' RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Special Anti-Terrorism Appeals Nos.51 and 52 of 2003 and Confirmation Case No,13 of. 2003 as they arise out of a common judgment.
2. Brief facts given rise to the present appeals are that on 7-4-2002 at 8-30 p.m. Some 15 or 20 persons were offering Maghribain Prayers in Mahfil-e-Zainab Imam Bargha, Nazimabad, Karachi.
Suddenly fire-arm shots were heard, therefore, the persons who were offering the prayers postponed the same and came out from the Imam Bargah where they saw the security guard deceased Muhammad Nazir lying dead with bullet injuries on his person near the small gate of the Imam Bargah. P.W.1 Syed Sajjad Haider, who was amongst the persons offering the prayers, informed the incident to the police on telephone. On the said information P.W.2 SIP Aijaz Ahmed reached the place of incident where he found 10 or 12 persons standing and the dead body of deceased Muhammad Nazir was lying there. He then took the dead body to Abbasi Shaheed Hospital. In the meantime P.W. 4 Syed Pervez Mehdi, Manager Express Security (Pvt.) Limited also reached the place of incident on the information as the security guard was provided by his company. When he reached there he also found the dead body being shifted to the hospital by the P.W.2. He then informed the complainant P.W.12 Akbar Ali who was uncle of the deceased. He also reached the hospital where the police recorded his statement which was sent to police station for incorporating it in 154, Cr.P.C. Book for registration of the case.
3. P.W.13 Sub-Inspector Ashiq Ali received the copy of F.I.R. And started the investigation. He first went to the hospital where he completed the formalities and then took the P.W.4 to the place of incident from where he secured 6 empty shells, 2 sikkas and bloodstained earth which were sealed.
He also found a .7 MM gun broken in four pieces lying there which belonged to the deceased. The same was also secured and sealed. He also recorded the statements of witnesses. Out of them P.W.8 Nisar Hussain and P.W.9 Syed Faiz Hussain had seen the incident and culprits firing at the deceased. On 29-6-2002 P.W.6 DSP ATW Wing arrested accused Attaullah, Muhammad Ajmal alias Akram Lahori. Muhammad Azam alias Sharif and Tassadaq Hussain alias Shaikh (hereinafter referred to as appellants') and secured unlicensed arms from their possession. Therefore, separate F.I.Rs, under section 13(d) of Pakistan Arms Ordinance were registered against them. On the same date the P.W.13 interrogated the appellants and made their formal arrest in this case. On 4-7-2002 the appellants were produced before the Magistrate P.W.10 Farzana Mushtaq for holding identification test through P.Ws.8 and 9 where they identified the appellants to be the culprits of the crime. P.W.13 sent the crime empties to the Ballistic Expert who reported that the pistol secured from the possession of the appellant Attaullah matched with the crime empties and sent such report. The Investigating Officer P.W.13 after completing the investigation challaned the appellants in the Court.
4. The learned Judge, Anti-Terrorism Court No,V, Karachi Division tried the appellants. In support of the case the prosecution examined 13 witnesses. The appellants in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution and claimed to be innocent.
They did not examine themselves on oath or lead any evidence, in their defence.
5. The learned trial Judge, after considering the evidence and hearing the parties' counsel, acquitted the accused Muhammad Ajmal, Muhammad Azam and Tassadaq Hussain whereas convicted the appellant Attaullah for offences punishable under section 302(b), P.P.C. Read with section 7(a) of Anti-Terrorism Act, 1997 (in short 'Act, 1997') and sentenced him to death and fine of Rs,1,00,000 or in default thereof to suffer R.I. For 6 months. The learned trial Judge further directed the appellant Attaullah to pay Rs,1,00,000 as compensation to the legal heirs of the deceased or in default thereof to suffer R.I. For one year with benefit of section 382-B, Cr.P.C. The appellant Attaullah was dissatisfied with the said judgment, therefore, he has preferred the appeal. The learned trial Judge sent the reference under section 374, Cr.P.C. For confirmation of death sentence whereas the State through Advocate-General Sindh filed the appeal against acquittal of Muhammad Ajmal, Muhammad Azam and Tassadaq Hussain.
6. We have heard Mr. M.R. Syed, Advocate for the appellant Attaullah, accused Muhammad Ajmal and Muhammad Azam; Mr. Sarfraz Khan Tanoli, Advocate for the accused Tassadaq Hussian; A.A.- G. For the State and perused, the record of this case very carefully.
7. Mr. M.R. Syed Advocate has argued that the prosecution has relied upon three pieces of evidence viz., ocular testimony, identification test and recoveries; that the ocular testimony consists of P.Ws.8 and 9; that the eye-witnesses had no occasion to see the faces of the culprits; that there was darkness at the time of incident; that the witnesses were not able to identify the culprits; that they are set up witnesses; that they have given different places of residence in order to cover their true identity; that they are chance witnesses; that they have made improvements in their statements from their police statements; that P.W.9 has introduced the streetlight which he had not stated before the police or the Magistrate; that the police did not know that there were eye-witnesses upto 5-00 a.m. Of 8-4-2002 but the witnesses alleged that their statements were recorded in the night of 7-4-2002; that the investigation conducted by the police is with mala fide intention. As regards the identification test he has stated that first the identification test of accused Muhammad Ajmal was held and then the identification tests of other accused were held but the dummies were same who were taken as dummies in the first identification test. Therefore, the identification test has lost its evidentiary value. As regards recoveries he has stated that the P.W.3 Muhammad Sharif, who was Mutawalli of the Imam Bargah, has stated that empties were taken away by the police officer who took away the dead body; that he did not state that the empties were sealed but the police, in order to create evidence has alleged that empties were secured at about 11-00 p.m. By the Investigating Officer P.W.13 in presence of P.W.4. Therefore, the said recoveries carry no weight.
8. Mr. Sarfraz Khan Tanoli, Advocate for accused Tassadaq Hussain has adopted the arguments of Mr. M. R. Syed and further added that the evidence of both the eye-witnesses are contradictory to each other on the material points, therefore, their evidence is unreliable.
9. The learned A.A.-G. Has stated that the prosecution has relied upon the above three pieces of evidence; that the prosecution has proved the ocular testimony through P.Ws.8 and 9; that the P.Ws. Had ample opportunity to see the faces of culprits and they rightly identified the appellants in the identification test; that the discrepancies pointed out by the learned Advocates for the appellants are minor in nature which has not affected the credibility of witnesses who are natural and independent witnesses; that they had no enmity with the appellants to involve them falsely; that there was streetlight at the place of incident on which the P.Ws. Had seen the incident.
However, he could not controvert the factual aspect of the dummies who were mixed up with the appellants at the time of identification parade. As regards the recoveries he has stated that the P.W.13 and P.W.4 have fully supported the case; that the P.W.3 has given obliging statement which can be ignored; that the report of Ballistic Expert shows that the pistol of appellant Attaullah was used which corresponds with the ocular testimony, therefore, he has stated that the prosecution has proved the case, hence the accused may be sentenced accordingly.
10. We have given due consideration to the arguments, gone through the material available on the record and found that the case of prosecution rests upon three pieces of evidence: (1) ocular testimony; (2) identification test; and (3) recoveries.
11. First of all we will take up the ocular testimony. Apart from P.Ws.8 and 9 the prosecution examined P.W.1 Syed Sajjad Haider, one of the persons who was offering the prayer in the Imam Bargah; and P.W.3 Muhammad Zaheer, Matawalli of Imam Bargah. They supported the incident by disclosing that when they were offering prayers they heard fire-arm reports, therefore, they postponed their prayers and came out from Imam Bargah where they found deceased Nazir lying dead with bullet injuries caused by some unknown culprits. The prosecution examined two eye- witnesses viz. P.Ws.8 and 9 who alleged to have witnesses the incident and saw the culprits committing the crime.
12. The P.W.8 Nisar Ahmed stated that he along with P.W.9 Syed Faiz Hussain met at Liaquatabad to proceed to Mahfil-e-Zainab Masjid Imam Bargah situated in Nazimabad to see Moulana Syed Raza for taking guidance on some Sharia Problem. They went there on a bus which left them on Petrol Pump Chowrangi and then they proceeded towards Imam Bargah by foot. It was Maghribain Prayers' time. While proceeding towards Imam Bargah they found two motorcycle coming from their back on which four persons were sitting. The motorcycles went toward Imam Bargah. One of those persons started firing on the security guard and other three persons took position. The security guard received injuries at the small gate of Imam Bargah and fell down on the ground.
Therefore, the culprits snatched his gun and proceeded further on their motorcycles by declaring slogans. When they reached at the main gate of Imam Bargah they broke the rifle of security guard and then they went away. He further stated that within five minutes police also came there and shifted dead body to the hospital. One of the police officials remained present at the spot and he inquired from the people and also from him and P.W.9 on which they told him that they had seen the incident. Therefore, the police officer directed them to remain there and should not go anywhere. Thereafter, they offered prayers in the Imam Bargah. After half an hour of the prayers a police mobile came from which a police officer directed them to remain there till the arrival of Investigating Officer for recording their statements. He further stated that at about 11-30 p.m. A.S.-I.
Ashiq Ali came and recorded their statements.
13. The P.W.9, in his statement, stated that on 7-4-2002 at 5-00 p.m. He met with P.W.8 at Two- minutes Chowrangi situated at North Karachi from where they went to Ljiaquatabad as P.W.8 had some job over there. Thereafter from Liaquatabad they proceeded to Nazimabad No,1 on a bus to go to Mahfil-e-Zainab Imam Bargah as P.W.8 had some Sharia'problem which he wanted to consult with Moulana of Imam Bargah. They alighted from the bus at Nazimabad No,1 at about 8- 30 p.m. Then they proceeded towards Imam Bargah by foot. While they were going they saw four persons riding on two motorcycles who came form their backside and went towards Imam Bargah.
When they reached near the small gate of Imam Bargah where the security guard was performing his duty they stopped their motorcycles and alighted from them. Thereafter they took out TT Pistols.
Out of them one directly fired at the security guard who fell down after receiving the bullet injuries.
Thereafter the said culprits again started firing at the deceased while he was lying on the ground.
The culprits snatched the gun from the security guard and after broke it threw it there and then they made slogans and thereafter they went away on their motorcycices. He further stated that they saw the incident from a distance of about 30 or 40 ft. And at that time there was slight darkness but the electric bulb was on. He further stated that during they day of incident the clocks of the country were made one hour ahead of the regular hours. He further stated that thereafter the persons who were offering prayer in the mosque came out from there. Within five minutes police also arrived there and the body of the deceased was shifted to hospital. Thereafter they went inside the mosque and offered their prayers. When they came out from the mosque the people were still present there and were inquiring about the incident. Therefore, they disclosed that they had seen the incident. One of the police officers was present there who directed them to be present till the arrival of police officer to record their statements. At about 11-30 p.m. Investigating Officer Ashiq Ali came who recorded their statements.
14. From the above evidence, without discussing the cross-examination of the witnesses, both the P.Ws. Have given a different place of meeting as according to P.W.8 they met at Liaquatabad and then they proceeded towards Imam Bargah whereas according to P.W.9 they met at Two-minutes Chowrangi, North Karachi then they went to Liaquatabad as P.W.8 had some job over there and thereafter they proceeded towards Nazimabad. As regards the incident both the witnesses are unanimous that two motorcycles came from their back and proceeded towards Imam Bargah.
According to P.W.9 there was slight darkness but a bulb was on. From this position it is clear that the P.Ws. Had no occasion to see the faces of the motorcyclists as they were coming from their back. Even while passing they were not able to see their faces as both the P.Ws. Were walking and talking together as per P.W.9. It is alleged that incident took place at a distance of about 30 or 40 ft., the motorcyclists hardly took about few seconds in reaching the said place and then firing started.
The P.Ws. Had admitted that they concealed themselves in the money-plant which was hanging by the wall of a bungalow, therefore, in such a situation there was no occasion for the P.Ws. To have seen the faces of the culprits while standing at such a distance and when the incident of firing was going on. This fact can very well be judged from the fact that P.W.8 did not specifically state that the motorcyclists had stopped their motorcycles and the culprits alighted from them but from his evidence one can gather that the firing took place when the motorcyclists were sitting on the motorcycles. Whereas P.W.9 was specific that the motorcyclists were stopped. The culprits left their motorcycles and then they took out their pistols and one of them fired at the security guard. He further stated that after the deceased had fallen down on the ground the culprits again fired at the deceased when he was lying on the ground but this fact has not been stated by P.W.8. This shows that the P.Ws. Were not able to see the incident as alleged by them from the place where they were allegedly present. The P.Ws. Have tried to show that they were present at a small distance from the place of incident but P.W.9 was confronted with his earlier statement recorded by the Magistrate in which he stated before the Magistrate that he saw the incident from far a place but he denied the said fact. The Magistrate, who recorded the 164, Cr.P.C., statement, admitted. That the witnesses had stated so before him. Thus, the earlier version of the P.Ws. Was that they saw the incident from far a place but they have changed the same so as to fit in the circumstances of the case. P.W.8 did not disclose the source of light whereas P.W.9 disclose that there was and electric bulb which was on. The place of said electric bulb was not disclosed by the P.Ws. However, he was confronted with his statements recorded under sections 161 and 164, Cr.P.C. The P.W.13 Investigating Officer who had recorded the statement of P.W.9 and the Magistrate who recorded his 164, Cr.P.C. Statement admitted that the witness did not state before them that there was electric bulb light at the place of incident. In such a situation it is highly improbable for the witnesses to have seen the faces of the culprits at the scene of incident, therefore, the mistaken identity of the appellants cannot be ruled out in the circumstances of the present case.
15. The learned Advocate for the appellants has stated that the witnesses were set up witnesses to strengthen the prosecution case and he had drawn our attention to their statements where they have changed their places of residence and they did not produce their national identity cards. The arguments of the learned Advocate for the appellants are well-founded as the witnesses gave their different places of residence. P.W.9 went to the extent that he disclosed that he was not residing at the address A-8, Yousuf Plaza nor he had seen such place but when he was confronted with this address given in his 161, and 164, Cr.P.C. Statements to which he stated that he had given his such address. Similar is the case with P.W.8. He stated that he was not residing in Buffer Zone but he gave his Buffer Zone address to the Judicial Magistrate who recorded his 164, Cr.P.C.
Statement.
16. The learned Advocate for the appellants has further attacked the evidence of P.Ws.8 and 9 on the ground that they were not present at the scene of incident nor their statements were recorded at the place of incident as alleged by them. He has referred to the statement of P.W.13, Investigating Officer, who admitted in the cross-examination that when he returned to the police station on 8-4-2002 at 5-00 a.m. He made an Entry No,42 in which he recorded that no eye- witnesses were available till that time. Whereas both the P.Ws. And Investigating Officer, in their statements before the Court, stated that the statements were recorded on the night of incident in the Imam Bargah. In order to ascertain the correct position we have examined the evidence of both these witnesses and found that in order to show their presence at the place of incident P.W.8 disclosed that before offering their Maghribain Prayers they informed the incident to a police officer who directed them to be present there but P.W.9 did not disclose such facts. P.W.8 further disclosed that for the second time another police officer came and they narrated the incident to him who told them to wait for the Investigating Officer but the said facts were not disclosed by P.W.9. P.W.8 disclosed that they did not disclose the facts to anybody else or people present there but P.W.9 disclosed that they disclosed the facts to the people present there and he specifically stated in the cross-examination that they disclosed the facts to the Matawalli. The Matawalli, P.W.3, has been examined who categorically stated that he was present upto 11-30 p.m. In the Imam Bargah but during this period he had no knowledge as to how many assailants came there and fired at the deceased. He further stated that he did not know whether any other person was present who had knowledge of the assailants. Thus, the statements of both the witnesses are contradictory to each other on the above points which have neither been supported or corroborated by other witnesses.
Their presence at the F scene of incident has not been established from any persons who were present there viz. P.Ws.1, 2, 3, 5 and complainant P.W.12 as they were either present just after the incident and came later on with the Investigating Officer P.W.13. P.W.14 was the person who came at the time when the dead body was being removed to the hospital and he came back along with the Investigating Officer to see the place of incident, did not state that he saw the P.W.8 or 9 present there or their statements were recorded in his presence by the Investigating Officer. He specifically stated that no statement of any person was recorded in his presence. Complainant P.W.12 has stated that after 12-00 midnight he along with P.W.13 A.S.-I. Ashiq and P.W.4 Manager came to the place of incident and he was not aware of the incident and they remained there upto 3-00 a.m. He also did not state that any person had informed them about the incident or to Investigating Officer or the statement of any of the P.Ws. Was recorded in his presence. Under these circumstances the P.W.13 Investigating Officer returned to the police station he maintained the diary No,42 in which he specifically mentioned and admitted by him during the evidence that there were no eye-witnesses available till that time. Thus, it has been established beyond any shadow of doubt that even the P.W.13 did not know the presence of eye-witnesses upto 5-00 a.m. Of 8-4-2002. Therefore, the apprehension of the learned Advocate for the appellant that both the witnesses are set up witnesses, cannot be ruled out of consideration and which appears to have been supported and corroborated by the other pieces of evidence available on the record. Under these circumstances we are of the considered view that the witnesses are unreliable and untrustworthy. Therefore, no implicit reliance can be placed on such type of evidence.
17. As regards the identification test, it is an admitted position that first identification test of accused Ajmal Lahori was conducted in which the Magistrate had mixed up 10 dummies. The P.W.8 was called who identified the said accused. Thereafter he reshuffled the dummies and mixed up other accused namely Tassadaq Hussian, 'Muhammad Azam and Attaullah one after another and then P.W.8 was called who identified them. Similar is the case with the identification tests through the P.W.9. It is an admitted position that dummies who were mixed up with accused Ajmal were again mixed up with the other accused when their identification tests were held. As such, in all the tests the same 10 dummies were mixed up, who were being simply reshuffled after mixing the accused with them. It is pertinent to point out that for holding identification test, the Magistrate is required to mix unknown and unseen persons to the witnesses so as to give strength to the process of identification test. It is also pointed out that when a witness comes for identification test he minutely sees the face of each dummy so as to compare his features with the features of culprits available in his mind so as to verify whether or not the said features of culprits tally with the features of the said dummy and in this way all the dummies are examined and then from that process the witness can form an opinion whether any of such persons resembles with the accused so as to pick him as the culprits. Thus, during that process the witness minutely sees the face of each dummy and if the same dummies are mixed up with another accused then it will be very easy for the witness to pinpoint a new face because the dummies were already seen by him. As such, the identification test in such a manner cannot be termed as an identification test fulfilling the requirements of law but on the contrary it will be against the spirit of identification test.
18. In the present case the appellant Attaullah has been convicted whose identification test was held as a last accused in the case of P.W.8 and as third accused in the case of P.W.9 Faiz Muhammad. Therefore, when the accused Attaullah was identified by these P.Ws. They had already seen the faces of the dummies very clearly and minutely. Therefore, such identification test carried no weight at all.At the most the identification test of first accused can be termed as a legal identification test and that evidence can be used only in respect of that accused only who was mixed up with the dummies for the first time but the subsequent identification tests of the accused with the same dummies by simply reshuffling their places would not be enough to declare the identification test as legal or fulfil the requirements of law. Therefore, such identification test carries no weight at all.
19. As we have already observed that the ocular testimony is untrustworthy and unreliable, therefore, the identification test which is a corroborative piece of evidence would not by itself will be enough to convict an accused person because the identification test by itself is not a substantive piece of evidence. It can only corroborate a substantive piece of evidence but if there is no substantive piece of evidence then there is nothing left to be corroborated by the identification test. Therefore, this piece of evidence carries no weight at all in the present peculiar circumstances of the case.
20. As regards the recoveries, the prosecution has relied upon the evidence of two witnesses viz., P.W.4 mashir and P.W.13 Investigating Officer. They stated that when they returned to place of incident at about 11-30 p.m. They found 6 empty shells and 2 sikkas lying at the place of incident which were secured and sealed. The same were sent to the Ballistic Expert for examination and report. The pistol secured from the possession of the appellant Attaullah was also sent to Ballistic Expert who reported that five empties were fired from the said pistol. It is pertinent to point out that P.W.3, Matawalli of the Imam Bargah, stated that before the police took away the dead body they secured 4/5 empty bullets from the place of incident. He further stated in the cross-examination that he had not seen any other empty shells at the place of incident after taken away the dead body from there. The P.W. Was very specific with regard to said statement. He specifically stated in the examination-in-chief, that before the dead body was shifted 4 of 5 empty shells were secured by the police. No re-examination was made to him to clarify the above position, therefore, apparently the prosecution had admitted his evidence and did not challenge the said piece of evidence nor this witness was declared hostile to cross-examine the witness on the said point to ascertain the truth of said statement. Furthermore, complainant P.W.12 also reached at the place of incident along with the P.W.13 and P.W.4 but he did not state that the police had secured any empties from the place of incident. The silence of the complainant on the above point and specific statement of P.W.4 create doubt in the veracity of statements of P.Ws.4 and 13. Thus, a doubt has been created with regard to the recovery of crime empties from the place of incident. It is well- settled that if a doubt is created in the evidence then its benefit must be given to the accused. If the recovery of crime empties is doubtful then the report of Ballistic Expert also become doubtful, hence no implicit reliance can be placed on such piece of evidence.
21. 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.
22. Above are the reasons of our short order dated 17-2-2006, by which we had disposed of the appeal in the following manner:- "For reasons to be recorded separately, the conviction and sentence awarded to the appellant in Special A.T. Appeal No,51 of 2003 are set aside. The appellant is acquitted and set at liberty. He is in custody. He should be released forthwith if not required in any other custody case. The appeal is allowed. Whereas' Special A.T. Acquittal Appeal No,52 of 2003 and Confirmation Case No,13 of 2003 are dismissed."