P L D 2009 Peshawar 1 (PLP)

SYED MUSADIQ HUSSAIN GILLANI, J.

Appellants Abdul Rafi, alias Rafiq, Juma Khan, and Siddiqullah, were charged along with their acquitted co-accused Muhammad Farooq, and absconding co-accused Qari Khalil, Shaukat alias Javed, and Syed Nazar Shah, in case F.I.R No.491, dated 26-12-2004, under sections 302/435/436/342/34, P.P.C./S.13-A.O. read with Section 7/12 Anti-Terrorism Act, of Police Station Chitral, for causing Qatl-e-Amad of Hakim Muhammad, Watchman, and Sher Khan, driver and setting ablaze official vehicles parked in the garage of the office of Agha Khan Health Centre in Mountain-Inn Hotel in Chitral.

2. After trial by the Court of Judge Anti-Terrorism Court at Malakand Division of Saidu Sharif, Swat, appellants Siddiqullah, Abdul Rafiq alias Rafiq, and Juma Khan were convicted and sentenced to A.T.A. to death under Sections 302/34/109/120-B, P.P.C. read with Section 7(a) A.T.A. They were also directed to pay a fine of Rs.2 lack each, as compensation to the legal heirs. of the deceased under Section 544-A, Cr.P.C., default to suffer one year S.I. each. They were also convicted and sentenced to 10 years R.I., and a fine of Rs.2 lack each, payable to Agha Khan Health Centre for the loss of vehicles, under section 7(d)(g) of A.T.A. Similarly, these appellants were convicted and sentenced to one year imprisonment each with a fine of Rs.10,000 each, or in default to suffer two months' S.I. under section 11-F(2)(g) of the A.T.A. However, Muhammad Farooq, co-accused of the appellants, was found innocent, and acquitted, vide the same judgment dated 14-12-2006.

3. Aggrieved by the convictions and sentences, appellants preferred Appeals Nos.794 and 799 of 2006. Former was filed by Siddiqullah, whereas the latter was jointly filed by Abdul Rafiq and Juma Khan, while the trial Court has sent Murder Reference No.30/2006 for the confirmation of death awarded to the appellants. Both the appeals, arising out of the same impugned judgment, are disposed of through this single judgment, along with the Murder Reference.

4. According to record, P.W. Muhammad Qayyum, A.S.-I., received information from Control Room, Chitral about eruption of fire in Aga Khan Health Centre, on which he along with police party went there. On reaching the spot, he saw vehicles of Fire Brigade and its staff, busy in extinguishing the fire in the Garage of Agha Khan Health Centre. PW Amir Baig, Chowkidar of Aga Khan Health Centre, reported the matter to P.W. Muhammad Qayyum, A.S.-I., that at 2400 hours, on completion of his duty, he woke up the other Chowkidar Hakim Muhammad, and he himself occupied the, cot, lying in the Veranda. At about 0100 hours, he heard report of fire shots, and Hakim Muhammad Chokidar, shouting that he had been hit. He stood up, and came to the flowers row, and while sitting there, he saw four persons with muffled faces, of whom one was having fire arm, and the other a pistol, while two were without any weapons. The said four muffled persons started roaming in the office. In the meantime, Sher Khan, Driver, came out of his room, and he was also fired at, and-was done to death. After that, those persons went to the garage, and set on fire the vehicles parked therein. The two deceased, and he belonged to Sunni Sect, and the occurrence was witnessed by Shahabullah, driver, and other staff with their own eyes. This report of P.W. Amir Baig was recorded, vide Murasila Exh. PA/1, which was sent to the Police Station, and case was registered against four unknown persons. During the investigation, appellants Juma Khan, Abdul Rafi alias Rafiq, and their acquitted co-accused were arrested, and confessional statements of appellants Abdul Rafiq and Juma Khan were recorded. Appellant Siddiqullah was also arrested and challan against them was sent to the Anti-Terrorism Court, Malakand Division at Saidu Sharif, Swat.

5. After charge, on behalf of the prosecution, the statements of P.Ws. Muhammad Baig, S.-I., Bahadar Khan H.C., Muhammad Nawab Khan, Naib Subedar, Said Wali Shah, Constable, Inayatullah Inspector, Naseruddin, Haji Murad, Dauran Shah Constable, Muhammad Qayyum A.S.-I., Muhammad Jan Khan S.-I/Investigating Officer, Ghulam Nabi Constable, Mubarak Ahmad 1/HC, Dr. Shahabuddin, Dr. Fazal Rabbani, Attaur Rehman D.S.P., Mahboob Ali Khan, Inspector, Ali Murad, S.-I., Rahman Ali Shah, S.-I., Haji Hussain Khan, Sardar Nawaz Khan S.-I., Amir Baig, Muhammad Wali Shah S.H.O., Babu Muhammad, Sher Azam, Muhammad Shah Khan S.H.O., Ali Hussain, Said Rehman Shah, Abdul Ghaffar, Illaqa Qazi, Munir Ahmad, Nawab Khan, and Mir Sawad Khan, were recorded.

6. P.W.1 Muhammad Baig, S.-I., was marginal witness to the recovery Memo, Exh-PW.1/1, vide which the Investigating Officer had taken into possession the original Register, Exh.P1, belonging to Sawana Hotel, Chitral. P.W.2 Bahadar Khan, H.C., registered the case, vide F.I.R, Exh.PA, on receipt of Murasila, Exh.PA/1, in the Police Station. P.W.3 Muhammad Nawab Khan, Naib Subedar of Chitral Scouts, being Expert of Bomb Disposal, destroyed the grenades through blasting, allegedly recovered from the Culvert at Faiz Abad Hoon, and to this effect, he prepared certificate, Exh-PW.3/1. P.W.4 Said Wali Shah Constable was marginal witness to recovery Memo, Exh.PW.4/1, vide which the Investigating Officer had taken into possession the burnt vehicles, bearing registration and CL-1302, along with keys, and registration books. P.W.5 Inayatullah, Inspector/S.H.O., arrested the appellant Abdul Rafi, alias Rafiq, on 2-1-2005, and prepared his card of arrest, Exh.PW.5/1. At the time of arrest of appellant Abdul Rafiq, on his personal search, he recovered from him three currency notes of Rs.100 denomination, one currency note of Rs.50 denomination, and two currency notes of Rs.10 denomination. On 3-1-2005, he conducted house search of appellant Abdul Rafiq, but recovered no arms. However, he recovered four letters written to one Muhammad Qazafi, and other persons belonging to the organization Sipah-e-Sahaba, along with four envelopes, seven pieces of photos belonging to Jihadi organizations, and two copies of daily "Mashriq" dated 15-9-2001 and 24-11-2001, in which photos of Taliban leaders were shown in action. He also took into possession the register of Customers of Sawana Hotel, vide Exh.PW.5/3. On 4-1-2005, on the pointation of said appellant Abdul Rafiq, he again inspected the spot, vide pointation Memo. Exh.PW.5/4. He recorded the statements of witnesses. He also got recorded the statements of P.Ws Abdul Hakim, Haji Babu Muhammad and Muhammad Ayub under section 164, Cr.P.C., and submitted incomplete challan on 13-1-2005. After completion of investigation, he submitted complete challan in the ease. P.W.6 Nausheruddin is marginal witness to the recovery Memo, Exh.PW.5/3, vide which the house search of the appellant Abdul Rafiq was conducted. P.W.7 Haji Murad, brother of deceased Hakim Muhammad Khan, in his statement charged one Rahim, and Qurban Jan, due to land dispute with them, but later on he exonerated the said persons. P.W.8 Dauran Shah, Constable, had taken the Murasila to Police Station, on the basis of which, case was registered. P.W.9 Muhammad Qayyum Khan, A.S.-I., recorded the report in the shape of Murasila, Exh.PA/1, which he had dictated to Bahadar Khan, Muharrir. P.W.10 Muhammad Jan Khan, S.-I., produced appellant Siddiqullah before the Court for police custody. P.W.11 Ghulam Nabi, Constable, was marginal witness to recovery Memo Exh.PW.11/1, vide which the I.O. had taken into possession, the blood stained piece of mattress, belonging to deceased Hakim Muhammad, blood from the spot, and blood stained muffler of the said deceased. In his presence, the Investigating Officer had also taken into possession the blood of deceased Sher Khan, Driver. He was also marginal witness to recovery Memo. Exh.PW.11/2, vide which the Investigating Officer had taken into possession one shotgun (.12 bore) Italy made, Exh.P.24, along with two cartridges of same bore, vide Exh.P.25 and NIC vide Exh.P.26, Pension Membership Card, Exh.P.27, one piece of document, Exh.P.28, one piece of Taveez Exh.P.29, receipt of bedding, Exh.P.30, receipt of Rs.1710, Exh.P.31, and Bechech No.183, Exh.P.32 belonging to Hakim Muhammad deceased. He was also marginal witness to recovery Memo, Exh.PW.11/3, vide which the Investigating Officer took into possession 7 empties of .7.62 bore, Exh.P.33, two empties of .30 bore, Exh.P.34, a dagger, Exh.P.35, one Magazine, Exh.P.37, having five live rounds of 30 bore, one used bullet, Exh.P.38, its cover, Exh.P.39, and spent bullet, Exh.P.40. Similarly, in his presence, vide recovery Memo, Exh.PW.11/4, the I.O. had taken into possession the burnt main lights of the vehicles, burnt side mirrors, and two damaged wind screens of the vehicles. He also completed the process under section 204, Cr.P.C., against the absconding accused. P.W.12 Mubarak Ahmad, I.H.C., stated that on receipt of phone call at 1-45 a.m. by Bahadar Khan, Muharrir, he started from the house to the Police Station; and in the way, he saw Juma Khan, one of his co-villagers, who on enquiry, replied that he had gone to Abdul Hakim Medical Store, for bringing medicines. He was also entrusted with warrants, Exh.PW.12/1, and Exh.PW.12/2, against the absconding accused Qari Khalil, and Syed Nazir Shah. P. W.13 Dr. Shahabuddin conducted autopsy on the dead body of deceased Sher Khan, Driver, and found the following:-- External appearance No ligature mark. Blood stained wounds on head, nose and ear. The body was in stout condition. The deceased was wearing blue shirt, and green trousers, having two taveez on his neck, one was on right arm and wrist watch. He cleaned the head, neck, nose and ear but found no wound there. Entrance Wound Right 8th intercostals space plus left sub-clabian entrance wound. Left mid-auxiliary exit plus left mid-upper arm i.e. the bullet torn the area, and touched the left mid-upper arm. Left buttock posteriorly had the bullet wound, and right thigh posteriorly. No exit wound of both the above mentioned wounds. Internal Examination: Thorax

left 4th rib fractured, tear of pleurae, right lung was ruptured. Left lung was ruptured, and bullet from left lung was extracted and handed over to police. In blood vessel, pulmonary vein ruptured by the bullet, already recovered from the pleurae, and handed over to the police. Cause of Death: In his opinion, the cause of death was cardio-respiratory arrest as a result of bullet injury to the chest through fire arm. The probable time between injury and death was stated to be ten to twelve minutes, while the time between death, and post mortem was opined as 18 hours. The Post-mortem report, Exh.P.M., was correctly signed by him. P.W.14 Dr. Fazal Rabbani examined the dead body of deceased Hakim Muhammad Khan, and found the following:-- It was a stout body. The young man was wearing blue trousers, black sweater, and grey jersey and grey socks. Two taveez in the neck and a wrist watch on the let arm. Wounds: (1) Surgical emphysema-left side of chest. (2) Entrance wound at 10th intercostals space left side body posterior auxiliary-line. (3) Bullet wound at right supra scapular area. (4) Bullet wound at right upper arm. . (5) Through and through bullet wound at proximal phalanx of right index finger. (6) Entrance wound below right eye, crossing through the nose and eviscerating the left eye. Thorax:

1. Rupture of pleurae. (2) Repture right lung and left lung. Pericardium and right Sterium and Pulmonary vein ruptured. Cause of Death: As per Doctor's opinion, the cause of death was due to respiratory arrest as a result of fire arm injury to chest. The probable time between injury and death was stated to be few minutes while probable time between death and post-mortem was opined as 18 hours. The Post-mortem report, Ex.P.M/2, was correctly signed by him. P.W.15 Attaur Rehman Khan, DSP, vide his application, Exh.PW.15/1, got recorded the confessional statement of appellant Abdul Rafiq, alias Rafiq. P.W.16 Mehboob Ali Khan, Inspector, during house search of appellant Juma Khan, recovered one computer set, speaker player, two CDs, 18 cassettes, photo copies of elders of the organizations, one small copy having telephone Numbers, five magazines of different newspapers, two weekly newspapers of Zarb-e-Momin, and seven books. This witness also conducted search of the shop of the appellant Juma Khan, and recovered, vide recovery Memo. Exh.PW.16/2, one tape recorder, 29 cassettes, 4 magazines, one diary, one piece of paper having telephone Numbers, one file cover and 35 CDs. Appellant Siddiqullah was arrested by Gadoon Police, District Swabi. This witness went there and brought the appellant to Swat on 26-4-2005, and on the following day got his police custody of three days P.W.17 Ali Murad Khan brought injury sheets of both the deceased along with their clothes, and handed over the same to the Investigating Officer who took them into possession, vide recovery Memos. Exh.PW.17/1 and Exh.PW.17/2. He also took into possession the blood stained clothes of deceased Sher Khan, Driver. Similarly, he handed over the dead bodies of the deceased to their legal heirs for burial, vide Memo Exh.PW.17/3. P.W.18 Rahman Ali Shah, S.I. conducted house search of absconding accused Qari Khalil, but recovered nothing therefrom. P. W .19 Haji Hussain Khan, brother of deceased Hakim Muhammad, charged the appellants for the murder of his brother. P.W.20 Sardar Nawaz Khan, I.H.C., escorted the dead bodies from the spot to the Hospital. P.W. Amir Baig reproduced the contents of his report. He also identified the dead bodies of the deceased in the hospital. P.W. Muhammad Wall Shah, S.H.O., raided the house of Syed Nizar Shah, absconding co-accused, but accused was not available. P.W.23 Baba Muhammad, was marginal witness to pointation Memo, Exh.PW.5/4, vide which the appellant Abdul Rafiq had pointed out different places on the spot, and the petrol Pump from which fuel was purchased, as well as the Hotel, Tandoor, and Masjid. P.W. Sher Azam had examined five vehicles of Agha Khan Health Centre, and issued certificates, Exh.PW.24/1, in this respect. P.W.25 Muhammad Shah Khan, arrested the appellant Siddiqullah on 17-4-2005, and issued his card of arrest. PW Ali Hussain is marginal witness to recovery Memo, Exh.PW.16/1, vide which the Investigating Officer had taken into possession some articles during search of the house of appellant Juma Khan. P.W. Syed Rehman Shah is also marginal witness to recovery Memo, Exh.PW.22/1, vide which, while searching the house of absconding co-accused Syed Nizar Shah, the Investigating Officer took into possession some articles. P.W. Abdul Ghaffar, Illaqa Qazi, recorded confessional statements of appellants Abdul Rafiq, alias Rafiq, and Juma Khan on 6-1-2005 and 10-1-2005 respectively. The confessional statements and certificates, Exh.PW.28/1 to Exh.PW.28/3, and Exh.PW.28/5 to Exh.PW.28/7, were signed by him. P.W. Munir Ahmad was marginal witness to recovery Memo, Exh.PW.17/1, and Exh.PW.17/2. P.W. Nawab Khan was marginal witness to recovery Memo, Exh.PW.16/2. P.W. Mir Sawad Khan, partly investigated the case. C.W. Noor Muhammad was also examined in this case who was marginal witness to recovery Memo, Exh.PW.31/1, vide which the Investigating Officer had taken into possession one Kalashnikov, Exh.P/72, four magazines, Exh.P/73, another magazine, and two grenades Exh.P.75, which were recovered from the culvert beneath the road on the pointation of one Navidud Din. On conclusion of the prosecution evidence, the appellants were examined under Section 342, Cr. P. C., who denied the allegations of the prosecution, and pleaded false implication in the case. The trial Court after hearing the arguments, and evaluating the evidence, recorded conviction and sentence against the appellants, vide Para-2 above of the judgment in hand.

7. Learned counsel for the appellant Siddiqullah, with professional skill, argued to the point by stating that it was a night occurrence, and no person was charged in the report. During investigation, appellant Abdul Rafiq, alias Rafiq, was arrested on 1-2-2005, Siddiqullah on 17-4-2005, and Juma Khan on 30-12-2004. The confessional statement of appellant Abdul Rafiq was recorded on 6-1-2005, and that of Juma Khan on 10-1-2005. There is no direct, or circumstantial evidence against the appellant Siddiqullah, and the retracted confessional statements recorded during the police custody were not corroborated by any other evidence, and as such not sufficient for conviction. Learned counsel for the appellant Siddiqullah contended that under Article 43 of Qanun-e-Shahadat Order, 1984, a retracted confession cannot be used against maker, or co-accused, unless it is voluntary and corroborated by other evidence, and found confidence inspiring. In support of his arguments, he relied on the cases reported as 2003 SCMR 1419, and PLJ 2006 Supreme Court-9 (sic).

8. Similarly, learned counsel for the appellants Abdul Rafiq and Juma Khan, stated that the confessional statements were retracted, and not voluntary. Similarly, he stated that evidence consisting of pointation of the spot by the appellants was inadmissible, as no recovery of anything was effected on the pointation of the appellants, and the spot was already known to the Investigating Officer. He stated that the appellants after recording so-called confessional statements, were again handed over to the police by the Magistrate, and the confessions recorded after delay of 24 hours, being doubtful, could not be relied upon in view of recent judgment of the Supreme Court of Pakistan, reported as 2007 SCMR 670.

9. It may be noted that the legal heirs of the deceased did not contest the case, due to compromise, as stated at the bar. However, learned counsel for the State vehemently argued that the confessional statements were inculpatory, because the makers were privy to the entire episode, and on the basis of confessions of two appellants alone, conviction can be recorded. In support of arguments, he relied on PLD 2007 Supreme Court 202 (D).

10. The entire record was scrutinized with care, which revealed that there is no evidence against the appellants, either direct, or indirect, except the retracted confessional statements of the appellants Abdul Rafiq alias Rafiq, and Juma Khan, which were recorded during police custody by P.W. Abdul Ghaffar, Illaqa Qazi (Criminal), Boni, Chitral. Admittedly, this witness had also granted police custody of the appellants. Similarly, he did not mention the time of recording the confessional statements of both the appellants. It appears from the confessional statements that the makers did not attribute any role to themselves in the commission of the offence. The confessional statements are, therefore, exculpatory in nature. The confessional statement of appellant Abdul Rafique was recorded after four days of police custody, while that of appellant Juma Khan was recorded after eleven days of police custody. This delay in recording confessions was not explained. Thus the confessions were certainly not voluntary. Indeed, under Article 43 of Qanun-e-Shahadat Order, 1984, on the basis of confessional statement alone, conviction can be recorded, and it may be used against co-accused, provided it is proved, inspiring confidence, and corroborated by the other reliable, and cogent evidence. The corroborative evidence is lacking in this case, and we do not deem it safe to rely only on the retracted, and un-corroborative confessional statements for the conviction of the makers, and the co-accused. Needless to say that no other incriminating evidence is available against the appellants to connect them with the crime: In the circumstances, the prosecution was unable to prove its case against the appellants to the hilt, and they were not liable to conviction. The convictions and sentences of the appellants recorded by the trial Court are, therefore, not sustainable which are hereby set aside.

11. Resultantly, on the acceptance of both the appeals, the appellants Siddiqullah, Abdul Rafiq, alias Rafiq, and Juma Khan, are acquitted of the charge, who be released forthwith, if not required in any other case. On acceptance of the appeals, the Murder Reference No.30/2006 is answered in negative. H.B.T./166/P Appeals accepte