' RAHMAT HUSSAIN JAFFERI, .1.---This judgment will dispose of Special Anti-Terrorism Appeal No,25 of 2004 and Confirmation Case No,9 of 2004 as they arise out of a common judgment.
2. Brief facts given rise to the present appeal and confirmation case are that on 12-9-2001 the deceased Syed Razi Haider, Pesh Imam of Yasrab Mosque along with his two children namely Syed Muhammad Ali and Syed Abbas .Ali left the mosque at 7-30 p.m. In a'Car bearing No,ACW-950 to leave his children in a school. At about 7-45 p.m. The car reached at Submarine Chowrangi Signal, Main Khiyaban-e-Jami Road, where two terrorists on motorcycle came there. Out of them one went to the car of the deceased which was stopped due to red signal and then the said culprit fired at the deceased Syed Razi Haider and his children, with the result that all the three received fire- arm injuries and then the culprits drove away their motorcycle.
3. P.W.9 S.-I. Nazar Muhammad of Traffic Police at about 7-45 p.m. Was performing his duties on his motorcycle when he received information of the said firing, therefore, he immediately reached at Submarine Chowrangi where he saw the car of the deceased in which the deceased and two children were lying injured, therefore, he stopped a jeep, put all the three persons in the jeep and took them to Jinnah Postgraduate Medical Centre. After leaving the said persons in the hospital he went to the place of incident where he found the police and people collected there.
4. The doctors found the deceased Razi Haider and his son Abbas Ali dead and injured Muhammad Ali was alive, therefore, the doctors informed the incident to the police station from where the S.H.O.
Came and gave the required letter to the Medical Officer for conducting the postmortem examinations.
5. The Investigating Officer P.W.14 Minhajul Hassan went to the Yasrab Mosque where he recorded the statement of complainant Ashfaq Hussain. The copy of the statement was sent to the police station for registration of the case. Thereafter he reached the place of incident where he inspected the same and secured 6 empty bullet shells lying there, which were sealed, the car was parked that was inspected and then such Mashirnama was prepared.
6. On 29-6-2002 P.W.10 D.S.P. Amir Hameed arrested both the appellants along with other persons and unlicensed arms and ammunition were secured from their possession. The appellants were interrogated by the Investigation Officer and then they were arrested in this case.
7. During the investigation the police recorded the statement of P.W.11 Mumtaz and given up P.W.
Ghulam Rabbani to be the eye-witnesses of the incident as they alleged that they saw the incident being committed in their presence by two motorcyclists. The appellants were put in identification test before the Magistrate where P.W.11 and P.W. Ghulam Rabbani identified the appellants to be the culprits of the crime.
8. The police sent the crime empties and two pistols secured from the possession of the appellants to the Ballistic Expert for examination and report. The Ballistic Expert reported that the empties were fired from the Pistol bearing No,5931. The police, after usual investigation, challaned the appellants in the Court.
9. The learned Judge Anti-Terrorism Court No,V tried and convicted the appellants for offences punishable under section 302(b), P . P. C .Read with section 7(a) of the Anti-Terrorism Act, 1997 and sentenced both the appellants to death. They were further convicted for offences punishable under section 337(a)(v) read with section 34, P.P.C. And section 7(c) of Anti-Terrorism Act, 1997 and sentenced to suffer R.I. For 10 years. They were directed to pay Rs,300,000 each as compensation to the legal heirs of the deceased and Rs,50,000 to injured Syed Muhammad Ali. Moveable and immovable properties to the tune of Rs,500,000 of each appellant were ordered to be attached and confiscated to Government. The learned trial Judge gave benefit of section 382-B, Cr.P.C. To the appellants under the impugned judgment dated 6-7-2004.
10. The appellants were dissatisfied with the said judgment, therefore, they have filed the present appeal. The learned trial Judge has sent the reference under section 374, Cr.P.C. To confirm the death sentences.
11. We have heard the Advocates for the appellants, A.A.-G. For the State and perused the record of this case, very carefully.
12. The learned Advocates for the appellants have stated that the prosecution case rests upon three pieces of evidence viz. (1) ocular testimony; (2) identification test; and (3) recoveries. They had further stated that the prosecution has cited three eye-witnesses. Out of them one was injured but the prosecution has examined only one witness P.W.11 Mumtaz whereas the remaining two witnesses were not examined on fictitious grounds; that the evidence of material witness injured Muhammad Ali has been suppressed by the prosecution, therefore, adverse inference may be taken against the prosecution. They have further stated that the statement of P.W.11 is full of contradictions, omissions, discrepancies and improvements, therefore, his evidence requires corroboration which is lacking in the present case. Therefore, the said evidence is insufficient to convict the appellants.
13. As regards the identification test they have stated that P.W.11 was present in the chamber of the Magistrate before the identification test and the appellants were brought in the said chamber where identification test was held, therefore, such identification test has lost its evidentiary value.
They have further stated that the P.W.11 had no good memory because he stated that one of the appellants Muhammad Azam was having beard at the time of identification test which has been falsified by the Magistrate, therefore, the identification test is not sufficient to corroborate the ocular testimony.
14. As regards the recoveries they have stated that the P.W.19 D.S.P., Amir Hameed had arrested the appellants and secured the alleged weapons from their possession but the said weapons were not produced in the Court when his statement was recorded; that one of the Mashirs was private Mashir namely Muhammad Munir who has also not been examined in the case nor the second Masir has been examined. Therefore, the solitary statement of P. W.10 is not sufficient to connect the appellants with the crime. They have further stated that the weapon which was examined by the Ballistic Expert has not been proved to be the same weapon which was allegedly secured from the possession of appellant Attaullah as the P. W.10 had not identified the said weapon to be the weapon which was allegedly secured from the appellant Attaullah. As such, the Ballistic Expert's report carries no weight.
15. Conversely, the learned A.A.-G: has stated that the prosecution case rests upon the above mentioned three pieces of evidence but the prosecution has proved all the three pieces of evidence. He has further argued that solitary statement of witness is sufficient to convict the appellants; that out of the remaining two, eye-witnesses one P.W. Ghulam Rabbani was not traceable and the second witness was not produced due to the fear of the appellants; that the evidence of P.W.11 Mumtaz is confidence-inspiring as he is a natural witness. Therefore, his evidence is sufficient to convict the appellants. He has further stated that the Magistrate had complied with all the required formalities for holding identification test, therefore, there is no defect in the identification test. He has admitted that the weapons were not produced before the trial Court.
Therefore, the D.S.P. Did not identify the weapons, however, he has stated that the Ballistic Expert's report is in positive which is sufficient to connect the appellants with the crime. He has supported the impugned judgment.
16. We have given due consideration to the arguments, gone through the evidence with the help of learned Advocates for the appellants and found that the case of prosecution rests upon three pieces of evidence viz. (1) ocular testimony; (2) identification test; and (3) recoveries.
17. First of all we will take the ocular testimony which consists of only one witness viz. P.W.11 Mumtaz.
The case of the prosecution as set out in the beginning A and disclosed in the F.I.R. Is that there was no eye-witness of the incident as the F.I.R. Was lodged against unknown persons. The said F.I.R. Was lodged at about 1-45 p.m. On the day of incident. It is alleged by the prosecution that when the Investigating Officer reached the place of incident after lodging the F.I.R. Two persons namely P.Ws.
Mumtaz and Ghulam Rabbani disclosed that they had witnessed the incident. Therefore, their statements were recorded. Out of these two witnesses the prosecution examined only one witness P.W.11 Mumtaz. His evidence reveals that he was residing in Akhtar Colony, mason by profession and used to sit at the Gizri Adda for his mason job on daily wages basis. On 12-9-2001 he reached Submarine Chowrangi at 7-40 or 7-45 a.m. On a bus and alighted from it as the signal was red.
Immediately thereafter he heard fire-arm reports, therefore, he turned towards right side and saw a person sitting on a motorcycle which was in start position whereas another person armed with pistol was firing at a car from its driving side. The said persons fired 6 or 7 shots. Thereafter the said person sat on the motorcycle on its rear seat which was already in start position and then the motorcycle went towards Punjab Colony side. His evidence further reveals that after the incident several persons collected around the car. He also went there. He found a person aged about 50 years sitting on the driving seat, one minor boy was sitting on the rear seat and the second minor boy was sitting on the front seat who was raising cries. In the meantime a traffic police officer came at the spot who stopped one jeep, shifted the injured in the said jeep and took them to the hospital. Thereafter he went to his Adda. His evidence further shows that at about 2-00 or 2-15 p.m. a police mobile came at the place of incident, then to their Adda and inquired from the labourers and people regarding the incident. Therefore, he and one other person who used to sell fruit on a handcart informed the police that they had witnessed the incident. On such information on the police took them to the place of incident in the police mobile Van where they narrated the incident and the police recorded their statements. His evidence further reveals that on 13-7-2002 an identification test was held before a Magistrate where he identified the appellant Attaullah to be the culprit who fired at the deceased, appellant Muhammad Azam to be the culprit who was sitting on the motorcycle and thereafter his 164, Cr.P.C. Statement was recorded.
18. This witness was cross-examined by the defence counsel. Specific questions were asked from him as to whether he deposed before the Magistrate in his 164, Cr.P.C. Statement that he was mason and used to sit at Gizri Adda; that he reached the place of incident and then he saw the incident to which he replied in negative. However, he stated that he had stated such facts before the Magistrate but the same were not recorded by him. The learned trial Court reproduced the 164, Cr.P.C. Statement of the witness which was just nine lines statement. The Magistrate P.W.13 also produced the 164, Cr.P.C. Statement of P.W.11 Mumtaz. A question was put to the witness that in his presence the police arrived at the place of incident to which he replied in negative. His attention was drawn towards his 161, Cr.P.C. Statement and then he admitted that he had stated that he was present at the spot when police reached there and inquired from the people and then they recorded his statement as well as that of Ghulam Rabbani. From the above position it is manifest that the purpose of the arrival of the witness at the place of incident was that he was mason and in order to go to Gizri Adda he reached there but the said facts were not narrated by the witness in his 161 and 164, Cr.P.C. Statements. This may be termed as an omission in the 164, Cr.P.C. Statement but if an omission is on material aspect of the case then it amounts to contradiction. The presence of the witness at the scene of incident was because of the above fact and if that fact is excluded then it will affect his entire evidence, therefore, this was a material fact which was not stated by the witness in his 164, Cr.P.C. Statement. As such, it has materially affected his evidence.
19. In order to prove that the witness was mason and was sitting at Adda of Gizri, the prosecution could have proved the said fact by examining witness of Adda or adjoining shops. However, the Investigating Officer did not collect such evidence nor any such witness was produced before the Court. Thus the prosecution has failed to prove such fact which was essential to do so because of the different statements of the witnesses.
20. Furthermore, the prosecution alleged that they came to know that P.Ws. Mumtaz and Ghulam Rabbani were the eyewitnesses at later stage after lodging the F.I.R. But the said fact has been belied by the P.W. Mumtaz himself as in his police statement he categorically stated that he was present at the spot when the police arrived there and then they inquired from the people.
Thereafter the police recorded his statement and that of P.W. Ghulam Rabbani. This piece of evidence has been proved from the statement of Investigating Officer P.W.14 as he stated that P.Ws. Mumtaz and Ghulam Rabbani had stated that after the incident police came there and recorded their statements. If this is so then the names of eye-witnesses were already known to the police but they failed to disclose the same in their daily Roznamcha as admitted by the P.W.14 Investigating Officer Minhajul Hassan because he stated that there was no entry in the daily Roznamcha that he had recorded the statements of eye-witnesses. Thus, the evidence of witness Mumtaz is not such which can be relied upon without any corroborative piece of evidence to convict the appellants for offence involving capital punishment, therefore, his evidence requires strong corroboration before relying upon his evidence.
21. This witness further deposed that he saw assailant making fire-arm shots at the car on its driving side. His evidence further reveals that deceased Syed Razi Haider was driving the car whereas one of his sons was sitting on the front passenger seat and his second son was sitting on the rear seat. If that evidence is taken into consideration then all the three persons must had received injuries on their right sides. Dr. Shahabuddin, who conducted post-mortem examination of both the deceased, found 3 wounds of entry on the right side of the deceased Syed Razi Haider and following injuries on the person of deceased Syed Abbas Ali:-- "1-A. Punctured fire-arm lacerated wound 0.5 c.m. In diameter over, left occipital region. Margins were inverted. Blackening was positive. (Wound of Entry).
1.B Punctured fire-arm lacerated wound 1 c.m. In diameter, over the neck of right mandibals, margins were averted. (Wound of Exit).
2-A. Punctured fire-arm lacerated wound 0.5 c.m. In diameter over left upper arm laterally. Marigns were inverted. Blackening was positive. (Wound of Entry).
' Bullet was recovered at the seat of entry and handed over to I.C. In sealed and labelled.
3.A Punctured fire-arm lacerated wound 0.5 c.m. In diameter, over right lumber region laterally, margins were inverted, blackening positive. (Wound of Entry).
3-B. Punctured fire-arm lacerated wound 1.00 c.m. In diameter, over left lower part back. Margins were averted (Wound of Exit)."
22. It will be noticed that two fire-arm injuries on the person of Syed Abbas Ali were caused on the left occipital region and left upper aFm latterly. Both the injuries are wounds of entry and the doctor found blackening over the said injuries, meaning thereby that the said injuries, were caused from a close range of less than 3 feet from his left side. Whereas the 3rd injury was caused on the lumber region laterally that too was having blackening, as such, that was also caused from a close range.
It has also been brought on record that the boy Who was sitting on the front seat was crying at the time of incident whereas the boy sitting on the rear seat had injuries. According to the doctor the time between death and injury in respect of Syed Abbas Ali was instantaneous and the 2nd boy Syed Muhammad Ali is alive, as such, there is no hesitation in holding that Syed Abbas Ali was the boy who was sitting on the rear seat of the car and died there after the above mentioned injuries.
The witness did not state that any of the assailants went towards left side of the car and fired from that place but he was categorical in stating that the assailants fired at the car from its right side.
As such, the statement of the witness is not corroborated from the injuries on the person of Syed Abbas Ali.
23. It is also pertinent to point out that when the .Investigating Officer visited the scene of incident, the car in which the deceased had received injuries was parked that was examined by him and seized under seizure memo. Exh.36. The witness of seizure memo. Was A.S.-I. Niaz Ahmed who has been examined in the Court as P.W.9. He did not state that the car had any bullet holes on any of its doors. When the investigation papers were handed over to 2nd Investigating Officer Faryad Hussain he sent the car for examination on 10-11-2001 and on that date two holes were found on the doors of the car. In response to a question put by the defence counsel he stated that in the seizure memo. Of the car the signs or marks of bullets were not shown. When the car was examined by the expert he found the following holes on the doors of the car as per Exh.33:-- "The examination of the car has revealed as under:--
1. The entry holes now marked as ENT-1 on the inner side of the back door of left side and ENT-2 on the inner side of the front door of left side of above vehicle are caused due to the passage of the fired projectile of fire-arm.
2. The exit holes now marked as Exit-1 on the outer side of the back door of left side and Exit-2 on the outer side of the front door of left side of above vehicle are caused due to the passage of the fired projectile of fire-arm."
24. From this report it is clear that the fires were glade from right side of the car as the same entered in the car doors from this inner sides and went outside the doors by making holes on the outer sides of the left side of front and rear doors of the car. The holes on the outer side doors of the car were such that the same could have easily visible to anybody at the time of inspection but it is surprising to note that neither the seizure memo. Nor the witness P.W.9 Nazar Muhammad deposed that he ever saw bullet holes on the doors of the car. Even the Investigating Officer Minhajul Hassan (Exh.54) who prepared such memo. Deposed that he never saw holes in the doors of the car. He also admitted in the cross-examination that Exh.36 does not show that there were any bullet holes or marks on the doors of the car. Thus it appears that the police from the very start had tried to manipulate the evidence by preparing incorrect record and G setting up false witnesses in the case. Thus, this aspect of the case also goes against the prosecution.
25. It is pertinent to point out that there were two other eye-witnesses of the incident viz. Ghulam Rabbani and injured Muhammad Ali. The presence of injured Muhammad Ali at the scene of incident cannot be disputed. Therefore, he was the most natural witness for the prosecution to have examined him before the trial Court. The challan filed under section 173, H Cr.P.C. Reveals that his name does not transpire in the list of witnesses as admitted by the learned A.A.-G. After going through the same, as such, it appears that the Investigating Officer did not record his statement for the reasons best known to him. This shows the gross negligence on the part of Investigating Officer to have not collected the evidence of natural and most reliable witnesses. The learned A.A.-G. Has referred to the statement of Inspector Abdul Ghaffar appearing at page 174 of paper book and argued that the summons for the service upon witness Ghulam Rbbani were given to the witness but he deposed in Court that the said witness was not available there as he had shifted to some unknown place whereas for P.W. Muhammad Ali the said witness stated that his mother informed him that she would not allow her son to depose in the Court due to fear of terrorists. The learned A.A.-G. Was inquired and asked to show us the summons issued by the Court and given to the C.W.1 Abdul Ghaffar for service. After going through the original R & Ps very minutely he could not find any 'summons issued in the name of Ghulam Rabbani and Muhammad Ali for the date of hearing viz. 14-6-2004 whereas the C.W.1 Abdul Ghaffar deposed that he had received the summons issued in the name of Ghulam Rabbani only. The said statement appears to be a false statement as the record is silent with regard to issuance of summons in the name of the above named witness for 14-6-2004. Previous to that date the case was fixed on 11-6-2004 when the case was adjourned to 14-6-2004. The diary and order sheet dated 11-6-2004 does not show that the Court had ordered for issuance of any summons for any of the witnesses nor there is copy of the summons available on the file for calling P.Ws. Ghulam Rabbani and Muhammad Ali. Even the C.W. Abdul Ghaffar did not produce any summons in the name of P.Ws. Co prove his statement. As such, the statement of C.W. Abdul Ghaffar has not inspired any confidence with regard to issuance of summons in the name of Ghulam Rabbani. If the process server C.W.1 had actually gone to the address of P.W.
Ghulam Rabbani then he could have 'recorded the statements of some neighbours to prove his allegation that P.W. Ghulam Rabbani had shifted to some unknown place but no such statements have been produced in the evidence. On the contrary, the C.W.1 did not produce any such evidence before the trial Court. Admittedly, the name of P.W. Muhammad Ali has not been mentioned in the challan, therefore, if the prosecution wanted to examine a witness out of the list of the witnesses mentioned in the challan then the prosecution was required to obtain permission from the Court by moving an application under section 540, Cr.P.C. To call P.W. Muhammad Ali but there is no such application available on the record to show that the P.W. Muhammad Ali was called by the prosecution out of the list of witnesses mentioned in the challan. There is also no summons issued in the name of Muhammad Ali. In such a situation a question arises as to how the C.W.1 went to the address of Muhammad Ali to inquire from his mother. The record of the trial. Court is silent about issuance of summons in the name of Muhammad Ali. No record or order of any police officer of the police station has been produced to show that C.W.1 was directed to produce the P.W. Muhammad Ali before the Court. Thus, the witness gave incorrect statement to fill the lacuna left by the police and to justify the non-examination of most important and material witness in the case. But all the efforts of the prosecution have failed and possibility of preparation of false record cannot be ruled out. It is not out of place to mention here that the mother of P.W. Muhammad Ali was the wife of Pesh Imam of a mosque who is one of the deceased in the case, therefore, presumably she was a Pardah-observing lady. If that is so then how in such circumstances the C.W.1 was able to contact her and obtained such information from her. Under these circumstances a doubt has been created in respect of the statement of C.W.1 Abdul Ghaffar about the non-availability of P.W. Ghulam Rabbani and Muhammad Ali.
26. It is well-settled principle of law that if a best piece of evidence is available with the party and the said party fails to produce the same before the Court then a presumption under Article 129(g) of Qanun-e-Shahadat Order, 1984 can be drawn that had the said piece of evidence been produced before the Court it would have been unfavourable to the said party. Such presumption can fairly be drawn in the present case that had P.W. Ghulam Rabbani and Muhammad Ali been produced in the Court they would have not supported the prosecution case. No doubt, we are aware of the fact that at the time of incident the age of P.W. Muhammad Ali was 13 years and by the time when the case was ended his age must be about 15/16 years. Therefore, he could have given evidence in the Court, if he would have been produced in the Court. Non-examination of both these above material witnesses has materially affected the prosecution case.
27. As such, the evidence of P.W. Mumtaz has neither been supported or corroborated by any piece of evidence, therefore, it is very unsafe to rely upon such piece of evidence. It appears that he is a set up witness.
28. As regards the identification test P.W. Mumtaz stated that on 13-7-2002 at 9-30 a.m. He appeared before the Judicial Magistrate who made him to sit in her chamber. He further stated that both the accused had beard at the time of identification test. P.W.13 Judicial Magistrate Syeda Parveen Shah deposed that when the accused were produced they were in muffled faces and after arranging the dummies the accused were made to stand in the chamber and then the identification test was held. She further stated that at the time of identification test accused Muhammad Azam was without beard. If the statement of P.W. Mumtaz is accepted in the light of evidence of Magistrate that the identification test was held in the chamber then the P.W. Mumtaz must have seen the accused before the identification test. As such, it has lost its evidentiary value.
Furthermore, the identification test is held to judge the memory of a witness as to whether he was able to remember any particular feature of the person, to whom he had seen at the scene of incident and to be identified subsequently in the identification test to be the same person. He deposed in the Court that at the time of identification test both the accused had beard. The Magistrate has falsified the statement of witness by stating that accused Muhammad Azam was without beard, as such, the memory of P.W.11 was a defective memory. He was not able to recognize the main features of the accused, therefore, it is unsafe to rely upon such type of evidence. Therefore, the prosecution has failed to prove this piece of evidence.
29. As regards the Ballastic Expert's report which shows that the crime empties matched with the TT Pistol bearing No,5931. In this case the appellants were arrested by P.W.10 D.S.P. Amir Hameed on 29-6-2002 and TT Pistols and bullets were secured from both the appellants. In the evidence he did not give the number of pistols secured from each appellant nor the pistol was made available in Court so as to be identified by the witness to be the same pistol which he had secured from the appellants. There is also no evidence to connect the Pistol bearing No,5931 with the appellant Attaullah has without the identification .Of P.W.10 that the said pistol was secured from the possession of Attaullah it cannot be connected with him. Therefore, the Ballistic Expert's Report carries no weight in the present circumstances of the case.
30. After considering the material available on the record we are of the considered view that the prosecution has failed to prove the case against the appellants beyond any shadow of doubt, therefore, we gave the benefit of doubt to the appellant while passing the short order dated 11-7- 2006 by which we had allowed the appeal and dismissed the confirmation case. These are the reasons of the said short order.