MUHAMMAD DILAWAR KHAN Versus THE STATE

1. MUHAMMAD MUJEEBULLAH SIDDIQUI,. J.‑‑ By this judgment we propose to decide appeal at the instance of appellants/convicts Muhammad Dilawar alias Khan Sahib, Aslam Ali and Muhammad Jahangir, directed against the judgment dated 20‑1‑2003 passed by Anti Terrorism Court No.II, Karachi, in Special Case No. 17/99, whereby all the three appellants have been convicted under Section 302/149 PPC and Section 7 (a) Anti Terrorism Act, 1997, and have been awarded death sentence and have been further directed to pay fine of Rs.1,00,000 each and in default to undergo R.I. for two years more; and have been further directed to pay Rs.3,00,000 each as compensation to the legal heirs of the deceased Zuhair Akram Nadeem, under section 544‑A, Cr.P.C. and in case of failure to pay the amount of compensation to suffer rigorous imprisonment for a term of six months, as well as Reference NoA/2003, submitted by the learned trial Court for confirmation of the death sentence as required under section 374, Cr.P.C. read with Section 30 of the Anti Terrorism Act, 1997.

2. Before marshalling the facts, we would like to observe that evidence in this case was recorded by Military Court and therefore, there are innumerable lacunas in the recording of evidence. At the trial stage, the case was not conducted properly as is required in a case involving capital punishment. The prosecutor has omitted to ask several important, questions. However, with the assistance of learned counsel for the appellants and the learned A.A.‑G, we have tried to cull out the facts in a systematic manner as far as possible.

3. The relevant facts as gleaned from the material/record available are that on 4 th July 1998, Sub‑Inspector Muhammad Hanif of Police Station, Orangi Town, while on mobile duty received a wireless message at about 12‑30 hours from Police Station Orangi Town, that a dead body was lying in Street No.2, Sector 7‑E, Orangi Town. He rushed to the place of incident, where he found a dead body surrounded by large number of people. He immediately took the dead‑body to Abbasi Shaheed Hospital, in a private Suzuki and handed it over to hospital authorities. With the permission of Medico Legal Officer, he prepared Inquest Report, under section 174 Cr. P. C. He prepared Mashirnama of the dead‑body also. In the meanwhile, the news about the murder of deceased Zuhair Akram Nadeem, who was a prominent political and social figure, had spread. At about 13‑30 hours Nusair Akram brother of deceased received a message from his niece on pager about the murder of deceased Zuhair Akram Nadeem. He rushed to his house and found that all his family members had already left for, hospital. He also proceeded to hospital where Sub‑Inspector Muhammad Hanif, recorded his statement under section 154, Cr.P.C., at 15‑00 hours. He stated in his section 154, Cr.P.C. statement that his brother Zuhair Akram Nadeem was getting construction of his plot made in Sector 7‑E. Orangi Town, and some unknown accused persons have killed him by firing with the firearms at about 12‑30 hours. He further stated that his complaint was against unknown accused or accused persons for committing murder of his brother Zuhair Akram Nadeem by firing with firearms due to grudge. Sub‑Inspector Muhammad Hanif, thereafter, incorporated this statement in 154 book and the formal F.I.R. was registered at 15‑45 hours. The autopsy was conducted by Medico Legal Officer, Abbasi Shaheed Hospital, at about 14‑50 hours. He found 10 fire‑arms injuries on the body of deceased and two abrasions on inner side of left elbow. He certified that the death of deceased was caused as a result of firearms injuries. After recording of F.I.R, the investigation was handed over to Inspector Chaudhry Muhammad Rafique, S.H.O., Orangi Town, who was informed about the incident in the office of S.S.P., West Karachi, where he had gone in connection with some official work. The information conveyed to him by A.S.‑I. Asghar Tarar, of Police Station Orangi Town, was that a person had been killed in a firing incident. Inspector Choudhry Muhammad Rafique, inspected the place of incident and prepared Mashirnama of the place of incide it. He secured three empties of kalashnikov and 8 empties of T.T. Pistol as well as blood stained earth from the place of occurrence. Even at the place of incident nobody disclosed the name of any assailant. On 7‑7‑1998, Inspector Choudhry Muhammad Rafique, was transferred. According to Police Brief Form, appended with supplements charge‑sheet, dated 8‑1‑1999, prepared by Investigating Officer, Syed Raza Hussain Shah, Inspector C.I.A., Saddar, Karachi, on transfer of Inspector Choudhry Muhammad Rafique, the investigation was handed over to Police Inspector/SHO, Gulzar Hussain Bangash. On 11‑7‑1998 he received spy information that deceased Zuhair Akram Nadeem, was murdered by Ajmal Pahari and Ehtasham, the terrorist of the locality in collaboration with his other associates by firing with the Kalashnikov and T.T. Pistol. These two persons were therefore, nominated as accused person and their search ensured. Subsequently, investigation was entrusted to several other Investigating Officers including Sub Inspector/SHO, Orangi Town; Haider Ali Khan. On 5‑12‑1998, when the investigation was going on, P.Ws. Liaquat Samoo and Naimuddin Qureshi, voluntarily appeared before Investigating Officer Haider Ali Khan, and sated that on the day of incident both of them were present in the under construction building of Zuhair Akram Nadeem, in connection with the booking of shops. They saw accused Ajmal Pahari, Ehtasham and Dilawar alias Khan Sahib alongwith 6‑7 other persons armed with Kalashnikoves and T.T., pistols. Accuses Ehtasham dragged deceased Zuhair Akram Nadeem, out of the under construction building and gave beating to him with the butt of Kaiashnikov causing injuries on his elbow. Thereafter, Ajmal Pahari, Ehtasham and Dilawar opened fire on the deceased with kalashnikovs and their accomplices armed with T.T. pistols started firing. They further stated that Zuhair Akram Nadeem, died at the 'spot and that they would be able to identify the accused persons as and when produced before them. They further explained that earlier they did not disclose the fact due to fear of terrorists and because of M.Q.M. (Muttahida) being in power. After enforcement of Governor Rule, they disclosed the true fact according to their conscience as they felt secured. On 15‑12-1998 Sub-Inspector Haider Ali Khan, arrested accused Dilawar alias Khan Sahib, Aslam alias Nak chapta and Jahangir alias Kancha, who were already arrested in Crime No.296/98, of Orangi Town Police Station, under sections 353/324/34, P.P.C. and obtained remand in this case (Cr. No.165/98) for the purpose of interrogation. (According to statement of Sub‑Inspector, Haider Ali Khan, at trial, he arrested accused Dilawar and Jahangir in an encounter on 10‑12‑1998 and was informed on 14‑12‑1998 that accused Aslam Nak‑Chapta, has been arrested by Gulbahar Police Station. He therefore, took his custody in F.I.R. No.296/98 and arrested all the three in this case i.e F.I.R. No.165/98 and prepared Mashirnama accordingly).

4. The investigation then was transferred on 19‑12‑1998 to Inspector Syed Raza Hussain Shah, of CIA, who produced them before Magistrate for identification by P.Ws. Naeemuddin and Liaquat. The Investigating Officer thereafter produced these two witnesses before Magistrate and their statements under section 164, Cr.P.C. were recorded. On 22‑12‑1998 all the three accused persons were produced before another Judicial Magistrate, who recorded their confession. The confessions of all the three accused persons were recorded by the Investigating Officer also through audio/video and on 23‑12‑1998 challan was submitted before the Court. Subsequently, acquitted accused Syed Tariq Mustafa alias Arif Burger was arrested and was sent to face trial through the supplementary challan.

5. The accused persons were put to trial before the Military Court under the provisions of Pakistan Armed Forces (acting in an aid civil power) Ordinance, 1998. Charge was framed against them for commission of offences under section 302, P.P.C. read with section 7 of the Anti‑Terrorism Act, 1997. All the accused persons pleaded not guilty to the charge.

6. The prosecution examined P.W.1, Nusair Akram, P.W.2, Naeemuddin Qureshi, P.W.3, Dr. M. Tariq Khan, Medico Legal Officer, Abbasi Shaheed Hospital, P.W.4, Liaquat Samoo, P.W.5, Muhammad Ilyas Baig, Mashir of the place of occurrence, P.W.6. Inspector Choudhry Muhammad Rafique, P.W.7, Sub‑Inspector Muhammad Hanif, P.W.8, Sub‑Inspector Haider Ali Khan, P.W.9, Inspector Raza, Hussain Shah, P.W.10, Shaikh Jawaid Mir, Judicial Magistrate and RW.11, Anwar Ahmed, Judicial Magistrate.

7. As already observed in the opening‑part of the judgment, the trial was held before Military Court and therefore, the normal procedure of the criminal trial by the ordinary Criminal Court was not adhered to. The statements of accused persons under section 342, Cr. P. C. were not recorded. The statements of accused persons on oath were recorded and the accused persons were subjected to cross‑examination as well. Statements of defence witnesses Najma Khatoon wife of Muhammad Mushtaq, Najma wife of Muhammad Ashraf and Mukhtar Ahmed Abbasi were recorded on 14‑1‑1999. On 15‑1‑1999 all the three accused persons were convicted and sentenced to death.

8. Subsequently, the conviction and sentence awarded by the Military Court was struck down in pursuance of the judgment of the Hon'ble Supreme Court in the case of Liaquat Hussain v Federation of Pakistan, 1999 SCMR 569, whereby the establishment of Military Court for trial of civilians charged with the offences mentioned in Section 6 and Schedule to the above Ordinance was declared unconstitutional, without lawful authority and of no legal effect and the cases in which sentences were already awarded but were not executed, were set aside and the cases were transferred to the Anti Terrorist Courts in terms of the guidelines provided in the judgment. The Hon'bl'e Supreme Court directed that the evidence already recorded in such cases shall be read as evidence in the cases. On the basis of evidence recorded by the Military Court, fresh judgment was passed by the Special Judge, Anti Terrorism Court Karachi Division on 1‑5‑1999, whereby the accused Dilawar alias Khan Sahib, Aslam alias Nak‑Chapta and Jahangir alias Kancha were convicted under, section 302/34 PPC, R/W Section 7 of the Anti Terrorism Act, 1997 and were sentenced to death. Accused. Syed Tarid Mustafa alias Arif Burger was acquitted. Confirmation reference was made to the High Court and the convicts preferred appeals before the High Court. A Division Bench of this Court accepted the confirmation reference and dismissed the appeals. The appellants preferred appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court set aside the judgment of trial Court as well as the High Court and remanded the case to the trial Court to proceed from the stage of recording statements of the appellants under section 342, Cr.P.C. and to decide the case afresh on merits in accordance with the law.

9. After remand of the case the Judge Anti Terrorist Court No.II, Karachi Division, recorded statements of all the three appellants under section 342, Cr.P.C. The appellant Muhammad Dilawar Khan, denied all the prosecution allegations. He sated that before the identification test Investigating Officer, had brought both the witnesses at police lock‑up and had shown their faces to the witnesses saying that they were the actual culprits. He further stated that the witnesses had accompanied them up to the Magistrate's Court, where the identification test was held. He denied the recording of his confessional statement by the Magistrate. In respect of witnesses, he stated that they have been set up by police. He further stated that at the time of incident he alongwith his friend Jahangir, co‑accused who is his neighbour was supervising the work of water pipe lines which were to be laid in Muhammad Ali Housing Society. This development work continued for one month. He came to know about the murder of Zuhair Akram Nadeem through newspapers.

10. He was arrested on 10‑12‑1998. He filed two written statements one already prepared by his advocate and the other one written in the Court by him at the time of recording of his statement under section.342, Cr.P.C. In the first statement, he averred that proper opportunity to defend was not provided during the course of trial before the Military Court. Prosecution witnesses, Naimuddin Qureshi, Liaquat Samoo, Muhammad Ilyas Baig and the Investigating Officer were not properly cross‑examined for the reason that the environment of awe and scare was prevailing and the defence counsel was not allowed to put relevant questions in cross‑examination ,which has resulted in miscarriage of justice. He further stated that the defence counsel was not allowed to put the questions in cross‑examination in his own words and the Presiding. Officer of the Military Court put the questions in his own words diluting the impact of the questions After transfer of the case from Military Court to A.T.C. an application was submitted to this behalf but it was dismissed. It was further stated that the P.Ws. were prepared to file their affidavits to the effect that they were false statements under the pressure applied by police. A request was made for recalling the prosecution witnesses and provide opportunity in cross‑examination. In his second statement Exh.18‑B, he stated that at the time of his arrest on 10‑12‑1998, the police fired vollies of bullets to show that it was a police encounter and two cases one of encounter and the other of the recovery of firearm under section 13‑D were registered. The appellant further stated that he has been acquitted in the case under the Arms Ordinance. He further stated that on 12‑10‑1998, SHO, Haider Ali Khan of Police Station Orangi Town, brought P.Ws. Naimuddin Qureshi and Liaquat Samoo near the lock‑up showing them appellants Dilawar Khan; Jahangir and Aslam and asking them to identify the appellants in Court and give statement against them in the murder case of Zuhair Akram Nadeem. On 15‑12‑1998, they were produced in the office of S.S.P. Manzoor Mughal. He inquired about the murder of Zuhair Akram Nadeem from appellants who showed them marks on their bodies caused due to petrol injection administered inside the hip and further showed marks of torture caused by the police. However, the S.S.P. handed them over to Inspector Raza Hussain Shah of C.I.A. Inspector Raza Hussain Shah, confined them into the cell and at night time hanged them up side down, tortured them and compelled them for giving confessional statement before the Magistrate threatening them that else they will be killed. Throughout P.Ws. Naimuddin Qureshi and Liaquat Samoo were with police. Subsequently, they were taken to City Court and were informed that they will be presented before the Magistrate. The witnesses were also in the s ame vehicle from Police Station to Court. The appellants were produced before the Magistrate who inquired if they want to give statement. They showed marks of violence and torture on their bodies to the Magistrate. They refused to give statement on which the Magistrate summoned the Investigating Officer and asked him to take back the appellants and bring them after "washing". They were taken back to C.I.A. Centre and were brutally tortured. On the next day they were presented before some other Magistrate. This Magistrate was polite. He was also narrated the facts of torture and was shown marks of injuries. He expressed sympathy. The appellants refused to give statements. The Magistrate obtained their signatures on three pages on which something was typed in English and thereafter, they were sent to jail custody. He again requested for recalling of the P.Ws. Naimuddin Qureshi and Liaquat Samoo, for proper cross‑examination.

11. The other two appellants stated the same facts as narrated by appellant Dilawar Khan. The appellants did not examine themselves on oath in defence and did not produce any other witness in defence.

12. The learned Judge Anti Terrorism Court No.II, Karachi Division, had earlier rejected an application under section 540 Cr.P.C, requesting for recalling P.Ws. Naimuddin Qureshi, Liaquat Samoo and Muhammad Ilyas Baig for proper cross‑examination and therefore, it appears that the learned trial Judge did not advert to the request made by the appellants for recalling of the prosecution witnesses. The learned trial Court thereafter announced the impugned judgment. Following points for determination were framed by the learned trial Court:

(1) Whether on 4‑7‑1998, at 12.30 p.m., on the plot situated opposite House No.4/18, Sector 7‑E, Street No.2, Orangi Town, Karachi, deceased Zuhair Akram Nadeem was fired at, he sustained bullet injuries as a result of which he died unnatural death, homicidal in nature?

(2) Whether on 4‑7‑1998, at 12‑30 p.m, on the plot situated opposite House No.4/18, Sector 7‑E, Street No.2, Orangi Town, Karachi, absconding co‑accused Ajmal Pahari, Ehtisham and present accused Muhammad Dilawar Khan alias Khan Sahib, armed with Kalashnikovs and co‑accused Muhammad Aslam Ali, alias Nak Chapta and Muhammad Jahangir alias Kancha and absconding co‑accused Kaleem, Kashif David, Rafiq Ganga, Saeed, M.P.A. Zulifquar Haider and Wasey Jalil, armed with pistols fired at and committed Qatl‑e‑Amd of deceased Zuhair Akram Naaeem?

(3) Whether the act of the culprits and/or the accused created sense of fear and insecurity in the minds of people?

(4) What offence(s), if any, have been committed by the accused?

13. Points 1, 2 & 3 above were answered in affirmative and the appellants were convicted and sentenced as narrated above.

14. We have heard Mr. Azizullah K. Shaikh, learned counsel for the appellants and Mr. Habib Ahmed, learned A.A.G. for the State.

15. Mr. Azizullah K. Shaikh, has candidly stated at the very outset that there is no dispute about the murder of deceased Zuhair Akram Nadeem and sustaining of firearm injuries by him. He has submitted that the prosecution evidence can be broadly categorized in two categories, first, the factum of murder of Zuhair Akram Nadeem, and; secondly, culpability of the appellants for the commission of murder. So far, the first category is concerned, it is not denied by anyone and therefore, no finding is required on this point. As regards second category, it requires consideration by this Court. The prosecution in order to connect the appellants with the commission of murder of deceased Zuhair Akram Nadeem, has produced evidence; which can be further divided in three following categories:

(i) Ocular testimony;

(ii) Identification test;

(iii) Judicial Confessions of the three appellants.

16. Mr. Azizullah K. Shaikh, has submitted that in order to appreciate the prosecution version, the evidence produced by the prosecution is to be considered in its totality keeping in view the attending circumstances, and the overall facts obtaining on record.

17. Mr. Shaikh, has submitted that the admitted facts are that a blind F.I.R. was recorded on 4‑7‑1998, the date of incident, at the instance of P.W.1, Nusair Akram, brother of deceased Zuhair Akram Nadeem. No accused was nominated in the F.I.R. P.W.7, Sub‑Inspector Muhammad Hanif, was the first police officer who reached the place of incident after receiving information of the incident. Large number of people had gathered there but nobody disclosed the name of any assailant. Thereafter, P.W.6, Inspector Choudhry Muhammad Rafique, inspected the place of incident. He prepared the Mashirnama of the place of incident. He has stated that nobody disclosed the name of any assailant. Several Investigating Officers, were changed but the names of the assailants remained shrouded in mystery. All of a sudden two eye witnesses emerged on the scene on 5th December, 1998. They are stated to have voluntarily appeared before P.W.7, Sub‑Inspector Haider Ali Khan and informed that they were present at the scene of occurrence at the time of incident and had identified the three appellants as the assailants alongwith the absconding accused persons. Mr. Azizullah K. Shaikh, has submitted that the prosecution case mainly rests on the evidence of two eye‑witnesses namely Naimuddin Qureshi and Liaquat Samoo. He has contended that in addition, to contradictions and discrepancies in the evidence of two witnesses, they remained silent for a period of 5 months. The concealing of the vital evidence for such a long period, till the version of awakening of their conscience, coupled with the feeling of sense of security for divulging the true facts, is highly doubtful. The explanation is not confidence inspiring and therefore, the appellants are entitled to the benefit of doubt and their testimony is liable to be disbelieved. He has submitted that the two eye‑witnesses have been set up by the police and if such course is allowed to prevail it will set up a very dangerous precedent permitting the police to create the ocular testimony in any case at any time by setting up the witnesses with one or the other excuse for delay in giving the evidence. He has submitted that withholding of such vital evidence is itself an offence. The persons admittedly withholding the information from police, which may have lead to the apprehension of offender, for a period of 5 months cannot be termed to be truthful or reliable persons and their testimony cannot form a sound basis for awarding capital punishment.

18. Mr. Azizullah K. Shaikh, learned counsel for the appellants has thereafter taken us through the entire material on record to demonstrate that the testimony of two alleged eye‑witnesses is not reliable. He has time and again expressed his grievance that due to improper cross examination of these two witnesses and the Investigating Officer he feels handicapped. However, he has not requested for retrial of the case for the reason that the appellants are already in custody from the year 1998 and have sufficiently suffered the ordeal of languishing in jail in a case which according to him has been foisted on them. However, he has scrutinized the prosecution evidence threadbare. First of all, he has pointed out the description of the place of incident contained in the Mashirnama of the place of incident Exh:Q. According to Mashirnama the place of occurrence was situated in Street No.2, Sector 7‑E, Orangi Town, outside the main gate of Plot No.4/18. This gate is situated on the northern side of Plot No.4/18. Building was under construction on this plot, which was owned by deceased Zuhair Akram Nadeem. It had boundary wall. Shuttering was erected but the roof was not laid down. Blood was found in the street outside the under construction gate. In his 164, Cr.P.C. statement, Exh:A‑A, P.W. Naimuddin Qureshi, stated that the, incident took place on 4‑3‑1998. At about 12‑30 p.m. lie had gone to the house of Zuhair Akram Nadeem, as he wanted to take on rent one of the under construction shop outside his house. P.W. Liaquat Samoo, as well as other persons were present there alongwith deceased Zuhair Akram Nadeem. In the meanwhile, one Ehtasham, who is terrorist of the area came inside the under construction house Ehtasham caught hold of Zuhair Akram Nadeem's hand and started abusing him. Ehtasham, gave Kalashnikov's butt blows to deceased Zuhair Akram Nadeem and forcibly pulled him outside the house. Deceased resisted and refused to go outside the gate. Then Ehtasham fired from his Kalashnikov on the chest of deceased. Thereafter, Dilawar came. He also had a Kalashnikov. Ajmal Pahari, also came. He also had a Kalashnikov. Dilawar and Ajmal Pahari, also fired at the deceased. From inside the wall through a hole he had seen 4/5 other persons outside in the street. They were also carrying weapons. Accused Aslam and Jahangir present in Court, at the time of 164, Cr.P.C. statements were stated to have fired in the air and ran away. In his testimony in Court, P.W. Naimuddin Qureshi, has given entirely different version. Instead of his intention to take a shop on rent which was not in existence at that time, he has stated that he had gone to deceased Zuhair Akram Nadeem in connection with advance booking for a shop, which was being constructed by him. He was talking to‑Zuhair Akram Nadeem, in the presence of P.W. Liaquat Samoo, when suddenly, some well known terrorists of the area including Ajmal Pahari, Ehtasham and Dilawar entered the under construction house. Ehtasham, caught hold of Zuhair Akram Nadeem and tried to drag him out. A scuffle took place and finally Zuhair Akram Nadeem, was taken out of the house. He was beaten with the butt of Kalashnikov and the first bullet was fired at him by Ehtasham and thereafter, Ajmal Pahari and Dilawar fired at him. The three accused persons were accompanied by about 8 other persons who also fired from their T.T. Pistols and fled away. He has stated that in identification test, he identified these two persons being accused Aslam and Jahangir who had accompanied Ajmal Pahari, Dilawar and Ehtasham. In cross‑examination he has stated that he did not inform the police about the witnessing of incident due to fear of terrorists as M.Q.M. was in Government. However, on 5th December, 1998, he alongwith P. W. Liaquat voluntarily went to Police Station Orangi Town and disclosed the facts having been forced by his conscience to help the Government against the terrorists. In further cross‑examination he has stated that at the time of incident he remained inside the under construction house. However, since there was no boundary wall therefore, he clearly saw the firing incident. Mr. Azizullah K. Shaikh, has pointed out that it is to clear contradiction to the description of the place of incident contained in the Mashirnama as well as to the section 164, Cr.P.C. statement, in which he has stated that deceased refused to go outside the gate and therefore, Ehtasham fired from his Kalashnikov on the chest of deceased followed by Dilawar and Ajmal Pahari, who also came inside and fired at the deceased. Thus, according t section 164, Cr:P.C. statement of P.W. Naimuddin Qureshi, the incident took place inside the boundary wall and the deceased was fired at by Ehtasham, Dilawar Khan and Ajmal Pahari only. The other culprits including accused Aslam and Jahangir remained outside the boundary wall and fired in the air who were seen by this witness from a hole in the wall by remaining inside the wall.

19. Coming to the evidence of P. W. Liaquat Samoo, he stated in his 164, Cr.P.C. statement, Exh:Z, that on the day of incident he had heard that the deceased wanted to rent out his shop and he was interested in one of the shops. At that time, P.W. Naimuddin Qureshi and other labourers were also present. According to him, Ehtasham, came inside, caught hold of the deceased and forcibly tried to take him outside. Ehtisham, started giving rifle butt blows on the chest of Zuhair Akram Nadeem. He then dragged Zuhair Akram Nadeem, outside the gate and fired at the deceased there. In the meanwhile, Dilawar and Ajmal also came armed with rifles and they also fired at the deceased. There were 8 to 10 other boys carrying rifles and T.T. Pistols. Accused Aslam and Jahangir were seen by this witness outside the gate. They were carrying T.T. pistols and were firing in the air. All the accused persons thereafter ran away firing in discriminatory in the air. In his statement at trial, this witness has stated that on the day of incident he had gone to meet deceased for booking of the shop. Suddenly a person namely Ehtasham entered the house, abused the deceased, caught hold of him, dragged him outside the house and, then fired at him. Mr. Azizullah K. Shaikh, has pointed out that P.W. Naimuddin Qureshi, has stated at trial that suddenly some well known terrorists of the area including Ajmal Pahari, Ehtasham and Dilawar entered the under construction house, while this witness has deposed that one person only Ehtasham entered the house and dragged the deceased outside and fired there. P.W.4, Liaquat Samoo, has further stated that when the deceased was taken outside the house he saw Ehtasham firing at the deceased and further saw Ajmal Pahari and Dilawar opening the fire at the deceased. According to this witness there were about 8 to 10 culprits in all. He has further stated that at the time of incident he alongwith other labourers took cover in the under construction house. This witness has also stated that accused Jahangir Kancha, accused Dilawar alias Khan Sahib and accused Aslam alias Nak‑Chapta, present in Court were the persons who had fired at Zuhair Akram Nadeem. This statement is contradictory to the 164 Cr.P.C. statement of the witness, wherein he stated that accused Ehtasham, Dilawar and Ajmal Pahari fired at the deceased and accused Adam and Jahangir were standing outside the gate carrying T.T. Pistols, and had merely fired in the air. It is contradictory to the deposition of P.W.2, Naimuddin Qureshi, at trial who stated that Ehtasham, Ajmal Pahari and accused Dilawar fired at the deceased while accused Aslam and Jahangir were amongst 8 other persons who were armed with T.T. Pistols and had fired in the air. This witness has also stated that he did not disclose his presence at the place of incident to the police or anybody else because he was scared and after the imposition of Governor's Rule in Sindh, he was motivated and encouraged by P.W. Naimuddin Qureshi, who told him that they must help the Government in the arrest of terrorists, he therefore, decided to inform the police. In cross‑examination he has stated that after receiving the first injury, the deceased fell down and the witness took cover behind the pillar. Even after taking cover behind the pillar the fleeing away culprits were visible to him. He has stated that at the time of incident Ajmal, Ehtisham and Aslam were carrying Kalashnikovs. The statement that accused Aslam was carrying on Kalashnikov is clearly contradictory to the statement of P.W. Naimuddin Qureshi, who has stated that accused Aslam and Jahangir were armed with T.T. Pistols and had fired in the air. Replying to a question asked by the Court, this witness stated that there was no boundary wall of the under construction house of the deceased and therefore, he saw the incident even when the deceased was dragged out. Mr. Azizullah Shaikh, has vehemently argues that there are two eye witnesses only who abruptly emerged on the scene after 5 months and their testimony is full of contradictions. Their presence at the place of incident is highly doubtful and even if their presence at the place of incident is accepted, testimony is not believable as their section 164, Cr.P.C. statements and the mashirnama of the place of incident clearly establish the existence of the boundary wall. They were admittedly present inside the boundary wall and the actual incident had taken place outside the wall. Even if their presence is accepted inside the boundary wall of the under construction building they can merely watch the dragging of deceased outside the house by Ehtisham, who is not one of the convicts. Mr. Azizullah Shaikh, has submitted that the delayed information given by the two alleged eye‑witnesses coupled with the numerous contradictions makes their testimony totally unreliable.

20. So far, the identification test through these witnesses, whose presence at the place of incident itself is not free from doubt is not reliable for the reason that the identification test was held in the presence of Investigating Officer Raza Hussain Shah, and he is the Mashir of identification. There is no independent Mashir of the identification.

21. So far, the confessions, of the accused persons is concerned, Mr. Azizullah Shaikh, has forcefully argued that accused Dilawar and Jahangir were arrested on 10‑12‑1998 while accused Aslant was arrested on 15‑12‑1998. They were throughout in the custody of police. They were produced before the Magistrate on 21‑12‑1998 and on the said date their confessions were not recorded. The confessional statements were recorded on 22‑12‑1998. Mr. Aizullah Shaikh, has submitted that all the three accused/appellants have retracted from their judicial confessions and have stated that although they were tortured and were subjected to violence but they refused to oblige police and give confessional statements. They have further stated that when they were produced before the Magistrate, for first time and refused to give confessional statements, they were handed over to police with the observation that they should be produced after "washing". They were again subjected to torture and violence and were produced before the second Magistrate, who was a polite person: He obtained their signatures on three papers and remanded them to judicial custody. Mr. Shaikh, has submitted that the moot point for consideration is whether the confessional statements produced by the prosecution are voluntary and true and further it is to he seen whether the contents of the judicial confessions are corroborated by any other reliable evidence. Mr. Azizullah Shaikh, has argued that admittedly there is no recovery from the accused/appellants. There is no evidence that the empties recovered from the place of incident matched with any weapon held by the appellants and no independent/natural witness has been produced by the prosecution. He has submitted that the admitted fact is that at the time of incident the construction work was going on and the labourers were working at the place of incident, The Investigating Officers, made no attempt to locate labourers working at the site and record their statements. Mr. Azizullah Shaikh, has submitted that it is against the principle of safe administration of justice to award conviction and sentence of death, merely on the basis of retracted confessions, which is not corroborated from any reliable evidence on record. He has submitted that the learned Magistrate recorded the confessions in a mechanical manner and thus, is liable to be ruled out of consideration. Concluding, his arguments, Mr. Azizullah Shaikh, has submitted that the learned trial Court has failed to consider that the ocular testimony is totally unreliable, the identification test is not worthy of the credence and the retracted confessional statements are wholly uncorroborated with the result that the prosecution has failed to bring home the guilt to the accused persons. The impugned conviction and sentence is liable to be set aside and accused persons are entitled for the acquittal.

22. The learned A.A.‑G., has supported the impugned conviction and sentence but is not able to rebut the contentions raised by Mr. Azizullah Shaikh, that the testimony of the two alleged eye‑witnesses is unreliable because of withholding of information without proper explanation for a period of 5 months, the identification test through such witnesses coupled with the fact that it was held in the presence of Investigating Officer Raza Hussain Shah, who is Mashir also, is not worthy of credence and the retracted judicial confessions without any corroboration can not form basis for conviction, for the commission of an offence entailing death sentence. The learned A.A.‑G. is not able to show that the retracted confession is corroborated by any evidence worth reliance on the record. He is also unable to reconcile the contradictions pointed out by the learned counsel for the appellants in the statements of two alleged eye‑witnesses.

23. We have carefully considered the contentions raised before us and have given anxious consideration to the entire material/evidence available on record. The contradictions in the testimony of P.Ws. Naimuddin Qureshi and Liaquat Samoo, high lighted by Mr. Azizullah Shaikh, are fully supported with the evidence on record and the learned AAG, is not able to rebut the same. We therefore, need not to dilate any more on this point. We will consider the effect of withholding of the evidence by the two eye‑witnesses namely P.W. Naimuddin Qureshi and Liaquat Samoo, for a period of 5 months. We agree with the contention of Mr. Azizullah Shaikh, that withholding of information by the two eye witnesses is itself an offence under section 176, P.P.C. read with section 44, Cr.P.C. Section 176, P.P.C. and section 44, Cr.P.C. are reproduced below:‑‑

24. "176. Omission to give notice or information to public servant by person legally bound to give it .‑‑Whoever, being legally bound to give any notice or to furnish information on any subject to any public servant, as such, intentionally omits to give such notice or to furnish such information in the manner and at the time required by law, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both; or, if the notice or information required to be given respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender with simple imprisonment of a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both; or, if the notice or information required to be given is required by an order passed under subsection (1) of section 565 of the Code of Criminal Procedure, 1898, .with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

25. 44 Public to give information of certain offences. (1) Every person, aware of the commission of, or of the intention of any other person to commit any offence punishable under any of the following" sections of the Pakistan Penal Code, namely, 121, 121‑A, 122, 123, 123‑A, 124, 124‑A, 125, 126, 130, 143, 144, 145, 147, 148, 153‑A, 161, 162, 163, 164, 165, 168, 170, 231, 232, 255, 302, 303, 304, 304‑A, 364‑A, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 456, 457, 458, 459, 460 and 489‑A, shall, in the absence of reasonable excuse, the burden of proving which shall lie upon the person so aware, forthwith give information to the nearest Magistrate lf, Justice of the Peace or police officer of such commission or intention.

(2) For the purposes of this section the term offence includes any act committed at any place out of Pakistan which would constitute an offence if committed in Pakistan."

26. A perusal of the above provisions shows that the P. Ws. Naimudin Qureshi and Liaquat Samoo, were bound by law to inform the police about the incident. It is clearly provided that the burden of giving reasonable excuse is on the person who is aware of the commission of offence as to why he did not give the information forthwith to the nearest Magistrate, Justice of Peace or Police Officer, of such commission of offence. In this case, the two witnesses have stated that initially the could not muster courage to give evidence of having seen the appellants committing murder of deceased Zuhair Akram Nadeem, because the murder was committed by the terrorists of the M.Q.M. and the M.Q.M. was the ruling party. Their conscience awoke, when they felt secured of the imposition of Governor's Rule in the Province of Sindh, and then they voluntarily appeared before Sub‑Inspector Haider Ali Khan and laid down the information. Even if it is believed that initially the two, witnesses who are merely chance witnesses and are not the nature, witnesses, as there is nothing on record to establish that they had taken any step for taking of the shops in the under construction building, were in the state of fear because of M.Q.M. being in power, the excuse given is not reasonable. The reason being that the learned A.A.‑G. has confirmed that the Governor's Rule‑was imposed in the Province of Sindh on 30‑10‑1998 and these witnesses got their statements recorded on 5‑12‑1998 i.e. after one month and 5 days Mr. Azizullah Shaikh, has rightly pointed out that it is also doubtful if these two witnesses actually laid down the information and got their 161 statements recorded on 5‑12‑1998, because their 164 statements were recorded on 24‑12‑1998 and identification through them were held on 21‑12‑1998. There is no explanation from the prosecution on the point that if on 5‑12‑1998, these two witnesses had already got. 161 statements recorded and had nominated the present three appellants, then why accused Dilawar alias Khan Sahib and Jahangir alias Kancha who were arrested by Sub Inspector Haider Ali Khan, in an encounter with the police were not arrested on the same day in the murder case of Zuhair Akram Nadeem being Cr. No. 165/98. Be that as it may, the fact remains that there is inordinate delay which is not properly explained by the two eye witnesses and they have failed to discharge the burden of giving reasonable excuse for withholding the evidence with the result that their testimony becomes unreliable. Withholding of such information by the eye‑witness for one day came for consideration before the Lahore High Court in the case of Nawab v. Crown, AIR, 1923 Lahore 391. A Division Bench of the Lahore High Court held as follows:‑‑

27. "Prima facie there is no reason apparent why Farzand Ali and Hussain Shah should give false evidence against the appellant. It has, however, been frequently laid down that when a person sees a murder committed and gives no information thereof, his evidence is little better than that of an accomplice."

28. In this case, the circumstance that the only eye‑witness did not disclose when he knew at the earliest possible opportunity, led to the opinion that it would be extremely unsafe to accept the evidence. The conviction and sentence of death was set aside and the accused was acquitted. This point came for consideration before a Division Bench of Oudh Chief Court in the case of Emperor v. Kallu, AIR 1937 Oudh. 259. Murder of a woman's paramour was committed by her husband in the presence of woman. She did not give the information of the commission of the murder to the nearest Magistrate, or police officer as required by section 44, Cr.P.C. even during the absence of her husband for about 10 days after the murder and it was held that evidence of such witness without corroboration in material particulars was not acceptable. The acquittal of the accused by the Sessions Judge was upheld on the principle that a person aware of the commission of offence and with holding the information is an accomplice who provides protection to the accused and independent corroboration of the material particulars of the evidence of an accomplice has become a rule of law. The reason underlining the rule is that the testimony of an accomplice is regarded a tentative evidence and it is, therefore, considered un‑safe to base a conviction on it, unless there is independent corroboration forthcoming. On the same principle corroboration is insisted upon in the case of evidence of informers.

29. The point was considered by a Division Bench of Hyderabad High Court (Indian Jurisdiction), in the case of Anna and others v. Hyderabad State AIR 1956 Hyderabad 99. The evidence of two witnesses was discarded for the reason that under section 44, Cr.P.C. a person who is aware of the information of the commission of a serious offence like murder and does not lay information to the nearest Magistrate or Police Officer, is guilty of an offence and that there was no reasonable excuse for the two witnesses for not informing the authorities and hence their evidence was discredited. The accused persons were acquitted.

30. The appellants before us, have been convicted for the offences punishable under section 302(b), P.P.C. and under section 7(a) of the Anti Terrorism Act, 1997. The offence in this case was committed on 4 th July, 1998 and Chapter XVI, P.P.C. was substituted by Criminal Amendment (Act 11 of 1997) 4 dated 11‑4‑1997. It is provided in section 338‑F, P.P.C., that in the interpretation and application of the provisions of this Chapter, and in respect of matters ancillary or akin thereto, the Court shall be guided by the injunctions of Islam as laid down in the Holly Qur'an and Sunnah.

31. The effect of withholding of evidence was considered by a larger Bench of the Federal Shariat Court, comprising 5 Hon'ble Judges to the case of Noor Khan v. Haq Nawaz, PLD 1982 FSC 265.

32. Justice Zahoorul Haq, held as follows:

33. "15. We are further of the view that in Islamic Fiqah a delay in making a complaint in respect of penal offences is not favoured and particularly in respect of offence of Hudood, it has been opined by the jurists that the delay in making the complaint is either because the complainant wanted to suppress the commission of the crime or that he was motivated by feelings of hatred. Such opinion has been expressed to Badaiulsanai Fi Tartibisharai by Kasani, Vol. VII, pages 46 & 47 and Tabyinul Haqaiq, Vo. III, page 187 and also in Al Jarima by Abu Zahra at pages 79 to 90. Mr. Muhammad Bilai. Advocate for the appellant had brought with him Maulana Ali Muhammad, Nazim, Madrisa Qasamul Aloom, Mianwali, who had made a study of the subject in this respect. We heard him as a juris consult and we are thankful to him for this assistance rendered by him. In Islamic Fiqah the delay is referred to as "Taqadum". Maulana Ali Muhammad has submitted that Taqqadum was not necessary to be taken into consideration in respect of like Nikah and Talaq but he was himself of the view that in respect of punishment particularly in cases of Hudood, it was necessary to consider Taqadum. He was of the view that basically the question before us was of pronouncement of Talaq by Fateh Khan, P.W. upon Mst. Naziran Bibi and since this was one of the matters concerned with therefore, we should not worry ourselves in respect of the delay of 10/12 years. He was also of the view that since Talaq had not been proved, therefore, the accused respondents were committing crime daily whenever they cohabited with each other claiming themselves to be husband and wife. We are, however, of the view that the question before us is basically of a criminal nature and it is not a matter of Huqooqul Ibad now. We find that the F.I.R. had been alleging that the commission of Zina which could have involved very serious punishment and therefore the principle of Taqadum has to be taken into consideration by this Court. We find that even a delay of one month is regarded as fatal by Imam Muhammad. Some of the jurists are of the opinion that if there is no reason of delay then a delay of about three months in making the complaint shows that the allegations are either false or these are motivated. Hazrat Umar has opined as follows in this respect:‑‑

34. "Those who give evidence on a Hadd not at the time of its occurrence (but long after that) so indeed they are such witnesses who are inclined towards hatred."

35. Al‑Mabsut Lissarakhsi, Vol. IX, page 69. With great respect, we agree with the views of the Muslim jurists and we are of the view that the F.I.R. lodged by Noor Khan in this case was hit by the principle of Taqadum and the case should have been dismissed."

36. The principle of Taqadum was dilated upon in depth by Justice Aftab Hussain, Chairman Federal Shariat Court: I can do no better than reproduce the erudite discussion in extenso, which reads as follows:‑

37. "3. Taqadum is explained by Allama Zalaie in Tabyinul Haqaiq, Vol. III, page 187:

38. "Taqadum originates from Qadeem and it is the antonym of new and it is in this meaning that it is used; i.e. a Hadd cause of which is old and not new. The word Qadeem is sometimes used in the sense of that which continues but it is not meant here."

39. Taqadum in relation to the crime will therefore mean an offence which is not of recent occurrence. This is clarified by Dr. Abdul Aziz Aamir in his book Attaazir Fil Shariatil Islami, page 522:

40. "Taqadum means passing of sometime after commission of the offence or after the passing of the order of sentence, but before its execution. Its consequence is that it prohibits from passing of sentence in crimes and from executing those already passed."

4. The example of the latter is furnished by Sharah Fathul Qadeer, Vol.5, p.9. It is said that if a convict runs away after he is struck by stone or stripes and time elapses before he is rearrested the Hadd will not be carried out.

5. In regard to the proof of an offence which is hit by the principle of Taqadum it is recorded in, Tilka Hadood Ullah by Ibraheem Ahmed Alwaqafi, page 38 that:

41. "When evidence is produced about an old offence of adultery the evidence should not be accepted according to the Hanafees."

6. The principle of Taqadum is based on one tradition of the Holy Prophet (p.b.u.h.) and another tradition of Caliph Omar. The first tradition is that the Holy Prophet (p.b.u.h.) said that:

42. "Allah will keep the secret of one who keeps the secret of hip brother Muslim."

43. From this it is inferred that concealment of evidence to Hudood matters is within the option of the witness. The second tradition is as stated by Caliph Omar that those who appear as witnesses to a Hadd Offence not at the time of its occurrence (not within reasonable time after the occurrence) but later they should be presumed to be acting as witnesses on account of personal hatred or dislike.

7. The principle of Taqadum, according to Imam Abu Hanifa, is applicable only when the appearance of the witness is delayed and there is no valid explanation for it but if the evidence is delayed for good cause for example distance from the Court of the Qazi or illness of the witness or restriction like that, his evidence would be acceptable and will not be hit by Taqadum (Shareh Fathul Qadeer, Vol, V, page 56, Attashriul Janai UL Islam by Abdul Qadir Audda). Specific exception is added in Mujella ( ) meaning "of his respondent be an influential person. "

8. A very interesting and rational explanation of these word is given in Sharh ul Majella, Vol. V, p. 178 (printed in Hams 1355 Hijra). Its translation is reproduced:

44. "Thirdly the words "litigant i.e. respondent being an influential person" point to the fact that to be of influence does not necessarily mean a man in authority. It is merely by chance or common usage that this has been often qualified by words tyrant man in authority which means that even though he (the respondent) is neither a man in authority nor any of his subordinates, but he exercises an influence and distinction with wicked enough to fabricate false criminal cases against those who resist oppose him then he shall be considered an influential person. Nay his influence in such a case would be stronger than it would have been if he were himself a man in authority. For awe have often seen the like of them, may Allah save His servants from their evils, who have captured land and property and on the other hand we have seen people whom fear from their evil often prevents from bringing any case against them in any Court: In such cases, therefore, passage of time shall not be a bar from hearing the case against such people except if any passage of time occurs after the end of their influence.

45. The Mujellah deals with the question of limitation for suits in its Book XIV, Chapter II beginning with S. 1660. Section 1663 clarifies that the lapse of time which prevents the hearing of actions, is the lapse of time which had taken place without excuse.

46. It reads:

47. 1663. In this chapter is considered, that is to say, the lapse of time which prevents the hearing of actions, is the lapse of time which has taken place without excuse.

48. On the other hand consideration is not given to time which passes, in consequence of one of the excuses allowed by Sharia Law.

49. Such as, a person being an infant or madman or person of unsound mind, whether the plaintiff has a guardian or not, or person being in a foreign country a long away off (muddet sefer), or his opponent being a person in power.

50. Therefore, the beginning of the time which elapses is considered to be from the removal of the excuse.

51. For example. The time when a person is an infant is not considered in the time passed. The time elapsed from the date when he arrived at full age is considered alone.

52. Likewise, when a person's action is with one who is in power, if time elapsed in consequence of his not being able to bring his action, while the power of his opponent lasts, it does not prevent the hearing of that action.

53. The time elapsed is only considered from the, date when the power ceased."

54. There is no reason why this exception should not apply to criminal cases.

9. Taqadum is applied by the Hanafi Jurists to only three categories of Hadd punishment i.e. punishment for adultery, for drinking and for theft, since all these punishments pertain to matters concerned with the rights of Allah. The limitation is not applicable to the punishment of Qazf since it involves the rights of the people (Haqooqul Ibad). It was for this reason that it was argued by Maulana Ali Muhammad that Taqadum is not applicable to Talaq (divorce). He cited in support of this from Fatawa Alamgiri, p.339 in which is recorded the verdict that Haqooqul Ibad extends to such matters as Nikah and Talaq.

10. Ibn‑e‑Abi Laila said that Taqadum hits not only the evidence but also confession (Sharah Fathul Qadeer, Vol. V, page 56). According to Iman Abu Hanifa confession in case of drinking only is hit by Taqadum and in this he is supported by Abu Yousuf but Muhammad bin Al Hasan differed from both on this point. In this view confession is not hit (not even confession of drinking) by Taqadum (Sharah Fathul Qadeer, Vol.V, page 56).

11. Imam Abu Hanifa left it to the Qazi to determine the limitation of Taqadum but Imam Muhammad (with whom Imam Abu Yousuf agreed) fixed one month's time. Some other Jurists fixed it at six months.

12. But Imam Malik, Imam Shafie, his pupils, Zaidee and Zahiree are against the principle of Taqadum and are in favour of acceptance of delayed evidence as well as delayed confession. (Almughni, Vol X, page 187, Almuhalla, Vol. 11. Page 144, Sharhulazhar Vol. IV, page 339, Attashriul Janai‑ul‑Islami by Abdul Qadir Auda, Vol. II, page 417).

13. Two different opinions are attributed to Imam Muhammad bin Hanbal. One is that he agreed with Imam Abu Hanifa and the other is that he agreed with the opinion of Imam Malik, Shafie and the second opinion prevails now among the Hanblis.

14. The principle of Taqadum is not a principle laid down either in the Holy Qur'an or the Sunnah. There is also no Ijma on it, since only the Hanafies favour it. It should therefore, be tried for its correctness and applicability to modern age on logical rational. Before proceeding to do that I would like to clarify my inability to agree with the propositions about the applicability of Taqadum to voluntary confessions and execution of sentence.

15. Three of the Hadd cases only are made subject to the principle of Taqadum and one of the Salutary principle which is recognized by all the Jurists is that in Hadd matters it is open to the accused to retract the confession not only during trial but also before the execution of the sentence. It would be meaningless to give sanctity, to the principle in respect of Taqadum or to apply it to a confession which though delayed is not retracted by the accused himself. Similarly it would be a strange proposition to allow a person to nullify the sentence passed by a Court by his own illegal act of running away or escaping from it. I could understand the rationality of this principle if it had been made applicable to execution of decree passed in civil matters since it can be said reasonably that a decree‑holder who fails to take active steps for the execution of his decree and would like merely to keep the Sword of Damocles hanging over the head of his judgment‑debtor for the satisfaction of some personal vendetta should remain cognizant and aware of the possibility of losing that edge on account of limitation, but to apply it to criminal, cases in the manner proposed would amount to giving the convict a lesson in transgression of law and in deprecating and minimizing the authority of the Court.

16. And why after all and on what logical ground can Taqadum against execution of legal sentence and in respect of confession he extended to at most three Hadd cases and denied to others.

17. It is quite possible that while extending the principle to execution of the sentence of Hadd the Jurists may be having in view the story of Maaiz who tried to run away at the time of stoning but was not allowed to do so by those who were executing the sentence on him. When this was narrated to the Holy Prophet (p.b.u.h.) he observed that he ought to have been brought to him. But this precedent cannot be cited in favour of Taqadum, since we do not know whether the Prophet (p.b.u.h.) would have considered it as retraction of his confession or he would have given him some other advice. By entering into the realm of conjecture we can derive some principle from this, and the Jurists have derived the principle that retraction of confession is possible till before the execution of the sentence, but it cannot lead to the application of the principle of Taqadum on it.

18. Now out of these two grounds which are made the basis of this principle I cannot agree with the‑ground that a witness has any option in giving evidence in matters of. The injunctions of Allah are:

55. 65: 2 "And keep your testimony upright for Allah"

56. 2: 283 "Hide not testimony. He who hideth it, verily his heart is sinful."

57. 2: 140 "And who is more unjust than he who hideth a testimony which he hath received from Allah."

58. 18‑A. In the face of these injunctions the tradition of the Holy Prophet (p.b.u.h.) cannot be interpreted as laying down something contradictory and allowing concealment of evidence.

59. Mr. Justice Muhammad Siddiq, agreed with the views of Zahoorul Haq, J. He however, did not agree with the generalized principle propounded by the Chairman (Chief Justice) Federal Shariat Court. He held that without laying down the general principles, the delay in criminal cases always adversely affects the prosecution, unless satisfactorily explained. He observed that the delay in criminal cases has to be examined in each case and it is the duty of Court/Qazi to judge the delay in each case. It is therefore not proper to make any generalization in this behalf. The effect of delay in each case depends upon the facts of that particular case:

60. Justice Pir Karam Shah Al‑Azhari, also dealt with the issue of Taqadum (effect of delay in giving evidence in a criminal case). In substance he supported the view taken by Aftab Hussaiin and Zahoorul Haq, JJ.

61. Taking into consideration the facts and circumstances of the present case, we are of the opinion that there is no reasonable excuse for delay on the part of P.Ws. Naimuddin Qureshi and Liaquat Samoo, particularly when the Governor Rule in the Province was imposed on 30‑10‑1998 and the two witnesses appeared before the Investigating Officer on 5‑12‑1998. In addition to the unexplained delay, the testimony of these witnesses is fraught with contradictions, discrepancies and improbabilities. Consequently, no reliance can be placed on the un corroborated testimony of these witnesses.

62. Now we come to the second category of evidence i.e. identification test. Evidence of identification test cannot be relied upon, first, for the reason, that the accused persons have been identified by the two eye‑witnesses whose presence at the place of incident is highly doubtful and withholding of evidence on their part for 5 months has made their testimony unreliable, secondly, we find substance in the contention of Mr. Azizullah Shaikh, that the presence of the Investigation Officer at the time of identification test and his association with the proceedings in the identification proceedings as a Mashir has made the identification test partial. It is provided in Rule 26.32 of the Police Rules, 1934 containing guidelines for the identification of suspects, that "it is advisable that, whenever possible, an independent and reliable person unconnected with the police should be present throughout the proceedings at the place where the witnesses are kept, and should be required to devote his attention entirely to the prevention of collusion. It is important that, once the arrangements for the proceedings have been undertaken, the officer investigating the case and any police officer assisting him in that investigation should have no access whatever either to the suspects or to the witnesses. The value of tests arranged by the Investigating Officer or his subordinates is inevitably liable to be called in question by the defence."

63. Mr. Habib Ahmed, learned AAG, is not able to rebut the contention of Mr. Azizullah Shaikh, that the identification test has become unreliable because of the presence of the Investigating Officer during the entire proceedings and his acting as Mashir of the, identification test. We are persuaded to agree with the submissions of Mr. Azizullah Shaikh and identification test is ruled out of consideration.

64. The result of the above findings is that the prosecution is left with judicial confessions only. The contentions of Mr. Azizullah Shaikh, have already been recorded in the earlier part of this judgment. The learned A.A.‑G. is not able to rebut the contention that no independent corroboration to the retracted judicial confessions is available and consequently such retractive judicial confession can not form basis for awarding capital sentence.

65. For the foregoing reasons, we are of the considered opinion that the prosecution has failed to bring home the guilt to the appellants and consequently they are entitled to be acquitted. The impugned convictions and sentences are therefore, set aside. All the three appellants/convicts/ accused are acquitted of all the charges against them. The appeal is allowed accordingly. The confirmation reference is rejected. All the appellants were serving out the sentences and are hereby directed to be released forthwith if not required to be detained in any other case.

66. N.H.Q./M‑40/K Appeal accepted.