' RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Special Anti-Terrorism Appeal No,13 of 2004 and Confirmation case No,6 of 2004 as they arise out of a common judgment.
2. Brief facts have given rise to the present appeal are that the Government of Sindh, for the security purpose of US Consulate, installed for police check posts in which the police personnel and officers of Rangers were performing duties round the clock. On 28-2-2003 P.W.-8 PC Alam Zaib, during performance of his duty went to toilet situated in Frere Hall at about 1.30 p.m. Suddenly, a person viz. Appellant came there, fired at him with the result he received injuries and fell down on the ground. The appellant snatched his SMG Riffle bearing No,08024 from him. After snatching the SMG the appellant proceeded towards the police camp situated near Metropole Hotel. He reached iron grill of the Frere Hall and after taking protections of a tree started firing from his weapon at the camp with a result that complaint P.W.-1 DSP Pervez Iqbal, deceased SIP Ghulam Murtaza, deceased SIP Ameer Badshah, SIP Feroz and SIP Maqsood received bullet injuries on their persons.
The appellant tried to escape from the place of incident and went towards Metropole hotel. The officials of Rangers who were performing their duties chased the appellant to apprehend him but the appellant fired from his weapon with a result that P.W.-14 Muhammad Jamil, the driver of Pakistan Rangers, received injuries whereas P.W.-6 constable. Azhar Abbas and P.W.-7 Muhammad Khan, Head Constable of Rangers apprehended the appellant. The appellant threw his SMG on the ground which was secured. One pistol and one revolve were also secured from his possession loaded with bullets. Revolver also contained empty shells. The chamber of Kalashinikov was found empty. From further search of the appellant a map was recovered. On interrogation appellant disclosed his name as "Zulfiqar Ali". In the meantime Police Inspector also arrived there who took over the custody of the appellant and recovered articles and prepared such mashirnama.
3. The police sent all the injured persons to the hospital for examination and treatment where the statement of DSP Pervez was recorded which was sent to Police Station for registration of case and to incorporate it in 154, Cr.P.C. Book. The police have also registered a case under section 13(d) of Pakistan Arms Ordinance, 1965 against the appellant. The police, after usual investigation, challaned the appellant in the Court.
4. On 22-4-2004, with the consent of Special Prosecutor and defence counsel, both the cases were amalgamated. On 24-2-2004 a charge under section 7(a) of the Anti-Terrorism Act, 1979 (in short "Act, 1997") read with sections 302, 324, 397 and 353, P.P.C. And under section 13(d) of Pakistan Arms Ordinance, 1965 was framed against the appellant. It was read over to the appellant for the purpose of recording his plea but he did not give any reply. The trial Court observed as under:-- "He heard the charge very passionately, consciously and carefully and with full attention while reading the charge to him but he avoided to reply in presence of his counsel."
5. Thereafter the trial proceeded. The prosecution examined 19 witnesses. The Court also examined 05 witnesses as Court witnesses. All the witnesses were thoroughly cross - examined by the Advocate for the appellant. The trial Court noted the demeanour of the appellant at the end of statements of the witnesses. In each statement of witness more or less the contents of the observations of the trial Court is same except the time of recording the evidence of each witness.
The observation appearing at the bottom of statement of P.W.-1 reads as under:-- "The statement of the witness has been recorded in 1.15 hours in presence of accused and the accused has heard it passionately and also during the course of examination of this witness the accused was constantly reading something probably verses, which was manifest from constant movement of his lips."
6. After the close of the prosecution side the statement of the appellant under section 342, Cr.P.C.
Was recorded. He did not answer any question to the Court. The trial Court made observation under each question which is common. One of the observations appearing after the question No,1 reads as under:-- "The accused has heard the question passionately and carefully but he avoided to reply the same and instead of replying the same he was reading something in his heart probably Quranic verses, which is manifest from the movement of his lips and the attention of his counsel has also been drawn to such movements of his lips."
7. Thereafter the Court considered the evidence of C.Ws.1 to 5 which was recorded in respect of the mental condition of the appellant. C.W.1 was Dr. Dur Muhammad who examined the appellant on 26-4-2003 with a complaint of depression. After conducting various tests he formed the opinion that the laboratory reports were not fitting into any of the psychiatric disorder but he recommended for psychiatric treatment at Central Prison Karachi. Thereafter a Medical Board was constituted which was headed by C.W.2 Dr. Ilahi Bux Soomro. C.W.1 was also one of its members.
After examining the appellant and various investigations and tests the Board was of the opinion that the symptom of the appellant did not fit in any psychiatric disease. However, they further observed that the psychiatric treatment be provided to him to further confirm the opinion.
Therefore, he was treated by C.W.3 Dr. Muhammad Ajmal, Consultant Psychiatrist, who after examining the appellant and observing him for about 20 days formed the opinion that the appellant was not a psychiatric patient. C.W.5 Amanullah Khan Niazi, Deputy Superintendent of Prison was examined who produced a list regarding visitors of the appellant in jail. After considering the evidence on the question in insanity and incapability of the accused to understand the proceedings and to make his defence, the trial Court formed the opinion that the appellant was not suffering from any psycho disease nor was a psycho patient and further formed the opinion that the situation has been created to concoct a false plea of insanity but was found to be not supported by the medical report. However, to be on the safe side, the trial Court ordered that amended charge be framed by order dated 17-3-2004. In pursuance of the said order the trial Court framed the amended charge on the same date. The plea was recorded in which he also kept quiet and did not reply. The Court observed as under:-- "He heard the charge very passionately, consciously and carefully and with full attention while reading the charge to him but he avoided to reply in presence of his counsel."
8. On the same date the learned Special Prosecutor made a statement by which he adopted the evidence already recorded in the case, which was exhibited as Exh.99. The Advocate for the appellant also made a statement by which he adopted the cross-examination which he had already conducted to the prosecution witnesses on the ground that the Special Prosecutor had adopted the said depositions of the P.Ws. Thereafter the trial Court again recorded the statement under section 342, Cr.P.C. The position of the answers of the appellant was same as he took when his earlier statement was recorded.
9. After considering the evidence and hearing the parties' counsel; the learned trial Judge convicted and sentenced the appellant under the impugned judgment dated 29-3-2004. The operative part of the judgment reads as under:--
(1) Convict the accused Zulfiqar Ali son of Abdul Hameed under section 7(a) of ATA 1997 read with section 302(b), P.P.C. And sentence him to suffer death sentence. He shall be hanged by neck till he be dead for having intentionally committed the murder of deceased Ameer Badshah SIP and deceased Ghulam Murtaza SIP. Sentence of death shall not be executed unless confirmed by the Hon'ble High Court in view of section 374, Cr.P.C. Fine of Rs,200,000 is also imposed on him. In case of non-payment of fine, he shall suffer further R.I. For five years. Fine, if recovered shall equally be paid to the legal heirs of deceased Ameer Badshah SIP and Ghulam Murtaza SIP.
(2) Convict the accused under section 324, P.P.C. For having inflicted fire-arm injuries to P.W. P.C.
Alam Zeb, P.W. Pervez Iqbal Inspector, P.W. Maqsood Ali Bhanger SIP, Feroze Qureshi SIP, P.W.
Constable Muhammad Jameel and P.W. Abdul Qadeer with intention to kill them and sentence him to suffer R.I. For 10 years and fine of Rs,100,000. In case of default in payment of fine, he shall suffer further R.I. For two years.
(3) Convict the accused under section 397, P.P.C. For having snatched the SMG from P.W. P.C. Alam Zeb and sentenced him to suffer R.I. For 7 years and a fine of Rs,50,000. In case of default in payment of fine, he shall suffer further R.I. For one year.
(4) Convict the accused under section 353, P.P.C. And sentence him to suffer R.I. For 2 years and a fine of Rs,25,000. In case of default in payment of fine, he shall suffer further R.I. For six months.
(5) Acquit the accused from the charge under section 13-D of Arms Ordinance 1965.
(6) His case has been proceeded under the provisions of ATA 1997 as such he is not entitled for any benefit of section 382-B, Cr.P.C."
10. We have heard the Advocate for the appellant, A.A.-G. For the State and perused the record of this case very carefully.
11. The learned Advocate for the appellant has stated that prosecution has relied upon ocular testimony of police witnesses; that they are set up witnesses; that no independent witness has been examined; that the P.Ws. Are interested; that the propeity has been foisted upon him; that the appellant was arrested earlier and then he was involved in the case. He has further stated that after amending the charge the learned trial Judge did not record the evidence of witnesses afresh which is in violation of section 231, Cr.P.C. Therefore, the case is required to be remanded to the trial Court for retrial. Alternatively, he has argued that if the Court finds the appellant guilty then the sentence of the appellant may be reduced as the appellant had no enmity with the P.Ws.; that he had no motive to commit the offence; that the normal person would not act in the manner in which the incident took place; that only a derailment or unsound mind person can commit such offence; that no abettor has been involved in the case; that the appellant was suffering from brain syndrome and might have committed the offence under the influence of someone else. He has relied upon Muhammad Ashraf v. State (1994 M LD 692).
12. Conversely, the learned A.A.-G. Has stated that the prosecution has examined the injured police officers and other eye-witnesses who have fully supported the prosecution case; that the independent witness sweeper, in whose presence the appellant had snatched the SMG from P.W.8, has been examined who has not only supported the prosecution case but identified the appellant to be the culprits of the crime; that the witnesses are natural and independent; that two officers of Rangers have also been examined who had apprehended the appellant at the place of incident and secured the crime weapons from him; that crime empties were secured from the place of incident; that the articles were sent to Ballistic Expert; and that his report is in positive. As regards non-examination of witnesses after the amendment of charge, he has stated that the appellant did not request the Court for re-examining the witnesses. Therefore, the provisions of section 231, Cr.P.C. Are not violated and has relied upon Abdul Ghaffar v. State (2005 SCMR 56). As regards the sentence, he has stated that the act of the appellant was an act of terrorism; that the appellant armed with two weapons viz., pistol and revolver after planning to commit the offence and reached the place of incident; that he snatched the SMG Riffle from P.W.8 and from that riffle he fired at the deceased and injured witnesses; that the appellant took a false plea of his mental illness before the. Trial Court which was found to be incorrect after examining the Medical Officers, therefore, he has stated that this is not a fit case where the sentence can be reduced.
13. We have given due consideration to the arguments, gone through the evidence with the help of learned Advocate for the appellant and found that the prosecution story is spread into three parts:
(1) snatching of SMG Riffle from P.W.8 PC Alam Zaib; (2) main incident of fire at the police camp situated near Metropole Hotel in front of Frere Hall; and (3) arrest of the appellant and recovery of arms and ammunition.
14. As regards the first part of the story the prosecution examined P.W.8 Alam Zaib. His evidence reveals that on 28-2-2003 he was performing his duties in one of the police camps. At about 1-40 p.m. He went to toilet of Frere Hall where a person came and fired at him and he sustained fire-arm injury. Therefore, he fell down on the ground. The said person snatched his SMG Riffle No,08024 and then ran away. After some time he heard fire-arm reports. On 10-3-2003 he identified the appellant in identification parade supervised by Judicial Magistrate to be the culprits of the crime. The prosecution also examined the sweeper of Frere Hall P.W.11 Javed Masih. His evidence reveals that on 28-2-2003 he was performing his duties in the latrine of Frere Hall when he heard a fire-arm report and found a police constable lying injured on the ground and a person snatched the gun of the police constable and then ran away towards park side. After some time he heard fire-arm reports. He identified the appellant in the identification test. After the arrest of the appellant he was put to an identification test through P.Ws.8 and 11 which was supervised by Magistrate P.W.9 Rahamtullah Moro. His evidence reveals that on 4-3-2003 the appellant was mixed up with nine dummies. The P.W.11 Javed Masih was called who identified the appellant to be the culprits of the crime. On 10-3-2003 he held another identification test through P.W.8 Alam Zaib who also correctly identified the appellant to be the culprits of the crime. Thus, from the above evidence it has been established beyond any shadow of doubt that the appellant was the person who had snatched the SMG Riffle from the possession of P.W.8 and he was correctly identified to be the said person in the identification test.
15. As regards the second part of the story the prosecution relied upon the statements of P.W.1 complainant Pervez Iqbal, injured; P.W.4 SIP Muhammad Ashraf; P.W.5 SIP Maqbool Ali Bhangar, injured; and eye-witness P.W.10 SIP Feroz, injured. Their evidence reveals that they were performing their duties at the police camp opposite Marriot Hotel when at about 1-40 p.m. They along with the deceased SIP Ghulam Murtaza and Ameer Badshah were present in the police camp and were taking lunch when suddenly fire-arm shots were fired by a person from Frere Hall side, therefore, they received injuries. Thereafter the said person started running towards Metropole Hotel side.
From the firing one passerby also received injuries then the officials of Ranger followed the culprits but the culprits started firing at them with a result that one Ranger's Officer also received injury but the Rangers personnel were successful in apprehending the culprit. The prosecution also examined the said passerby P.W.17 Abdul Qadeer who also supported the version of the above named eye- witnesses and further added that on 28-2-2003 at 1-45 p.m. He was going to offer Juma Prayer when suddenly firing started and he received the bullet injury. Therefore, he rushed inside the police camp situated near Metropole Hotel where he also received another injury and he became unconscious.
16. As regards the third portion of the story the prosecution examined P.W.6 Azhar Abbas and P.W.7 Naik. Fateh Khan. They stated that they were constable and Naik in Pakistan Rangers and were performing their duties at the place of incident when on 28-2-2003 at about 1-40 p.m. Suddenly they heard fire-arm reports coming from. Marriot side and the firing was made from the park opposite to police camp. They also saw culprits running away, therefore, they followed him. The culprit was armed with a Klashnikov. The said person fired at them but it was missed as they did not receive any injury then they were successful in apprehending the said culprits. From his possession one SMG Riffle, one pistol and one revolver were secured. The pistol and revolver contained bullet and empty bullets. The chamber of Klashnikov was found empty. On inquiries, the culprits disclosed his name as "Zulfiqar Ali", the present appellant. Thereafter, police came and they handed over the custody of the appellant, the arms and ammunition secured from the appellant to him. The police also prepared such mashirnma which they signed. The prosecution also examined injured driver of Rangers P.W.14 Muhammad Jamil. His evidence reveals that on 28-2- 2003 at 1-40 or 1-45 p.m. When he reached near American Consulate suddenly firing started and he received a bullet injury on his person. Their evidence is further supported and corroborated by P.W.18 S.H.O. Qamaruzzaman. His evidence reveals that on 28-2-2003 at about B 1-45 p.m. He was present near Metropole Hotel when he received information from his wireless set fitted in the mobile van about the incident, therefore, he went there where P.Ws.6 and 7 produced the appellant along with the SMG, its empty magazine, .32 bore revolver with .12 live bullets, 22 bore pistol with 7 live bullets and one missed bullet, two live rounds of .32 bore, pamphlet and rough map secured from the appellant and he prepared such mashirnama in presence of P.Ws.6 and 7. The Investigating Officer also collected empty bullet from the place of incident in presence of P.W.2. The bullets and the arms secured from the possession of the appellant were sent to Ballistic Expert for examination and report. The report has been produced as Exh.90, which shows that crime empties were fired from the SMG Riffle No,08024.
17. All the prosecution witnesses were thoroughly cross-examined by the defence counsel but nothing came on record to discredit their evidence. All the witnesses are unanimous on the points of their evidence. There are no contradictions or discrepancies in their evidence nor any such contradictions or discrepancies were pointed out by the learned Advocate for the appellant. The presence of witnesses has also not been challenged by the appellant in the cross-examination.
Their evidence is natural and fitting in the circumstances of the case, therefore, there is no reason to disbelieve their statements.
18. From the evidence it has been established beyond any shadow of doubt that the appellant armed himself with pistol and revolver, first went to the latrine of Frere Hall where he caused injuries to P.W.8 and snatched his SMG Riffle, thereafter he went to the grill of park and from SMG Riffle secured from P.W.8 he fired at the deceased and the injured witnesses, who received the injuries.
The Medical Officers P.Ws.12, 15 and 16 examined the injured and the deceased and formed the opinion that the deceased had received fire-arm injuries and both the deceased died on account of the said injuries. After causing the above injuries the appellant started running but he was apprehended by the P.Ws.6 and 7 at the spot and they secured the arms and ammunition from his possession. The SMG Riffle of P.W.8 was secured from the possession of appellant which was sent to Ballistic Expert along with crime empties who reported that the empties were fired from the said SMG Riffle. Thus, the prosecution has established the case against the appellant beyond any reasonable doubt.
19. The learned Advocate for the appellant has mainly argued that after amendment of charge the witnesses were not examined again, therefore, the provisions of section 231, Cr.P.C. Have been violated hence he has requested to remand the case. He has relied upon Hifazat Hussain v. State (1987 PCr.LJ 403) and Rahim Jan v. Ahmed Jan (1986 PCr.LJ 122). The learned A.A.-G. Argued that section 231, Cr.P.C. Gives right to the parties to call witnesses if the charge is amended and if the party does not exercise such right then the party cannot agitate the same at subsequent stage. In his support he has relied upon Abdul Ghaffar v. State (2006 SCM R 56). The above point has been thoroughly examined by the Hon'ble Supreme Court of Pakistan in Abdul Ghaffar's case (supra). At page 59 their lordships observed as under:-- "4. Since the question of non-compliance of section 231, Cr.P.C. Has been raised, it would be appropriate to reproduce the said section for ready reference:-- "232. Recall of witnesses when charge altered "Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall . Or re-summon and examine with reference to such alteration or addition, any witness who may have been examined, and also to call any further witness whom the Court may think to be material."
According to this section, whenever a charge is altered or added by the Court after commencement of the trial, the prosecution and the accused shall be allowed to recall or re- summon and examine with reference to such alterations or additions, any witness who may have been examined -- the section couched in the words indicative of the fact that first a request or an application be made to that effect as 'to allow' or grant of permission is generally preceded by a request or application. Since no such request or application has been made, therefore, it was not necessary for the Court to examine or recall or re-summon the witnesses. In this respect reference can be made to cases from Indian jurisdiction Konmal and another v. Emperor AIR 1930 All. 215, wherein it was held:-- "There is no duty laid on the Court under or re-summon prosecution or defence witnesses and so there is no breach of any provisions in section 231 if the Court does not so enquire. It is essential that the accused should ask for permission."
' And another case of Musahru and others v. Emperor AIR 1930 Pat. 355, in which it was held:-- "Had the accused after the amendment of the charges made a fresh application or renewed their application to the learned Judge to have defence witnesses summoned, such application could hardly be resisted, but in fact at the trial itself no such application was made and I think it must be taken that the wish on the part of the accused to have those witnesses summoned was abandoned."
' In the case of Muhammad Bakhsh v. The State 1968 PCr.LJ 1901, it was held that:-- "It is true that under section 231, Cr.P.C. The Court is bound to allow the prosecution and the accused to recall and examine any witness who may have been already examined but then the party has to make an application for the calling of any witness and their examination. Where the party does not do so, it cannot be subsequently complained that the examination contemplated by the section was not allowed.
' Furthermore the re-summoning and recalling or examination would be with reference to such alternations or additions."
20. The rule laid down by the Hon'ble Supreme Court of Pakistan is fully applicable in the present circumstances of the case as after amending the charge the learned Special Prosecutor did not request the Court for recalling the witness but on the contrary, he adopted the evidence already recorded. The defence counsel also made a statement in writing Exh.10 whereby he also adopted the cross-examination conducted by him to the witnesses as the prosecution adopting the evidence of said witnesses. Thus, the appellant did not request the Court for recalling the witnesses, therefore, there is no illegality in the trial. Hence the arguments of the learned Advocate for the appellant have no force at all.
21. Now, we will deal with the alternative prayer of the appellant. He has requested that sentence may be reduced on the ground that he had no enmity with the police; that he had no motive to commit the offence; that he was suffering from brain syndrome and possibility of influence from the other source cannot be ruled out. In this connection it is pointed out that the sequence of incident clearly indicate that it was a premeditated incident and the incident was committed in a planned manner as first the appellant armed himself with two weapons viz. Pistol and revolver. First he fired at the P.W.8 and snatched his SMG Riffle knowing very well that the range of SMG Riffle is longer than the range of pistol and he was supposed to fire from a distance. Therefore, he used the SMG Riffle and fired shots from it at the police camp resulting the death of two police officials, injuring three police officials and one passerby. Thereafter, he tried to escape from the place of incident. The Rangers personnel chased the appellant but he also fired at them with the result that one Rangers personnel received injury and ultimately he was caught red-handed at the spot with the crime weapons. The incident had created terror in the police department and in general public.
The grounds taken by the appellant for reduction of sentence are not sufficient grounds to reduce the sentence. It is further pointed out that the mental illness of the appellant was thoroughly inquired into by the learned trial Judge. He recorded the statements of 5 witnesses as Court witnesses. They were the experts in the field. After examining the appellant they formed the opinion that the appellant was not a psychiatric patient. The learned trial Judge has rightly appreciated their evidence reached a right conclusion and we do not find any reason to disagree with the said findings. Therefore, it was an act of terrorism which requires serious handling and the persons involved in act of terrorism does not require any leniency; therefore, the appellant is not entitled to a lesser sentence.
22. We have examined the impugned judgment and found that one of the convictions was under section 397, P.P.C. It is pertinent to point out that the said section is not a substantive offence but it provides minimum sentence of a case of robbery and dacoity in which fire-arm is used. Therefore, the substantive offence would be section 392, P.P.C. And for awarding the sentence the provisions of section 397, P.P.C. Are to be taken into consideration. Therefore, the said conviction requires to be corrected, hence the appellant is required to be convicted for offence, punishable under section 392 read with section 397, P.P.C. The sentence awarded to the appellant is maintained. The conviction and sentences awarded to the appellant under the impugned judgment with regard to remaining offences do not require any interference.
23. Above are the reasons of our short order dated 2-3-2006, by which we had dismissed the appeal and allowed the confirmation case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.