Muhammad Nawaz Abbasi, J.--The appellants namely Wasim Munir and Hafiz Muhammad Nawaz alongwith their co-accused were tried for the charge under Sections 302, 109, 34 PPC read with Section 7 of the Anti-Terrorism Act, 1997 by the Special Court established under Anti-Terrorism Act, 1997 for Rawalpindi Division and Islamabad Capital territory for the charge of committing murder of Aon Muhammad Rizvi deceased. The learned trial Judge having found the appellant guilty of the charge convicted and sentenced them vide judgment dated 14.10.2000 as under:- UNDER SECTION 302(B) PPC:-
1. HAFIZ MUHAMMAD NAWAZ, APPELLANT:-
(a) Sentence of death with payment of an amount of Rs, 3,00,000/- as compensation under Section 544-A Cr.P.C. to the legal heirs of Aoun Muhammad Rizvi deceased and in default of the payment of compensation to undergo S.I. for six months.
(B) UNDER SECTION 149 PPC:- Rigorous imprisonment for a term of 10 years with a tine of Rs, 50,000/- and in default of the payment of fine to undergo S.1. for six months.
(C) UNDER SECTION 7-A OF ANTI-TERRORISM ACT, 1997:- Sentenced to death. (2) Wasim Munir appellant in Criminal Appeal No, 441-T/2000:- Sentenced to seven years R.I. with a fine of Rs, 10,000/- and in default of the payment of fine to undergo S.I for six months under Section 201 PPC. The co-accused of the appellants namely Abdul Waheed, Muhammad Mateen, Tanvir-ul-Islam. Irfan Ahmad Siddiqui and Muhammad Nauman Fawad were acquitted whereas Amir Nisar was declared absconder and the trial against him was separated under Section 512 Cr.P.C.
2. The acquittal of the above named accused has been challenged by the complainant namely Qasim Rizvi as well as by the State through Crl. Rev. No, 83-Q/2000 and Crl. A. No, 476-T/2000 respectively. The appellants have challenged their convictions and sentences through separate criminal appeals Bearing No, 441-T/2000 and 439-T/2000 respectively. These appeals and criminal revision are proposed to be disposed of through this single judgment.
The brief facts in the background as contained in the complaint Exh. PN made by Syed Muhammad Qasim before Raja Muhammad Akram Station House Officer of Police Station New Town, Rawalpindi, in hospital on the basis of which the case was registered against unknown culprit vide F.I.R. ExP. N/.2 are as under:- That on 7.10.1999 at 7.45 a.m. Syed Qasim Rizvi while strolling was reciting Tasbih in the Courtyard of his house when suddenly two unknown culprits armed with Kalashnikov and Pistol attacked on the deceased. The assailant with Kalashnikov was of the normal physique with small and thick moustaches and stylish hair and was wearing. shalwar and qamiz whereas the assailant who was armed with pistol being of the age of 22/23 years was of light blackish colour of the height of 5 feet 7/8 inches with slim body and dark hair. He was wearing a blue colour shirt and light sky blue pent.
The assailants simultaneously opened firing at the deceased who having sustained injuries fell on the ground and the assailants quickly escaped from the place of occurrence on a Motor-Cycle Bearing No, SGH-9400 which was readily available outside the house under the control of their third companion. Ali Hussain Rizvi, the elder brother of the complainant while reaching at the spot also seen the occurrence. The deceased was taken to the Holy Family Hospital by his sons with the help of mohalladars in an injured condition for medical aid but he could not survive. The unknown assailants were identified by the complainant and his elder brother at the spot. The deceased was examined by Dr. Haroon-ur-Rashid PW8 in the Holy Family Hospital in injured condition. The medico legal report (Exh. PF) of the deceased,. was made part of record. On death of Aon Muhammad Rizvi in hospital the SHO prepared the inquest report Exh. PP and dispatched the dead-body to the mortuary through Nasir Mehmood Constable PW4 for post-mortem examination which was carried out by Dr. Muhammad Ashraf PW9. The post-mortem report Ex. P4 was prepared by the Doctor. The Investigating Officer while reaching at the place of occurrence prepared the rough site-plan Ex. PQ and collected blood with cotton from the spot. He also collected 14 crime empties of 30 bore pistol and one missed bullet of Kalashnikov from the place of occurrence which were taken into possession in a sealed parcel through a memo prepared at the spot. The Investigating Officer took into possession the last worn blood stained clothes of the deceased, which were produced before him by Nasir Mehmood, Constable on receipt of same from Doctor at the time of post-mortem examination of the deceased. These parcels were banded over by the Investigating Officer to Moharrar of the Police Station to keep the same in Malkhana. Qamar-ud-Din PW7 under the direction of investigating officer prepared site-plan Ex. PE nad PE/1 on the pointation of eye- witnesses. The accused namely Tanvir-ul-Islam, Mateen, Irfan Ahmad Siddiqui and Abdul Waheed in their extra judicial confession made by them before Nisar Ahmad son of Shams Din PW11 disclosed that they with a view to watch the. movements of deceased kept him under surveillance and also provided a motor-cycle to Hafiz Muhammad Nawaz and his two companions who operated at the spot. Amir Nisar accused while making confessional statement before Syed Shahid Akhtar Zaidi PW12 has admitted his participation in the occurrence. Hafiz Muhammad Nawaz was arrested on 13.1.2000 from Shamsabad and on the same day was sent to judicial lock up and later his identification parade was arranged under supervision of Muhammad Shahid, Magistrate Ist Class, Rawalpindi on 14.1.2000 in jail. The eye-witnesses namely Syed Qasim' Rizvi PW15 and Ali Hussain PW16 identified Hafiz Muhammad Nawaz appellant who being armed with Kalashnikov fired at Aon Muhammad Rizvi. Hafiz Muhammad Nawaz during the investigation led to the recovery of a brief case from the residential house of Noman Fawad which was continuing Kalashnikov with a magazine, a pistol 30 bore with a magazine and two passports of Asif Zaheer with his identity card. The investigating officer having recovered these items from brief case took the same into possession through a single memo. Hafiz Muhammad Nawaz also led to the recovery of motor- cycle Bearing No, SGH 9400 from the house of Wasim Munir which was taken into possession through a separate memo. The Investigating Officer on completion of the formal investigation submitted the challan before the Special Court established under Anti-Terrorism Act, 1997.
4. The charge against the appellant namely Hafiz Muhammad Nawaz and Wasim Munir alongwith the acquitted accused namely Abdul Waheed, Muhammad Mateen, Tanvir-ul-Islam, Irfan Ahmad Siddiqui, Muhammad Norman Fawad, Amir Nisar was framed on 12.7.2000 under Section 302/34 PPC read with Section 109 PPC and Section 7-A of Anti-Terrorism Act, 1997 for the allegation of committing the murder of Aon Muhammad Rizvi through terrorism. The appellants and Asif Zaheer the absconding accused were also charged under Section 449 PPC.
5. The prosecution in order to prove its case in addition to the ocular account placed reliance on the medical evidence, extra-judicial confession of the accused and the recoveries affected by Investigating Officer during the investigation. Syed Muhammad Qasim Rizvi, PW. 15 and Ali Hussain Rizvi PW. 16, real sons of Aon Muhammad Rizvi and the inmates of the house in the courtyard of which the fateful occurrence took place have furnished the ocular account. Muhammad Shahid, Magistrate, PW. 10 has supervised the identification parade of the appellants in Central Jail, Adiala, Rawalpindi. Amir Nisar and Asif Zaheer confessed their guilt before Syed Shahid Akhtar Zaidi, PW. 12 whereas Ibne Muhammad Rizvi, PW 13 and Naseer Ahmed PW. 11 are the witness of extra-judicial confession of Tanvir-ul-Islam, Mateen, Irfan, Siddiqui and Qari Abdul Waheed. Syed Najam Abbas Naqvi PW. 14 and Syed Muhammad Qasim the first informant have witnessed the recovery of motor-cycle SGH 9400 which was used in the occurrence, at the instance of Hafiz Muhammad Nawaz. Rab Nawaz Constable PW. 1 was deputed to deliver the sealed parcels containing blood- stained earth and crime empties to the Moharrar of the police station to keep the same in Malkhana. Mukhdtar Ahmed, Constable PW. 2 was given two sealed parcels to be delivered in the office of Chemical Examiner and Forensic Science Laboratory, Lahore. Shah Nawaz, PW. 3 identified the dead-body of Aon Muhammad Rizvi whereas Nasir Mehmood Constable PW. 4 escorted the dead-body of the deceased to mortuary for post-mortem examination. This witness also produced blood-stained clothes of the deceased i,e, Chaddar P. 1 and shirt P. 2 before the investigating officer. Muhammad Arif, Head Constable PW. 5 witnessed the recovery of blood which was taken into possession from the courtyard of the house of Aon Muhammad Rizvi, Abbas Shah constable PW. 6 witnessed the recovery of key of the brief case P. 5 from the personal search of Hafiz Muhammad Nawaz appellant at the time of his arrest. Qamar-ud-Din draftsman, PW. 7 prepared site-plan, Ex. PE and Exh. PE/1. Dr. Haroon-ur-Rashid Siddiqui medically examined the deceased in an injured condition wheteas Dr. Muhammad Ashraf, PW. 9 conducted the post-mortem examination on the dead-body of Aon Muhammad Rizvi. Faisal Manzoor, S.I. PW. 17 recorded the formal FIR Ex. PN/2 on the basis of statement of the first informant. Raja Muhammad Akram, Inspector/SHO, PW. 18 conducted the investigation and submitted' the challan.
6. The Deputy District Attorney having tendered in evidence reports of the Chemical Examiner, Ex.
PT. Serologist Ex. PU and Forensic Science Laboratory Exh. PV closed the prosecution case.
7. Hafiz Muhammad Nawaz appellant in his statement under Section 342 Cr.P.C. in answer to Questions Nos, 17 and 18 has made the following answers: QUESTION No, 17:- "The Police completed the incomplete Challan of the case on 10.11.1999 and my name was not mentioned in the last Challan Zimni on 10.11.1999. My name was Seven not mentioned in the complete Challan in any respect. Neither my bailable or non-bailable warrants were even obtained by the Investigating Officer from any Court of law. Till 13.1.2000 my arrest is shown. The Police in connivance with the complainant party falsely involved me alongwith others to show their karvaees.
QUESTION NO. 18:- The PWs are related inter se and are sons of the deceased. No independent witness of the locality has been appeared in the case and being the members of Shia sect have deposed against me. I was shown to them before the identification parade as admitted by the PW in the statement before the Court. They are chance witnesses and their statement does not rings the truth."
Wasim Munir appellant in his statement under Section 342 Cr.P.C. in answer to Question No, 4, "Why this case against you are why the PWs deposed against you" answered as under:-- "The Police has shown its Karvaie to involve maximum number of accused to make the case more sensitive and heinous. I was also involved in this case falsely, maliciously and with ulterior motives.
The PWs have deposed against me falsely on the asking of the Police to strengthen the prosecution case. No independent witness has been produced or cited in the case none from locality has supported the false prosecution version."
The learned trial Judge having evaluated the prosecution evidence convicted Hafiz Muhammad Nawaz under Section 302/449 PPC read with Section 7 of the Anti-Terrorism Act, 1997 whereas Wasim Munir was convicted under Section 201 PPC and acquitted the remaining accused from the charge except Amir Nisar who being fugitive from law was declared absconder.
Syed Muhammad Qasim (PW. 15) and Syed Ali Hussain Rizvi (PW. 16), the eye-witnesses of the occurrence while confirming the prosecution story as narrated in the F.I.R. described each detail of the occurrence in their statements and also narrated the events subsequent to the occurrence.
The witnesses while corroborating each other on each material point fully supported the prosecution case against Muhammad Nawaz appellant. The witnesses at the identification parade correctly identified Hafiz Muhammad Nawaz as one, who being armed with Kalashnikov fired at the deceased in the occurrence. The eye-witnesses have stated that the fateful occurrence took place at .7.45 a.m. in the courtyard of their house, when their father Aon Muhammad Rizvi while strolling in the courtyard was offering Tasbih. Syed Muhammad Qasim Rizvi (PW. 15), was present in the courtyard to take his sister to school in the vehicle parked in the courtyard, whereas Ali Hussain Rizvi his elder brother being present in the house on the report of firing rushed towards the courtyard of the house and witnessed the occurrence. Hafiz Muhammad Nawaz opened firing at the deceased with Kalashnikov, whereas his companion namely Amir Nisar (absconder) being armed with pistol fired at the deceased and their third companion while keeping the Motor-Cycle Bearing No, SGH 9400 ready outside the courtyard of the house was waiting for them. The accused after firing at the deceased fled away from the spot on the motor-cycle. Nisar Ali (PW. 11) has stated that on 11.10.1999 at Maghrib time Tanvir-ul-Islam in the company of Mateen, Irfan Siddiqui and Qari Abdul Waheed came to him at his house. Tanvir-ul-Islam accused was his class fellow in Zia-ul- Islam school, Rawalpindi and was also a business partner of his brother namely Sheikh Abdul Aziz and was running a shop near the house of Aon Muhammad Rizvi deceased. Tanvir-ul-Islam disclosed before the witnesses that he and his companions having planed the murder of deceased were watching his activities and movements and as per planning a motor-cycle was handed over to Hafiz Muhammad Nawaz who was instructed to operative at the spot with his two companions.
The accused further disclosed that they were watching the operation and immediately after the occurrence, they disappeared. The witness being city President of Tehrik-e-Jaferia claimed close relations with Rizvi brothers, and for the said reason, the accused approached him with the request to exercise his influence and manage pardon for them being not the actual killers. Syed Shahid Akhtar (PW. 12) stated that on 20.1.2000 at about Maghrib time, Amir Nisar accused, a member of Sipah-e-Sehaba, who had a close relations with him visited him at his residence and sought his help. This witness deposed that according to Amir Nisar accused one Asif Zaheer, as activist of Sipah-e Sehaba desired that the Shia in the country should be wiped out and in the process an Officer of PTV was marked to be done to death. The accused disclosed that he and Asif Zaheer before the occurrence on the fateful day went together to a hotel at Said Pur Road, Rawalpindi and Hafiz Muhammad Nawaz and Sheraz also reached at the hotel. Hafiz Muhammad Nawaz deputed Sheraz and Asif Zaheer to watch the situation from the Stadium road, Hafiz Muhammad Nawaz than proceeded towards Banni with Amir Nisar and Sheraz on a motor-cycle. The witness stated that the accused being under the apprehension of arrest sought his help and he took him to Nayyar Abbas Naqvi, who was closely related to the family of Aon Muhammad Rizvi. The accused disclosed the story in detail before Nayyar Abbas Naqvi in his presence. The witness stated that on 22.1.2000 he and Nayyar Abbas Naqvi approached Ibne Rizvi and Talib Rizvi sons of deceased for pardon for the accused but they refused to accept the pardon of the accused.
Ibne Muhammad Rizvi (PW. 13) stated that on 12.10.1999 Nasir and Sibt ul Hassan PW met him and Talib Rizvi in the Imam Bargah and proposed for pardon for Tanvir-ul-Islam, Irfan Siddiqui, Muhammad Matin and Qari Waheed accused but he refused to give pardon to them. On 22.1.2000 Shahid Akhtar Zaidi and Nayyar Abbas made a similar request to him on behalf of Amir Nisar but he refused to accept their request. Syed Najam Abbas Naqvi (PW. 14} stated that in his presence Hafiz Muhammad Nawaz accused having made a disclosure regarding the weapon of offence used in the occurrence led to the recovery of brief case P.6 from the house of Norman Fawad. The accused while opening the brief case got recovered Kalashnikov P. 7 alongwith two loaded magazine P. 7/1-2 and fifty nine bullets P. 8/1-59. The accused also got recovered 30 bore pistol P. 9 with magazine P. 10, two passports P. 11 and P. 12 with an identity card P. 13 of Asif Zaheer from the same brief case.
Dr. Haroon Rashid Siddiqui (PW. 8) medically examined the deceased on 7.10.1999 at 7.55 a.m. and found the following injuries on his person:-- "Patient was irritaval and gasping with blood all over the body. BP Nil, Pulse Nil. With visible Cyanosis of tongue. Immediately I/V line was maintained and oxygen given. And patient was immediately shifted to main operation theatre by the Surgical Department. Following injuries were noted:- INJURY NO. 1:--An entry wound of bullet of 1 x 1 (1/2) c.m. over pericordim in left lower chest at mid clavicular line.
INJURY NO. 2:--Another entry wound of bullet in left lumber region in anterolateral area of 1/2 x 1 c.m. bleeding profusely.
INJURY NO. 3:--An entry wound of bullet in left lower abdomen in left iliac fossa 1 x 1 c.m. Also bleeding profusely.
INJURY NO. 4:--Two side by side bullet entry wounds in middle area of left lateral aspect of left thigh each of (1/2) x c.m."
According to the Doctor, the deceased succumbed to the injuries shortly after his medical examination on the day of occurrence in the hospital. Dr. Muhammad Ashraf conducted the post- mortem examination on the dead-body of Aon Muhammad Rizvi on the same day and traced the following injuries on his person:-- "1. Lacerated wound of fire-arm 0.05 x 0.05 c.m. on the left front of chest, 5 c.m. lateral to mid sternal line. It was a wound of entry.
2. Lacerated wound of fire-arm 0.05 x 0.05 c.m. on the left front of chest, 13. cm below the left nipple.
It is a wound of entry.
3. Lacerated wound of entry of fire-arm 0.05 x 05 c.m. on the left hypochonomdrium region of abdomen.
4. Lacerated wound of fire-arm .05 x .5 c.m on the left front of chest 22 cm. below the axilla.
5. Lacerated wound of fire-arm .5 x .5 cm on the left lumber 'region of abdomen on frontal aspect.
Lacerated wound of exit fir-arm .5 x .7 cm on the right back of chest, 16 cm lateral to mid vertebral line and 28 cm below the superaclavicular fossae.
7. Lacerated wound of fire-arm .5 x .7 cm on the back of right lumber region, 12 cm lateral to mid vertebral line. It is an exit wound.
8. Lacerated wound of fire-arm .5 x .75 cm on the mid vertebral line 5. cm above the anal cleft.
9. Lacerated wound of fire-arm .5 x .75 cm on the mid vertebral line 3. cm above the Injury No,
8. It is an exit wound.
10. Lacerated wound of exit of fire-arm .5 x 75 cm on the back of right lumber region of abdomen.
11.Lacerated wound of exit of fir-arm .5 x 75 cm on the right back of chest below the lower border of scapula.
12.Lacerated wound of entry of fire-arm .5 x 75 cm on the interior surface of left thigh, 10 cm below the inguinal fold."
Raja Muhammad Akram, Inspector/SHO Police Station New Town, Rawalpindi (PW. 18), who conducted the investigation on receipt of information of the occurrence, while reaching in the Holy Family Hospital, Rawalpindi recorded the statement (Ex. P. N) of Qasim Rizvi and sent the same to the Police Station for registration of case. He having examined the dead-body prepared the injury statement and inquest report Ex. P.O and Ex. P.P respectively of the deceased and handed over the dead-body to Nasir Mehmood Constable to take it to the mortuary for post-mortem examination.
During 'the spot inspection, the Investigating Officer prepared rough site-plans and secured the blood through cotton from the place of occurrence vide memo Ex. P. B and recovered fourteen crime empties P. 3/114 of 30 bore pistol and a missed bullet P. 11 of Kalashnikov and after taking the same into possession vide memo Ex. P.C. recorded the statement of witnesses under Section 161 Cr.P.C. The last worn clothes of the deceased i,e, Chaddar P. 1 and Shirt P. 2 produced before him by Nasir Mehmood Constable, were taken into possession by him vide memo Ex. P.A. Under the direction of Investigating Officer, the draftsman inspected the spot on 8.10.1999 and on pointation of witnesses prepared site-plans Ex. PE and Ex. P.E/1. The Station House Officer having arrested the accused namely Abdul Waheed, Muhammad Matin, Tanvir-ul-Islam and Irfan Ahmad Siddiqui on 21.10.1999 got them identified by the witnesses in the Police Station as the same person who were seen moving around the house of the deceased prior to the occurrence. On personal search of Hafiz Muhammad Nawaz at the time of his arrest on 13.1.2000 the Station House Officer recovered key P. 5 of the brief case which was taken into possession vide memo Ex. P.D. The accused as per direction of Investigating Officer muffled his face as he was yet to be put to the identification parade. The Station House Officer produced the accused before a Magistrate on the same day and the Magistrate directed for remission of his custody to the Jail authorities for the purpose of, holding his identification parade. The Additional District Magistrate on an application Ex. P. H/1. moved by the Investigating Officer deputed a Magistrate to conduct the identification parade of Muhammad Nawaz appellant and consequently, the identification parade of the accused was held on 14.1.2000 in the Central Jail in which, the PWs correctly identified Hafiz Muhammad Nawaz as culprit. The Investigating Officer then obtained the physical remand of accused and during the investigation the accused led to the recovery of weapon of offence. The appellant was separately challaned under Section 13 of West Pakistan Arms Ordinance, 1965 for keeping illicit fir-arm in his custody. Muhammad Noman Fawad co-accused of the appellant, who was keeping brief case in his custody at his residence was challaned under Section 201 PPC. On the disclosure of Hafiz Muhammad Nawaz, motor-cycle bearing Registration No, SGH 9400 P. 14 was recovered from the house of Wasim Munir accused situated in Asghar Mall Scheme, Rawalpindi, which was taken into possession 'vide recovery memo Ex. PN and Wasim Munir was also arrested and challaned to face the trial with remaining accused.
Learned counsel for the convicts/appellants has raised the following contentions:--
(a) That the fact that deceased was strolling in the courtyard while offering Tasbih in the morning would indicate that deceased was fired at when after Fajjar prayer, he was offering Tasbih in the courtyard, much before the time of occurrence given in the F.I.R. and that none of the eye- witnesses had seen the occurrence. The learned counsel submitted that presence of Qasim Rizvi in the courtyard of the house at the time of occurrence was not supported by the attending circumstances, whereas Ali Hussain Rizvi being resident of Satellite Town Rawalpindi would not be excepted to be present early in the morning in the house of his father.
(b)That as per statement of PW 14 the accused on their arrest were shown to the PWs at the Police Station and further eyewitnesses have admitted that one Nasir Mehmood an outsider was also included in the under trial prisoner as participant of the identification parade of Hafiz Muhammad Nawaz held in Jail and thus the identification of the accused was 'not transparent.
(c) That at the time of identification the witnesses have not described the role-played by the accused, under identification and without describing the role-played by an accused the evidence of his identification would be of no consequence.
(d) That since the identification parade of the accused was not held in accordance with the rules, therefore, the same would lose its evidentiary value to be used at the trial.
(e) That the motor-cycle Bearing No, SGH 9400 which was recovered from the house of Wasim Munir would not be used as an incriminating evidence against the appellants.
(f) That the doctor who medically examined the deceased in injured condition traced out only four injuries on his person, whereas the Doctor, who conducted the post-mortem examination found six entry wounds with the same number of exit wounds. This conflict in the medical evidence would create a serious doubt about the prosecution story and further the Doctor, who conducted post- mortem opined that all the injuries being of similar size could be the result of firing with one weapon and the crime empties recovered from the spot were of 30 bore pistol, therefore, it was clear that deceased sustained injuries as a result of firing with pistol and not with Klashanikou. The learned counsel submitted that keeping in view the opinion of Doctor and the recovery of crime empties of 30 bore pistol from the spot, it would be established beyond doubt that Klashanikov was not used in the occurrence and, therefore, its recovery at the instance of Hafiz Muhammad Nawaz could be of no use and consequence.
(g) That according to the version given in the F.I.R. the deceased was wearing Shalwar and Kamiz at the time of occurrence, whereas the last worn clothes of the deceased taken into possession were chaddar and shirt and that neither there was blackening around the injuries sustained by the deceased on chest nor any corresponding hole was found on the shirt. The learned counsel argued that the non-presence of holes on the clothes of deceased and blackening around the injuries would indicate that the occurrence did not take place in the manner as suggested by the eye- witnesses. The learned counsel while pointing out minor discrepancies and contradictions in the prosecution evidence contended that the charge against the appellants was not proved beyond doubt.
(h) That an incomplete challan was submitted before the arrest of Hafiz Muhammad Nawaz appellant and till the submission of in complete challan, the appellant was not even being suspected to have participated in the occurrence as no process for his arrest was issued at any stage, which would be a strong proof of his subsequent involvement due to the religious differences.
(i) That in the first version given in the F.I.R there was nothing to suggest that it was a sectarian murder and during the investigation, the story of sectarian murder was developed to involve the religious opponents of the complainant party in the blind murder. Learned counsel submitted that mere association of a person with a particular religious sect would not be an evidence of his carrying hatred against a member of another sect or that such hatred was an evidence of sectarian murder. In nutshell, the substance of the arguments of the learned counsel was that the direct and circumstantial evidence brought on record was not confidence inspiring and the prosecution failed to discharge the burden of proving the charge against the appellant and consequently the conviction and sentence awarded to the appellant was not sustainable.
Learned counsel for Wasim Munir appellant contended that the recovery of motor-cycle from the house of Wasim Munir, who was residing with his family members at his instance may or may not be an evidence against Hafiz Muhammad Nawaz appellant but in any case, the same was not relevant to establish the charge against him under Section 201 PPC. The learned counsel submitted that except the recovery of motor-cycle, there was no other evidence to suggest that Wasim Munir appellant either was party to the crime or that he kept the motor-cycle in his house knowingly that the same was used in the occurrence.
Learned Assistant Advocate-General has contended that Wasim Munir appellant having kept the motor-cycle with him would be deemed to have the knowledge of the occurrence and the recovery of motor-cycle from his custody would be the sufficient proof of committing an offence under Section 201 PPC.
Learned counsel representing the complainant on the contrary has argued that the occurrence having taken place in the courtyard of the house of the deceased was witnessed by the inmates of the house namely Muhammad Qasim Ali Rizvi and Syed Ali Hussain Rizvi, the sons of the deceased.
The learned counsel submitted that none of the accused including the appellants was neither named in the First. Information Report nor was known to the witnesses either by name or by face before the occurrence and the First Information Report was lodged against the unknown culprits immediately after the occurrence giving the description of assailants and subsequently the witnesses correctly identified Hafiz Muhammad Nawaz in the identification parade as one of the assailants. Learned counsel argued that the registration number of motor-cycle was mentioned in the First Information Report, which was subsequently recovered at the instance of Hafiz Muhammad Nawaz appellant, therefore, the recovery of motor-cycle would be a strong evidence in proof of the participation of said accused in the occurrence at the spot and the said accused was identified by the witnesses as one of the culprits in the Court. The learned counsel argued that the defence has not challenged that Muhammad Qasim Rizvi PW was not an inmate of the house of Aon Muhammad Rizvi deceased or that he was not present at home at the time of occurrence.
The residence of Ali Hussain Rizvi in Satellite Town, Rawalpindi during the days, he made the statement before the Court would not show that on the date of occurrence either he was not living with his father or his presence in the house of his father at the time of occurrence was un-natural.
Learned counsel next argued that the discrepancies in the evidence regarding the last worn clothes of the -deceased would be immaterial to dislodge the ocular account of natural witnesses as the blood-stained shirt and chaddar were removed from the dead-body of Aon Muhammad Rizvi by the Doctor. The deceased on sustaining injuries was immediately removed to the Hospital and there was no possibility of changing his dress. Learned counsel while commenting upon the opinion of the Doctor, that all injuries could be the result of firing of the same weapon, submitted that it was not possible for the Doctor to ascertain that all the injuries were caused only with 30 bore pistol and Kalashnikov was not used in the occurrence. Learned counsel added that in addition to the recovery of crime empties of 30 bore pistol, one empty bullet of Kalashnikov was also recovered from the spot, which would show that the Kalashnikov was used in the occurrence.
Learned counsel next argued that the discrepancies in the medical evidence being pointed out would be of no consequence as the Doctor, who initially conducted the medical examination either by negligence or for some other reason traced only four injuries on the person of deceased but the Doctor, who conducted post-mortem examination of deceased soon after the death of Aon Muhammad Rizvi in hospital on the same day found six injuries on his person and this discrepancy would not in any case undo the prosecution story given in the First Information Report. Learned counsel has submitted that the appellant immediately 'after his arrest on 13.1.2000 was sent to judicial lock up and it was incorrect to suggest that appellant was shown to the witnesses in the Police Station. He submitted that only acquitted accused, who did not physically operated at the spot and only being party to the conspiracy, were not required to put to the identification parade were shown to the witnesses in the Police Station. Learned counsel further argued that mixing of Nasir Mehmood, a stranger with under trial prisoner and accused in the identification parade would have no effect on the identification of Hafiz Muhammad Nawaz appellant, who was pointed out by the witnesses without being known that one person was not under trial prisoner and that there was no evidence to show that either Nasir Mehmood was earlier known to the accused or he facilitated the witnesses in the identification of the appellant in the identification parade.
We have heard the learned counsel for the parties at length and thoroughly examined the record with their assistance. The prosecution has brought the following evidence on record in support of charge:-
(a) The ocular account of Muhammad Qasim Rizvi and Ali Hussain Rizvi sons of Aon Muhammad Rizvi, the inmates of the house.
(b) The medical evidence furnished by Dr. Haroon Rashid Siddiqui and Dr. Muhammad Ashraf.
(c) The identification of Hafiz Muhammad Nawaz, the appellant by the eye-witnesses in the identification parade held in Jail under the supervision of a Magistrate and also in the Court.
(d) The recovery of motor-cycle used by the appellant Hafiz Muhammad Nawaz and the weapon of offence in the occurrence at his instance.
(e) The extra-judicial confession made by the co-accused of Hafiz Muhammad Nawaz appellant before Syed Shahid Akhtar Zaidi (PW. 12), Ibne Muhammad Rizvi (PW. 13) and Syed Najam Abbas Naqvi.
The occurrence took place in the courtyard of the house of Aon Muhammad Rizvi in presence of his son namely Muhammad Qasim Rizvi (PW. 15), who lodged report of the occurrence within a short time in the hospital as the deceased on sustaining the injuries was immediately removed to the Holy Family Hospital. The First Information Report is silent about the reason of the murder of Aon Muhammad Rizvi and the names of culprits. Hafiz Muhammad Nawaz appellant on the basis of his descriptions given in the First Information Report was identified by the witnesses in the identification parade in Jail. According to the story of the First Information Report Muhammad Qasim Rizvi was present in the courtyard when the attack was made on the deceased, whereas Ali Hussain on hearing fire reports came out of the house and saw the occurrence and this Ali Hussain probably would not be in a position to see the actual firing. The co-accused of Muhammad Nawaz appellant in their extra judicial confession disclosed before the witnesses that Hafiz Muhammad Nawaz with his two companions acted at the spot and that they provided motor-cycle to Hafiz Muhammad Nawaz. The above facts could either be in the knowledge of Muhammad Nawaz appellant or his co-accused and no third person would have direct knowledge of such matter, therefore, the contention of the learned counsel that during the course of investigation, the appellant was not in the list of culprits and was involved in the case after the submission of Challan by the Police, was without any substance. The perusal of the evidence would show that during the course of investigation the co-accused of the appellant in their confessional statement disclosed that they being associated with Sipah-e-Sehaba have chosen Aon Muhammad Rizvi being belonged to Shia sect as their target. The disclosure of the reason behind the occurrence by the co-accused of the appellant during the investigation would establish that it was a sectarian murder. The First Information Report is silent about the cause of occurrence and the culprits and till the disclosure of true factual position by the accused, neither the first informant or any other member of the family of deceased could name anyone as an accused, and this circumstance would establish that the accused having the motive of sectarian hatred caused the murder of the deceased, who was a prominent figure of Shia sect. It is not deniable that people associated with Sipah-e-Sehaba are opponent to the Shia sect or that both sects have religious difference. The hatred developed by these two sects against each other is well known and, therefore, the motive of sectarian hatred behind the murder of Aon Muhammad Rizvi was proved free from doubt. The eye- witnesses have neither named any of the accused at any stage nor they were previously known to the accused as their religious opponents and they having no grudge and personal malice against any of the accused would not make a false statement against the appellants only for the reason that they belonged to Sipah-e-Sehaba. The discrepancies in the medical evidence regarding the number of injuries sustained by the deceased probable occurred due to the emergency and extraordinary situation in which, the possibility of such omission on the part of the Doctor as a result of confusion or bona fide mistake would not be ruled out. This is not denied that immediately after the medical examination, the deceased expired and shortly thereafter his post-mortem was conducted in which, six injuries were found by the Doctor, who conducted the post-mortem examination, therefore, the discrepancy if any, in the medical examination of the deceased and his post-mortem examination conducted by the different Doctors would neither be material nor was fatal to the prosecution. All the injuries found on the person of the deceased in the post-mortem examination were found ante-mortem and none of the injury was post-mortem, therefore, the discrepancy pointed out by the learned counsel for the appellant would be of no consequence.
Similarly, the contention that all the injuries were caused with 30 bore pistol as fourteen empties of 30 bore pistol were recovered from the spot and Doctor also opined that all injuries could be the result of firing with the same weapon would not be helpful to Muhammad Nawaz appellant. The Doctor being not a fire-arm expert cannot express opinion that either all the fire-arm injuries caused with bullets were the result of firing with 30 bore pistol or the same were caused with different fire-arms of different bore, therefore, the opinion of the Doctor would be relevant only to the extent that the injuries were caused by a fire-arm in which, bullet was used. The fire-arm injuries undoubtedly can be differentiated and identified by the Doctor to the extent of their character; whether as a result of pellet or bullet and there being no such distinction in the present case, it cannot be suggested that deceased sustained injuries as a result of shots fired only with the pistol. One crime empty of bullet used in Kalashnikov was also recovered from the spot, which would establish that in addition to 30 bore pistol, Kalashnikov was also used in the occurrence. The eye-witnesses have not specified the injuries caused by the appellant, rather their evidence is that two assailants armed with pistol and Kalashnikov attackeo on the deceased, and as a result of their firing, the deceased sustained injuries on different parts of his body It can, therefore, safely be said that neither a specific injury was attributed to the appellant nor it could be ascertained in the given situation' and further it was not required to establish the charge against the appellant as it was not a case of sudden fight or a free fight to suggest that the liability was to be fixed in the light of the role played by an individual accused, rather the assailants being armed with pistol and Kalashnikov simultaneously opened firing at the deceased, therefore, they would equally be held responsible for the charge notwithstanding the fact that in what manner the deceased was hit and who canse which injury on his person. The indiscriminate firing by the culprits at the deceased would equally be used as an evidence of murder against each participation of the occurrence without any distinction.
The appellant namely Hafiz Muhammad Nawaz was arrested on 13.1.2000 and on the same day, he was sent to judicial lock up and on the next day, a Magistrate was deputed to hold his identification parade in Jail. The appellant was, identified by the witness as one of the culprit, who operated at the spot. There was no direct or circumstantial evidence to suggest that either the appellant was shown to the PWs before identification parade or it was in their knowledge that accused was arrested by the Police. The appellant was not been known to the witnesses either by name or by face prior to the occurrence and his identification in the Jail under the supervision of a Magistrate being free from any defect would not be disbelieved or doubted for mere reason that one participation in the identification parade was not an under trial prisoner. This is noticeable that the appellant was correctly identified by the witnesses in the identification parade, which was conducted according to the rules and further the appellant was also identified by the witnesses in Court. The defence has not put a single question to any witness that before producing the appellant in the Court, he was shown to the witnesses, therefore, the identification of the appellant in the Court would be another strong piece of evidence to establish his participation in the occurrence. The minor discrepancies pointed out in the identification parade would not provide a valid ground to exclude the same from consideration or reduce its evidentiary value. The registration number of the motor-cycle used in the occurrence was mentioned in the F.I.R. and the subsequent recovery of the said motor-cycle at the instance of the appellant would provide a strong corroboration to the ocular account furnished by Qasim Rizvi and Ibne Hussain Rizvi and identification of the appellant by them at the spot and subsequent identification parade in Jail would establish his participation in the occurrence.
The charge against the acquitted accused was confined to the extent of conspiracy, therefore, the benefit extended to them by the trial Court for deficient proof of conspiracy would not negate the prosecution case against Muhammad Nawaz appellant. The ocular account is strongly supported by the medical evidence, the identification of Muhammad Nawaz appellant in Jail and in Court and the disclosure of his name in the extra judicial confession made by his companions, the recovery of the motor-cycle from him and the crime empties from the place of occurrence which would establish his physical participation in the occurrence, at the spot. The scrutiny of the evidence and its evaluation would bring us to form an opinion that the appellant alongwith his co-accused, while operating at the spot in the occurrence fired at the deceased as a result of which, the deceased succumbed to the injuries in the Hospital.
Since it was a sectarian murder, therefore, the offence would fall within the ambit of terrorism as defined under Section 6 of Anti-Terrorism Act, 1997 punishable under Section 7-A of the said Act, therefore, there was no mitigating circumstance in favour of Hafiz Muhammad Nawaz appellant for lesser punishment. We, therefore, while maintaining the conviction and sentence awarded to the appellant by the trial Court for the charges under Section 302 PPC read with Section 7-A of Anti- Terrorism Act, 1997 for causing murder of Aon Muhammad Rizvi and for the charge under Section 449 PPC for trespassing into the courtyard of the house of deceased, dismiss the appeal of Hafiz Muhammad Nawaz appellant. The reference sent by the learned trial Judge regarding the confirmation of the sentence of death of appellant is answered in affirmative.
We find that the charge against Wasim Munir appellant was not proved beyond doubt. The prosecution has not brought any incriminating material on record of destroying the evidence of murder by him. The appellant was charged only for commission of an offence under Section 201 PPC on the basis of recovery of motor-cycle from his house at the instance of Hafiz Muhammad Nawaz. There is no evidence on record to suggest that either it was in the knowledge of Wasim Munir appellant that the motorcycle was used in the occurrence or that he being a companion of the accused intentionally kept the motor-cycle in his house with a view to destroy the evidence of murder. It is not denied that the appellant was living with other family members in the same house and the recovery of motor-cycle from his house would be deemed in the joint possession of all the family members and further the disclosure of Hafiz Muhammad Nawaz that the motor-cycle was being kept by him with Wasim Munir appellant would not be admissible in evidence to be used as an incriminating material against Wasim Munir to establish the charge under Section 201 PPC. The essential ingredients of the offence under Section 201 PPC being missing, the charge was not proved against Wasim Munir appellant beyond doubt. We, therefore, while extending benefit of doubt to Wasim Munir, acquit him from the charge and direct his immediate release from Jail, if he is not required in any other case.
For the foregoing reasons, Criminal Appeal No, 441-T/2000 (Wasim Munir vs. The State) is allowed and Criminal Appeal No, 439-T/2000 (Hafiz Muhammad Nawaz vs. The State) is dismissed and the death sentence awarded to the appellant namely Hafiz Muhammad Nawaz is confirmed. The Criminal Appeal No, 476-T/2000 (The State vs. Abdul Waheed and others) and. Criminal Miscellaneous No, 83-Q/2000 (Syed Qasim Rizvi vs. Abdul Waheed and others) are dismissed.