' RAHMAT HUSSAIN JAFFERI, J.--- This judgment will dispose of Special Anti-Terrorism Jail Appeal No,51 of 2005 and Confirmation Case No,9 of 2005 as they arise out of common judgment.
2. The present appeal is directed against the judgment dated 30-3-2005 passed by the learned Judge, Anti-Terrorism Court No,II, Karachi by'which the learned Judge convicted the appellant for offence punishable under section 302(b), P.P.C. Read with section 7(a), of Anti-Terrorism Act, 1997 and sentenced him to death and fine of Rs,1,00,000 or in default thereof to suffer R.I. For one year.
The trial. Court 'further directed the appellant to pay. Rs,2,00,000 as compensation to the legal heirs of the deceased or in default thereof to suffer R.I. For six months.
3. Brief facts giving rise to the present appeal and confirmation case are that on 27-2-2003 at 8-20 p.m. Three unknown culprits on a motorcycle armed with pistols reached at Subhanallah Bakery near Light House, M.A. Jinnah Road. They went inside the bakery and caused firearm injuries to Ghulam Hussain and Muhammad Sohrab. Thereafter, they came out from the bakery and went away on their motorcycle. The incident was allegedly witnessed by P.W.11 Nasir Khan who is complainant of the case and P.W.12 Muhammad Kazim. The police started the investigation on the F.I.R. Of the complainant. They arrested the appellant and one Shahnawaz. The appellant was identified in an identification test held before a Magistrate through P.Ws.11 and 12. The pistol was secured from the possession of the appellant. After usual investigation the appellant and co- accused Shahnawaz were challaned in the Court where they were tried. The appellant was convicted and co-accused Shahnawaz was acquitted under the 'impugned judgment.
4. We have heard the Advocate for the appellant, A.A.-G. For the State and perused the record of this case very carefully.
5. The learned Advocate for the appellant has stated that ocular testimony of two P.Ws. 11 and 12 is not confidence inspiring as they are not eye-witnesses; that their presence at the place of incident has not been supported by P.Ws.1 and 4; that they are set up witnesses; that their statements are contradictory to each other. As regards the identification test, he has stated that the appellant had bandages on his arm but the said bandages were not concealed at the time of identification test, therefore, the identification test carries no weight. As regards the recoveries, he has stated that the prosecution did not examine any of the Mashirs to support and corroborate the statement of Investigating Officer.
6. Conversely, the learned A.A.-G. Has stated that both the eyewitnesses have fully supported the case; that the appellant was identified in an identification test. He has admitted that the appellant had bandages at the time of said test which were not concealed by the Magistrate but it would not affect the identification test. He has not supported the recoveries because of non-examination of Mashirs and delay in sending the properties to the Chemical Analyzer.
7. We have given due consideration to the arguments, gone through the evidence with the assistance of the learned Advocate for the appellant and found that the ocular testimony consists of two witnesses viz. P.Ws.11 and 12. The evidence of P.W.11 reveals that on 27-2-2003 he along with his two friends were present outside his bakery which was near the bakery of the deceased. He saw three persons coming on a motorcycle. They were armed with pistols. They entered the bakery of deceased and he heard fire-arm reports. Thereafter he saw those persons coming out from the bakery and went away on their motorcycle. He immediately went inside the bakery where he saw his uncle Ghulam Hussain, cousin Muhammad Baqar lying injured there. He, with the assistance of his friends, took out both the injured from the bakery. In the meanwhile a police mobile came and they took them to the hospital. The police prepared the inquest report. He acted as Mashir. At 9-15 p.m. The dead body was handed over to the relatives of the deceased and at 10-30 p.m. He lodged the F.I.R. The statement of P.W.12 reveals that on the date and time of the incident he along with complainant Nasir Khan and Muhammad Ali were present outside the bakery when he heard fire- arm reports coming from the bakery. He saw three persons coming out from the bakery who were armed with pistols. They boarded on motorcycle and went away. He, complainant Nasir and P.W. Ali Muhammad went inside the bakery where he found his father Ghulam Hussain and his cousin Muhammad Baqar lying injured there. They took them out from the bakery. In the meanwhile a police mobile van arrived there and they took the injured to the hospital but they expired on the way. Both the witnesses stated that they identified the appellant to be one of the culprits in the identification test held before the Magistrate.
8. From the evidence of complainant it is clear that he along with two of his friends were standing whereas according to P.W.12 he along with complainant Nasir and Muhammad Ali were standing.
The complainant in the cross-examination, disclosed the names of his friends as Muhammad Kazim and Muhammad Ali and gave their addresses of residence but their addresses are quite different from the address of P.W.12 Muhammad Kazim, as such, the said two persons namely Muhammad Ali and Kazim who were the friends of the complainant were different from the P.W.12 Kazim, who was cousin of the complainant and P.W. Muhammad Ali. The complainant did not disclose that Kazim, his friend, who was present with him, was his cousin. Anyway, from their statements it is clear that they took out the deceased in injured condition from the Bakery when the police arrived there. Their evidence is not supported and corroborated by P.W.4 A.S.-I. Arif Ali who arrived just after the incident. His statement reveals that on the date of incident at about 8-20 p.m.
He was present near Jama Cloth Market, M.A. Jinnah Road along with his police party when he heard fire-arm reports coming from Lighthouse Cinema. He immediately, went there and found that firing took place in Subhan Bakery.. He went inside the bakery and found two persons lying in a pool of blood with injuries on their persons. He took them out from the bakery and put them in his police mobile van with the assistance of his subordinate staff. He took them to the hospital and handed them over to Medical Officer. The Medical Officer inquired the names of the injured persons but he could not inform them as he did not know their names.
9. From the statement of P.W.4 it is clear that he did not show the presence of P.Ws.11 and 12 at the place of incident. If both the witnesses would have been present, out of them one was the son of the deceased Ghulam Hussain, would not have allowed the police to take the deceased in injured condition to the hospital without them. It was natural conduct of very close relative of the injured persons to have accompanied them upto hospital where they would disclose the names of the injured to the Medical Officer. When the P.W.4 handed over the deceased to the Medical Officer he did not know their names. If the P.Ws.11 and 12 would have been present then they could have disclosed the names of the deceased to the Medical Officer. From the statement of P.W.4 it appears that P.Ws.11 and 12 were not present at the scene of incident at the time of incident. This fact gets support from the statement of P.W.1 S.H.O. Maqbool Ahmed who reached the place of incident after receipt of information. First he went to the place of incident. He stated that he could not know the names of the witnesses as nobody informed him such fact at the place of incident. However, when he reached the hospital he prepared the inquest report in presence of witnesses. One of them was P.W.11 complainant Nasir Khan. He further deposed that complainant Nasir Khan did not inform him that he was eye-witness of the incident though the inquest report was prepared much before lodging the F.I.R. He further deposed that till the preparation of memo. Of inspection of dead bodies at 9-15 p.m. He had no knowledge about the eye-witnesses. He also stated that nobody had informed him about the eye-witnesses when he reached the place of incident on wireless message. From the above statement it is clear that the P.Ws.11 and 12 were not present at the scene and time of the incident. If they would have been present, they could have easily informed such fact to the P.W.1 but they did not do so. Furthermore, if both the witnesses had been present there, they could have been seen by the person present there. Just after the incident the P.Ws.1 and 4 reached at the scene of incident and those persons did inform such fact to them. Thus, from the evidence of above witnesses the presence of P.Ws.11 and 12 at the scene and time of the incident is highly doubtful, as such, the ocular testimony is not confidence inspiring.
10. As regards the identification test, suffice it to say that the appellant's arm was in bandages. The Magistrate should have concealed such bandages or put similar bandages on the dummies so that each person should have seen alike. It was easy for the police to have informed the witnesses that the person with bandages was the accused person, therefore, the witnesses could have easily picked out such person with specific marks. Thus, the identification test in the present .Circumstances of the case carries no weight.
11. As regards the recoveries, the prosecution has not relied upon the said piece of evidence for the simple reason that both the Mashirs were not examined to support and corroborate the statement of Investigating Officer.
12. After considering the material available- on the record we are of the considered view that the case of the prosecution is highly doubtful against the appellant, therefore, the appellant is entitled to the benefit of doubt which was accordingly given to him while passing the short order dated 8- 2-2007 by which we had allowed the appeal and dismissed the Confirmation Case No,9 of 2005.
These are the reasons of our said short order.