' MUHAMMAD MOOSA K. LEGHARI, J.---This appeal is directed against the judgment dated 26-6- 1999 passed by the learned Judge, Anti-Terrorism Court No.III, Karachi in Spl. Case No.1016 of 1998 whereby the appellants were convicted under section 302(a), P.P.C. And were awarded death sentence. Each of the appellants/accused was also made liable to pay fine of Rs.1,75,000 as Diyat.
Besides, the appellants were convicted under sections 392/397/398, P.P.C. And were sentenced to suffer R.I. For seven years and a fine of Rs.10,000 each and in case of default in payment of fine, the appellants were to suffer further R.I. For one year each. The appellants were, however, granted benefit under section 382-B, Cr.P.C.
2. The prosecution case as per F.I.R. Is that on 8-10-1998 at about 6-00 a.m. The complainant received information that his maternal uncle Fazal Saeed aged about 40 years, who used to work in Fishery, while returning back from the place of his job at about 4-30 a.m., had sustained fire-arm injury near Sultan Hotel situated at Muhammadi Colony and had succumbed to the injury on the spot. On such information he reached the spot where he was informed that at about 5-15 a.m. 3/4 boys stopped the deceased Fazal Saeed near Sultan Hotel but he did not stop whereupon the said boys fired upon him who sustained fire-arm injuries along with one unknown bypasser and both of them succumbed to the injuries and their corpses were removed to the hospital. On receiving such information, he rushed to the hospital where he saw the dead body of his maternal uncle having fire-arm injury on his chest. The corpse of the unknown person was also lying in the hospital having fire-arm injury. The complainant, therefore, lodged the F.I.R.
3. The appellants were formally arrested in this crime, after having been apprehended in another offence of dacoity on 23-10-1998. After usual investigation, the appellants/accused were sent up to stand trial before the Anti-Terrorsm Court No.III Karachi.
4. After receipt of the challan the trial Court issued N.B.Ws. Against the absconding accused namely Shamsul Alam alias Shamoo son of Abdul Samad and Noor Alam alias Mahoob son of Alam Mian which were returned unexecuted. Consequently after having recorded the statement of the process server to the effect that the absconding accused were not traceable and there was no likelihood of their arrest in near future, they were declared absconders vide order, dated 22-11-1998.
The appellants were however put on trial.
5. A formal charge was framed against the appellants, to which they pleaded no guilty and claimed to be tried. Resultantly the proceedings commenced against the appellants.
6. In order to prove their case, the prosecution examined as many as 13 witnesses including the Medical Officer, the Judicial Magistrate, the Mashirs of Vardat, arrest and recovery and two eye- witnesses namely Khushi Muhammad and Furqan alias Sonali.
7. On conclusion to the prosecution evidence, statements of the accused/appellants were recorded under section 342 Cr.P.C. Wherein they denied the allegations. In their statement the appellants specifically denied to have been arrested on 23-10-1998. They also denied the factum of recovery of f.T. Pistol from them. Appellant Muhammad Alam further stated that after his arrest police demanded Rs.15,000 from him for his release and on his failure, he was implicated in the case. The appellants, however, opted not to examine themselves on oath, nor did they examine any witness in defence.
8. On the basis of /he evidence brought before the trial Court, the learned Court came to the conclusion that the charges against them were proved. Consequently the appellants were convicted and sentenced in the terms as stated hereinabove.
9. We have heard Mr. S. Mahmood Alam Razvi and Mr. Attaullah Khan, learned counsel for the respective appellants and Mr. Habib Ahmed, learned A.A.G. For the State.
10. It was contended by the learned counsel for the appellants that in the F.I.R. There is no mention of snatching of any cash from the deceased or for that matter from anybody else, as such, the case does not fall under the Anti-Terrorism Act. It was next contended that none of the alleged eye-witnesses came forward to lodge the F.I.R., that the appellants though strangers, were never put to the identification test, that the report of Fire-arm Expert was inconsequential, notwithstanding the fact that the proof of recovery and arrest was not established. On the above premises it was argued that none of the offences was proved against the appellants and their conviction was illegal.
10. Conversely, the learned A.A.G. Advanced apparently strong arguments to support the case of prosecution and the impugned judgment. However, he was unable to cope up with the inherent infirmities and lacunas in the prosecution case.
11. We have given our anxious thought to the arguments rendered before us, and have minutely scanned the evidence available on the record.
12. According to the case as set out by the prosecution, the appellants while committing robbery near Sultan Hotel situated at Muhammadi Colony, committed Qatl-e-Amd of two persons on 8- 101998 at 5-15 a.m. On arrival of the prosecution witness Khusi Muhammad they fled away from the scene of occurrence in a Rickshaw. In order to prove the case prosecution, inter alia, examined P.W.
Khushi Muhammad and P.W. Furqan alias Sonali who are alleged to have witnessed the incident having taken place. But none of them reported the incident to the police.
13. The appellants were, however, arrested by the police on 23-10-1998 duly armed with pistol while attempting to commit another offence. Admittedly, the appellants were not put to identification test, inspite of the admitted fact that they were strangers to the prosecution witnesses. The F.I.R. In the case was registered on the basis of information conveyed by P.W.3 Abdul Karim on telephone to the police. It is an admitted position that none of the two Prosecution witnesses who witnessed the incident came forward to lodge the first information report. There is no credible evidence to connect the present appellants with the commission of the crime in the absence of identification test. The other evidence collected by the prosecution against the present appellants is that of recovery of crime weapon. This evidence is also marred by infirmities. The crime empties were recovered from the place of Vardat on 8-10-1998 while the alleged crime weapon viz. The T.T. Pistol was recovered after the arrest of the appellants on 23-10-1998. The crime empties and the crime weapon were sent to the Fire-arm Expert on 8-1-1999 i.e. Almost after a period of more than two months. Not only that but both the articles were dispatched to the Fire-arm Expert simultaneously.
The delay in dispatching the crime empties and weapon and that too at the same time when those were secured on different dates has rendered ballistic report of little consequence to support the case of the prosecution.
14. The case of the prosecution is that two different weapons were used in the commission of the crime while only one T.T. Pistol was recovered and the report of the Fire-arm Expert shows that two shots were fired from the said pistol. The date of occurrence is 8-10-1998 and the time is 5.15 a.m.
This is, in fact, before Fajar time. The conduct of the witnesses is quite unnatural. One P.W. Namely Khushi Muhammad was a victim himself having been robbed of Rs.1600 but even then he did not set the law in motion and failed to convey the information of the offence to the police. According to his own deposition, after the incident had taken place and the culprits had fled away, he quietly went to his house. The evidence of P.W. Furgan is also similar in nature to that of P.W. Khushi Muhammad, thus does not lend any support to the case of the prosecution.
15. It is admitted position that the accused persons were not the people of the locality and were not already known to the P.Ws. Quite certainly the P.Ws. Had a momentary glimpse of the accused. In such circumstances, the identification test immediately after the arrest of the accused persons was a necessary requirement. The reliance in this respect can be placed on the case of State through Advocate-General Sindh Karachi v. Farman Hussain and others reported in (PLD 1995 SC 1).
16. Upon the above discussion, we are constrained to observe that in view of the delay in lodging the F.I.R., absence of identification of the appellants in the test, lack of establishment of recovery of crime weapon coupled with delay and the apparent conflict in the ballistic report and the prosecution version, the case of the prosecution was marred by serious infirmities. The prosecution had miserably failed to bring home the guilt of the accused/appellants. Eventually, the judgment of conviction being not sustainable in law had to be set aside.
17. In the above circumstances following short order was passed on 23-1-2003.
"Learned counsel have completed their arguments. With their assistance we have already read the evidence. They have also raised contentions on law point. On examination and assessment of the evidence on record and the contentions raised by the learned counsel and for the reasons to be recorded separately, we allow the appeal and set aside the impugned judgment. Consequently, the conviction of the appellants and the sentence awarded to them are set aside while the reference for confirmation of death sentence is rejected. The appellants may be released forthwith, if not required in others case."
' Above are the reasons for the same.