' ALI SAIN DINO METLO, J.---Appellant Muhammad Faisal alias Pehalwan, having been convicted under section 7 of the Anti-Terrorism Act, 1997, read with section 302 of the Pakistan Penal Code, 1860, and sentenced to death by the Anti-Terrorism Court No,1, Karachi, has filed appeal, numbered as Anti-Terrorism Appeal No,16 of 2003, for setting aside his conviction and sentence, and the trial Court has made reference, numbered as Confirmation Case No,4 of 2003, for confirmation of the sentence, and both are being disposed of together by this judgment.
2. Briefly, the facts of the prosecution case are that on 18-5-2001,at about 1-35 p.m., at the corner of Billal mosque street, near 19-D Bus-stop, near graveyard of Muhajir Camp No,7, Karachi, complainant Muhammad Iqbal Qadri's brother Muhammad Saleem Qadri, head of Sunni Tahreek, aged about 40 years, his sister's husband Muhammad Altaf Hussain, aged about 40 years, his nephew Hafiz Anees Qadri son of the complainant, aged about 20 years, his gunman police constable Hafeez Raz, aged about 28 years, and his driver Abid Baloch, aged about 35 years, were killed in an ambush firing made by unidentified terrorists, while they were going in a double-cabin Pick-up to Noorani Rahmat Mosque, Muhajir Camp No,7, to offer Friday prayers. His (Muhammad Saleem Qadri's) sons Owais, aged about 6 years, Billal, aged about 12 years, and sister's son Ahmed Raza son of Muhammad Altaf Hussain, aged about 8 years, who were also accompanying them, were wounded in the firing. The terrorists, who had small beards and appeared to be students of some religious school, were six in number. Three of them were making fires and the remaining three were waiting on three motorcycles. After the firing, all of them decamped on the motorcycles, except one of the firers, who was killed at the spot in the defence firing made by gunman P.C.
Hafeez Raza. He was later on identified as Muhammad Arshad alias Polka belonging to sectarian organizations Sipah-e-Shahaba and Jaish Muhammad. The incident was witnessed by Ahsan Ali (P.W.2), Iqbal Ziai (not examined) and many other persons. The F.I.R. Was lodged by Muhammad Iqbal Qadri elder brother of deceased Muhammad Saleem Qadri.
3. On 25-4-2002, i.e, after more than eleven months of the incident, the appellant, who was already in the custody of police in connection with some other case, was formally arrested in this case and on the very same date at 0215 hours (odd hours of the night) he is shownto have pointed out the place of incident to police, and on the following date, i.e, on 26-4-2002, he was identified by the eyewitnesses, namely, Ahsan Ali and Iqbal Ziai in an identification parade held before a Magistrate.
Nothing incriminating was recovered from him. On the completion of investigation, he was produced before the trial Court, where he was tried, convicted and sentenced as above.
4. At the trial, the prosecution examined following 14 witnesses:--
(i) Complainant Muhammad Iqbal Qadri (P.W.1)
He is the elder brother of deceased Muhammad Saleem Qadri and had lodged the F.I.R., but he is not eye-witness of the incident.
(ii) Ahsan Ali (P.W.2)
He is the only eye-witness examined by the prosecution. He had also acted as Mashir (witness) of the inspection of the place of incident by police.
(iii) Ms. Tasneem Shah (P.W.3)
She is the Magistrate who had conducted the identification parade.
(iv) SIP Ghulam Parwar (P.W.4)
He had recorded statement of the complainant on plain paper at the Civil Hospital, Karachi, and bad prepared all the inquest reports.
(v) Inspector Zahid Hussain (P.W.5)
He had inspected the place of some other incident taking place on 28-2-2002 within the jurisdiction of Police Station Nabi Bux. A mini-klashnikov lying there was secured by him. According to the prosecution, the said mini-klashnikov was used in the incident of the present case also.
(vi) Muhammad Saleem (P.W.6)
He is the mashir of the arrest of the appellant and the pointation of the place of incident by him.
(vii) Dr. Ayaz Ali (P.W.7).
(viii) He had conducted post-mortem examination of P.C. Hafeez Raza at the Jinnah Hospital.
(viii)Dr. Hafiz Muhammad Athar (P.W.8)
He had examined the three injured namely, Owais, Billal andAhmed Raza and had issued their Medico-legal certificates.
(ix) P.C. Haroon Rasheed (P.W.9)
He had, produced blood-stained clothes of deceased Muhammad Arshad alias Polka before the S.H.O. Of Police Station. Baldia and in his presence the complainant had also produced a bloodstained Shalwar a(trousers) before the same S.H.O.
(x) Saeed Abbas (P.W.10)
He had produced the blood-stained clothes of his brother deceased P.C. Hafeez Raza before the Investigating Officer;
(xi) A.S.-I. Ameer Sultan (P.W.11).
He had incorporated the contents of the statement of the complainant in the books prescribed under section 154, Cr.P.C.
(xii) Dr. Shahid Sheikh (P.W.12)
He was he Medico-legal Officer at the Civil Hospital Karachi, who had received dead bodies of Muhammad Saleem Qadri, Muhammad Altaf Hussain and Muhammad Arshad alias Polka and two seriously wounded persons, namely, Hafiz Anis Qadri and Abid Baloch. They had also expired immediately after reaching the hospital.
(xiii)S.I. Muhammad Safdar (P.W.13)
He had visited the place of incident and examined the two eyewitnesses, namely, Ahsan Ali and Iqbal Ziai.
(xiv) Inspector Tassarat Mehmood (P. W.14)
He had arrested the appellant, inspected the place of incident on his pointation produced him before the Magistrate for holding the identification parade, and filed the challan (charge-sheet).
5. From the side of the appellant there is bare denial of the allegations. Neither he examined himself on oath nor produced any other evidence in his defence.
6. As far as the facts of the five persons, namely, Muhammad Saleem Qadri, Muhammad Altaf Hussain, Hafiz Anees Qadri, P.C. Hafeez Raza and Abid Baloch, dying unnatural death by sustaining firearm injuries and the other three persons namely, Owais, Billal and Ahmed Raza, sustaining fire- arm injuries, are concerned, the same are not disputed by the appellant and stand established by the unchallenged evidence of Dr. Ayaz Ali (P.W.7), Dr. Hafiz Muhammad Athar (P.W.8) and Dr. Shakil Shaikh, who had examined them and conducted the autopsies.
7. As far as the involvement of the appellant in the commission of the crime is concerned, we are of the considered opinion that the prosecution has failed to prove the charge against him. The case of the prosecution entirely rests upon the ocular testimony of one witness, namely, Ahsan Ali (P.W.2). He was neither residing nor working at the place of incident and happened to pass from there while he was on his way to the mosque for offering Friday prayer. Thus, he is a chance witness. He is also not an independent or straightforward person. According to the Investigating Officer, Inspector Tassarat Mahmood (P.W.14), he belonged to a sectarian organization, namely, Sunni Tahreek headed by deceased Muhammad Saleem Qadri and had contested election on its ticket, while the appellant, according to the prosecution, belonged to the rival organizations Siph- e-Sahaba and Jaish Muhammad. Not only this, he, in order to shape his testimony as favourable as possible to the prosecution, went to the extent of falsely denying his connections with Sunni Tahreek. Thus, he is also a zealous witness. Evidence of such witness requires scrutiny with more care and caution. Besides, it will be unsafe to rely upon the testimony of such witness without independent corroboration, which, as it will be seen, is lacking in this case. Moreover, his evidence, being intrinsically weak due to many inherent defects, does not inspire confidence. He has given a sketchy and incomplete account of the incident, lacking in many material particulars. Admittedly, the assailants were not previously known to him or any other witness but in spite of that he did not give their features necessary for their identification at any future time. To say that the assailants had small beards and appeared to be students of some religious school is not sufficient to identify them as there can be innumerable students with small beards. According to him, the three firers were making fires from three different positions and their remaining three companions were waiting for them on three motorcycles, but at the time of identifying the appellant in the identification parade he did not specify the role played by him at the time of incident. In the Court also he did not specify his position at the time of incident. He has not specified the weapons the appellant and his companions were armed with and has also not specified as to at whose hands the companion of the culprits had died whether at the hands of his own companions or in the defence firing made by gunman Hafeez Raza. He has not stated if Hafeez Raza had made any fire, though, according to the prosecution, the companion of the culprits had died in the firing made by Hafeez Raza. He has not given the registration number, the make or even the colour of the motorcycles on which the culprits had come and decamped. All these circumstances create a serious doubt regarding his presence at the place of incident. Except for his own claim, his presence at the place of incident is not supported by any other evidence. According to him, many police officers had come to the place of incident immediately after the occurrence and they had taken the dead bodies and the injured to the hospital but none from them, was examined to support his presence at the place of incident. His conduct in not making any effort to take out the seriously wounded persons from the vehicle for taking them to the hospital creates more serious doubt about his presence at the place of incident. He has stated that he had not tried to take out the wounded persons from the vehicle and to shift them to the hospital, which job, according to him, was done by the other persons present there. The head of his organization and his close relatives were seriously wounded in his presence but astonishingly he was not moved to make any effort to take them to the hospital or even to take out them from the vehicle. The conduct, being quite unnatural, provides sufficient justification for doubting his very presence there. His presence is not established even at the Civil Hospital. In his examination-in-chief he has stated that from the mob present at the Civil Hospital he and Iqbal Ziai had declared and told police that they were the eye-witnesses of the incident but in his cross-examination he took a somersault and stated that there was no occasion to sate at the hospital that he had seen the incident. The complainant has not stated to have met him at the hospital or at any other place and has gone to the extent of saying that he did not know him at all. SIP Ghulam Parwar (P.W.4), who had recorded statement of complainant, has also not claimed to have met or seen him at the hospital. Had he been there he would have recorded his statement as well.
8. The evidence regarding the identification parade held before the Magistrate is also not of much value inasmuch as the Magistrate, namely, Ms. Tasneem Shah (P.W.3) has stated that the witnesses, the accused and the dummies were brought before her at 11 O'clock, meaning thereby that all were produced before her together. She has further stated that the witnesses, at the time of identifying the appellant, had not assigned any role played by him at the time of incident. There is also interpolation in the memo of identification parade Exh.13/A regarding the removal of handcuffs and muffle of the appellant, which seems to have been made at some later stage, as in its carbon copy produced as Exh.11-D, there is no such interpolation. Moreover, intrinsically weak and inherently defective ocular evidence of Ahsan Ali (P.W.2) cannot be improved by the evidence of identification parade which too is not free from defects. The principle is well-settled that weak piece of evidence cannot be improved by another weak piece of evidence.
9. The evidence of complainant Muhammad Iqbal Qadri (P.W.1), being hearsay, is inadmissible and, therefore, cannot lend any support to the evidence of Ahsan Ali (P.W.2), particularly when they had not met each other at any time and do not say that the complainant was informed about the incident by Ahsan Ali.
10. The evidence regarding the pointation of the place of incident by the accused, while in police custody, is also inadmissible as the place of incident was known to everybody, including the police, and it was not a fact discovered within the meaning of Article 40 of the Qanun-eShahadat, 1984.
11. According to the prosecution case, the incident was witnessed by Ahsan Ali, Iqbal Ziai and many other persons but the Investigating Officer did not examine any of those other persons. The prosecution gave up the only other eye-witness Iqbal Ziai and chose not to examine him, though he was present in the Court. In such circumstances, the presumption under Article 129, Illustration
(g) ibid will be that he was not examined because he was not supporting the prosecution case.
Prosecution has also not examined any of the three injured boys, though, at least one, namely, Billal, who at the time of incident was aged about 12 years and thus of understandable age, was a competent and natural witness. His non-examination will also gives rise to the same presumption under Article 129, Illustration (g) ibid.
12. The evidence of the remaining witnesses is not material and, therefore, it will be unnecessary to discuss the same individually in detail.
13. In view of the above, we are of the considered opinion that the prosecution has failed to prove the charges against the appellant and, therefore, his conviction and sentence cannot be sustained. He is, therefore, acquitted. He be released forthwith if not required to be detained in any other case. Accordingly, the appeal is allowed and the reference isdismissed. These are the reasons for the short order, dated 8-11-2005 under which the appeal was allowed and the reference was dismissed.