' MUHAMMAD NAWAZ ABBASI, I.- This jail petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan has been directed against the judgment, dated 22-10-2002 passed by a Division Bench of Lahore High Court, Multan Bench, in an appeal preferred by the petitioner against the conviction and sentence of death and various other sentences awarded to him by the Special Court established under the Anti-Terrorism Act, 1997, at Multan which were maintained by the High Court in appeal.
2. The occurrence in the present case took place at 2 p.m. In Phatian Wali Mauza Piran Ghaib in the area of Police Station Sital Mari, Multan in which Ghulam Rasool Shah, A.S.-I. And Muhammad Arshad, constable were murdered whereas Muhammad Yousaf and Tayyab constables, were injured. The case was registered against the petitioner and his co-accused under sections 302/324/353/186/133/34 read with section 7 Anti-Terrorism Act, 1997 on the statement of Muhammad Mujeeb, Constable, (P.W.8) recorded by the S.H.O. Of concerned police station in the emergency ward of Nishtar Hospital, Multan wherein the complainant stated that he along with Muhammad Arshad, constable armed with rifle MP-5, Ghulam Rasool, A.S.-I. With rifle .34 bore and Muhammad Yousaf empty-handed, were on patrol duty on official motorcycle when at about 2 p.m. Two motor cyclists duly armed with kalashnikov, came from the side of Basti Bohar and one of them was Zahid Hussain alias Zahida alias Jamshid, (petitioner) a renowned terrorist of Lashkar-e- Jhangvi who was proclaimed offender. These motorcyclists 'were stopped by the police party for checking and Zahid Hussain suddenly opened firing at the police officials as a result of which, the complainant, Ghulam Rasool, A.S.-I. Muhammad Arshad and Muhammad Yousaf sustained injuries. The culprits, after the occurrence, leaving one motorcycle and weapon of offence at the spot run away on the other motorcycle. Ghulam Muhammad succumbed to the injuries at the spot whereas Muhammad Arshad was taken to Nishtar hospital, Multan for treatment but he died in the hospital. Ghulam Muhammad and Abdul Majeed, constables who were present in the nearby also witnessed the occurrence and identified Zahid Hussain. The Investigating Officer of the case during the spot inspection, took into possession four empties of .30 bore pistol, one motorcycle bearing No,MNV-9470 with its registration book left by the accused at the spot and in addition to the remains of the two deceased and some articles of the injured witnesses he also took into possession one official motorcycle. The petitioner, who was a nominated accused and was identified by the witnesses at the spot, was also identified by them in the identification parade held in jail on 23-12-2000. Dr. Naseer Javed, Medical Officer (P.W.5)' conducted postmortem examination of the deceased and also medically examined the injured witnesses. The ocular account was furnished by Muhammad Mujeeb and Muhammad Yousaf, police constables. The Investigating Officer as well as the police officials who remained associated with investigation and the Magistrate who conducted identification parade of the petitioner in jail were also examined.
3. The petitioner in his statement under section 342, Cr.P.C. Denied the charge and pleaded that he was innocent and was substituted for unknown culprits.
4. Learned counsel for the petitioner has contended that according to the S.H.O. Of the concerned police station, he recorded the first statement of Muhammad Majeed, (complainant) under section 161, Cr.P.C. Whereas the case was registered on the basis of his statement recorded in the hospital which was the second statement, therefore, the registration of the case and preparation of the report under section 173, Cr.P.C. On the basis of the subsequent statement, would be of no legal value and sanctity and consequently, the trial on the basis of such report would be illegal. The second contention of the learned counsel was that the identification of the petitioner by the witnesses on the basis of his photograph available in the red book which was also published in the newspaper, was highly doubtful and no evidence was brought on record to prove that the photograph of petitioner was in fact available in the red book or it was actually published in the newspapers and that in any case, the petitioner being not personally known to the witnesses, his identification at the spot on the basis of his photograph would not be possible, therefore, in the given circumstances, it would be evidently suggested that the petitioner was ' substituted for unknown culprits. Learned counsel added that the identification parade of the petitioner was conducted in jail after about five months of his arrest and the Magistrate who supervised the identification parade in his statement before the Court has admitted that petitioner had raised an objection at the time of identification parade that in the intervening period, he was shown to the witnesses cn more than one occasion and that the identification of the petitioner by the witnesses in the Court would also be of no evidentiary value as he was regularly being produced before the Court, therefore, the witnesses, would have sufficient opportunity to see him and they must be familiar to his face. The learned counsel thus concluded that with the exclusion of evidence of identification of the petitioner, the remaining evidence would be relevant only to the extent of proving the happening of the occurrence in which the police officials sustained the injuries at the hands of unknown culprits. The learned counsel next submitted that the occurrence was reported in the newspapers and according to the news items, the culprits after firing at the police officials ran away which fact was proved by the reporter who got published the news relating to the occurrence in the local newspapers and was examined as defence witness. In nutshell, the learned counsel contended that the identification of the petitioner was not established beyond doubt and there was no other evidence, direct or circumstantial, to connect him with the commission of offence. Lastly, it was argued by the learned counsel that the High Court without discussing the evidence and drawing an independent conclusion, dismissed the appeal in a short cut manner on the basis of the contention raised by the learned counsel representing the State.
5. We have heard the learned counsel for the petitioner at length and also gone through the evidence with his assistance. The learned Judges in the High Court, after recording contentions of the learned counsel for both the sides concluded as under:- "After having heard the learned counsel for the parties and going through the record, we are of the considered view that the prosecution has fully proved its case. The appeal is devoid of any merit and is dismissed and the sentence of death is confirmed. Murder Reference is answered in the affirmative."
6. The perusal of judgment would show that the High Court instead of discussing the evidence on record point-wise and dealing with the contentions raised in the appeal separately in the light of evidence mixed its reasonings for dismissal of appeal with the argument of learned counsel for the parties and confused the matter. We having gone through the record find that despite the defect of clarity in the judgment, the material evidence was properly discussed and the conclusion drawn was not against the law and facts of the case, therefore, no prejudice was caused to the petitioner on merits.
7. It was a broad daylight occurrence which had taken place at 2 p.m. And the case was registered on the basis of statement of injured police officials recorded at 2-40 p.m. On the same day in the hospital without any delay. The petitioner was assigned the role of firing at the police official and was identified by the eye-witnesses on the basis of his photograph placed in the red book and also published in the newspaper. The petitioner was known terrorist, therefore, his photographs must have been brought on red book and the witnesses being police officials, having seen his photograph in the red book and also in the newspaper, could conveniently identify him as culprit.
This is correct that petitioner was not personally known to the complainant or the witnesses who claimed to have identified him at spot on the basis of his photograph but they had no reason for his substitution for the unknown culprits and there was also nothing on record to suggest that in the statement of the complainant promptly recorded in the hospital in which the petitioner was named as main accused and assigned the role of firing at the police officials was not based on truth. The defence has cross-examined the witnesses at length on the point of identification of the petitioner at the spot but nothing material could be brought on record to suggest a slight doubt qua his identification. The possibility of is identification due to the delay in holding the identification parade in jail in a case in which accused was not known to the witnesses before the occurrence, cannot be ruled out but no such possibility can be presumed in case of a nominated accused and in any case, the identification of an accused by the witnesses in the Court, cannot be doubted. The petitioner having been identified by the eye-witnesses at the spot was nominated in the F.I.R. As main culprit who opened firing at the scene of occurrence and was also identified in the Court, therefore, this direct evidence of unimpeachable character would be sufficient to prove his identity as an accused. The contention of the learned counsel that according to the news item published in the local newspaper, there was an encounter of police officials with the unknown culprits who after firing at the police officials, escaped from the place of occurrence and could not be identified at the spot, was also without any substance. The reporter who got published the news item appeared as defence witness and stated that he had no direct knowledge of the occurrence rather he got published the news item in the newspaper on the basis of the news already published in an evening newspaper but neither disclosed the name of the evening newspaper nor produced the news item published in said newspaper and thus, the publication of the news item in the newspaper at the most would be relevant to the extent of an encounter of accused with police officials but would not be relevant to prove or disprove the participation of the petitioner in the occurrence on his identification.
8. The learned counsel with reference to the statement of the S.H.O., contended that before recording the statement of complainant in the hospital, his statement under section 161, Cr.P.C. Was recorded at the spot and the case was registered after preliminary inquiry, therefore, there was not only the strong possibility of substitution but the trial was also defective. The contention has no force as the complainant who himself was injured immediately after the occurrence, informed the police control room on telephone about the incident and on the basis of this information, the police party while reaching at the spot, without wasting any time, removed the deceased and the injured to the hospital. The S.H.O. Probably due to some confusion, stated that he after removing the injured and deceased to the hospital, recorded the statement of Muhammad Mujeeb, under section 161, Cr,P.C. At the spot whereas factually only one statement of complainant was recorded at 2-40 p.m. In the hospital on the basis of which case was registered at 3-30 p.m. And the statement of none of the witnesses was recorded before registration of case. Muhammad Yousaf and Tayyab, (constables) who were on duty in uniform, sustained injuries in the occurrence whereas the remaining two police officials were in civilian dress, therefore, the presence of all the four witnesses at the spot was quite natural and free from any doubt. The witness describing the role played by the petitioner narrated the occurrence in detail in the manner in which it had taken place and corroborated each other on each material point and defence has not been able to dislodge their testimony or bring any material on the record to suggest that the eye-witnesses were not truthful and confidence inspiring.
9. We having made a detailed scru tiny of the evidence and heard the learned counsel for the petitioner at length, have not been able to find out any describable contradiction and discrepancy in the evidence or lacuna in the prosecution case creating doubt qua the participation and identification of the petitioner and his guilt, therefore, notwithstanding the minor discrepancies and contradictions in the statements of witnesses, the material facts on the basis of which guilt or innocence .Of the petitioner was to be determined, were established beyond doubt. The witnesses being member of police force were attacked when they were on patrol duty in the area, therefore, their presence at the spot was quite natural and they have no personal reason or motive against the petitioner to substitute him with unknown culprit of their own or at the instance of their superiors. The witnesses have consistently supported the prosecution case as set up in the F.I.R.
And without any omission or addition they have categorically stated that the petitioner and his companions while reaching at the scene armed with kalashnikovs, opened firing at police officials as a result of which Ghulam Rasool, A.S.-I. And Muhammad Arshad, constable, having sustained injuries, lost their lives whereas the complainant and Muhammad Tayyab, constable, luckily survived.
10. The direct and natural evidence of injured witnesses would sufficiently establish the charge against the petitioner and we have not been able to find out any lacuna or defect in the prosecution case creating a slight doubt qua the guilt of the petitioner. In the light of foregoing discussion, we do not find any substance in this petition which is accordingly dismissed. Leave is refused.