2007 PLP 1893 (SCMR)

RANA BHAGWANDAS, ACTG. C.J.

Aforesaid identical petitions are directed against consolidated judgment of the Peshawar High Court dated 18-5-2004 dismissing petitioners' appeals against their convictions and sentences.

2. Petitioners were tried by Judge', Anti-Terrorism Court, Peshawar on the charge under section 17(4), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979) and sections 397, 149, 412, P.P.C. read with section 7 of the Anti-Terrorism Act, .1997 (hereinafter referred to as the Act, 1997) for committing murder of deceased Tanosh and Zulfiqar Hussain during the course of committing offence of Haraabah. All the petitioners were convicted under section 17(4) of the Ordinance, 1979 read with section 7 of Act, 1997 and sentenced to death. They were convicted under section 397/149, P.P.C, and sentenced to suffer rigorous imprisonment for seven years. They were also convicted under sections 412/149, P.P.C. read with section 7 of Act, 1997 and sentenced to rigorous imprisonment for seven years and fine of Rs.20,000 or in lieu thereof to suffer rigorous imprisonment for one year.

3. Unfortunate episode leading to the commission' of dacoity of a sum of Rs.25,00,000 from 'a van of Brinks `Company carrying cash amount for United `Bank Limited; Mandani Branch took place at Khweshi-Charsada road on or about 21-9-2000 at' about 10-15 a.m. It is stated that deceased Tanosh was serving as driver 'in the van while Zulfiqar Hussain was performing the duties of a guard when they were way laid' by the petitioners' and fired at' by petitioner tamshed and Ihsanullah leading to the instantaneous death of two persons and causing injuries 'to complainant Muhammad Zubair P.W.10. It is alleged that apart from cash amount of Rs.2500,000, respondents committed dacoity of repeater gun from Muhammad Zubair P. W.10.

4. During the course of investigation petitioners Nadeem and Jan Muhammad made judicial confession before a Judicial Magistrate on 28-10-2000 and 30-10-2000 respectively, impleading them elves as well as their co-accused, including Rehmatullah, who is a fugitive from law and declared as proclaimed offender. After arrest, upon interrogation, various amounts 'were recovered by' Investigating Officers- from the petitioners "' with the exception' of petitioner'" Jan Muhammad. An identification parade was arranged before Tehsildar, Peshawar in Central Prison, Peshawar on 3-2-2001 where the petitioners were confined when petitioner Samin was correctly identified by Muhammad Zubair P.W.10. The car used in the commission of-the crime' was also- recovered at the pointation of petitioner Mire Zeman. On completion of investigation, petitioners were brought to book where their trial ended, as aforesaid. They appealed against their convictions and sentences. Trial Court also referred the case for confirmation of sentence of death, which has been confirmed and appeals against convictions and sentences dismissed.

5. We have heard Syed Zafar Abbas Zaidi, learned Advocate Supreme Court for the petitioners and Mr. Muhammad Zeman Bhatti, learned Advocate Supreme Court for the State.

6. It is, inter alia, contended that the names of the petitioners do not transpire in the F.I.R. and` their features and descriptions are not mentioned therein; that entire case rests upon retracted judicial confessions of two of the petitioners recorded after seven and nine days of their arrest; that there is no nexus and satisfactory circumstantial evidence on the basis whereof the petitioners were arrested, except hearsay and inadmissible evidence of Aziz Muhammad P.W.19 connecting the petitioners with the commission of the crime.

7. After hearing learned counsel for the parties, we are inclined to grant leave for reappraisal of evidence, in. order to ensure that principles for appreciation of evidence and safe dispensation of criminal justice system have been fully adhered to by the High Court while upholding the sentence of death. Order accordingly. N.H.Q./M-70/SC??????????????????????????????????????????????????????????????????????????????? Leave granted.