IFTIKHAR MUHAMMAD CHAUDHRY, CJ.---These petitions, for leave to appeal, have been filed against the judgment dated 9th March, 2006 passed by High Court of Sindh, Karachi.
2. Precisely stating facts of the case are that complainant Mst. Naseem Zafar, who is resident of Bungalow No,2-H-11/9, Nazimabad No,2, Gulbahar, Karachi, lodged a complaint with the Police Station Gulbahar, Karachi, stating therein that her husband Syed Zafar Hussain, who was Director Laboratories in the Ministry of Defence, proceeded towards his office at about 7-45 a.m. In his official car, which was brought by the Driver Syed Safdar Shah (P.W.); within few minutes of his departure, Driver Syed Safdar Shah (P.W.) returned and informed that some unknown persons have inflicted firearm injuries to her husband and he is lying injured in the car; the Driver further informed her that said unknown persons were three in numbers, who had inflicted firearm injures to her husband and fled away from there, to whom he can identify whenever produced before him; she, therefore, immediately reached at the spot and took her injured husband in the same car to Abbasi Shaheed Hospital, but he succumbed to the injuries on the way to hospital. Accordingly, Muhammad Arif Khan, S.H.O. (P.W.8), Police Station Gulbahar arrived in the hospital, who tried to record the statement of the complainant Mst. Naseem Zafar but she was not in her full senses. He along with Driver Syed Safdar Shah went to the place of incident where they found three empty cartridges lying there, which were secured and sealed by the police. Thereafter the S.H.O. Returned to the hospital, where at about 12 noon, he recorded the statement of complainant Mst. Naseem Zafar under section 154, Cr.P.C. Subsequently, on 28th September 2001, SIP Saeed Ahmed Rind, arrested the petitioners near Delhi Pakwan House, Rahman Market, Nazimabad-I Karachi and recovered; one Kalashnikov from the possession of petitioner Muhammad Shahid, TT Pistols from the possession of petitioners Muhammad Talha Hussain and Khalil Ahmed. Resultantly, they were booked in case under section 13(d) of the Pakistan Arms Ordinance, 1965 and produced before the Magistrate for holding identification test through P.W. Syed Safdar Shah, who identified them to be culprits, who murdered Syed Zafar Hussain (deceased), husband of complainant. The petitioners were involved in other cases as well, therefore, they were also brought before the Magistrate for recording their judicial confessions, in which they confessed the guilt of the murder of Syed Zafar Hussain (deceased).
3. On completion of usual investigation, the petitioners were challaned before the Administrative Judge of Anti-Terrorism Court, Karachi in F.I.R. No,57 of 2001 (subject matter of the case), whereas they were also challaned before the Magistrate for offences under section 13(d) of the Arms Ordinance. Both the cases were consolidated but the case pertaining to F.I.R. No,57 of 2001 was made the leading case in which the evidence was recorded. Trial Court framed the charge against the petitioners, to which they did not plead guilty and claimed trial. Prosecution, in support of its case, examined as many as 13 witnesses. The petitioners in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. However, they refused to examine themselves ooath to lead any evidence in their defence.
4. Learned Trial Judge after considering the material available on record and hearing the partiescounsel convicted and sentenced the petitioner as under:---
1. Muhammad Talha Hussain Khalil AhmedU/s 302(a), 34, P.P.C. read with sections 6(1)(c), 6(2)(a) and section 7(a) of ATA, 1997.Sentenced to death, with direction to pay Diyat @ Rs.175,000 each to the legal heirs of deceased. U/s 13(d) of the Arms Ordinance, 1965Sentenced to 7 yearsR.I. each and fine of Rs.50,000 each. In case of default in the payment of fine to further undergo R.I. for one year, each.
2. Muhammad Shahid Hanif U/ss 302(a), 34, P.P.C. read with sections 6(1)(c), 6(2)(a) and section7(a) of ATA, 1997.Sentenced to suffer imprisonment for life with direction to pay Diyat @ Rs.175,000 to the legal heirs of deceased. U/s 13(d) of the Arms Ordinance, 1965.Sentenced to 7 YearsR.I. and fine of Rs.50,000. In case of default in the payment of fine to further undergo R.I. for one year. Benefit of section 382-B Cr.P.C. was also extended to all of them.
5. Feeling aggrieved from their conviction/sentence, petitioners approached the learned High Court of Sindh, Karachi by filing Appeals. A murder reference was also sent by the Trial Court for the confirmation or otherwise of their death sentences. The State being also dissatisfied with the sentence passed against petitioner Muhammad Shahid Hanif, filed an appeal. Learned High Court, by means of impugned judgment, disposed of the above appeals jointly in the following terms;---
1. Muhammad Talha Hussain Khalil AhmedU/s 302(b), 34 P.P.C. read with section 7(i)(a) of ATA, 1997 forSentenced to death each, with direction to pay Rs.100,000 each, offence defined in section 6(a) of ATA.to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. U/s 13(d) of the Arms Ordinance, 1965.Sentenced to 7 yearsRI. Each with fine of Rs.5,000 each.
In case of default in the payment of fine to further undergo R.I. for one year, each.
2 Muhammad Shahid Hanif U/s 302(b), 34 P.P.C. read with section 7(i)(a) of ATA, 1997 for offence defined in section 6(a) of ATA.Sentenced to death, with direction to pay Rs.100,000, to the legal heirs of the deceased as provided under section 544-A, Cr.P.C.
Benefit of section 382-B. Cr.P.C. was also extended to him.
6. As such instant petitions have been filed by the petitioners, against their conviction/sentence.
7. It is contended on behalf of the petitioners that prosecution case is full of discrepancies and is not worthy of reliance for declaring the petitioners guilty for the offence charged against them. He further contended that P.W. Syed Safdar Shah had not seen the incident because he was not present in the vehicle .In which the deceased Syed Zafar Hussain had boarded to go to his office because he did not receive any injury. Besides, his evidence was recorded with the delay of 10 hours without offering any explanation. Similarly, the identification parade of the culprits has not been carried out according to the settled principles as at the time of identification of each of the accused the dummies were not changed and only the accused persons were changed. As far as the confessional statements allegedly recorded by the petitioners are concerned, those are also not admissible as the same was recorded with unexplained delay. According to learned counsel they were arrested on 30th September 2001 and their confessions were recorded on 10th October, 2001. This fact alone is sufficient to discard the confessional statement allegedly recorded by the petitioners. Similarly the recovery of crime weapons is fully doubtful because the crime weapons recovered from the possession of Khalil Ahmed alias Hassan Jan S/o Nawab Din and Muhammad Shahid Hanif have not matched with the empties recovered from the place of incident, therefore, the recovery of pistol from the possession of Muhammad Talha Hussain, which matched with the crime empties has also become doubtful.
8. We have considered the arguments of the learned counsel and have also gone through the impugned judgment carefully in light of the arguments put forward by the learned counsel for petitioner and have also taken into consideration carefully the available record. It would be appropriate to take up the arguments raised by the learned counsel one by one. As far as the ocular testimony in instant case is concerned, it has been furnished by P.W.-Syed Safdar Shah Driver of Ministry of Defence attached with deceased Syed Zafar Hussain to drive his official Suzuki Fax Car bearing Registration No,GP-3427. It is to be noted that according to his version the deceased occupied rear seat on the left side of the car and he started driving the car. When he covered some distance, two persons came in front of him and started firing on the side where the deceased was sitting. In the meantime, they crossed the car. Their, another companion came on a scooter/motorcycle in front of his car. Thereafter, both the culprits sat on the motorcycle on the rear seat and went away from there. According to him shots were fired on the left side of the car where the deceased was sitting. This statement of the witness indicates that the fires were shot from the left side of the car where the deceased Syed Zafar Hussain was sitting. It seems that no sooner firing started, the deceased Syed Zafar Hussain turned his position, with the result that, according to medical evidence, he had received one injury on the forehead, two injuries on his right side and chest, one injury on the right forearm and lacerated injury on the right eyeball. It is also to be noted that the evidence furnished by the witnesses is fully supported by medical evidence furnished by P.W.-Dr. Syed A Muntazir Haider. It is further to be noted that the incident took place in the morning time at about 7-45 a.m. Immediately after leaving the house by the deceased Syed Zafar Hussain in his car being driven by P.W.Syed Safdar Shah. Reports of the firing were also heard by the inmates of the house i,e, P.W.-Nasreen Zafar (wife of the deceased Syed Zafar Hussain) and P.W.-Murtaza Hussain S/o of deceased Syed Zafar Hussain and they immediately came out of the house and on the gate they met with P.W. Syed Safdar Shah, who narrated them the happening of the incident, as such they went to the car, where they found the deceased Syed Zafar Hussain lying injured on the rear seat of the car and they took him in the same car to the Hospital. Thus the evidence furnished by P.W.-Nasreen Zafar and P.W. Murtaza Husssain testifies the truthfulness of the statement of the P.W. Syed Safdar Hussain, who immediately disclosed the version to the inmates of the house that two B persons had fired and their third companion came on the motorcycle, on which they had fled away. Thus presence of the P.W. Syed Safdar Hussain at the place of incident cannot be discarded.##E## The Investigation Officer explained the delay of 8 hours in recording the statement because he remained associated with the police in completion of codal formalities, therefore, in presence of such explanation mainly for the reason that there was nominal delay in recording the statement by the Police, the evidence furnished by P.W. Syed Safdar Hussain cannot be disbelieved. In this behalf reference may be made to Hamid Javed v. State 1988 SCM R 39.
9. Now the next piece of evidence against the petitioners is the identification parade. P.W.-Syed Safdar Shah identified them in presence of Mrs. Farzana Mushtaq, Judicial Magistrate. As per her statement, she observed all codal formalities before putting him to identify the culprits. According to her statement, each one of the accused was identified with 10 dummies and he identified them to be the persons to whom he had seen firing and fled away from the place of incident in which Syed Zafar Hussain had murdered. P.W.-Syed Safdar Shah in his statement had also narrated the events took place during identification parade. Most important amongst them is that at the time of identification of the accused persons, notified in the commission of murder of deceased Syed Zafar Hussain, they were mixed up with 12/13 dummies and on each occasion, he identified them separately. It is important to note that in his statement, he has also described the roles played by the petitioners at the time of commission of the offence, according to which Muhammad Talha Hussain and Khalil Ahmed had fired upon the deceased Syed Zafar Hussain whereas Muhammad Shahid Hanif came on motorcycle later on. It is important to note that according to the version of Judicial Magistrate, petitioner who had beard was mixed up with dummies having beard whereas accused without beard were mixed up with the dummies having no beard. On having gone through, the statements of P.W. Mrs. Farzana Mushtaq, Judicial Magistrate and P.W. Syed Safdar Hussain, one can conveniently draw inference that for identification parade for each of the accused, several dummies were arranged therefore, objection being raised by the learned counsel in this behalf has no force.
10. Now turning towards the iecovery of incriminating weapons. In this regard, it is to be noted that the petitioners were arrested on 30th September, 2002 at about 1-00 a,m. In the night, in presence of P.W. Akram. At that time from the possession of petitioner Muhammad Shahid Hanif a Kalashnikov and bullets were recovered and from the possession of petitioner Muhammad Talha Hussain and KhalilAhmed TT pistols were recovered with bullets. These articles were sealed in parcels. The recovery has also been supported by P.W. Nazir Gul. It is to be noted that the incriminating empties had already been sent for the report of Ballistic Expert through P.W.
Muhammad Nadeem,. S.H.O. Police Station Gulbahar. The Ballistic Expert report has been produced as Exh.73, which shows that the crime empties were fired from the pistol recovered from the possession of petitioner Muhammad Talha Hussain used by him in the commission of offence.
Therefore, merely for the reason that as far as the pistol recovered from the possession of petitioner Khalil Ahmed alias Hassan Jan and the crime empties recovered from the place of incident have not been matched, it would not be sufficient to disbelieve the recovery of incriminating crime weapon from the possession of Muhammad Talha Hussain. Thus the recovery of incriminating crime weapon can be used also against him as one of the important piece of evidence to establish guilt
11. The most important evidence in this case is the statement of P.W. S.M. Naqeeb (Judicial Magistrate) who recorded the confessional statement of the petitioners, after observing codal formalities. The confessional statements of all the accused are available on record as Exhs.60 to 62.
A perusal whereof suggest that they have given inculpatory statement of confession not only in respect of the incident but also regarding few other incidents in which they were allegedly involved.
There is no need to reproduce their evidence except noting the crux; according to which deceased Syed Zafar Hussain was killed due to firing of Muhammad Talha Hussain and Khalil Ahmed and as far as third accused Muhammad Shahid Hanif is concerned, he has facilitated escape of both of them after completion of the task. Undoubtedly, the petitioners have retracted their confession but according to settled principles of law, the same can be relied upon, provided it gets corroboration on material points. The events disclosed by all of them for the purpose of commission of the crime in their confessional statements including the manner adopted by them to leave for the house of deceased Syed Zafar Hussain, etc., is fully corroborated by the statement of P.W. Syed Safdar Hussain, as well as the recovery of the pistol recovered from possession of ,Muhammad Talha Hussain, which is matched with the crime empties as well recovered from the place of incident because from the confessional statements it has also come on record that it was the firing of Muhammad Talha Hussain, which proved fatal for causing the death of deceased Syed Zafar Hussain. As far as Khallil Ahmed is concerned, his pistol was not used because the same was jammed and fires were missed. In the confessional statements the petitioners have also disclosed their motives i,e, killing of deceased Syed Zafar Hussain for sectarian reason, which clearly goes to indicate that they had made confession voluntarily and true. So far as delay of 10 days in recording of confessional statement is concerned, it would not be fatal in view of the facts and circumstances of the case because, per se, for this reason, confessional statement cannot be discarded. Reliance in this behalf can be placed upon the case of Muhammad Yaqoob v. State 1992 SCM R 1983, Muhammad Ismail v. State 1995 SCM R 1615, Khan Muhammad v. State 1999 SCM R 1818, Ahmed Hassan v. The State 2001 SCM R 505 and State v. Muhammad Shafique 2002 SCM R 620.
12. Learned counsel contended that petitioner Muhammad Shahid Hanif was sentenced to life imprisonment by the Trial Court vide judgment dated 15th April, 2002 whereas the High Court has enhanced his sentence from life imprisonment to death without lawful authority.
13. In this behalf it may be noted that against the judgment of the Trial Court dated 15th April, 2002, the State has filed Appeal No,28 of 2002 for enhancement of the sentence. The learned High Court on having taken into consideration that at the time of the commission of the offence i,e, 30th July 2002, the sentence under section 7(1)(a) of the Anti-Terrorism Act, 1997 was death whereas amendment was introduced in section 7(1)(a) on 15th August, 2001, therefore, the petitioner Muhammad Shahid Hanif will be dealt with according to law, which was prevailing at that time. As such, findings so recorded by the learned High Court, in this regard, are just and proper and learned counsel failed to persuade us to take a different view, therefore, the argument raised in this behalf is accordingly repelled.
Thus on having appreciated the evidence independently, we are of the opinion the prosecution has successfully established guilt against the petitioners and the impugned judgment being unexceptionable admits no interference by this Court. Accordingly, petitions are dismissed and leave declined.