ANWAR ZAHEER JAMALI, J. -- In this criminal appeal, with the leave of this Court, common judgment dated 23.8.2001 passed by a learned Division Bench of the High Court of Sindh in Special Criminal Anti-Terrorism Appeal No, 59/1999 and Confirmation Reference No, 20 of 1999, has been challenged by the State, whereby conviction and sentence awarded to both the respondents by the Trial Court vide its judgment dated 24.6.1999 was set aside, and they were acquitted of the charges.
2. Briefly stated, as per prosecution story, on 27.7.1998 at 1715 hours, while the complainant party from Abdullah Shah Ghazi Rangers consisting of Lt. Col. Zafar Iqbal, Lance Naik Fayyaz Ahmed, Constables Nazar Muhammad and Rashid Mahmood were patrolling in their official jeep, No, 91- 6788 driven by Lane Naik Umar Hayat, ^ near Sindh Laboratory/Ashfaq Memorial Hospital, University Road, Karachi, two motorcyclists riding on Kawasaki motorcycle bearing registration No, KTR 2682, followed and fired at them with their respective arms in a discriminate manner, with the result that Lance Naik Fayyaz Ahmed sustained one bullet injury and died on the spot. Both the respondents/nominated accused in the F.I.R, were apprehended by the Rangers on the spot along with the crime weapons and accordingly such F.I.R. No, 235 of 1998 was lodged at Police Station, Aziz Bhatti Karachi (East) by Lt. Col. Zafar Iqbal, Wing Commander of 90th Wing of Abdullah Shah Ghazi Rangers, who was heading the said ^ patrolling party of Rangers.
3. After completion of investigation of the crime, both the respondents were sent up for trial before the Judge, Anti-Terrorism Court No, II, Karachi, through Special Case No, 147 of 2009, where, on 10.6.1999, they were charged as under:-- "That on or about 27.7.1999, at 5.15 p.m., near Sindh Laboratory, on the University Road, Gulshan-e- Iqbal, Karachi, while you accused Muhammad Yasin were armed with one Rifle of .222 bore and a TT Pistol of .30 bore, and when you accused Waseem Ahmed > Zaidi were armed with TT Pistol of .30 bore, while riding on a motorcycle, you fired at law enforcement agency, i,e, Abdullah Shah Ghazi, Rangers, Karachi, headed by Lt. Col. Zafar Iqbal Khan, Wing Commander of 90th Wing, in order to strike terror, create a sense of fear and insecurity in people and that the said act was also likely to strike terror and created sense of fear and insecurity in people in such a manner that it was likely to cause death and injuries to the said Rangers Patrolling Party and that you also intended to prevent them from discharging their lawful duties of patrolling and further that as result of your firing at the Rangers Party, Wireless Operator LNK Fayyaz Ahmed S/o Muhammad Ameen, Buckle No, 18500, thus as a result of your above-mentioned act death and occurred and that you committed an act of terrorism as defined in Section 6 and punishable under sub-clause (a) of Clause (i) of Section 7 of the Anti-Terrorism Act, 1997, within my cognizance.
' I further charge you both the above-named accused Muhammad Yasin and Wasim Ahmed that on the above- mentioned date, time and place, you had voluntarily caused the death of LNK Fayyaz Ahmed S/o Muhammad Ameen, Wireless Operator, one of the members of the Abdullah Shah Ghazi died on account of these injuries and that you thereby committed an offence of Qatl- e-Amd of the said LNK Fayyaz Ahmed, punishable u/Ss. 302/34, PPC and attempt to commit Qatl- e-Amd of the members of the Rangers Force, including Lt. Col. Zafar Iqbal, LNK Umar Hayat, Constables, Nazar Muhammad and Rashid Mehmood, punishable u/Ss. 324/34, PPC and within my cognizance.
' And I hereby direct you that you be tried by me on the above-mentioned charges."
4. On denial of the respondents to admit their guilt, the prosecution was called upon to lead its evidence in the case, whereupon following seven witnesses were examined in the case:--
(i) PW-1 Nazar Muhammad, Constable, Abdullah Shah Ghazi, Rangers, eye-witness of the occurrence, who produced the memo, of arrest and recovery of weapon as Ex.P/1 mashirnama of place of occurrence Ex.P/2.
(ii)PW-2, Rashid Mahmood, Constable, Abdullah Shah Ghazi, Rangers, other eye-witness of the occurrence, who was also the other signatory of Ex.P/1.
(iii)PW-3, Umar Hayat, Lance Naik, Abdullah Shah Ghazi, Rangers, the third eye-witness of the occurrence. This witness produced copy of inquest report , Ex.P/3, statement of complainant Ex.PM and copy of F.I.R. Ex.P/5.
(iv)PW-4, Shakeek Ahmad, Inspector of Police and I.O. of the crime. This witness produced report of Ballistic Expert regarding the crime weapons as Ex.P/10.
(v)PW-5, Abdul Waheed, Assistant Chemical Examiner, Forensic Science Laboratory, Karachi. This witness produced Chemical Examiner's report Ex.P/6.
(vi)PW-6, Dr. Abdul Khaliq, Senior Medical Officer, JPMC, Karachi, who had carried out postmortem of the body of deceased. He produced such relevant documents as Ex.P/7, P/8 and P/9.
(vii) PW-7, Lt. CoL Zafar Iqbal, Wing Commander, 90th Wing of Abdullah Shah Ghazi Rangers, complainant of the crime and 4th eye-witness of the occurrence.
5. After completion of prosecution evidence, Section 342, Cr.P.C, statements of both the respondents were recorded before the Trial Court on 21.6.1999 as Ex.21 and 23 respectively, wherein they admitted their arrest by the Rangers/Police from the place of occurrence, but denied their involvement in the commission of crime, and pleaded their innocence and false involvement in the commission of crime.
6. The Trial Court, after hearing the arguments of the parties' counsel pronounced its judgment dated 24.6.1999, thereby awarding conviction to both the respondents and awarding them the following sentences:-- "In the result, I award death sentence to each of the accused for offence u/S. 7 of the Act. They shall be hanged by neck till they are dead. For the offence u/S. 302(b), PPC they are sentenced to undergo imprisonment for life and to pay fine of Rs, 2,00,000/- each (two lac each), in default thereof to undergo R.I. for 5 (five) years more. For the offence u/S. 324, PPC, for having attempted on the lives of the P.Ws., the accused are sentenced to undergo imprisonment for 10 (ten) years and to pay fine of Rs, 50,000/- each (fifty thousand each), failing whereby they should suffer R.I. for 3 (three) years more. Out of the fine, if deposited Rs, 2,00,000/- (two lac) may be given to the heirs of the deceased LNK Fayyaz Ahmed, as compensation u/S. 544-A, Cr.P.C, and the remaining amount may be deposited in the Government Treasury. The accused are present in custody, they are remanded to serve out the sentences. The R & Ps may be submitted to the Hon'ble High Court u/S. 374, Cr.P.C, for confirmation of the death sentence."
7. Both the respondents, aggrieved by the judgment of their conviction passed by the Trial Court, came before the High Court of Sindh through an appeal under Section 25(1) of the Anti-Terrorism Act, 1997, being Special Criminal Anti-Terrorism Appeal No, 50 of 1999, which was taken up for hearing on 15.8.2001 along with Criminal Confirmation Reference No, 20 of 1999 made by the Trial Court. The learned Division Bench, after hearing the arguments of the parties' counsel, passed its impugned judgment dated 23 8.2001, thereby setting aside the impugned judgment of the Trial Court and ordered acquittal of both the respondents.
8. While hearing the criminal leave to appeal petition in this case, on 6.11.2001 some relevant facts of this case were recorded in the said leave granting order, and leave was granted in the petition in the following terms:-- "6. Leave is granted to re-appraise the evidence with a view to examine the contentions raised by the learned Additional Advocate General that the High Court has misread the material that was available before it and that the testimony of Lt. Col. Zafar Iqbal supported by other eye-witnesses has been discharged on spacious grounds rendering the impugned judgment wholly artificial, shocking and ridiculous."
9. Mr. Saleern Akhtar, learned Additional Prosecutor General, Sindh, making his submissions in this appeal vehemently contended that overwhelming, confidence inspiring evidence of natural eye- witnesses of the occurrence was discarded by the High Court through its impugned judgment in a very fanciful and sketchy manner, as evident from the impugned judgment, In this regard, he made particular reference to the line of reasonings recorded by the learned Division Bench to discard the evidence of three eye-witnesses, PWs Nazar Muhammad, Rashid Mahmood and Umar Hayat, who were disbelieved on the sole ground that they being employees of Rangers were subordinates to the Commanding Officer/complainant, thus, not expected to differ with his evidence. Learned Additional Prosecutor General, Sindh also pointed out that, all the material aspects of the case were proved through ocular evidence of four prosecution witnesses, PW-1, PW-2, PW-3 and PW-7, but the same were over-looked by the learned Division Bench without assigning any cogent reason for this purpose, though by unshaken evidence of these natural and independent witnesses, role of direct firing at the deceased and arrest of the two respondents from the spot along with crime weapons was fully proved. So also the fact that they were the only two accused, duly armed with weapons, available at the place of occurrence, who targeted the official jeep of Abdullah Shah Ghazi Rangers at the relevant time, which resulted in fatal fire-arm injury to deceased Lance Naik Fayyaz Ahmed. He further submitted that failure of prosecution to prove the fact that who owned the motorcycle used by the respondents during the commission of crime or there being any relationship between the two accused or otherwise were the lame excuses, which found favour of the learned Division Bench to record the acquittal of respondents, though these facts had no material bearing to the facts and circumstances of the case, to the extent that two respondents were caught fed-handed from the spot along with crime weapons, from which they had fired, and committed Qatl-e-Amd of Lance Naik Fayyaz Ahmad, while getting down from the jeep. Learned Additional Prosecutor General, in order to show fanciful reasonings of the High Court contained in its impugned judgment, also read before us the contents of the F.I.R, which reveals specific mentioning of the fact about lodging of separate F.I.Rs, about the illegal arms recovered from the possession of the two respondents, while the learned Division Bench in the High Court contrary to it, had recorded that two respondents were not prosecuted for possession of un-licensed armed allegedly recovered from them. The substance of the arguments of the learned Additional Prosecutor General was that the impugned judgment of the learned Division Bench of the Sindh High Court is result of patent misreading and non- reading of evidence and the reasons assigned for recording acquittal of two respondents are also fanciful, contrary to case record and unwarranted by law.
10.Conversely, Khawaja Naveed Ahmed, learned ASC for the respondents strongly supported the impugned judgment. His submission was that the prosecution, during investigation of the crime, has left many important aspects of the case unattended, and thus, benefit of such lacunas in the prosecution case has been rightly extended to the respondents, thereby setting aside the judgment of conviction passed by the Trial Court and ordering their acquittal. Learned counsel, when confronted with the question whether there was any type of animosity or grudge between the complainant and other staff of Abdullah Shah Ghazi Rangers towards the respondents or even they were earlier known to them, so as to furnish some justification for their false implication in the crime, he candidly conceded that there is nothing on record to show that there was any such animosity existing with the respondents, and even this was not their defence before the Trial Court.
He also did not dispute about the arrest of the two respondents from the place of occurrence.
However, in this regard he agitated that though number of private persons had collected at the place of occurrence, but no independent witness was examined, although name of one independent witness Javed was also disclosed by PW-6 Shakeel Ahmed, Inspector of Police, who reached at the place of occurrence soon after the occurrence.
11.We have carefully considered all the submissions made before us by the parties' counsel, and minutely perused the whole case record, which reveals that it was a day time occurrence, which had taken place at University Road, Karachi near Sindh Labs/Ashfaq Memorial Hospital, and resulted in Qatl-e-Amd of Lance Naik Fayyaz Ahmad due to one fire-arm injury. The prosecution has attributed the role of firing on Rangers patrolling party only on the two respondents and none else. Admittedly, both of them were arrested on the spot and there is full consistency in the depositions of all the four eye-witnesses regarding happening of events, which resulted in such callous crime at the hands of two respondents. Trial Court, while passing its detailed judgment, had taken notice of all the prosecution evidence in detail and rightly concluded that the case of prosecution against two respondents was proved beyond shadow of any reasonable doubt through ocular evidence, coupled with the recovery of crime weapon from the possession of respondents soon after their arrest on the spot. For this purpose, the Trial Court has also discussed in detail all the relevant pieces of evidence in a prudent manner, In contrast to it, learned Division Bench, in its impugned judgment, has not touched the evidence of any of the four eye-witnesses examined by the prosecution and brushed aside/discarded it for fanciful and conjectural reasons, having no legal sanctity. Not only this, but the Appellate Court/High Court, while recording acquittal of both the respondents, was swa yed away and influenced with h those aspects of the case, which had no material bearing or relevancy of the case of prosecution regarding the commission of offence under Section 302, PPC read with Section 7(1 )(a) of the Anti-Terrorism Act, 1997 by the respondents.
12.So far as the guilt of present two respondents is concerned, with the assistance of the learned counsel, we have also gone through the evidence of all the four eyewitnesses examined by the prosecution, and noticed that not only in their evidence there is element of truthfulness and complete consistency, but they have remained unshaken in cross-examination in a very upright and honest manner. f These witnesses admittedly have 'no animosity towards respondents to depose falsely before the Trial Court for proving their guilt. Having reached to this conclusion, we have no option, but to set aside the impugned judgment of the Sindh High Court dated 23.8.2001, and to convict both the accused for commission of offence under Section 302(b), PPC as well as under Section 7(1 )(a) of Anti-Terrorism Act, 1997.
13.Foregoing are the reasons for our short order announced in this appeal today, whereby this appeal was allowed.