ZAHIDULLAH@SULEAMAN AND ORS (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COURT OF SINDH I(ARACHI

Itrescttl:

Mr, lustlce Mohanuncl lkrlm lJmn Agha Mr,lustlcc Amjail All Dolrio

Special Criminal A.T.Iai[ Appeal No.1]"4 of 2022 Conf. Case No.07 of 2022.

Appellants 1. Zahidullah @ Suleman 5/o. Ismail Khan, 2. Inamullal'r @ Bilal S/o. Molvi Raees,

3.Bismillah @ Haji LalaS/o. Amanullah,

4.Muhammad Qasim @ Haji Siddique S/o. Muhammad Akbar, tfuough M/s.

Syed Iftikhar Ahmed Shah and Muhammad Naeem, Advocates.

5.Gul Muhammad S/o. Loung lGan through Mr. Hashmat Khalid, Advocate.

The State Through Mr. Muhammad lqbal Awan, Additional Prosecutor General, Sindh-

Date of hearing a6.09.2423.

Date of Judgment 18.09.2023.

IUDG MENT

MOHAMMAD I(ARIM I(HAN AGHA, I:- The Appellants Zahidullah @ Suleman S/o. Ismail Khan, Inarnullah @ Bilal S/o. Molvi Raees, Bismillah @ I{aji Lala S/o. Amanullah, Muhammad Qasim @ Haji Siddique S/o.

Muhammacl Akbar and Gul Muhamnrad S/o. Loung Khan have filed this appeal against thc judgrnent passcd by the Anti-Terrorism Court No.XII, Karaclri clatcd 30.03.2022 in Special Case No.168 of 2021 arising out of F,l.R. No.09 /2021U/s. 353, 324,427,34 PPC R/w SectionT of ATA,1997 &. 720-8,'t 77, 121-A, 122 PPC R/ w Section 6(2) of AT A lggT,Special Case No.168-A of 2021 arising out of F.l.R. No,10 /2021, U/s. 23(1)(A) of Sindh Arms Act, Special Case No.168-8, arising out o[ F.LR. No.11/2027 U/s. 23(1XA) of Sindh Arms Act, Special Case.No.168-C of 2021. arising out of F.LR' No.12 /2021U/s. 23(1)(A) of Sindh Arms Act, Special Case No.168-Q Mnhnnuol Aril 7

\\y of 2021 arising out of F.l.R. No.13 /2021. U/s.23(1)(4) of Sindh Arms Act, Special Case No.168-E of 2021 arising out of F.I'R. No.1'4/2021 U/s' 23(1XA) of Sinrlh Arms Act, Spccial Case No,168-F of 2021, arising out of F.I.R. No.l6/2021 U/s. 23(1)(A) of Sirrdft Arms Act and Special Case No.16B-G of 2021 arisilg out of It.l.R. No.17/20?1U/s. a/5 of Explosive Substanccs Act, l{/w Sectiorr 7 ATA 1997 registered at P.S. CTD Karachi r,r,lrereby thc appcllants Zahidullah @ Suleman S/o. Ismail Khan, Dismillah @ Haii Lala S/o, Arnanullah, Muhammad Qasim @ Haji sidctique s/o. Muhammad Akbar, Inarnullah @ Bilal s/o. Molvi Raees and Gul Muhammad S/o. Laung Khan were convicted and sentenced as under:-

All the accused were convicted U/s. 265-H(II) Cr.P.C. in Special Case No.168/2A?J and sentenced U/s.353 PPC to R.l' for two years along with fine of Rs.500,000/-each, In case of failure to pay fine, they shall suffer S.l. for six months. All the above accused were furtl'rer convicted U/S. 265-H(II) Cr.P.C. and sentenced U/s. 324 to R.I. for ten years and fine of Rs.500,000/-each. In case of failure to pay the fine they shall suffer S.I. for 21/z years more. All the appellants were further convicted U/S. 265-H(II) Cr.P.C. and sentenced U /s. 427 PPC to R.I. for two years and fine of Rs.500,000/- each. In case of failure to pay the fine they shall suffer S.I. for six months more.

In Special Case No.168/2021, all the accused persons were convicted U/5. 265-H.(II) Cr.P.C. and sentenced U/s. 120-B PPC, R/w Section 121-4 PPC to Life Imprisonment as R.i. and fine of Rs.10,00,000/- each. In case of failure to pay fine, they shall suffer S.I. for 61/e years more.

In Special Case No.168/2021 all the accused persons were convicted lJ/s.265-H(ll) Cr.P.C. and sentencecl U/s. 122 PPC to Life Imprisonment as R.l. and fine of Rs.10,00,000/- each. In case of failure to pay fine, they shall suffef S.I. for 6% years r"nore.

In Special Case No.1.6B/2027 accused Zahidullah @ Suleman S/o. Isrnail Khan and Bismillah @ Flaji Lala S/o. Arnanullah were convicted TJ /s. 265-l-10l) Cr.P.C. and sentenced to death U /s.721" PPC along with fine of Rs.10,00,000/- each.

In Special Case No.16B/2021 all tl're accused Persons were convicted U / s.255-H(II) Cr.P.C. and sentenced U/s. 7(1Xb) of ATA \997 to Life Imprisonment and fine of Rs.50,00,000/- each. In case of failure to pay fine, they shall suffer S.I. for 6Vt years more.

Mdnmmad Aril 2

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In Special casc No.16S-G/2027 all the accused Persons were convictetl U/s. 265-H(ll) Cr.P.C. and sentenced U/s' 4 of Explosive Substance Act 1908'for Life Imprisonment as R'l', U/S' 5 of Explosive Substance Act 1908 for iq years as R.l. and U/S'7(2)(tf) of ATA 1997 f.or life imprisonment as R.l.

In Special Case No.16B-Al2021to Special Case No.168-F of 20Tl all tlre accused petsons were convicted U/s, 265-H(ll) Cr'P.C. and sentenced U/s. 23(l)(A) of Sindh Arms Act, 2013 fot 14 years as R.l' and fine of Rs.500,000/- each. In case of failure to pay fine, they shall suffer S.l. for 3% years more.

2.The l:rief facts of the prosecution case as Per FIR are that SIP Syecl Safdar Ali received statement U/S. 154 Cr PC of Inspector Muhammad Shoaib Qureshi of PS CTD/STIG Civil Lines, through PC Shakeel Lodhi that one Inspector Muhammad Shoaib Qureshi of CTD/STIG of Civil Lines Karachi vide letter No. DIGP/CTD /RDR/2021 elatec{ 1,2.01,.2A2'l subject to Element (IR) Anti-State Threat Alert, according to rvhich inforrnation received that a foreign agency has been planning for accomplislrrnent of heinous terrorism activity, for which necessary measures has been almost completed and there is likelihood to point out the official/important building, upon such information, for rvhich CTD Intelligence Team was constituted and he was deputed to find out the whereabouts of terrorists, upon which he also deputed members of such Intelligence Team and spy informers, tl"ren 'r,r,ith efforts of cleputed constituted team and informers, he receir.,ed spy information about the availability of some foleigner/suspicious persons, vvlto are resitling in a house situated ip the area of Shah Latif Toh'n, upon n'hich secret survciltancc was kcpt upon thc rcsidcnts of such house antl High-ups wcrc accordingly informed. On tl'rc night of 08.02.2021, spy information was rcccivcd that six unknown pcrsons looking likc non-locals, haviug utuumberccl Auto l(ickshaw of ycllow colour, in rvhich they have loacled suspicious bags, nnd at suclr tinre thcy were available in the House No. L- L, Sector 21-A, Shah Latif Town District Malir, Karachi, hence l're shareel such information to his l-ligh-ups, and upon r,{irectives of High-ups, he alongwith personncl of Law Enforccment Agencies, SlP Muhamrnad Dilawar, H.C Muhammad Sicldique, P.C Umar Ali, P.C Shakeel Lodhi, P.C Sardar Rauf, P.C Mul'rammad Kashif via police mobile No.Snf-23!

Muhauml Arif 3

\sb accompanietl other cleputerl police parties, so police party headed by Inspector Zafar Abbas Siyal alolgwith SIP Qatleer Khan, ASI Malikullah, H.C Muhammarl Munir., P.C Jarnshcd Tapoli, P.C Muhammad Fahcem Qur.cshi, P.C Muharlmad Aanrir via policc mobile No.5PB-813, police palty hcacled by SIP Ishtiaque Aftrned alopgwith HC Kamran Khan, PC Rizwau antl Mola Bux via policc mobile No,SPE-706, police party headed by, 6t, Ilafa Bashir alongwith ASI Manzoor Ali, P.C. Kalay Khan, P.C lvluharnruarl Bachal Chautlio, P,C. Malik Asif Khan, PC Muhammad Suleuran, P.C Haneef Korejo, P.C Naeemulah via police mobile No.SPM- 132, potice party hcaded by I-I.C Kafeel Ahtnecl, H.C Slrayaan Jadoon, P.C Razwau lsrar, P.C Danish sl"rah via police mobile No,SPM-169, and policc party headed by lnspector Muhammad Shoaib Qureshi alongwith spy infonners and Inspector Sanaullair via APC No.SP-9741 duly armed with official arms & ammunitions, so also alongwith safety Jackets Helmets, Ieft P.S at about 0300 hour"s and reachecl at about 0430 hours at pointed place, r,r,hereupon on the pointation of spy inforrner, by cordoning off the said house, upon such sifuation terrorists became alert and started firing upon all police parties with their firearms from inside of the house with intention to commit rnurder, upon which lnspector Shoaib Qureshi loudly directed them to surrendel thernselves, but they failed to do so ancl kept on firing at the police party, so irr retaliation antl self-defense, Inspector Shoaib Qureshi directed police parties to make firing fron"r their official weapons, during which as a result of such firing, one accused sustained butlet injury in front of main gate of the house ancl fell dou'n at some tlistancc on vacant ptot aud four bullets hit upor"r the urirror ancl botiy of APC No.SP-9741 on c{rivcr sidc, in thc meantinrc ASI Raia Bashir thrcvv thrce Stun Grcnar-1cs insidc such house, due to which firing stoppcd frcrm accusecl sitlc, so Inspector ShoaiLr Qurcshi alorrgwith police officials anteretl into tlte ltou5c, atrc{ saw the accused Persons tluly armed were available, tltel in prcscllce of SIP M.uhanruracl Dilawar ancl H.C Muhammad Muneet, all accuser"l persons were apprehentlecl. All accused persol"rs were encluireel their llan"res one by one aucl search of all accusetl persons was conducted and from accused Zahiclullah @ Suleman 5/o Isnrail Khan, one riflc of 223 borc close butt unnumbercd, loaded with magazine 07 live rouncls ancl one live rouncl in chamber rvas recoveredl Milnmnad Anl 4

\f\ from his right hand. Fr6m accuscrl Bismillah GD Haji Lala S/o Amanullah, onc riffte of 222 borc upnurnbcrctl loatled with magazine0S live rounds antl onc in cltatnlrcr wfl$ rLlcovurctl from hls right hand' From accused Mttltatttntnrl Qrtsitrt f,O I lnll fiirltlitluc ti/o Mulrarnmad Akbar, onc 30 bore pistol rlf trlnr'k cokrur urtnunrbcrccl, loarlcr-t with magaz.ine one livc round & trnr' livt'rt:urrtl irr its chnntbcr was rccttvcrccl from his riglrt hand' From .rccttsr-'rl Innnrullnh (D llilnl S/o. Molvi Raccs, one rifle of 223 bore tttltlttttttrcrt'tl loatlcd magazittc with twelve live rounds ancl one live rttutttl in its chamber was recovercd from his right hancl. From accusecl Gul Mulranrlnad S/o Laung Khan, one 30 borc pistol of black color unnuurl:crcd, loadcd magaziue with two live rounds ancl one live round irr its charnbcr was recovered from l'ris right hantl. Accused discloscd the ltame of tleceased accused as Laal Muhammad @ Mehmood S/o Saeed N{uhammad, who was lying at vacant plot situatecl at some distance of the gate of the house, who succumbed to his injuries anri died on the spot due to receirring bullet injuries. From right hand of deceased accused, one Kalashnikov unnumbered,loaded with Magazine witl"r 10live rounds and one in chamber was rccovered. Thereafter, Inspector Sanaullah contluctet{ proceedings U/s 174 Cr.P.C and prepared rnemo of inspection of dearl body and also he alongwith lnspector Zaf.far via police mobile shifted deceased accused through Chhipa ambulance to ]innah Hospital for postmortem. Thereafter, 25 eurpties of I(alashnikor,, 14 empties o[ 222 Rifle, 20 empties of 223 rifle, 07 empties of 30 bore pistol, three Shells of Stun Crenade, 03 tlrrowing pins/levers, anr.l 02 levcrs fronr the rtifferent placcs werc rccovcrcd at tlrc crimc sccne, Upon query accuscd pcrsorls further discloscel that Rickslraw having no nrunbcr plate is loatietl rvith Explosivc Substances, Rocl<cts otc, wlrich is parkecl outsirlc thc gate' of house, which thcy kept rear,ly for cloirrg hcinotrs tct'rorisur atttrcks, wltereas suicidal jackcts, datonnlors nnr"l othcr olrjects, wcre kcpt irt the secret pocke ts o[ cotton boxcs insirlc r()orll. 'l'hereafte r, upon such disclosure tlDU In chnrllc l(ashif Jalal of [ast Zr:nc u,as callerl for exanrination o[ such recovererl expklsivc substanccs, who recovtred twt: l-lE-Shall rockcts from backscat of yellow colour Rickstraw witl'rout numbcr, its chassis ancl engiuc nunrbers were rubbc'd antl under its { backseat, eleven explosive slabs, whereas, on the backside of c{riving seat, Muhuunal Aril 5

\fr- in wootlen box, one IED alongwith gray powder nuts and bolts weighing about two K.G, ancl dark gray colour chemical powder weighing about two I(.C, six nrcters wirc o[ safcty fusc, and dat wirc/corr-l six meters, tthereas, flom such room thrce cord/wirc boxes were found, so upon its search, frorn first lrox sc'vcl1 cmpty magazines of rifle 223, ane empty magaziue of SMG, 32 chargers loaded with ten live bullets per charger, 100 live bulluts of rifle 222,150 live bullcts .of Kalashnikov, two fouji color Banr.loliyan, two magazines of 30 bore pistol (each was loaded with four live bttllets). Whereas from second box, 15 green colour hand grenades of RGD-I type alongvvith 15 hand grenacles of green color of RGD-1 alongwith 15 detonators were recoverecl and from the third box, thrce cornplete suicidal jackets, elechic IED Circuit, twelve Detorrators, tvr,6 packets of steel nails, two 9 volt batteries, approximately two K.G ball bearings and nut bolts, dat cord five meters, orre remote control for conh'olling IED clevice, two black ancl orange meter-s, one remote conhol for conh'olling IED device, two black and orange colour digital meters, ten meters elech'ic wire and one brown (KFIAKI) colour envelope having two colour maps/ one rent agreement were recovered. Upon query accused persons failed to produce the licenses of recoveretl weapons and docurnents of recovered Rickshaw, for which same was seized U/S. 550 Cr.P.C. and arms and amrnunitions were sealed separately at the spot. Whereas, after the defusing of ]ackets, hand grenades, tletonators and other explosive materials by BDU tearn, packed the same separately for safe condition, which were seizeci in police custody. Hence, the FIRS were registered against the accused persons to the above effect.

3.After completion of investigation challan was submittecl and charge was framed against the accused/appellants to which they plead not guilty and claimed trial.

4.The prosecution in order to prove its case examined 14 r,vitnesses and exhibited various documents and otlier items. The staternents of the appellants/accused were recordecl uncler Section 342 cr.P.C. ir-r which they denied all the allegations levelecl against them. However, they dicl t

Mulnwmd Ait 6

\ {t not give evidence on oath and did not call any D.W. in support of their defence case which was one of false implication.

5.After appreciating the evidence on record, the learned trial Court through the inrpugncd judgrnent convicted and sentenced the appellants as set out earlier in this judgment. Hence, the appellants have filed this appeal against their convictions and sentences.

6.The facts of tl're case as well as evidence produced before the trial court find an elaborate mention in the impugned iudgment dated 30.03.2022 passed by the hial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

7.Learned counsel for the appellants have contended that the appellants are completely innocent of any wrong doing and that they have been falsely implicated by the police in order to show their efficiency; that they were not present at the time of any raid on the house in question and as such they did not fire upon the police; that the weapons and other items recovered from them were all foisted; that they had nothing to do with any yellow rickshaw and/or any weapons or explosives which might have been found in it or any weapons/explosives recovered from the house; that their judicial conlessions which had all been rehacted were not made voluntarily but on account of torture and as such the conlessions of the appellant could not be safely relied upon; that their was no evidence of any conspiracy and this was llot a case of waging war against the State of Pakistan and as such for any or all o( the above reasons the appellants should be acquitted of the charge by being extended the benefit of the doubt. In support of their contentions they placed reliance on the cases of Raza and another v. Tlre State and 2 others (PLD 2020 Supreme Court 523), Muhammad Azhar I'Iussain and another v. The State and another (PLD 2019 Supreme Court 595), Azeenr l(han and another v. Mujahid I(han and others (2016 SCMR 274), Muhanrmad lsmail v. The State (2017 SCMR 7l3\,Mazhar alias Fouji and another v. The State (2016 YLR 2815), Riaz Hussain v. The State (2001 SCMR 177), Shafqat Mehmood and others v. The State (2011 SCMR 537), Gulfam and another v. The State, MuhanuuaiAil 7

\fi (2017 SCMR 1189), Noor Islam v. Ghani ur Rehman and another (2020 SCMR 310), Muhanrnrad Akram v. The State (2009 SCMR 230), ]oygun Bibi v. The State (PLD 1960 Supreme Court (Pak.) 313), Muhammad Pervez arrd otlters v. The State (2007 SCMR 670), Hafiz Muhammad Arslrad v. The State (PLD 2007 Lahore324), Tariq Pervez v. The State (1995 SCMR 13.15), Multaurtrtnd Amin v. The State (PLD 2006 Supreme Court 219) and Orangzaib v. The State (2018 SCMR 391).

8.On the other hand learned Additional Prosecutor General appearing on behalf of the State has fully supported the impugned judgment. He has contended that the aPpellants were all arrested on the spot after an encounter with the police during which one of the accused side was killed; that illegal weapons were recovered from them and a massive amount of explosive devices in the rickshaw outside the house and in the house itself where the accused were residing and there was ever"I a rental agleement for the house which was recovered in the name of one of the accused; that the confessions of the appellants were made voluntarily and could be safely relied upon; that empties found at the crime scene matched that of the weapons recovered from the appellants tfuough a positive FSL report, the report on the explosives lvere all positive and their confessions proved their conspiracy to wage war on Pakistan and thus the appeals be dismissed and the confirmation reference answered in the affirmative. He has placed reliance on the cases of Nazir Ahmed v. The State (2023 SCMR 1299), Javed Iqbal and others v. The $tate (2016 SCMR 787), Binrbadhar Pradhan v. The State of Orissa (PLD 1957 Supreme Court (lnd.) 68), Manjeet Singh v. The State (PLD 2006 Supremc Court 30), Dadullah and another v. The State (2015 SCMR 856), Joygun Dibi v. The State (PLD 1960 Supreme Court (Pak.)

313)and Muhamnrad Yaqoob v. The State (2020 SCIvIR 853).

9, We have lrearcl thc argunrents of the leaured counsel for the appellants as well as by learned Additional Prosecutor General Sindh, gone through the entire evidence which has been read out by the learned counsel for the appellants, and the impugned judgment with their able-

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Milunnai Ail 8

l{>' assistance and have considerecl the relevant law including the case law cited at the bar.

10.After our reassessment rrf the evir{cnce we find that the prosecution has provetl beyontl a rcasonnble rloubt tfte charge against the appellants for which they were convicted nncl scntcncccl in respcct of offences under 5.353, 324, 427 PPC, S.4 apd 5 of the Exploslves substances Act 1908, 5.23(1) (a) SAA, S. 7(1) (lr) ATA antl for an offence under 5,6 (2) (ee) ATA 1997 anrl untler the Thircl Schedule serial No,3 R/w 5.6(2) (a), (b), (c) and

(tl)antl S.21 (I) ATA for aiding and abetting such offences keeping in view tl'rat each criminal case rnust be decided on its own particular facts and circumstances for the following reasons;

(a)That the FIR's were all lodged with promptitude leaving no time for the police to concoct a false case against the appeilants with all the appellants being nominated in the FIR's with specific roles.

(b)According to the evidence of PW 2 Muhammed Shoaib he received intelligence from DIG CTD that a foreign agency was planning to make a huge terrorist attack against an important Government building in Karachi. Resultantly on the orders of the high ups he set up a team to locate these terrorists and contacted his spies and informers in respect of such information. On 08.02.2021 he received spy inlormation that suspicious persons who looked like strangers with a yellow Rickshaw without number plate and loaded with suspicious bags were available at House L-1, Shah Latif town district Malir. He contacted BDU cl-rief inspector Kashif Jamal who he told to meet hirn at star gate. He then left the PS with 4 rnobiles and APC with a large nunrber of police officers duly armed with official weapons and surroundetl the house in question. Accused persons in the house at about 4.30am opencd fire on the police party. The persons in the house refused to surrerrder and l^re directed the police to return fire. During the encountcr orle persorl atternpting to escape from the house was shot arrd the police APC was hit by 4 bullets fired from the persolls in the house one of which hit its mirror. Then ASI Raja Bashir tl'rrew three stun grenades inside the house and the shooting stopped. The police then entered the house and found 5 persons semi conscious. All 5 were apprehended on the spot and each were found to have an unlicensed fire arm in tl-reir Mulnmuad Artl 9

\ a

pusscsslun. A rcntnt ngrccmcnl for thc ltousc was alstr rccttvcrcrl frtttn lltcm nkrrrp, wlth rnaps of prrrmincnt rites in Krtrnclrl lrrcludinll tha lilnrlh Aescrnbley. On thc pointation of tltc nc'cunctl n lnr11c nntotlnt of cxplosivcs and explrrsivc tlcvlecs wt't'c ftunttl ln tlrc yclkrw rlck.cltaw which was maclc slfc by I'W I Knshlf frrlnl wlto wan tlrc Ill)U expert which he hntl lrrttulllrt wlth lrlm, A lor1le amount of ammunition, ly(.nil(l('!r, otltcr cxltloslvc r.lcvlccs incl ucl ing su icidc jackets, ttails atttl bnll bcnrlrrgs worc also recovered from the house atrtl nrarlc safc by tlrc llDU expcrt and sealecl all of which wcrc ttutcd dowtr lrr lhc masltlrnama of arrcst and rccovery.

"l'his cyc witness hacl no ill will or enmity with the accused antl ltad no reason to irnplicate them in a false case rather he rvas acting or1 spy information. FIe was a not a chance witness. He gave his evidence in a natural manner and was not dented despite a lengthy cross examination and his evidence was not improved on materially from his 5.154 Cr.PC statement which he made on the spot immediately after tl're incident which was sent to the PS for lodging the FIR's. We find his evidence to be reliable, trust worthy and confidence inspiring and we believe the same.

(c)His evidence is coruoborated in all material respects by PW 8 Muhammed Dilwar who was the mashir of arrest and recovery. PW 1 Kashif Kamal the BDU expert also corroborates tl're rnaking safe of all the explosive substances found in the yellow rickshaw and the house lvhere the accused were arrcsted from irnmediately after the encounter wlro also proeluccd positivc ccrtificates in respc.ct of the cxplosivcs, Thc same considerations apply to their evitlence as to PW 2 Muharnnrctl Shoaib

(d)PW 5 Sannullnh wlto was a part of thc' raiding party also corroborales tltc evklcncc of PW 2 Muhantnted Shoaib from lcavinl; the IS to tlre unctrunter lo cntering the house antl I'W I Knslrif l(arrtnl irtspr,cting tlre explosivcs in the. llickuhnw. lle nkio carriurl out thu 5.174 Cr.l,C procccdings in respect o[ tlra l)ot'ri(]n wlro was slxrt attcnrpting to escape frorn lhc lruuse wlxr tlierl fronr firc arnr injuries before bcing sent to hospital via chippa ambulance whose evidence is corroborated by I'W 6 Klrafecl Ahmecl. The cleath of the cscapee through firearm injury was also corroborated by the medical evitlence. PW 4 Shakeel who was also a part of the raitling party also corroborates the evidence of PW 2 Muhammed Shoaib from lcaving the PS to the encounter t Muhennul Ar{ 10

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entering the house and PW 1 Kashif Kamal inspecting the explosives in the Rickshaw. I{e took PW 2 Muhammed Shoaib's 5.154 Cr,PC statement back to the PS and gave it to PW 3 Safdar for lodging the FIR's. All the 5'161 Cr.PC statements of these witnesses were taken with promptitude. The satne considerations apply to their evidence as to PW 2 Muhammcd Shoaib.

We cau couvict on the evidence of these eye witness alone though it would be of assistance by way of caution if there is some corroborative/ suppoltive evidence. In this respect reliance is placed on the cases of Mulrammad Ehsan v. The State (2006 SCMR fisn. As also found in the cases of Farooq Khan v. The State (2008 SCMR 917), Niaz-ud-Din and another v. The State and another (2011 SCMR 725) and Muhammad Ismail vs. The State (2017 SCMR 713). That what is of significance is the quality of the evidence and not its quantity and in this case we find the evidence of these eye witnesses to be of good quality and believe the same.

(u)The rental agreement which was recovered at the spot was made befween PW 9 Malik Akbar Hussain the owner of the properfy and appellant Gul Muhammed. PW 9 Malik Akbar Hussain gave evidence to this effect and the fact that Gul Muhammed made regular rental payments. He produced the original rental agreement which had even been lodged at the local PS. This agreement directly links the appellants to the house where the rickshaw \^/as parked outside with all the explosive devices and the explosives and other items found in the house. He was an independent witness. He was not a chance witness as he dealt in real estate. He lvas not dented during cross examination and gave his evidence in a natural manner which we find to be reliable, trust rvorthy and conficlence inspiring and believe the same.His evidence totally destloys appellant Gul Muhamnted's defence case that he was not involved in tl'ris case.

(0 The ernpties recovered at the scene nratched with the weapons recoverecl from the possession of the appellants through positive FSL reports.

G) Likewise the firearm damage caused to the APC was caused by bullet shots as per FSL report.

(h)PW 13 Fayyaz Ahmed who was the IO of the case also seized

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g tlrc kot re8istcr and firearms which had been allocated to the polica who wcrc a part of the raidingparty and it was found that 4 pollcc officerc who had been allocated weapons narncty Qatllr, Sttnkcel, Iluaf ancl Umer had all discharged 11, 74,25, and 5 roundr rasPcctively cluring the encounter wlrlch nlno lcact to poritivc fi$L reports when the empties rccovcrctl nl tlrc scenc wcrc matched with their weapons' (l) lt ls truc tltat thcrc wcrc no inclcpendent mashirs to the nrrcst ancl rocovcry but it has come in evidence that this was bccausc thc housc was cordoned off and no one was pcrmittcd cntry from the timc of the operation until much aftcr nnrl as such no independent mashir was available.

O That it has not becn proven through evidence that any particular police witness had any enmity or ill will towards the appellants and had any reason to falsely implicate them in this case for instance by foisting the weapons on them and in such circumstances it has been held that the evidence of the police witnesses can be fully relied upon and as such we rely on the police evidence. In this respect reliance is placed on the case of Mushtaq Ahmed V The State (202A SCMR

(k)It is impossible to foist such a large cache of explosives, devices, wires, timers, ammunition, weapons including grenades in both a house and a rickshaw. Even otherwise, if these were to be foisted it makes no sense to foist them in two places. The rickshaw would not have been needed and all the material could have been left in the house.

(l)The rickshaw was seized and was procluced before the court (,n) That all the PW's are consistent in their evidence and even if tlrerc are some contradictions in their evidence rve consider thesc contraclictions as minor in nature and not material and ccrtainly not of such matcriality so as to affect the ;:roeccution casc ancl the conviction of the appellants. In this rcspcct rcliancc is placed on the cases of Zakir Khan V State (1995 SCMR 1793) antl I(hadinr l-lussain v. The State (PLD 2010 Supremc Court 669).The eviclence of the PW's provides a bellevabla corroboratcd unbroken chain of events from the time PW 2 Muhammed Shoaib receivec{ the terrorist alert rcport to him forming a team to trace them out to his spies locating thcm to him putting together a raiding party to the appellants entering into an encounter with the police to the r stun grenadcs knocking the appellants out to the appellants Muhanual Ait 72

\f, being apprehended on the spot with unlicensed firearms with massive explosive making devices in the rickshaw outside their house and in the house which the appellants were rentirrg to positive explosive reports to the empties rnatching the recovered weapons from the appellants to the police APC beirrg hit by bullets fired by the appellants from tlte house to a mcmbcr of tl're accused side being killed by the police during the encounter who was trying to escape from the house.

(,, Although it is for the prosecution to prove its case beyond a reasonable doubt we have also examined the defence case which in effect is false implication simplitor. However none of the appellants gave evidence on oath or called any DW in support of their defence case. Appellant Gul Muhammed's assertion tl'rat he was in custody at the time of the incident and had nothing to do with it is under mined by the evidence of his landlord PW 9 and the rental agreement which he signed for the house. Thus in the face of the over whelming prosecution evidence as discussed above we give no weight to the defence case of false implication especially as none of the prosecution l"rad any ill will or enmity towards the appellants and had no reason to implicate them in a false case.

11.Thus, for the reasons mentioned above we upl'rold tl're convictions and sentences in the impugned judgment in respect of all the appellants in respect of offences under 5.353, 324,427 PPC, S.4 and 5 of the Explosives substances Act 1908, 5.23(1) (a) SAA and S:7(1) (b) ATA.

72.With regard to the offence under 5.6 (2) (ee) ATA 1997 punishable under 51 (tf) ATA we find from the charge that the appellants had sufficient notice of this offence and were able to defend themselves against it and did so at trial and sincc the prosecution has proved this offence beyond a reasonable doubt in respect of all the appellants each of the appellants is santcncecl to lifc imprisonnrent for comnritting the offence under S.6(2) (ee) ATA.

Offences under 5.120 B r/w 121A.121 and 122 PPC.

Mulanuul Aif 13

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13.All these offences concern "waging war against Pakistan"

14.We are not convinced tfiat tfie nppellants were waging war against Pakistan. They have mnrle tro tleclaratlon of war against Pakistan. They do t- not appear to be nffilintcd with arry organlzation or counky directing thern to wage wnr 0ll Pnkistarr,

15.Waging war cannot be confused with an act of terrorism which in effect these appellants were intending to carry out'

16.As such the appellants are acquitted of all these offences and the inrpugned iudgment in respect of them is set aside and the confirmation reference is answerecl in the negative.

Offences under the Third Schedule serial No.3 lt/w 5.6(2) (r), (b), (c) and (d) of the ATA and S.21.(I) ATA

77.Since the appellants were charged with conspiracy to wage war against Pakistan the appellants were on notice to defend themselves against any offence concerning conspiracy which they did before the trial court.

18.In addition to the evidence already discussed above which has lead us to maintaining the convictions and sentences for offences under 5.353, 324,427 PPC, S.A and 5 of the Explosives substances Act 1908, 5.23(1) (a) SAA and S.7(1) (b) ATA each of the appellants made a confession before a iudicial magistrate which confessions are set out below for ease of reference;

IUDICIAI, CPNFESSION OT ACCUSED

zAr-trpur,LAI-r s/o. ISMAJL u/s.164 CR.P.C,

"l look lhe lruining ou suit'idc allncks frtwt trul lcacltt'r Qnri Fnznl lnlnl. I ktok llrc linilritrg lroru Flizlt-ul-Hirnr, Afglmnislnn, wlwre my lurclu,rs wrre Qfiri Meind €t Abu- Snlnmu, Aftcr sonrc lnys Qnri Mtdnd lurtulcd olcr trtc lo Abu-Hnbnb, wln hnd gitttttt nrc trttitrittg, in rulich tlrc il,enpoils tt explosiues u,erc inclurled. Wc nmde suffcient t ntlncks, rulwefu sonrc of llrcm were nmdt nt Ilrc uilitnrr', Milonnail Adl 14

After tlrc suffcient nttncks, rue ruent moay to Fidni Center, rdrcre we ruere kept nlone, After some tiurc, Abu-Hnbnb hmded oper me to some unknoun person in Pnkistnn, ulrcse nnnrc runs *thseqtrcntly lennted to urc ns Abfuil Wnsay, ru\rc got crossed tlrc border anrl lmnded ouer ttrc to Colouel Bisnillnlq ruho brought nrc to lfurachi nnd got prcpared lliclcslmu frotu ,trct ultich I required t<t be brought to Sittcllt Assunltly atd to rnslce suicide nttnclc tlrcrc on tlrc insl'atce of Colottcl Bisnillah" (bold added),

FESSION

MUHAMMAD S/O. LAUNG I(HAN U/S. 164

EB.P.C,

"ln tlrc yenr 2a71/2.072, nty nrceting wns tnken plnce witlt Bisnillah at tlrc tinrc rulrcn I used to uork ruitlt Rnzznq Aclnkzni, ruln runnterl to get.ruake n targeted killiry in Quettn. Tlren for tlrc snnrc zuork, I toolc autoy Bismillnh to Ihndnhnr nnrl get lim to meet ruith Rnzznq. Bismillah runs roitlt Rtzzaq up to suffcient. ln tlrc year 2020, Bisnillah contact nrc and said that an attaclc is required to be nnde at Sfidh Assentbly, mfi for malcing cooperatiorr he pronised to pay Rs,25 Lacs. Thereafter, I took tlrc hotse fu Shah Latif Town on a rent basis and took a Riclcshaut to Bisnillah, Meatwlrile, Lal Mohanunad, Zahidullah, Molmnnnad Qasim tt luanrullah lmd conrc to nre. I gaae soilrc photographs of tlrc Neu Sindh Assenfuly to Bisrnillaft" (bold adcled).

INAMU,LLAH SIO. MOLVI RAEES U/S. 164

CR.P,C.

" ln llrc yenr 20'14, Cull Aluncd got lrcld my nrceting uitlt Colonel Bisnillah, ru\rc trccd to work for Genernl Rnzznq. On the snying o/ Gull Alnncd, I ruorlrcd for Bisrttillalr nnd mnrle tnrget killittg itr Quetta. Bisnillnh nlso tauglrt nrc lrcw to use wcnporrs. After sonrc tinrc, Bisnillah got lrcld nty nrcctittg tuith Genetal Rnzznq. Tlrcrenler in llrc yenr of 20"15, I killerl sottut lteople in Quclln. Tlrcn nllcr lenping tlrc Bisrttilltilr nttd Gr,lrcrrrl Rnzznq, I workcd for lruo ymrs witlt Alutttd-ullalr Nn:rrk Bnrnlczni, ru|rc uns Clticf of sonrc orgunizntiott. Thereafter h the qenr 2A79, Bisutillah nsked nrc to uork ruitlr lim anil I starteil to work uitlr hittt. Menruulile, orr contnct uns mnde witlr Abdul Wnsny nnrl Ahnrcd Wnli, tolrc ruere in Knnrlnhnr & Knbul. Tlrcy ltoth used to work for

I

Mulunnmd Aif 15

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Indin. Then on tlrc saying of Ahmed Wnli, rue mnde nn nttnck at sonrc plnce of tlrc Qrrcttn, Thercnfter, on tlrc snying of Alnned Wali tt Colonel lSisnillnh, I nmde prcparatiort for tlrc attaclc nt Sindh Asseufuly. Sonrc of us hnrl to nnltc firing nnd Znhid and Lal Nlulmnnnael lnil to go insirle the assernbly. (bold { aclt{er-l).

IUDICIAL CONFESSION OF ACCUSED BISMILLAH

SIO. AMANULLAI{ U/S.164 CR.P.C.

"l nttr irr Pnkistmt from tlrc a{fcient tinrc, tltc ASI Mnieed €, his nccomlilice Shera nmde mnny cnses nt nrc nnd I wns npprelrcuded in nnny cnses. Tlrcrenfter, sonrc of rny people lrilletl to A.S.l. Mnjeed then to Shern, including one of my knoruing Snniullnh. Tlrcrenfter I slifted nry fanily to Knndnhnr. ln tlrc year 2072, ,,ty friend Gull Molmnntad got held nry uecting roith Genernl Razzaq Aclnkzai the Police Chief, zuho gaac nrc Rs.70 Lacs for nmlchtg targct killing in l(arachi t< Qtrctta. On tlrc instnnce of General Razznq I made tnrget killtug of suffcient people, tn ruhich Included Mtilnlt Relmmtull.nh, Moului ldrees, Mouki Yotnttrs ond so nmny other people too. Itt 20'16, the Genernl Rnzznq approinted to Nnik Molmnwmd ns nty Conmnnder nnd nlso runcle of.ficer tlrcre. After somc tinrc, ruhen I did not get unrlerstnnd Naik Muhnnmmd, I left Genernl Rnzzaq nnd. went to Alnrcrhillnh Nnzuk Bnrakzni, rclio wns a uetll seniar offcer of tha gottennnent iltstitutiott. Alunedullnh lrcld ilry meeting with Mnsoor-Andnzi, tuho kept nrc wtder sectiorr 241 nnd snid to n,e tlmt you arc now Colonel from todoy.ln 2016 €, 2017, I conunitterl so iltn,ty tnrget killitrgs. After llrc nrurder of Genernl Rnzznq, Alunefuilnh beconr itrchded in tltc gouenunent loo. I nlso urut moa1 to Knnrlnlnr. ln 20'19, un1 tueelittg wns lnld willt Abdul Wnsny, ulo ttsed lo work for ludin in Knudnlmr. Ott t|ll,' snyiug of Altrhtl-Wnsny, I trork:d for lfiu, rrlro look nrlrr3/ nrc ta Knhtl, wlrcrc I nul with Molmnrnmd Wnli Afghnni, rulp nlso used lo rtork lor lndin, wlto gol uu,at nn wilh nn rnhrctwt p(rso,r, tpln wns n suior offcer, lrc snid nw t<t cortttttil nlln*s itt nmry Cilics of Pnkistm ngnulsl lrrgr t,,oncy. In 2020, tuder tlrc directiott tt/ snid pcoyte I occoulrtutlcd lty nw nccotttpliccs tttndc n plnu for n snicide attnclc at the Slurlh Assenfuly. Tlrc said ollicers also proniserl to ltroaldc us ruitlt sonrc jaclcets, grenndcs explasiue substauccs urd gnue us sonre ,norrcy too. Itt 2020, tltc onus €t cxplosiucs wcre, Mu|lr,nmol Aril 76

slowly-slotuly recciued to . us tlrotgh uegctable aelicles, and I hnrl nmde a grofip trough Gall Molmnunnd, in ruhich iucluderl Molmnuned Qasinq lnamullalq &ill Molrcnmmd, Lal Molmnmtad, Zahidullnh nnd nrc. ln 2021., ue hircd n house fu Shalt Latil Totutt aud lceyt our entire nntrs €t explosiae substmtcc there. With tlrc help o/ our accorttplices, rue ltttt €t fit nta,ry goods irtside tlrc Riclcslnt.u, zolrich rue lnd takcn, mrl it zuas decidcd tlnt tlrc attack slmll be cottttrtittcd cluring tlrc sessiott a/ Sindh Assenfuly. All of tlrcttr ruere assigtrcil different taslcs by rue, antottg zuhiclr zuas to parlc thc rickshaw and for Lal Iilrtlrtttrtnmd fi Zahidullnh to cortrtrtit a suicide nttack, but the police apprelrcndcd us bcfore that" (bold ac{decl).

MUHAMMAD QASIM @ HAII SIDDIOUE 5/O.

MUHAMMAD AKBAR S/O. AMANULLAH U/S.

164 CR.P.C.

"Abdul Wnsay is nty relatiae, uln promised to giue nrc Rs.10 Lncs and nsked me to go nnd nrct uith Bisnillnh. Tlrcreafter I canrc to Karachi and nry nrcetitg zuas held uith Bisnillah, who asked nrc to yark a Riclcslmw at Sindh Assenrbly, to tolrich I said yes, but befure this the police apprelrcnrled us,,. (bold ac{ded).

19.It is well settled by now tl'rat we can rely on a rebacted judicial confession provided that it was made (a) voluntarily (b) with the object of telling the truth and (c) there are only minor procedural irregularities in the manner in whicll the confession was recorded.

20.In this case all the appellants retracted their judicial confessions claiming that they were not macle voluntarily ancl that they were pressurized into making the confession by the police or made to sign blank paper, There are no major procedurnl irregularities comnritted lry the magishate wl'rilst recorcling thcir confcssions as the IO in his eviclence stated that the appellants wcre returncd to judicial custody after their confessions, they were informed by the n:ragistrate according to his evidence that he was a magishate and the confessions could be used against them and they were given adequate reflection time.

Mnhomuad Ail 17

)6q

I

21,. We note however that during cross examination this defence was never taken and appears to be an after thought, When placed in juxta position with the recoveries made at the house and in the rickshaw especially explosives, bornb making material, suicide jackets, nails and ball bearings ancl the picture of the Sindh Assembly and other prominent targets in Karachi we find that the confessions were made voluntarily and with the object of telling the h'uth and rely uPon the same as against each maker/appellant.

22.When such conlessions are placed in juxta position with the other corroborative material as already discuSsed above in convicting the appellants for the offences mentioned earlier in this judgment we find that it has been proved beyond a leasonable doubt that all the appellants entered into a conspiracy and/ or aided and abetted such conspiracy to blow up the Sindh Assembly whilst it was in session which would have potentially lead to a massive loss of life (keeping in view the suicide jackets, explosives, nails and ball bearings recovered at the crime scene) the design, object and pulpose of such attack being to create terror as to fall within the purview of the ATA 1997 as held in the case of Ghulam Hussain v state (2020 PLD sc 61) and thus we convict the appellants for Offences under the Third Schedule serial No.3 of the ATA [t/w 5.6(2) (a), (b), (c) and (d) of the ATA and S.21(I) ATA and sentence them each to life imprisonment under S.7 (1) (") lo (d) ATA for conspiracy to commit each separate offence under 5.6(2) (a), (b), (c) and (d) ATA and under S.21 (I) ATA for aiding and abetting the conspiracy to commit each separate offence aforesaid and sentence each of the appellants to life imprisonment for each such separate offence.

Summary.

(a)The convictions and scntences hancled down to each of the appellants in the impugned ]urlgment are all rnaintaiued in respect of offenccs under.5.353, 324,427 PPC, S.4 and 5 of the Explosives substances Act 1908, 5.23(1) (a)SAA and S.7(1) (b) ATA.

(b)Tlre appellants are each convicted u/s 5.6 (2) (ee) ATA 1997 punishable under S.7 (ff) ATA and each sentenced to life imprisonment.

n

Mulnnnad Aril 18

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(c)The sppsllnsls nre encft convlcletl for Offences under the Third Schetlule ATA sminl No.3 t(/rv 5.6(2) (a), (b), (c) antl (d) of the ATA nntl ench scrttcncc.tl to tlfc lnrprlsonmcnt undcr 5.7 (1) (a) to (d) krr cotrspirncy to cotuntit enclt separate offence under 5.6(2) (a), (t),(c) nnrl (l) ATA.

(l)Thu appellonts ore each convictccl untler S.21 (l) ATA for aiding artrl abetting the conspirncy to commit such offences in O above atrtl arc eaclt sentenccd to suffer life irnprisonment under S.7(1) (a) to (t) ATA.

(e)The nppellants are each acquitted of the charge for offences under 5.120 B r/rv 121A, S. 121 and 122 PPC with the conlirmation reference being answered in the negative.

(f)After serving out their sentences appellants Zahidullah, Inamullah and Muhammad Qasim all being non Pakistani nationals be deported to Afglianistan which is their country of origin.

23.As such the appeals partly allowed and partly dismissed and the confirmation reference is answered in the negative however the appellants shall each have the benefit of s.382 (B) cr.pc and all the sentences shall run concurrently.

I

,W,rl"ol.r

]UDGE

Mtlunrlr,l An!