1 & 2 conttlcted lJnder Secfion Z(d) o! Antt Tertorisr'. Act, 7997 to the pu^lshment lot Imprlsonmelltjror lffe .lnd.

each accused shall dlso pdg fine o! Rs,1,OO,OOO/-(Rupees one Lac onlg),ln case ol delault they shall undergo R.l. for

Contd.........,..on pagc,

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IN TI]E H]GII COURT OF SINDH, I(ARACHI

SPEC]AL AN1'I T'ERRORISI.' CRI}1INAL AI'PEAL NO:

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I1OHAMMED AMEEN s:o Mohammed Sheereen Eouse NO:8/751, GALLI NO:4, /sitrsE NTE D Old Muzzaffar Abad Colony, Laodhi, , .t- os- lo (J

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ITJOIIA}'!,1 ED R E H},IAN s:o Jonder Khan l'. House NO: D/37I, cld Muzzaffar Abad Co.Lony, La ndh i, Xarachi. -? -t'a

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SULTAN MEIttlOOD s:o Sayyed Taalib, House NO:A/I12, GALLI No! 6, ASIIRAF NAGAR, pApOSH NAGAR, Nazlmabad, Karachi NOI{ con fined at, CENTRAL pRI SON, l(arach i CONV I CTS/APPEI,I,ANTSi .'..e sTA.1'L RISPONnl.]N1'

APPEAL, u,/s 25, AN,t,I TERRORIs!l AC't

MOS? RESPECTFULLY SHEWETH, TI]AT

l. By hiE JUDGMENT, dar-eA 3O/Og/2oto, the learned presidt-ng Judge of Anti Terrorism Court IiO!III, Karachi, has convicted rhe appeLlants, in sPEcrAL CAsEs NO:24 anat 25 of 2006 and has sentenced each appellant, as under -

(A)TO SW]NG UPON IHE GALLOWS - U/s 7la), A,T- ACr, and pay a FINI| of RS:ONE LAC. or in defau.It, to undergo RI, for one year mote.

(B)TO UNDERGO LIFE II.,PRISON}IENT . U/S 7(b), A.T ACT and to pay a FINE of Rs:50,000 or in atefault, to undelgo RI for ON]] YIAR {C) TO UNDERGO RI !'OR IO YEARS - !/s "1 lc) and (d), A.T. Ac'I' 6nd to pay a FINE of RS:25,000 or indefault, to underqo Rl fof ONE YEAR more.

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t1,,., ( G*l o ,ULEgf,XTED "--Ql:lc:ZCl o'l )o.to !rr. k-rl (F.at II] TBE BTGII COUII OF glN.0ti A'' f,ARAcr13'/ t8 t ( SPECIAL CEII\IITAL APPIILI,ATT JuPIS,DICTION ) SPXCIAT CRl!'t[AI AI PN&L NO: \\ or 2010, n.hlr Ullah S/o f,illry.t trhani 0 ";

Uuslti. Adult. DloBent1v co|ifbod - Bt coltral I ria-on, (7p 1i,- <r .Ntn, \,tu,t!14 fla(f +rt." f,rnchl. ...,^.-.-i.--.... d lppeil.nt.

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AFIEAI ,IX DER SECTICII 25 i,]!

lFE AXTr TEERORTSH l.jlt 1997:

B.1!g a88rl.ved a.Dd d.lrsat16fl6d eilth the jud.gnont datsd ,0.9.2O1O paBacd b]' thc lear'troal Anlii Trrro!18. Court No,IIf at xarochi ir Sp6clsl CaBo t:o.?4 atid 25 of 2006 trholoby tho .Appollsnt *es afYtrded [prlaon- -!.nt ,fol. lifo U/3 7(a) .htt flrror1E,t Lct, 1997 end aleo to p.y B flae of R6,1'0OICOO,/. aDd i!, cEBo ol defe.ult to u!d6r'to R.J. lor J y6o!s, lEprl€oDtlent lor 1110 tl/s ?(b) of AntL T.r!lor13r lot, 1997 eDd alFc to pay llne of c .,f,e ,X,OOO/- ar1d ln ca!6 of dof&ult to utrd.c r8o punlsb.Dcnt l.

\ lor ouc ycat .ora aDd punlEbnent ol t0 ,oar8 U/g ?(c) e ".,t {"" (d) ol tntl T!!ro!l!n Lctt 1g9? ard fLu6 to ti. cxtant al Ra.2r$OO/- .!d 1n oa3t ol d.ctru.rt to und.rgo R.f. for oao year !!ore.

isN,i couRT l.l().[i1 i(Al'1 r\ 1 HI THE An{TI-TERI(OR / 2t)10, Karachi' Date(l I I{l..Il:.' NO.A I C'lll/ K'l)lv/ Ll ).

-lo, ( ,/, / Jdge 'l h{ Registr'rr, I-ligll Courl ol Kaoq!i,

374 cR P',C lN SPEC1AI 9U?iirr-r RETEP.ENCI u/5 7/ lrrq/' I-\(l-i '\'r s5/ 2006)u/s.124/42 {n NO'24/2o0b(FlRNrl Ir)0ti Ii, PPC & Sdtr(rn 1/ l L:xp AVL:ctr S. Ivl UBIN{!!YiNl 7le) ot ATA 1$Z

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'r;r' [,li#;u*ru,ruiffi1E dc(iL1ed cases hale b€en It is to state ttrat the afolesaid '''rl r0.0e.2010 wherein * *"'*"*"..':::;T:,:HI:i: :]''.ll :l: At*l"llah s/o Mut'aml,*;;;:; I(halid shat.reen arias -"r,l^"" .rria,, , ln, s/, saiturah arias Nrusrim s/ o5l"il::::il":, convictcd t' *",':I;:';;,r,i rmprjsi,]:i,*t {, londar Khan are vo rrur.,u,n,.,,a .qli''rr.r, r'luhamrna'l tiJc also and accusc': i::;:l;;"" ard Rahrc,nrllarr ari s

'{kber Khnn tl':..:T,;; t".1 n,' r u' lr4uhammir<i cnn..'i "" "* "r,., Nac€m arias Ali lldssar lr.,,c zlso bl {, '" _*t:1":;'";;", ,""*** purushN*nt .f rmPrisolrment ;' ,". rl,"x,ur,i' $nten'cs

are ]:ili,',.",,;;;

sut arvartled. Thc l)eath U4 Cr'P'C' Iligh Court unller 5'ctiprr

sPP(iar case\ are s""'t"]::]::'''*' '' t /i'/. / rhc R&I's of the aforesaid /r1" " of Anll-l"rI'!rrrrl 'H I' In vich of Sccti n 25(2) CDs Aricle '+

rcceiPt L'f the -i\ Kitrliy acknorledge thc 7-) '.i,- EncL As above

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IN THE HIGH COURT OF SINDI{ AT KARACHI

Spct'ial Crl. Anli-lerrorism Appeal No.39 of 2010. Special ClI. Anti-Terroris,n APPeal No.4t) of 2010. Special Crl. Anhjferrorism APPcal No 4l of 2010. ConJirrnation Case No.10 of 201tJ.

Presenh L'lohn, t,tii Kirin \lnut \1!.l stice Ztujlli Ali Sa gi.

Appellants: lvluhammad Ashtaq Qureshi S/o. Muhamma(l Akhlaq Sultan Mehmoo(l S,/o SIed Talib, Raheemullah s/o Ali Hassan through Mr. Mushtaq Ahmed, Advocate.

Mr:hammad Amin S/o. I\'luhammad Sharman, Muharnmad Rehman S/o- Jonder Khan ihrough M/s. Salahuddrn Khan (iandapur and s(1l,ir Shah, Advocates.

Muhammad Akbar Khan son of llaii Umarddin Khan thiough \'lr. Muhammad Akbar Khan and Ms. Irareeda Usmani, Advocates.

For Cr)mplainant: Syed Nfuhammad Ali Shah and Shafat Hussain thlough Nf/s- Muhammad Irian ancl lt'lazhar Qayyum, Advocates.

Iror Sl.1ie Through Mr. \{uharnmed l(lbal Awan and DPC and Abrar Ali Khichi, APC.

Date of hearing: 03.12.2019 and 0{.12.2019

Date of arulouncement 16.12 2019

IUD(;MENT

Mohammad Karim Khan Agha, I,- Appellants tuuhammad Amin alias Khalid shaheen alia.r Abdullah S/o. Muhammad Shavman, Sultan Mehmood alias Saifullah alias Ivluslirn S/o S1'ed Talib, Muhnmdrad Rehman alias Mani S/o. Joldar Khan, Muhammad Ashfaq Qrueohi s/o. Muhammad Akhlaq, Muhammad Akbar Khan S/o. I-laji Unlarddin Khan and Rahimullah alias Naeem alids Ali Hassan S/o. Willa-v-at Khan have preferred these appeals against the imPu€ined iudgment dated 30 09.2010 passeci by the learned ,ud8e Anti-lerrorism Cou* Nolll, Karacht in Special Case No.24 of 2006, F.l.R. No.85 of 2U)b !/s 334/a27 /109/120/\4 t./

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Prc r/w section 7(a) of ATA, 1q)7 registered at P.S. N'lubina Tou'n (AVCC) and Special Case No.25 of 2006, F-.|.R. No.332 of 2006 u/s. 324/ 427 /109/ 120/31PPC & section 3/5 Explosive Substarrcc nct, !ql8 r/w scr:tiofl 7(a) oi ATA, 1997 rcgistered at P.S. Sachal (AVCC), Karachi whcreby the appellants have been convicted and sentenced as under:_

(i)Accused Muhammad Amin, Sultan Mehmood antl MuhamDrad Rehma^ wcrc convicled ancl sentencetl t(t death under se.tion 7(a) of Anti-'l'errorism AcL 1997 t/w Se(tion 120(b) subject to conJirmation by this court and fine of Rs.100,000/- ea.h. In case of default in Pnynrent oa linc they $,crc ordcred to undcrgo R.l. for 03 years more.

(ii)Accused A.hfaq, Akber Khan and Raheemullah rvere convicted and sentenced to imPrisonment ft,r life Lrndt'r section 7(a) of Anti-Terrorisnr Act, 1997 along with fine of Rs.100,000/- each. In case of default in Paynlcnl ol line thev wele ordered to undergo R.l. for 03 vears nlore.

(iiD Accus€d Muhammad Amin. Sultan Mehmood, Muhammad Rehdran. Ashfaq, Akber Khan and Raheemullah were convicted and sentenced to imprisonrnent for life under seation 7(b) ol Anti-lcrrorism Act, 1997 along with fine of Rs.50,000/- each. [n case ot dcfault in payment of fine they wele ordered to undclgo imprisonment for one y'ear morc.

(i") Accused Muhammad Amin, S{ltan Mehmood, lltuhammad RehmarL Ashfaq, Akbcr Khan an.l Raheemullah i'ere corvictcd and scntcnced u/s 7(c) & Gl) o[ Anii-Terrorism Act, 1997 for punishrrcnt ol 10 ycirs and line ot Rs.25,000/- In case of default ifl p.ymcnt ol ii'le thcv were ordered to un.lergo imprisitrr'nerrt f('r ()n(: vt!r nlr[r]

(v)Accused Muhammad Amin, Srtltan Mehmood, Muhanrmad Rehnran, lr'crc convictcd and sentenced k) imprisonment for li[e under section 7(ft) ol Antl-Terorism {ct,1997.

All the punishments of imprisotunent were ordcrcd to bc run concurrently while benefit of Section 382(b) Cf.P.C. is ar,!.arded only to accused Akbet Khan.

2.The brief facts of the prosecuhon case No.24/2006 according to 154 Cr.P.C. statement of Complainant Syed Muhammad Ali Shah S/o. Akbar AliShah clatett 06.04.2005 is that at about 12:00 p.m He along with Allama Hassan Turrabi, Murtaza Turabi S/o. Hassan Turrabi, Cunmcn P.C Mashooq Ali and Deedar left the house of Allama Uassan Turrabi in Maroon colourcd Toyota SUV vehiclc bealing No.BB-9832 to attcnll

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meeting of MMA held at ldarai'Noor-ul-Haq Dawood Engin€erint] College towards Abul Hassan Islahani Road through MickaJl Chowr'ngi and Murtaza Turrabi was dliving the vehicle and gurunen was sitting by his side- When the vehicle reached Sahafi bridge, opposite Bleez Carden on Abul Hassan Isfahani Road, a bomb blasted in a Pushcart Parked at the left side of b dge as a result of which Murtaza Turrabi and Surunen Mashood receivetl injuries but Allama tlassan lurrabi was safe while a motorcyclist and othet persons Passing by thc side of the roacl also received iniuricc- A police mobile immediately reachcd there and shiftcd the passerby and anothc! injured Person to hospital 'lhe vellcle lvas also

danuged with its tyres and glasses being brokcn He Iurther stated tlrat rcme unl<noivn persons had lllade this blast with intcdtion to kill Allama Hassarr Turrabi and Percons sitting in the vehicle by some cxPlosive material and to damage the vehicle.

3.Wtile the brief facts of the prosecution case No.25/2006 according to l54 Ci.P.C. statement of ComPlainant Shafat Hussain are that on 14.07.2006 his meeting was fixed with Allama Hassan Turrabi at 4:00 P'm' and as per promise of mecting he reached at house No.A/59, Abbas T(,t'Ir where hc came to know that Allama Sahab had not reached at his housc so he stood at a nearby shoP alvaitirlS his return and after about 5/6 minutcs vehicle No.BB-9832 of Allama tlassan lurrabi Sahab came followed by a police mobile and it stoPPed in kont oI his housc wherc alter the complainant moved towards the house of Allama Hassan Turrabi and gaw that Allama Sahab was moving towards his house in lront o, his vehicle. The Complainant saw a boy aged about 20/21 -Years move towards Allama Sahab but lmran Ali the nephew of Allama Sahab pushed the bo1' back where after a blast occu ed and smoke spread in the area- He rnade cries and other persons gathLYed. ConscquentlY Allarna Sahab and police Pctsonnel who received iojuries with the helP ol the complainant ancl of Police d ver and other Persons shifted Allama Sahab who was scriouslv injured and guards who werc aiso iniurcd irl Police mobile and sent them to hospital, lmran Ali exPired nt the spot- He saw the boy who rushed towards Allama Sahab whose body after the blast was lying spread in the shaPe of Pieces of flesh and his {oot ivas Iying at the colner of skeet but his head was comPletc which was l)ing on the spot. tle also saw one hand grenade lying in flont of house of Allama

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Sahab and at the time of incident Muhamrnad Yaqoob and Jaffar Ilaza were also present. Allama fla$san Turrabi during trcatment at Patcl t{ospital succumbed to his injulje6. He further stated that the murder of Allama ljassan Iurrabi was in cootiruib! of the incident of Nishtar Park and murder of other Ulmas. He claimed that accuscd r1'ho died at the spot and other seclet hald6 lvere behind the murder of Allanra Sahab and Imran Ali and injured police gpards by means of explosive material and damaged the vehicle No.B&9832. Such statemcnt u/s l5.l Ci.P.C. was incorporated in the FIR of Crime No.332/2006 at P.S. Sachal Karachi.

4.After registration of the FIR8, usual investigatrons were car ed out and on the conclusion of the investigatiolrs thc matter was sent up for kial. The Charge was franed against the accused all of whom pled not guilty and claimed hial.

5.In order to prove it$ case the prosecution examined 37 PW's 'ho exhibited various docu!flenls and other iterns in supp()!t of tlre prosecution case where afte! the prosc'aution closed its side. The ,statements of the six accused persons u/s 342(1) Ci.P.C. were recotded and all the a.cused denied the eitire facts of the case clainung thenrsclves to be inn(xent and stating that it was a case of false implication as the police were under pressure to aftest arld convict gome one in the case becausc it h,as a high profile one.

6.Learrled )udge, Anti-Terrorism CourtJll, Karachi, aftcr hearing the leahed counsel for the parties and assessment oi evidence availablc on recold. vide the impugned iudgment dated 30.09.2010, convicted and sentenced the appellants as stated above, hence these appeals have been filed [:y each appellant agairlst his conviction and sentence as handed down in the impugned iudgment.

7.The facts of the case as wcll as ef idence Produced befole the trial court find an elaborate mention in the imPugned judgment, therefore, thc same aie not reproduced hcre so as to avoid duPlication and unneccssary repetition.

8.Learned .ou&sel for aPpellant Muhanuned Akbar Khan has contended that he is completely innocent and that thcre is no evidence against him; that he did not makc any iudi.ial confessioni that he has been

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named bt' other co-aocuscd in their ,udicial conJessions which legaliw is doubtful and he cannot be conviated on such confessions uiless thcre is stron{j unimpeachablc co oboraLive evidence againsl him; that thele is no corrcborativc or other evidence against him as there is no eye lvitness against him and no recovery has b€en made from him lvhen he was arresrud on a motor bikc along with Muham,ned AshJaq and as such for any of the above rea,sons based on the benefit of thc doubt being extended to him he should be acquitted oI thc clrarge. In suPport of his contcntions he has placed reiiance on Kachkol V The State (1997 P C.. L | 352), Sheer Shah and another V, The State (1997 P Cr. l. J 153), Bahadur Khan V. The State (PLD 1995 SC 336), Alif Gul V. Noor Afzal afld others (PLD 2009 Peshan,ar 20), Mumtaz Bibi and others V. Ghulam Akbar (Pl.D 1995 Peshawar 81), Anwar Bibi and othe$ V. liaja (1997 SCNIR 1081), Mah GUI V. The St.te (2009 SCMR 4). Muhammrd Yamin ali.s Raja V. The State (2009 SCMR 8-1)ancl Mursal Kazmi alias Qamar shah V. The State (2009 scMR 1410).

9.Leamed courrsel for appellant Muharffned Ashfaq has contended that he is completely innocent and that thcre is no cvi(lence against him, that he did not make any iudicial confession; that he has been named by other co-accused in their ildicial confe$sions which legalit, is doobtiul and hc cannot be convicted on such con{essions; that there is nn coEoborative or other evidence against hilll as there is no eye witness against him and no recoverv has been made from him n'hen he was aEested along with appellant Muhammed Akbar Khan and as such based on thc bcnefit of the doubt being extended to him he should be acquitled of the charge. Learned counsel for appellant Rahimullah has contended that he is completely innocent and that there is no evidence against him; that he did not make any iudicial confessiory that has becn named by other ccFaccused in their iudicial conlessions lvhich legality is doubtful and he cannot be convicted on such conJcssions; that there i9 no evidence against him in respect of lhe lirst incident; that the on-ly other evidence againsl him conccrrlr the second incident lvhich lead to the death of the deceased whereby Pw 2 ShaJat and PlV 19 Jaffa Raza idelltfied him at the place of iocident but even otherwise their identiJication o, him cannot bc safel), relied upon as when they Picked him out at the identilication parade no role had been assigned to hirn and as such for any of the above t

reasons based on the benefit of the doubt being extended to him he should be acquitted of the charge.

10.lramerlcounsel for appellant Sultan Mafunood has contcnclcd that his confession is inadmissiblc in evidence becausc it was neither malic voluntarily and nor is it trucj that his confession was recoteled after a dela, of 6 days after his arest whilst in police custod); thirt there were numerous prircedural delects in his confession such as him not bcing informed that he would not bc leturned to police custody if he failed to confess; that in respect of the first incident of the attempted murder the two eye witnesses against him (PW 7 Rana Qasim and PtrV 8 Muhammed Faisal) werc chan.e witnesses, that the identilicati()n parade was madc 15 days after his aftest and that they had not assiEned hin any rol€ in the offense and as such their eyc witncss evidence coul(l not txr safel)- relicd upon; that h'ith regard to thc second in.ident which lead to the death rtt th! deceascd all the eye witnesses against him (P\ry 1 Yaqoob, PlV 2 Shafai, Pw 16 HC Muktar, PW 19 Jaffa Raza, PW 25 PC Altat and PIV 27 Jawed) were chancc witnesses; that none of the identilication Paladcs could be safely relied upon as they were joini identification parades and no roie had bcen assigned to him and therc $'as also Procedural detects in all the identilication parades whi.h Iead to arry reliance of them tleilrg unsafc and as such for any of the above reasons based on thc bencfit ol the doubt being extendcd to him he should be acquitte(l of the clurrge. ln support of his contentions he placed reliance on Kanwai Anwaar Ali (PLD 2019 5.C 488), Iaved Khan alias Bacha v. The State (2017 SCN1R 524\, Azht Mehmood v. The State (2017 SCIUR 135), Sabir Ali alias Fauii V The Srate (2011 SCMR 563), Muhammad Ayaz v. The State (2011 SCMR 769), Kamal Din alias Kamala V The state (2018 SCNIR 574, Nazit Ahmad V Mrhammad lqlral (2011 SCMR 527), Azeem Khan V Mujahid Khan (2016 SCN'IR 274, Muhammad Azhar l{ussain V The State (PLD 2019 SC 595), Muha$mad Pervez V The State (2007 SCMR 670), Mehro Khan v Anwar and 2 otherg (2017 P Cr. L J Note 233), Ghous Bux V Saleem and 3 others (2017 P Cr. L I 836), Tariq V The Strtc (2013 P Cr. L J 1786), Noor Muhammad V The State (2017 P Cr. L I 479), Mah cul v The State (2m9 trMR 4), Abdul Jabbar V The State (2019 SCMR 129), Basharat Ali v Muhammad Safdar (2017 SCN1R 1601), Muhammad Zubair V The State (2010 I'Cr.l, J 1892), I\{uhammad Fazil v Balthir

Ahmad (2009 SCMR 1382), Muhammad Asif V The State (2017 trMR 486), Muhammad Akram V The Slate (2009 SCMR 410) and Tariq Pervez V The State (1995 SCMR 1345).

17.l-carncd counscl for appellants lvluhammetl Amin and Muhammed Rehman adopted thc arfumcnts of learned counsel for thc aPPellant Sultarl Mahnlood whose casee lvere on a similar footing and also in addition contended that the appellants rvere alreadv in custody ifl respect of an offense under the Arms Ordlnance when they wcre arrested in this case and that the arms had been loisted on them in order to falselr_ implicate them in this case, that the raid which lcad to their anest was in Iact fabricated ra/hich was shown by the Iact that despite the house where they were allegedly arrested ftom being in a thickly PoPulated area no independent mushir was associatcd in violation of 5.103 Cr.PC; that therc were conbadictions in the statements of the PW's regarding the second incident which lead to the dcath of the deceased in th.1t l'W 14 HC Azhar Hussain had stated that the deceased went into his house alter thc blast and then came out in an iaiured condition where as other PW evc witnesses had stated that the deceased had nol gone into the house after the blastj that the parts of the suicide bomber were not Produced in court and ncithcr wcre the motber oi the son who the suicide bombet's CD lvas recovered from examned as PIV'S, that the investiSation had been conducted by an ASI as opposed to an lnsP€ctor which was thc requirement under the ATA and as such for any of the above rcasons based on the benefit of the doubt being extended to them toth the appellants be acquitted ol the charge. In suPPort of his contentions he has placed reiiancc on Tariq Pervez V The State (1995 SCMR 1345), Abdul Jabbar v The State (2019 9CMlt 129), Mehmood Ahmad V The state (1995 SCMR 127), Mursal Kazmi alias Qamar Shah V The State (2009 SCIVIR 1410), Mah Cut v The state (2009 SCMR 4), Rahat Ali v The state (2010 SCMR 584) and Muhammad Ali V The State (20(D P Cr'l- J 1ii31).

12.Leamed DPG has contcndcd that the Prosecution has Proved its case against all thc apPellants beyond a reasonable doubt and that thc impugned iudgment should be upheld and the seitences handerl down to all the appellants be maintained and the apPeals disn sscd. In palticular he has stressed upon the conIessions of three appcllants all rrf lvhich have been carried out irr accordance with law artd even othelwise slight dcferts

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in the same mav be over looked; that all the aPpellants have b€cn identified by numerous eye witnesses in respert of both th€ Iirst and second incidents all of whose evidence is reliable, trust wo!th).. ancl confidence inspi ng especially in connection lvith thc identilication of the appcllants and that all the eve witnesses picked out thc accuscd frool thc identilication parades which were carricd out in accordaru:e with the law and even if such identification parades had somc milor Prccedural defects we could still safel-y rely on theln unller the law. ln suPPort of his contentions he place(l reliance on Muhammad Zaman v. The State (2007 SCMR tt13), Raz Muharnmad v. The state (PLD 2002 SuPreme Court ft,), Nazeer alias Wazeer v. The Stare (PLD 2007 Supreme Court 202), Manieet Singh v. The State (PLD 2006 Supreme Court 30), Khan Muhammad and others v, The State (1999 SCMR 1818) l{eh$at AIi alias Baba and another v. The Sfate (2002 YLR 38d)), Abdul Haq and another v. The State (2015 SCMR 1325), Dadullah and another v. The State (2015 !,CMR 8S) and Maieed v. The Stat€ (2010 SCMR 55) Learncd counsel for the complainant adoptcd thc argumcnts of thc lL'amed DPG and fully supported the same.

13.We have hcard the arguments of the learned counsel for the Parties, gone through the entire evidence which has bcen read out by the appcllant and the impugned iud5'rnent with their able assistance and hale considered the relevant law including that cited at the bar.

14.lt appears that the case of the Prose(ution io a nut shell is that the appellants had conspircd to mulder the deccased and that they initjallv planned to murder him by planting an explosive device in a hand cart which was detonated in thc Presence of and with the active involvement of $ome of the acaused whcn his cai Passed by on the road but that this attempt failed and resulted in (he bomb blast causing a fcw ilrjuries to Bome pcrso i near the place of in idcnt but with the deceased being left tnharmed. That having lailed in this initial attcmPt to murder the deceased thc accuscd then again in continuation o{ thei earlier conspiracy again conspirc{.I to murder the deceased by a plan to rnurdcr hinr through a suicide bomber after he returncd to his house after attending a function.

On this occasion the PIan was successful as the suicide bomber activated his device in the prescnce of and with the active involvement of thc accused when the deceased got out his car wluch bomb blast of the suicide t

bombcr murdcred the dexeased as planned as well as his nePhcrv and caused injuries to at least J policc EUards.

15.lhus, as can be seen, the prosecution case essentiallY breaks dot{n iflto three parts which were in continuation of the same conspiracy/intention to muldcr the deceased. Firstly, the consPiracy to murder the deceased, secondly the failed attefirPt to murder the deceased in pursuance oI that conspfuacy and Iinally in Pursuance of that conspiracy the successful n'lurder oI the tleceased through a suicide bomber.

1(r. In our vierv aftcr our reacsessment of the evidence based on thc evidence of the l'JW's and other cvidence on recor(l ive arc saLisfied that thc prosecution has proved beyond a reasonable doubt that on 06{4-2U06 at about 1210 houls at Abul Hassan IsPhahani Road adjacent to Breeze Garden Karachi an attempt was made to mutder th€ deccascd bv causing a bomb blast whilst he was prsreedin8 in his vehicle. This Position ie not disputed by the appeltantB

17.ln our view aJter our teasscssment of the cvidence based on the evidcnce of thc PWs including the PW MLO'S, inquest rePorts u/s 174 Cr.PC, the fact that a number of Pw's suffcled iniuries caused by Pellets wl-dch are commonly used in suicide bohbet attacks as thev are often placed in the guicidc vcst along 'lvith ball bar ngs in ordet to cause maximum casuattics and damalie to ProPerty, recovelies of Pellets at the scene, blast damaSe to the vehiale of the deceased, BDU rcPort and other evidence on record we are satisfied that the Prosecution has proved beyond a reasonable doubt that on '14{7-2006 at about 4.05Pm a sui.idc bomber named Karim Bungali along with thc as5istance of his I accomplices rletonated his suicide bomb in front of house No.A/59 Abbas To$'n \a'hich caused the intentional death of the deceased and his nePhew Imran Ali and injured at least 3 othcrs rvhich also caused clamage to propc!t1,. This position is not disPuted by the appellants.

18.The issues therefore, in our view, lcft befole us to determinc are (a) whethc! there rvas a criminal consPiracy by the accuscd to murder the deceascd which lead the accused to Plan and execute both the atta(ks on the deceased. (b) whether any oI thc accused Playcd an-v- role in that

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conspiracy which lead to the attempt to murder the deccased r'v'hich lailed and (c) whether any o[ the accused played anv role in the consPiracy to murder the deceased nhich $'as successful.

19.In our view after our reassessment of the evidence lve find that the most important aspects in dealing with the above issues are (a) the confessions of three of the accused and (b) the idcntification of thc accused at the scene of either the attempted murder and/or the actual murder o[ the deceased.

'furnint firstly to thc issue of col13piracy.

20.In our view the conlessions of the ac.used lay at the hean ol proving this aspect of the matter in addition to the first failed attempt to ourder the deceased and the later successtul murder of the deceased.

The.onfessions,

2'1, Tluee of dre appellaots rnade conlessions all on 01-08-2006 being 6 days after their arrest whilst in police custody namely, Muhamned Anlin, Sultan Mahmood and lvluhammed Rehman which not only fullv implicated thernselves in thc criminal conspiracy io murder the dcteasecl but also the three other appellants MuhaDrmcd Akber Khan, Muhammed Ashfaq and Rahimullah.

22.All the thrce confessions are similar but are not identical so lor ease of refercnce only the conlession of Muhammed Amin is sel out below;

"Question:- Whnt have you to say?

Answer: I do hereby state in perfcct state oa nly full senscs rvithoul any inducement that I Muhammad Amin alias Khaliel Shahcen alias Abduilah s/o lvluhammad Shecrin (laste Yousut Zai Pathan R/o House No.B-751 Lane No.27 l\'luzaiarabad Coloni lnndhi, Karachi, ori8inall), residcnt o[ \,illage Gorani T€hsil Bari Kot District 51 at, aml now I rcside in Karachi as tcnant since last 5/6 \'ears, 5tate that; I belong to Halkatul Muiahidecn lnd involved in Afghnnistan Jehad. \'{ulti Ilt*as, Sultan, I\luhammad Rehma& Akb€r Kha& Hazrat Ali, Ali llrssan, Khalild, Suhail Siddique, Ashfaq and me are involved in the mtrder plan of Allama Hassan Turrabi. Nteeting all of u, were held al nry housc in April,2006. Hazrat Ali brought Remote Controt Bomb and a fixed in the cart. Other companion trit'd to kill Allama I urrabi, but failed. Subrequently wc made Plan of suicide atta.k' In June, Hazrat Ali and Mufti Ilyas held meetin& which we all attended.

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In the month of .July Ashfaque has nadated to Sultan that Karim Bung,lli is ready for Suicide altack. Sultan and Ashfaq br(,ull1t hir! at my house and handetl over to Akber Khan, Ilazrat Ali and Mufti Riaz. Afte! some days, Hazrat Ali has disclosed that Sui(ide person is ready. Two days earlier before aHa.k they all came at my house aftet Zohar Prayer. Hazlat Ali and Mtrfti llyas were handed over explosive ra(ket wrapped in.loth sheet to Sultan. Ali Hassan also brought lour grenades. Akber Khan brought video camera with him. I re.orded CD regnrding WILL the Sui(ide nttacker Karim Bungali, and while remaining all eupervised, Aiber Khan, lvlufti ll)'as and flazrat AJi tle'J,utecl Suhail alld Ashfaq for Sun eillance oi Allarna while laler on .la'e all inspected the housc and streets etc. of Allanta. On friday 14rh t\tly, 2006, /\ii llassan, Alxlur Rehman and Khalid alonglith Suicide attacker Karim Bungali got hirr| worn the Explosive jacket and beggar's dress reached at the place of occurrence in a rcd colourcd Car, \ahilc Sultan arriveel there on olotor ('\'(lt' encouraged k) Karim. In the meanwhile. tl'\e velricle of Ailarn Turrabi arrive,l there. IVe all good h)'e to Ka m bt,saying that he (Allarna) should not spare/snve toda\,. Karinr llugali w€nt to near Allama and made blast. Allama killed there alongveith his nephew. We all by riding on motorcyclc tongratula(e to Aii Hassan, Suhail and Ashfaq standing at tlle conler oi the street. l{e h,ere happv on the nlission success, anal 14enl alvav ro our respectivc honres. On 25.07.2006 the Poli.e raided at my home before traiar prayer and arested nre, sultrn and Rehman, whllt' Suhail run away. Onr:'f .T Pisk,l, ti)ur livc bul)ets and one grcna(lo recovered from n)c. Explosive sub6tance weiShing 25 kilo and one Detonato! also recovered. Computer, "WILL CD" with another CD Key board and Video Cameras were also le(overed by the police. This much is rny statement". (bold atidcd) Sd/-(ln English)

Law on retraction of iudicial confes$ions

23.After a review of the relevant law on the legal validit, of judicial confessions the t{on'ble SuPreme cou in thc case of Ch.Muhammad Yaqoob v The State (1992 SICN{R 1983) reached the followinS conclusion:

"Thc legal postlion, lt hich ] ts t'nerged .{ro lhe abol:e re?orls, *ei1s lo L,c lhnf i11 otdtt tit jtulsc llti 4,ile tiary wl1lc oJ fttrarlell co lession, the Coutt is to ttdtert to the q estiotL fihethet the sqfie apPears to haoe bccfi t qde ooluntttily, .oithort atty inilrcernent, iluress or aoercion u'ith the obiect to st.lte thc trulh 1l the Court it satlsfied on the aboT'c asPect, the oere /act thqt the.te urere sotnc irtcgulaities in reL:otding of a confessio\ wo lil not zoana t dis'egafllibg o/ the sitne". (bold illird)

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24- lt is settlcd law that a rcbacted iudicial contession can be legally admissible and used against its maker in cefiain clcumstances. In the later case oi Muhammad Amin v. The State (2006 PLD SC 219), it was held at P.224 Para 9 as under;

''g. fhere is flo co|lil to tlle propositiott that co f ictio co ltl hazte becn qoartlei on the basis oI rctracteil co fessiotl .ohicll ptoposition ,j.as ezantinetl in case Ltf Mst, loyglut llibi t The State PLD 1 0 (SC (P.tk) 313 as un.ler:- "We are unable lo srtppo lhe ProPosition of lnu' Iati iown lty ll@ Ieatgd ludges i this rcSard The ttraclia ofa cLtrrftssiorL is tt arcumsta ce fiich has o beaing u'hatsoeret upot llut questiofi uhelher ifi tliE ftst islan? it 'as l'alu lnril! mnk, o d on lle lltrther qtlestiott toh?tlot it is lt e Tht [itl thal lli/ nal,,er of lhe Lnnt'ession l et tloei ot atlhcre ta il cnfinot by ilself h4l,e afi! effecl upot llP frt.linSs rcQclv.l ns lo tdBlher the co fessiotl tt\Et'aluttlary, and ifso, 'hell]g/ iI 'at true,fo/ lo llitttlnlo Irom fi selfac(usiti stolcmznt in ilirect firc ol lha .onsequefi.es ol lhe accusatiott. is erplicahk .fully by lhe proxintily af lhose co sequc cesa l neul hne no t:art@clrcn tuhnls.,elet uithdlher ils l'oLu,tttry tu/e, or lfu lntlh of lhr fncts statei,'I-tu bamed I d$es uwe Perlectly n9hl tu first 'rteciding lhase trLn quesLions, atul lht a sloers beins ir1 lhe affrmalioe, tn de.clui g lhnt lhe .o f?ssion by itsclf u'as sufrcie l. taken &'ith the othcr ficts Fnd ciratn,stun.es to sippott Abdul Maji.l's tonritti) The retraction of thc cor;fessto @t!s tohollg irnntate al ofice lt uas /ou,t.l thot it uas oolu tary as well as true."

'10. Similarlv i1 th? cnse of lfu Stnte ! Mi t:'.n nlias Cul tlussan PLD 1964 SC 813 this Cntrt has ohsen)ed a5 und.ri "As fot tl| @ tessionr the HiSh C,otttl, rl trl,patrs, rt'Lts dtly conscious of tlte fdcl lhat relticted co kssion a')Lelhcr 1ulrcia! or dlrtl Judij.ttl, couLd tegally l,? lr,ke.|. into conridtrntion ag.rinst ll|" malicr of lhose confessio s hiigElt nnd il t|rc ,inf,:sskts tL,ere fau d Io be truz t1 d t'dunllry, thet th?re tpri ro need at ali to lo,tk for fu/lhcr @rrobarutia lt is well- settled that as against tlw aket hinseY his cofifessiofi, i li{ial ot extrq iudi.ul, u:lrcthPt tc*atted ot nol 'retraded, l in luzu twlidlv c lonn thc sotc bnsis oI tti, conoiction, if the Cowt is satisfied ani belieoes tlnt it u,is true and loluntary afiil ntas tlot obttitvil by tothtte or coercioa ot ittilucefiart.'' (bold aclded)

25.'fhus. the court laid down a two pronged test as under (a) whether the retracted judicial confession appears to have been made voluntarily, without any induccment, duress or coercion and (b) was made tvith the object to state thc truth,

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26.Notably it was also held that if bolh (a) and (b) rvere satisfied that even i{ there were some irregularities in recording of a confession it n ould not warrant disregardi[8 oI the samc. In our view however following the case of Azeem Khan V Muhahid Khan (2016 SCMIT 27{) such iiregularities must bc of a rdnor nafure and must not have detracted flom either the ioluntariness or truthtulness of the confession.

27.ln the case of Bahadur v State (l'jLD 1996 SC 336) although it was suggested that a judicial conJession alone can be made the basis oi conviction the safer courue lvas to look to see if there raas any cortoborative mateial available to aletermine its truthlulness

28.In the case of Manie€t Singh V State (PLD 2006 SC 30) a further rcquiremcnt s€emed to be added that in dctermining the truthluhess of the con{€ssion it had to be pla.ed within the context of the ra'holc of the prose(ution evidence/case.

29.ln our view therefole we are not in an], doubt that a retracted confession before a maSishate can be the basis of convicting in a capital case however it must bc;

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

(b)tts object must be to state thc truthi assistance for which ca^ be ascertained Jrofi (i) ra'heth€r the conlession appears truthjul within the context of the Prosecution case and (ii) whether bhere is anv other evidence on record wlxch tends fo corrok)rare the kuthfulness oI the confesgion and

(c)Only minor irregularifies regarding the rules concerning the rccording of judicial conlessions can be Permitted as determined on a case kr case basis the rnain criteria being that such irre8ularities have not ad\'e6elv aflected the voluntariness or truthfulncs"s of the conJession.

30.'[hut r,r'e a.e of the view that a 61i8ht delay in recording the confessir)n after the aEest of the accused h'ill not eflect its legality and our ability to rcly on it. In this resPect lcliance is Piaced on Khan Muhammed's caee (Supra) and Majeed'8 case (Supra).l,ikewise the fact that the conJession is re(orded on oath will not elfect its legality and our ability to rely on it. In this resPect reliance is placed on Nazeer'9 case (SuPra).ln our view as Per the t

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case law as disau-9'ed above thc overriding factors to be adhered to when determining $'hether a retrached judicial confession can be relied upon is \"hether it has been madc voluntarily, is huthful and fits in \4'ith the prosecution case and these tactorc have not been effectecl by any plo(edural irlegula-rity.

31.Based on the particular facts and circurnstances of this case we flnd (a) there is no cogent evidence on rccord that the confessions were not made voluntarily i.e by threat or inducement and (b) the object of the conJessions appears to be to tell the truth as it fitt in with the prosecution case and is corroborated by other evidence on record which we will corne to later and that (c) although therc mav be some irlegqlarities in the recording oi the confessions as point€d out by the appellants after our revielv oi the warnings given and the evidence of fJW 9 Pervaiz Qadir theludicial magistrate beforc whom the confessions rvere recorded such iregularities have neithe! effected the volunta ness o! truthfulness of the conJessions and as such we hold all tfuee conlessions to be admissible and can form the basis of convicting those appellarts who made them and potentially those namcd in t)rem Provided thar by way oI abundant caution we find some corroboraLive evidcnce against the appellants.

Thc law on (riminal conspirncy

32.The appellants havc been charged under 5.120 PPC for conspiracl- which lor ease of refclencc is set out belolr;

"12GA. Definition of crlmlnal consPiracy.- lvhcn two or more persons agree to do, or cause to be done,

(1)an illegal act, or

(2)an act which is not illegalby illegdl means, such an a8r€ement is (lcsignated J .riminal conspiracr.

Provided that no agicement excePt an agreement to cornmit an offence shall amount to a criminal consPilacy unless some act besides the agreement is done by one or more Partics to such agleement in pursuance thereof.

ExplanatiorL It is im[raterial whether the illegal act is u]timale object of such agreemcnt, or is merely incidcntal to that obiect./_

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120-8. Punishment of c(iminal conspiracy.- (1) Whoever is a pafty to a criminal conspiracy to corrmit an offcnce punishable witll death (imprisonment for iife) or rigorous inprjsonmcnt for a t!.ror ol t\,ro vcdrs, ur uphards, shrll. uherr no c\pre<s provt>iun t. made in ihis Cocle f<rr ttre punishment o( such a conspirar:y, be punished in the same manncr as if he ha.l abette.l such offence.

(2)Whtrver is a part)' to a.riminal conspiracv othe! than a criminal conspiracl, to conrmit an ollence punishable as aloresatl shall be puoishcd $/ith imprisonment of either descriptioll for a term not exceeding six months, or rvith fine or \,\,'ith both.

33.Thut based on the judicial conJessions of all three aPPellants (Muhanuned Arni& Sultan Mahmood and Muharnmed Rehman) we lind that their actions all fall within the definition oF criminal conspiracy as set out in the charge. Since the other appellants (Mohammed Akbar Khan, Muhamnred Ashfaq and Rahimullah have been named as co{onsPirators in the conlessions in our view lor thenr to be guilty for this offense some further corroboration is requircd to s€e whether lhey played anY actual part in the conspiracy to either (a) attemPt to murder the deceased whi.h attempt failed or (b) later murder the deceased.

Turning to those apPellants who did not gjve iudicial (onfss$ions a d are only named in the judi.ial €onfessions by their co-a(cused to see if there is any furthe( corroborative or supPortive evidenc€ against them in connection h'ith the failed attempt to murder the deceased and/or the later suc(essful murder of lhe decersed.

Turning to the case of apPellant Muhammed Akbar Khan who wa6 atested whil$t on a motor bike t{ith Muhamrred A6hfaq on 15-0&2006 one month after the murder of the deceased.

34.With regard to the first failed attemPt to murder the dcceased \',e have not found any evidence aSainst him on lecord

35.With regard to the sccoid incident u'herebv lhe deceased was murdered the only evidence against him appears to be his identification b1' PW 27 Jawed rvho gave him no role at the identification parade and the recovery of the motor bikc which he h'as allegedt) on when the sei:ond incident took place.

16- As such Iind virtuallf no evidence k) corroboate his co_

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accused's confessions that he lvas involved in or participatcd in any criminal conspiracy to murder the dcceased ancl as such the appellant Muharnmed Akhar Khan is acquilted of the charge and shall be released unless \a,anted in any othcr custod)'case.

TurninB to the case of appellant Muhammed Ashfaq who was arre$ted whilst on a motor blke with Muhammed Akbar Khan on 15{E-2006 one month after the murder of the deceased.

37.The same findings are made in respect of appellant i\{uhammed Ashfaq as have bcen made above lor N4utununed Akbar KhaI and as such thc appellant Muharrmed Ashfaq is acquitted of the charge and shall be released unless wanted in any other custody case.

Turning to the .ase of appellnnt Rahi ullah who was arrested almost two yenrs after the murde. of the dec€ased.

38.with regard to the first failed attempt to murder the de,ceasccl wc have not founri any evidence aBainst him on rcro/d.

39.With regard to the second incident h'hereby lhe deceased was muldered he i,\,as picked out of an identilication parade bY Plv 2 Shafat and Pw 19 Jaf(a Raza howcvc! no lole \,v?s assigned to him ra'hich in our view makes the idcntilication e\.idence against him rather r1€ak esPeciallt as the two above mentioned PW's had not seen hinr before ihe incident and the identification paradc was carried out over two yeals aftcr the second incident afld more imPo.tantly he h'as not Picked out at a different ictentilication parade by PW 16 N'lukhtar Ahmed rvho was a member of the deceased's s€(uriq' detail r4'ho took the deceaserl to hospital.

40.Thus, we iind that there is insufficiedt evidence to corroborate the confessions of the co-accuscd to corne to the conclusion tlut thc prosecution has proved the charge against the appellant Rahimullah bcyond a reasonable doubt and thus by extending to him the bcnefit ()f the doubl the apPellant Rahimullah is acquitted of the charge and shalt be released unless wantcd in any othel custody ca6e.

Turning to thc cases of aPPellanl's Muhammed Amin, Sulfan Mhamood and Mohammed Ilehrnan.

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41.ln our view these appellants arc on a difterent lootinB to the ot}ler appellants as we have found thc[ conlessions to have been made voluntaril!, to be kuthJul and to fit in with the prosecution case and as such we ale relying on them against each of the appellants desPite them being retracted as discussed earlier in this iudgment.

42.We have found the Iollowing additional evidence in support oI thc charge a8ainst them;

(a)Ihc L'lR has been lodged without unduc clelay- despite ihe chaos which followcd the incident which explain-q an) delay in lodging the FIR K,hich their might l'nve been especialll-- as tht' deccased did not die on thc cpd but was takcn to hosPital where hc expired an.l as such there was no time for any concoction to falsell' implicate anyone.'Ihe FIR has been lodged by an eye 1^'itneis and the fact that it deca not nominate rvho lhe PerPetEtors wcre supports the fact that the appetlants ha1'e not been falsclv implicated. It is also logical that the names of the perpetrabrs have not been nanled as the comPlainant would not havc knolt'n them p or to this iocident.

(b)That the],reere all arrestcd on 25-07-2006 at dre house address given in Amin's conJession. That at ihe time of atest thcy were all armed with pistols and in thc sanle room in an iron box was re.covered 25 KC's of potassiunl, one KC of cxPlosive substan.e, two detonators and a computcr whi.h was in the use oi Mohammed nn n. (t'W 35 lnspcctor Khuda llux).This re.overy ties in with thc prosecution case that the .lllpellanLs lt€le involved in causing explosions and suicide bombinS. The aPPellants were booked in a case untler the Arms Ordinance after the raid

(c)What is of crucial significance is ihat on the arrest oi aPPellant sultan Mahmood he ied lhe police party to a house in Fec'leral t'i Area where the mother of the suicide bomber u'as re5iding and who conJirmed her son &'as missinS. She handed ovel a CD ra hi(:h she had not watched and wenl u'ith her son to the IIS q'here the CI) rvas plaved and she recognized her son Abdul Karim who l,t'as missing on the CD. Shc then identified her son at the Edhi morguc rvhere his hcad had been preseryed. Later a Positive DNA test proved that she was related to the suicide bombcr Karirn All the above evidence ties in with the confession that o CD of Karim rvas rnade bcfore he went on the suicide mission h'fuch lvas recorded bcfore the appellants at their mceting with the aPPellants as dis.ussed in their confessions. More siSnificantly, the Police r',oul(l have ltad no idea ivho the suicide bomber was and where he li1'eLl so that information could only have been Provided by one ol the persons lrho planned the suicide bombing namel)' aPPellant Sultan Mahmood who lead them to the suicide bonrbers house on his pointation (PW 35 lnspe.tor Khuda Bux)

(d)lmportantly t\^'o CD's 'ere also recovered from aPpellallt IVluhammed Amin one of la'hich was blank and the other contained

ssl

thc message of the suicide bombet which again ties in r4'ith his conlessional statement as according to him he lecorded the death statcment of the sui.ide bonbcr and kept a copy (PtV 37 Ch.Abdul Shakoor)

(e)with regard to the firct in.ident where an attempt rvas maLlc k) murdcr the deceased by placing a bomb in a push cart eye witncsses PW T liana Oasim antl P!! 8 Nluhammerl faisal rc.cognized all three appellants at the scene of the incident. According to thcir evid€nce these PW's $,ere fruit vcndors who canre to Park their Pushca* in its usual Place howcver as the appellants also had a push cart who rvanted to park in their Push cart in the pitch of thc PW's not only did the two PIV'S gct into a disputc with the appellants and came to blorvs la'ith them when thc appcllants had taken their pitch but the two aJoresaid eye witnesses *'ere watching the appcllants verv closely sincc as they had had a heated ar8ument with thcm they w'ere expecting more trouble from them. Thus they got a Bood closc r:p look ot all tluec appellants especialll'as they carne to blows in bnrad day light at 11.45 in the mornirg whcle the light w.1s Bood. They gave huila's of the threc appellants (although PW 7l{ana Qasim's hulia lvas in moru detaii) and their 5.161 statements were recorded trn the same dav. lve considci them to be natural witncsses as oPposed to .hance laitnesses who corroborated each other in all material Particulars and were not danuged despite a lengthy cross examination. l\fe find their evidcnce conccming the identification of the 3 aPPellants to be believable. Although they had not seen the aPFellants before an identification parade is not always mandatorv. Even othenvise they each picked out all 3 oI thc apPcllants at the idcntilication parade which we must skess is onlv a corroborative rather than subgtanttve pi€(e of eviden(e and c.rnnot take thc place of reliablc iclentification by cye witncsses. In this resPcct rcliance is Placed i,n Kanwar Anwaar Ali's case (Supra). Although thcy gave no role to each of thc appellants at the identitication Palade \^'e arc ,.io not believe thai this tla\a'in thc idenlificati()n Paralle is suiticient to lead us to discard their correct identilication of each ol the appellanB at the scene keepinB in viera'our earlier dis(ussion on their eye witness eviden.e. 'lhus, based on the confessional statemcnts of the appellants and other evidence mentioned abol'. tr'e are oI the view that the Proscculion has Proven bevond reasonable doubt that the 3 aPPellants as Pcr their conJession coupled ifith thcir presence at the scene Playerl an active role in conspiring to murdcr the deceased whi.h (n this occasi.rl ,csultcd in an attempt to murder as although thefu exPlosive device untler their pushca detonatcd il did noi murdcr thc de.eased but onl)- caused minor injurics k) those neat him

(f)Turning to the second in(ident when thc deceased rl'as murdered through suicide bomber Karirn. In this resPect the ai)pellarts are idcntified b)' numerous e)c lvitnesses ai 3 identijicatbn paradcs hcld at dilferent times which $'e shall not{ aonsider;

(g)Turning to the first eye witn8s and firet identification Parade' pW tO Utut<trtar Ahmed u'as a member oi the deceased's securitv

detail lvho took the de.eased to hospital. Il1 his evidence lp saw all 3 of the appellants and gave sotrrc huila. Importantly he corroborated thc presence of other eye l\.itl1esses Shafat and Jaffer who he knerr at the €(ene and rve rvill consider their evidence later. lle is a natural witness since he tvas one of the de.eased's guards and rvas sithnS outside the house oI the deceased ancl hatl a good look at the tluee appellants cspeciall)'as he was watching them come in a car and motolbike and speak k) ca.h other. It lvas a (lay time incident. He has no enrnity with the 3 appcllants and no reason to falsely implicate them and thus wc find his evidence in respect of the identification of the appellants to be reliable, lrustworthv and conlidence in-spiring and r{€ belicve that he ha\ co{ectly identified thc appeltants alihough admiltedh' he gave his 5.161 stat€ment 4 days after the inci(icnt. As merrhoned earlier an identificatiul parade is not al\^,avs mandalory- cven il the Persons were previously unknolvn hor,',ever it does lead to a saJer identification of an), oI the accusecl. 14'e however give little lveiSht to his identification of the 3 appellants at the idcntification parade as this parade contained ovet 50 tlummies and rvas a joint identification parade. lve horvever for the reasons mentioned earlie! are not lioinla to discard his identificatlon evidence completely but simply give it lesser weiSht and see if it is supported by any other identification e\.idence of the aPPellants.

(h)Turnint to two other eye wilnesseo nnd the Eeaond idedtification parade. Pw 26 Muhamnred Altaf lr'as a guard of the deceased who was a part of his escort. On his retuh back to th. h(,use of the .leceased he saw the 3 apPellants standing near the Ccneral store near the residence of the dcceased. He was a natural witness being a palt oI thc escort and again got a good look at tht' appellants as it was day light and slated that he could recog ze the 3 appellants if he sa$r' thcm again. He had no !-nmity ra'ith thc 3 appellants and had no reason to falsely imPli.ate them and lve have ncr reason to doubt his identific.ltiur ol the apPellants although he also gave his 5.161 statement 4 days after the incident. PW 27 Muhammed lalved lvho like PW 26 N1uhammed .AItaI ra'as apart of the deceased's escort and was in fact the nrobile driver. 'lhc same discussion as to PIV 26 Muhammed Altaf is also aPPlicable to him. At thc identification Parade neither of thesc witnesses ascribed any role to any of ihe aPPellants and PW 27 only Pickcd ()ul appellant Sultan lvlahmotxl. As such oncc again l{e Sive vcly little lveiBht to tlte identification oI the apPctlants at thc idcntification paradc. We however as for tlte reasons mentioicrl earlier are nol going to discard their identification ei'idence comPletelv but sinrPl! give it lesser weight alld see iI it is suPPortell by any othcr identification evidence of the aPPellant,.

(i)Turning to two other eye wittresses and the third identification parade. PlV I Muhammed Yaqocrb (who was named in the FIR) was a follower of the deceased and had an aPPointment to nrcet the deceascd at 4P . fle was waiting for the deceased outsidc his house for his ippointment. llis Presence is.orroborated by I'lV 2 Shafat, PI 'lg-JaJ[er Rah, Pl!' 24 Syecl Mlrhantrned Imran thc olvner of the general store who lvas a natural wilness. fle Save huila of all3 appellants and Save his S.16l statement lvithin 3 da,!-s

Si,,

t of the incident. As he was waiting for the dcceascd he 8ot a 8oo.i look at the 3 appellants who were also waiting arourrd especialll'as it h?s day light. He had no cnmity with the aPPellants and had no reason hr lalscly implicate them ir1 ttus casc and th s we find his evidence in respect of the identificatirtn of the appellants to b(' reliable, trusfworthy and confidence inspiring and rve bciieve that hc has correctly ir.lentifietl the appellants. At lhe identifi.ation paradc he.orrectly identified aU three oF the.lPPellants lvhi(h identiJication paracle was carried out in accordancc lvith the iav!. The same considerationr apply to [n\'19 laffer Raza who was rlso named in the FII{,

0)That the PW's are all coffoborative of each other and there are no nrajor conkadictions in their evidence lvhich u'ould adverselv impact on the prosecution case. Admittcdly a number of thc PIV'5 are police witnesses (including e]"e wjtnesses). Howevcr it is i+'ell s€ttled by now that a poiice witness is as go()d as anv other tvitncss provided that no ill will, cnmity, nralafide ur P€rsonal interest is ptoven against him vis a vis the aPpellant. ln this resPed ,eliance is placed on Rinz Ahmad v state (2004 SCMR 988), zafar v state (2008 SClvlR 1254) and Abbae V State (2008 SCMIt 108).ln ttus L.ase no ill rvill or enmity has bcen sugg$ted against any Police officer.ls lvould lead to him falsely imPlicatirrg thc accused in thrs casc. All the other PW's (including eye witncsses) are indePendent Persons who did not know the accused prior to this incident and nonc oi them had any ill will or enmity or other reason to falsely iBPlirate the accu!€d.

(k)Even if there are any contradictions in the eviden(e of the PW's we consider these contradictiorls ac mi or in ruture and not material and ccrtainly not of such materiality so as to affect the prosecution casc arld the conviction of the aPPellants. In this resPect rcliance is placed on Znkir Khan v State (1995 SCMR 1793)

(l)That the prosecution cvidence Plovides a believable chain of evirlence frorn the time of the aPpellants and thcir accomplicrls mecting and conspiring to murder the det-eased by bor b blast to the first failed attempt to murder hirn, to their second meting u'here thev planncd to murder the dcceased bY sui.ide bombcr in frurt of his house, to the successful murder of the deceased, to their arrcst and recr'rvery of a massive amount of exPlosives and one appellant taking them to the house of the suicide bombcr which was otherh,ise unknown by the police.

(m)Wilh rcgard to thc facl ihal the irvesliSatiorr *&c carried oul b)'an ASi instead of an lnspector we are of the !ie\r' thst stlch a minor inegularity in such a heinous ollinse can be over looked as thc lals ahrays prclers for cases to bc decided on nrerils rather than technicalili€s.

43.l'hus, when we consider all the evidence against the aPPella ts in a holistic manner and consider it in its cntirety we find that there are 3 legally admissible confessions (one from each of the aPPellants Amin, Muhammed sultan and Muhammed Rehman) w'hich Prove a criminal

s!11

conspiracy to murder the dcceased, that the 3 apPcltants werc arrested together in appellant Muhammed Amin's house ra'here a huge quantitv of potassium used for making exPlosives (which quantity in oui f iew rvas too large to be foisted) and other explosive making equiPment lvas recovered. that appellant Sultan Mahm(x)d took the Police to the suicide bomberc house which only he would have known of and not the Policc wh€re a CD was rccovered of a the suicide bomber who was idenhficd by his mother, tllat a similar CD of the suicide bomber's death statcment rvas l'.""ou"."d from appcllant Muhammed Amin lvhich fits in with his conJession oI filning the suicide bombcr, that based on the eye w'itncss evidence it stands Proven that tlrc aPPellantB werc at the scene ol the incident when the lirst blast t(rk Place and there was an attcmPt to kill the de(eased, that when the eye witness evidence concerning the secorld incident whcl€ the dcteased rvas murdered bv a suicidc bomber lvhere the thrce aPPcllants werc idcntified by numerous natural lvitnesses at thc scene of the crime when the cvidence of all these 5 natural e)'e witnesses is taken in its ertirety not withstanding some flaws in thc corrobomtil'e identilication parades we are satisfied that the tlsee aPPellaflts havc been correctly idcntified as being present at the scene oI the second incident whcn the suicide bomber blew himsell up murdering the deccased and that thiB was in flrrthelance of their conspiracy to murdcr the (le{eascd pursuant to their olvn confessions keePing in view the fact that a Pcrson can be conviated in a (aPital casc based on the evidence of a solitary eye

witness provided that his statement inspires conlidence ln this respc<t reliance is placed on Muhammed Pervez's case (SuPra)

44.Thus based on thc above discussion we are satisficd that the prosecution has Proved the charge against the aPPellants Muhammed Amin, Sultan Mehmoorl and Muhammed Rchrflan beyond a reasonablc doubt and uphold their convictioru.

45.The next issue is one of senten'ing of the three aPPellants Muhammed Amin, Sultan Mahmood and Muhammed Rehman ln our js view the murder was based on s€ctarian groundc and there sufficient and intention evidence on recorcl to Prove this and that the obiect desiSn inse{u!it)' of the conspiracy was to mulder the deceased and create fear' the olfcnse ialls and tcr.rr amongst the shia sect, B'hich it did, and as such squarcly wlthin the AfA

SSS

46.Ke.ping in view the barbaric, brutal and heinous natLlre of this Pre mediated attack which by objecL design and intent murdeted 2 innocent people and injured 3 others (and could have easily throutih such rcckless endangerment lcad to the murde! and injury of many more) and which crated lear and Panic and lerror amongst a certain segment of societ] based on religious grounds which also severely danuged PtoPerty l'vtth no mitiBating circumstances but raiher onlv aggravaLing cilcumstances ive consider that a case oI this nature deserves no leniency and that a deterrent punishment is callerl for to dissuade others ftonr carrying out such acts.

47.In this resPect reliance is Pla.ed on Dadullah's case (SuPra) which at P.852 Para t held as undeL

''9. Conccptually punishment to an a(cus€.I is arvartled tur the conccpt of rehibution, dcterrence or r?lormation Thc ptrrl'ose behind iniliction of sentence is tlvo aold firstly, it ht)uld create such atmosphcre, w'hich coLrtrl t€come a deterrence lor tlre PeoPle who havc inclination to$'ards crime and; secondly, to ilork as a medium in reforming the offence. I)eterrent Punishment is nol only to maintain balance with travity of wrong done by a Person but also to make an examPle for others as a Preventive measurc for reformrtion of the so(ietv, ConcePt of minor Punishment irr law is to rake an aliemPt to reform alr individual h'ronljcloer' However, in su(h like (ases, wherc the aPpellants have colnmitted a Pre-Planned da.oity and killed two Person, no leniency shouid be shown to the .ulPrits. Sentence of death would create in the society due to which no otlrer Person would darc to commit the offelce of murder. If in any Provcd <ase lenient view i9 taken, then Pea.e, tranquility and harmony of socicty would be jeoPardized and vandalicm would Prevail in the so<iety. The Courts should not hecitate in awarding the maximum punishment in such like (ases where it has be€n proved beyond any shadow of doubt that the accused was involved in the offence' Deteffence is a factor to be taken inlo conside.ation while awa.ding senten.e, sPe.iallv the sentence of death. Verv wide dis.retion in thc maLter of sentence hds beerl givcn to the courts, u'hich must be exer.ised jLldiciousty Death ientence in a murder case is a normal Penaliy and the Courts while divertin8 towalds lesser sentcnce should have to give detailed reason-s. lhe afPetlants have commlttell the mur'der ol two innocent citiTcns anLl also tooted the bank in a $'anton, 'rutl antl callous nldnner. Now a days thc crime in the sotiety hns reachcd an alarming situation and th€ nrentd ProPensity lowards the commission of ihe crime with imPunity is increasing' Sens€ of fear in the mind of a (riminal before embarkiiS upon its commission tould only be inaulcated when he is 'ertain of its ounishmenl provided bv law and it is only then that lhe PurPose lnd object oi p,rnishment (uuld be astiduously r(hieved l( a Court;f law it any stage relaxes its giP, the hardened criminal

t{ 6

vr'ould take th€ society on the same Patc, lllowing the habitual recidivist lo run awry scot-f.ee o! lvith Punishment not comhensurate rvilh the proPosition of crime, brinting the administiation of crinlinal justice to lidicule and contemPt Courts could not sacrifiae such deterrenae and retribution in the name of mer.y aod expedlenq'. SParing the accused with dL-ath sentenr_e is causing a gra\'e mis(arriage (ri justice and in order to restore its suprcmacy, sent nce of dedth sht)ulLi be imPosed on th€- culprits where the case has becn P.oved

10.This Court in Nroo/ nltd t'. Slale ('1999 SCMR 2722) has also adverted to this aspect of the matter and has obsen'ed as under:-

"Llorvever, we mav obeerve that the PeoPle are losing faith in thc disPensation o, .iminal justicc by thc ordinarv climinal courts for the reason rhat thcy either acquit the accused Persons on techrucal Srounds or take a lenient vielr' in awarding sentence lt is hith time that the Courtg should realize that they owe d(lty to the le8al heirE^elations of the victims and also to the society' Sentences awarded should be suth whiah should act aB a detelrent to the commission of offences. One of us (Ajmal Mian, C.1., as he then was) has hiShlighted this asPect, inter alia in the case of State through the Advocate General Sindh, Karachi v. t-arman ljussain an{i others (PLD 1995 SC 1), rclevant Porhon n'hereof at Page 19 teads as folloh's:_

(3)lt is a matter of Public knowledge that in Sindh on account oI kidnaPPing for ransom, cornmission of dacoities an<l other offeoces, the PeoPle are feeling Llns€cured Jhe learned trial Courl has dilated uPon thcse asPe"-ts in deiail' I am inclined to subscribe to thc vierv founcl favour with it' The aPProach of the Court in matters like the case in hand should'be dynamic and if the Court is satisfied thal the offence has been coftElitted in the manner in which it has been alleged by the Prosecution the te(finicalities Ehould be overlo;ked without aauslng alry miscarriage of iustice"' (bold added).

48.Likelvise in thc more recent cases of Tatiq lqbal V State (2017 SCMR 594) and Khalid Meh ood V State (2017 SCN{R 201) the SuPrcne Court has conJirmed the death penalty in cases of a brutal and merciless natuae as in this case.

49.As such we upholtt all the sentences for each olfense in the impugncd judSment in respect of Muhanrmed AmirL Sultan Mahmood and Muhamlnecl Rehman and conlim the death scntenceg handed dolvn to appellants Muhammed Amin, Sultan Mahm<rod and Muhammed I{ehman whilst dismissi^g thei! aPPeal against convictiotu

<<l

In sumrnan.

50.The appeals agaiNt conviction oI Muhammed Akbar Khan, Muhammed Ashiaq and Rahimullah are allowed and they all stand acquitted of the charge and shall be released unlcss wanted in ary other custody case.

51.The appeals against conviction of Muhammed Amin, Sultan Matunood and Muhammed Rehman are dismissed and their convictions and sentences in the imPugned iudgment arc maintained and ihe conJirmation reference in r*pect o{ each of them is answered in the affirmative. Each o[ the appellants shatl have the benefit of 5.382 B Cr.rc and their sentences shallrun concurrently.

52.'lhe appeals along with confirmation lefetence are disPosed of ln the above terms.

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