1. ' Mrs. YASMEEN ABBASEY, J.---After receiving a message from Jinnah Post Graduate Medical Centre
(JPMC) on 3-5-2001 at about 1220 midnight that a dead-body was brought there, S.-I. Saeed Ghani proceeded to JPMC, recorded complainant's statement under section 154, Cr.P.C. On the basis of his statement F.I.R. Was lodged under Crime No,196 of 2001.
2. ' As per 154, Cr.P.C. Statement of complainant Sarfaraz Hussain Rizvi about four days prior to the incident, two young persons came at his residence and called his brother Athar Hussain Rizvi, the deceased and sought his help for purchase of adjacent plot to his house. Deceased showed his ignorance however, he consented to collect information and communicate to them. On 3-5-2001 again both those boys came at their house, on rang of bell deceased Athar Hussain Rizvi gone out of house in the lane, just thereafter one out of two culprits fired at him twice, which hit on the left side of his face chin and crossed from right side of the temple. After causing injuries, both culprits escaped from the place of incident injured was taken to Jinnah Hospital where he succumbed to injuries. Complainant contended that he and his family members could identify the accused persons if brought before them.
3. ' On 29-6-2002 both these Appellants were arrested in some other matter, however, during interrogation, on their admission to have committed offence of this case, they were taken up in the present case under memo of arrest, dated 5-7-2002. They were put in identification test, where the P.Ws. Identified them to be the culprits of this crime.
4. ' Charge was framed against the appellants on 25-6-2004.
5. ' After considering the evidence produced, both appellants were convicted and death sentence was awarded to them. Being aggrieved by that judgment. This appeal has been preferred, simultaneously a reference was moved by learned trial Court for confirmation of death sentence.
6. ' The prosecution case is based on ocular testimony of complainant Sarfaraz Hussain Rizvi, Mst.
7. Syeda Muhammad Bano, Syeda Tehseen Fatima, recovery of crime weapon, identification parade and medical evidence.
8. ' Out of 11 witnesses produced by prosecution at first we would like to discuss the ocular testimony consisting of complainant, Mst. Syeda Bano and Syeda Tehseen Fatima.
9. ' P.W. Sarfaraz Hussain Rizvi, the complainant, apart what has been stated in 154, Cr.P.C. Statement has made certain addition in his statement recorded in Court on the basis of information provided to him by his mother, sister and deceased that about 2/3 days prior to the day of incident when both Appellants came at his house, deceased called him inside house, offered him a cup of tea and on their enquiry about the adjacent plot he promised to seek information. Then against on 3- 5-2005 when both those persons came. Complainant along with his all family members including deceased was present in courtyard, therefore as soon he heard a fire short, he was able to approach at the door and saw one person having TT pistol in his hand, while his brother in injured condition was lying at the door. He further noticed two fire-arm injuries on his person. The other inmates of home i,e,, Nasim Hyder, sister and mother of complainant recognized that they were the same persons, who came to their house 2/3 days prior to the day of incident. In the meanwhile taking advantage of disturbance both persons escaped from the place of incident on foot towards Korangi No,2.
10. ' P.W.8 Mst. Syeda Muhammad Bano, who is the mother of deceased Athar Hussain Rizvi too confirmed that appellants were the same persons who came to their home about 2/3 days back to the incident. Under the impression that they came to see her ailing husband, who was an old patient. Appellants were brought to his room where she and her daughter remained present.
11. Therefore were able to recogniie that the same persons again came on 3-5-2001.At 10:00 p.m.
12. ' The statement of P.W.8 as to the definite fact that appellants were the same persons who came earlier to deceased house is explicit from her statement that when his deceased son had gone outside to meet the callers, she in order to confirm that whether they were the same persons had peeped from the door and saw the appellants. Soon she took a turn to go in the room, there was a noise of firing, her daughter, Naseem Haider, Sarfaraz Hussain Rizvi and she herself came out from the house. In their presence culprits fired second shot on deceased Athar Hussain Rizvi, who after receiving the fire-arm injuries fell down on the ground. Thereafter both the culprits made their escape good on their foot.
13. ' Third witness Mst. Syeda Tehseen Fatima, who is sister of deceased has given almost the same evidence as has been deposed by her mother and brother, with further addition, authenticating that appellants are the same persons who came to their home earlier had deposed thathen they both under the impression that they had come to see her ailing father were made to sit in her father's room, she was able to see them properly, because, due to the condition of father, she would not leave him alone.
14. ' In view of above statement of eye-witnesses discussed, the contention of learned counsel for appellant Azam that complainant had tried to improve his 154, Cr.P.C. Statement in his statement on oath as he had not disclosed in his 154, Cr.P.C. Statement that the event happened 2, 3 days prior to the day of incident were disclosed to him by his sister, mother and deceased. So also P.Ws.
15. Have not given the detailed features in their 161, Cr.P.C. Statement to justify that they could recognize the appellants at later stage. That might be so but the statement under section 161, Cr.P.C. Statement is not a substantive piece of evidence, however it can be used for the purpose of contradiction.
16. ' Anyhow if at subsequent stage, any fact, not deposed earlier is brought on record, it cannot be said a dishonest improvement. Even otherwise no material contradictions have been pointed out by learned counsel for appellant to doubt the credibility 9f P.W. The identification of appellants in the identification parade held on 8-7-2002 became more important, when all the three eye- witnesses confidently identified appellant Azam to be culprit who committed murder of deceased.
17. Athar Hussain Rizvi. Whereas the non-recognition of appellant Attaullah by P.W. Sarfraz Hussain and Syeda Muhammad Bano is further explicit proof of their truthfulness, that being not confident that he is the same accomplice had not unnecessarily tried to implicate him.
18. ' Apart from above, definitely no specific role of appellant Attaullah in the commission of offence is appearing on record. At the most if it is presumed to be present at the time, he was shown in company of Azam, and that's all.
19. ' So far as the recovery of crime weapon is concerned, though prosecution had referred two weapons for evaluation to the Ballistic Expert, Ballistic Expert's report, dated 11-7-2002 also makes mention of examination of two weapons i,e,, Pistols Nos. 5931 and 3150 but the contents of letter of S.H.O. Police Station Kortngi, Karachi addressed to AIG Incharge FSL Criminalistic Branch on 7-7- 2002 clarifies the position wherein it is stated that "accused persons on the day of occurrence killed the deceased Syed Athar Hussain Rizvi by making firing with the recovered arm/TT pistol of accused Muhammad Azam". So far as other crime weapon No,5931 shown to have been recovered from the possession of appellant Attaullah and the empty matching to it would not be relevant in the matter as the admitted position is that at the time of incident he was not holding any weapon.
20. So if any recovery hadtaken place from his possession it might be in some other case as apparently both appellants were arrested on 29-6-2002 and subsequently were taken in the matter on 5-7-2002.
21. ' Learned counsel for Appellants has also taken a plea that as it was midnight, therefore, it would not be possible to identify the accused persons but in view of evidence brought on record, this ground would not be helpful for him as there is sufficient evidence to the effect that there were bulbs on the outside of the house of the lane/street, which facilitated all the eye-witnesses to identify the accused persons to whom they had earlier seen to the day of incident. So to say that as description of accused persons was not given by the P.Ws. In F.I.R. Or 161, Cr.P.C. Statements and a long time had elapsed in between the date of incident and their identification, therefore, there is possibility of having no definite features of culprits in the mind of eye-witnesses but this argument advanced by learned counsel for Appellants does not have any weight herein, in the circumstances when both P.Ws. Mst. Syeda Muhammad Bano and Mst. Syeda Tehseen Fatima only 2/3 days earlier had considerable time to see the accused persons while they were sitting in their house. However, even if it is said that Mst. Syeda Tehseen Fatima had recognized only one appellant Muhammad Azam, which lessen the prosecution case, but the fact cannot be ignored that due to the nature of incident particularly committed by appellant Azam he was under the main focus of all P.Ws., therefore, there might be possibility of ignoring the presence of other person by any prosecution witnesses. Indeed majority of witnesses had clearly implicated Muhammad Azam as the culprit, who caused death of deceased Athar Hussain Rizvi. Reference can be made in this connection to the case of Solat All Khan v. The State (2002 SCM R 820), wherein it is observed that:- "Similarly, Umer Shahid (P.W.12) had stated that he identified the appellant during the identification parade conducted by Muhammad Rafiq, Judicial Magistrate on 19-12-1998. He also stated in his cgoss-examination that prior to the identification parade he had not seen the appellant. He further reiterated his stance by saying that he had seen the appellant for a moment on the date and place of occurrence and then saw him in the identification parade held on 19-12-1998. The figure and feafures of the appellant must have been imprinted.On the minds of Mrs. Shahnaz Hamid (P.W.4) and Umer Shahid (P.W.12), widow and son respectively of deceased Shahid Hamid. How they can forget the person who had committed this gruesome act of killing Shahid Hamid along with his driver and gunman') It is expecting too much from the complainant to point out the detailed description and features of the accused in the F.I.R. As at that moment she must be undergoing a very traumaticcondition. In this regard, the learned Division Bench of the High Cou'rt of Sindh has observed as under:-- "The argument that P.Ws. Had only momentary glimpses and it was difficult for them to identify the culprits after such a long period has no merit. Suffice it to say that each criminal case has its own facts and circumstances and the value of evidence of identification is to be evaluated by the Court. It may be mentioned that the power to identify varies according to the power of observation and the observation is based upon minor details which a witness cannot describe and explain himself. In the instant case the incident has taken place-in the day time just near the house of complainant party, who were receiving constant threats and they were conscious of the consequences. As soon as the lady and her son heard the fire shots, they came out of their bungalow and saw the incident and culprits. P.W. Mrs. Shahid Hamid and the other P.Ws. Who were at the relevant time at the spot and seen the appellant/culprit and incident which was a immense importance, extending serious and saddest in one's life, therefore, the culprits to whom they saw could remain in memory as photo for sufficient long period hence there could be no mistaken identity."
22. ' Learned counsel for Appellants further argued that in the identification parade held on 8-7-2002 the Magistrate while recording the memo has failed to state that what particular role of accused persons was disclosed by those witnesses. Though the perusal of Identification Memo show that while identifying appellants their roles in the commission of offence were disclosed by the witness, but even then, the credibility of witness cannot be disputed as along with identification there is sufficient evidence on record coupled with report of Medical Officer confirming the death of deceased because of fire-arm weapon, with a short distance, as deposed by eye-witness, is an additional evidence of proof due to presence of blackening around the injuries of deceased.
23. Further that admittedly there was no previous enmity in between the parties to falsely implicate them. Further, the witnesses assigned role to the appellant Azam before the Court. In the like circumstances in 2002 SCM R 820 (Solat Ali Khan v. The State) testimony of eye-witness was accepted and it was observed that:-- "Their presence at the spot is natural and has been proved beyond any doubt. They do not have got any malice or against the appellant to attribute him the deaths of Shahid Hamid along with Ashraf Brohi, driver, and Khan Akbar, gunman."
24. ' Learned counsel for appellant by putting a question in cross-examination of Sub-Inspector Saeed Ghani had tried to mitigate his statement that as he had seen the photographs of both appellants in Newspaper published on 3-7-2002 therefore, it helped him to recognize the appellants in Court, but neither photographs published in any newspaper have been produced by appellants nor any such question was ever put to other eye-witnesses.
25. ' The upshot of above discussion is that prosecution has fully proved the guilt against appellant Muhammad Azam, however so far as appellant Attaullah, as discussed above except his presence on the day of incident along with appellant Muhammad Azam, that too with uncertain evidence, appears to be doubtful, benefit of which goes to appellant Attaullah.
26. ' In view of above discussion the conviction awarded to Appellant Muhammad Azam for offence punishable under section 302(b), P.P.C. Is maintained, his conviction for offence punishable under section 7(a) of the Anti-Terrorism Act, 1997 is modified to the then section 7(i)(a) of the Anti- Terrorism Act, 1997, as at the time of incident the latter provision was applicable, which carried only death sentence. As observed earlier in short order. As regard sentence awarded to Appellant Muhammad Azam, it is maintained.
27. ' The trial Court further ordered that the properties of the Appellants are forfeited to the Government to the extent of Rs,500,000. The said sentence is not provided under any provision of above mentioned section, therefore, the said sentence is set aside.
28. ' As regards the case of Appellant Attaullah, in view of above discussion his case is doubtful.
29. Therefore, the conviction and sentence awarded to him under the impugned judgment are set aside. The appeal is partly allowed and partly dismissed in above terms. The confirmation case in respect of Appellant Muhammad Azam is allowed whereas the Confirmation Case in respect of Appellant Attaullah is dismissed.