Raja Fayya z Ahmed, J.--Petitioner, Muhammad Aslam @ Moavia Abdur Rehman seeks leave to appeal against the judgment dated 5.11.2004 of the learned Single Judge in Chambers of the Lahore High Court, Lahore, whereby Criminal Appeal No, 59-J/2003 preferred against his conviction under Section 7 of the Anti Terrorism Act, 1997 and sentence of R.I. for life with a fine of Rs, 50,000/- out of which one half, if recovered, be paid to the legal heirs of the deceased Syed Iftikhar Ali Shah or in default of payment of fine to further suffer six months S.I awarded by the learned Anti Terrorism Court No, 1, Lahore in case Crime No, 187/1997 dated 9.8.1997 under Sections 302/148/149/324 PPC of Police Station Warburton, district Sheikhupura was maintained, dismissing his appeal. The petitioner was acquitted of all the other charges by the trial Court. However, the benefit of Section 382-B Cr.P.C. extended to him by the trial Court.
2. The brief facts of the case are that Syed Zahid Hussain Kazmi complainant/PW-13 submitted a written report to the SHO of said police station on 9.8.1997 at about 12.05 p.m. alleging therein that on the above said date at about 11.30 a.m. three persons riding on a motorcycle and two persons on another motorcycle came to the shop of deceased Syed Iftikhar Ali Shah, who at the relevant time was providing medicines to the customers and the person sitting in between them (on the motorcycle on which three persons were riding) pointed towards Syed Iftikhar Ali Shah to be fired at, on which the person sitting on the rear seat of the motorcycle fired four shots, which hit on the head of the deceased, who died on the spot. This occurrence was allegedly witnessed by the complainant and Husnain Raza PW. After that the assailants riding on two motorcycles reached at Dakkahana Chowk and subjected Muhammad Tufail and Mazhar Ali to indiscriminate firing with Kalashnikov and the bullets hit Muhammad Tufail on his head and Mazhar Ali at his face and chest, expired at the place of incident. This incident was witnessed by Mushtaq. After that allegedly the nominated accused persons after leaving four shops from the shop of Muhammad Tufail made firing at Syed Muhammad Akhtar Shah and Syed Afzal Ali Shah both sons of Syed Muhammad Taqi Shah, both of them suffered head injuries and died on the spot. This event was witnessed by Bilal Haider s/o Syed Muhammad Akhtar Shah. In the report it has been alleged that thereafter, the accused by making aerial firing reached at Lorri Adda, Warborton and made firing at Qaiser Abbas present in his shop, which hit on his head and abdomen, who died at the spot. Sahil Abbas stated to have witnessed the occurrence and; after that the accused persons made aerial firing, went to Arif Shah Medical Store and fired upon Qamar Abbas, who luckily survived. Subsequent thereto the nominated accused persons, as per report, made firing at Tariq Maan present in Haideri Pansar Store, who too died on the spot and this incident was witnessed by Rai Muhammad Hussain. After that the accused persons alleged to have made firing at Mushtaq Ahmed Matta, sitting in his workshop situated at Chungi No, 5, who succumbed to head injury and died on the spot. Abid Hussain witnessed this occurrence and on account of hue and cry the accused persons fled away from the scene by making aerial firing.
It has further been alleged that above said series of incidents were committed at the instance of Muhammad Ishaq, Babar, Sh. Maqsood Ahmed, Hafiz Zahoorul Haq, Noorul Haq, Liaqat, Muhammad Hussain and Mahmood because these persons on 25th of Moharram-ul-Haram attempted to stop their procession on the strength of fire-arms and they frequently delivered provocative speeches and such fact can be verified from Zulqurnain Shah s/o Izat Hussain Shah and Dr. Javed Saeed s/o.
3. On completion of the investigation of the case and legal formalities, challan for trial of the offence was submitted against the petitioner in the learned Anti Terrorism Court No, 1, Lahore. The petitioner was indicted in view of the accusation and the incriminating material produced with the challan to which he did not plead guilty. The prosecution in order to substantiate the accusation examined 21 witnesses including medical officers, who performed autopsies on the dead bodies to the above said deceased.
4. After close of the prosecution case, the petitioner/accused was examined by learned trial Court under Section 342 Cr.P.C. in the light of the incriminating material/evidence adduced at the trial by the prosecution, which he denied and disputed. The petitioner did not opt to record his statement on oath in disproof of the charge within the purview of Section 340(2) Cr.P.C. nor produced any evidence in defence.
5. The learned trial Court after hearing the parties, on deep appraisal and scrutiny of the entire evidence and taking into consideration the arguments advanced on behalf of the parties found the petitioner guilty for the qatal-e-amd of Syed Iftikhar Ali Shah convicted him under Section 7 of the Anti Terrorism Act, 1997 and sentenced as hereinabove mentioned vide judgment dated 23.11.2002, but the normal penalty of death was not awarded to the petitioner in view of the peculiar facts and circumstances of the case discussed in its judgment. The case file was ordered to be kept dormant till the arrest of the proclaimed offenders Zahoor-ul-Haq and Muhammad Ishaq against whom perpetual non-bailable warrants were also ordered to be issued.
6. We have heard the learned counsel for the parties and perused the record.
7. It is mainly contended by the learned ASC for the petitioner that after a considerable delay, the identification parade of the petitioner was conducted from the date of his arrest, which rendered the same as worthless and this piece of the evidence could not be made basis for his conviction, moreover; the petitioner was already in the custody in connection with another criminal case and confined in the Kot Lakhpat Jail as under trial prisoner, therefore, possibility of the identifier/prosecution witnesses having seen the petitioner or shown to them, while bringing the petitioner to the Court, for remand or in the Court cannot be excluded, hence; the conviction of the petitioner cannot be sustained in the light of the available material on the point, with the Court. The learned counsel vehemently argued that this aspect of the case germane to the conclusions drawn by the learned trial Court and High Court have not been deeply scrutinized causing grave injustice and prejudice to the petitioner.
8. Controverting the contentions noted above put forth on behalf of the petitioner, learned ASC for the state empathetically referred to the evidence of Dr. Khadim Hussain (PW-3), who performed the post-mortem of the dead body of Syed Iftikhar Hussain Shah, Dr. Naeem Rauf posted as Magistrate First Class Kot Lakhpat Jail (PW-21) at the relevant time, who supervised the identification parade of the petitioner and the evidence of Husnain Raza s/o the deceased (PW-12) in whose presence his father (Syed Iftikhar Ali Shah deceased) was shot dead and he also picked up and identified the petitioner as the culprit, who on the date of incident fired at his father, who on receiving gunshot wounds succumbed on the spot, the evidence of Muhammad Yousaf S.I. P.S. Warburton, district Sheikhupura (PW-17) the investigating officer of the case. He also read out the statements of other ocular witnesses of the series of the incidents committed one after the other deposed at the trial by Waqar Haider PW-9, Mushtaq Ahmed PW-10, Sahil Hussain Shah PW-11, Syed Zahir Hussain Kazmi, PW-13 and Syed Abid Raza PW-16 including the reference made in respect of other pieces of circumstantial evidence, such as; blood-stained earth secured from the place of incident, blood-stained clothes of the deceased persons etc. and; supported the judgments of the learned two Courts below. He contended that the prosecution has fully proved its case against the petitioner beyond shadow of any reasonable doubt and stressed that the conviction awarded by the trial Court and affirmed by the High Court be maintained.
9. The contentions advanced by the learned ASC for the petitioner and Mr. Muhammad Aslam learned ASC for the state have been considered in the light of the entire record of the case particularly with reference to the evidence furnished by Dr. Khadim Hussain (PW-3), Dr. Naeem Rauf, Magistrate First Class (PW-21) in whose presence and supervision the identification parade/test of the petitioner was carried out in Kot Lakhpat Jail, Lahore. The medical evidence of Dr. Khadim Hussain (PW-3) and the deposition of Muhammad Yousaf SI/IO of the case (PW-17), which have been carefully and minutely gone through with the assistance of the learned ASCs for the parties. PW Dr. Naeem Rauf, Magistrate 1st Class deposed on the oath that on 5.7.2000, application Exh. PW21/A was submitted to him requesting to supervise identification parade of the petitioner in the Kot Lakhpat Jail but at that time the investigating officer failed to produce the witnesses proposed for identification test/parade, therefore, he postponed the proceedings for 11.7.2000. On said date, he reached the Kot Lakhpat Jail Lahore at 2.10 p.m. and Raja Nasrullah, Assistant Superintendent Kot Lakhpat Jail was also associated with him. According to Dr. Naeem Rauf (PW-21) in his presence, petitioner Aslam Moavia was asked to sit in the company of nine dummies, who at his option, sat at SI. No, 6 from the right amongst the dummies. After that he summoned PW Zahid Hussain from the outside the jail for the purpose of identification, who rightly picked and identified the petitioner sitting at SI. No, 6 as the accused and before summoning the other witness for identification, the petitioner was given option to change his position but he refused and preferred to remain on his previous position. After that the witness PW Husnain Raza s/o Syed Iftikhar Ali (deceased) was summoned from outside the jail in Block No, 4 of the jail, where identification test of the petitioner was being conducted and the witness in his presence correctly identified the petitioner keeping the position at SI. No, 6 and thereafter, he offered a chance to the petitioner to raise objection, if any, and in response thereto, the petitioner stated that his photo was televised in the electronic media, as well as; published in the newspapers and was also snapped at CIA Center Kotwali Lahore, which must in all probability have been shown to the PWs. After completion of the required formalities in respect of the identification test of the petitioner the witness inscribed his signatures on the documents relating to the identification test of the petitioner produced by him as Exh. PW-21/B and copy of the same was provided to the investigating officer on his written request as Exh. PW-17/B. The witness was subjected to cross- examination at length by the learned defence counsel but his testimony remained firm and consistent on all material particulars.
10. Muhammad Yousaf SI/I0 P.S. Warburton (PW-17) stated that on 20.5.2000 again the investigation of the case was entrusted to him and on 30.5.2000, he received information that the petitioner wanted in this case has been kept as under trial prisoner at Kot Lakhpat Jail, Lahore in connection with the case Crime No, 341/1999 registered with Police Station Misri Shah, Lahore under Sections 457/380 PPC. After that he submitted application to the Deputy Commissioner, Sheikhupura, who made reference to the District Magistrate, Lahore for according permission to the investigating officer to interrogate the petitioner and after the permission was accorded to him by the District Magistrate, Lahore, he interrogated the petitioner on 10.6.2000 at Kot Lakhpat Jail, Lahore and on 11.7.2000, according to the witness, identification test of the petitioner was conducted in the said jail and for the purpose he moved application to the Area Magistrate, which he produced as Exh-PW- 17/A dated 5.7.2000. He also produced application for obtaining copy of the identification test proceedings as Exh. PW-17/B, which were provided to him on his application and the formal arrest of the petitioner in this case was made by him on 8.4.2002.
The delay simpliciter per se in holding the identification test of the petitioner after interrogating him in the jail on 10.6.2000 would not vitiate A the identification test proceedings unless it is shown, apparent or inherent from the record that such delay was caused to tutor the identifier about the description and freatures etc. of the accused required to be subjected to such test, which element in the instant case to our satisfaction lacks. Moreover, the incident in which the father of the ocular witness and identifier was murdered in the broad day light by the culprit was also identified by the son of the deceased. PW-12 at the trial, as the accused, who in his presence, subjected the deceased to firing and; his version before the Court trying the offence remained firm, straightforward, convincing and credible.
11.It is pertinent to note that the series of murders in the course of same transaction had taken place, in which members of a particular sect were done to death and normally in such like cases of terrorism, the people avoid to come forward for deposing the truth about offence/incident even though witnessed by them, as they apprehend to run the risk of their lives, therefore, obviously such type of cases would cause considerable delay in completion of the investigation by the police officers entrusted with such duties, who too at times feel scared running considerable risk and do not effectively investigate such cases with the result that I.O. in the instant case also appeared to have been confronted with enormous pressures and impediments in his way to finalize the proceedings. This case was also entrusted to the crime branch police and after lapse of a considerable period again the same was reverted and entrusted to Muhammad Yousaf SI/I0 (PW- 17), who eventually completed the task and submitted final report under Section 173 Cr.P.C. for trial of the offence against the petitioner and other P.Os.
12.No material has been produced at the trial by the defence to show that the petitioner was shown to the PWs, who identified the petitioner in the identification test nor his photographs were shown to them or published in the newspapers etc, therefore, in absence of any such material or indication from the evidence available on record it cannot be presumed hypothetically that the said PWs had the chance or the opportunity to have seen the petitioner or his photographs. The objection raised before Dr. Naeem Rauf, Magistrate Ist Class (PW-21) at the termination of the identification test and during the arguments advanced on his behalf raised by the learned ASC are devoid of substance being alien to the evidence available with the learned trial Court. In our considered view, the learned trial Court, as well as; the High Court deeply scrutinized the entire evidence and attended to all the material aspects of the case, which do not suffer from any misreading or non-reading of the evidence. No illegality or infirmity in the impugned judgments could be pointed out and the findings of the guilt recorded by the learned trial Court are based on evidence, which in the peculiar facts and circumstances of the case do not call for reappraisal by this .For the foregoing reasons, this petition is dismissed and leave to appeal is declined.