1. RAJA JALAL-UD-DIN, C J.---This Criminal Appeal has been preferred under section 410, Cr.P.C.
2. Against the judgment/order of the Anti-Terrorism Court Gilgit dated 17-6-2010 whereby the convicts/ appellants after having been found guilty under section 302/34 read with sections 6/7 ATA-1997 awarded death sentence with a fine of Rs.300,000 under section 544-A, Cr.P.C. And 10 years' R.I. Under section 324, P.P.C. And a fine of Rs. 100,000 and in default thereof to undergo 6 months' R.I. And the appellants were also convicted under section 13(d) of Arms Ordinance 1965 and awarded 7 years' R.I. With the benefit of section 382-B, Cr.P.C.
3. The case is outcome of an F.I.R. No. 34 of 2009 lodged on 15-2-2009 wherein one Muhammad Sharif son of Daulat Aman of Napura Basin states that on 15-2-2009 after attending the Majlis he along with Wajid Hussain, Salman Abbas, Sabir Hussain, Qurban Ali accompanied Sheikh Yaseen to drop him at Naroot village from Khoroot travelling in Suzuki carry which was driven by Manzoor Hussain.
4. One police man Iqbal was sitting in the front seat on guard duty. Near the floor mill of one Abdullah the vehicle was ambushed by Syed son of Gulbar, Nadeem son of Ahmad Khan, Ishtiaque son of Muhammad Latif, Mujib-ur-Rahman son of Aziz Ullah, Ishfaq son of Awal Khan, Zia Ullah son of Sakhi and Naeem Ullah son of Ibrahim Shah tried to stop the vehicle armed with Kalashnikovs and pistols. The driver did not stop the vehicle and speeded on. Resultantly the accused opened indiscriminate firing resulting in the death of Qurban All son of Shaban and injured Sabir Hussain son of Khuda Dad. 'The accused followed the vehicle continuing their fire. The police man Iqbal sitting in the vehicle also opened Aerial firing due to which the lives of the remaining occupants of the vehicle were saved. The conspiracy of the act was hatched by Naqeeb son of Abdullah, Nazeem son of Samad Khan, Imran son of Abdul Manan and Mustafa son of Sakhi of Napura. The motive disclosed is stated to be sectarian hatred and no other enmity existed between the parties.
5. Challan of the case was put up for trial. The accused Muhammad Mustafa, Nazeem Khan, Muhammad Imran and Jamsheed were released by the police under section 169, Cr.P.C. After the completion of the trial the convict Muhammad Ishtiaq and Mujeeb-urRahman were convicted as aforesaid and the remaining accused acquitted.
6. The crux of the pleadings advanced by the counsel for the convicts/appellants are challenged on the ground that initially 12 persons were charged in the F.I.R. For the commission of the offence as well as abetting the same. Seven were assigned the role of direct participation in the commission of the offence by opening fire shots on the vehicle which was carrying the complainants and due to the identical and consistent part of the seven charged accused only two have been committed and their role, as alleged, is similar hence the pick and choose procedure adopted is unjustified and unprecedented. The story narrated by the prosecution is full of loopholes and unbelievable.
7. The prosecution story narrates that three persons namely F.C. Iqbal the gunman, Sheikh Yaseen and the driver of the carry Manzoor Hussain were sitting in the front row and who in the circumstances would have been the best witnesses of the occurrence as they were seated in a place which could give a clear view of the situation by the headlights of the vehicle. The said witnesses have not been examined by the prosecution and as such inference can be drawn against the prosecution for concealing of facts and introduction of new material. The prosecution has put forward witnesses who are deposing falsely as they were seated in the back of Suzuki carry and it is impossible for them to see the occurrence. The natural witnesses have not been relied upon by the prosecution.
8. The next natural and best witness could have been the injured himself. The statement of the injured Sabir Hussain has been recorded after 21 days of the occurrence and the same does not disclose that the convicts/appellants had participated in the commission of the offence. The said injured Sabir Hussain has deposed in Court during the trial that the present convicts/appellants had committed the offence as he had recognized them in the headlights of the vehicle. The statement of P.W. Sabir Hussain is full of loopholes and confrontations whose statement cannot be taken as a ground for conviction and should not have been relied upon. If the statement of Sabir Hussain is read along with the statement of P.W. I.P. Fida Ali then it becomes quite clear, that the veracity of the said witness is of no consequence as he has introduced new material which was not disclosed at the time of his previous statement recorded by the police. The counsel also challenges the statements of the P.Ws. On the ground that not a single empty shell of a Kalashnikov has been recovered from the spot of occurrence whereby the statements of the witnesses are all negated.
9. The empty shells of the Kalashnikov belonged to the F.C. Iqbal who had opened aerial fire shots.
10. The recovery of the weapon of offence from both the convicts/appellants has taken place as per record on 5-3-2009. Both the witnesses do not belong to the Police Station Gilgit but have been planted from District Ghizar police station. The joint recovery is of no legal consequence and the same is the result of dishonest investigation. No local of the area has been cited as a recovery witness and the ingredients of section 103, Cr.P.C. Have not been fulfilled. The recoveries were not sealed. The site plan drawn does not disclose the position of the P.Ws. From where the witnesses had witnessed the occurrence and the spot where each of the convicts/appellants was standing at the time of the occurrence. The I.P. Rajab Ali has been abandoned. The empty shells are not proved to have been -recovered from the place of occurrence and neither have they been exhibited. The confessional statements attributed to the convicts was recorded after 28 days of the arrest. The said statements were recorded by S.P. Ali Sher who has not fulfilled the conditions as required and neither the statements were voluntary and the confessional statement under section 21-H of ATA 1997 itself is of no consequence in the presence of Judicial Magistrates who were available within the jurisdiction. Counsel for the convicts/appellants relied upon the following case laws.
1. PLD 1963 (W.P) Karachi 805, 2. 1983 SCMR 1292,
3. PLD 1990 Peshawar 10, 4. 1990 PCr.LJ 1018, 5.
11. 1998 SCMR 1156, 6. 2006 SCMR 1846, 7. 2006 YLR 3213 Karachi, 8. 2006 MLD 480, 9. 2006 PCr.LJ 1671 Quetta, 10. 2007 YLR 954 (Lahore), 11. 2008 SCMR (sic.), 12. 2009 PCr.LJ 1226 (Karachi), 13. 2010 SCMR 97, 14. 2010 SCMR 385, 15. 2010 PCr.LJ 211 (Karachi).
12. The Deputy Advocate General appearing on behalf of the State pleads that the convicts have rightly been sentenced to death as they deserve the same. Indiscriminate act of the convicts/appellants has disturbed the harmony of the area and as such their conviction and trial under Anti-Terrorism Act 1997 is fully justified. The motive for the offence is purely sectarian as there is no bone of contention between the parties. The modus operandi of the convicts/appellants purely points towards sectarian hatredism. There is no motive put forward by the defence for the false implication of the convicts. The complainants have no personal axe to grind to falsely implicate the convicts in a case of capital punishment. The matter regarding the statement of P.W.
13. Injured Sabir Hussain recorded after 21 days was not in a position to give the correct version of the case as he had received bullet shot injuries and his statement recorded in the trial Court is authentic and can be fully relied upon. The star witness of the case namely P.W. Salman Abbas has given direct evidence against the convicts and his statement recorded under section 161, Cr.P.C. On 16-2-2009 is prompt and genuine which cannot be brushed aside lightly. The recoveries of the weapons of offence and the forensic test connect the accused to the commission of offence. The Article 17 of Qanoon-e-Shahadat gives the option of examination of witnesses or dropping them.
14. No inference can be drawn against the prosecution. The convicts have rightly been convicted and their sentence may be maintained. The Dy.A.G. Relied upon 1987 SCMR 960, 1990, PCr.LJ 288; PLD 1995 SC 1, 1996 SCMR 908, PLD 2002 SC 558, 2003 YLR 2175 (Karachi), 2004 SCMR 331 SC, 2006 SCMR 1567, 2006 SCMR 1801 (S.C.), 1990 PCr.LJ 1765 (Karachi) and PLD 1992 (Peshawar) 56.
15. We have gone through the case file and the material placed on record with the able assistance of counsel for both the parties. The F.I.R. Has been lodged well within time of the occurrence after a delay of only half an hour of the incident. The F.I.R. Lodger immediately after taking the injured and the deceased to the hospital has immediately rushed to lodge the F.I.R. The contents of the F.I.R.
16. Disclose the names of the injured, the deceased and the names of the witnesses. The F.I.R. Also discloses the type of the weapons used in the offence. A certain number of people were implicated for the abetment of the incident. The narration in the F.I.R. Regarding the facts of the case has been put{C93B1AFC-B35B-4691-8CAA-9A3A8997AC7F}forward in a very natural manner and is confidence inspiring. During the cross examination minor improvements have been brought on record which are not of the intensity to shatter the veracity, of the said witnesses. It is very natural for the witness in the dark to identify an individual by the headlights of Suzuki carry. The accused as well as the witness belong to the same locality and the question of mistaken identity does not arise.
17. One Sabir Hussain is one of the witnesses who was injured and his statement was also recorded in the connection. He was examined under section 161, Cr.P.C. After a delay of 19 days in which he has not charged the convicts/appellants, but in his examination in the trial Court he has fully supported the prosecution case., The explanation given is that in the initial stages of his injury and recovery the witness was not in a position to narrate a detailed version of the occurrence. The P. Ws. Wajid Hussain and Salman Abbas have fully deposed against the convicts and the role played by them as well as the arms used for the commission of the offence by the convicts are identified. The two very important recovery witnesses examined have proved the recoveries of the weapons used from the convicts. They are both impartial police personnel who do not belong to the locality and do not have any axe to grind. Both belonged to District Ghizar from where they had accompanied the investigating authority in connection of the same. In the light of the peculiar circumstances of the City it is practically impossible to find witnesses of the locality but the preparation of the recovery memos does not suffer from any infirmity. Neither is it a case of joint recovery as two different weapons of offence have been recovered on the pointation of the convicts. The recovered empty shells have matched the weapons of offence used and as such proved against the convicts/appellants. Regarding the motive it is found that the incident is a result of sectarian hatred between the parties as many a case has occurred with in the vicinity of the complainant and the convict party. Murders and attempt murders have occurred in the past.{41A629F1-41FA- 461B-9636-80DF201CAA0F}The non-examination of the other occupants of the vehicle is not necessary when there is already a sizeable amount of material placed by the prosecution against the convicts on record. It is the privilege of the prosecution to adduce or abandon any witness which it thinks as unnecessary. The confessional statements recorded under section 21-H of ATA by the S.P. May by itself not constitute a material evidence on which a criminal case can be based for conviction. The sole testimony of a confession recorded under section 21-H of ATA in a criminal case thrown out. It would be very unsafe to rely on a confessional statement recorded by a police officer, but it may be read as a piece of evidence along with the other material on record.
18. In the light of the statements of the witnesses examined backed up by the motive and the weapons of offence proved against the convicts/appellants. We have no hesitation to uphold the sentence awarded to the convicts/appellants by the trial Court. The appeal is hereby dismissed.
19. The murder reference made by the Judge Anti-Terrorism Court Gilgit-Baltistan under the provisions of section 374, Cr.P.C. Read with section 25 of ATA is confirmed