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Petitioner: Muhammad Ashfaq Qureshi and others VS Respondent: The State
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Zulfiqar Ali Sangi Title: Muhammad Ashfaq Qureshi and others vs The State Case No.:Special Criminal Anti-Terrorism Appeals Nos. 39, 40, 41 of 2010 and
JUDGMENT
Reported As: 2022 YLR 1054 Result: Order accordingly Judgment JUDGMENT MOHAMMAD KARIM KHAN AGHA, J. Appellants Muhammad Amin alias Khalid Shaheen alias Abdullah son of Muhammad Sharman, Sultan Mehmood alias Saifullah alias Muslim son of Syed Talib, Muhammad Rehman alias Mani son of Jondar Khan, Muhammad Ashfaq Qureshi son of Muhammad Akhlaq, Muhammad Akbar Khan son of Haji Umarddin Khan and Rahimullah alias Naeem alias Ali Hassan son of Willayat Khan have preferred these appeals against the impugned judgment dated 30.09.2010 passed by the learned Judge Anti-Terrorism Court No.III, Karachi in Special Case No.24 of 2006, FIR No.85 of 2006 under sections 324/427/109/120/34, P.P.C. read with section 7(a) of ATA, 1997 registered at Police Station Mubina Town (AVCC) and Special Case No.25 of 2006, FIR No.332 of 2006 under sections 324/427/109/120/34, P.P.C. and section 3/5 Explosive Substances Act, 1908 read with section 7(a) of ATA, 1997 registered at Police Station Sachal (AVCC), Karachi whereby the appellants have been convicted and sentenced as under: - (i) Accused Muhammad Amin Sultan Mehmood and Muhammad Rehman were convicted and sentenced to death under section 7(a) of Anti-Terrorism Act, 1997 read with section 120(b) subject to confirmation by this court and fine of Rs.100,000/- each. In case of default in payment of fine they were ordered to undergo R.I. for 03 years more. (ii) Accused Ashfaq, Akber Khan and Raheemullah were convicted and sentenced to imprisonment for life under section 7(a) of Anti-Terrorism Act, 1997 along with fine of Rs.100,000/- each. In case of default in payment of fine they were ordered to undergo R.I. for 03 years more. (iii) Accused Muhammad Amin, Sultan Mehmood, Muhammad Rehman, Ashfaq, Akber Khan and Raheemullah were convicted and sentenced to imprisonment for life under section 7(b) of
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Anti-Terrorism Act, 1997 along with fine of Rs.50,000/- each. In case of default in payment of fine they were ordered to undergo imprisonment for one year more. (iv) Accused Muhammad Amin, Sultan Mehmood, Muhammad Rehman, Ashfaq, Akber Khan and Raheemullah were convicted and sentenced under sections 7(c) and (d) of Anti-Terrorism Act, 1997 for punishment of 10 years and fine of Rs.25,000/- In case of default in payment of fine they were ordered to undergo imprisonment for one year more. (v) Accused Muhammad Amin, Sultan Mehmood, Muhammad Rehman, were convicted and sentenced to imprisonment for life under section 7(ff) of Anti-Terrorism Act, 1997. All the punishments of imprisonment were ordered to be run concurrently while benefit of section 382(b), Cr.P.C. is awarded only to accused Akber Khan. 2. The brief facts of the prosecution case No.24/2006 according to 154, Cr.P.C. statement of Complainant Syed Muhammad Ali Shah son of Akbar Ali Shah dated 06.04.2006 is that at about 12:00 p.m. He along with Allama Hassan Turrabi, Murtaza Turrabi son of Hassan Turrabi, Gunmen P.C. Mashooq Ali and Deedar left the house of Allama Hassan Turrabi in Maroon coloured Toyota SUV vehicle bearing No.BB-9832 to attend meeting of MMA held at Idara-i-Noor-ul-Haq Dawood Engineering College towards Abul Hassan Isfahani Road through Miskan Chowrangi and Murtaza Turrabi was driving the vehicle and gunmen was sitting by his side. When the vehicle reached Sahafi bridge, opposite Bleez Garden on Abul Hassan Isfahani Road, a bomb blasted in a pushcart parked at the left side of bridge as a result of which Murtaza Turrabi and gunmen Mashood received injuries but Allama Hassan Turrabi was safe while a motorcyclist and other persons passing by the side of the road also received injuries. A police mobile immediately reached there and shifted the passerby and another injured person to hospital. The vehicle was also damaged with its tyres and glasses being broken. He further stated that some unknown persons had made this blast with intention to kill Allama Hassan Turrabi and persons sitting in the vehicle by some explosive material and to damage the vehicle. 3. While the brief facts of the prosecution case No.25/2006 according to 154, Cr.P.C. statement of Complainant Shafat Hussain are that on 14.07.2006 his meeting was fixed with Allama Hassan Turrabi at 4:00 p.m. and as per promise of meeting he reached at house No.A/59, Abbas Town where he came to know that Allama Sahab had not reached at his house so he stood at a nearby shop awaiting his return and after about 5/6 minutes vehicle No.BB-9832 of Allama Hassan Turrabi Sahab came followed by a police mobile and it stopped in front of his house where after the complainant moved towards the house of Allama Hassan Turrabi and saw that Allama Sahab was moving towards his house in front of his vehicle. The Complainant saw a boy aged about 20/21 years move towards Allama Sahab but Imran Ali the nephew of Allama Sahab pushed the boy back where after a blast occurred and smoke spread in the area. He made cries and other persons gathered. Consequently Allama Sahab and police personnel who received injuries with the help of the complainant and of police driver and other persons shifted Allama Sahab who was seriously injured and guards who were also injured in police mobile and sent them to hospital. Imran Ali expired at the spot. He saw the boy who rushed towards Allama Sahab whose body after the blast was lying spread in the shape of pieces of flesh and his foot was lying at the corner of street but his head was complete which was lying on the spot. He also saw one hand grenade lying in front of house of Allama Sahab and at the time of incident Muhammad Yaqoob and Jaffar Raza were also present. Allama Hassan Turrabi during treatment at Patel Hospital succumbed to his injuries. He further stated that the murder of Allama Hassan Turrabi was in continuity of the incident of Nishtar Park and murder of other Ulmas. He claimed that accused who died at the spot and other secret hands were behind the murder of Allama Sahab and Imran Ali and injured police guards by means of explosive material and damaged the vehicle No.BB-9832. Such statement under section 154, Cr.P.C. was incorporated in the FIR of Crime No.332/2006 at Police Station Sachal Karachi.
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4. After registration of the FIRS, usual investigations were carried out and on the conclusion of the investigations the matter was sent up for trial. The Charge was framed against the accused all of whom pled not guilty and claimed trial. 5. In order to prove its case the prosecution examined 37 PW's who exhibited various documents and other items in support of the prosecution case where after the prosecution closed its side. The statements of the six accused persons under section 342(1), Cr.P.C. were recorded and all the accused denied the entire facts of the case claiming themselves to be innocent and stating that it was a case of false implication as the police were under pressure to arrest and convict some one in the case because it was a high profile one. 6. Learned Judge, Anti-Terrorism Court-III, Karachi, after hearing the learned counsel for the parties and assessm ent of evidence available on record, vide the impugned judgment dated 30.09.2010, convicted and sentenced the appellants as stated above, hence these appeals have been filed by each appellant against his conviction and sentence as handed down in the impugned judgment. 7. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment, therefore, the same are not reproduced here so as to avoid duplication and unnecessary repetition. 8. Learned counsel for appellant Muhammed Akbar Khan has contended that he is completely innocent and that there is no evidence against him; that he did not make any judicial confession; that he has been named by other co-accused in their judicial confessions which legality is doubtful and he cannot be convicted on such confessions unless there is strong unimpeachable corroborative evidence against him; that there is no corroborative or other evidence against him as there is no eye-witness against him and no recovery has been made from him when he was arrested on a motor bike along with Muhammed Ashfaq and as such for any of the above reasons based on the benefit of the doubt being extended to him he should be acquitted of the charge. In support of his contentions he has placed reliance on Kachkol v. The State (1997 PCr.LJ 352), Sheer Shah and another v. The State (1997 PCr.LJ 153), Bahadur Khan v. The State (PLD 1995 SC 336), Alif Gul v. Noor Afzal and others (PLD 2009 Peshawar 20), Mumtaz Bibi and others v. Ghulam Akbar (PLD 1995 Peshawar 81), Anwar Bibi and others v. Raja (1997 SCMR 1081), Mah Gul v. The State (2009 SCMR 4), Muhammad Yamin alias Raja v. The State (2009 SCMR 84) and Mursal Kazmi alias Qamar Shah v. The State (2009 SCMR 1410). 9. Learned counsel for appellant Muhammed Ashfaq has contended that he is completely innocent and that there is no evidence against him; that he did not make any judicial confession; that he has been named by other co-accused in their judicial confessions which legality is doubtful and he cannot be convicted on such confessions; that there is no corroborative or other evidence against him as there is no eye-witness against him and no recovery has been made from him when he was arrested along with appellant Muhammed Akbar Khan and as such based on the benefit of the doubt being extended to him he should be acquitted of the charge. Learned counsel for appellant Rahimullah has contended that he is completely innocent and that there is no evidence against him; that he did not make any judicial confession; that has been named by other co- accused in their judicial confessions which legality is doubtful and he cannot be convicted on such confessions; that there is no evidence against him in respect of the first incident; that the only other evidence against him concerns the second incident which lead to the death of the deceased whereby PW 2 Shafat and PW 19 Jaffa Raza identified him at the place of incident but even otherwise their identification of him cannot be safely relied upon as when they picked him out at the identification parade no role had been assigned to him and as such for any of the above reasons based on the benefit of the doubt being extended to him he should be acquitted of the charge.
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10. Learned counsel for appellant Sultan Mahmood has contended that his confession is inadmissible in evidence because it was neither made voluntarily and nor is it true; that his confession was recorded after a delay of 6 days after his arrest whilst in police custody; that there were numerous procedural defects in his confession such as him not being informed that he would not be returned to police custody if he failed to confess; that in respect of the first incident of the attempted murder the two eye-witnesses against him (PW 7 Rana Qasim and PW 8 Whammed Faisal) were chance witnesses, that the identification parade was made 15 days after his arrest and that they had not assigned him any role in the offense and as such their eye-witness evidence could not be safely relied upon; that with regard to the second incident which lead to the death of the deceased all the eye-witnesses against him (PW 1 Yaqoob, PW 2 Shafat, PW 16 HC Muktar, PW 19 Jaffa Raza; PW 26 PC Altaf and PW 27 Jawed) were chance witnesses; that none of the identification parades could be safely relied upon as they were joint identification parades and no role had been assigned to him and there was also procedural defects in all the identification parades which lead to any reliance of them being unsafe and as such for any of the above reasons based on the benefit of the doubt being extended to him he should' be acquitted of the charge. In support of his contentions he placed reliance on Kanwar Anwaar Ali (PLD 2019 SC 488), Javed Khan alias Bacha v. The State (2017 SCMR 524), Azhar Mehmood v. The State (2017 SCMR 135), Sabir Ali alias Fauji v. The State (2011 SCMR 563), Muhammad Ayaz v. The State (2011 SCMR 769), Kamal Din alias Kamala v. The State (2018 SCMR 577), Nazir Ahmad v. Muhammad Iqbal (2011 SCMR 527), Azeem Khan v. Mujahid Khan (2016 SCMR 274), Muhammad Azhar Hussain v. The State (PLD 2019 SC 595), Muhammad Pervez v. The State (2007 SCMR 670), Mehro Khan v. Anwar and 2 others (2017 PCr.LJ Note 233), Ghous Bux v. Saleem and 3 others (2017 PCr.LJ 836), Tariq v. The State (2013 PCr.LJ 1786), Noor Muhammad v. The State (2017 PCr.LJ 479), Mah Gul v. The State (2009 SCMR 4), Abdul Jabbar v. The State (2019 SCMR 129), Basharat Ali v. Muhammad Safdar (2017 SCMR 1601), Muhammad Zubair v. The State (2010 PCr.LJ 1892), Muhammad Fazil v. Bashir Ahmad (2009 SCMR 1382), Muhammad Asif v. The State (2017 SCMR 486), Muhammad Akram v. The State (2009 SCMR 230) and Tariq Pervez v. The State (1995 SCMR 1345). 11. Learned counsel for appellants Muhammed Amin and Muhammed Rehman adopted the arguments of learned counsel for the appellant Sultan Mahmood whose cases were on a similar footing and also in addition contended that the appellants were already in custody in respect of an offense under the Arms Ordinance when they were arrested in this case and that the arms had been foisted on them in order to falsely implicate them in this case; that the raid which lead to their arrest was in fact fabricated which was shown by the fact that despite the house where they were allegedly arrested from being in a thickly populated area no independent mushir was associated in violation of section 103, Cr.P.C.; that there were contradictions in the statements of the PW's regarding the second incident which lead to the death of the deceased in that PW 14 HC Azhar Hussain had stated that the deceased went into his house after the blast and then came out in an injured condition where as other PW eye-witnesses had stated that the deceased had not gone into the house after the blast; that the parts of the suicide bomber were not produced in court and neither were the mother or the son who the suicide bomber's CD was recovered from examined as PW's; that the investigation had been conducted by an ASI as opposed to an Inspector which was the requirement under the ATA and as such for any of the above reasons based on the benefit of the doubt being extended to them both the appellants be acquitted of the charge. In support of his contentions he has placed reliance on Tariq Pervez v. The State (1995 SCMR 1345), Abdul Jabbar v. The State (2019 SCMR 129), Mehmood Ahmad v. The State (1995 SCMR 127), Mursal Kazmi alias Qamar Shah v. The State (2009 SCMR 1410), Mah .Gul v. The State (2009 SCMR 4), Rahat Ali v. The State (2010 SCMR 584) and Muhammad Ali v. The State (2002 PCr.LJ 1631).
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12. Learned DPG has contended that the prosecution has proved its case against all the appellants beyond a reasonable doubt and that the impugned judgment should be upheld and the sentences handed down to all the appellants be maintained and the appeals dismissed. In particular he has stressed upon the confessions of three appellants all of which have been carried out in accordance with law and even otherwise slight defects in the same may be over looked; that all the appellants have been identified by numerous eye-witnesses in respect of, both the first and second incidents all of whose evidence is reliable, trust worthy and confidence inspiring especially in connection with the identification of the appellants and that all the eye-witnesses picked out the accused from the identification parades which were carried out in accordance with the law and even if such identification parades had some minor procedural defects we could still safely rely on them under the law. In support of his contentions he placed reliance on Muhammad Zaman v. The State (2007 SCMR 813), Raz Muhammad v. The State (PLD 2002 Supreme Court 56), Nazeer alias Wazeer v. The State (PLD 2007 Supreme Court 202), Manjeet Singh v. The State (PLD 2006 Supreme Court 30), Khan Muhammad and others v. The State (1999 SCMR 1818) Rehmat Ali alias Baba and another v. The State (2002 YLR 3860), Abdul Haq and another v. The State (2015 SCMR 1326), Dadullah and another v. The State (2015 SCMR 856) and Majeed v. The State (2010 SCMR 55). Learned counsel for the complainant adopted the arguments of the learned DPG and fully supported the same. 13. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellant and the impugned judgment with their able assistance and have considered the relevant law including that cited at the bar. 14. It appears that the case of the prosecution in a nut shell is that the appellants had conspired to murder the deceased and that they initially planned to murder him by planting an explosive device in a hand cart which was detonated in the presence of and with the active involvement of some of the accused when his car passed by on the road but that this attempt failed and resulted in the bomb blast causing a few injuries to some persons near the place of incident but with the deceased being left unharmed. That having failed in this initial attempt to murder the deceased the accused then again in continuation of their earlier conspiracy again conspired to murder the deceased by a plan to murder him through a suicide bomber after he returned to his house after attending a function. On this occasion the plan was successful as the suicide bomber activated his device in the presence of and with the active involvement of the accused when the deceased got out his car which bomb blast of the suicide bomber murdered the deceased as planned as well as his nephew and caused injuries to at least 3 police guards. 15.Thus, as can be seen, the prosecution case essentially breaks down into three parts which were in continuation of the same conspiracy/ intention to murder the deceased. Firstly, the conspiracy to murder the deceased, secondly the failed attempt to murder the deceased in pursuance of that conspiracy and finally in pursuance of that conspiracy the successful murder of the deceased through a suicide bomber. 16. In our view after our reassessm ent of the evidence based on the evidence of the PW's and other evidence on record we are satisfied that the prosecution has proved beyond a reasonable doubt that on 06-04-2006 at about 1210 hours at Abul Hassan Isphahani Road adjacent to Breeze Garden Karachi an attempt was made to murder the deceased by causing a bomb blast whilst he was proceeding in his vehicle. This position is not disputed by the appellants. 17. In our view after- our reassessm ent of the evidence based on the evidence of the PW's including the PW MLO's, inquest reports under section 174, Cr.P.C., the fact that a number of PW's suffered injuries caused by pellets which are commonly used in suicide bomber attacks as they are often placed in the suicide vest along with ball barrings in order to cause maximum casualties and damage to property, recoveries of pellets at the scene, blast damage to the vehicle of the
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deceased, BDU report and other evidence on record we are satisfied that the prosecution has proved beyond a reasonable doubt that on 14-07-2006 at about 4.05 p.m. a suicide bomber named Karim Bungali along with the assistance of his accomplices detonated his suicide bomb in front of house No. A/ 59 Abbas Town which caused the intentional death of the deceased and his nephew Imran Ali and injured at least 3 others which also caused damage to property. This position is not disputed by the appellants. 18. The issues therefore, in our view, left before us to determine are (a) whether there was a criminal conspiracy by the accused to murder the deceased which lead the accused to plan and execute both the attacks on the deceased, (b) whether any of the accused played any role in that conspiracy which lead to the attempt to murder the deceased which failed and (c) whether any of the accused played any role in the conspiracy to murder the deceased which was successful. 19. In our view after our reassessm ent of the evidence we find that the most important aspects in dealing with the above issues are (a) the confessions of three of the accused and (b) the identification of the accused at the scene of either the attempted murder and/or the actual murder of the deceased. Turning firstly to the issue conspiracy. 20. In our view the confessions of the accused lay at the heart of proving this aspect of the matter in addition to the first failed attempt to murder the deceased and the later successful murder of the deceased. The confessions. 21. Three of the appellants made confessions all on 01-08-2006 being 6 days after their arrest whilst in police custody namely, Muhammed Amin, Sultan Mahmood and Muhammed Rehman which not only fully implicated themselves in the criminal conspiracy to murder the deceased but also the three other appellants Muhammed Akber Khan, Muhammed Ashfaq and Rahimullah. 22. All the three confessions are similar but are not identical so for ease of reference only the confession of Muhammed Amin is set out below; "Question:- What have you to say? Answer: I do hereby state in perfect state of my full senses without any inducement that I Muhammad Amin alias Khalid Shaheen alias Abdullah son of Muhammad Sheerin Caste Yousuf Zai Pathan resident of House No.B-751 Lane No.27 Muzaffarabad Colony Landhi, Karachi, originally resident of village Gorani Tehsil Bari Kot District Swat, and now I reside in Karachi as tenant since last 5/6 years, state that; I belong to Harkatul Mujahideen and involved in Afghanistan Jehad. Mufti Ilyas, Sultan, Muhammad Rehman, Akber Khan, Hazrat Ali, Ali Hassan, Khalild, Suhail Siddique, Ashfaq and me are involved in the murder plan of Allama Hassan Turrabi. Meeting all of us were held at my house in April, 2006. Hazrat Ali brought Remote Control Bomb and a fixed in the cart. Other companion tried to kill Allama Turrabi, but failed. Subsequently we made plan of suicide attack. In June, Hazrat Ali and Mufti Ilyas held meeting, which we all attended. In the month of July Ashfaque has narrated to Sultan that Karim Bungali is ready for Suicide attack. Sultan and Ashfaq brought him at my house and handed over to Akber Khan, Hazrat Ali and Mufti Riaz. After some days, Hazrat Ali has disclosed that Suicide person is ready. Two days earlier before attack they all came at my house after Zohar Prayer. Hazrat Ali and Mufti Ilyas were handed over explosive jacket wrapped in cloth sheet to Sultan. Ali Hassan also brought four grenades. Akber Khan brought video camera with him. I recorded CD regarding WILL the Suicide attacker Karim Bungali, and while remaining all supervised. Akber Khan, Mufti Ilyas and Hazrat Ali deputed Suhail and Ashfaq for Surveillance of Allama while later on we all inspected the house and streets etc. of Allama. On Friday 14th July, 2006, Ali Hassan, Abdur Rehman and Khalid along with Suicide attacker Karim Bungali got him worn the Explosive jacket and beggar's dress reached at the place of occurrence in a red coloured Car, while Sultan arrived there on motor
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cycle encouraged to Karim. In the meanwhile, the vehicle of Allam Turrabi arrived there. We all good bye to Karim by, saying that he (Allama) should not spare/ save today. Karim Bugali went to near Allama and made blast. Allama killed there along with his nephew. We all by riding on motorcycle congratulate to Ali Hassan, Suhail and Ashfaq standing at the corner of the street. We were happy on the mission success, and went away to our respective homes. On 25.07.2006 the police raided at my home before Fajar prayer and arrested me, Sultan and Rehman, while Suhail run away. One T.T. Pistol, four live bullets and one grenade recovered from me. Explosive substance weighing 25 kilo and one Detonator also recovered. Computer, "WILL CD" with another CD Key board and Video Cameras were also recovered by the police. This much is my statement". (bold added) Sd/-(In English) 01-8-06" Law on retraction of judicial confessions. 23. After a review of the relevant law on, the legal validity of judicial confessions the Hon'ble Supreme Court in the case of Ch. Muhammad Yaqoob v. The State (1992 SCMR 1983) reached the following conclusion: "The legal position, which has emerged from the above reports, seems to be that in order to judge the evidentiary value of retracted confession, the Court is to advert to the question, whether the same appears to have been made voluntarily, without any inducement, duress or coercion with the object to state the truth. If the Court is satisfied on the above…
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