1999 P Cr (PLP)

MIAN NAZIR AKHTAR, J.

By this judgment we propose to decide Criminal Appeal No.275/1991 filed by Haq Nawaz, convict and Criminal Appeal No.313/1991 filed by Zaki Ullah, Muhammad Arif, Muhammad Hussain alias Kaka, Waseem Aslam and Muhammad Hanif in which common questions of law and facts are involved.

2. Haq Nawaz appellant along with 7 others named Zaki Ullah, Muhammad Arif, Muhammad Hussain, Waseem Aslam, Muhammad Hanif, Riaz Basra, (absconder) and Javaid Ahmed, (absconder), was tried for committing murder of Aqa-i-Sadiq Gunji, Director General, Khana-e-Farhang, Islamic Republic of Iran. The case was registered against the appellant and others vide F.I.R. No.285 dated 19-12-1990 at Police Station Race Course Road, Lahore.

3. Haq Nawaz, appellant, was convicted for an offence under Sections 302/120-B of the P.P.C. and Section 3 of the Explosive Substances Act, 1908 and sentenced as under:-- Section 302 P.P.C Death Section 120-B, P.P.C R. I for 7 years Under Section 3 of the Explosive Death Substances Act, 1908 Zaki Ullah, Muhammad Hussain alias Kaka, Muhammad Arif, Waseem Aslam and Muhammad Hanif were convicted under Sections 302/120-B P.P.C. and sentenced to imprisonment for life. The Trial Court also convicted Riaz Basra and Javaid Ahmad (Absconders) under Sections 302/120-B P.P.C. and sentenced them to imprisonment for life with a fine of Rs.20,000/- each and in default of payment of fine to undergo R.I for six months each vide judgment dated 13.3.1991.

4. The tragic incident in which Aqa-i-Sadiq Gunji deceased, unfortunately, lost his life, took place at 7-30 p.m. on 19-12-1990 within the premises of Hotel International, the Mall, Lahore. The written report (Exh.P.M.) about the occurrence was submitted by Majeed Shahanshanipur (P.W.26), before Munir Hussain Sherazi (P.W.29) at 8-25 p.m, on the same day in the Services Hospital on the basis of which the formal F.I.R. (Exh.P.M./1) was recorded by Ghulam Sarwar, A.S.-I. (P.W.8), at 8-40 p.m. on the same day at Police Station Race Course Road, Lahore.

5. It is stated in the F.I.R. that Aqa-i-Sadiq Gunji, deceased came to attend a reception in the Hotel International along with Muhammad Ali Mokaram and Hasan Rizvi in a Mercedes Car bearing No.CC-29 A.F., driven by Mukhtar Shah, Driver. The complainant along with some other Iranians and Pakistani friends including Dr. Masoom Abidi, Mujahid Hussain and Qaiser Abbas Bokhari were present near the stairs of the main-gate of the hotel to receive the guests. As soon as Aqa-i-Sadiq Gunji and Muhammad Ali got down from the car, 3/4 persons standing in the corner came forward and one of them clad in a green jacket and Shalwar Kameez fired at Aqa-i-Sadiq Gunji and Muhammad Ali Mokaram with a klashnikov who were seriously injured and fell down on the ground. The other assailants also fired and then ran away from the spot, The Mercedes Car in which Aqa-i-Sadiq Gunji etc., had reached the place, was also damaged due to the firing. One of the assailants who was on a motorbike was chased by the complainant along with Mujahid Hussain and Qaisar Abbas Bokhari in a motor-car bearing No, LHZ 2937. During the chase the number of motorcycle was noted as LHU 6310. Near Mozang Crossing (Qartaba Chowk) there was a police Naka. The police stopped the accused who was coming on the motorcycle. He fell down and his klashnikov went off accidentally causing injuries to him on his face. The complainant party with the help of the police apprehended the accused who disclosed his name as Haq Nawaz son of Sheikh Khalid. He was taken to the Services Hospital. Aqa-i Sadiq Guhji and Muhammad Ali Mokaram had already been taken to the said hospital. Later, it was learnt that Aqa-i-Sadiq Gunji had expired. According to the complainant, the occurrence was witnessed by himself as well as Dr. Masoom Abidi (not produced) Syed Mujahid Hussain (P.W.20), Qaisar Abbas Bokhari (P.W.21) and others.

6. Before proceeding further, it may be mentioned that the prosecution had submitted challan against 8 accused persons named in para 2 above, out of whom 6 accused persons, i.e. Haq Nawaz, appellant in this appeal and Zaki Ullah, Muhammad Hussain, Muhammad Arif, Muhammad Hanif and Waseem Aslam appellants in the connected appeal were defended by the learned counsel engaged by them. For Riaz Basra and Javed Ahmad, proclaimed offenders the Court appointed Messrs Nawaz Bhatti and Noor Muhammad Chandia, Advocates as their counsel at the State expense. Out of them only Mr. Nawaz Bhatti, Advocate appeared in the case on 21-1-1991, 22-1-1991 and 12-4-1991 but did not take part in the proceedings by cross-examining the P. Ws.

7. Haq Nawaz appellant was charged under sections 302, 144, 120-B of the P.P.C. and section 3 of the Explosive Substances Act, 1908 while Zaki Ullah, Sh. Muhammad Arif, Muhammad Hussain alias Kaka, Waseem Aslam appellants and Javed Ahmad (absconder) were charged under Section 302, 114 and 120-B of P.P.C. and Muhammad Riaz Basra (absconder) and Muhammad Hanif appellant were charged under Sections 302, 109 and 120-B of P.P.C. They pleaded not guilty and claimed to be tried. In order to prove its case the prosecution produced as many as 30 witnesses including 4 eye-witnesses named Tariq Mahmood (P.W.18), Mujahid Hussain (P.W.20), Qaisar Abbas Bokhari (P.W.21) and Majeed Shahanshanipur (P.W.26), the complainant.

8. Habib Ullah Goraya, M.I.C. (P.W.1) recorded confessional statement of Haq Nawaz, appellant a/s 164 of.the Cr.P.C. in the General Hospital, Lahore on 19-I-1991. He first made a query from the doctor whether the injured accused was fit to make a statement and on an affirmative reply recorded his statement (Exh.P.C./3).. He obtained his thumb mark (Exh.P.C./4) and signatures (Exh.P.C./5). Muhammad Afzal Khan Leghari, M.I.C..(P.W.2) had conducted the identification parade on 3-1-1991 at 12-30 p.m. in the Central Jail, Kot Lakhpat, Lahore, in respect of Waseem Aslam, appellant. His report is (Exh.P.D./3). The complainant Majeed Shahanshanipur (P.W.26) correctly identified the accused within half a minute's time. Similarly, Tariq Maqsood (P.W.18), Mujahid Hussain (P.W.20), Qaisar Abbas Bokhari (P.W.21) and Allah Ditta (not produced) correctly identified Waseem Aslam, appellant. Rana Javed Ahmad Khan, M.I.C. (P.W.3) conducted identification parade qua Zaki Ullah, Muhammad Arif and Muhammad Hussain alias Kaka and Muhammad Hanif appellants on 30-12-1990 at 12-50 p.m. in the Central Jail, Kot Lakhpat Lahore. The identification parade reports were placed on the record as Exhs.P.E./3 and P.E./4 Zaki Ullah and Muhammad Arif, appellants were correctly identified by Tariq Maqsood.(P.W.18). However, he could not identify Muhammad Hussain and placed his hand on the head of Ghulam Yasin, dummy. Similarly, Allah Ditta P. W. (not produced) correctly identified Zaki Ullah and Muhammad Arif but failed to identify Muhammad Hussain. Syed Mujahid Hussain (P.W.20), Qaisar Abbas Bokhari (P.W.21) and Majeed Shahanshanipur (P.W.26), correctly identified Zaki Ullah, Muhammad Arif and Muhammad Hussain. Dr. Muhammad Aslam (P.W.4) had medically examined Muhammad Ali Mokaram son of Nasir and found the following injuries on his person:-- (1) A lacerated wound 1 x 1 just one inch above left anterior/superior ilaaicspine with inverted margin. (2) A lacerated wound 1x1 present on the left buttock. The margins are everted, (3) A lacerated wound inverted margins round 1.5" diameter at dorsal aspect of left hand. (4) A lacerated wound 1.5" deep, 2x4" at ulnar side of left wrist. Salah-ud-Din Sumbal, M.I.C. (P.W.5) recorded the confessional statement (Exh.P.J./3) made by Waseem Aslam, appellant Muhammad Nawaz, SI (P.W.6) had received a sealed parcel on 23-12-1990 from Muhammad Afzal, Moharrir H.C. containing blood-stained earth and another sealed parcel containing 9 empties for taking the same to the office of Chemical Examiner and Forensic Science Laboratory. On the same day, he was given a sealed parcel of klashnikov and another one containing 3 empties and 10 live bullets for taking the same to the office of the Director Forensic Science Laboratories. After obtaining necessary dockets, he deposited the parcels in the concerned offices. Younis Ali Shah (P.W.7) claimed that he had prepared the site-plan (Exh.P.L.). The various relevant places were pointed out to him by Majeed Shahanshanipur (P.W.26), Dr. Masoom Ali Abidi (not produced), Syed Mujahid Hussain (P.W.20) (he was declared hostile by the Court at the request of the Chief prosecutor) and Qaisar Abbas Bokhari (P.W.21). Ghulam Sarwar, A.S.-I. (P.W.8) had recorded the formal F.I.R. (Exh.P.M./1), on the basis of the complaint (Exh.P.M.) on 19-12-1990 at 8-40 p.m. Muhammad Afzal H.C. (P.W.9), was given 8 items, namely, two cars bearing No.CC-29-AF and Taxi Car No.SAA 5606; two parcels one containing blood-stained earth and the other 9 empties; pieces of broken glass of car and chain of the stainless steel of the wrist watch of the deceased; clothes of the deceased in sealed parcel; clothes of the injured Muhammad Ali Mokaram; one parcel containing one bullet lead taken out by the doctor from the body of the deceased. He recorded report No.21, dated 20-12-1990, in the relevant register regarding delivery of the said articles to him. On 26-12-1990 he was given another sealed parcel containing the lead removed from the head of Haq Nawaz, appellant. He was also given parcel containing blood-stained earth. On 27-12-1990 he handed over two parcels containing bullet leads recovered from the head of Haq Nawaz, appellant and from the dead body of the deceased to Musaddaq Ahmad Khan, S.-I for onward transmission to the office of Forensic Science Laboratory. On 29-12-1990 Musaddaq Ahmad Khan, S.-I., received the parcels and deposited the same in the office of Director Forensic Science Laboratory (Note:- Musaddaq Ahmad Khan, S.-I. died on 124-1991). Muhammad Aslam Constable (P.W.10), was given parcel containing hand grenade on 23-12-1990. He deposited the same on 24-12-1990 in the office of Civil Defence, Lahore. Hafeez-ur-Rehman Constable (P.W.11), was given the dead body of Aqa-i-Sadiq Gunji, deceased for taking the same to the dead house for post-mortem on the night between 19th and 20th December, 1990. The post-mortem was conducted in the morning on 20-12-1990 and thereafter the doctor handed over the last worn clothes of the deceased to this witness. He was given a sealed phial containing leads taken out from the dead body. He produced the clothes before Munir Hussain Sherazi who took the same into possession vide recovery memo. (Exh.P.O.). Shoaib Zaman, Inspector/S.H.O. Police Station Wahdat Colony, Lahore (P.W.12), was associated by Ch. Shafqaat, D.S.P., Ichhra in investigation of the case on 6-1-1991. He interrogated Zaki Ullah, Muhammad Hussain and Waseem Aslam, accused. Zaki Ullah disclosed before him that he had given his pistols to Waseem Aslam, appellant. Waseem Aslam disclosed that the two pistols and three magazines were lying in his house situated in Mozang on Hari Shah Road. He led the police to his house, un-locked the room and got recovered the said articles from his attache-case. On unloading the magazines, 21 live bullets were recovered. Two Pistols (P.1 and P.2) along with three magazines (P.3, P.4 and P.5) with twenty one bullets (P.6/1-21) were taken into possession vide recovery memo. (Exh.P.P.) Muhammad Boota, H.C. (P.W.13) had joined the investigation of the case and witnessed the recovery of three empties of Klashnikov (Exh.P.7/1-3) secured vide recovery memo. (Exh.P.Q.) The recovery of Klashnikov (P.8), magazine (P.9) and ten bullets (P.10/1-10) was made through recovery memo. (Exh.P.R.). A .30 bore Mouser (P.12) was also recovered from the place of occurrence and taken into possession vide recovery memo. (Exh.P.R.). He was also attesting witness to the recovery of prescription (P.13), a green colour piece of plastic (P.14), eight live bullets (P.15/1-8), one silver ring (P.16), one sectarian badge (P.17), one commando jacket (P.18) having holes on the left shoulder and was blood-stained secured vide recovery memo. (Exh.P.S.) He is the attesting witness of recovery memo. (Exh.P.T.) whereby Motorcycle No. LHU 6310 (P.19), registration book of the Motorcycle (P.20), driving licence (P.21) (in the name of Muhammad Shafique), Identity Card (P.22) issued by the Punjab Bar Council in the name of Abdur Razzaq. Muhammad Aslam, A.S.-I. (P.W.14) was given one prescription, a piece of plastic, eight live bullets, a silver ring, a badge and a commando jacket (P.13 to P.18) by the doctor after the medical examination of Haq Nawaz, appellant and taken into possession by Zahoor-ul-Haq, S.-I./S.H.O. Police Station Green Town, Lahore (P.W.23). Major (Retd.) Abdul Qadeer, S.P, Special Branch, Anti-Terrorist Cell, Explosive Cell (P.W.15) stated that he had reached Hotel International on receiving a telephonic message from the DIG on 19-12-1990 at 9/10-00 p.m. and inspected the place of occurrence. He examined the Mercedes Car bearing No.CC-29-AF parked outside the hotel. Its rear screen had been smashed and there was a hole in the left rear door. On the upper part of dickey of the car, there was another hole. He learnt from the people present at the spot that they heard an explosion of a bomb outside the premises. Since it was a dark night he visited the spot on the following morning with his team and found out remnants of the bomb. He also found two empties of 7.62 MM (P.23/1-2). He stated that the empties could be those of a semi automatic weapon and a Klashnikov. He also found a bullet head (P.21) struck in the outer wall of the main building of the hotel near the staircase on the right side of the entrance. He found another bullet head (P.22) from the flowerpot near the wall. He located the exact place of explosion on the Upper Mall Road. On the place of explosion there was a crater one inch deep and about 8 inches in diameter in the shape of a dish. He recovered thirteen small pieces being remnants of the bomb. He found a piece of fuse assembly (P.23) and remnants of pieces of the hand grenade (P.24) at a distance of about 10 feet towards the hotel in a grassy plot from the place of explosion. He opined that the fuse assembly is the part of Russian made grenade known as RGD-5 Anti-Personnel Grenade. His technical report is as under:- "On 19-12-1990 at about 19-35 hours Aqa-i-Sadiq Gunji, Director General Khana-i-Farhang 'Iran, Lahore was shot at by an armed assailant while he was getting out of his blue coloured Mercedes Car No.CC-29-AF on arrival at the Services Hotel International, Sharah-e Quaid-e-Azam, Lahore, which resulted in the death of the diplomat. The indiscriminate firing smashed rear wind-screen and left rear window of the car. (2) Technical Team of the Anti Terrorist Cell visited the site of the incident, examined the bullet hit car and collected evidence such as the fired bullets. The empty cartridges and scattered remnants of the Hand Grenade exploded by the assailant while escaping from the site. The scattered fired bullets indicate that the assailant fired volley of bursts with a semi-automatic rifle. From the examination of the car, it appears that the assailant fired from the rear from very close range not exceeding 10 meters. Two empty cartridges of the caliber of 7.62 MM were recovered from taxi-parking area and two fired bullet-heads were collected from the wall of the hotel. These when compared with the empty bullets recovered from the place of the incident by the Lahore District Police were found identical. (3) Soon after the fatal incident, the Lahore Police was alerted to intercept the escaping assailant. Short while later, police of Ichhra Circle succeeded in capturing a suspect of the description announced on the wireless network who reportedly shot himself with a klashnikov (7.62 MM) causing him serious injuries before surrendering to police. The semi-automatic rifle (KK7.62 MM) and the live rounds recovered from him have also been found exactly of the same make/type and technical description. (4) The assailant reportedly fired a volley of bullets with the rifle and threw a Hand Grenade in order to scare away the people around while escaping from the scene of incident. A small crater caused at the place of explosion due to fragmentation effect of the hand-grenade was found on the metallic portion of the road near the taxi-parking area. Some small pieces/components of the hand-grenade were also recovered with a powerful magnet. The fuse assembly of the fired grenade shows that it was a Russian combat anti-personnel hand-grenade GRD-5. Details are given at annexure "A". The live Hand Grenade recovered from the suspected assailant is of the same make with clear inscription on the lever in Russian language marked 135-87 3P M-2. Similar lever was earlier recovered in an explosion case occurred in Karachi Hotel, Rawalpindi on 10th May, 89. " The fuse assembly of hand grenade (P.12) and the remnants 13 in number of the grenade (P24) were of the same origin. The firing on the Mercedes Car, in the opinion of this witness was done from a close distance not exceeding 10 meters. The bullet head and the empties on comparison were found identical and of the same nature. Muhammad Siddique, S.I(P.W16), had joined the investigation of the case and in his presence Muhammad Hanif accused produced his Motor-cycle LHJ/8720 on 29-12-1990 which was taken into possession by the Investigating Officer, vide Recovery Memo. (Exh.P.W.). On 30-12-1990 he witnessed the recovery of posters and literature from the office of Anjuman-i-Sipah-i-Sahaba made through recovery memo. (Exh.P.X.) On 31-12-1990 Waseem Aslam, accused, produced Motorcycle No. LEG 9863 which was taken into possession vide recovery memo. (Exh.P.Y.). The above memos. were attested by him. Captain Inayat Ullah Farooq, D.S.P., Anti-Terrorist Cell Lahore was examined as (C.W.1). He stated that para 3 of the technical report (Exh.P.V.) was incorporated therein on the basis of the summary submitted by him to the D.I.-G. Muhammad Shafique (P.W.17) stated that on 19-12-1990 Muhammad Hanif and Riaz Basra (absconders) came to his house and asked him to lend his Motorcycle LHU 6310 with a promise to return the same at his shop. At about noon time he went to the office of Anjuman-i-Sipah-i-Sahaba to get his Motorcycle back but was told by Riaz Basra (absconder) that Muhammad Hanif, appellant, had taken away the same. He went to the said office 5/6 times but Muhammad Hanif did not come there. He further stated that at about 9-30 p.m. Muhammad Hanif came to his house and told him that Aqa-i-Sadiq Gunji had t been murdered and that he should lodge a report regarding theft of his Motorcycle as the same had been seized by the police. Shortly, thereafter the police reached his house and the Investigating Officer recorded his statement on 19-12-1990. His statement was also recorded before the Magistrate under section 164, Cr.P.C. on 29-12-1990. Tariq Maqsood (P.W.18) is a Taxi Driver and an eye-witness of the occurrence. He stated that mostly he used to park his Taxi near the Hotel International to get passengers. On 19-12-1990 he parked his Taxi outside the hotel at 6-15 p.m. and kept on waiting as he had to take some passengers at about 8-00 p.m. He further stated that there was a function in the hotel and due to paucity of parking space he parked his taxi outside the hotel close to a Rehri of Kabab. He started taking his dinner from the Kababwala and saw two young boys aged 20/22 years in the grassy ground wearing jackets. He also saw 3/4 other persons who had come there on motorcycles. They got down from their motorcycles and came close to the Rehri. At about 7-30 p.m. he heard the report of firing from inside the hotel and saw only one person wearing green jacket firing with his klashnikov on a Mercedes car. As a result of the firing two persons received injuries. The person who had fired with klashnikov went out from the "OUT" gate of the hotel and after crossing the Mall Road, threw one hand grenade in front of his taxi which was damaged. Amjad Ali, S.-I (P.W.19) stated that in his presence Inspector Agha Mujahid Abbas took into possession klashnikov (P.8), Magazine (Exh.P.9), ten bullets (Exh.P.10/1-10), one grenade (P.11), one pistol of .30 bore (Exh.P.12). On unloading the pistol seven bullets (P.28/1-7) were found in the magazine. All these articles were secured vide recovery memo. (Exh.P.R.). Syed Mujahid Hussain (P.W.20) is an eye-witness who was invited to a farewell party in Hotel International by a Journalist called Afaaq Hussain. He reached the hotel at 7-00 p.m. along with Qaiser Abbas Bukhari (P.W.21), Dr. Masoom Abidi and Majeed Shahanshanipur (P.W.26). At that time some other guests were waiting for the arrival of Aqa-i-Sediq Gunji near the main entrance. At about 7-30 p.m. a Memedes car in which Aqa-i-Sadiq Gunji deceased was sitting entered the "IN" gate of the hotel. The car was being driven by Mukhtar Shah, Driver, while Muhammad Ali Nasir Mokaratn was sitting on his left side on the front seat. Hassan Rizvi was sitting on the reap seat behind the driver. The Mercedes car stopped near the steps of the main entrance. When Aqa-i-Sadiq Gunji, deceased and Muhammad Ali Mokaram were just stepping out of the car through the left rear and front doors, one of the 4/5 persons standing near the wall of the hotel stepped forward and started firing with a klashnikov from a close range. The other accused also resorted to firing. Aqa-i-Sadiq Gunji was hit by the firing made by the accused and fell down on the ground. Muhammad Ali Mokaram was also injured. After the firing, the accused went out from the "OUT" gate with a fast speed, crossed the road and started walking towards the Governor House. He took out a hand grenade and threw it towards the "IN" gate of the hotel which exploded. The accused sat on a motor-cycle driven by Muhammad Hussain alias Kaka accused and went towards the Governor House. He further stated that the remaining accused also crossed over to the other side of the road along with two motor-cycles and made good their escape towards the Governor House. The witness along with Qaisar Abbas Bokhari and Majeed Shahanshanipur chased the accused in a Toyota Van belonging to Qaisar Abbas Bokhari. When he along with others reached the office of the Chamber of Commerce, he saw the motorcycles turning towards Shahrah-i-Aiwan-i-Tijarat. There, they noticed registration numbers of the motor-cycles. The third motorcycle went towards right side. When they reached the Jail Road, Shadman crossing, two motorcycles crossed over to the Shadman side but the traffic signal changed. The third motorcycle went towards the right side and the P. Ws. followed him towards Mozang Chungi/Qartaba trhowk. When they reached near Bhatti Tikka Shop, the motorcycle turned towards Ferozepur Road side and there they heard the report of one fire. They found the person with klashnikov lying injured. The police was also present. The witness informed the police that he was the person who had fired at Aqa-i-Sadiq Gunji. On 30-12-1990, this witness identified Muhammad Arif, Zaki Ullah and Muhammad Hussain. On 3-1-1991, he identified Waseem Aslam in the jail. Qaisar Abbas Bokhari (P.W.21) stated that he was present at the Hotel international on 19-12-1990 at 7-30 p.m. as having been invited in connection with a reception given in honour of Aqa-i-Sadiq Gunji by Afaaq Hussain and he along with Majeed Shaianthanipur and other Pakistani and Iranian friends were waiting for Aqa-i-Sadiq Gunji standing at the steps of the hotel in front of the reception. Aqa-i-Sadiq Gunji accompanied by Muhammad Ali Mokaram, Dr. Masoom Abidi and Hassan Rizvi arrived in a Mercedes Car driven by Mukhtar Shah, driver. The moment Aqa-i-Sadiq Gunji and Muhammad Ali Mokaram stepped out of the car 5/6 persons came forward who were standing in a corner and a person wearing green jacket fired a burst towards Aqa-i-Sadiq Gunji whereby Aqa-i-Sadiq Gunji and Muhammad Ali Mokaram were injured and fell down on the ground. The remaining assailants also fired towards the Mercedes car. Thereafter, they ran out side the hotel. Mujahid and Majeed Shahanshanipur chased them. The witnesses came out and found three motorcycles. The person who fired klashnikov threw something like a bomb from the other side of the road and an explosion took place. The six assailants ran away on three motorcycles towards the Governor's House. This witness along with Majeed Shahanshanipur followed the accused in his car. The motorcycles turned towards the road leading from the Governor's House towards Shadman side known as Shahra-e-Sanat-o-Tijarat. The complainant party followed them and when the motorcycle reached near Shadman Chowk, two motorcycles crossed over to Shadman and in the meantime the red traffic light appeared. The 3rd motorcycle on which the accused who had fired with a klashnikov was sitting turned towards right side and the complainant party also followed him. The motorcycle was being driven by another accused while the man with klashnikov was sitting on the back seat. When they reached near Chowk Qartaba, they found a police Naka there. The motorcycle turned towards the left and slipped. When the witnesses reached there, they found that the accused who was armed with klashnikov was lying injured and the other had escaped. They also heard the report of the fire. This witness informed the police that the injured person was the same who had fired a burst causing injuries to Aqa-i-Sadiq Gunji and Muhammad Ali Mokaram in Hotel International. This witness identified the dead body of Aqa-i-Sadiq Gunji. He also identified Muhammad Hussain, Arif and Zaki Ullah on 30-12-1990 in the identification parade and Waseem Aslam, appellant in the identification parade held on 3-1-1991. Malik Muhammad Bukhsh . (P.W.22), M.I.C. recorded the statements of Zaki Ullah (Exh.P.AA./3), Muhammad Arif (Exh.P.BB.), Muhammad Hussain (Exh.P.CC.), Muhammad Hanif (Exh.P.DD.) and Muhammad Shafique (Exh.P.EE.) under section 164 of the Cr.P.C. Zahoor-ul-Haq, S.H.O. Police Station Green Town, Lahore (P.W.23) stated that on 19-12-1990 he was S.H.O. Police Station Lytton Road and in routine he along with other police officials had put a Naka near the over-head bridge at Qartaba Chowk. At 7/7-30 p.m Agha Mujahid Inspector and some other policemen of Samanabad Police Station reached there. They gave a signal for stopping the motor-cyclists who tried to go back but the motorcycles slipped. One person ran away but the other persons fell down along with motorcycle and his klashnikov went off causing injuries on his face. 9gha Mujahid Inspector went forward and took into possession klashnikov and brought out from the pockets of that person one mouser and one hand grenade. On unloading the klashnikov 10 bullets were recovered from the magazine. On unloading the mouser, 7 bullets were recovered. A criminal case was registered against the said titan on the complaint of Agha Mujahid at Police Station Lytton Road vide F.I.R. No.491, dated 19-12-1990. This witness took into possession the motor bike bearing No. LHU 6310 (P.19), registration of motor bike (P.20), driving licence (P.21), identity card of Bar Council (Exh.P.22) vide recovery memo. (Exh.P.T.). He also took into possession three empties of Klashnikov (P.7/1-3) from near the police where the injured was lying vide memo. (Exh.P.Q.). On the same night he took into possession the prescription (P.13), a piece of plastic (P.14), 8 bullets of pistol (P.15/1-8), one silver ring (P.16), one badge (P.17) and a blood-stained jacket having a tear on the left upper pocket vide recovery memo. (Exh.P.S.). Dr. Zahid Bashir (P.W.24) had conducted the post-mortem examination on the dead body of Aqa i-Sadiq Gunji, deceased son of Karam Gunji on 20-12-1990 at 6-55 a.m., and found the following injuries on his dead body:-- (1) Tattooing in an area of 10 x 11 c.m. present on dorsal surface of left hand, 23 c.m. below elbow joint and 3 c.m. from the inner margin of hand. 2(a) Fire-arm wound of entry 0.5 x 0.5 c.m. with graze 6 x 1.2 c.m. on the top of left shoulder, 14 c.m. from the midline and 6.5 c.m. from the root of the neck. 2(b) Fire-arm wound of exist 3 x 1.5 c.m. on top of left shoulder 4 c.m. from injury No.2-a and 17 c.m. from the midline. 3(a) Fire-arm wound of entry 7 x 4 c.m. with graze 8 x 1 c.m. on lateral aspect of left elbow joint and left forearm 18 c.m. of the wrist joint and . 29 c.m. below top of the shoulder. 3(b) Fire-arm wound of exit 2.5 x 2 c.m. on inner aspect of left upper arm 21 c.m. below top of shoulder and 10 c.m. above elbow joint. 4(a). Fire-arm wound of entry 0.5 x 0.5 c.m. of left side of back, 8 c.m. from the midline and 42 c.m. below nape of neck. 4(b). Fire-arm wound of exit 4 x 2.5 c.m. on lateral side of left buttock and thigh 9 c.m. from anterior superior iliac spine and 21 c.m. from posterior midline and 39 above knee joint. 5(a) Fire-arm wound of entry Lx 0.7 c.m. on lateral side of left thigh collar of abrasion 4,x 3.5 c.m. on upper aspect, 3 c.m. below injury 4.b 35 c.m. above knee joint and 12 c.m. from anterior superior iliac spine. 5(b) Fire-arm wound of exit 0.7 x 0.4 c.m. on back of left thigh 21 c.m. above knee joint and 31 c.m. below iliac crest. 6(a). Fire-arm wound of entry 0.5 x 0.5 c.m. on back of right side of chest 6 c.m. posterior midline, 14 c.m. from the nape of the neck and 20 c.m. from top of the right shoulder. 6(b). Fire-arm wound of exit 3.5 x 1.5 c.m. on left side of abdomen 17 c.m. from the midline and 11 c.m. above left anterior superior iliac spine. 7(a). Fire-arm wound of entry 0.75 x 0.5 c.m. on back of right side 12 c.m. from the midline, 13 c.m. above iliac crest and 34.5 c.m. below top of shoulder. 7(b). Fire-arm wound of exit 2 x 1 c.m. on front of right chest 2 c.m. from midline and 21 c.m. below supra tunnel. 8(a). Fire-arm wound of entry 0.5 x 0.5 on back of left side of chest 1.5 c.m. from the midline 26 c.m. below nape of neck and 27 c.m. below top of shoulder. 8(b). Fire-arm wound of exit 3.5 x 1.5 c.m. on lateral side of right chest, 18 c.m. from top of shoulder and 17 c.m. from the midline. (9) Surgical stitch wound 1.5 x 0.2 cm, chest cavity deep, on left side of chest with one intact black stitch, 27 c.m. below top of shoulder and 21 c.m. from anterior midline. (10) Surgical stitch wound showing no vital reaction, chest cavity deep, 1.75 x 0.2 c.m. on lateral side of right chest 22 c.m. below top of shoulder and 21 c.m. from anterior midline. (11) An incised wound 2 x 0.5 c.m. showing no vital reaction on inner aspect of right lower leg, 1.5 c.m. above medial mallioeus. (12) An incised wound 4 x 2.5 c.m. showing no vital reaction on inner aspect of left leg 3 c.m. above medial mellioeus. With' a ligature or. great saphenous on vein.

8. On exploration, injury No.6: The missile on entering the chest at injury 6(a) injured the 10th rib, diaphragm, spleen, left kidney, stomach and left side of colon and made exit at injury 6(b), injury No.7, missile after entering at 7(a) injured liver, and right kidney and made exist at injury 7(b), Injury No.8, the missile after entering 8(a), injured vertebral column, heart, left lung and made exit at injury 8(b). In the opinion of the doctor, all the injuries except injuries Nos. 10 and 12 were ante mortem, caused by fire-arm except injuries Nos. 9 to 12 which were due to surgical intervention. The death was caused due to injury on the vital organs like heart, lungs liver etc. leading to profuse haemorrhage and shock due to injuries Nos.6 to 8 which were individually sufficient to cause death in the ordinary course of nature. The duration between the injuries and death was within 15 minutes and between death and post-mortem within 12 hours. Mujahid Abbas, Inspector C.I.A. Gulberg, Lahore (P.W.25) stated that on wireless message from DSP, Ichhra he reached Chowk Qartaba and found Zehoor-ul-Haq, S.-I. with other staff there. At about 8-00 p.m. two persons came on a motorcycle from the side of Jail Road and when they turned towards Ferozepur Road they saw police Naka and tried to go back by turning their motorcycles which slipped and they fell down. One of them made good his escape. The other who was sitting on the rear seat of the motorcycle had a klashnikov which was discharged causing injuries on his face and chin. He fell down on the ground. The witness rushed towards him, searched him and found a hand grenade and a mouser in his pocket. He took into possession klashnikov (P.8), magazine (P.9)., Ten live bullets from the magazine (P.10/1-10), hand grenade (P.11) and a mouser (P.12) vide recovery memo. (Exh.P.R.) He prepared a parcel of these articles and handed over the same to the S:H.O., Police Station Lytton Road. He also prepared injury statement of the unknown persons and sent him for medical treatment to the hospital and the report to the Police Station Lytton Road for registration of the case. While this witness was standing near the injured after he had fallen, a white van came from the side of Jail Road in which there was one Irani along with two Pakistanis who disclosed that the unknown persons was the same person who had fired at Aqa-i-Sadiq Gunji, deceased a short while ago. This witness then handed over the investigation to Ch. Shafqaat Ahmad, D.S.P., Ichhra. Majeed Shahanshanipur (P.W.26) is the complainant who supported the prosecution story embodied in the F.I.R. He stated that after the occurrence he along with Syed Mujahid Hussain (P.W.20) and Qaisar Abbas Bokhari (P.W.21) had chased the assailants in a car belonging to Qaisar Abbas Bokhari. The accused crossed over to the other side of the Mall Road on three motorcycles. The accused with a klashnikov also crossed the road and before sitting on the motorcycle threw a hand grenade towards the "IN" gate of the hotel which exploded. The witness followed the motorcyclists up to the Shadman Chowk from where two motorcycles went straight and the third one turned right towards the Mozang Crossing. When they reached the crossing and turned towards Ferozepur Road he suddenly heard a report of firing and saw the motorcycle fallen on the road. The accused holding the klashnikov had fallen down in an injured condition. He stopped the car and found that he was the same person who had opened fire at Aqa-i-Sadiq Gunji, deceased. He informed the police about this fact. After giving their names to the police the complainant along with others went to Services Hospital as he had asked the persons present at the Hotel International to take the injured persons to the said hospital. On reaching there he found that the injured person had not yet arrived there. He sat outside the Emergency Ward where he found his friend Najam Abbas and dictated the report in English which was translated by him in Urdu. His report (Exh.P.M.) formed the basis of the formal FIR (Exh.P.M./1) Dr.Ayaz Mahmood (P.W.27) had produced the duty roster (Exh.P.HH.). He stated that on 19-1-991 when he was on duty in I.C.U. Ward No.15 in the General Hospital, Lahore, Mr.Habib Ullah Goraya, M.I.C. came there along with Shaukat Ali, Inspector at 3-30 p.m. His arrival was noted in the register. The photocopy of the relevant page was produced as (Exh.P.JJ.). The Magistrate inquired whether Haq Nawaz injured was fit to make a statement. This witness declared him fit for making a statement. The proceedings conducted by the Magistrate (Exh.P.C./2) were signed by this witness. However, he admitted that the statement of Haq Nawaz, accused was not recorded in his presence. Ramzan Ali Shah (P.W.28) had joined the investigation of the case and in his presence the police had taken into possession blood-stained earth from the floor in front of the steps of the main-gate on i9-12-1990 and secured vide recovery memo. (Exh.P.KK.). He also witnessed the recoveries of 9 empties (Exh.P.LL.), the Mercedes Car (Exh.P.MM.) and broken pieces of the wrist watch and pieces of the chain vide recovery memo. Exh.P.NN. Munir Hussain Sherazi (P.W.29) was S.H.O. Police Station Race Course Road, Lahore on 19-12-1990. He was present on duty near the Chiefs College at about 8-00 p.m., when he received information about the incident whereupon he went to the Services Hospital, Emergency Ward, where Aqa-i-Sadiq Gunji and Muhammad Ali Mokaram were admitted. When he came out from the Emergency Ward, Majeed Shahanshanipur (P.W.26) submitted the written report (Exh.P.M.) before him. He sent it to the police station through Muhammad Latif, Constable, whereupon. formal F.I.R. (Exh.P.M./1) was registered at 8-40 p.m. He prepared inquest report (Exh.P.00.) of Aqa-i-Sadiq Gunji and his injury statement (Exh.P.PP.). He recorded the supplementary statement of the complainant and statements of the eye-witness under section 161 of the Cr.P.C. He reached Hotel International, inspected the spot and took into possession blood-stained earth vide recovery memo. (Exh.P.KK.); collected nine empties (P.34/1-9), through a sealed parcel (Exh.P.LL.); took into possession Mercedes Car vide memo. (Exh.P.MM.) in which the deceased reached the place of occurrence, pieces of chain of wrist watch and broken pieces of glass vide memo. (Exh.P.NN.); recorded statements of recovery witnesses; handed over the sealed parcels to Moharrir of the police station on the same night, prepared rough sketch of the place of occurrence (Exh.P.QQ.): He took into possession the blood-stained clothes (P.35), Trouser (P.36) and underwear (P.37) of Muhammad Ali Mokaram vide memo. (Exh.P.RR.). He took into possession Taxi Car No.SAA-5606 vide recovery memo. (Exh.P.Z.). He stated that the draftsman produced before him three site plans on 21-12-1990 but added that (Exh.P.L.) was not one of those site plans. He explained that the site-plans handed over to him by the drafts-man contained notes in red ink in his handwriting. On 23-12-1990 he directed Nawaz S.-I. to take the blood-stained earth to the Chemical Examiner and parcel of the empties to the Forensics Science Laboratory. He admitted in cross-examination that he belongs to the Shia community. He stated that he had recorded statement of Muhammad Ali Mokaram under section 161 of the Cr.P.C. but no such statement was available on the record. He denied correctness of the inspection note Mark "A". In the end he stated that the investigation of the case was entrusted to DSP Ichhra on 20-12-1990. Shafqaat Ahmad, DSP Ichhra, Lahore (P.W.30) took over the investigation of the case on 20-12-1990. He stated that he arrested the accused Zaki Ullah, Arif and Muhammad Hanif from their houses on 29-12-1990 and Muhammad Hussain from his workshop; recovered Motorcycle NO.LHJ 8720 from Muhammad Hussain vide recovery memo. (Exh.P.W.). He made an application for recording statements of the accused persons under section 164 of the Cr.P.C. on 29-12-1990. He also made an application on 29-12-1990 (Exh.P.D.) for holding identification parade of the accused. He arrested Waseem Aslam accused from his house on 31-12-1990 who led to the recovery of Motorcycle No.LEG 9863 which was taken into possession vide memo. (Exh.P.Y.). Identification parade of Waseem Aslam was held on 3-1-1991. He recorded the statements of the recovery witnesses under section 161 of the Cr.P.C. He also got the statement of Muhammad Shafique (P.W.17) recorded under section 164 of the Cr.P.C. on 29.12.1990. He completed the investigation of the case and directed the S.H.O. to submit the challan in the Court. In cross-examination, he admitted that many writs were filed against him during his stay in P.S. Tibbi because of his harsh and strict attitude. He stated that on 19-12-1990, he had directed S.H.O. Samanabad Mujahid Abbas and Rana Zahoor-ul-Haq, S.H.O., Police Station Lytton Road, Lahore to put "Naka" near Qartaba Chowk on receiving wireless message from the Transport Minister that firing had taken place in the compound of Hotel International; that he reached the place of "Naka" by 8-30 p.m., on 19-12-1990 but did not find any of the eye-witnesses there. Further stated that during his stay at "Naka" Mujahid Abbas, Inspector told him that three boys had come to the place of "Naka" and disclosed that the injured person was the same who had opened fire in the compound of Hotel International and added, "On having received this information from Inspector Mujahid, I did not take any action because it was not part of my duty". He further admitted, "It is correct that I did not inform any agency that the person who had opened fire in the compound of Hotel International had been apprehended. He stated that he associated Hanif with the investigation of the case on the, night between 19/20-12-1990; that he took over investigation of the case on 20-12-1990 and started writing case diaries from 4-30 p.m., onwards. He admitted that he had informed the Inspector General of Police (on or before 27-12-1990) that the accused persons were likely to be arrested within a day or two and that he had conveyed the names of the accused to him. He denied the suggestion that from 23-12-1990 till 29-12-1990 the accused were kept in illegal custody and subjected to physical torture and shown to the P. Ws. of the case. He also denied the suggestion that he had been threatening the accused to make confessional statements under section 164 of the Cr.P.C. otherwise they would be killed in a fake police encounter. He denied that he had unusually prepared Audio Cassettes of the accused but after examining the relevant record admitted that there was mention of Audio Cassettes of the statements of the accused made before him.

9. The appellants' learned counsel contends that the motive stated in the F.I.R. was not proved by any cogent material; that the bald statement of the complainant that some persons belonging to a hostile group had to kill Aqa-i Sadiq Gunji and Aqa Ali Kazmi, was not sufficient to prove motive; that the prosecution had attempted to prove its case through ocular evidence of Tariq Maqsood (P.W.18), whose name did not figure in the F.I.R. and whose presence at the spot was not established; that Majeed Shahanshanipur (P.W.26), the complainant claimed that a reception was arranged by Afaaq'Hussain in honour of Aqa-i-Sadiq Gunji, who had to leave the country after a few days but neither Afaaq Hussain nor any one belonging to the Hotel administration was produced to support this claim; that even the printed invitation card was not brought on the record to show that any formal reception was to be held on the fateful evening; that the version embodied in the report (Exh.P.M.) regarding the chase given to the main accused who had fired with a klashnikov at Aqa-i Sadiq Gunji, deceased, appears to be improbable and was otherwise falsified by a number of material circumstances; that the same version was wrongly narrated by Syed Mujahid Hussain (P.W.20) and Qaisar Abbas Bokhari (P.W.21); that in case the complainant along with P.W.20 and P.W.21 had chased the main accused and reached the place of "Naka" and informed the police officers present there that he was the accused who had fired at Aqa-i-Sadiq Gunji, then the accused would have been arrested in the murder case and the police would not have registered F.I.R. No.491 of 1990 against an unknown accused who had allegedly attempted to commit suicide; that on one hand the complainant stated in the report (Exh.P.M.) that when the accused carrying klashnikov got injured and fell down at Chowk Qartaba, he disclosed his name as Haq Nawaz but on the other at the trial he stated that he was sitting on a Bench in the Services Hospital and dictating the report to his friend Najam Abbas when a police officer told him the name of the accused as Haq Nawaz; that the complainant did not mention in the F.I.R. that while trying to escape from the spot, the accused had thrown a hand grenade which exploded and caused damage to the Taxi car of Tariq Maqsood (P.W.18); that the taxi car was never produced by the prosecution in its original damaged condition; that Tariq Maqsood (P.W.18) claimed that he was present at the "IN" gate of the Hotel and witnessed the occurrence; that he stated that only one accused present in the compound of the Hotel had fired at the deceased and that the other accused who had come on motorcycles stayed outside the compound of the hotel near the "Rehri" of Kabab; that the other three eye-witnesses had no occasion to see the accused present outside the hotel compound and could not have possibly identified them; that the presence of the other three eye-witnesses i.e. (P.Ws.20, 21 and 26) appears doubtful as they neither transported Aqa-i-Sadiq Gunji and Muhammad Ali Mokaram to the hospital nor were aware as to who had done so; that the F.I.R. was lodged with due deliberations on a letter-head pad of Iranian Embassy which could not have been found in the car of Qaisar Abbas Bukhari, in which the complainant had allegedly chased the accused persons; that the eye witnesses had made a number of improvements at the trial which made their statements highly doubtful; that the prosecution failed to produce Muhammad Ali Mokaram, the injured witness, Mukhtar Shah, driver of the Mercedes Car and other natural eye-witnesses belonging to the hotel management and their non-production would give rise to an inference adverse to the prosecution; that the alleged confessional statements (Exhs.P.C./3, P.J./3, P.AA./3, P.BB., P.CC. and P.DD.) were never made by the appellants voluntarily and were result of threats and coercion by the police; that before recording of the alleged judicial confessions, the investigating officer had prepared some Audio Cassettes of the appellants who were told to make similar statements before the Magistrate failing which they were threatened to be killed in a false police encounter; that the Magistrates who recorded the alleged confessional statements did not comply with the provisions of section 164 and section 364 of the Cr.P.C., read with Rule 5, Chapter 13, Volume III of the High Court Rules and Orders; that the statements were not proved to have been made by the appellants of their own free will and choice; that statements of Zaki Ullah, Muhammad Arif, Muhammad Hussain and Muhammad Hanif were illegally recorded on solemn affirmation; that the accused were not told before hand that after recording their statements, they would not be handed over to the police; that Lrier recording confessional statements, the Magistrates gave custody of the appellants to a police officer who lodged them in the judicial lock up late in the evening; that the learned Magistrate did not make any query from any of the appellants as to the period during which he remained with the police; that at any rate the alleged confessions were retracted at the trial and could not form basis of conviction in the absence of strong corroboration to connect them with commission of the offence. He places reliance on the judgments in the cases of Muhammad Bakhsh v. State PLD 1956 SC 420; Mst. Said Begum v. The State PLD 1958 (W.P) 559; Abdul Haleem v. The State 1984 PCr.LJ 611; Liaqat Bahadur and another v. The State 1996 PCr.LJ

528. He further submitted that Haq Nawaz was seriously injured and not in a position to make the kind of detailed statement attributed to him; that the medical evidence shows that an unknown person was taken to the Services Hospital by one "Inayht", whose name was initially written in the relevant column of the MLR Exh.P.H. by Dr. Muhammad Aslam (P.W.4) who scored it out and then wrote the name of "Arif", A.S.-I.; that the doctor admitted that a request was made by the S.H.O. for medical examination of an unknown person which was attached at Serial No.74, but the F.I.R. contains the name and parentage of the accused as Haq Nawaz son of Muhammad Khalid; that it is for the prosecution to explain this apparent inconsistency; that the doctor had found bullets in the jacket of Haq Nawaz which negates his apprehension at Chowk Qartaba where recoveries of the klashnikov with three empties were said to have been made by the police; that had he been apprehended there, then along with klashnikov etc., these bullets would have been recovered; that Muhammad Hanif, appellant was taken into custody on 19-12-1990 and the names of other accused were also known and mentioned in the first inspection note and also shown in the site plan (Exh.P.L.); that their formal arrest was made on 29-12-1990 and prior to that they were shown to the eye-witnesses, therefore, the identification parade of Zaki Ullah, Arif and Muhammad Hussain conducted by Rana Javaid Ahmad Khan, MIC (P.W.3) on 30-12-1V40, does not carry any weight; that the three accused persons were purposely made to sit at Serial Nos.6, 13 and 20 and their positions were not changed throughout the proceedings which enabled the eye witnesses to identify them; that Tariq Maqsood (P.W.18) and Allah Ditta, P.W. (not produced) could not identify Muhammad Hussain; that P.Ws. 20, 21 and 26 who were not able to see the accused persons at the time of the occurrence had surprisingly identified them in the identification parade; that either the accused were shown to the P. Ws. or their photographs were provided to them; that the accused were not mixed up with requisite number of dummies (nine dummies for one accused), therefore, the identification parade was illegal; that- the identification parade of Waseem Aslam appellant held on 3-1-1990 by Muhammad Afzal Khan Leghari, .M:I.C. (P.W.2), also carries no weight because initially the accused and the dummies were made to sit by the Assistant Superintendent Jail before the arrival of the Magistrate, who did not change their positions; that Waseem Aslam was made to sit at Sr. No.5 and his position was not changed throughout the proceedings with a design; that P.Ws.20, 21 and 26 did not even have a glimpse of Waseem Aslam at the time of occurrence, but they managed to identify him; this per se is sufficient to cast aspersion on the genuineness of the identification parade. He has relied on the judgments in the cases of Lal Pasand v. The State PLD 1981 SC 142, Khadim Hussain v. The State 1985 SCMR 721 and Ghulam Rasool etc. v. The State 1988 SCMR 557, to urge that one accused is to be mixed with 9 or 10 strangers at the time of identification and that the identification must be with reference to the role played by the accused in commission of an offence. He further submitted that the recoveries of nine empties made from the spot, the hand grenade and empties found from Chowk Qartaba were not secured through sealed parcels and were found in a bag by Major (Retd.) Abdul Qadeer (P.W.15), therefore, the report of the Fire-Arms Expert that the empties C 1 to C12 matched with klashnikov, does not have any evidentiary value; that the recoveries of Motorcycle LHJ 8720 made from Muhammad Hanif and. of Motorcycle -NO.LEG 9863 from Waseem Aslam, are not sufficient to connect them with commission of the offence, as the story of their chase after the occurrence and noting down of numbers of Motorcycles is improbable and unbelievable; that so far as Motorcycle LHU-6310, is concerned, it was recovered from Chowk Qartaba and Muhammad Shafique (P.W.17) claimed that Riaz Basra and Muhammad Hanif had borrowed the same but he could not prove its ownership; that the story of police "Naka" at Chowk Qartaba and apprehension of Haq Nawaz at the said place is not believable; that the complainant stated that he had informed Shafqaat Ahmad (P.W.30) as well as Mujahid Abbas, S.H.O. Police Station Samanabad (P.W.25) that the injured person had fired at Aqa-i-Sadiq Gunji but surprisingly they did not take any action in such an important case; that the prosecution had miserably failed to prove its case against the appellants beyond any reasonable doubt and that the trial Court erred in law in convicting them without carefully scrutinizing the evidence on the record. At the end of his arguments, the appellant's learned counsel brought it to the notice of the Court that Zaki Ullah appellant had absconded from the District Jail, D.G. Khan, but urged that his appeal could be heard and decided on merits. In this connection he has relied on the cases of Hayat Bakhsh etc. v. The State PLD 1981 SC 265, Waqar Zaheer v. The State PLD 1991 SC 447; and Zahid Iqbal v. The State PLD 1991 SC

575. He added that relief car. be granted even to the two non-appealing convicts named Riaz Basra and Malik Javed Ahmad (absconders) while deciding the appeals of other convicts.

10. On the other hand, the learned Assistant Advocate General strenuously urged that a case involving terrorism arising out of sectarian differences should be viewed differently from an ordinary criminal case; that a personal motive against the deceased even if not established will not damage the prosecution case and it would be enough to show that the deceased and the complainant party belonged to rival sectarian factions; that circumstantial evidence in this case is so strong that even if ocular evidence is disbelieved it can form basis for maintaining appellants' convictions and sentences. She narrated the sequence of events starting from the main occurrence which took place at Hotel International, upto the apprehension of Haq Nawaz, appellant in an injured condition, recovery of klashnikov etc., from him at Chowk Qartaba and arrest of the other accused and urged that each event had happened in quick succession where there was no time and opportunity for usual padding by the police; that the complainant is an Iranian who along with his companions (P.Ws.20 and 21) had ventured to chase accused persons who being on motorcycles managed to go faster and escaped; that Haq Nawaz appellant was stopped by the police officials at Chowk Qartaba, who fell down and was injured; that before the arrival of the complainant party the police had registered a case at police station Lytton Road, Lahore against an unknown person vide F.I.R. No.491, of 1990 under section 309 of the P.P.C., section 13 of the Arms Ordinance; 196Sand section 5 of the Explosive Substances Act, and immediately sent him to Services Hospital due to his precarious condition; that thereafter the complainant party reached there and told the police officials that the unknown person was the same who had fired at Aqa-i-Sadiq Gunji, deceased; that Tariq Maqsood (P.W.18) is an absolutely independent and reliable witness, whose taxi car bearing No.SAA-5606 was damaged as a result of the bomb explosion; that the nine empties (34/1-9), the klashnikov (P.8) and three empties (P.7/1-3) were secured through recovery memos. (Exh.P.LL.) and (Exh.P.Q.) which were duly sealed and received by the Fire Arms Expert in the same condition, therefore the report of the Expert can safely be relied upon; that even the hand grenade recovered from Haq Nawaz was duly sealed; that (P.W.19) had at one stage stated that the hand grenade was not put in a parcel but after seeing the record he corrected himself and stated that the sealed parcel was prepared; that the circumstances of the case, the recoveries and report of the Fire Arms Expert tightens the noose around the neck of Haq Nawaz, appellant; that from Qartaba Chowk, Haq Nawaz was sent to Services Hospital under the escort of Arif, A.S.-I.; that the doctor had erroneously written the name of one Inayat, but corrected it as Arif, A.S.-I.; that this was purely a human error which could not give rise to the inference that he was taken to the hospital by a private person named Inayat; that the confessional statements were duly recorded by the Magistrates, (P.W.1, P.W.5 and P.W.22) who had no grouse against the appellants; that the statements of Haq Nawaz and Waseem Aslam were not recorded on solemn affirmation and did not suffer from any legal infirmity; that the statements of the other appellants named Arif, Zaki Ullah, Muhammad Hussain and Muhammad Hanif though recorded on solemn affirmation were not rendered illegal because no prejudice was shown to have been caused to them; that the error, if any is curable by virtue of provision of section 533 of the Cr.P.C. In this connection, she relied on the judgments in the cases of Juma and others v. The Crown PLD 1954 Lah. 783, Muhammad Sharif v. The State 1969 SCr,iR 521 and Sharif-ud-Din Pirzada v. Sohbat and others PLD 1972 SC 363; that the F.I.R. is not detailed or exhaustive document and mere omission of the factum of throwing of hand grenade by the complainant could not effect veracity of the complainant. She placed reliance on the judgments in the cases of Muhammad Hussain.and another v. The State 1993 SCMR 1614 and Ghulam Abbas alias Mazhar Abbas v. The State 1997 PCr.LJ 432; that the appellants 'had voluntarily made the confessions and laid bare the entire conspiracy to kill Aqa-i-Sadiq Gunji, deceased who, according to the appellants' belief, was responsible for murder of Maulana Haq Nawaz Jhangvi; that Zaki Ullah, Muhammad Arif, Muhammad Hussain and Hanif, appellants were correctly identified by the P.Ws. in the identification parade held on 30-12-1990 and Waseem Aslam, appellant in the identification parade held on 3-1-1991 after substantial compliance of the legal formalities; that the accused persons were given the option to change their positions but they opted to retain the same and could not be allowed at this stage to question the validity of the identification parade on their score; that the prosecution has successfully proved its case against the appellants beyond any shadow of doubt and that they were rightly convicted by the Court below. As regards Zaki Ullah, appellant, who has since absconded, learned A.A.-G. urged that his appeal merited dismissal without any decision on merits in view of the judgments of the Honourable Supreme Court in the cases of Chan Shah v. The Crown PLD 1956 FC 43, Gul Hassan and another v. The State PLD 1969 SC 89 and Allah Bakhsh v. The State 1982 SCMR 911.

11. Before appraisal of the evidence, we would like to dispose of the question whether the appeal filed by Zaki Ullah appellant, merits dismissal due to his abscondence from the D.G. Khan Jail.

12. The appellant's learned counsel urged that notwithstanding his abscondence his appeal could be heard on merits in view of the judgments in the cases of HayAt Bakhsh and others v. The State PLD 1981 SC 265, Waqar Zaheer v. The State PLD 1991 SC 447 and Zahid Iqbal v. The State PLD 1991 SC

575. On the other hand the learned Assistant Advocate General urged that in the case of Hayat Bakhsh and others the Supreme Court had held that a fugitive from law would lose his right of hearing; that his appeal could be dismissed and not accepted on merits; that the case of Waqar Zaheer was not in point because it did not pertain the question of abscondence of an accused/appellant; that in Zahid Iqbal's case reliance was erroneously placed on the case of Hayat Bakhsh and others. She urged that the absconder is not entitled to have a right of audience and a decision of the appeal on merits. She placed reliance on the judgment in the case of Chan Shah v. The Crown PLD 1956 FC 43, Gul Hasan and another v. The State PLD 1969 SC 89, Awal Gul v. Zawar Khan and others PLD 1985 SC 131 and Allah Bakhsh v. The State 1982 SCMR 911.

13. In Chan Shah's case, the Petition for Special Leave to Appeal filed by an absconder was dismissed by the Supreme Court with this finding, "The present is an "individual case". and, in our opinion, it is essential condition of the administration of justice in a case affecting an individual or individuals, that the persons concerned should submit to the due process of justice. We cannot conceive of a more flagrant violation of this condition than a case- like the present- where the individual seeks the interference of the Sovereign to obtain revision of a judicial order, then he is himself engaged in setting that judicial order, at naught.

14. In the case of Hayat Bakhsh and others, the Honourable Supreme Court was pleased to hold that when a convict becomes fugitive before filing a Petition for Special Leave to Appeal, his petition would itself not be properly constituted; that if a convict becomes fugitive after filing a petition and does not surrender, he deprives himself to the relief claimed in the petition; that even if it is a case of confirmation of death sentence under section 374, Cr.P.C., if the convict decamps, he thereby forfeits the right of audience and the High Court would be competent to confirm the same on merits even in his absence; that if leave to appeal has been granted to a person who has absconded then the Court would not hesitate to rescind the leave order. The Court rejected the request to keep the appeal of the absconders (convicts) pending sine die and dismissed the same. As regards the acquitted persons, it was held that the appeal filed against them should be fixed for hearing in the absence of one respondent who was a fugitive from the law and if he did not surrender till then he would not IV entitled as of right to hearing but while hearing the appeal against his co respondents, the Court will consider the case against him on merits. The case of Awal Gul pertains to the abscondence of an accused and its effect on his right to seek concession of bail. The Court held that a fugitive from law and Courts loses some of the normal rights granted by the procedural and also substantive law. The Court emphasized that such a conduct cannot be ignored under any law or principle. The case of Gul Hassan which came up before the Supreme Court of Pakistan, was earlier decided in appeal by a Division Bench of the W.P. High Court Peshawar. The said judgment is reported in PLD 1966 (W.P.) Peshawar

232. The High Court took into consideration the provisions of section 366(2), 422 and 423 of the Cr.P.C., and held that the judgment in appeal could be pronounced in the absence of the appellant and that there was no legal requirement that confirmation proceedings under section 374 would take place while the convict was present or available or within the reach of the Court.

15. The Honourable Supreme Court upheld the above-referred view of the W.P. High Court Peshawar and dismissed the appeal by holding "we endorse the view adopted by the learned Judges in the High Court that if the prisoner decamps and thereby forfeits the right of audience, the sentence of death may be confirmed in his absence". It was also held that the appeal filed by an absconder on the basis of the power of attorney executed in favour of a counsel, itself was not properly constituted and should have been dismissed by the High Court on that ground alone. In the case of Allah Bakhsh the Honourable Supreme Court relied on the view expressed in Hayat Bakhsh's case and held that the petitioner having remained a fugitive from law was not entitled to seek any relief even by review. In the case of Waqar Zaheer, it was held that while accepting the appeal, the Court could also give the same benefit to an appellant who had not filed an appeal. The same view was expressed in the case of Muhabbat Ali and another v. The State 1985 SCMR

662. These cases do not pertain to the fate of an appeal filed by a convict who later becomes a fugitive from law. In the case of Zahid Iqbal, the Shariat Appellate Bench of the Supreme Court had held that the appeal of a person who had become a fugitive from law could be heard on merits. A survey of the above referred case law makes it clear that generally superior Courts have been insisting that a person seeking aid of a Court of law must surrender to its process before claiming a judgment on merits. But in some cases indulgence was shown and the appeal of an absconder was considered on merits along with the appeals of the co-convicts in the peculiar facts and circumstances of those cases.

16. The question regarding effect of abscondence, viz-a-viz, the appeal under section 7 of the Act came up for consideration before a Division Bench of the Sindh High Court (Karachi), which is reported as Muhammad Shafiq alias Chief and 18 others v. The State 1998 PCr.LJ 1486. The learned Judges took the view that appeal is a fundamental right and its hearing is a continuation of the proceedings; that when a person can be tried in absentia there is no reason as to why his appeal could not be heard as such; that nothing is provided in section 7 of the Act that before preferring an appeal, a convict is required to surrender before the appellate Court. The learned Judges relied on the case of Muhammad Aslam and 5 others v. The State 1972 SCMR 194 and a case from the Indian jurisdiction reported as State of M.P. v. Mohandas 1992 Cr.I.L.J. 101, for the decision to hear the appeal on merits. Leaving aside the question whether the decision of the learned Judges to hear the appeal on merits was at all justifiable in the circumstances of the case, with utmost respect, we find ourselves unable to subscribe to their reasoning. Section 7 of the Act merely confers the right on a convict to file an appeal, but does not provide the procedure regarding institution and disposal of the appeal. Likewise, powers of the appellate Court have not been specified in the Act. In the absence of specific provisions governing trial or. institution and hearing of appeals, a Special Court as well as the appellate Court have to follow the general provisions of the Criminal Procedure Code. While considering the question whether benefit of section 382-B of the Cr.P.C., could be given to a convict under the provisions of the Act, it was held in the case of Khan Agha v. The State 1991 PCr.LJ 839 by a Division Bench of this Court of which one of us (Mian Nazir Akhtar, J.) was a member that the embargo in section 7 of the Act regarding exercise of revisional jurisdiction or powers under section 426, 491 or section 498 of the Cr.P.C., did not extend to denial of relief and benefit to a convict in terms of section 382-B of the Lode. It was further held, "The provisions quoted and situation visualised in section 7 of the Act are not designed to interfere with or whittle down the substantive powers of the High Court as a Court of appeal for lawful disposal of appeal". Section 419 of the Cr.P.C. provides that every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader and every such petition shall be accompanied by a copy of the judgment or order appealed against. The present appeals were properly filed as required under section 419 of the Cr.P.C. Under section 421 of the Cr.P.C. a Court can summarily dismiss a jail appeal but there is a proviso that no appeal presented under section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same. After admission of the appeal notice has to be given to the appellant or his pleader and an officer appointed by the Provincial Government for hearing of the appeal. Under section 423 Cr.P.C, powers of the appellate Court have been enumerated and it has been made clear thereunder that the appeal has to be decided after perusing the record and hearing the appellant or his pleader, if he appears and the Public Prosecutor, if he appears. It implies that the appearance of the appellant is not compulsory and he can be heard through his counsel. This provision of law caters to a normal situation in which a convict is either on bail or already lodged in jail.

17. We do not subscribe to the view that, merely because in a certain situation trial of an accused can be held in absentia by a Special Court, there is no obligation on the convict to surrender to the process of the law before filing an appeal. It is inherent in the very scheme of administration of criminal justice that after conviction, an accused, if on bail, has to be taken into custody and lodged in jail to undergo the sentence. If a license is given to accused persons to decamp on conviction and still avail of the remedy of appeal, this would encourage lawlessness and might lead to ugly situations in Courts and add to the problems of law enforcing agencies. That is why Superior Courts in our country have taken the view that an individual seeking review of a judicial order must surrender to the process of law and if he decamps, he loses right of audience and his appeal can be dismissed and sentence of death confirmed on merits in his absence. The question regarding fate of the appeal of an absconder must be decided in the light of the peculiar facts and circumstances of a case, the scheme of the law and the dicta laid down by the Honourable Supreme Court of Pakistan in the cases of Chan Shah, Gul Hassan, Hayat Bakhsh, Allah Bakhsh and Zahid Iqbal, discussed above.

18. In the light of the above discussion we propose to decide the appeal of Zaki Ullah (now an absconder) on merits, for the following reasons:-- (i) he surrendered to the process of law after conviction and remained in jail for a number of years. On our direction, the office has verified from the Superintendent Central Jail, D.G. Khan (Mr. Ziaullah) that Zaki Ullah had absconded on 26-12-1997. His appeal was filed on 6-4-1991. (i) he properly filed the appeal along with four others through a counsel, who appeared on his behalf and was heard at length; (iii) his appeal should have been heard within a period of three months as provided under section 7(2) of the Act; (iv) he is not responsible for delay in hearing of his appeal and should not be prejudiced by an act of the Court; and (v) after his abscondence he is not shown to have been involved in any act of violence or terrorism. However, we cannot examine the cases of Riaz Basra and Javaid Ahmad, absconders who neither surrendered during the course of trial nor after conviction. They did not even file their appeals in this Court. We may observe that under section 7 of the Act, the revisional jurisdiction of this Court is expressly ousted. Therefore, we cannot invoke the provisions of section 439 of" the Cr.P.C., under the general law and examine the legality, propriety or correctness of the convictions of the above named two absconders.

19. The prosecution case is based on the evidence of motive, ocular evidence, incriminating recoveries, the confessional statements of the appellants. the evidence of identification parade, medical evidence and the expert evidence. So far as motive is concerned, the complainant Majeed Shahanshanipur (P.W.26) stated in the report (Exh.P.M.) that Aqa-i-Sadiq Gunji and Aqa-i-Ali Khatimi, Consulate General, Islamic Republic of Iran were being given threats of murder by different "prejudiced" groups ,and individuals in their press statements and speeches. He being a close associate of the deceased could be better aware of the correct position. Apparently, there is no reason to disbelieve him in this respect. He did not specifically refer to the Anjuman-i-Sipah-i Sahaba in the F.I.R. but it is common knowledge that this group is pitted against the Shia community which has formed its own militant group known as "Sipah-i Muhammad". Each group accuses the other being guilty of committing acts of violence and terrorism. How far their allegations are true, is not our concern but we are convinced that the present case is an outcome of sectarian hostility between the two groups. Otherwise, Aqa-i-Sadiq Gunji, Director General of Khana-e-Farhang Iran had no personal enmity with anybody, at least, it is not borne out from the record. The learned AAG has rightly urged that in cases involving sectarian violence the Court need not look for a direct or personal motive generally found in ordinary criminal cases. The prosecution case cannot be thrown out merely because there was no direct personal motive on the part of the accused to kill Aqa-i-Sadiq Gunji or the motive alleged in the F.I.R. was not substantiated by proof of threatening statements against the deceased or the speech made by him in this connection. Having said so, we may emphasize that in cases emanating from sectarian hostility a Court of law has to exercise great care and caution so that an innocent person may not be convicted merely because he belonged to any one of the above referred sectarian groups.

20. The fate of the case largely depends on its own peculiar facts and the intrinsic worth of the evidence on the record. The four eye-witnesses, namely Tariq Maqsood (P.W.18), Syed Mujahid Hussain (P.W.20), Qaisar Abbas Bokhari (P.W.21) and Majeed Shahanshanipur, complainant (P.W.26) have rightly stated that Aqa-i-Sadiq Gunji, deceased was invited to attend a reception arranged in his honour at Hotel International on 19-12-1990; that he reached the place at about 7-30 p.m., in a Mercedes Car along with Mukhtar Shah, driver and two other persons named Muhammad Ali Mokaram and Hassan Rizvi; that while he was coming out of the car, he was fired at by one person wearing a green jacket; that the assailant ran out from the hotel and went over to the other side of Mall Road from where he threw a hand grenade and himself escaped on a motorbike driven by another person. The argument raised by the appellant's learned counsel that the prosecution had failed to prove that a formal reception was arranged by Afaaq Hussain, Journalist as neither the host nor any one from the hotel management was produced in support of this claim nor any printed invitation card was brought on the record, even if accepted, does not make much difference. Whether it was a formal reception in which guests were invited through printed invitation cards or an informal ceremony in which friends and admirers of Aqa-i-Sadiq Gunji had gathered together, the fact remains that he had gone to Hotel International at about 7.30 p.m., was fired at and critically wounded and resultantly succumbed to his injuries. The burden of the prosecution is to establish the identity of the culprits and prove beyond any reasonable doubt that the attack was launched by the present appellants and that they had conspired together to murder Aqa-i-Sadiq Gunji, deceased. For this purpose, we have to scan and scrutinize the ocular evidence in greater details

21. Majeed Shahanshanipur (P.W.26) is the star prosecution witness who had lodged the F.I.R. (Exh.P.M.). He is an Iranian and had no personal grudge against any one of the appellants. His presence at the spot cannot be doubted. He stated in the report (Exh.P.M.) that he was present at the foot steps of the stairs leading to main door of the hotel along with some Iranian and Pakistani friends including Dr.Masoom Abidi, Mujahid Hussain and Qaisar Abbas Bokhari. etc., to welcome Aqa-i-Sadiq Gunji. He gave a correct account of the occurrence and stated that as soon as Aqa-i-Sadiq Gunji and Muhammad Ali Mokaram got down from the car, one person wearing a green jacket and Shalwar Kameez fired at Aqa-i-Sadiq Gunji and Muhammad Ali Mokaram, as a result of which they were seriously injured and fell down. He claimed that 2/3 other assailants were with the main accused and had also resorted to firing, but this allegation was not satisfactorily proved. The later part of the story regarding chase of the assailants by the complainant and his two companions (i.e. P.Ws.20 and 21) ending up to the apprehension of one of the accused who allegedly disclosed his name as Haq Nawaz does not appear to be free from, reasonable doubt. The accused by their overt acts had demonstrated that they were on a campaign to kill and destroy and determined to go to any extent to deter their chase and arrest. In such a situation, in the normal course, no one could have dared to chase them muchless unarmed persons like the complainant and his companions. Therefore, we are not prepared to believe the complainant's version of chase of the accused persons upto Qartaba Chowk and noting down of the numbers of motorcycles by Syed Mujahid Hussain (P.W.20). We are led to this conclusion by a number of other factors/circumstances which are enumerated below:-- (i) The- complainant claimed that during the chase the number of motorcycle of the principal accused was noted as LHU 6310. Generally the letters and figures of number of motorcycles are smaller as compared to those of motor cars and can be noted if a person following a motorcyclist goes fairly close to him. Had the complainant and his companions done so, they would have been fired at by the accused. (ii) Had the complainant and his companions apprehended Haq Nawaz with the help of police and disclosed at the spot that he had fired at and injured Aqa-i-Sadiq Gunji and Muhammad Ali Mokaram then his statement at the spot would have been recorded and formed the first information report. Then, Haq Nawaz, appellant would have been arrested in the murder case of Aqa-i-Sadiq Gunji and not in the case of an attempt to commit suicide. (iii) At the time when Haq Nawaz was injured and apprehended by the police of Police Station Lytton Road, it was not known that he was involved in the murderous assault on Aqa-i-Sadiq Gunji. The registration of F.I.R. No.491 of 1990 (Exh.D.G.) shows that an unknown person had attempted to commit suicide, therefore, a case under section 13-B of the Arms Ordinance and section 5-A of the Explosive Substances Act was registered. (iv) F.I.R. No.491 of 1990 (Exh.D.G.) shows that two persons riding a Honda CD/70 motorcycle were stopped near the over-head bridge of Qartaba Chowk Ferozepur Road, Lahore at 8-00 p.m., for the purposes of checking; that one person jumped from the motorcycle and escaped while the other wearing a commando jacket took out klashnikov and fired from beneath his chin causing injuries on his face. The F.I.R. bearing No.491 of 1990 was completed by 8-30 p.m. Till then the complainant or his companions had not reached the said place. Had they really pursued the accused persons and reached the spot where Haq Nawaz was injured, then F.I.R. No.491/90 would not have been recorded, and if recorded, at least it must have been mentioned therein that the injured accused, as per the information conveyed by the complainant, had fired at Aqa-i-Sadiq Gunji and his companions. The factum of involvement of the injured accused in the case of murderous assault at Aqa-i-Sadiq Gunji is conspicuously absent from the contents of F.I.R. No.491 of 1990 (Exh.D.G.). (v) The report (Exh.P.M.) which formed basis of the formal F.I.R. (Exh.P.M./1) was completed by 8-25 p.m. in the Services Hospital and handed over to Munir Hussain Sherazi (P.W.29), whereas F.I.R. No.491 of 1990 was completed by 8-30 p.m. This would show that in all probability the complainant had reached the hospital around 8-00 p.m., taken some time in dictating the report to Najam Abbas in English who translated and wrote it in Urdu, then gave it to P.W.29 by 8-25 p.m. In this connection, the following part of the statement of P.W.26 is very material and reproduced below for ready reference:-- "I had asked the persons present at the Hotel International to take the injured person there in Services Hospital. When we reached Services Hospital the injured person had not so far arrived. There outside Emergency Ward we sat on a bench. I found my friend Najam Abbas present there and I started dictating the report in English while he translated the same and wrote it down in Urdu, for me. After about 15/20 minutes of our arrival in the Hospital the injured persons Aqa-i Sadiq Gunji and Mokaram were also brought there. I was yet dictating my report at that time. The injured were taken to the Emergency for taking medical aid. After that I was told that Aqa-i-Sadiq Gunji had expired. In the meantime the accused who was injured at Mozang Chowk was also brought there by the police, in the same hospital. While I was yet narrating the report a police officer told me that the name of the injured is Haq Nawaz. " (vi) The complainant stated that the accused holding the klashnikov along with another one were riding motorcycle No.LHU-6310. However, the report (Exh.D.G.) does not contain number of the motorcycle. It merely mentions its type as Honda C.D.70."

22. From the above quoted statement of P.W.26 it can be gathered that after telling the persons present in the Hotel International to take the injured persons to Services Hospital, he straightaway went to the hospital, found his friend Najam Abbas, Advocate there and started dictating the report in English. Its dictation and translation in Urdu must have taken about 25/30 minutes. He was still dictating the report when Aqa-i-Sadiq Gunji and Muhammad Ali Mokaram, the two persons injured at the Hotel International as well as the accused ~tjured at Qartaba Chowk were brought in the Hospital. Dr. Muhammad Aslam, (P. W.4), had stated that he had examined Muhammad Ali Mokaram in the Services Hospital at 8-20 p.m. He further stated that after examining Muhammad Ali Mokaram he examined Aqa-i-Sadiq Gunji and declared at 8-30 p.m. that he had been received dead. The factum of death of Aqa-i-Sadiq Gunji is mentioned in t1fe report (Exh.P.M.). This would show that the report (Exh.P.M.) was completed and handed over to the Investigating Officer after 8-30 p.m.

23. For the above said facts and reasons we are not persuaded to believe the story of chase of the accused by the complainant party. It appears that after the occurrence the complainant (P.W.26) had told the other companions to take the injured persons to the Services Hospital and himself reached there around 8-00 p.m. While he was dictating the report to his friend Najam Abbas, the two injured persons were brought in the Hospital and thereafter Haq Nawaz , appellant, was also brought there in an injured condition. On seeing him, the complainant identified him and stated that he was the same person who had fired at Aqa-i-Sadiq Gunji, deceased and Muhammad Ali Mokaram. It may be mentioned that at the time of occurrence, Haq Nawaz had not covered or muffled his face and was clearly seen by the complainant. The occurrence had taken place at 7-30 p.m. and just after about an hour, the complainant again had an occasion to see Haq Nawaz and identified him to be the assailant. This part of the complainant's statement is very material and supports the appellant's involvement in the occurrence.

24. At this juncture, we may advert to the question whether after disbelieving a part of the statement of an eye-witness, can we still rely on the remaining part of his statement? There is weight in the argument raised by the learned A.A.-G. that the principle "Falsus in uno falsus in omnibusz is not applied strictly in administration of criminal justice and that the Court has to sift the grain from the chaff or truth from falsehood. Even if the testimony of a witness is partly rejected as being untrue, his remaining testimony can be relied upon if corroborated by sound material. In the case of Muhammad v. The Crown PLD 1954 FC 84, the evidence of the prosecution witnesses was wholly rejected as being unreliable qua most of the accused and it was held that it was unsafe to convict the remaining accused on the same evidence in the absence of confirmatory circumstances. Meaning thereby that if confirmatory circumstances are available then the evidence of a witness though found unreliable can be considered for basing conviction of an accused thereon. In the case of Rang Ali v. The State PLD 1958 Lah. 242 a Division Bench of this Court had expressed' the view that eye-witnesses who had falsely implicated one of the accused whose plea of ali bi was proved beyond any doubt, could not be accepted against the other accused unless corroborated by other pieces of evidence. In the case of Ahmad v. The State 1968 PCr.LJ 386 it was held that the mere fact that a witness was found not telling the truth it could not make the Court ignore the rest of his statement. In the cases of Tawaib Khan and another v. The State PLD 1970 SC 13 and Samano v. The State 1973 SCMR 162 it was held that the principle "Falsus in uno falses in omnibus" has all along been discarded by the Courts in this country; that similarly the rule that the integrity of a witness is indivisible despite its moral virtue cannot be accepted as of universal application and that grain has to be sifted from the chaff in each case according to its circumstances. In the case of The State v. Mushtaq Ahmad PLD 1973 SC 418, it was held:-- "Moreover, it has been ruled by this Court in a number of recent cases, that having regard to the social conditions obtaining in this country, the principle ' falsus in uno, falsus in omnibus' cannot be made applicable to the administration of criminal justice and therefore, Courts are under a duty to sift 'chaff from the grain'."

25. In the case of Khairu and another v. The State 1981 SCMR 1136 a criminal petition for special leave to appeal was dismissed by upholding the view of the High Court that the rule "Falsus in uno, falsus in omnibus" was not applicable for discarding the evidence of the witnesses as a whole and that so much of the evidence which was credible could be accepted. In the case of Sahib Din, etc. v. The State 1988 PCr.LJ 1905-the Court partly believed ocular evidence and partly disbelieved it. In the case of Shahid Raza v. The State 1992 SCMR 1647 the Honourable Supreme Court of Pakistan emphasized that sifting of grain from the chaff has to be done when both the parties in a particular case were determined to withhold truth from the Court. In the case of Muhammad Iqbal and others v. Muhammad Akram and another 1996 SCMR 908, it was held as under: "Ocular evidence may be classified into three categories: Firstly, wholly reliable; secondly, wholly unreliable; and thirdly, partly reliable and partly unreliable. In the first category, conviction may safely be sustained in uncorroborated testimony. In the second category, even strongest corroborative evidence may not rehabilitate such evidence. In the third category conviction cannot be recorded unless such evidence is corroborated by oral or circumstantial evidence coming from distinct sources. " The view taken in Khairu's case was again expressed by the Honourable Supreme Court in the case of Muhammad Ahmed and another, v. The State and others 1997 SCMR 89 and Khairu's case was referred to with approval. The Court held:-- "Needless to point out that it is by now a settled preposition that the maxim ' falsus in uno falsus in omnibus' has no universal application and not un-often the grain has to be sifted from the chaff. Refer Khairu and another v. The State 1981 SCMR 1136 the learned Judges were, therefore, perfectly justified in relying upon the ocular testimony furnished by the two eye-witnesses finding it worthy of credence and also 'sufficiently corroborated by the evidence of motive, the medical evidence and the attending circumstances' for upholding the conviction of the appellant. Again in the case of Sardar Khan and 3 others v. The State 1998 SCMR 1823, it was held: The maxim 'Falsus in uno falsus in omnibus' has not been accepted by the superior Courts in Pakistan as having universal application. Therefore, it does not, necessarily, follow that where the Court does not accept the evidence of a witness against some of the accused in a case, the Court cannot accept his evidence against the other accused. The Court often sifts the grain from the chaff while accepting the evidence of a witness against some of the accused in a case and at the same time not relying on his version against other accused in the case (see Muhammad Ahmed v. State 1997 SCMR 89 and Khairu v. State 1981 SCMR 1136 (Note:-the page number of Khairu's case is 1136 which has been mistakenly printed as 1176). Thus, it would be evident that during the last more than four decades the Superior Courts in our country have been consistently emphasizing that prosecution witnesses even if found to be making wrong statements partly could still be relied upon if their testimony was corroborated by other circumstances or material on the record. Hence, in the present case we are not inclined to reject the ocular evidence of P.Ws. 20, 21 & 26 wholly merely because their story about chase given to the accused persons has not been believed.

26. The appellant's learned counsel strenuously urged that the veracity of the complainant was doubtful as he did not mention the factum of throwing of a hand grenade by Haq Nawaz, appellant and damage caused to Taxi Car No.SAA 5606 belonging to P.W.18; that the name of Tariq Maqsood (P.W.18) was not mentioned in the F.I.R., therefore, his presence at the spot was also doubtful. We are afraid, there is no substance in this argument. P.W.18 was present outside the hotel compound and his presence as well as parking of the taxi car were not in the complainant's knowledge. The complainant was present near the stairs of the hotel inside the compound at considerable distance from Tariq Maqsood (P.W.18). Under these circumstances, mere non-mention of the name of P.W.18 in the F.I.R. does not adversely affect his testimony. It was laid down in the case of Siraj Din v. Kala and another PLD 1964 SC 26 that mere non-mention of the names of eye-witnesses in the F.I.R. was not always a sufficient reason for discarding their evidence. As regards non-mention of throwing of a hand grenade by the accused who had initially fired at the deceased, suffice it to observe that the said event had happened at Mall Road while the complainant was present inside the hotel and engrossed in the aftermath of the firing incident in which two Iranians were seriously injured. Even otherwise, an F.I.R. is not a detailed narration of all the facts. It primarily pertains to information about commission of a cognizable offence and contains the material facts immediately noticed by the complainant. The complainant (or an eye-witness) may remember some other details later and state the same before the Court while making statement on oath. We are fortified in our view by the judgment in the case of Fazal-ur-Rehman and 2 others v. The State PLD 1971 Lah. 883 in which it was held that the F.I.R. was not supposed to be an exhaustive document giving all the details did not detract from its correctness. The Honourable Supreme Court of Pakistan also ruled in the cases of Khushi Muhammad v. The State 1983 SCMR 697 and Muhammad Hussain and another v. The State 1993 SCMR 1614 that the F.I.R. was never intended to be a document describing the minor or incidental details of the incident and that the complainant had to give material particulars of the incident. In the case of Ghulam Abbas alias Mazhar Abbas v: The State 1997 PCr.LJ 432, a Division Bench of this Court had held, "it may be remarked that the F.I.R. though a foundation of the case is not expected to be an encyclopaedia so as to provide the minor details about everything connected with the occurrence". In the present case, all the necessary facts constituting commission of the offence were duly given in the F.I.R. (Exh.P.M.). The omission of throwing a hand grenade by the accused is inconsequential because it is otherwise established by the physica: circumstances obtaining at the site including the impact created on the road by explosion of the grenade, damage done to the Taxi Car of P.W.18 and recovery of 13 pieces of the hand grenade from the spot. Therefore, we are not inclined to doubt the veracity of the complainant for the above-referred omissions urged by the appellant's learned counsel or disbelieve presence of Tariq Maqsood (P.W.18) at the time of the occurrence.

27. The broad facts of the prosecution case relating to attack on Aqa-i-Sadip Gunji deceased and Muhammad Ali Mokaram narrated by the complainant are corroborated by the statements of 3 other eye-witnesses, namely Tariq Maqsood (P.W.18), Syed Mujahid Hussain (P.W.20) and Qaiser Abbas Bukhari (P.W.21). Out of them Tariq Maqsood (P.W.18) is an independent witness and does not belong to any religious or sectarian group. His Taxi Car No.SAA 5606 Toyota was parked outside the hotel and recovered by the police through recovery memo. (Exh.P.Z.) in a damaged condition. The condition of the car stated in Exh.P.Z. is as under:-- This recovery was made by Munir Hussain Sherazi (P.W.29), S.H.O., Police Station Race Course Road, who had conducted investigation of the case till 20-12-1990, 4-30 a.m. The memo was signed by Tariq Maqsood (P.W.18) which shows his presence at the spot. He, as well as, the Investigating Officer, when appearing as P.W. in the Court, had described the damage done to the taxi and proved Exh.P.Z. The mere fact that subsequently the taxi car was handed over on "Sapurdari" to Tariq Maqsood (P.W.18) who got it repaired, is not sufficient to hold that the taxi was not damaged at the spot.

28. The evidence of P.W.18 shows that in view of a function in the hotel there was no place to park the taxi in the parking area of the hotel, therefore, he parked it close to a Rehri of Kabab standing at the footpath. He stated that he saw two persons aged about 20/22 years wearing jackets in the grassy ground; that 3/4 other persons also came there on motorcycles, got down from the motorcycles and came close to the Rehri; that search light was installed outside the hotel where the Rehri was parked; that at about 7-30 p.m., he heard the report of firing from inside the hotel and saw one person wearing a green jacket firing with klashnikov; that as a result of the firing, two persons received injuries; that the man firing with the klashnikov went away from the "OUT" gate and after crossing Mall Road threw a hand grenade in front of his taxi which exploded and caused damage to the taxi car; that all the persons who came on motorcycles disappeared after crossing Mall Road. His statement shows that the main accused who had fired at the Mercedes Car was inside the hotel while others were outside the hotel in line with stairs towards the "IN" gate of the hotel. The 'Witness was himself present near the foot-steps of the stairs leading to the main entrance inside the compound: He claimed to have seen 4/5 accused near the wall of the hotel in line with the stairs. This is not the outer wall but a wall of the main building in line with the stairs inside the compound. P.W.21 stated, "The moment Aqa-i-Sadiq Gunji and Muhammad Ali Mokaram stepped out of the car 5/6 persons who were standing in a corner came forward. One of them stepped forward. He was wearing a green jacket and was armed with klashnikov and he fired a burst towards Aqa-i-Sadiq Gunji. Both Aqa-i-Sadiq Gunji and Muhammad Ali Mokaram were injured and fell down on the ground. The remaining assailants also fired towards the Mercedes Car. Thereafter the assailants ran outside the Hotel. We are not prepared to believe P.W.20 and P.W.21 regarding presence of all the accused persons inside the hotel except one who had actually fired at the deceased. In this connection the statement made by Tariq Maqsood (P.W.18) regarding presence of the other accused outside the hotel appears to be correct. Same was the position stated by. Haq Nawaz, appellant in his confessional statement (Exh.P.C./3). The complainant (P.W.26) and the other two eye-witnesses who appeared as P.Ws. 20 and 2) are consistent on the point that a reception was arranged in honour of Aqa-i-Sadiq Gunji deceased who had to leave Pakistan within a few days; that when he reached the hotel at 7-30 p.m. one person wearing a green jacket fired at him with a klashnikov; that immediately after firing, the said accused came out of the hotel, crossed the Mall Road and sat on a motorcycle driven by another accused; that in order to scare away the persons from chasing him he threw a hand grenade which exploded and caused damage to the taxi car parked outside the hotel by Tariq Maqsood (P.W.18); that six accused persons left the spot on three motorcycles.

29. The learned Assistant Advocate General has rightly urged that the prosecution is not bound to cite all persons witnessing an occurrence as P.Ws. or produce them in the Court particularly when a large number of persons have witnessed the occurrence. Experience has shown that in the ordinary criminal cases involving personal enmities and party factions independent eye-witnesses do not come forward to give testimony in a Court lest they might come to grief at the hands of the rival party. The question whether non-production of an eye witness will give rise to an inference adverse to the prosecution depends on the peculiar facts and circumstances of each case. In a case of the present nature involving terrorism and sectarian hostility eye-witnesses feel like risking their lives when asked to depose as prosecution witnesses. Presumably, for that reason neither Afaaq Ahmad, the Journalist who had arranged the reception nor any one from the hotel management came forward to become a prosecution witness in the case. Munir Hussain (P.W.29) the Investigating Officer had stated that although he tried to record the statements of the persons belonging to the hotel management and the nearby shop-keepers, yet none was willing. Mukhtar Ahmad, driver and Muhammad Ali Mokaram, the injured person had seen death from very close quarters and did not dare to depose against the accused persons, lest they might meet the fate of Aqa-i-Sadiq Gunji, deceased. Presumably, Muhammad Ali Mokaram had flown back to his country for safety of his life. Jn the present case prosecution does not seem to be guilty of deliberately withholding a witness for any ulterior motive. Under these circumstances, we are not inclined to draw an inference adverse to the prosecution for non production of the other persons who had seen the occurrence. In the case of Muhammad Shafi and 3 others v. The State 1972 PCr.LJ 292 it was held that a witness mentioned in the F.I.R., if not produced will not necessarily damage the prosecution if there was no motive to withhold him. Although the eye-witnesses neither stated the distance between the deceased and the assailant nor were they questioned about it, yet it can be gathered from their statements that the distance was short. They were present at the steps of the hotel and were able to see the assailant in the electric lights at the spot. The medical evidence corroborates that the deceased had received 7-fire arm wounds of entry and that the shot was fired from a close range. The post-mortem report (Exh.P.FF.) shows presence of tattooing in an area of 10 x 11 c.m. on dorsal surface of left hand, 23 c.m. below elbow joint and 3 c.m. from the inner margin of the hand. In cross examination, doctor Zahid Bashir, (P.W.24), stated that tattooing was caused when the fire-arm was discharged within the distance of 1 meter. The post mortem report of the deceased shows 12-injuries out of which 7 were fire-arm wounds of entry with exit wounds. Injuries 9 to 12 ate stitched/incised wounds as a result of surgical intervention. From the place of occurrence 9 empties and two lead bullets in mutilated forth were recovered. From this it can be gathered that the assailant had fired nine shots in all with a klashnikov out of which seven caused injuries to the deceased effectively and two went amiss.

30. It is an established principle of administration of criminal justice that conviction of an accused can be founded on his voluntary confession. The Sunnah of the Holy Prophet Hazrat Muhammad (peace be upon him) bears testimony to the fact that he awarded punishments to some offenders on their free and voluntary confessions. In the light of the Sunnah of the Holy Prophet Hazrat Muhammad (peace be upon him) Muslim Jurists enunciated a number of principles relating to confessions. It may be mentioned that in the Islamic law the word "Iqrar" is used both for admissions in. civil I matters and confessions in criminal matters. A renowned Muslim jurist Imam Abu Bakr Sarakhsi (d.490 A.H.), stated the following two principles:-- (i) (Confession of the maker establishes liability to his extent alone). ["Sharah Al-Siyar Al-Kabir", Vol.IV page 241. (ii) (Confession by one under coercion is void). [Ibid page 227]. Similarly, a famous Muslim Jurist Ibn-i-Nujaym (d. 970 A.H.) has stated the principle governing a confession in the following words:

Arts. 199 & 212

Terms and conditions of civil servant

Jurisdiction of Service Tribunal

Constitutional jurisdiction

Exercise of

Article 212 has ordained that in service matters jurisdiction would be exclusively exercised by the appropriate Service Tribunal in matters relating to terms and conditions of service of civil servants

Bar created by Art. 212 of Constitution of Pakistan was only to the extent that such disputes should be agitated in Service Tribunal of exclusive jurisdiction and not in Constitutional jurisdiction of High Court or any other Court. (A confession is restricted to its maker and does not adversely affect any other person) [Commentary of Ibn-i-Nujaym's book "Al-Ashbah wan-Naza ir" by Allama AI-Hamawi Vol: 2 page 314 published by Idara Al-Quran Wal Uloom-ul-Islamia, Karachi, Pakistan 1418 A.H.]. Further, a famous jurist of Indo-Pak Sub-continent Abdur Rahim writes, "An admission must, however, be unconditional and it must be voluntary, so that if obtained by coercion, it is not binding nor if made by jest". [Muhammadan Jurisprudence (Reprint of 1911 edition) published by All Pakistan Legal Decisions Lahore, page 382]. The law about confessions prevailing in our country fully imbibes the principles of the Islamic Law.

31. In the present case, we have on the record confessions of all the appellants but the same were retracted at the trial. After retraction of a confession, conviction of an accused cannot be based thereon unless it is corroborated by reliable evidence coming from an independent source. Speaking generally a confessional statement is viewed with suspicion as an accused facing a charge involving capital sentence rarely confesses his guilt. Hence, it must be ascertained first whether he is making a confession voluntarily or doing the biddings of others under duress. Recording of a confessional statement must be done with the solemnity and care which it deserves in accordance with the provisions of the law and the relevant instructions.

32. A Magistrate of the 1st Class and any Magistrate of the 2nd Class specially empowered by the Provincial Government, is authorised under section 164 of the Cr.P.C., to record confessional statement of an accused in the manner provided under section 364 of the Cr. P.C. Before recording a confessional statement, it is imperative for the Magistrate under subsection (3) of section 164 of the Cr.P.C. to explain to the accused that he is not bound to make a confession and that if he does so, it may be used as evidence against him. It contains an important prohibition in these words:-- "and no Magistrate shall record any such confession 'unless on questioning the person making it, he has reasons to believe that it was made voluntarily. " This provision being couched in negative language is mandatory in nature and debars the Magistrate from recording confessional statement of an accused without questioning him properly for having "reason to believe" that he was making it voluntarily. The expression "reason to believe" is on a higher pedestal than mere subjective satisfaction of the Magistrate. The questions put to the, accused must lay bare certain facts satisfying the judicial conscience objectively that the Magistrate's belief is based on reason and not on whims or imaginations alone.

33. The above quoted mandatory provisions of section 164 of the Cr.P.C, clearly provide that the Magistrate has to ascertain that the accused is making the confession voluntarily upon questioning him. For this purpose the Magistrate may put to the accused as many questions as he deems fit, apart from those prescribed under Rule 5 Chapter 13, Vol III of the High Court Rules and Orders. The prescribed form for recording confessional statement of an accused containing specific questions to be put to him is reproduced below for ready reference:-- In the Court of

THE STATE, versus The confession of

taken by me

, a Magistrate of the

, District, this

day of

19 (The Magistrate shall first, as required by section 164(3), Code of Criminal Procedure, explain to the accused person that he is not bound to make a confession, and that if he does so, it may be used as evidence against him, and shall then put and record answers to 'the following questions. If the answers are of such a character as to require him to do so, he should put such further questions as may be necessary to enable him to judge whether the accused person is acting voluntarily. In arriving at his conclusion on this point the Magistrate should consider inter alia the period during which the accused person has been in police custody and make sure that the confession is not the result of any undue influence or ill-treatment. Special care should be taken when women or children are produced by the Police for their confessions being recorded).

1. Q

Do you understand that you are not bound to make a confession? A

2 Q. Do you understand that your statement is being recorded by a Magistrate, and that if you make a confession, it may be used as evidence against you. A.

3Q. How long have you been in police custody? A

4.Q Do you understand that after making a statement before the you will not be remanded to police custody, but will be sent to the judicial lock-up? A

5.Q Understanding these facts, are you making a statement before me voluntarily? A

6.Q What are your reasons for wishing to make a statement? A

Statement of accused (Mark or signature of accused). Magistrate I have explained to___________that he is not bound to make a confession, and that if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it, and admitted by him to be correct, and it contains a full and true account of the statement made by him Dated. ______________ Magistrate Rules 6, 7 &7-A contain further instructions regarding confessional statements These are also reproduced below for ready reference:--

6. Instructions for recording confessions.-- Unless there are exceptional reasons to the contrary confessions should be recorded in open Court and during Court hours. Police officers investigating the case should not be present.

7. Accused who has made a confession should not be kept in police custody but should be kept in Judicial lock-up separate from other prisoners.-- An accused person who had made a confession before a Magistrate should be sent to the judicial lock-up and not made over to the police after the confession has been recorded. If the police subsequently required the accused person for the investigation a written application should be made giving reasons in detail why he is required, and an order obtained from the Magistrate for his delivery to them for the specific purposes named in the application. If an accused person who has been produced before a Magistrate for the purposes of making a confession, has declined to make a confession or has made a statement which is unsatisfactory from the point of view of the prosecution he should not be remanded to police custody. 7-A. When remanding to the lock-up an accused person who has made a confession, the Magistrate shall record an order for him to be kept separate from other prisoners as far as may be practicable. "

34. If the above quoted provisions of law and instructions of this Court are substantially complied with then a confessional statement can be relied upon notwithstanding any omission or irregularity in recording the same provided that no prejudice is caused to an accused thereby.

35. In the present case confessional statements of the appellants were recorded by three Magistrates of Ist Class, i.e. Habib Ullah Goraya, M.I.C. (P.W.1), Salahuddin Sumbal (P.W.5) and Malik Muhammad Bakhsh (P.W.22). Muhammad Hanif, Zaki Ullah, Muhammad Arif and Muhammad Hussain, appellants were arrested on 29-12-1990. On the same day, Shafqaat Ahmad, DSP (P.W.30) made an application before the A.D.C.(G) Cantt. Lahore, for deputing some Magistrate to record the confessional statements. The A.D.C.(G) appointed Malik Muhammad Bakhsh, M.I.C., who recorded the statements of the said appellants and Muhammad Shafique (P.W.17). He erroneously recorded their statements on solemn affirmation. Confessional statement of an accused is not to be recorded on oath or solemn affirmation as laid down under section 5 of the Oaths Act, 1873. Before recording the statements he put the following questions to the four accused persons:-- (1) At this time you are present at which place? (2) Do you know that your statement could be used against you? (3) Is there any pressure on you for making a statement? Obviously, the Magistrate did not put questions Nos. l, 3, 4 & 6 prescribed under Rule 5, Chapter 13, Volume III of the High Court Rules and Orders to the accused persons or some other questions to elicit whether they were making confessions voluntarily. It is also not clear from the proceedings pertaining to recording of confessional statements whether police officers including Shafqaat Ahmad, D.S.P. (P.W.30) were present in the Court room or not. However, the Magistrate noted that after putting the above referred three questions he had given more time to the accused to think about the matter and felt satisfied that they were making statements of their own free will. He also gave a certificate at the end that the statement of each accused was recorded in his presence; that the full statement was correctly recorded by the Magistrate in his own hand which was read out to the accused who accepted it to be correct and signed it.

36. Now the question arises whether the learned Magistrate really had "reason to believe" that the accused persons were making the statements voluntarily and whether the error in recording the statement on solemn affirmation amounted to an illegality vitiating the same. As mentioned above, it is specifically laid down under subsection (3) of section 164 of the Cr.P.C., "A Magistrate shall, before recording any such confessions, explain to the person making it that he is not bound to make a confession .... " This note of caution is meant to make the accused conscious that there is no obligation to him to make a confession. In the present case, contrary to the express provisions of section 164(3) of the Criminal Procedure Code, Zaki Ullah, Muhammad Arif, Muhammad Hanif and Muhammad Hussain alias Kaka, appellants were never cautioned that they were not bound to make confessional statements. They were not questioned for how long they had remained in police custody and that after their statements they would not be remanded to police and would be sent to judicial lock-up. The omission to put these questions may or may not cause prejudice to an accused in the peculiar facts and circumstances of a case. In the present case, this omission appears to have caused prejudice to the accused and in our considered opinion vitiated their statements. The police had formally arrested Zaki Ullah, Muhammad Arif, Muhammad Hussain and Muhammad Hanif, appellants on 29-12-1990. However, the defence was able to establish that first of all Muhammad Hanif appellant was arrested by the police on 19-12-1990 and after about two days Zaki Ullah, Muhammad Arif, Muhammad Hussain were also with the police. In this connection we may refer to the statement of Muhammad Shafique (P.W.17). He stated that from 19-12-1990 to 29-12-1990, the police had been calling him off and on in connection with the investigation of the case. He admitted. It is correct that on the night of 19-12-1990, I was taken along by the police and Muhammad Hanif was arrested from Madrassa situated in Model Town. It is correct that two days after the alleged occurrence, I saw Zaki Ullah and Muhammad Hussain, in police custody at police station Ichhra. It is correct that I also saw another boy in the custody whose name was Arif. Shafqaat Ahmad, D.S.P. (P.W.30) also admitted, "It is correct that from 20-12-1990 to 29-12-1990, only Hanif was made to join the investigation of the case". He further stated that there was some incriminating material against Hanif but he did not arrest him due to some expediency. He denied the suggestion that from 23-12-1990 till 29-12-1990 all the accused were kept in illegal custody and subjected to physical torture. Had the learned Magistrate questioned the above named 4 appellants, regarding their apprehension by police and specifically told them that they would not be remanded back to the police custody they might have come out with certain facts regarding their illegal confinement or police pressure in view whereof the Magistrate might not have recorded their confessional statements. The omission to put the said questions has caused prejudice to the said appellants and also deprived the Magistrate of the material for reaching a reasonable conclusion whether they were making confessions voluntarily or following the dictates of the investigating agency to avoid some serious consequences. The appellant's learned counsel also urged that the statements of Zaki Ullah, Arif, Muhammad Hussain and Hanif, were illegally recorded on solemn affirmation in violation of the provisions of section 5 of the Oaths Act, 1873. He referred to the following part of Section 5:-- " .... Nothing herein contained shall render it lawful to administer in a criminal proceedings, on oath or affirmation to the accused person. " He placed reliance on the judgment in the case of Muhammad Bakhsh v. The. State PLD 1956 SC (Pak.) 420 in which the Crown counsel had brought another judgment reported as Karam Elahi v. Emperor AIR 1947 Lah. 92, to the notice of the Honourable Supreme Court. The Court adverted to the question whether confession ceased to be admissible if it was made on oath and whether Karam Elahi's case was rightly decided. The Court was pleased to overrule the dictum laid down in Karam Elahi's case after drawing a distinction between "compulsion" and "relevancy". It was held:-- "To sum up, a confession is not irrelevant merely because it is made on oath, nor is it inadmissible merely because it was on oath; but if a person is compelled to make a confession it cannot be proved against him. " It was further held: "The law does not compel the prisoner to answer even where the Court is empowered to question him. He is entitled to hold his tongue against all interrogation; but when he decides to speak, what he speaks is evidence, though not testimony, for as well as against him. And since he cannot be compelled to speak he is under no obligation to speak the truth. The administration to him of an oath or affirmation is thus opposed to public policy and any infringement of the provision prohibiting the Court from putting him under oath is an illegality which cannot be cured on any principle of consent, waiver or estoppel."

37. The learned AAG has referred to the judgment in the case of Mst. Ameer Khatun v. Faiz Ahmad and others PLD 1991 SC 787 to urge that now the law has been amended and even during the trial an accused can appear as a witness in his own defence and make a statement on oath under section 340(2) of the Cr.P.C. There is no cavil with the said proposition of law. The legislature, in its own wisdom, has expressly given an option to an accused to come forward as a witness in his defence and make a statement on oath like any other witness and stand the acid test of cross-examination. The express provisions of section 340(2) of the Cr.P.C. for giving evidence on oath cannot be imported under section 164 or 342 of the Cr.P.C. An accused person cannot be compelled to state the truth. If he is called upon to make a statement on oath or solemn affirmation then psychologically he is impelled to state the truth against himself and narrate much more than what he would have done otherwise.

38. Therefore, respectfully following the dictum laid down by the Honourable Supreme Court in Muhammad Bakhsh's case we hold that recording of confessional statement of an accused on oath or solemn affirmation is illegal and opposed to public policy and cannot be accepted as a voluntary confession despite consent or willingness of the accused to make a statement on oath or solemn affirmation.

39. For the foregoing reasons, we do not feel persuaded to place reliance on the confessional statements of Zaki Ullah, Arif, Muhammad Hussain and Muhammad Hanif. Even otherwise, they have retracted their confessions which cannot form basis for conviction without independent corroboration which is lacking qua them.

40. Now we may advert to the confessional statements of Haq Nawaz and Waseem Aslam, appellants (Exh.P.C./3 and Exh.P.J./3 respectively). Their statements were not recorded on oath or solemn affirmation and did not suffer from the initial legal infirmity found in the statements of the other appellants. Haq Nawaz remained admitted in the Services Hospital and the General Hospital from 19-12-1990 to 19-1-1991 under the. police guard. He did not remain in police lock-up for a single day. He remained in relatively free atmosphere where it was not easy to coerce or pressurise him. On 9-1-1991, Dr. Bashir Ahmad, Visiting Neuro Surgeon, General Hospital was present before the trial Court and made the following statement about the condition of Haq Nawaz:-- .... He can understand things but unable to speak properly. He is likely to speak properly by the coming Saturday, i.e., after three days after removing the stitches from his throat. He can understand but when communicated continuously he gets confused. This condition is also likely to improve by Saturday." On the next date i.e., 12-1-1991 again Dr. Bashir Ahmad was present in the Court and stated that Haq Nawaz had improved a lot and was in a position to give instructions to his counsel. The learned defence counsel was allowed by the Court to see Haq Nawaz, appellant in the hospital to get necessary instructions. Accordingly, he met him in the hospital, obtained the instructions and then filed a power of attorney in the Court on 13-1-1991. On 19-1-1991 Mr.Habib Ullah Goraya, M.I.C. (P.W.1) went to the General Hospital, introduced himself to Haq Nawaz and got his chain removed from his ankle. He told the police people to go outside the ward. While appearing as P.W.1, the learned Magistrate stated that the accused had himself informed him that right from the date of occurrence he was in the hospital and never stayed with the police. It appears that in view of this information, the learned Magistrate did not feel it necessary to question him as to whether he had remained in police custody. The learned Magistrate put the following 4 questions to Haq Nawaz, appellant before recording his statement:-- (1) Do you know that you are not bound to have your statement recorded under section 164 of the Cr.P.C.? (2) Do you know that at this time you are present before the Magistrate Ist Class? (3) Are you making the statement of your own freewill? (4) Why do you want to make a statement under section 164 of the Cr.P.C.? The Learned Magistrate stated in the Court that first of all he had made it clear to the accused that it was not necessary for him to get his statement recorded and asked him whether he was making the statement with his free will and without any coercion or pressure. He told the accused to have some time for thinking about the matter but he replied that there was no such need as he was going to make the statement freely. Thereafter the learned Magistrate recorded statement (Exh.P.C./3) of Haq Nawaz, appellant in his words. The appellant initially admitted that he as well as his friend Javed (absconder) belonged to Anjuman-i Sipah-i-Sahaba; that he as well as Zaki Ullah, appellant used to meet Maulana Zia-ur-Rahman Farooqi, Ashfaq Secretary and Maulana Esarul Qasimi, and that they had made a conspiracy to kill Aqa-i-Sadiq Gunji. He did not initially implicate Muhammad Arif, Waseem Aslant, Muhammad Hussain and Muhammad Hanif in the alleged conspiracy to kill the deceased. However, in the later part of his statement he said that he met Riaz Basra, Zaki Ullah, Javed, Arif, Waseem Aslam, Muhammad Hussain alias Kaka and Mahmood in the office of Anjuman Sipah-i-Sahaba situated at III-Lytton Road and that they prepared the practical plan to kill Aqa-i-Sadiq Gunji; deceased. In the alleged plan of killing the deceased, Muhammad Hanif , appellant was not named. He included one Mahmood in the conspiracy though he is not an accused in the present case. He also stated that he and Muhammad Hussain sat on one motorbike while Waseem Aslam and Zaki Ullah on another. Arif and Javed, absconder were on the 3rd motorbike. According to him Riaz Basra and Muhammad Hanif, appellants did not even go to Hotel International on the fateful evening. As mentioned above, Haq Nawaz had stated that he and Zaki Ullah used to meet Maulana Zia-ur-Rehamn Farooqi, Ashfaq Secretary and Maulana Esarul Qasimi and added, though in the later part he stated that after getting the invitation card for attending the reception being arranged in honour of Aqa-i-Sadiq Gunji, deceased he met Riaz Basra, Zaki Ullah, laved, Arif, Waseem Aslam, Muhammad Hussain alias Kaka and Mahmood in the office of Anjuman Sipah-i-Sahaba and then added, His statement to the extent of preparation of the plan will bind himself. So far as other appellants and the absconding convicts are concerned, they cannot be held guilty of conspiracy unless the same is supported either by their own confessional statements or any other independent evidence. It is also significant to mention that as per the statement of Haq Nawaz, after reaching the hotel, he went inside the compound while his remaining companions stayed outside. His statement in this respect is consistent with that of Tariq Maqsood (P. W.18) who also pointed out that the other accused had stayed outside the hotel and that he had seen one person inside the hotel firing at the deceased. At the trial, Haq Nawaz, appellant retracted his confession by giving the following answer to question No.29:-- "It is incorrect. A police officer and a person in plain clothes had once visited the Ward where I was admitted and obtained my signature and thumb impression. I did not make any confessional statement. It is a sheer fabrication." However, his statement is corroborated by the recoveries of the empties from the compound of the Hotel International and Chowk Qartaba, recovery of klashnikov (P.8), recovery of hand grenade, the technical report of the expert (EXh.P..VV.) and medical evidence. The throwing of hand grenade is established by the physical circumstances obtaining at the site, the recovery of pieces of grenade and damage caused to the Taxi of Tariq Maqsood (P.W.18) and the opinion of the Fire-arms Expert that the hand grenade recovered from the appellant was the Russian made GRD-5 ante-personnel hand grenade and that the 13 metallic pieces found from the place of occurrence were alsq of GRD-5 hand grenade. All these facts and circumstances leave no manner of doubt that Haq Nawaz appellant had deliberately murdered Aqa-i-Sadiq Gunji, deceased to take revenge of murder of Haq Nawaz Jhangvi, a renowned religious leader who was vocal against the Shia community.

41. The appellants' learned counsel urged that the appellant did not know as to what was meant by a statement under section 164 of the Cr.P.C. It may be true but the fact remains that the appellant proceeded to make a confessional statement without telling the Magistrate that he had no idea as to what kind of statement was to be made under section 164 of the Cr.P.C. The learned Magistrate did not inform the appellant that after recording his statement he will not be remanded to police custody and will be sent to the judicial lock-up but this omission has not caused any prejudice to the accused because he was already in the hospital and remained there even after recording of his statement. The learned Magistrate had substantially complied with the provisions of the law and rules contained in the High Court Rules and Orders.

42. We may observe here that in ordinary criminal cases burden to prove its case beyond any reasonable doubt is on the prosecution but a departure has been made regarding trial of scheduled offences by a Special Court. Section 8 of the Act provides:-- .... Where any person accused of having committed a scheduled offence is found to be in possession of, or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence, or is apprehended, in circumstances which lead to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence." Despite the above quoted provision of the law, the initial burden to prove the requisite conditions for raising a presumption against an accused, is still on prosecution. The prosecution has brought on record sufficient evidence to prove the necessary legal conditions for raising the presumption of guilt against Haq Nawaz, appellant who failed to discharge the burden to prove that he had not in fact, committed the offence.

43. Waseem Aslam appellant, was arrested on 31-12-1990 and his confessional statement was recorded on the same day at about 2-45 p.m., by Salahuddin Sumbal, Magistrate 1st Class (P.W.5). While appearing as P.W.5, the Magistrate deposed that before recording the statement of Waseem Aslam, appellant, he got his Court room vacated introduced himself as a Magistrate and got his handcuffs removed. He made it clear to Waseem Aslam that he was not in any way bound to make a statement; that the statement made by him could be used against him and he could be convicted thereon. He also asked him whether he was under any external pressure or threat. After noting down the replies and before recording the statement he made an endorsement to the effect that Waseem Aslam appellant was making the statement of his free will. After recording the statement, (Exh.P.J./3), he read it out to the appellant who put his signature/thumb-impressions on it and then the Magistrate gave a certificate (Exh.P.J./4) and concluded the proceedings at 3-37 p.m. The Magistrate appears to have substantially complied with the requirements of the law and instructions contained in Rule 5, Chapter 13, Volume III of the High Court Rules and Orders, though he omitted to question him regarding the period of his detention by police or inform him that after recording his statement he would not be remanded to police custody. Keeping in view the fact that Waseem Aslam was an A.S.-I. in the police and his confessional statement was recorded shortly after his arrest, we are not inclined to infer that any real prejudice was caused to him due to the above referred omissions. The later part of his statement shows that he had concurred with the plan of his co-accused and remained associated with them till the end of the occurrence. However, at the trial he retracted his confession. It is noteworthy that while examining Waseem Aslam, appellant under section 342 of the Cr.P.C., the trial Court put question No.23 to him mentioning therein that he was arrested on 29-12-1990 and made a confessional statement before Malik Muhammad Bakhsh, Magistrate (P.W.22) along with his co-accused Hanif, Muhammad Hussain and Arif. He was again put question No.25 regarding the confessional statement made by him on 31-12-1990 before Mr. Salahuddin Sumbal, M.I.C. (P.W.5). Therefore, question No.23, ought not to have been put to him. Any how, the appellant's reply to question No.23 is relevant and reproduced below for ready reference:-- "... I and my co-accused were arrested much earlier and we were got under illegal confinement. Shafqaat, D.S.P., Ichhra on pistol point got certain written statements recorded in cassette and then I threat (threatened) that if we would not read the same statement before the Magistrate we would be killed in the fake police encounter. He did take us to the Magistrate in his presence read out certain statements which had been attributed to us as our confessional statements."

44. The appellant's denial clearly amounts to retraction of his confession (even if proved to have been made by him). After retraction of confession, the ball is again thrown in the Court of prosecution to prove through reliable corroborative material that Waseem Aslam, appellant was really a co conspirator.

45. The prosecution has relied on the following items of recoveries made from the place of occurrence (Hotel International) on 19-12-1990:-- (1) Bloodstained earth vide recovery memo. (Exh.P.KK.). (2) 9 empties P.34/1-9 of klashnikov (Exh.P.LL.). (3) Mercedes Car No.CC-29-AF (Exh.P.MM.). (4) Pieces of glasses of car and chain of wrist watch (Exh.P.NN.) All the above recoveries were witnessed by Ramzan Ali Shah(P.W.28) and Munir Hussain Sherazi (P.W.29) and Yawar Hussain (not produced). The police also recovered Taxi Car No.SAA-5606 parked by Tariq Maqsood (P.W.18) vide recovery memo. Exh.P.Z. witnessed by the taxi driver Tariq Maqsood (P.W.18), Munir Hussain Sherazi (P.W.29), Musaddaq Ahmad Khan, A.S.-I. (not produced) Muhammad Shaft, Constable No.4322(not produced). On 20.12.1990 Maj. (Retd.) Abdul Qadeer S.P. Special Branch, Anti Terrorist Cell recovered two empties of 7.62 MM(Exh.P.23/1-2) from the taxi parking area outside the hotel. He also recovered two bullet heads (P.21 and P.22), fuse assembly (P.23) and thirteen Pieces of hand grenade (P.24). He being the technical expert of the Explosive Cell expressed the opinion that the pieces of the grenade and fuse assembly were of a U.S.S.R. combat grenade called RGD-5 Anti-Personnel Grenade.

46. The prosecution also relied on certain incriminating recoveries made from Qartaba Chowk/Mozang Chungi where Haq Nawaz was injured and apprehended by the police on 19-12-1990. These recoveries are as follows:-- (1) 3 empties of klashnikov Exh.P.7/1-3 recovered vide memo. Exh.P.Q., witnessed by Muhammad Boota H.C. (P.W.13), Zahoor-ul-Haq S.-I./S.H.O., Police Station, Lytton Road (P.W. 23) and AkW Ali Shah, S.-I. (not produced). (2) Klashnikov Exh.P.8 with magazine P. 9 and ten bullets P.10/1-10 (3) One hand grenade P.11 (4) One .30 bore Mouser P.12 with 7 bullets P.28/1-7 secured vide recovery memo. Exh.P.R. witnessed by Muhammad Boota H.C. (P.W.13), Amjad Ali, S.-L(P.W.19) and Agha Mujahid Abbas Inspector/S.H.O., Police Station Samanabad (P.W.25). (5) The personal belongings of the unknown person (later known as Haq Nawaz prescription of doctor P.13, a piece of plastic green coloured P.14, 8 live bullets P.15/1-8, silver ring P.16, sectarian badge P.17 and a Commando Jacket P.18 secured vide recovery memo. Exh.P.S. witnessed by Muhammad Boota (P.W.13), Aslam A.S.-I. (P.W.14), Zahoor-ul-Haq (P.W.23) and Akbar Ali Shah S.-I. (not produced). (6) Further the police took into possession motor-cycle No.LHU-6310 P.19 with registration book P.20, driving licence P.21 and I.C., Card P.22 vide recovery memo. Exh.PT witnessed by Muhammad Boota H.C. (P.W.13), Zahoor-ul-Haq S.-I. (P.W.23) and Akbar Ali Shah, S (not produced). (7) After the arrest of the accused persons the police recovered motorcycle No. LHJ 8720 on 29-12-1990 from Muhammad Hussain alias Kaka vide recovery memo. Exh.P.W. witnessed by Muhammad Siddiq S.-I. (P.W.16), Shafqaat Ahmad, D.S.P. (P.W.30) and Muhammad Sharif, H.C. (not produced). Motorcycle No. LEJ-9863 was recovered from Waseem Aslam, appellant on 31-12-1990 vide recovery memo. (Exh.P.Y.). He also led to recovery of two .30 bore pistols/mousers (P.1 and P.2) from his house with magazines (P.3, P.4, and P.5) and twenty-one bullets (P.6/1-21), secured vide recovery memo. (Exh.P.P.), witnessed by Shoaib Zaman, Inspector/S.H.O. Police Station Wahdat Colony (P.W.12), Muhammad Riaz, S.-I. (not produced) and Ghulam Muhammad, H.C. (not produced). On 30-12-1990 the police recovered posters from the office of the Anjuman which were secured vide recovery memo. Exh.P.X.. All the above recoveries were made through sealed parcels except 10 live bullets and the hand grenade P11 recovered from Haq Nawaz appellant from Qartaba Chowk.

47. The recoveries of 9 empties (P.34/1-9) was made by Munir Hussain Sherazi (P.W.29) through a sealed parcel vide recovery memo. (Exh.P.LL.). It was witnessed by Ramzan Ali Shah (P.W.28) and Yawar Hussain (not produced). It was forwarded to the Fire Arms Expert who received it intact in the sealed parcel. Both P.W.28 and P.W.29 stated in the Court that the parcel in respect of recovery. of 9 empties was properly sealed. Similarly, recovery of 3 empties of Klashnikov from Qartaba Chowk was made through a sealed parcel vide recovery memo. (Exh.P.Q.) which was proved through the statements of Muhammad Boota H.C. (P.W. 13) and Zahoor-ul-Haq S.-I. (P.W.23). Amjad Ali S.-I. (P.W.19) and Mujahid Abbas (P.W.25). deposed to the recovery of Klashnikov (P.8), bullets (P.10/1-10), hand grenade (P.11) and pistol (P.12). These were secured through sealed parcel vide recovery memo. (Exh.P.R.). There is no serious infirmity in the statements of the recovery witnesses. It is true that two items of recovery i.e. ten live bullets (P.10/1-10) were seen by Capt. Inayat Ullah Khan, C.W.1, in Police Station, Lytton Road, Lahore, on 19-12-1990 at 9-30 p.m. and that the hand grenade P.11 was seen by Major (Retd.) Abdul Qadeer, (P.W.15), in the same police station. Probably these items were to be shown to the Experts for their technical opinion and were kept unsealed for some time to await their arrival. Normally, this is not to be done, but keeping in view the peculiar facts and circumstances of this case, we are not inclined to draw an inference against the prosecution. The empties found from the compound of the Hotel International and Chowk Qartaba, as well as the klashnikov had been secured through separate sealed parcels. Therefore, the fate of the case did not hinge upon the live bullets. The prosecution case could be proved even in the absence of recovery of live bullets. So far as the hand grenade is concerned, it is a Russian combat grenade called RGD-5 Anti Personnel. It was not possible to procure and plant the said grenade within a short period of time between 8-00 to 9-30 p.m. The recovery of this grenade is an additional circumstance against Haq Nawaz appellant though the case is even otherwise established against him on the basis of remaining evidence. As discussed above, Haq Nawaz, appellant had admitted in his confessional statement (Exh.P.C./3) that after firing at Sadiq Gunji, he came on Mall Road, and threatened that if any one pursued him he would not leave him alive; that while escaping from the spot, he threw a hand grenade towards the hotel so that no one may chase him. Major (Retd.) Abdul Qadeer (P.W.15), an Expert from the Anti-Terrorist Cell gave his technical opinion that the fuse assembly (P.23) and 13 pieces of the hand grenade found from the spot pertained to RGD-5 Anti-Personnel grenade of Russian origin and that the grenade recovered from the unknown person (Haq Nawaz appellant) was also of the same type. The Expert is an independent witness and his opinion carries considerable weight.

48. The other important articles of recoveries are 9 crime empties P.34/1-9 and klashnikov P.8, 3 crime empties P.7/1-3, hand grenade PAL Fuse assembly P.23 and pieces of hand grenade P.24. The report of the Technical Services Crime Branch Punjab Lahore (Exh.P.VV.) showed that 9 crime empties P.34/1-9, 3 crime empties P.7/1-3 and the klashnikov P.8 were received in the office in sealed covers. The opinion of the expert is that the said empties had been fired from the rifle/klashnikov of 7.62 MM bearing No.21783. The points of similarity were highlighted in the report. The correctness of this report was not challenged by the defence. This report provides strong corroboration against Haq Nawaz appellant as klashnikov bearing No.21783 was recovered from him at the time when he got injured at Qartaba Chowk shortly.after the occurrence.

49. The appellant's learned counsel had urged that an unknown person was injured at Qurtaba Chowk who was taken to the hospital by a private person named "Inayat" and that later the name Muhammad Arif A.S.-I. was inserted to show that the injured was brought by the police. It is true that originally an un known person reached the hospital and was examined by the doctor but it is wrong to assert that he was taken there by one "Inayat". We have seen the medico-legal report (Exh.P.H.). It appears that words "Inayat A.S.-I." were originally written in the same and then the word "Inayat" was scored out and instead "Arif" written by the doctor. It is on the record that the doctor had worked only for 19-days and did not have much experience of handling medico legal cases. Probably due to haste and confusion he originally noted down a wrong name and then corrected his mistake. It is significant to mention that at Qurtaba Chowk where the "unknown person" was injured, a number of police officials were present who were attracted to the spot, therefore, it was not possible for any private person to take the injured person to the hospital. Moreover, it is not the defence case that the person injured at Qurtaba Chowk was some person other than Haq Nawaz, appellant. Hence the error committed by the doctor was an ordinary human error which did not create any dent in the prosecution case qua Haq Nawaz, appellant,

50. The prosecution has relied on the recovery of motorcycle No.LEG-9863 from Waseem Aslam, appellant to prove that he had gone to Hotel International along with his co-accused to execute the conspiracy to commit murder of the deceased. As discussed above, we have disbelieved the prosecution story regarding chase of the accused persons by the complainant party and noting down of numbers of motorcycles by Mujahid Hussain (P.W.20). Excluding the said evidence, recovery of motorcycle from Waseem Aslam, appellant, per se, does not advance the prosecution case. For the same reason recovery of motorcycle No. LHJ-8720 from Muhammad Hanif, appellant cannot serve as a corroborative piece of evidence. Similarly, recovery of two .30 bore pistols (P1 and P.2) with magazine (P.3 to P.5) and bullets (P6/1-21) from the house of Waseem Aslvn, appellant, is inconsequential because no empty of a 30-bore pistol was found from the spot. The last mentioned recovery was not made under "such circumstances as to give rise to a reasonable suspicion" that he had committed the offence of murder. At the most he could have been tried for recovery of unlicensed weapons from him.

51. There is also weight in the argument raised by the learned AAG that the record of the case was tampered with and the first inspection note prepared by Munir Hussain Sherazi (P.W.29) and the site plan prepared by Younas Ali Shah (P.W.7) were replaced. The names and other particulars of the assailants were not known to the police on 19-12-1990 when the site was inspected and rough sketch of the place of occurrence (Exh.P.QQ.) was prepared by the Investigating Officer. But surprisingly in the inspection note Mark "A" which was disowned by (P.W.29) names of the accused persons have been mentioned. Similarly in Exh.P.L. the names of the accused persons and the places where they were allegedly present at the time of occurrence have been shown. This appears to have been done at a belated stage when the names and other particulars of the accused persons had been known. Younas Ali Shah (P.W.7) has admitted that he is resident of Mohallah Chah Pichhawara Mozang where Waseem Aslam accused was also residing. Waseem Aslam, as mentioned above, was employed as an ASI in the police department. The possibility that Younas Ali Shah was won over by Waseem Aslam, changed the original site-plan and managed to bring Exh.P.L. on the record cannot be ruled out. He made an obliging concession in favour of the defence by saying that he had heard (on 19-12-1990) that one or two accused persons had been arrested. He admitted that he had appeared as a witness in more than 200/300 cases but the question about arrest of the accused was put to him for the first time. He stated, "So far I must have prepared 300/400 site plans ever since I am working as draftsman. Normally I prepare two originals and one photo-stat of the site plan". This shows that he is a fairly experienced person having full knowledge of what is to be done in the normal course. Despite that, he stated that in the present case he had prepared only one site plan. He denied the suggestion that he had prepared two originals which were different from Exh. P. L. and handed over to the police and that in connivance with Waseem Aslam, removed the same subsequently before submitting the challan in the Court. But the facts on the record speak aloud to contradict him. A site plan prepared by a draftsman always contains the notes of the investigating officer in red ink but these are conspicuously about from the site plan (Exh.P.L.) Munir Hussain Sherazi (P.W.29), the investigating officer had disowned the site-plan (Exh.P.L.) and clearly stated that the plan got prepared by him through Younas Ali Shah (P.W.7) contained his notes in the red ink. His precise statement is these words:-- .... The drafts-man produced before me three site-plans on 21-12-1990. Site-plan (Exh.P.L.) is not one of those site plans. The site-plan which was handed over to him by the drafts-man had notes in red ink in my hand. I had placed two out of the said three plans on the judicial and one was placed on the police file."

52. The Investigating Officer also stated that site-plan (Exh.P.L.) was not available on the police file. From these facts it can be safely gathered that the original site-plan was manoeuvred to have been replaced with Exh.P.L., that P.W.7 was won over by the accused and was rightly declared hostile by the prosecution. We are not inclined to place reliance on his evidence except to the extent of the portion fully corroborated by other independent and reliable evidence. In the case of The State v. Abdul Ghaffar 1996 SCMR 678 the Honourable Supreme Court of Pakistan discussed the relevant principles governing testimony of hostile witness and ruled as under:-- "In the light of the above principles it is settled that the testimony of a hostile witness cannot be altogether left out of consideration. The evidence of a hostile witness has to be considered like the evidence of any other witness but with a caution for the simple reason that the witness has spoken in different tones. When a witness speaks in different voices, it would be for the Court to decide in what voice he speaks the truth. In such cases the determining test is corroboration from independent source and conformity with the remaining evidence."

53. We may observe here that a site-plan is not a substantive piece of evidence and cannot be used to contradict or discredit the eye-witnesses unless they are confronted with the same. It can be referred to for determining the respective positions of the accused and the deceased if it is prepared by a draftsman on pointing out of their positions by the eye-witnesses, as held in the case of Muhammad Ahmad v. The State 1997 SCMR

89. It is indeed a relevant and supporting document and can be considered if duly proved at the trial. Before the entries made in the site-plan are given any weight, the Investigating Officer, and the draftsman while appearing as witnesses must state on whose pointing out they had indicated the exact points marked in the site-plan. If no such statement exists then the site-plan will be of no evidentiary value as held in the case of Gul Mir v. The State PLD 1980 SC

185. Generally, the site-plan if duly prepared and proved can be helpful to understand the manner in which the occurrence had taken place. In the present case, site-plan (Exh.P.L.) and the inspection note (Mark "A") appear to be suspect documents and cannot be relied upon to prove that names of all the accused persons and precise places of their presence at the time of occurrence were known to the prosecution on 19-12-1990. In the present case, reference can be made to the site-plan (Exh.P.QQ.) which was prepared and proved by P.W.29.

54. We may also observe that although it is appreciable that the trial Court painstakingly concluded the lengthy trial and delivered judgment within a short period of about 34 days, yet the judgment appears to be deficient in respect of critical evaluation and analysis of the evidence on the record. The trial Court wrongly observed that P.Ws.18, 20, 21 and 26 had vehemently deposed about the presence of "Haq Nawaz" accused at the place of occurrence. In fact they had not named any accused but merely stated that a person wearing a green jacket came forward and fired with a klashnikov at the deceased. Haq Nawaz was connected with commission of the offence on the basis of reliable evidence on the record including the recoveries and the attendant circumstances of the case. The trial Court readily believed the story of chase of the accused by the complainant party without considering the relevant facts and probabilities of the case. The Court also made a mistake in relying on the result of identification parades conducted by Muhammad Afzal Khan Leghari, M.I.C. (P.W.2) and Rana Javed Ahmad Khan, M.I.C. (P.W.3), the confessional statements made by Zaki Ullah, Muhammad Arif, Muhammad Hussain and Muhammad Hanif appellants without carefully examining the facts, the legal provisions and instructions governing conduct of an identification parade and recording of a confessional statement. Similarly, the Court below wrongly treated recoveries of motorcycles from Muhammad Hanif and Waseem Aslam, appellants as corroboration against them. We may emphasize that even if the Court was morally convinced about the involvement of all the accused in the conspiracy to kill the deceased, it was its bounden duty to sift the grain from the chaff and convict the accused against whom the case was proved beyond any shadow of doubt.

55. For the foregoing discussion, the appeal filed by Haq Nawaz, appellant is dismissed, his convictions and sentences awarded by the learned Special Judge, are maintained and the connected appeal (Criminal Appeal No. 313 of, 1991) filed by Zakiullah etc. is accepted and they are acquitted of the charged' against them.

56. Before parting with the judgment we would like to place on record our appreciation of the valuable assistance rendered by the learned counsel for the appellants and the learned Assistant Advocate General. N.H.Q./H-76/L Order accordingly.