THE STATE Versus MUHAMMAD YAQOOB

ABDUR REHMAN KHAN, J.- --The above two appeals with leave of the Court arise from the common judgment of a learned Division Bench of the High Court delivered on 24-6-1998; whereby the appeal preferred by Muhammad Yaqoob accused/respondent in Criminal Appeal No. 49 of 1999 against the judgment dated 4-10-1998, of the learned Judge Special Court Anti-Terrorism was accepted and consequently his conviction and sentence were set aside while Criminal Appeal No. 173 of 2000 is by convict Muhammad Asif whose appeal was dismissed by the High Court and consequently his conviction and sentence imposed by the learned Special Judge, were maintained. As the above common judgment of the High Court has been impugned in these two appeals, therefore, they are decided together by this single judgment.

2. Muhammad Yaqoob accused/respondent in Appeal No. 4 of 1999, and Muhammad Asif appellant in Appeal No. 173 of 2000, alongwith Qari Muhammad Siddique (acquitted accused) and the absconding accused Qari Sarfraz, Muhammad Ajmal alias Akram Lahori and Rashid, were charged for six murders. The learned Special Judge Anti-Terrorism tried Muhammad Yaqoob, Muhammad Asif and Qari Muhammad Siddique for the said murders as the other three accused remained absconder. On the conclusion of the trial by judgment dated 4-4-1998, he convicted Muhammad Asif and Muhammad Yaqoob under sections 302/34/109, P.P.C. read with section 7 of the Anti-Terrorism Act and sentenced each of them to death on six counts and to pay fine of Rs.20,000 on each count but the third accused Qari Muhammad Siddique was acquitted; while the remaining three accused were declared absconders. Muhammad Asif and Muhammad Yaqoob impugned the judgment of the learned Special Judge before the High Court and the State also filed appeal against acquittal of Qari Muhammad Siddique. All the three matters were decided by the impugned judgment by a learned Division Bench of the High Court, whereby the appeal of Muhammad Yaqoob was accepted and that of Muhammad Asif and the State were dismissed. Leave to appeal was granted to the State against the acquittal of Muhammad Yaqoob and Muhammad Asif against his conviction whereas the appeal of the State against Qari Muhammad Siddique was not pressed and was, accordingly, dismissed.

3. The learned Advocate-General for the State in both the appeals and Mr. Ahmed Raza Qasuri, Advocate Supreme Court representing the respondent in Appeal No. 49 of 1999 and the appellant in Appeal No. 173 of 2000, agreed between themselves that let Appeal No. 173 of 2000, although fixed at No.2 may be heard first and, therefore, we would first deal with the said appeal.

4. The F.I.R. in this case was lodged by a Traffic Police Constable, namely Gul Muhammad .(P. W.19) on the, spot. It was stated in this report that he alongwith Muhammad Saghir (P.W.20) were present on Traffic duty at Chohar Chowk when at about 7-00 a.m. he noticed Hiace Vehicle No.RPT 1145 coming from Peshawar side. When it reached Chohar Chowk a person 32 years of age of 5'-6" size with whitish colour having beard wearing black shirt and Shalwar armed with Kalashnikov all of a sudden came before the said vehicle and fired a burst with Kalashnekov at the driver which hit the driver and the vehicle stopped. He then fired at the other six passengers in the vehicle who were dressed in Uniform. In the meantime his another companion 26/27 years of age with red colour of 5'-9" size and having a white cap on his head and wearing a light 'Badami colur' clothes, armed with Kalashnikov appeared there who also fired at the passengers present in the vehicle. The firing by the two accused killed five persons on the spot and one received serious injury. People in the Chowk ran away with the firing and the said two accused proceeded towards east to the opposite side of the road where a boy of 22/23 years age with red colour wearing Shalwar and Kameez riding on Honda Motor Cycle of black colour without number plate came near them from the other side of the road and two said persons rode on the motor-cycle which proceeded to eastern side. The incident was stated to have been seen by many persons. It was claimed that he and P.W. Asghar would be, able to identify the assailants. An official car in which some army officers were travelling soon after reached the spot from Peshawar side and took the dead bodies and the injured to CMH. He then conveyed the information to Police Control- on which the Inspector/S.H.O. Westridge reached the spot and recorder his report.

5. The prosecution relied for conviction on the following pieces of evidence:--

(a) Ocular account consisting of the two eye-witnesses, namely, Gul Muhammad and Muhammad Saghir, Police Constables on traffic duty.

(b) The identification parade of Muhammad Asif appellant by the said two witnesses.

(c) The confessional statements of Asif appellant before the D.S.P. in police custody.

(d) The recovery of crime empties from the place of occurrence and the weapons of offence with positive report of the Forensic Science Laboratory.

(e) Report of the Chemical Examiner regarding the blood-stained earth taken from inside the vehicle.

(f) The medical evidence of Muhammad Asif driver deceased and 5 others

(g) The circumstantial evidence.

6. The learned Judges in the High Court in the impugned judgment relied on ocular account of the two eye-witnesses, their identification parade, the medical evidence and the motive and so maintained conviction and sentence of Muhammad Asif. But Muhammad Yaqoob was acquitted on the ground that no identification parade was held about him; that the confession made by him before the police officer was inadmissible and recovery of crime weapon allegedly at his behest was not considered sufficient for conviction and as such it was held that the case against Muhammad Yaqoob could not be proved beyond doubt.

7. The learned counsel for Muhammad Asif appellant raised the following points in support of his appeal to show that on these points the appellant was entitled to acquittal:--

(i) The rejection of the application submitted by the appellant under section 540. Cr.P.C. on 28-3-1998 for summoning/examining the persons mentioned therein alongwith the relevant record by the learned trial Judge deprived the appellant to bring on record his version and the relevant facts which has resulted into great miscarriage of justice.

(ii) The identification parade in respect of the appellant through the two eye-witnesses could not be made basis for conviction as the appellant was shown to the witnesses before the parade was held.

(iii) Unexplained delay in lodging the F.I.R. creates reasonable doubt in the truth of prosecution case.

(iv) The incident occurred in the chowk of the main G.T. Road in presence of numerous persons but none was examined from the public to support the prosecution case.

(v) Munir Ahmad, an independent witness and Kazim Ahmad the injured were not produced which rendered the prosecution case doubtful.

(vi) No internal post-mortem of the 5 deceased was conducted, therefore, cause of their death could not be ascertained.

(vii) There was blackening, burning/tatooing over some of the injuries on the persons of the deceased which could not be caused from the distance shown by the eye-witnesses in their statements and the site plan of the spot of occurrence and this discredits the eye-witness account.

8. As on consideration of the above first point we have decided to remand the case to the trial Court, therefore, we would deal only with this point and discuss its merits and effect and would not comment on the other points in order to avoid any possible adverse effect about the culpability or otherwise of the appellant lest it may prejudice the case of one side or the other.

9. It is necessary to give factual background about Point No. l in order to understand the viewpoint of both the sides to resolve this controversy in its correct perspective.

On 28-3-1998 during the trial of the case the appellant submitted an application under section 540, Cr.P.C. for summoning/examining the witnesses named therein alongwith the relevant record. In view of the importance of this issue for our discussion the contents of this application are reproduced verbatim:--

"That petitioner Qari Muhammad Siddique is accused in the abovementioned case and allegations levelled by the prosecution against him are that he harboured the co-accused. The allegations are totally incorrect and false. There is no truth in the prosecution story.

(2) That prosecution have produced witnesses in this Honourable Court and no. other witness mentioned in the calendar is left for evidence.

(3) That it is case of the prosecution that the accused person Asif was arrested from the mosque of Qari Muhammad Siddique on 22-10-1997, on his pointation co-accused Muhammad Yaqoob was arrested. It is also mentioned in the report under section 173, Cr.P.C. that present petitioner Qari Muhammad Siddique was arrested on 6-11-1997.

(4) That all the major newspapers of the country published main head lines in their issues of 18-10-1997 and 19-10-1997, that accused Asif and Yaqoob alongwith Qari Siddique had been arrested on' the night between 16-17 October, 1997 but their arrest in the police record is on the midnight of 22-10-1997, so if it is proved the accused persons as well as the petitioner were arrested on the night of 16-10-1997 and 17-10-1997, then the prosecution case stands no where as published in the daily newspapers of the country and the recovery: subsequently effected from the co-accused on 23-10-1997 is also seems to be fake because accused were already in the custody of the police. So it would be appropriate for reaching on a just conclusion of the case to call the relevant witnesses as C. Ws. in the interest of justice.

5. That following witnesses as C. Ws. shall be mandatory for the just decision of the case:----

(i) Tahir Mughal, Crime Reporter, Daily Khabrain, Head Office, Sitara Market, Islamabad.

(ii) Asghar Mehmood, Crime Reporter, Daily News, Jang Plaza, Murree Road, Rawalpindi.

(iii) Secretary, Provincial Assembly Punjab, Lahore alongwith record dated 16-17-10-1997.

(iv) Mr. Zulfiqar Ahmad Khosa, Senior Minister, Punjab Secretariat, Lahore.

(v) Ch. Mushtaq Warraich, S.P., Khanewal.

(vi) District Reporter, Associated Press of Pakistan, Lahore who. Is giving coverage to the Punjab Assembly.

In view of the above it is most respectfully prayed that the above said persons may kindly be called as Court-witnesses for reaching on just conclusion of the case.

Petitioner

Through

Malik Waheed Anjum

Dated 28-3-1998 Advocate High Court.

This application was dismissed by the trial Court by order dated 30-3-1998 which order is reproduced:--

"During the investigation, the witnesses mentioned in both the applications never appeared before any Investigating Officer, nor their statements under section 161 or 162, Cr.P.C, were recorded. Even otherwise, to my mind, evidence of these witnesses in Court is not essential for the just decision of the case and the case can be decided judiciously and justly, without these witnesses being examined in Court, so both the applications are dismissed."

The importance of examining the witnesses mentioned in the application was felt as in the leading newspapers with large publication it had appeared on 18-10-1997 and 19-10-1997 that the appellant was arrested on the night of 16/17-10-1997. The source of such item of news was shown to be the Police Officers of the rank of SSP, SP and Provincial Minister having given a statement in the Provincial Assembly about the arrest of the appellant. The clippings from the newspapers have been marked on the case file and they are reproduced:--

1. English Newspaper "The News" dated 18-10-1997 marked Exh.DE by the trial Court, where the heading of the relevant News reads:

"3 arrested for murder of Iranins".

"RAWALPINDI : Law-enforcing authorities have arrested three alleged killers of the five Iranians cadets and their Pakistani driver, who were ambushed in Rawalpindi last month.

A few Kalashnikovs and two handgranades have also been recovered from the arrested killers who were identified by police as Asif Kashnuri, Muhammad Sadiq and Muhammad Sher.

SSP, Rawalpindi Rao Muhammad Iqbal confirmed the arrest of the three Iranians killing case and said two of them were directly involved in the killing.

We are also trying to recover the motor-cycle which was used in crime, "said Iqbal" who was leading the investigation team. He said a team has been despatched to Lahore to detain those who had allegedly masterminded the act of terrorism.

Sources in police said one of the accused was arrested from Pirwadhai area, who later disclosed the presence of his other accomplices in Dhoke Matkal. A, bag containing weapons allegedly used in the killings was also seized by the raiding police party, the source added.

Police sources told The News that the accused had left Rawalpindi soon after the killings and then returned here about three days ago between Wednesday and Thursday.

The accused were produced before some of the eye-witnesses who the police claimed have seen the murderers fleeing on the day of incident. "Some witnesses have identified the accused" the Investigating Officer said. "

On the other hand the case of the prosecution in this respect at the trial was that the appellant was arrested on 22-10-1997 arid was produced the same day before the learned Judge Special Court for judicial remand so that he may subsequently be got identified through the eye-witnesses. The relevant documents show that the learned Special Judge on the very day remanded the appellant to judicial lock-up. It is alleged by the prosecution that the identification parade was held in jail on 25-10-1997 and thereafter on 27-10-1997. Muhammad Asif was given in police custody till 5-11-1997. The identification parade was proved through the learned Magistrate who appeared as P. W.12 which was supported by the two eye witnesses P. W.19 and 20. It cannot be denied that the prosecution heavily relies on the identification parade for conviction and in fact the learned trial Court and the High Court based conviction of the appellant mainly on this evidence.

10. It is thus obvious that on the one hand there was version of the prosecution regarding the arrest of the appellant on 22-10-1997 and on the other hand of the defence that the appellant was in fact arrested on the night between 16/17-10-1997. These two conflicting versions were not about a minor/insignificant matter but it was about very crucial and important piece of evidence. The perusal of the statements of the eye-witnesses, the Magistrate and the Investigating Officer clearly shows that almost every one of them had been cross-examined about the date of arrest of the appellant as shown in the newspapers which indicates that the appellant has made efforts to lay basis for his arguments that he was arrested on the night between 16/17-10-1997 and before his remand to judicial lock-up he was shown to the witnesses. If the trial Court had accepted the application of the appellant sunder section 540, Cr.P.C. 'then the plea of, the appellant would also have appeared on record; and keeping the stand of the prosecution and the defence side by side the Court would have been able to resolve the controversy in accordance with law. Section 540, Cr.P.C. reads:--

"Powers to summon material witness or examine person resent. --- Any Court may, at any stage of any inquiry, trial or other proceedings under this Court, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or re-call and re-examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it essential to the just decision of the case. "

This section has two parts; in the first one the discretion lies with the Court to examine or not to examine any person as a witness but according to second part of the section the Court is bound to examine any person as a witness if his evidence appears to be essential for just decision of the case irrespective of the fact that any party had requested for it or not. This legal proposition has been exhaustively explained/clarified in the case of Muhammad Azam v. Muhammad Iqbal and others" reported in PLD 1984 SC 95). Therefore, reference to various portions of the judgments would be helpful. It had been observed at page 118 of the judgment:----

"The duty nevertheless lay squarely on the trial Court to summon the entire available evidence on this controversy and record/admit the same by virtue of power under section 540, Cr.P.C. It reads as follows: 'Power to summon material witness or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine ay person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."

"This provision is divided into two parts: one where it is only discretionary for the Court to summon a Court-witness suo motu or on application, and the second part where it is mandatory for the Court to do so. The main condition to be satisfied with regard to the second part is that the evidence to be summoned under this part should appear to the Court to be essential to the just decision of the case. As has already been observed the evidence in question relating to Nikah was undoubtedly essential for the just decision of the case. In the circumstances of this case the failure of the learned trial Judge to act under the said part of section 540, Cr.P.C. has not only, deprived the Appellate Courts of essential material for the just decision of the appeal, but has also occasioned miscarriage of justice."

The observation at page 120 of the said judgment reads:----

"'The failure of the parties to produce sufficient evidence after introducing this subject should not have deterred the trial Court in performing the duty under the second part of section 540, Cr.P.C. The trial Court has, as discussed about, failed to do so and therefore, on this account also the case merits remand for fresh trial. " .

The legal position was further explained at page 121 which is reproduced:--

"It needs to be observed that for purpose of acting under section 540, Cr.P.C. (whether the first or second part), it is permissible to look into the material not formally admitted in evidence, whether it is available in me records of the judicial file or in the police file or elsewhere. The perusal of both these records would show that if evidence, in connection with the items already noticed, would have been properly entertained the reasoning and decision of the learned two Courts right have been different.

The often repeated objection that such an exercise would amount to filling up the lacuna has been clarified in this way in the judgment:--

"Sometimes apprehension is expressed that any action by the trial Court under section 540, Criminal Procedure Code would amount to filling the gaps and omissions in the version or evidence of one or the other party. It may straightaway be observed that in so far as the second part of section 540 goes, it does not admit any such qualification. Instead, even if the action thereunder is of the type mentioned, the Court shall act in accordance with the dictates of the law. In fact the Court has no discretion in this behalf. It is obligatory on it to admit evidence thereunder if it is essential for the just decision of the case. It was held in Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf (PLD 1963 SC 51) that even if a witness who is ultimately to be produced by the accused in his defence is examined by the trial Court as a Court-witness at an earlier stage then notwithstanding the fact that the defence would have an extra advantage of putting leading questions to the witness when standing in the witness-box as a Court-witness, it would not affect the power of the Court (under section 540, Cr.P.C.) to summon and examine the witness if, of course, as was observed in that case, it was in the interest of justice and this is presumably essential for the just decision of the case. Again in The State v. Maulvi Muhammad Jamil and others (PLD 1965 SC 681) when examining the effect of change in the criminal procedure, regarding right to further cross-examination, during the transitional period, this Court held that even though it would be for the benefit of the defence, the trial Court could avoid any prejudice to the defense by acting under section 540, Cr.P.C. After holding so a very weighty observation was made which needs to be reproduced:

'This section empowers a Court at any stage of inquiry, trial or any other proceeding under the Code, to summon any person as a witness, or recall and re-examine any person already examined, and it is obligatory for the Court to summon and examine or recall and re-examine any such person, if his evidence appears to it essential for the just decision of the case'. "

"In yet another case Rashid Ahmed v. The State (PLD 1971 SC 709), this Court made it more clear that "a criminal Court is fully within its rights in receiving fresh evidence even after both the sides have closed their evidence and the case is adjourned for judgment, for, till then the case is still pending. The only question therefore, is as to whether in the interest of fairness further opportunity should have been given to the accused"; and, it was held that 'there is not bar to the taking additional evidence in the interest of justice, at any stage of inquiry or trial as provided by the provisions of section 540, Cr.P.C.' In these cases if the question regarding so-called filling of the gaps would have been raised more squarely, the answer m view of what has been noticed about would have been the same has already rendered; namely, that if it is essential for the just decision of the case, then the same is the command of the law under the; second part of section 540, Cr.P.C. It would not be possible to canvass that when the action under the said provision amounted to so-called filling of a gap, the Court would for this reason, avoid its duty to admit the additional evidence. "

Thus the legal position about examining of additional evidence was fully elucidated in the judgment as:--

"The use of the expression 'appears to it' in the second part of section 540 gives ample indication that even when it is not possible to give a conclusive verdict with regard to the item of evidence being essential or otherwise, yet it taking action under the said part of section 540. And for that matter as observed earlier, it would not be necessary for the trial Court to hold a separate inquiry so as to preach a conclusion whether an item of evidence is essential for the just-decision of the case. It would be enough if it appears so to the Court from any material or inference from the material including that which is already available to the Court in any form admitted evidence or material otherwise lying on the judicial and other files before it. It is in the foregoing context that another judgment namely Abdul Latif and others v. State of Uttar Preadesh (AIR 1978 SC 472), has to be viewed. It was held therein that if there is a finding of the High Court that the evidence of any witness is not necessary for just decision of the case, it is a finding of fact and unless there is some substantial error in the judgment of the High Court, the Supreme Court would not interfere in a case of special leave. I agree with the proposition but would, with respect, add that if the High Court itself commits an error in interpreting the second part of section 540, Cr.P.C. in a manner contrary to what has been stated earlier, it might become a case for interference by this Court.

The question regarding so-called bar against filling of gaps, has to be considered in another context also. If it is found to be a salutary rule, then the same, without any distinction vis-a-vis the nature of the offence, should be applicable in all criminal trials. It would be noticed that in murder cases; the application of this rule, when the controversy is with regard to the filling or otherwise of a gap m the defence evidence by the resort to section 540, and in case denial thereof would result in conviction and no other sentence than would not be possible to canvass that in observation of the so-called rule of avoidance to fill the gaps, evidence which is essential for the just decision of the case, would not be admitted for this reason. It would not only be the negation of justice in a general sense, but would also contravene another rule namely that no party should suffer on account of mere technicalities. The procedural law is not enacted to trap individual parties through technicalities and has to be interpreted always as acting in aid of justice and fairplay."

The objection regarding prejudice, filling up gaps in the case and failure of a party to apply for additional evidence in time was further explained in these words:--

"One more aspect needs to be clarified regarding the exercise of power-under section 540, Cr.P.C. It is in addition to three main aspects already noticed namely: that, it is divided into two parts one discretionary and the other obligatory; that, the obligatory one is conditioned by the fact that it should appear to the Court to be essential for the just decision of the case; and that, the rule against filling of the gaps would not operate against the exercise of this power if the case falls under the second part of section 540, Cr.P.C. It relates to a proposition, converse to the so-called rule regarding filling of the gaps; namely that it should not be, exercised so as to prejudice one or the other party. Enough has been said already that if a situation falls under the second part of section 540 clearly and, squarely then the question of prejudice would not be entertainable. It is fallacious proposition that this power then should not be exercised. The mandate of law when itself does not admit of any such qualification, the Court cannot introduce it.

Another, clarification needs to be made that although in this case the power to summon additional evidence regarding Nikah when exercised would seem to be filling a gap left in the defence evidence; and, if ultimately the additional evidence admitted supports the defence, it would not be possible to say that the process has not gone in and of justice. Same would apply to the prosecution side because the law as contained in section 540, Cr.P.C. (second part) or for that matter in the relevant part of section 165, Evidence Act, does not make any distinction between the prosecution and the defence."

The objection of the learned Advocate-General that when the application of the appellant was rejected by the trial Court on 30-3-1997 and the appellant having given statement on 31-3-1997 that he would not produce defence in spite of the fact that a day earlier in his statement under section 342, Cr.P.C. he had stated that he would produce defence debars him from any-redress, finds a clear reply in the above judgment. On interpreting the second part of the section it has been emphasized that irrespective of the fact that the prosecution or defence was negligent in producing the relevant evidence at the proper time and in spite of the objection that it would amount to filling up the facts in the case of one side or the other side, and- also irrespective of the criticism of any side about the partiality of the Court in his exercise even then the Court is bound to perform its duty of examining the evidence which appears to be essential for just discussion of the case. In the above-cited case the accused mainly relied for his innocence in the charge of abduction and Zina on a Nikahnama but could not produce the same in Court. But in spite of that the case was remanded for re-trial to enable him to bring his stand on record as it appeared necessary for just decision of the case. The rule laid down in the above judgment was repeated in Shakir Muhammad and another v. The State (PLD 1985 SC 357) when, it was observed:--

"In this background of events, we consider that the defence plea was not mala fide to imply summary rejection. If the trial Court had undertaken to decide the issue of validity of marriage then as indicated in Azam's case full inquiry should have been made into 'the conflicting claim with regard to the marriage invoking the powers of the Court under section 540, Cr.P.C. or better still if the family case on the subject was pending its decision should have been awaited for a reasonable time. That course having not been adopted, a material defect remains in the trial. We are not satisfied on the quality of the evidence particularly when the other authentic evidence has not been taken note of on the question of Nikah with regard to the findings recorded. It is therefore, a fit case in the light of decision given by this Court in Azam's case in which the decision merits interference. Hence, the appeal is allowed and the judgments of conviction recorded by the trial Court and affirmed by the Federal Shariat Court are set aside and a re-trial is ordered in the term of decision of this Court in the case of Azam."

It is thus manifest that calling of additional evidence is not always conditioned on the defence or prosecution making application for this purpose but it is the duty, of the Court to do complete justice between the parties and the carelessness or ignorance of one party or the other or the delay that may result in the conclusion of the case should not be a hindrance in achieving that object. It is salutary principle of judicial proceedings in criminal cases to find out the truth and to arrive at a correct conclusion and to see that an innocent person is not punished merely because of certain technical omission on his part or on the part of the Court. It is correct that every, criminal case has its own facts and, therefore, no hard and fast rule or criteria for general application can be laid down in this respect but if on the facts of a particular case it appears essential to the Court that additional' evidence is necessary for just decision of the case then under second part of section 540, Cr.P.C. it is obligatory on the Court to examine such a witness ignoring technical/formal objection in this respect as to do justice and to avoid miscarriage of justice.

11. Now we take up the State appeal against Muhammad Yaqoob. The learned Advocate-General and the learned Assistant Advocate-General while arguing Appeal No.49 of 1999 filed by the State to challenge the acquittal of Muhammad Yaqoob by the High Court argued that the learned Judges in the High Court have erred in discarding the evidence of recovery of Kalashnikov etc., at the behest of this accused as it matched with the empties picked up from the spot. It was also submitted that the confession of the accused before the Police was admissible in evidence under section 26 of the And-Terrorism Act, 1997 as the present case was decided on 4-4-1998 while the judgment of Mehram Ali case reported as PLD 1998 SC 1445, was delivered on 15-6-1998 and this Mehram Ali case has saved the cases which had concluded before decision of the case. These submissions were opposed by the learned counsel appearing for Muhammad Yaqoob.

12. The reasons which prevailed with the High Court in the impugned judgment for acquittal of Muhammad Yaqoob are reproduced:-----

"Muhammad Yaqoob appellant, upon arrest was not put identification parade by the concerned police for the unknown reasons. The most important and basic evidence of the identification of this appellant having destroyed by the investigating agency has created an incurable dent in the prosecution case to establish charge against him. The eye-witnesses categorically stated that they identified both the accused at the spot but Muhammad Yaqoob appellant was not taken to the identification parade to be identified by the witnesses and consequently the participation of this appellant in the occurrence remains unproved. The identification of this accused in Court, by the witnesses without his identification in Jail immediately after arrest was of no value in the facts of the present case. The appellant having not identified by the eye-witnesses in the identification parade with the role played by him in the occurrence, the prosecution has not been able to establish his guilt beyond doubt. The evidence of recovery of Kalashnikov at the instance of this appellant from the iron box lying in the room of his residential house and matching of some empties with the same itself is not enough evidence to sustain the conviction. The prosecution gave much importance to the confessional statement of the appellant before the D.S.P. while in custody in the police station. This confessional statement having not made voluntarily did not acquire the status of extra judicial confession. The D.S.P. displaying the recording of confessional statement through the video probably wanted to show that it was voluntarily made out he forget that the appellant was not mentally free. The appellant if was ready to make a confessional statement voluntarily instead of recording of same by the D. S. P. to remove any doubt the appellant should have been produced before a Magistrate. The confession made before a police official of the rank of D.S.P. was admissible under section 26 of the Anti-Terrorism Act, 1997, but the same still could be rejected by the Court, and necessary to be believed and given effect. Be that as it may, the apex Court in Mehram Ali's case (1998 SCMR 1156) has struck down the provisions of section 26 of the Anti-Terrorism Act, 1997 by virtue of which the confession before the D.S.P. was made admissible and, therefore, the confessional statement made by Muhammad Yaqoob appellant before the D.S.P. is not an evidence to be read as such and used against the accused. With the exclusion of the evidence of recovery, the confessional statement of the appellant and he having not identified through identification parade, the evidence of eye-witnesses in the given circumstances is of no help to the prosecution and the conviction and sentence of this appellant being not based on any evidence is not sustainable. "

The above para. shows that the High Court was of the view that mere recovery at the pointation of Muhammad Yaqoob was not by itself sufficient to justify conviction in absence of other incriminating evidence, The confession by the accused was discarded as having been made before the Police Officer and as such violative of the rule laid down in Mehram Ali case mentioned above. The argument of the learned Advocate-General that after the conviction in this case it became a past and closed transaction and that the dictum in Mehram Ali case would not apply to it as in the said case past and closed transactions have been saved/protected, is not correct. The present occurrence cannot be termed as past and closed transaction as the High Court decided it as an appeal by the convict and Murder Reference by the State and we are now dealing with it as an appeal by the State. In Mehram Ali case the conviction and sentence were challenged in Writ Petition which were collateral proceedings as in direct proceedings the petitioner had failed but in the present case we are deciding the appeal against acquittal against the judgment rendered by the High Court in appeal and Murder Reference, therefore, it is not possible to hold that this appeal relates to past and closed matter. The rule laid down in Mehram Ali case would, therefore, fully apply and on the strength of that judgment the confession before the Police being inadmissible cannot be made basis for conviction. We agree with the High Court that in absence of any other incriminating evidence mere recovery on the pointation, of Muhammad Yaqoob respondent would not be sufficient to hold him guilty. The learned Advocate-General was unable to show that the reasons given in the impugned judgment for acquittal of the respondent were arbitrary or perverse. This Court is always reluctant to interfere in acquittal order which does not suffer from misreading/non-reading of evidence and which cannot be termed so perverse as to have caused miscarriage of justice.

The above are the reasons for our short order announced on 18-8-2000, which reads as under:--

"In the light of the factual and legal position to be explained in the detailed order, we accept Criminal Appeal No. 173 of 2000, filed by Muhammad Asif arid set aside the impugned judgment of the trial Court and the High Court in respect of the said appellant and remand the case to the learned trial Judge with the direction to summon the witnesses mentioned in the application, dated 28-3-1998 under section 540, Cr.P.C. submitted by the appellant in the trial Court alongwith the relevant record/documents and examine them as Court-witnesses. Both the prosecution and defence be allowed to cross-examine these witnesses in accordance with law. Thereafter, the learned trial Judge should decide the case afresh on the basis of evidence already on record and the one to be brought on record in pursuance of this judgment without being influenced by anything stated/observed in the judgment of the trial Court, the High Court or this Court. The learned trial Court should resume hearing in this case on 2-10-2000 and should finally decide it within three months and report of compliance should be sent to the Registrar of this Court. The learned Advocate-General, Punjab and the Jail Authorities should ensure the attendance of the appellant before the trial Court on 2-10-2000. The appellant Muhammad Asif should be kept in judicial lock-up as undertrial prisoner during the trial. Criminal Appeal No.49 of 1999 filed by the State against the acquittal of Muhammad Yaqoob is dismissed for the reasons to be recorded in the detailed order.

N.H.Q./S-73/S Order accordingly.