1. ' RAHMAT HUSSAIN JAFFERI, J.---This Judgment will dispose of Special Anti-Terrorism Appeal No.26 of 2004 and Confirmation Case No.10 of 2004, as they arise out of common judgment.
2. ' The present appeal is directed against the judgment, dated 6-7-2004 passed by the learned Judge, Anti-Terrorism Court No. V, Karachi Division, Karachi, by which the learned Judge convicted the appellants for offence punishable under section 302(b), P.P.C. Read with section 7(a) of the Anti-Terrorism Act, 1997, and sentenced each of them to death and pay compensation of Rs,1,50,000 to the legal heirs of the deceased.
3. ' Brief facts giving rise to the present appeal are that deceased Dr. Muhammad Raza Pirani had a clinic situated in Soldier Bazar. The timings of the clinic were from 11-00 a.m. To 5-00 p.m. In the clinic complainant Tanveer Ahmed, P.Ws., Shiraz, Iqbal and Alam were working as Compounders.
4. On 26-6-2001 the complainant and above-mentioned Compounders attended their duties and finished the work at 5-00 p.m. The deceased left the clinic to go to his house in his car. The complainant and other compounders, as usual came at the gate of the clinic to see him off. The deceased sat in the car and had not yet started the same when a motorcycle came on which two persons were sitting, who were subsequently identified to be appellants Attaullah andMuhammad Azam. Appellant Muhammad Azam was driving the motorcycle, whereas appellant Attaullah was sitting on the rear seat of the motorcycle. The appellant Attaullah fired a shot in the air. He fired two more shots at the deceased and then the appellants went away on their motorcycle. The complainant and P.W. Shiraz were standing near the car, therefore, they witnessed the incident.
5. They went to the deceased where they found him bleeding in the car. The complainant and Zulfiquar took the deceased to hospital, where the doctor pronounced him dead. In the meantime police also reached at the hospital on the information conveyed to them. Police recorded the statement of complainant, which was sent to the Police Station for registration of case.
6. ' After registration of the case police reached at the place of incident where they found two empty bullets of TT pistol. One projectile and blood lying there, which were secured and sealed. Appellants were arrested and produced before a Magistrate for holding identification test through complainant Tanveer Ahmed and P.W. Shiraz. In the identification test P.W. Shiraz identified only appellant Attaullah, whereas complainant identified both the appellants to be the culprits of the crime. The pistols secured from the possession of appellants along with third pistol and empties secured from the place of incident were sent to Ballistic Expert for examination and report. The report was in positive in respect of only one pistol. Police after usual investigation challaned the appellants in the Court where they were tried and convicted as mentioned above under the impugned judgment.
7. ' We have heard Advocates for the appellants. A.A.-G. For the State and perused the record of this case very carefully.
8. ' The learned Advocates for the appellants have stated that the case of prosecution rests upon three pieces of evidence; (1) Ocular Testimony, (2) Identification Test and (3) Recovery. They have stated that ocular testimony consists of two witnesses, but the said witnesses gave contradictory statements on the question of witnessing the incident, beard of the appellants at the time of identification test they have stated that the witnesses are natural, independent and their presence cannot be doubted, but the question for consideration is whether they have spoken truth as otherwise; that the witnesses are not truthful witnesses, therefore, their evidence cannot be relied upon. As regards the recovery they have stated that the alleged pistols were not produced before the Court that the P.W.11 DSP Aamir Hameed, who had recovered the pistols from the possession of appellants, had not identified the pistols, which were sent to the Ballistic Expert to be same pistols which were secured from the possession of the appellants. Thus, the prosecution hasfailed to prove the case. Learned Advocate for the appellant Muhammad Azam has further stated that the appellant Muhammad Azam did not play any active role in the commission of crime, therefore, he is entitled for the benefit of doubt.
9. ' Conversely, the learned A.A.-G. For the State has stated that the case of the prosecution rests upon above-mentioned three pieces of evidence; that the witnesses are natural, independent and have no motive to implicate the appellants falsely; that the presence of witnesses are not disputed by the defence counsel; that the contradictions pointed out by the defence counsel are not the contradictions, but P. Ws. Gave the facts which they saw and gave the true facts; that the Magistrate while stating that the appellants had no beard at the time of incident, was not correct as he could not have remember the said minor fact when his statement was recorded after lapse of two years of the identification test; that from the ocular testimony coupled with the identification test the prosecution has proved the case. As regards the recovery he has conceded that the pistols secured from the possession of appellants by P.W.11 were not produced before the Court, therefore, the pistols sent to the Ballistic Expert have not been connected with the appellants, as such, he has not relied upon the said piece of evidence. He has further stated that both the appellants shared common intention with each other and the minimum sentence provided for offence punishable under the then section 7(i)(a) of the Anti-Terrorism Act, 1997 was death, therefore, the trial Court has not committed any illegality in awarding the sentence.
10. ' We have given due consideration to the arguments, gone through the evidence with the assistance of the Advocates for the appellants and found that the case of prosecution rests upon above-mentioned three pieces of evidence. The ocular testimony consists of two witnesses viz. P.W.8 complainant Tanveer Ahmed and P.W.9 M. Shiraz. Both the witnesses were Compounders in the clinic of the deceased, as such, they are natural witnesses. The said fact has been admitted by the defence counsel. The presence of both the witnesses at the time and place of incident has also not been denied.
11. ' Keeping in view the said facts we have examined the case of the prosecution and found that the complainant has fully supported the prosecution case and gave the same details of the incident as mentioned. In the earlier part of the judgment. He specifically stated that he and P.W.9 Shiraz were standing close to the car, therefore, they saw the incident. His evidence further reveals that he saw the motorcycle on which the appellants were sitting. Appellant Attaullah, who was sitting on the rear seat of the motorcycle, first fired in the air, therefore, the attention of the witnesses must have drawn towards the culprits, as stich,the complainant saw both the assailants. His evidence further reveals that thereafter, appellant Attaullah fired two shots from his pistol at the, deceased and then they went away on the motorcycle. His evidence further shows that in the identification test held before a Magistrate he identified both the appellants to be the culprits of the crime. He specifically stated that the appellant Muhammad Azam was driving the motorcycle, whereas appellant Attaullah was sitting on the rear seat of the motorcycle and fired at the deceased. His evidence is corroborated by P.W.9 Shiraz. His statement reveals that he came out from the clinic after hearing the fire-arm shots and saw two persons on motorcycle escaping from there and saw the culprits. One of the culprits was armed with pistol who was sitting on the rear seat of the motorcycle and then they went away. In the identification test he did not identify the appellant Muhammad Azam, but identified the appellant Attaullah to be the culprit, who was sitting on the rear seat of the motorcycle duly armed with pistol. His evidence is also natural as he gave the facts which he actually saw at the place of incident. He did not exaggerate the facts. If he wanted to implicate the appellant Muhammad Azam he could have done so the there was nobody to restrain him from doing so. This shows the fairness and truthfulness of the witness, for the simple reason that he was able to see the culprit who was armed with pistol and sitting on the rear seat of the motorcycle. Thus, the ocular testimony of both the witnesses are supporting and corroborating each other. The P.Ws. Have no enmity with the appellants. The appellants have also not suggested any enmity with them. Thus, the P.Ws. Have no motive, cause or reason to falsely implicate the appellants with this heinous crime. We do not find any infirmity in their evidence to discard the same.
12. ' Learned Advocate for the appellants have pointed out that the witnesses disclosed that the appellants had beard at the time of identification test, whereas Magistrate stated that they had no beard at that time, therefore, the ocular testimony is unworthy of credence. It is pointed out that the identification test was held by the Magistrate after 13 months of the incident. Both the witnesses were unanimous that appellants had beard at the time of identification test. No doubt magistrate stated that the appellants had no beard at the time of identification test. In presence of evidence of both these witnesses we find that the statements of the P.Ws. Are more reliable and trustworthy than the Magistrate for the reason that the Magistrate from the date of identification test till his evidence was recorded must have conducted various identification tests, tried cases and seen various witnesses and accused, therefore, the possibility of mixing the facts cannot be ruled out.
13. Further, there was no peculiar or extraordinary fact involved in this identification test to have drawn special attention of the Magistrate to have remember every minor detail of the accused or identification test, whereas the P.Ws. Had special reason to remember the feature of the accused as they had gone to identifying the culprits who had committed the crime, as such, it was a special feature for the P.Ws., hence, they could have remember such facts. Therefore, merely on the said discrepancy ocular testimony cannot be thrown out consideration.
14. ' The complainant identified both the appellants in the identification test, whereas P.W.9 Shiraz identified appellant Attaullah in the said identification test. The said fact has been fully supported and corroborated by the Magistrate, as such, the ocular testimony is corroborated by the identification test, which is sufficient to involve the appellants in the commission of this crime.
15. ' As regards the recoveries, the pistols allegedly secured from the possession of appellants, were not produced before the trial Court so as to be identified through P.W.11 to be the same pistols, which were secured from their possession and sent to Ballistic Expert for examination and report. It is surprising to note that the Investigation Officer had sent three pistols to Expert for examination as per Expert's report Exh.44. The said report shows that only one Pistol bearing No.5931 matched with two empties. The prosecution has not connected the said pistol with any one of the appellants.
16. Further there is also no explanation as to from where the third pistol came and why it was sent when it was alleged that only two pistols were secured in this case. Thus, the evidence and recovery is unreliable. Learned A.A.-G.Has rightly not relied upon the said piece of evidence.
17. ' After scrutinizing the evidence we are of the considered view that the oral evidence is sufficient to connect the appellants with the commission of this crime. The incident took place on 26-6-2001, at that time the offence was punishable under section 7(i)(a) of Anti-Terrorism Act, 1997 which carried death sentence only. The case is to be dealt with in accordance with the law prevailing at the time when the offence wascommitted, therefore, the learned Judge has rightly convicted and sentenced the appellants for the said offence. Thus, the conviction and sentence awarded to the appellants under the impugned judgment are confirmed.
18. ' Above are the reasons by our short order, dated 17-11-2006, by which we had dismissed the appeal and allowed the Confirmation case.