' RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Special Anti-Terrorism Appeals Nos.6 and 7 of 2006 and Confirmation Case No.1 of 2006 as they arise out of common judgment.
2. The present appeals are directed against the judgment dated 4-4-2006 passed by the learned Special Judge Anti-Terrorism Court No.V, Karachi by which he convicted the appellants for offences punishable under section 302(b), P.P.C. Read with section 7(a) of Anti-Terrorism Act, 1997 ("Act, 1997"), and under sections 353, 324, 225 and 34, P.P.C. For various terms of imprisonments including death.
3. Brief facts of the prosecution case as disclosed in the F.I.R., lodged by complainant P.W.1 PC Muhammad Nawaz on 28-2-2002 are that he along with PC Nazeer Ahmed (injured), PC Mubarak Hassan (injured) PC Shakeel Ahmed (deceased), HC Muhammad Swalaheen (injured) were taking 45 prisoners to the prison after attending the Court in a Prison Van bearing No. SP-9062. The said van was being driven by HC Muhanunad Usman. When the prison van reached at Bohra Peer at 4- 30 p.m. Suddenly firing was made upon the van. The complainant through the windows of the van saw a yellow cab coming behind the said van in which six persons were sitting including the driver, out of them three persons were making firing on the prison van with their Kalashnikovs. Thereafter, he and his other companions started firing at the taxi but the culprits went away in their taxi. Due to firing of the culprits PC Shakeel Arshad and PC Nazeer Ahmed received injuries so also HC Muhammad Swalaheen, Mubarak Hassan and driver PC Muhammad Usman. In the meantime two police constables namely Sajid Ali and Shakeel Ahmed of Nabi Bakhsh Police Station, Karachi, also came there. They also fired at the culprits but the culprits ran-away. Thereafter higher police officials reached at the place of incident. The injured and deceased PC Shakeel Arshad were shifted to hospital. The S.H.O. Recorded his statement in the hospital, which was sent to police station for registration of the case.
4. The police secured empty bullet shells one mini-Kalashnikov and blood from the place of incident. The police arrested the appellants, out of them three appellants viz. Muhammad Faisal, Mazhar-ul-Hassan and Sabir Ali Waseem were produced before a Magistrate where they were identified by complainant and other P.Ws. Whereas appellant Muhammad Muzzamil was also produced before a Magistrate where P.W. Driver PC Muhammad Usman identified him. The police after usual investigation challaned the appellants in the Court where they were tried and convicted, as mentioned above, under the impugned judgment.
5. We have heard the Advocate for the appellants, A.A.-G. For the State and perused the record of this case very carefully.
6. The learned Advocates for the appellants have stated that the initial story of the prosecution has been changed by the witnesses in the evidence before the Court; that the witnesses have improved their statements in Court from their statements recorded by the police officials; that the presence of the complainant at the scene of incident was highly doubtful as he had not received any injuries; that the witnesses gave different versions with regard to the arrival of two P.Ws. Of Police Station Nabi Bakhsh, who came on a motorcycle; that the evidence of said two P.Ws. Is contradictory to each other and is not supported by P.W.2 SIP Akbar Hussain; that the SMGs of Police Officials which were used by the P.Ws. At the place of incident, were recovered but they were not sent to ballistic expert for examination and report so as to prove that the police had fired at the place of incident; that the witnesses had no occasion to see the faces of the culprits as the back door of the van was closed along with its window; that the three witnesses, who were sitting on the front seat, had received injuries from their back side as such, they were fired upon from the back side of the vehicle, therefore, they had no occasion to see the faces of the culprits; that the appellants were not identified in identification test before a Magistrate through P.Ws., who were sitting in the front seat-of the vehicle except the driver, who allegedly identified the appellant Muhammad Muzzamil but the driver had no occasion to see his face because the tiring was not made from the driver's side as admitted by him, therefore, the case of the prosecution is highly doubtful.
7. Conversely, the 1-earned A.A.-G. Has stated that the prosecution story has not been changed but some more details have been given by the witnesses during the course of examination, in Court, which will show the bona fides of the prosecution witnesses; that the witnesses had seen the faces of the culprits, therefore, they have been involved in the case by them; that there are no discrepancies in the evidence; that the presence of injured witness at the scene of offence cannot be doubted; that their evidence is corroborated and supported by the identification test held before a Magistrate that it was not necessary that the weapons, secured from the possession of witnesses should have been sent to ballistic expert for examination and report. He has supported the impugned judgment.
8. From the evidence and the arguments the prosecution's case rest upon two pieces of evidence, viz, ocular testimony and identification test. Before we discuss the ocular testimony, it is essential to examine the broad features of the incident.
9. The initial story of the prosecution was that when the prison vehicle, carrying 45 prisoners, with the above named police officials reached at Bohra Peer a yellow cab came from behind it. The car, in which six persons were sitting, including the driVer, out of them, three persons stated firing at the prison van. The police persons sitting in the vehicle also fired at the culprits. The two police constables of Nabi Bakhsh police station on a motorcycle reached there. They also fired at the culprits but the culprits ran-away in the car.
10. In the evidence the complainant and witnesses have modified and changed their basic story as they stated that the culprits came out from the taxi and started firing at the van from three sides and then the culprits sat in the taxi and went-away on the firing of police party. The witnesses were cross-examined with regard to the - firing made by the culprits while sitting in the taxi. P.W.6 Shakeel Ahmed and P.W.8 Muhammad Nazeer admitted that three persons while sitting in the yellow cab were firing at the prison van. Thus the initial story of the prosecution has been fully supported and corroborated by the witnesses that the culprits made firing on the prison van while sitting in the yellow cab but the said basic story has been changed by the witnesses in their statements before the Court, as such it is a major improvement in the prosecution story so as to fit in he circumstances of the case and allow the prosecution witnesses to identify the culprits otherwise the witnesses could have not seen the culprits while they were sitting in the car.
11. The second aspect of the initial story and the subsequent story of the prosecution that the police officials fired at the culprits, the evidence of P.W.9 Zahid Hussain, who secured the crime empties and weapons of the police officials who were with the van stated that he secured two SMGs from the front seat and two from the rear seat of the van but subsequently when he was confronted with his earlier statement he admitted that he secured only three official Kalashnikovs from the van. He did not specify as to who were the police officials, who produced the said weapons or to whom such Kalashnikovs were issued. Further, the P.W.9 deposed that he secured 54 empty bullet shells of Kalashnikov one missed round of Kalashnikov, one missed round and two empties of TT pistol from the place of incident. He did not specify from where these empties were secured by the P.Ws. As from three different places the firing was made from various weapons. The first place was the place where the culprits fired at the van. The second place was inside the van from where the police officials fired at the culprits and the third place was the place from where one P.W. Of police station Nabi Bakhsh fired at the culprits.
' The PW-9 was very specific with regard to the recovery of official Kalashnikovs as he deposed that the two Kalashnikovs were secured from the front seat and two from the back seat of the van. If any empties at the front or back seat of the van or at the place where taxi was parked or at the place where PW-7 fired at the culprits, would have been present then the witnesses must have seen such empties at such places and would have stated so in his deposition. This aspect of the case has also materially affected the prosecution story with regard to the firing of the police officials at the culprits from three different places. Furthermore, the prosecution sent the crime empties to the ballistic expert, one mini-Kalashnikov which was allegedly secured from the place of incident but did not send any official weapon to the ballistic expert so as to connect to some empties with the official weapons to prove that actually the official weapons were used so as to strengthen the prosecution story. The prosecution also did not recover the SMG of P.W.7 PC Sajid Ali of Nabi Bakhsh Police Station, who allegedly fired at the culprits. All these facts adversely affected the basic story of the prosecution.
12. In these circumstances, learned advocates for the appellants are of the view that the prosecution story was prepared after consultation by the higher officials of the police and referred to the statement of P.W.1 complainant where such fact was admitted by him. We have also gone through the said statement of the complainant and found that the complainant had admitted that after the incident higher police officials arrived at the scene of the incident; that they collected information regarding the occurrence of the incident; that the Superintendent of Police enquired from the people, who gathered there, who also enquired from him and after consultation it was decided that he should record his 154, Cr.P.C. Statement and .Then his statement was recorded at 8-00 p.m.Though the incident took place at about 4-30 p.m. As such there is delay of about 3-1/2 hours in recording the statement of complainant. From his evidence it is clear that the police officials collated the information and then after consultation with A each other, they decided that the P.W.1 should be complainant and then he was asked to lodge the FIR: as such, the story prepared by prosecution was prepared after due deliberations and consultations, which has also materially affected the prosecution case. Whereas according to complainant P.W.9 S.I.P., Zahid Hussain was the person, who reached first at the place of incident and he recorded statements of three or four persons there. If such statements were recorded then the F.I.R. Should have been based on the said statements as those were the statements Which disclosed the commission of a cognizable offence. What were those statements the prosecution have suppressed the same and also failed to produce the said witnesses so as to ascertain the initial story and manner in which the incident took place. Thus, the prosecution have suppressed the actual facts and manner in which the incident had occurred.
13. Now, we will discuss the ocular . Testimony. It consists of three sets of witnesses; one set of witnesses is the witnesses who were present at the back of the prison van, the second set of witnesses is the witnesses who were present in the front of the prison van and the third set of witnesses is the witnesses who came on the motorcycle.
14. As regards the first set of witnesses it is the case of the prosecution, as mentioned in the initial story that four police officials were present at the back of van but during the course of evidence the prosecution led evidence that only three Police Constables were present viz., complainant Muhammad Naw az , PC Shakeel Arshad (deceased) and PC Muhammad Nazeer. The evidence of complainant reveals that he along with two above named persons were present at the back portion of the van when at about 4-30 p.m. The firing started from the back side of the van and at that time the van had reached at Bohra Peer, The complainant further disclosed that as the door was opened he saw three persons near a yellow cab and they were firing at the prison van which was in moving position. Thereafter he also fired at the culprits. In the meantime P.W.6 Shakeel Ahmed and P.W.7 Sajid Ali came there on motorcycle and started firing at the culprits. He also stated that the culprits fired at the prison van from three directions. The learned Advocates for the appellants have strongly challenged the statements of complainant about his presence in the prison van.
15. According to the witnesses there are only two seats at the back of the van for two police constables but he stated that he was sitting with PC Muhammad Nazeer on one seat which was on the left side of the van. PC Muhammad Nazeer has three injuries on his person, all on his legs. If they were sitting very close to each other then the complainant would have received some injuries on his person as the PC Muhammad Nazeer had not only entry wounds but exit wounds also. Non- presence of injuries on the person of complainant creates doubt about his presence in the van at the relevant time. Furthermae, according to this witness the back door of the van was opened. The photographs of back seat of the van, produced by the prosecution, show that the door had bullet holes at various places. If the door would have been opened then corresponding holes would have also been present on the right or left side of the body of but no such corresponding holes are present, as such the stand taken by the complainant that the door was opened has been falsified by the circumstantial evidence. Further the P.W. Muhammad Nazeer deposed that he saw the incident from the net, which was fixed on top portion of the van by standing on the set. If the door would have been opened the P.W. Muhammad Nazeer would have not taken trouble to stand on the seat and see outside through the net. He also admitted that in his 161, Cr.P.C. Statement it was not mentioned that rear door of the van was opened.
16. Apart from the above facts the complainant stated that P.Ws, 6 and 7, who came on a motorcycle, were also seen by him, firing at the culprits. The said stand is not supported by P.Ws. 6 and 7 as they did not state that P.W.6 Shakeel Ahmed also fired at the culprits. Their evidence reveals that P.W.6 Shakeel Ahmed was driving the motorcycle and was not issued any official weapon. The said fact has been supported and corroborated by P.W.2 S.-I. Akbar Hussain of Nabi Bakhsh Police Station, who stated that no weapon was issued to PC Shakeel Ahmed, as such the statements of complainant about the firing made by PC Shakeel Ahmed has also been falsified from the evidence available on the record. The complainant in the cross-examination has falsified his own statement by admitting that PC Shakeel Ahmed was firing from his Klashinkov and further added that he was unable to see PC Sajid Ali and Shakeel Ahmed, when they were firing. The statement of complainant further shows that the firing was made from three sides. The photographs of prison van taken from the different sides are not supporting the version of the complainant. He further changed his statement by stating that firing was made from back side of the van, he stated that he had stated in his F.I.R. That firing was, made from three sides but he did states so in it. The evidence of the complainant further reveals that P.Ws. 6 and 7 came from the front of the prison van but his statement is not supported and corroborated by P.Ws. 6 and 7 as they stated that they came from the back side of the van. His evidence further reveals that he along with deceased PC Shakeel Arshad and PC Muhammad Nazeer were carrying SMGs at the time of incident and fired at the culprits but subsequently he changed his statement by stating that all the three had only one SMG which was in his hand and he had fired at the culprits.
According to this witness the culprits thrown miniKalashinkov while they were sitting in the yellow cab. 'It has been brought on the record that the said vehicle was allegedly parked at a distance of about 25/30 feet away from the prison van but P.W.9 deposed that he secured the miniKalashinkov, which was lying with the prison van. The complainant further deposed that the firing on the prison van was made to rescue prisoner Dilawar who belongs to Lashkar-e-Jhangvi avid was present in the prison van. How he came to know such fact? The prosecution did not lead any evidence. No record was produced to show prisoner Dilawar's presence in the van or he belonged to Lashkar-e- Jhangvi. There is no other evidence to show that the attack was made to rescue any prisoner and particularly Dilawar. If the motive of the incident was to rescue a prisoner then at least some efforts could have been made by the culprits in that direction but the evidence does not support and corroborate such motive. This also further shows the keen interest of the complainant to state whatever the facts which may fit in the circumstances of the case and to create a motive for commission of the offence. Thus the evidence of complainant is not confidence inspiring, full of exaggerations, improvements and discrepancies, which were made, to strengthen the prosecution case.
17. As regards P.W.8 Muhammad Nazeer he also gave same details of the incident as mentioned by the complainant. His interest in the case further shows that he stated in the identification test that he identified appellant Mazhar-ul-Hasan. The appellants challenged his statement by enquiring from him that he did not identify the appellant Mazhar-ul-Hasan in the identification test, which suggestion he denied and insisted that he had identified Mazhar-ul-Hasan in the identification test.
His stand is falsified by the Magistrate who categorically stated that P.W. Muhammad Nazeer did not identify. Appellant Mazharul-Hasan in the identification test. Such fact is corroborated by the memo. Of identification parade (Exhibit 14). Thus this witness has no sanctity of Oath. He has given false statement apparently to strengthen the prosecution case against appellant Mazhar-ul- Hasan. Cab was parked near the wall, and the accused were standing in front of the taxi in a row.
The said fact has not been supported and corroborated by any other evidence available on the record. His evidence reveals that he saw the incident by peeping from net of the prison van, which was fixed on the top of the van. He further clarified that he stood-up and then he peeped from there. According to complainant he and P.W. Muhammad Nazeer were sitting on the same seat, therefore, in the first instance, it was highly improbable that the P.W.s could have peeped from the net. Even if the statement is taken to be correct, as deposed in his examination-in-chief, but when he was confronted with his 161, Cr.P.C. Statement he admitted that he did not state such fact in the said statement, as such he improved his statement in the evidence so as to make him an eye- witness of the incident and to strengthen the prosecution case. He further states that P.Ws. 6 and 7 came from the left side of the prison van but his statement is not supported by P.Ws. 1, 6 and 7. His evidence also reveals that the door of the prison van was opened but in his 161, Cr.P.C. Statement he did not state so as admitted by him. Thus, his evidence is also not confidence inspiring.
18. In the examination-in-chief he stated that three persons were standing near the yellow cab and firing from there. He was confronted with his 161, Cr.P.C. Statement in which he admitted that three persons were firing at the prison van from the yellow cab. Then he voluntarily made a statement that they came out from the van 'but again he was confronted with his 161, Cr.P.C. Statement, to which he replied that he did not state such fact in the said statement. He also added that the yellow cab was parked near the wall, and the accused were standing in front of the taxi in a row.
The said fact has not been supported and corroborated by any other evidence available on the record. His evidence reveals that he saw the incident by peeping from net of the prison van, which was fixed oh the top of the van. He further clarified that he stood-up and then he peeped from there. According to complainant he and P.W. Muhammad Nazeer were sitting on the same seat, therefore, in the first instance, it was highly improbable that the P.W.s could have peeped , from the net. Even if the statement is taken to be correct, as deposed in his examination-in-chief, but when he was confronted with his 161, Cr.P.C. Statement he admitted that he did not state such fact in the said statement, as such he improved his statement in the evidence so as to make him an eye- witness of the incident and to strengthen the prosecution case. He further states that P.Ws. 6 and 7 came from the left side of the prison van but his statement is not supported by P.Ws. 1, 6 and 7. His evidence also reveals that the door of the prison van was opened but in his 161, Cr.P.C. Statement he did not state so as admitted by him. Thus, his evidence is also not confidence inspiring.
19. As regards the evidence of three P.Ws. Who were sitting on the front seats, they are P.W. 11, PC Mubarak Hussain, P.W. 13 HC Muhammad Swalaheen and P.W.14 HC Muhammad Usman, driver of the van. Their evidence reveals that while the van was moving, firing was made on the vehicle from three different sides. They did not state that they saw the culprits except P.W.14, who deposed that he saw a person, who was subsequently identified as appellant Muhammad Muzzamil in the identification test, held before a Magistrate.
' The prosecution did not care to prodtfbe all the three witnesses before the Magistrate for identification of other culprits as according to them the firing was made by them except P.W.14 HC Muhammad Usman, who alleged that he saw only appellant Muhammad Muzzamil firing. The incident took place in a very short periodof time where the witnesses had simply glimpses of all the culprits. It is natural conduct of the person that whenever firing is made then the first reaction of the person would be to protect himself from the firing and for that he conceals himself, therefore in such a situation the person would have only seen the glimpses of the culprits, therefore, the identification test in such circumstances is essential. The three P.Ws. Were not produced before the Magistrate to g identify the other accused except appellant Muhammad Muzzamil through P.W.14.
Thus, the evidence of all the three witnesses with regard to the bther appellants cannot be relied upon. It is well settled principle of law that if a witness has glimpse of a culprit then identification test before a Magistrate is essential and if such identification test is not held then the witness's identification in Court carries no weight. Reliance is placed on the case of State v. Farman Ali (PLD 1995 SC 1). Tayyab v. State (1995 SC MR 412) and Shahded v. Emperor (46 Cr.L.J. 317 (Federal Court).
20. Further, the P.Ws. Have stated that the culprits had fired at them from the said vehicle. Their evidence is falsified by the photographs of vehicle. They do not show any bullet marks on the side doors of the van. Furthermore according to the Medical Officer the seats injuries were such, which could have not been caused from the side of P.Ws. 'but were caused from their back side. Thus, the P.Ws. Might have received injuries from the bullets which had crossed the body of the van, fired from the back side of the van. As such , their evidence does not ring true hence cannot be safely relied upon.
21. As regards the identification test of appellant Muhammad Muzzamil through P.W.14, it is pointed out that the P.W.14 was driver of the van, therefore, he was concentrating on the driving. When the firing was made on the van from behind, the natural conduct of the driver would be to accelerate the vehicle to save it and would put more concentration on driving instead of seeing here and there. During that process of firing P.W.14 lost control over the driving as the van dashed with electric pole and extensively damaged. Thus, in such a situation it is highly improbable for the witness to have seen the culprits particularly the culprits who were present on the other side of the driving seat. Thus the identification of appellant Muhammad Muzzamil, in such circumstances, is highly improbable. Further, the P.W.14 deposed that he received injuries from the broken pieces of the windshield of the vehicle. His evidence is not corroborated or supported by the Medical Officer as the Doctor opined that the injured received injuries on his person caused by fire-arm weapon.
The seats of injuries show that he received injuries from his back side. Such injuries could have been caused by bullets, which had crossed the G body of the vehicle, when the fire-arm shots were fired from back of the van, while the P.W.14 was sitting on the driving seat. Thus, his evidence is also not confidence inspiring.
22. As regards the third set of witnesses who came on the motorcycle, they are P.W.6 PC Shakeel Ahmed and P.W.7 PC Sajid Ali. Their evidence reveals that, they were on patrolling duty on a motorcycle which was driven by P.W.7 and P.W.6 was sitting on the rear seat with an official SMG. At about 4-30 p.m. They reached Bhora Peer where they heard firearm reports. They enquired from the people about the firing, to which they were informed that the firing was made upon a van, therefore, they went towards the said van where they found three persons standing near a yellow cab firing at the prison van. P.W.6 PC Shakeel Ahmed went to near-by shop to inform the incident to the police station whereas P.W.7 PC Sajid Ali started firing at the culprits from his SMG.
23. Their evidence with regard to the conveying the information by PC Shakeel Ahmed to the police station Nabi Bakhsh has not been supported and corroborated by P.W.2 as according to him the information was conveyed to him by PC Sajid Ali and not by PC Shakeel Ahmed and he maintained such station diary. He also produced such diary, which supports his contention. Both the witnesses were specific that it was PC Shakeel Ahmed, who went and informed the incident to Police Station Nabi Bakhsh. Thus, their evidence with regard to the basic aspect of the case has been falsified by P.W.2. Both the witnesses are clear in saying that they came from the back of vehicle. They did not state that they saw the faces of the culprits. Naturally when they came from the back side of the van the persons who were firing at the van, then their backs must be towards the P.Ws.6 and 7, therefore, they had no occasion to see the faces of the culprits. The said aspect of the case has been supported by P.W.9, who also stated that P.Ws. 6 and 7 were at the back of the culprits. They further stated that the firing was made from three sides but their stand is not supported by the photographs of the van, which do not show that the van had bullet holes on the left or right sid.e of the van. The evidence of P.W.6 further shows that he saw one person lying on the road and two police constables were standing. The said aspect of the case has not been supported by any of the witnesses as the P.Ws. Who were present in the van did not state that during the process of firing they came out.From the van or the dead body of deceased was lying on the road. The evidence of P.W.7 further shows that he took protection by the side of the shop but when he was confronted with his 161, Cr.P.C. Statement he admitted that he did not state such fact in the said statement. He also admitted that there were no bullet holes on the left and right sides of the van. Thus, the evidence of these two witnesses also does not inspire confidence, therefore, it is unsafe to rely upon such type of evidence. As regards the identification test of the appellants when the witnesses had no occasion to see the faces of the culprits then, the identification test carries no weight.
24. As regards the identification of the appellants through other witnesses suffice it to say that their evidence is discarded therefore, no conviction can be awarded on mere identification test for the simple reason that identification test .Is a J corroborative piece of evidence which can only corroborate a substantive piece of evidence. If substantive piece of evidence is discarded then there is nothing left with the prosecution to be corroborated through identification test.
25. After considering the material available on the record we are of the considered view that the prosecution have failed to prove the case against the appellants beyond any reasonable doubt therefore, they are entitled to the benefit of doubt, which was accordingly given to them while passing the short order dated 26-4-2007, by which we had allowed the appeals and dismissed the confirmation case These are the reasons of the said short order.