1. ' Mrs. YASMIN ABBASEY, J.---Prosecution's case as incorporated in the F.I.R., dated 1-9-2001 is that it was reported by complainant Muhammad Mehmood Rizvi in his 154, Cr.P.C. Statement that on 1-9- 2001 when he was at his office situated at Clifton Centre, Karachi, at about 10-30 a.m., he received a telephonic call from his house that his father viz. Muhammad Hamid Rizvi, while he was just leaving for his office in a vehicle, has been injured by some unknown persons by fire-arm weapon.
2. Complainant immediately rushed to his house and saw that his father was being transferred to a police vehicle parked on the opposite side of the road. The corpse was blood-stained. He noticed that his father had received bullet injuries on his forehead and chest. At Mid East Hospital doctors confirmed his death. Thereafter formal investigation was conducted. Finally challan was submitted in Court on 2-8-2002.
3. ' On 20-5-2003 Appellants Attaullah and Muhammad Azam were charged under section 302/34, P.P.C. And Under section 7 of Anti-Terrorism Act, 1997.
4. 'Prosecution examined 12 witneses. On the basis of evidence produced at the trial stage, learned Judge, Anti-Terrorism Court has convicted both the Appellants for creating terrorism, punishable under section 7(a) of the Anti-Terrorism Act, 1997 with death sentence and fine of Rs,1,00,000 each.
5. In default thereof to suffer further R.I. For six months.
6. ' Being aggrieved with the judgment, this appeal has been preferred by both the Appellants.
7. Simultaneously the learned trial Court has also filed a reference for confirmation of death sentence.
8. ' Learned counsel arguing on behalf of both the Appellants had contended that the prosecution case is based on the ocular testimony of P.Ws. Sadiq Shah and Karam Ellahi, identification parade of Appellants through P.Ws. Sadiq Shah and Karam Ellahi and recovery of empties from the place of incident and pistol used in the commission of offence.
9. ' Discussing the ocular testimony of P.Ws. Sadiq Shah and Karam Ellahi, it is argued by learned counsel for Appellants that a lot of contradictions are appearing in their statements, which doubts their testimony. Presence of both these witnesses at the place of incident is also dubious in view of unsatisfactory evidence deposed by them. According to P.W. Sadiq Shah, he is a labourer. On 1-9- 2001 one person came in a white colour car engaged him for filtering the sand, which was lying near the wall of his bungalow. According to him, when he was busy in his job that very person whose name subsequently was known to him as Baboo, at about 10-00 a.m. To 10-15 a.m. Came out from his car and moved towards the main road. Soon he heard a noise of firing and saw that two persons riding on red colour motorcycles were firing on the driving seat of deceased's car.
10. After causing injuries, both culprits escaped from the place of incident. According to him, he had seen both the culprits. One was having small beard and the other was having medium beard and can identify them if brought before him.
11. ' Almost the same statement has been deposed by P.W. Karam Ellahi. According to him, he was a driver of a doctor namely Dr. Qudwai. On 1-9-2001 after off of his duty when he was going on his foot to home and reached near Zamzama Street, Clifton at about 10-15 a.m. Or 10-30 a.m, he saw one white colour car coming from opposite side, two persons on red colour motorcycles were also standing on the road and as soon that car reached near to them, they opened fire on it with pistol, on the driving side. After causing injuries both the culprits made their escape good from the place of incident. This witness was also confident that he had seen the culprits at the place of incident and can identify them if brought before him.
12. ' According to both these eye-witnesses, the culprits had fired on the vehicle from its side but the Medical Report and complainant, who had seen injuries, just after his arrival at the place of incident when dead-body was being transported in police vehicle witnessed that injuries sustained by the deceased were on his forehead and chest. Report of Examiner of Track Mark, Criminalistic Division Sindh, Karachi had also supported that firing was either from back or front side causing damage to the front windscreen of the car. Finally it was opined that there was no any evidence/hole tire-arm shot on the whole body of vehicle in question, hence no definite opinion could be expressed.
13. ' Statement of complainant and Examiner of Criminalistic Division Sindh, Karachi further find support from evidence of P.W.5 Medical Officer namely Dr. Ghulam Hussain, who had also shown external injuries on the person of deceased on the left occipital region, right chest near mid of sternum and fire-arm punctured wound 0.5 c.m in diameter over right side of chest interiolaterally upper part.
14. ' With reference to the recovery of empties from the place of incident too P.Ws. Had differently deposed. According to P.W.2 Muhammad Mahmood Rizvi, police had secured projectiles from the car and seven empty shells lying near the car, whereas according to P.W.8 SIP Abdul Ghaffar seven empties were recovered from the street and one Pellet (Sikka) was secured from the road. P.W.10 P.C. Arshad Shah has shown recovery of seven empties of TT pistol and one pellet from the place of incident, whereas according to P.W. Karam Ellahi, the eyewitness, the empties were recovered by police from the corner of the road wherefrom accused were making firing. The statements of all the prosecution witnesses as discussed above, show that to somehow all of them had shown a different place of recovery of empties though the area is same but no one is definite and confirms to a particular place or point, which doubts the presence of P.Ws. Particularly both P.W. Sadiq Shah and P.W. Karam Ellahi, as no corroborating evidence of them to be present at the place of incident was found. According to P.W. Sadiq Shah, he was engaged by the deceased for doing some work at his house but this statement does not find support from the statement of complainant Muhammad Mahmood Rizvi as neither he had shown the presence of sand stored at the outside of his house for filtering purpose nor had confirmed the presence of this witness Sadiq Shah as labourer engaged by his deceased father. The conduct of P.W. Sadiq Shah at that particular point of time also appeared to be strange. As in spite of knowing that the person, who had employed him for a particular purpose had been murdered in his presence but in spite of that just after seeing he had taken no notice of it and had returned back to his work without intimating to the inmates of the deceased's house as to what had happened outside the house. Presence of P.W. Sadiq Shah further appears to be doubtful when not a single word has been deposed by the complainant about his presence while narrating as to how he received information of the incident i,e, through telephonic call of his cook. It had nowhere been stated by him that the said incident was intimated by P.W.
15. Sadiq Shah to his cook. In the same way P.W. Karam Ellahi said to be an employee of Dr. Qudwai running his clinic at Khadda Market, Gizri, Karachi is not trustworthy. It is an unbelievable fact that an employee of a person, who was in service with him for the last 25 days would be unaware of the building wherein his employer was residing, he was unaware of the flat number occupied by his employer. Even he had shown his ignorance about the area wherein those flats were situated.
16. ' The only statement to show his presence at the place of incident was to the extent that Dr. Qudwai with whom he was working as driver was residing on third floor of the building. It is worthwhile to note that in spite of this suspicious nature of evidence, prosecution had not called Dr. Qudwai as a witness to confirm the employment of this P.W. Karam Ellahi with him on that particular day of incident and his departure from his house. It is also important to note that in spite of claiming him to be the eye-witness, none of them i,e, Sadiq Shah and Karam Ellahi had given the description of culprits in their 161, Cr.P.C. Statements said to C had been recorded after the incident to validate the features and confirm the presence of Appellants at the place of incident through identification parade through P.Ws. Though P.W Karam Ellahi in identification parade held before Judicial Magistrate-V, Karachi South had identified both the Appellants as the culprits of incident. As per remarks in identification parade of Appellant Attaullah, P.W. Karam Ellahi stafed that he was the person, who had fired on the car while the other person was driving the motorcycle, whereas in the identification parade held for Appellant Muhammad Azam, the very witness implicated both the persons to be equipped with pistols and that both had fired on the car. Again this contradiction made by P.W. Karam Ellahi in the.Identification parade is D evident of the fadt that neither he was present at the place of incident nor had seen the incident and appeared to had been set up by the prosecution to act as eye-witness.
17. ' According to P.W.9 DSP Muhammad Aamir Hamid, at the time of arrest Appellant Attaullah was in possession of TT pistol loaded with six live round in magazine, and Appellant Muhammad Azam was in possession of TT pistol with six live rounds in magazine, same were secured from their possession and were sent to Criminalistic Division for examination. As per Ballistic Expert Report (Ex-26), three pistols having Nos. 5931, 3150 and one without number were received by him.
18. According to him, from Pistol No,5931 two 7.65 mm bore crime empties were fired, whereas five 7.63 mm bore crime empties were fired from Pistol No,3150 but it is worthwhile to note that both these pistols were secured by prosecution in F.I.R. No,175 of 2002 and F.I.R. No,176 of 2002, whereas the pistol without number was secured in F.I.R. No,177 of 2002. The present case bears Crime No,176 of 2001, hence the only weapon, which could be taken in the present case was Pistol No,3150 from which five empties said to had been fired but still in absence of any details shown in the evidence that as to which particular weapon was secured from which particular Appellant it is difficult to fix this crime weapon on the Appellants as the memo of arrest and recovery was made on 29-6-2002 much after to the incident of this case happened on 1-9-2001 and even later to it the present Appellants were taken in custody in the present case on 5-7-2002.
19. ' Even otherwise, recovery is a corroborative piece of evidence, which by itself is not sufficient to convict an accused without substantive piece of evidence. In the present case we have already discarded the substantive piece of evidence of eye-witnesses therefore, no conviction can be based on recovery alone. Reliance is placed on the case of Asghar Ali alias Sahab and others v. The State and others (1992 SCM R 2088).
20. ' So far as the medical evidence is concerned, according to MLO P.W.5 Dr. Ghulam Hussain, he had recovered projectiles from the body of deceased and had sealed, them separately in a parcel, which were handed over to SIP Abdul Ghaffr but the documents as placed on record are silent to the fact that whether these projectiles recovered from the body of deceased were sent to the Chemical Examiner or the Ballistic Division for matching the same with the pistols said to had been used in the commission of offence to confirm that the projectiles recovered from the body of deceased were in fact fired from the Pistol bearing No,3150.
21. ' Learned A.A.-G. For the State in spite of contradictions and discrepancies appearing in the matter has supported the judgment and prosecution evidence on the ground that both P. Ws. Sadiq Shah and Karam Ellahi were natural witnesses, who were present at the time of incident as incident had taken place on the road, their presence because of minor discrepancies cannot be disputed but these arguments advanced by learned counsel for the State does not have any weight in view of above discussion.
22. ' For the foregoing reasons, the appeal of the Appellants is allowed Conviction and sentence of the Appellants are set aside. Confirmation Case No,3 of 2004 is rejected.
23. ' These are the reasons for the short orders announced on 13-11-2006.