JUSTICE CH. IJAZ AHMED (MEMBER).---The petitioner has sought leave to appeal against the judgment of the Federal Shariat Court dated 31-10-2005 wherein the appeal filed by the petitioner before the Federal Shariat Court against his conviction was dismissed.
2. The detailed facts have already been mentioned in the impugned judgment. However, necessary facts out of which the present petition arises are that the petitioner along with his co-accused are involved in case F.I.R. No,227 which was registered under sections 397/411, P.P.C. And section 17 of the Offences Against Property (Enforcement of Hudood),Ordinance, 1979 at Police Station Kohsar, Islamabad on the statement of Mrs. Tariq Naeem Chughtai. According to F.I.R. The facts are as under:- "On 20-8-2002, Mrs. Tariq Naeem Chughtai (complainant), had got recorded a statement (Exh.PA), before the police, contending therein, that on 20-8-2002, at about 9-35 p.m., she along with her children, in Toyata Corolla car No, IDS/301, for the purpose of shopping, came in Farooqia Market of F-6/1, Islamabad, and after parking the vehicle, in front of Novelty Stores, went inside it, from where, she purchased biscuits and chips, and when returned back, to the vehicle and was about to start it, by that time, a black coloured Honda Civic car, having registration number plate IDE/7141, wherein three persons were boarded, attracted there and abstracted the way of her car, that from the said car, a person, aged about 24-25 years whitish in colour, with small height and strong body, wearing "SHALWAR" and "QUMIZ", came out, who while pointing pistol at her, ordered her, to immediately came out of the car, that the persons, who were sitting in the above said black coloured car, while calling the name of that man, as Mansha Ullah, asked him to immediately bring out the complainant and the children out of the car and took the same, that she (the complainant) became frightened and cried and also started weeping at which, a cart man namely Zahir Shah P.W. And another person, who were available nearby, stepped forward, to rescue her, whereupon Mansha, who had dragged her out of the car, called his companions, namely Javed and Nadeema to make the fire, hence, the persons who were sitting in the driving and front seats of the said black coloured car, pulled out their pistols and started firing which resulted into the injuries, to the above said persons (Zahir Shah P.W. And his companion), that the accused namely, Mansha while boarding in her vehicle and other accused, in their above said vehicle, fled away, towards the south, that the accused, who were calling each other as Mansha, Javed and Nadeema could be identified by her, had committed a heinous act, with her."
3. The investigating agency investigated the matter and submitted the challan before the competent court. The learned Additional Sessions Judge after completing the legal formalities i,e,, recording evidence and statement of the accused convicted and sentenced the petitioner vide its judgment dated 12-4-2005 as under:-- Name of accused Under sectionSentence Javed Akhtar (present petitioner) and Manshaullah392, P.P.C.8 years R.I. With a fine of Rs,50,000, in case of default to further suffer 6 months R.I. With benefit of section 382-B, Cr.P.C.
4. The petitioner and his co-accused being aggrieved filed Criminal Appeal No, 107/1/2005 and Criminal Appeal No,119/1/2005 before the Federal Shariat Court. The learned Federal Shariat Court dismissed both the appeals vide impugned judgment dated 31-10-2005.Hence the present petition.
5. The learned counsel for the petitioner submits that complainant Mst. Rubina Tariq had failed to identify the petitioner in identification parade. He further- submits that statement of Mst. Robina recorded in the Court is not in consonance with the contents of the F.I.R. There are serious omissions in her statement before the trial Court. Both the courts below had erred in law not to consider her omissions in its true perspective and also had not given due weight to the circumstances that she had not identified the present accused in the identification parade. The statement of the complainant P.W.8 was not corroborated with the other eye-witnesses P.W.9 and P.W.14. Both the courts below had erred in law to observe that her statement was corroborated by statement of Muhammad Sadiq P.W.9 and Zahir Shah P.W.14. He further maintains that P.W.9 and P.W.14 have not nominated the petitioner specifically in their statement but this fact was not considered by the courts below in its true perspective. He further submits that petitioner had taken specific plea in his statement that petitioner was involved in a case on account of political differences with the Minister. The police had involved him in this case under his direction. He further submits that petitioner was: arrested on 20-8-2002 and falsely mentioned his arrest as 22-8-2002.
The petitioner had also got a case registered in the Woman Police Station Islamabad against the illegal raid in the house of the petitioner by the police which is at page 130 of the present paper book of the case. He further submits that this fact was also mentioned in reply to question No,8 in his statement under section 342,Cr.P.C. And also admitted by Mehboob Ahmed, A.S.-I. P.W.15 in his cross-examination but this fact was also not considered by both the courts below in its true perspective. He further urges that recovery was effected in violation of mandatory provisions of section 103 of Cr.P.C. He further submits that both the courts below had convicted and sentenced the petitioner by mis-reading and non-reading of the record. The learned counsel for the petitioner is very fair to submit that petition filed by his co-convict Manshaullah before this Court had already been dismissed.
6. We have given our anxious consideration to the contention of learned counsel for the petitioner and perused the record. It is an admitted fact that P.W.14 and P.W.9 were injured in the incident.
They are medically examined by P. W.12 Dr. Rana Muhammad Mobeen who observed bullet wounds on the right knee joint of left thigh of Muhammad Sadiq P.W.9 whereas he also observed an entry wound caused by bullet on the abdomen of Zahir Shah P.W.14 who was also admitted in the hospital and was operated, therefore, their presence at the spot was natural. All the three witnesses were cross-examined at length but the defence had failed to shake their veracity. P.W.14 has involved the petitioner in the commission of offence in his examination in chief which is to the following effect:-- "The accused, who at this time, are present in the court, were those who were sitting in the car and opened the firing whereas, the accused who was overpowered by us was having a small beard I was taken to the Hospital, where I was medically examined I sustained the fire shot injury, on right side, lower part of the abdomen."
7. The said witness was not cross-examined by the defence qua the aforesaid portion of his examination-hi-chief, therefore, this portion was admitted by the petitioner as law laid down by this Court in Mst. Nur Jehan Begum v. Syed Mujtaba All Naqvi 1991 SCM R 2300. It is settled principle of law that identification parade is not a legal requirement. If the eye-witnesses can identify the accused before the trial Court that is enough for conviction. It is also settled law that identification parade is immaterial if the identification of the accused is proved by other convincing evidence as law laid down by this court in Muhammad Afzal's case 1982 SCM R 129. It is pertinent to mention here that complainant could not identify the accused in identification parade as their features had been materially changed because they had grown long beards while at the time of incident they were clean shaved. Both the courts below had accepted the same after judicial application of mind and had given findings that accused were duly identified in court by the complainant and injured witness P.W.14. It is settled law that F.I.R. Is not substantive piece of evidence. The contention of the petitioner's C counsel that evidence of complainant did not tally with F.I.R. Has no force on the following reasons:--
(1) Omissions are not serious. See Mokhas's case PLD 1958 SC 10.
(2) Her evidence cannot be rejected on this ground as law laid down by this Court in Karam Ali's case 1968 SCM R 1025.
8. It is admitted fact that P.W.13 Khurshid Ali was declared hostile, therefore, both the Courts below were justified to ignore his statement. See Parita's case 47 Cr.LJ 232 and Habibullah's case PLD 1969 SC 127.
9. All the contentions raised before us were almost exactly the same which were raised before the Federal Shariat Court. The Federal Shariat Court had considered all those contentions and rejected the same as evident from paragraphs 6 to 11 of the impugned judgment. The contention of learned counsel for the petitioner that recovery was effected from the petitioner in violation of section 103, Cr.P.C. Has no force as law laid down by this Court in Muhammad Khan v. Dost Muhammad PLD 1975 SC 607. Both the courts below after proper appreciation of evidence had given findings of fact against the petitioner and observed as under:-- "Bare perusal of the victim's statement inspires confidence and sounds to be absolutely correct and truthful. The statement of Mst. Rubina is supported by Muhammad Sadiq P.W.9 and Muhammad Zahir Shah P.W.14."
10. It is pertinent to mention here that recovery was also believed by the courts below and the report of Forensic Science Expert was also positive, therefore, both the Courts below were justified to come to the conclusion that such type of recovery lending a strong corroboration to the statement of victim as evident from para. 11 of the impugned judgment. The statement of the petitioner was rightly rejected by the Court below as the petitioner had failed to prove the same in terms of Article 121 of Qunan-e-Shahadat Order, 1984. The complainant, injured witnesses P.W.14 and P.W.9 have no enmity whatsoever to involve him in a criminal case. The complainant is an educated lady who would not exonerate the real culprits and would nominate an innocent person just at the behest of the police. As mentioned above, both the courts below have reached concurrent conclusions after proper appreciation of evidence on record qua the guilt of the petitioner. This Court does not, normally, interfere in the concurrent conclusions arrived at by the Courts below while exercising power under sub-Article (2-B) of Article 203-F as well as Article 185(3) of the Constitution as law laid down by this court in the following judgments:--
(i) Noor's case PLD 1973 SC 469. .
(ii) Mujahid Hussain's case 1984 SCM R 54.
(iii) Abdul Kahliq's case 1986 SCM R 35.
(iv) Fazle Razaq's case 1985 SCM R 128.
11.It is pertinent to mention here that petitioner has filed petition under Article 185(3) of the Constitution against the judgment of the Federal Shariat Court which was not maintainable as the petitioner has to file petition under sub-Article (2-B) of Article 203-F of the Constitution. However, in the interest of justice and fair play we have decided the case on merits with the assistance of learned counsel for the petitioner. We have re-examined the evidence on record in the interest of justice and fair play but we do not find any illegality or infirmity in the impugned judgment.
12. For what has been discussed above, the petition has no merit and the same is dismissed. Leave refused.