ABDUL RAHEEM S/O MUHAMMAD AKBER & ANOTHER (Appellant) VS THE STATE (Respondent)

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CERTIFICATE OF THE C OURT IN REGAR D TO REPORTING

Sp. A'i-e 323,311 6 ! 3a-l dE lg r/- o-" r''i I't ^,1.r!. 'ab r\.(-(._. y .;(1., 7L <t"k

HIGH COURT OF SINDH

Composition of Bench s;B./D. B

Mr. Justice Mohammad Karim Khan Agha, trlr J*rL; z*[6ycu /AL S.^y Date(s) of Hearinc: -S.tl^ L 6 tL e)'- & I 9

Decide on: I I .- r" -2019

(a)Judgment approved for reporting Yes t-l

CER IFIC T

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

* Strike out whichever i5 not applicable

N OTE (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 judement.

(rii) Reader must ask the ludge writing the Judgment whether the Judgment is approved for reporting.

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

5 i Bq,'t

IN THE HIGH COURT QF SINDH AT KARACHI

Cr. Sp. ..\.T Ap|eal Noa- or 2(l ltl t,rl.',arENt! r, /,r l. Abdul RqheeE ./o MuhEemed Atber .../.(t. //..3ot.7 Muslim, Adult, R/o Bangali Para, Kachiabadi Ne\! Karachi, Presently confine in Center Prison, Karachi lntd,

2.Aawar,'a Anwer Balcoh s/o MuhaEmad liruslim, Adult, R; o Kachiabadi, Allah Wali Neu, Karachi, Presently conflne in Center Prison.

Karachi APPI-]CANT

The Statc RESPONDENT

FIR NO. 0212015.

u.s. 302/ 384 / 38s / 34 PPC

R/I , SEC. 7 A'1A,1997.

P.S GABOL TOIVN

SPECLAT CR. APPEAL LrND t s EC7' ION 25 OT ANTI- IERIT ORISM ACT OF 1997 READ WITH s ECTION 410 CR,P.C Being aggrieved and dissatisfie,.i with in.rpugncd consolidated Judgmeut dated 08.11.2018 passed by the leaflled Judge of Anti-Terrorism Court No:II, Karachi in Special Case No: 8-320 of 2015 in Crime FIR No:

o2f20fi of ds l02/384/385ft4 PPC tVW SEC. 7 ATA, 1997 in h,hich the leamed Judge did not consider the m€rits of the case and passed the s€ntence to the appellants/accused, (1)Accused Abdul [teheem is convicted L /s 302 of PPC, punishable U/s 6 Sub Section (2), Punishable U/s 7 Clause

(a)to hang by nc(k till clea$r sut,je(t to conJimution b,., rhe Hon'lrle High Court of Sindh and (2) accused Anwar is convicted for hnprisonment for life r s i(a) H of ATA, 1997. Accused Abdul Raheem to pay c-ompensation of Is. One Iacs to the legai heirs of deceased in case his death sentence is

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IN THE HIGH COURT OF SIN/DH AT KARACHT^

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Abrted llasran r/o Abdul Hska€m <-l Muslim, Adult, R,'o Karachi.

Prese[tly confine iD Ccnter Prison, Karachi -'---'- ---- '- APPLI.ANT Lt)Lc.

The State RDSPONDUNT

FIR NO. 02l201s.

u .s. 302/ 384 / 385 / 34l'PC.

R/1! SEC. 7 ATA,1997.

P,S GABOL TOWN

.SPEC/,.1L CR. APPEAL TINDTI{ .Sf CI/0N 25 OT ANTI.

?EN RO RI914 ACT Ol 19\t7 l<t.AD 1'\"1'rH -sEC I'IO\'410 CI{. P. C Being a8grieved and clissatisfied with irnPugncd consolidated Judgment dated 08-11.2018 passed by thc leamed Judge of Anti-'l'errorism Court No:ll, Karachiinspecial Case No:B-320 of 2015& B-921 of 2015in Crime FIR No:

02/ 2075e 3O/20L5 ot t/s 302/ 381/385 /31 l>PC R/w SEC T ATA, 1997&230)A.SAAin which lhe learned )udge did not cr':nsider the merits of the case and passetl the senlence to LIle .lPPellant/ accuscd Ahmed Hasan is convicterl lor lmprisoruncnt ior life u/s 7(a) tl ol ATA. 1997 and u,/s 23(i)A' 24 and 25 of Si:rdh Arrns Act, 2013 for 14 years to rigorous imPrisonnrent 'nll accused Ahmed Hasan to Pa]' Its 50,00{J/ - to the lcgal heirs of decease<l ln default to undergo imPrisonment lor 02 years. The sentences of imPrisonment under each head shall Lre concurrent

It is resPectfully prayed on behalf of above named applicants/accused that this lJonoral)le Court rna-v gra'ious]y be pleased to set-

asidc thc above impugner.l Jud8ment rlated 0911 2018 as well as to acquit the

appcllants/accused, on considetation oi the lollowing facts and grounds:- (The certified copy of Judgs\ent dated:06,112018 i5 eflcloscd ar Annexure'A')

IN THE HIGH COURT OF SINDH AT KARAGHI

cr. sp. A.r.App€al N .fihoru PFlESENT ft,cd ED Ot{ -. ::.!/i.

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AhE.d H.BsaD s/o Abdul Hakecrn N4us1im, Adult. R,/ o Kar.rclri.

ur, naut5tr., lJ!dt , Presertd! conlinc in Centcr Prison.

Karachi APPLTcANT ?at1

The Statc- RESPONDDNT

FrR NO. 30/2015 U.S. 23(I).s.A.A of 20'13 P.S Sir Syed

SPECL4L CR, APPEAL {-INDEII SE cTt()N 25 0t AN',n- TEIIROIiI.S^.I ,,1 CT OF 19q7 R E,II) WITH .SI]CTION .I1I) CR.P.C Being aggricved and dissatisfied with impugned comolidated Judgment dated 08.11.2018 passed bv the leamcd Judgc of Anti-Terrorism Court No:ll, Karachi in Special Case Nor 8-921 of 2015 in Crime/FIR No: 30/2015 of E/s 123(I)A.9AA in which the iearned ludge did not consider the merits of the aase and passed the sentence to the appellant/accused Ahrned llassan is <onvicted u/s 23(i)A, 24 and 25 of Sildh Arms Act, 2013 for 14 y(:ars to rigorous inprisonment and accused .Al1me(i Hassan to pay Rs.50,i)00/- to rhc legat Ilcirs o{ deceased. ln detault lo un(lergo imp[isonment lor 02 vears. The seotences of foiprioonment under each heacl s}ull be concurrent.

It iE respecdully ptayed on behalf of above nameci Iicans/accr.rsed that this Honorable Court may gtaciously be pleased to set- e the above impugned Judgment dated 09.11.2018 ar well as to acquit the llants/accuscd, on consideration of the follolving facts and grounds:- Ohe .ertified copy ofludgment datedi 08.11.?018 ir encloscd as Anncxure'A')

5 L'"

o-ulet!! l]MuDCF. ANr l-rEllqlllgllcgllIlQJll B^cI! Nr'.^'fCJVK.Di/ llrl /2018, Kirachi, Dnted:08112011t

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'the I{cgistrar, z)- f Htrnourable lligh Court of Sindh, Karach i.

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I 5UEILCT: UNDEI{ SI]CTI0N 374 Cl{.1'.C IiI I.I-RI:\CII SI'L.CASI: -N(). Il:l!!)/2Ql!-Ftl. N-O. 0?201s U/s ',na]sttn{Elt{, PPC, RAv S[(. 7 A I A, l997AN12 sPl.qai[ No It-91 2r)15, Ftr{ N(). 30/2015, U/S 23(i)A S.A.AC r Oll AIIOL T I ylrEs AIJD!]- BA![![!L 8r-!Rs, qfi.rER s!,_e l lol! ?5(2IQ_F llUZ

^.T.A..

It is to state that thc sforesaid <ase h.rs been dcci(led olr 08.11.2018 and the accused Abdul Rahecm S/o Abdul Hakeemi'1s been awarded .lenth st'flten(e including other sentences subiect horvever lo (onfirnralion bl'the Hon'btc High Court of Sinrth, Karachi Un.ler Se(tion 374 Cr,P.C.

The R&I'of the aforesaid special cases are sent herewilh in of Se<tion 25(2) of ATA 1997 for .onfirmation of death llce of abovc ac(used or otherwisc.

I

,:. Kindly acknowledge the re.eiPt of the same' I:ncl: As al)ove

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(NTs.I(HALIDA YASEIN )

IUDGF

ANTI-TERIIORISM COURT NO:tl

KARACHI

1-1..1 Jr-er \3v 'IF= C^$'Ja-

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IN THE HIGH COURT OF SINDH AT KARACHI

Special Crl. Antr-"lerrorism APPeal No.323 of 2018 Special Crl. Anti-Terrorism APPeat No 3fb of 2018 SpccialCrl. Antr-lerrorisrn Appeal No.337 ot 2018 ( onlirmahon Casc No.l7 of 201d.

Piesent:

Mr,lusfice Mo i\l r. l rti.e Trlfitlttt A ll Srlrlrai

Appg11rn,. Abtlul Raheem s/o. Muhanrmad Akber throuBh Mr. NaJecm AhmeJ Arar, n.lvocaLc dnd An\a q Anwar Baloch s/o. ltluhammaJ ancl Ahmed Hassan s/o. Abdul Hakecm through Mr. Abdul Razzak, Advocate

:,lnt! Through Nlr. Sirai Ali K. Chanclio, Addl Prosecut(rr General.

Date oI irearingt 05.12.2019 and 06.12.20]9

Datc of announccm€nt: 18.12.2019

IUD CMENT

Mohammad Karim Khan Agha, J.- APPeUants Abdul Raheem s/o' Muhammad Akber, Anwar r@ Anwar Baloch s/o. Muhamnrad and Ahmed Hassan s/o. Abdul Hakeem have Preferred these aPPeals against the inrpugned iudgment dated 0811,20111 passed by the learned ludge Anti-Ten'orism Court No.lt, Karachi in Special Case No'B-320 of 2015, F.l.R. No.02 oI2018 u /s.302/ 384/3e5 / ?4 PPC r/\a'secrion 7 oI ATA, 1997 and Spdial Case No.B-921 o{ 2015, F.l.l{. No.30 oI 2015 u/s 23(i)(a) of Sindh Arms Act, 2013 registered as P.S. Cabol'l'own, Karachi whereb} the appellants have been convicted and sentenced as uncler:- "Accused Abdul Raheem is convictcd u/s 302 of PPC punishable U/s.6 Sub Section (2), l'}unishabie U/s 7 Clause (a) lnd is sentenced to death subiect to confirmation by thc Hon'trle I]igh Court of Sinclh- For onc murdsr I 'annot award ounirhment lo threc accused to hdng lo dcath, tllerelore, the lccu'e.i Ahn,c.l Hassan is sentenced lo LnPrisollment lor lilc u/s.7 (a) A1A, 1997 ant] u/s.23 (' A, 24 & 25 oi Sindh Arms frct, ZOli tor 14 yeals to riSorous irnPlisonment and accused Anrvar is sentenied for imPrisonment Ior life u,zs-7 (a) H oi ATA, 1gg7. Accused Abdul llahecm to Pay comPensation of iupees one lac to thc iegal heirs of deceased in case his death

sentence is commutcd to fmplisonment for life. Whereas accused Ahmed Hassan and Anrvar to pay Rs.50,000/- to the legal heirs of deceased. In (lcfault to undergo irnprisonment lor 02 ycars rnore. 'l hc sentcnccs of jmprisonnrent uider eaah hcad shali run concurrently.

2.The brief facts of the case as per FIR No.02,r2015 I5 Gabol Town, reBistered by complainant Rehan Naseem on 07.01.2015 arc that he UveE in House No.l1/2 5E. Paposh Nagar, Nazimabad, Karachi with his family and had phone nurnber 0300-5489005 and hac a private job. Ai about 4:00 pm his maternal aunt inlormed him that her husband has been murdered in the factory and has been shiftcd to Abbasi Shaheed Hospital whcre he went and saw his matemal uncle Saleem's dcad body in the mortuary. The dead body was tranded over to hirn. FIe ha(l stated that his matenul uncle does not have any enmity and that unknoivn persons had filed at his uncle for unklown enmity or reasons.

3.After legistration of the ljlRs, usual investigati(rls were carried out and thcleafter the case was sent for hial. The chargc was framed ag,ainst the accused persons to rvhich they pJeaded not guiltv and claimed trial Accuscd Anwar Baloch i,as declared P(rlaimed Oflender on 26.05.2015 However, acrused Anwar Saloch was alrested on 04.12.2016 and thereafter amended charge $,as fuamed against lrim t<-r r,',hich he also pleaded not guilw and claimed kial of the case.

4.ln order to prove its cas€ the prosecution examined 18 PW'!i, who exhibited various documents and other items in suPPort of the prosecution case where after the prosecution closed its sidc. 'l'he statenlent of all the accused were recorded u/s 342 C!.I'j.C- None of the accused examined themselves on Oath- Accused Abdul Raheem produced one DW irl support of his defense case and accused Alrmed Hassan Produced 02 DW's in support of his defence case. In essen(e tlre defense o[ all the acctlsed was that they were innocent and had been falself imPlicated in thls case by the police.

5.Learned ]udgc, Anti-Tcrrorism Court-ll, Karachi, alter hearinS thc Iearned counsel for the Parties and ascessment oI evidence availabie on record, vide the impugned judgment dated 08.11.2018, convicted and t7

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sentenced the appellants as stated above, hence these aPPeals h:rve been separatcly filed by each appellant agaihst his sentencc and conviction-

6.The factg of the case as well as evidcnce Produced bclore the trial court find an elaborate mention in the impugned judgment, therefore, tlle same are not reproduced here so as to avoid duplication and unnecessary repetition.

7.l,earned counsel for appellant Abdul Rahc'ern has contended that the retracted conJessional statement of Abdul Reheem cannot be relied upon as it was retracted and has not been made in accordance with law and as such no reliance can be placed uPon iti that even otl,erwise nL) mention o{ the word bhatta lvu been used in the conJessional statement so as to bring the casc within the purvie&' of the ATA; that the case property was nol present at the time 1\'hen the accused made fus statement under 5.342 Cr.PCi that the medical report does not support the (rcula! eviden.e; that the CCTV footagc cannoL be relied upon as no one has identified thc accused in the CCTV footage, that tltc CDR data r.loes not link the accuse,l to the offense; that no rccovery was made from hinl at the time of his arrest al,d that lor an)' of the above reasons the accuscd should be acquittcd of the charge by extending him the benefit of the doubt. In support of his contentions he has placed reliance on Qaddan and others v. The State (2017 SCMR 148), Muhammad Shah v. The State (2010 SCMR 1009), Haris Nasim nlias Khatid and another v. The State and another (2019 I'. Crl. L.l 535), Muhammad Ayyaz v. The State (2018 P. CrI LJ 132).

Sher Bahadur v. Fayyaz and another (2015 SCMR 955) and an unrePorted judgment of this Court in the case oI Bilal Hussain v. The State (Criminai Appeal No.292 ot2016 dated 10.12.2018).

t. Lcarned counsel for the appellants Anwar Baloch and Ahmed Flassan has contended that this case does not fall under the Purview oi thc AI A as there is no evidence that any demand for bhatta has been made ancl that the investigation was caried out by a sut!'inspe.tor instead of an Inspector in contrayention ol the AIA; that with rcgard to aPPellant Anwar Baloch thcre is no evidence against him whatsoe('er aPart ftom the judicial conlession of aPPellant Abdul Raheem the lcgalitv of rahich is doubtful and even otherwise thei, is no other evidence aBainst hi'Ir to t

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corroborale that.onfession and as such the appellant Anr'r'ar Baloclr should bc acquittcd of the charge by extending him the benefit of the doubt. l4'ith regard to appeliant Ahmed Hassan he contended that he was not n.rmed in thc conjessional statement of Abdul Raheem; that no crne has identificd hirn as bcing Present at the time oi the murdcr; that no phone records havc been produced against him; that the Pistol was foistcd upon him and that he was arrested from hjs home; that there r'r'as no sale custod) oI the cmptiesi that there was no saJe custody of the Pistol and as such the positive RIL report is irrelevant ancl thus for any of [he abovc reasons he should be acquitted of the charge bY extending to him the benefit rrf the doubt. ln support oI his contcntions he has placed reliancc' on Nasir Mehmood and another v. The State (2015 SCN{R 423), Mrhammad Pervez and others v. The State and othcre (2007 SCIMI< 670), Nadeem Ahmed Khan and othels v. The State (2007 I' Cr' Ll 23:]), Hakam Deen v. The State through Advocate General and 15 others (PLl) 2006 supreme Court (AJ&K) 43), State throqgh Advocate'General Sindh, Karachi v. Farman Hussan and others (PLD 1995 Suprcmc Coufi 1), Maula Jan v. The State (2014 SCN4It 862), Israr Ali v' The State (2007 trMR 525), Tahir Mehmood @ Achoo v. the Statc and another (2018 SCMIt 169), Muhammad Ismail and others v. The State (2017 SCMR 898), Muhammad Nadeem alias Banka v. The State (2011 SCMir 1517), Hayatullah v. The Sta{e (20.18 :jCMR 2{)92), Wahab Ali and another t. The State (2010 r'. Cr. LJ 154, The State of Guiarai v. Adam Fateh Mhmed Umatiya and others (1971(3) SuPreme Coult Cases 201,), sabir Ati v- The Stnte (2011 SCMR 629) and Muhammad Shah v. The State (2010 scNrR 1009).

9.Learned APG who was also rePrescnting the comPlainant has contcnded that q,ith regard to appellant Abdul Raheem his conJession is in accorclancc with the law and as such he can bc convicted on this evidence alone ra'hich confession also clearly sholvs that it was a case concerning the collection of bhatta which iell squarcll' within the A'fAi that the involvcment of Abdul Raheem is further Proven through the CCTV footage r,,,hich has shown him shooting the dc<eased and his mother's recogrition of him; that with regaid to apPellant Anwa! Bal'rh he is named in the conJessional statcment of Abdul Raheem as bcing actively involved in the bhatta collection and murder of the deccascd who

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Abdut Rahcem was instigated to shoot on his instructions; that lvith rcgard to appellant Ahmcd Hassan he rvas fullv involved with the other appellants in order to collect bhatla from the deceased and to rrurder him I when he refused to do soj that the empties rccoveretl frorn the scene oI the murder matchcd thc pistol recovered irom him on his arrest an(i as such he was fully involved in the murdcr of the deaeaged as it was he to whonr the mtrrtler weapon hatl ultimately becn returncd ior which the appellant did not have a liccnse. As such lre submitted that there was n]ore thalr enough cvidence on record to prove that aLl the appellants had conrmitted tle offcrues as charged and had been rightly convicted and sentenced as per the iNpugned judgment and that their appeals should be disntisserl and their convictions and sentcnces maintained. In supPort of his contentions he has placed reliance on Shaukal AIi v, The State and others (PLD 2019 Supreme Court 577), Ra6hid Aslam and nnothei v. The State (2017 YLR 2052), Mehboob v. The State (2i,18 MLD 345), Muhammad Aslam v. The State (2018 MLO 761), Muhammad lehaque v. The State (2018 YLR 786), Shoaib Ahmad and others v. The state and others (2019 l'. Cr. Ll 571, an unrcpo*ed case Abdul Raheem & others v. 'fhe state (Appeal No.ATA 38/20'18),Shcr Muhammed Balo(h V State (2008 IiCMR 32) aod Khan Muhammed V State (1999 SCI\{R 1818).

10.We have heard thc arguments of the Ieamed counsel for the Parlies, gone through the entire evidence which has been read r.:ut by the appellants and the impugned ludgment with their abie assistance and havc considercd the relevant la\y including that cited at thc bar.

11.Ilefcrrc proceecling further ra,e have noted lrom the re(ord that the chargc was irameci on i12.08.2006 and there after the Prose.ution had lead some oi its evir.ltnce. The charge was amended on 20.12.2006 because Anwar Baloch whr-r had been absconcling \,v'a!, a(e$ted and had to tace trial. I-eamed counsel for Anrvar Baloch bcfore the trial court did not \a'ant the PW's wlro had alrcady been called to be recailed and only requcsted that one I'W tre recalled so that lre could cross examine that PIV which was allcrwed by the trial court. None o[ the learncd counsel before us have contended that this is a case of remand and in Particular lealncd counscl for Anrvar Baloch as actording lo him the accuscd Anwar Balrth hati rrot been prejudiccd. We arc iiclined to agrec with learned counsel for the,

. AC

accused who also requested this court to decide thc apPeals on merit as some of the accused had been in custody for quitc some time esPeciall]' as in ou! view no Prejudice has bcen caused to any of the aPPcllants (includin8 Anwar Balch as admitted by his counsel) at triai as a result of the amended char8e altd as such wc Procced to decide these appeals on merits.

12.In our view after ou! reassessment of the e\'idence based on the evidence oI the t'W's including the PW MLO, inquest rePort u/s 174 Cr.PC, rccovcries ofenrpties arrd blood stained earth at the scenc, rccol'ery of pistol and the CCTV footage and other evidence on record $'e are satisfied that the prcrsecr.ttir.rn has proved beyond a reasonable doubt that on 07.01.2015 at about 16.,t5pm at Factory Dyers Point at Scctor l6-8 Gobal Town Saleemuddin (the deceased) was shot and rnurdered by filearm.

13.Thc only is$ues therefore, in our view, left before us are (a) whcther the appellants played any role in the murder of the deceased and (b) whethet the deceaserl was mllrdered because he refuser'l to Pay bhatta (extotion moncy) to the accused.

74.ln our view after our reassessment of thc evidcncc we find that the most important aspects in dcaling with the abovc issues are (a) the conlession of appellant Abdul Raheem and (b) the CC-TV/CD footagt' racovered froRr thl, scene of the murder.

Turning firstly to aPpellant Abdul Raheem's confessiotr.

15..,\b.lul Iiahoem's conJession Ieads as rrndcri "About three wceks back, I alongtvith onc Ayaz S,/o not known \,vcnt to a garment factory at 6abol Tou n, Karachi and mel with th€ orvncr of factory in lis of{ice and conveved to him the message of Anwar that Anwar had scnt us to hinr for receiving Rs 2000/-. I le replied that Anwar should mect in Pclson vr'ith him in cvening ln the samc spur of moment Anwar talked h'ith me on my lcll Ph(rne and instigated nre for opening fires upon the ownet of factory' The pistol was in my hand which Anwar had given me l had opened total three fire6 uPon the ownea of factory. Now I am feeling guilty."(boltl acltled)

16.Abdul Raheem was arrested on 25.01.20-15 and his confession was recorded 4 to 5 days later by the magiskate.

s 6-l

Law on retra(tion of iudicial <onfcssions.

-17. After a review of the relcvant law on the lcgal validity of judicial confessions the Hon'ble SuPteme court in thc case of Ch. Muharnmad Yaqoob V The State (1992 SCMR 1983) redched the following conclusion:

'"utr legal posiliotl, nlnch lws ematge,l .ftoDt thr dl'o't| ftl1arlt, se?ms Io br lhnl i orier l0 judge thr rt'tL tiary ulue of reltnctal LonfcsstLrt, the court is to aila,eft to the questiort, ttjhether the srtfie nppenrs to haoe been made tohrttarily, @ithout ttn! ituhtcefttc t, ilutess or coercion uith the objeat to stote the tflth U th? Coutt is satis/ied on thc abo.tP .tslte.:t, tltt fttcrc Idct that there uJerc sotne ifte$ nritils i recordlttS of o corfessiott, tooulil ot .L'nta t disregu li g of tlte sdnrc". (htltl uitlcd)

18.It is settled Iaw that a retractcd judicial conJession can be legalll' admissiblc and used against jts makcr in ccrtain circumstances. In the latei case of Muhammad Amin v. The State (2006 Pl-D rc 219), it was held at P.224 Para 9 as under;

"lt.Therc isno.it'iltothe propositiofi tlutt co l'ictio cauli haue been dudtuleil o| the basis of retractel cotJession ,ltictt ltftrpositiott rras cxdniltcil h .ase of trlst. Jollg t, Ribi 7,- Thp St,Jtt I'L,D 1960 6C (Pdk) 3"13 &s uulei- "lNt trc unable ta support the ltolrosilton of Law lnid doun by the lenmed l dges h lhis reSard. The rettaction ol a Lotlf/ssiotl is a circu $tatce r2hich has o bati g fihatsoewr rlo the question ullletlet ii tl? ftst inslatrce il :0Jas oohtnktnly mudt, dtld otl tlte fi hcr qusston ttllctl?r it is true.'I'11e fat I thnl tl[ mobr of tlr,t conlessiafi lnter d1vs ol ndlvrc lo il caniot W ilself hort any eflecl uytn lhe linditgs rcachztl as lo tohcthlt thp confcsston uns r)ol)!fi\nry, at1!l if sa, :l,hetlltr il tras tn!e, for to tt,ilhdtau' [rLtn a selJ-a!:usitg slatt knt in litcct fdLe of l]r .otlsequences oJ llp L:cr$aliott, 6 etfhcoblc [ully by lhe proti tity oJ lhosc c()nseque ces ntld ecd hot)c ,1o co tle(.liotL 'rtltt soeter uifh aither it$ olto*nry alule, or ll? lrulh oJ thc fncts shlled. Ttrc leamctl ludges rtcre perlectly nghl in frsl dedding thcse hrc questiotls, afitl the a suers bei S itt tle affnnatu:e, n declnnrry tll'l'l tlhl @nftssiott by itself tuas su.tficienl, Lt*en tLlilll tht otlat Jacls find citattfislan.es lo atpport Abdul Mljitl's @,luictio . The retflrctiafl of the colfessiofi uas wholly irnfiLteill once it uqs found tl@t tt zltns L'oluntary as uell ,t!t hE."

10- Sunilatly nt the cast of tht Stnle t. Mrtrlrr'n aLits Gul Hassarl PLD 196,1 SC 813 lhis Courl lfis abscn'ed ns u der:'

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'As tor lhc iJ\t?ssiuns lhe lltgh l'ourl, appcns ,J'a: dtltl t-^r\Qolo of ttn' fi ! Ihit rttrnal?d \tr{csston rLhellrr ludt,ul tr exlra jtL,licriL, coutd legnlly be takc oia (ansilerdliofi nsn|,st lhc t rl'ct of thosr codessrc s limsell' utltl iJ tlP cory'lssrors l:prc lou d to I'e ln]? n i l.Dlunlary, lfun lhllre ,ns no need ut ull lo lclok lor lu her ortoboratiott lt {s ulcll- settled that as agoinst the nakcr hifiself his coflfessiott, ju.licial or ertra judicial, ohcther retnrtei ot ,tot tetractc.l, t:4r1 in lau, aalidl! .font the sole basis of his totztiction, il the Court is satisfietl Bttd belieoes thdt it acas tfltc tlnil loluntary a d u,,s not obtai e.l bY tortute or coercio or itd\.e'rre, t. " (bold added)

79.'l hus, tlle court laid down a tlvo pronged tcst as under (a) whether the retra(ted rudicial conJession aPPears to have t'een made voluntarily, \.!'itl'lout anv induccment, duress or cocrcion and (b) was made \a'ith the object to state the truth.

20.Notably it was also Ileld that if both (a) and (b) were satisfied then evcn iI there were some i-rregularities in re(ording ot a conlesslon it would not wairant disregarding of the same. In our view horvevet tbllowing the case of Azeem Xian V Muhahid Khan (2016 SCMR 274) such irregula ties must bi: of a ninor nature and [lust not have detractcd Irom either the voluntariness or truthfulness of thc conlession,

21.In the case of Bahadur V State (IrLD 1996 SC 336) althoud it was sug8ested that a iudicial con-tession alone can be made the basis of conviction the safe! cou$e was to look hr sec if there was any .orroborativc material available to dctemline its truth[ulness

22.In the case of Manieet Singh v State (l'LD 2006 gl 30) a Iurther requircment sccmed to be added that in determining the trutfuulness of the confession it l1ad to be Pla.ed within the co[text of the whole of tl,e prosecution cvidence/case.

t 23. ln our view therefore we arc not in any doubt that a retracLed conJcssion bclore a magistrate can be the basis of convicting in a capital case howcver it must be;

(a)Voluntary i.e. h'ithout threat or indu.ement afld (b)lts object must be to state the truth; assistance for whi'h can bc ascertained from (i) whether the conlession

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appears trutruul within the rontext of the Prosecution case and (ii) whether there is any othcr evidellce on re.ord which tends to corrobotate the tiuthfulness oi tltc aonfcssion and

(c)Oniy minor irreg,ulalities regarding thc rules concerning the recording of iudicial confessions can be Permitted as determincd on a case to case bdsis the main criteria being tl1at such ireSularities have not adverselY affected the voluntarincss or truL\Julness of the aonfession

24.Thus, we are of the view that a slight delay in recording the conJession after the arrest of the accused will not efie.r its legality and our ability to rely on it. ln this resPect reliance is Placed on Khan Muhammed'e case (SuPra) and Maieed v' The State (2010 SCMR 55).In our aiew as Per the case law as discusserl alrovc the overriding factors to be adheted to v/hen determining whcther a retracted judicial conJession can be relied uPon i5 whether it has been made voluntarily, is huthful and fits in with the Prosecution case and these factorc have not been effected by any procedural irregularity.

25.Baged on the particular facts and circumstances of this case wc lind (a) thele is no cogent evidence on record that the confession lvere not made voluntarilv i.e by threat or inducement and (b) the object of the confession appears to be to tell thc truth as it fits in with the prosecution case and i5 corroborated by other evidcnce on re<ord which we will come to later and that (c) although there may be some irregularities in the recording of thc conJession as pointed out by the learned.ounsel Io! the aPPellant alter our review of the warnings given and the evidence of PW 4 Rajkumar the iudicial magistlate before whom thc cor$ession was recorded sucl, irregularities have neither effected the voluntarine5s or truthlulness of thc conlcssion and as such we find the confession of Abdul Raheem to be admisuible and can ,ora ,1t" 6usi5 1o convict him and potentially those other aPPellants named in tlrc conJession provide(i that bl' way of abundant caution n'e iind some corroborative evidence against theapPellantg.

26, lhe next Piece of evidence against Abdul Raheem is thc CCTV footage/CD whereby hc was picked out by his mother as,

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being the person who shot the deceased We find that therc was no threat or inducement behind the rnothe! picking out her son Abilul Raheem from thc CcMootage as qucstions concerning such influence/ prcssure wele not raised hfore any PW and in our view such evidence is simPly an after thought madc in an attemPt to save the skin of her son. As such u'e fincl that the aPPellant Abdul Rahecnr has been correctly jdentilied by his mother ir the CCIV footage/CD as the person who shot and murdered the deceased at his factory. lt is also of signilicance that it was only on his mother's identihcation of her son aPPellant Abdul Raheem that the Police wcre able to arlest him from his home and lvhere after he conJessed to thc mLrrdcr. lf his mother had not identified him thcn the Police woulcl have had no idea of his involvement i!1 the crime as his conJession or y came aft€t his arrest. lt is also signilicant that the rnother made no comPlaint to any body in luding the remand judge or filed any petition before an)'court regarding her treatment by the police in order to falsely imPlicate het son and for the lirst time came out with such a story during hcr cvidencc at triai,

27.It is also signilicant that she states in her evidence that the police had no en niry_ with her son ond as such had no rcason to falsely implicate him in this case.

28.The corrJessio[ which we have carlier found can be used against the appellant Abdul Rahc€m also {its in wilh the cntire prosecution case and in our view shows that this case concerned Lhe collection oI bhatta from the dlreased which iead to his murder by Abc{ul Raheem when he refused to Pay the $ame a d as such thc case falls squarely under the Purview oi the A'fA. This Iinding is also supported by simple corrlrron senae in that sincc Abdul Raheem had no enmity with the deceased alld had no other rcason to go to thc factorl' based on his own .onfessian and the CgIv Iootage the oniy logical and common sense conclusion which can be drawn is that Abdul Raheem and his accomPliccs went to the factory in order to extot bhalta from the de.eased which rcsulted in appellant Abdul Raheem murdering him once hc refused lo Pa]" up. The fact that thc investigation was carried out by an SI iruitead

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of an Inspector as Provided in the ATA we lind to bc inconsequential based on the Paiticular facts and circumstances of this case as it is well s€ttled by now that the taw always PreJers thal matters be decidcd on merit as oPPosed to technicalities ln d'e respe.t rcliance is Placed on the case of Sher Mqhammed Balo'h (Supra)

29.Based on the above discussion we ale satisfied that the prosecution has proved its case against the aPPellant Abdul Raieem beyond a reasonable doubt and as such uP hold his conviction in the impugned judgment.

30.The next issue is what the aPproPriate sentence should be for appellant Abdul Raheem. We have found tlut the aPPellant AMul Raleem who was an adult at the time of the of{ensc as proven frorn lhe record demanded bhatta from the deceased and jn when the deceased rcfused to Pay he shot him 2 to 3 times coid blood. The motive tor the murder that the dcceased was murdered because he refused to Pay bhatta stands Proven and that the appellant was the sole murderer whose firing lead to the deceaced's death.lhis r,r,as a cold bloodied murder carriccl out in a brutai fashion which in our vier.r'had behind it the object, design anrl intent to send a signal to all businessmen that if they refused to Pay bhatta thcn they would meet the safle fatc as the deceased and thus was desiSncd to crcate inscturit)', fea' and lerror within the business cornmunity. ln such cases no leniency can be shown by the courrs and a detcrrent sentence is the aPPloPrinte one in order to send a loud antl cleat message to all Pcrsons 1^'ho engage io such heinous crimcs that they can exPe.t l1o leniencv from the courts and that if they engage in such heinous crimes it is done so at their own peril. Such persons must be rnade alvare that iJ you PIay with fire then you can get burnt. In this resPect reliance is Placed on the casc of Dadullah and another v' The State (2015 SCMR 856)

31.As such rve uPhold the sentences handed dor\'n to appeliant Ab<iul Raheem whose death sentence is r'rpheld and thc corfirmation leference is ans$ered in the aflirmative ,

( 'rl Turning to the .ase of appellant Ahnred flassan

32.We note that he has not beren named in the conJcssion oI appellant Abdul RaheeDi. He has also not bcen picked out as being a person whcr was prescnt in the CCI'V/CD footage of the murder of the deceased. In connectiol with the demand for bhatta and the murder of the decea$ed the only evidence against him aPPears to be that on his arrest he rvas found with an unlicensed Pistol and that the empties re.overed at the murder scene matched that pistol through a positive FSL ieport.

33.We have carefully analyzed the Ptosecution evidence in detail concerning the arrest of the appellant and recovery of the pistol from him jn terms of I'!v 7 Mohammed Arain, Pw 8 Tai Muhammed, I'lV 9 Muharnmed Ashraf Arain and PW 16 Chulam Akbar along with the arrest anci lecovery merno. l he aPPellants own q'ife (Mst Misbah Bibi) who ga\'e evidence as a DlV has stated in hcr orvn cvidence that her husband did not have any enmity with thc police and thus the Police had no reason to falselv implicate het husband in this casc, It is weu settled bv now that a police ra'itness is as good as any othet wihess Provided that no ill \{ill, enmity, malafide or personal interest is Proven against him vis a vis the appellant. In this respett reliance is Pla.ed on Riaz Ahmad V State (2004 scMR 988), Zafar v State (2008 SClvlR 1254) and Abbas V State (2008 SCMR 108).ln this case r() ill will or enmity has been suggested against any police officer as would lead to him tdsely implicating the accused in this case. The Police I'W's in their evidence corroborate each other in all material resPects and it is settled by now that minor contradictions in cvidence can be i8nored. We reject the evidence of his wile and brothcr in iaw that he was arrested from home which appearc to us to have been given just so her husband can be saved fronr the clutches of the law. 'fhus, based on our analysis of the evidence of the above PW's and the mcmo of arrest and lecovery we are satisfied that the prose.ution has proved its case beyond a reasonable d(,ubt that the appellant'rvas caught in Possession of an unlicensed fire arm and aj

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hencc his conviction and sentencc are upheld in the imPugned judgment in that respect.

34.Vl'e howcver find that the Prosecution h.ls not Produccd suJficient corroboratil'e evidencc to connect the aPPellant to the demand of bhatta and the nrurder oI the dcceased. This is because thc kev connecting ef idence is the emptirx matching wilh the pistol which $'as recovered lrom him. 1'e note howcver that appellant Alured Hassan was arrcsted on 28-01-2015 but the recovered empties *'ere not sent until 1l-0ti-2015 along with the pistol Ior FsL report and during this period of 7 rnonths there i,v'as no evidcnce of sale custody of the cmpties and as such the possibility of bullcts being discharged from the pistol after its recovcry (rom thc accused and the empties of the same being sent along for ISL in orde! to manufacture a positive FSL repolt cannot be luled out and thus by extending the benefit of the doubt to the appellant Ahmed Hassan we hereby accluit him of the charge oI murder and of demanding bhatta.

Turing to thr case of appcllant Anw.rr Baloch.

35.He is named in the .onfessional statement of appellant Abdul Raheem. Sr r,r'e need to see what corrobl)ra{ive eviden('c therc is a8ainst hirIr. Hc has not bcen picked out as being a persort who was present ir the CC|V/CD footage of the murdcr of the deceascd or namcd bl,any other Pw as being involved in this crime. No recoverv has been made lrom hin'L No CDlt data connetts him to the offense. Since in our vie\a, it would be unsafe to convict the appellant Anr."at ljaloch on the confession of a.o- accused without indepcndent corroborative evidence since wc have not found an)' such evidcrce we lTereby acquit the appellant Anu,ar Baloch of the charge rvho shall be released forthwith unless wanted in a[y other custodt' casc.

3r'r. In suntmary.

(a)'Ihe appeal oI Abdul Raheem is dismjssed and his conl,ictions and sentences are upheld and as such thc conJirmation reference is ansrvcled in the affirmative.

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(b)'l he appeal of Ahmed Hassan is Partly allowcd in that he is acquiitcd of all charges excePt fot the olfensc under 5.23(i) A, and 24 of the Smdh Arms Act 20't3 for which his conviction and sentence is upheJd lle shall be entitled to the b€nefit of S.382 B Cr.PC.

(c)the appeal of Aiwar Baloch is allowed and he is acquitted of the charge and shall be leleased unlcss wanted ilr any other custody case-

37 The appeals and confirmation rcferen.e stand disposed of in the above terms.

l) .IL]DCT, ,, )t

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