' RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Special Anti-Terrorism Appeals Nos.
29/2004, 30/2004 and Confirmation Case No,13 of 2004 as they arise out of a common judgment.
2. The present Appeals are directed against the judgment dated 6-7-2004 passed by the learned Judge, Anti-Terrorism Court No,V, Karachi in Special Cases Nos. 42 of 2002 and 4 of 2003 by which the learned Judge convicted and sentenced the appellants Attaullah and Muhammad Riaz. The operative part of the judgment reads as under:- "(a) For committing Qatl-e-Amd of deceased Syed Kazim Hussian Shah, an offence punishable under section 7(a) of the Anti-Terrorism Act, 1997 read with section 34, P.P.C. Both the appellants Attaullah alias Qasim and Muhammad Riaz are awarded death sentence. They are ordered to be hanged by neck till they are dead and to pay fine of Rs,100,000 or in default thereof to suffer R.I. For 6 months.
(b) For causing Jurh Ghayr Jaiffah Munqillah to injured Rizwan Akhtar and Fazal Karim, an offence punishable under section 7(c) of the Anti-Terrorism Act, 1997 read with section 337-F(vi) read with section 34, P.P.C. Both the appellants Attaullah alias Qasim and Muhammad Riaz are sentenced to suffer R.I. For 7 years on each count and to pay fine of Rs,50,000 or in default thereof each to suffer R.I. For 6 months more.
(c) For possessing an unnumbered and unlicensed pistol of .30 bore and its three live bullets, an offence punishable under section 13(e) of the Pakistan Arms Ordinance, 1965 appellant Muhammad Riaz is sentenced to suffer R.I. For 7 years and to pay fine of Rs,50,000 or in default thereof to suffer R.I. For 6 months more.
(d) Since both the appellants have been sentenced under the provisions of Anti-Terrorism Act, 1997 their all the movable and immovable properties are ordered to be attached and confiscated to the Government.
(e) The appellants are also directed to pay a sum of Rs,150,000 each to the heirs of the deceased as compensation as provided under section 544-A, Cr.P.C.
(f) Out of the amount of fine levied upon the appellants, if realized a sum of Rs,50,000 each are to be given to both the injured persons as compensation and remaining amount of fine be deposited in the Government Treasury.
' All the sentences are directed to run concurrently and benefit of section 382-B, Cr.P.C. Is also extended to the appellants."
3. Brief facts of the case are that on 21-3-2002 at about 9-30 p.m. The SIP Nadeem of. Police Station Mahmoodabad received a message from police control that a dead body of Kazim Raza was brought in the Jinnah Postgraduate Medical Centre along with injured Rizwan and Fazal Karim. The SIP made such entry in the station diary, went to the hospital where he found the dead body of deceased Kazim Raza lying there. The doctor was asked to conduct postmortem. Examination. One injured Rizwan was also lying in injured condition: Another injured Fazal Karim, was also lying unconscious there. After obtaining permission from the doctor the S.I.P. Recorded the statement of injured Rizwan at about 12-30 a.m. Of the same night.
4. The injured complainant Rizwan stated that on 21-3-2003 at 8-00 p.m. He was present at barbershop and was reading a newspaper in his Suzuki vehicle. He started the vehicle and suddenly he saw two boys firing in the Zeeshan Video Shop. They immediately came out from the said shop and sat on a motorcycle which was without number and tried to leave the said place. A panic occurred in the area, therefore, the people started running here and there. He reversed his Suzuki vehicle and turned in a street but both the said boys came in front of him and one of them had fired from his pistol at him. Therefore, he received bullet injury on his right hand whereas another bullet hit to a person standing nearby, whose name he came to know later on as Fazal Karim. The said person had received injury on his leg. Thereafter the people arrived there. They took him, Kazim Raza and Fazal Karim to the hospital where he came to know that Kazim Raza had succumbed to injuries and Fazal Karim was shifted to Emergency Ward. He further stated that his complaint was against two young boys aged about 17/18 years who had killed the deceased and caused them injuries.
5. The statement of the complainant was sent to police station for incorporating it in 154, Cr.P.C.
Book. He then went to injured Fazal Karim but he was lying unconscious, therefore, he could not record his statement. The case papers were handed over to P. W.13 Azizur Rahman for conducting investigation. He went to the place of incident on the same night viz. 22-3-2002 and reached there at 3-00 a.m. He called Imran Sajjad, the owner of the shop. The video shop, in which the incident took place, was got opened. The Inspector found six empties, bullets of TT Pistol, 03 projectile and piece of blood-stained carpet. The same were secured. He also secured two empty cartridges of Magroof pistol and one cartridge of TT pistol outside the shop. He sealed the articles. He also found six video cassettes having bullet holes which were also secured. On 22-3-2003 he recorded the statement of eye-witness Iqbal Haider. On 27-3-2003 he recorded the statement of another eyewitness Tasadduq Hussain. The appellants were arrested. From their possession pistols were secured. The appellants were put to identification test in which P.W. Iqbal identified appellant Riaz to be the person who fired at the P.Ws. Outside the shop. P.W. Tasadduq Hussain identified appellant Attaullah to be the person who fired at the deceased. After completing the investigation the appellants were challaned in the Court where they were tried and convicted as mentioned above under the impugned judgment.
6. We have heard the Advocate for the appellants, A.A.-G. For the State and perused the record of this case very carefully.
7. The learned Advocate for the appellants has stated that prosecution case rests upon two pieces of evidence viz. Ocular testimony and recoveries. He has further stated that out of two injured eyewitnesses the prosecution examined only one injured witness namely Rizwan Akhtar but he had not supported the prosecution case; another injured eye-witness was not examined by the prosecution; that the remaining two eye-witnesses namely Iqbal Haider and Tasadduq Hussain are chance witnesses; that their evidence is contradictory to each other and in conflict with the evidence of complainant; that they had improved their statements during the course of evidence in Court, as such, their evidence is not reliable. As regards the recoveries he has stated that the recovered pistols were not produced in the Court, as such, the said piece of evidence has not been proved.
8. The learned A.A.-G. Has conceded that the prosecution case rests upon the above two pieces of evidence but he has stated that the evidence of two witnesses Iqbal and Tasadduq Hussain is sufficient to convict the appellants as P.W. Tasadduq Hussain had identified appellant Attaullah to be the culprit who fired at the deceased whereas P.W. Iqbal had identified the appellant Riaz to be the culprit who fired at the P.Ws. As regards the recoveries he has frankly conceded that the pistols were not produced before the Court to be identified, to be the same pistols, by any of the witnesses. As such, witnesses were not able to identify the pistols to be the same which were sent to the Ballistic Expert, hence he has not relied upon the said piece of evidence.
9. We have given due consideration to the arguments and gone through the evidence with the assistance of learned Advocate for the appellants. From the evidence we found that the prosecution case rests upon two pieces of evidence viz. Ocular testimony and recoveries. The ocular testimony consists of three witnesses viz. P. W.12 complainant Rizwan Akhtar P.W.9, Tasadduq Hussain and P.W.10 Iqbal Haider P. W.12 the complainant who is injured gave the same details of the incident as mentioned by him in the F.I.R. He further confirmed in the cross-examination that in the F,I.R. He had stated that two persons were firing in Zeeshan Video Shop and they came out from the shop and started their motorcycle. He further stated that one of them had muffled his face whereas another person was wearing helmet. The learned A.A.-G. Has attacked the evidence of complainant on the ground that he was a hostile witness. Perusal of his statement reveals that the prosecution never declared this witness as hostile. On the contrary, his statement was relied upon without any objection. Even no re-examination was conducted by the prosecutor at the trial. The presence of this witness at the scene of incident cannot be disputed as he is injured witness. The prosecution has also relied upon his evidence being injured and one of the eye-witnesses of the incident. His evidence clearly shows that two persons fired in Zeeshan Video Shop who came out from the shop and started their motorcycle. Out of them one had muffled his face and another was wearing helmet. His evidence further reveals that he reversed his Suzuki van as the people were running here and there and turned in a street where the motorcyclist came and one of them fired from his pistol which hit him and another fire hit injured Fazal Karim. This is also the basic and initial story of the prosecution case.
10. It is surprising to note that the other injured Fazal Karim has not been examined by the prosecution. He was natural and independent witness. He was injured, therefore, his presence at the scene of incident cannot be doubted. As such, on the incident his evidence was the best piece of evidence along with the evidence of complainant but the prosecution withheld the same by not producing him in Court for the reasons best known to them as no reasons whatsoever has been assigned by the prosecution for not examining P.W. Fazal Karim. It is well-settled principle of law that if a best piece of evidence is available with the party and the same is not produced in Court then it can be presumed that the B party had some ulterior and sinister'motive behind it, therefore, presumption under illustration (g) of Article 129 of Qanun-e-Shahadat, 1984 can fairly be drawn that the said evidence, if it has been produced, it would have been unfavourable to the said party.
In the present case the prosecution, without assigning any reasons, withheld the best piece of C evidence of P.W. Fazal Karim. As such, a presumption can fairly be raised that had P.W. Fazal Karim been produced in Court he would have not supported the prosecution case.
11. Now, we are left with the evidence of two alleged eye-witnesses P.W.9 and P.W.10. The evidence of P.W.9.Reveals that on the night of incident at about 8-15 p.m. He went to the shop of deceased to purchase a cassette but the same was not available, therefore, the deceased asked him to come on the next day. Therefore, he was going out of the shop and when he reached at the door of the shop he heard a fire-arm report, then he saw one person suddenly entering in the shop and started firing at the deceased. Due to fires he took shelter behind a wall and then he heard 4 to 6 fire-arm shots. He also heard fire-arm shots outside the shop then the said person went away. He raised cries on which people arrived and the deceased was taken to the hospital.
12. His evidence is in direct conflict with the evidence of the complainant as according to the complainant two persons fired in the video shop whereas the P.W.9 disclosed that there was only one person. However, his evidence further reveals that before the culprit entered the shop, he heard a fire-arm shot. It is not the case of prosecution that before the firing made in the shop the culprits had made any fire-arm shots outside the shop.
13. Furthermore, the P.W. Disclosed that on the next day he went to the Police Station Mahmoodabad for recording his statement but Investigating Officer was not present. Therefore, he returned back to his house and after 3/4 days he along with his father went to Police Station where he met SIP Azizur Rahman who recorded his statement. In the cross-examination he stated that when he went to the Police Station for the first time he met with SIP Azizur Rahman and informed him about the incident but he did not record his statement. This statement is in clear contradiction to his earlier stand taken by him in the examination in-chief where he categorically stated that the Investigating Officer was not present. Therefore, he went back to the house, thus he himself has made his own statement doubtful. Furthermore, S.I.P. Azizur Rahman, in his deposition, did not state that P.W. Tasadduq Hussain came on the next day of the incident or met with him or he gave the information regarding the incident to him or that he did not record his statement on that date but he stated that on 27-3-2002 the P.W. Tasadduq Hussain along with his brother came to the police station where he recorded his statement. Whereas according to P.W.9 he accompanied with his father to the Police Station on 27-3-2002 and not with his brother. In the cross-examination he further admitted that he had not seen any other person outside the video shop as he had only heard the fire-arm shots. He further admitted that there was plastic mat lying on the ground which was full of blood but this stand has been falsified by P.W.13 Investigating Officer who stated that there was no plastic mat full of blood lying in the shop. In the cross-examination he admitted that he did not disclose the following facts in his police statement: (i) "deceased Kazim Hussain asked me to come tomorrow to take cassette", (ii) "after firing I made noise to bring some vehicles", (iii) "someone brought the Suzuki Carry and with the help of other people deceased was shifted in the vehicle and people took him to the hospital", (iv) " I went to my house and informed them regarding the present incident and again at 9-30 p.m. Came at the shop which was closed. On the next day I went to Police Station and nobody met me and on 27-3-2002 police came to my house and took me to CPLC where sketch of culprit was prepared." Though these facts were stated by him in examination-in-chief. This shows that the witness has improved his statement from the statement recorded in Court. It has been held in a case of Saeed Muhammad Shah v. State 1993 SCM R 550 that if improvements are made in the evidence by the witness then such improvements are unworthy of reliance and the evidence of witness requires corroboration.
14. From the above position it is clear that the evidence of witness was recorded after a delay of five days without furnishing any explanation. The Hon'ble. Supreme Court of Pakistan examined the G question of delay in recording the 161, Cr.P.C. Statement of a witness in a case of Sahib Gul v. Ziarat Gul 1976 SCM R 236 in which there was 'delay of four days in recording the statement by the police when the P.Ws. Were running shop near the place of incident and also going with the complainant to the Police Station, therefore, the evidence was not relied upon. In the case of Saeed Muhammad Shah v. State 1993 SCM R 550 the statement under section 161, Cr.P.C. Was recorded after delay without explanation. The said statement was ruled out of consideration. In the case of Muhammad Sadiq v. State PLD 1960 SC 223 there was delay of 24 hours. The witness was friend of the deceased but did not disclose to anyone for the said period that he saw the murder,.Therefore, such evidence was not relied upon. In the present case there is no explanation for recording the statement of this witness after delay. H Therefore, the rule laid down by the Hon'ble Supreme Court of Pakistan is fully applicable in the circumstances of the present case.
15. It is further pointed out that the prosecution produced the sketch of the culprit prepared by CPLC people and has been produced in evidence as Exh.46. In this sketch it has been mentioned that the origin of person was Urdu speaking and complextion was normal whereas it has come in the evidence that the appellant Attaulah is a Kashmiri having a fair complextion and is not Urdu speaking. However, this sketch Exh.46 has not been proved in accordance with law as no person from the CPLC was examined by the prosecution before the trial Court to prove that he prepared such sketCh. Without such proof, the sketch cannot be safely relied upon.
16. Thus, the evidence of this witness is not in conformity with the evidence Of complainant. He has improved his statement during the ,course of evidence. He has changed the initial story by disclosing that the first fire-arm shot was fired outside the shop and the incident was committed by one person. As such, it is unsafe to rely upon the evidence of P.W.9 without any corroboration which is lacking in the present case.
17. The evidence of second eye-witness Iqbal Haider reveals that he went to Zeeshan Video Shop to purchase a cassette. After purchasing it at about 8-10 p.m. He reached the other side of the road in front of the shop when he heard fire-arm reports and saw a young boy coming out from the shop while holding a pistol in his hand. He reached a motorcycle on which two persons were sitting then he started the same and put a helmet and then drove away the motorcycle towards Korangi Industrial Area. His evidence further reveals that while the motorcyclists were proceeding one Suzuki Pick-up came in their way, therefore, one of the persons sitting on the motorcycle fired at the Suzuki Pick-up which hit its driver and then they drove away the motorcycle.
18. His first story is also in direct conflict with the eye-witness injured complainant. According to P.W.10, there were three culprits, two were sitting on the motorcycle and the third one fired in the video shop. From his evidence it is clear that the person who fired in the shop came and started the motorcycle. It is also against the natural conduct and usual practice of the culprits because if 2/3 persons reached the place of incident to commit an offence on a motorcycle then normally the driver of the motorcycle always remain sitting on the driving seat and put his motorcycle in start position so that after commission of crime they can disappear from the scene very quickly. His evidence further shows that not only the said culprit started the motorcycle but he also put helmet and then drove away. The story of a person having helmet is coinciding with the statement of complainant as according to him when two persons came out from the video shop one had muffled his face and the other was wearing helmet. As we have already pointed out that complainant was a natural and independent witness, he specifically stated that one of the culprits had muffled his face and another was wearing a helmet, therefore, in such a situation it was not possible for this witness to have seen the face of the culprit who came out from the shop.
19. Furthermore he identified appellant Riaz to be the person who fired at the injured Rizwan. The facts narrated by the witness clearly indicate that when he heard the fire-arm report he turned his face and saw one person coming out from the shop having TT Pistol in his hand. Two persons were sitting on the motorcycle and then they drove away the motorcycle. In such a situation at the most P.W. Could have seen the side poses of the persons who were sitting on the motorcycle and after moving the same the backs of said persons would have been towards the witness and in such a situation the witness would have not been able to see the faces of the two persons sitting on the motorcycle. Out of them one was identified by the P.W. To be Riaz who allegedly fired at the injured.
20. Thus, the statement of this witness is also not fitting in the circumstances of the present case.
Furthermore, when this witness claimed that he saw the face of culprit who came out from the shop then it was incumbent upon the prosecution to have identified him through this witness but no identification test has been made through this witness to identify appellant Attaullah to be the- person who came out from the shop. Thus, this aspect of the case has also created doubt upon the prosecution version. When inquired from learned A.A.-G. About the circumstances for not holding identification test through this witness he was unable to give any reply but frankly conceded that the Investigating Officer was required to have identified the culprit through this witness. He further stated that it was the inefficiency of the Investigating Officer which has destroyed a valuable piece of evidence. Furthermore, in his statement under section 161, Cr.P.C. He mentioned his caste `Syed' but in the Court he stated that he was `Kashmiri' by caste. Thus, the evidence of this witness is not confidence-inspiring and trustworthy.
21. The learned A.A.-G. Has stated that both the witnesses are impartial and important witnesses, therefore, their evidence can be relied upon. It is pointed out that a witness neither related to complainant nor inimical to accused would not stump his testimony unnecessarily with truth. The acid test of veracity of a witness is inherent merits of his statement. Furthermore, mere disinterest of a ivitness does not prove that he has come forward with a true statement but the statement itself is to be scrutinized thoroughly and it is to be seen as to whether in the circumstances of the case the statement is reasonable, probable or plausible and can be relied upon. Reliance is, placed on Abdul Sattar v. Shamim Akhtar 1997 SCM R 457 at 465 and Haroon v. State 1995 SCM R 1627. If we accept the rule of assessm ent and appraisal of evidence of such a witness that a witness is always to be relied upon even if his statement is unreasonable, improbable and not plausible then it would lead to a very dangerous consequence. It is also pointed out that the veracity of a witness and rule governing such aspect of the evidence is that statement of witness must be in consonance with the probabilities fittings in the circumstances of the case and also inspire-confidence in the mind of reasonable prudent person. If these elements are present then the statement of a worst enemy of the accused can be accepted and relied upon without corroboration. However, if these elements are missing then statement of a pious man can be rejected without second thought. Reference is invited to Haroon v. State (1995 SCM R 1627).
22. If the above tests are applied to the evidence of P.Ws.9 and 10 then it will be clear that their evidence does not fulfil the qualifications mentioned for assessment of such witness. As such, their evidence cannot be safely relied upon.
23. As regards the identification test suffice it to say that such piece of evidence is a corroborative piece of evidence. It is not a substantive piece of evidence on which a conviction can be based.
When substantial piece of evidence is disbelieved then there is nothing left to be corroborated through any evidence. Even otherwise, according to the complainant, the culprit had either muffled his face or wearing helmet, therefore, in such a situation the P. Ws. Were not in a position to identify the culprits hence the identification test is of no help to the prosecution case.
24. As regards the recoveries the police had secured empties from the place of incident. The pistols were allegedly secured from the possession of both the appellants. There is matching report of one pistol allegedly secured from appellant Attaullah with the empties as per Ballistic Expert report but the said pistols were not produced in evidence in Court to show that those were the same pistols which were sent to Ballistic Expert and the report pertains to the said pistols. The learned A.A.-G.
Has rightly not relied upon the said piece of evidence.
25. 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 reasonable doubt, therefore, the appellants are entitled to the benefit of doubt which was accordingly given to them at the time of passing short order.
26. Above are the reasons of our short order dated 18-1-2006, by which we had allowed the appeals and dismissed the confirmation case.