MUHAMMAD SHOUKAT and others vs THE STATE

' IMAM BUX BALOCH, J.---This judgment will dispose of Special Appeals Nos.22 of 2006, 23 of 2006, 24 of 2006, 25 of 2006 and Confirmation Case No.10 of 2006 as they arise out of common judgment.

2. The appeals are directed against the judgment dated 21-8-2006 passed by Special Judge Anti- Terrorism Court-II, Karachi Division. The appellants have been convicted and sentenced as under:- -

(a) For causing callous offence of brutal Qatl-e-Amd of innocent deceased persons namely Khadim Hussain son of Hawaldar Ali Muhammad, Muhammad Ali son of Ali Gohar, Sadiq Hussain son of Ghulam Nabi, Muhbai Ali son of Muhammad Ali, Yawar Abbas son of Ameer Hamza, Ramzan Ali son of Khuda Yar, Pervez son of Ghulam Fareed, Ishtiaq Ali son of Mushtaq Ali and Muhammad Ali son of Ali Muhammad, an offence punishable under section 302(b) r/w 34.13PC and r/w section 7(a) of the Anti--Terrorism Act, 1997, all the three accused persons are awarded death sentence as ta'zir on each count. They are directed to be hanged by neck till they are dead;

(b) For causing Jurh Ghayr Jaifah Munaqqilah to injured Muhammad Essa an offence under section 337-F(vi) r/w 34, P.P.C. And r/w section 7(c) of the Anti-Terrorism Act, 1997, all the three accused persons are sentenced to suffer R.I. For 7 (seven) year as ta'zir and to pay fine of Rs.30,000 (thirty thousand) each or in default each of them is ordered to undergo R.I. For 6 (six) months more;

(c) For causing Jurh Jaifah to injured Basharat Hussain an offence punishable under section 337-D r/w 34, P. P. C . And r/w section 7(c) of the Anti-Terrorism Act, 1997, all the three accused are sentenced to suffer R.I. For 10 (ten) years as ta'zir and to pay fine of Rs.50,000 (fifty thousand) each or in default each of them is ordered to undergo R.I. For 6 (six) months more;

(d) For causing two injuries declared as Jurh Ghayr Jaifah Mutalahimah to injured Sabir Hussain, an offence punishable under section 337-F(iii) r/w 34 and read with section 7(c) of the Anti- Terrorism Act, 1997, all the three accused persons are sentenced to suffer R.I. For 3 (three) years as ta'zir and to pay fine of Rs.10,000 (ten thousand) each for each injury or in default each of them is ordered to undergo R.I. For 6 (six) months more;

(e) For causing Jurh Jaifah to injured Sabir Hussain, an offence punishable under section 337-D r/w 34, P.P.C. And r/w 7(c) of the Anti-Terrorism Act, 1997, all the three accused are sentenced to suffer R.I. For 10 (ten) years as ta'zir and to pay fine of Rs.50;000 (fifty thousand) each or in default each of them is ordered to undergo R.I. For 6 (six) months more; (0 For possessing an unlicensed Kalashnikov, its magazine and 30 live bullets, an offence in contravention of section 9 and punishable under section 13(e) of the Pakistan Arms Ordinance, 1965, accused Abdul Wahab Afghani is sentenced to suffer R.I. For 7 (seven) years and to pay fine Rs.50,000 (fifty thousand) or in default to undergo R.I. For 6(si.x) months more; ' The sentence of death awarded to the accused persons is subject to confirmation by the Hon'ble High Court of Sindh, Karachi, as provided under section 374, Cr.P.C. And all other sentences are directed to run concurrently with benefit of section 382-B, Cr.P.C.

(g) All the three accused persons are directed to pay compensation of Rs.1.00,000 (one lac) to the legal heirs of each nine deceased persons named above as provided under section 544-A, Cr.P.C.

In case of-their failure to pay the compensation each of them shall have to undergo R.I. For 6(six) months more; ' The amount of compensation, if paid, be given to the legal heirs of the deceased persons and the ' amount of fine if realized, Rs.50,000 (fifty thousand) be given to each of the injured persons named above and the remaining amount of fine be deposited in Government Treasury;

3. Precise' facts of the prosecution case are that on 22-2-2003 at 9-00 p.m. F.I.R was registered on the basis of 154, Cr.P.C. Statement of complainant Mohsin Ali son of Muhammad Ali Moghal resident of House No.364-A Salman Parsi Society, Malir Halt, Karachi. It is stated by the complainant that he is residing at the above address along with his family and running a Hotel adjacent to a mosque Al-muntazir Almehdi situated at Salman Parsi Society. On the fateful day he was present at his Hotel, along with his employee Pervez son of Ghulam Faced. He belongs to Shia Sect of Islam. Few minutes prior to Magrib Azan people of Shia Sect were waiting outside the mosque. At about 6.30 p.m. Three unknown persons came on .a Honda 125 motorcycle, parked in front of his Hotel. Pillion riders were holding Kalashnikovs in their hands alighted and started indiscriminate firing at the Namazeez (offering prayer) available in front of the mosque, due to fear at about 20/25 persons entered into his hotel to take shelter in order to save their lives but the culprits also fired at them in his Hotel. In consequence of indiscriminate firing 15 persons sustained serious injuries. His employee Pervez who was present at Tandoor and one Muhammad Ali son of Ali Muhammad also sustained bullet injuries. After firing, the culprits escaped away on the said motorcycle. On hearing hue and cries neighbourers attracted, who shifted the injured persons in private vehicles to Jihnah Hospital Karachi. Due to firing Khadim Hussain son of Hawaldar Ali Muhammad expired on the spot and Muhammad Ali son of Ali Gohar, Sadiq Hussain son of Ghulam Nabi, Mohabat All son of Muhammad Ali, Yawar. Abbas son of Ame.Er Hamza, Ramzan Ali son of Khuda Yar, Pervez son of Ghulam Fareed, Ishtiaq Ali son of Mushtaq Ali succumbed to the injuries on the way to the hospital.

Muhammad Ali son of Akhtar Ali son of Hameed Shah, Hamid Ali son of Khuda Yar, Shamsullah son of Amir Hamza, Imtiaz Hussain son of Sulleman, Sabir Hussain son of Ali Gohar, Muhammad Essa son of Zeenat Shah sustained injuries. During treatment injured Muhammad Ali son of Ali Muhammad also succumbed to his injuries at the Jinnah Hospital, Karachi. The culprits were young persons aged about 20/25 years, one was wearing white Shalwar and Kamiz, fair colour, middle height, the other was wearing Jeans Paint and check shirt, middle height, while the third who remained sitting on the motorcycle was also wearing Shalwar Kamiz and having black beard.

Muhammad Shafi son of Amir Hamza, Muhammad Hussain son of Muhammad Hassan Pesh Imam, Muhammad Abbas son of Shahwar and some other persons were also available and saw the incident. Complainant further stated that nine persons had been killed and ten persons sustained injuries due to firing.

4. During investigation SIP Abdul Rasheed of Police Station Jamshed Quarter informed DSP Investigation on telephone that accused Abdul Wahab alias Khalid alias Jamil son of Ali Khan Afghani was arrested by Khwaia Ajmeer Nagri Police in Crime No.64 of 2003 under sections 397, 34, P.P.C., Crime No.65 of 2003 under sections 353, 34, P.P.C. And Crime No.66 of 2003 under section 13(e) Arms Ordinance, who during interrogation has admitted to have committed the instant offence and on his pointation crime weapon i.e. Kalashnikov has been recovered for which separate Crime No.29 of 2003 under section 13(e) of Arms Ordinance, 1965 was registered against him at Police Station Model Colony. On receiving such information SIP Rasheed Ahmed went to Police Station Jamshed Quarter. Appellant Abdul Wahab Afghani during interrogation disclosed that the names of his companions were to be Shaukat alias Javed alias Chand . And Shah Nawaz alias Irfan alias Usman and admitted that they had gone to Mosque Al-muntazir Al-mehdi on a red colour motorcycle Registration No. MNR-1357 made Honda CD-70 and had fired at the persons of Shia Sect,, and a Kalashnikov, recovered on his pointation was used in the commission of the offence. He further disclosed that he and his companions belonged to Lashkar-e-Jhangvi and it is their mission to kill persons of Shia Sect and they have committed several similar offences.

5. The Investigating Officer formally arrested him in the instant case on 11-3-2003. Appellant was put to identification parade on 12-3-2003 in which he was identified by the eye-witness Muhammad Hussain, Muhammad Shafi, Gul Abbas and Muhammad Abbas. According to the witnesses appellant was armed with Kalashnikov and was firing. On 24-3-2003 the Investigating Officer got recorded 164, Cr.P.C. Statements of. The witnesses and injured witnesses in presence of appellant/ accused Abdul Wahab. On the same day injured Basharat Ali also identified Motorcycle bearing Registration No. MNR 1357 which was recovered from the possession of appellant Abdul Wahab at the time of his arrest. The Investigating Officer sent empty shells of Kalashnikov - ecovered from the place of incident along with Kalashnikov recovered on the pointation of 'accused Abdul Wahab to Forensic Science Laboratory for report. The Investigating Officer also sent bloodstained earth recovered from the place of incident to chemical examiner. The Investigating Officer then submitted Charge Sheet No.32 of 2003 before the learned Incharge Administrative Judge ATC's on 14-4-2003 and shown appellant Shah Nawaz alias Irfan alias Usman and Shaukat in column of absconders. After adopting necessary formalities appellant Shah Nawaz and Shaukat were declared as proclaimed offenders.

6. The case was notified to be tried inside the jail hence, the formalities under section 265(c), Cr.P.C.

Were made through Superintendent Central Prison, Karachi to the accused. Mr. Muhammad Ashraf Khan Moghal was appointed to defend the case of accused Abdul Wahab on State expenses as such he was also supplied copies of case papers under section 265(c), Cr.P.C. After that, Mr. M.R Syed Advocate filed his vakalatnama on behalf of the accused Abdul Wahab. Mr.Aamir Mansoob Qureshi advocate was appointed to defend absconding accused Shah Nawaz and Muhammad Shaukat on State expenses as such case papers were also supplied to him.

7. On 22-10-2003 accused Shah Nawaz was arrested by Inspector Muhammad Yousuf Awan SIO Sher Shah. Since the accused Shah Nawaz was declared as absconder, therefore, on 5-11-2003 at 10-30 p.m. He was formally arrested from police lockup of AVCC Garden where he was confined in connection with some other case. On 14-11-2003 he was put to identification parade held under the supervision of Mrs. Zubiha Rizwan VXII Judicial Magistrate Karachi East, Link Magistrate of the Court of XIX Judicial Magistrate Karachi East where eyewitnesses Muhammad Shafi, Muhammad Abbas and Gul Abbas identified him to be one of the culprits of the crime, therefore, the Investigating Officer submitted charge Sheet No.32-A/2003 dated 20-11-2003 before the learned Administrative Judge of ATCs Karachi showing accused Abdul Wahab and Shah Nawaz in custody and Shaukat alias Javed alias Chand as absconder. On 14-1-2004 proceedings under section 265(c), Cr.P.C.

Have been made. Trial regarding inside jail trial of accused Shah Nawaz was also issued. Charge was framed.

8. At the trial, prosecution examined following witnesses i.e. P.W.1 A.S.-I. Rana Wakeel Ahmed as Exh.18, P.W.2 PC Javed Mahmood Exh.20, P.W.3 SIP Muhammad Iqbal, Exh.21, P.W.4 Dr. Abdul Shakoor MLO JPMC Exh.23. During trial on 9-5-2005 appellant/accused Muhammad Shaukat alias Chand alias Javed was arrested by SIP Tarique-ul-Islam in connection with Crime No.78 of 2005 and Crime No.79 of 2005 of Police Station Mahmood Abad. During arrest of appellant/accused Shaukat, two pistols of .30 bore Nos.37198 and 37031 each loaded with five live bullets and another pistol of .30 bore without number loaded with two live bullets were recovered. Since the appellant/accused Shaukat was shown as absconder in this case, therefore, on 17-5-2005 while he was confined in the lockup of TIO Jamshed Quarter he was interrogated by IO/SIP Abdul Rasheed and formally arrested him in this case under a memo. On 20-5-2005 he was put in identification parade held under the supervision of Mr. Ghulam Farooque, IX-Judicial Magistrate, Karachi East, where P.Ws Muhammad Shafi, Gul Abbas and Muhammad Essa identified him to be one of the culprits of the offence.

Consequently, the Investigating Officer submitted third Charge Sheet No.26 of 2005 on 25-5-2005.

After ,completing formalities under section 265-C, Cr.P.C. The charge was framed at Exh.4 against all the appellants

9. During trial, prosecution examined Dr. Abdul Shakoor P.W.1 at Exh.9. He has produced postmortem report of deceased Ramzan Ali at Exh.10, postmortem report of deceased Pervez son of Ghulam Famed at Exh.11, postmortem report of deceased Yawar Abbas son of Ameer Hamza at Exh.12, postmortem of deceased Sajjad Hussain son of Ghulam Nabi as Exh.13, postmortem report of deceased Muhabat' Ali son of unknown at Exh.14, postmortem report of Muhammad Ali son of Ali Gohar at Exh.15. Postmortem report of deceased Ishtiaque Ali son of Mushtaque Ali at Exh.16. Dr. Kaleem. As P.W.2 at Exh.17, he has produced Medico-legal Certificate of injured Sabir Hussain son of Ali Gohar at Exh.18, Medico-legal Certificate of injured Zahoor Ahmed son of Shah Mirza at Exh.19, Medico-legal Certificate of Imtiaz son of Sulleman at Exh.20, Medico-legal Certificate of injured Basharat Hussain son of Hidayat Ali as Exh.21. Medico-legal certificate of injured Shamsullah son of Amir Hamza at Exh.22, Medico-legal Certificate of injured Muhammad Ali son of Khuda Yar at Exh.23, Medico-legal. Certificate of Rashid Hussain son of Muhammad Essa at Exh.24, Medico-legal Certificate of Sabir Hussain son of Ali Gohar who was again referred for surgery. He was operated and another Medico-legal Certificate was issued and the same was produced at Exh.25. He also produced medico-Legal Certificate of Muhammad Ali son of Ali Muhammad at Exh.26 who during treatment expired in the Casuality Department on 23-2-2003. The witness has produced postmortem report/certificates in respect of deceased Yawar Abbas, Mohabbat Ali, Ramzan Ali, Muhammad Ali, Sajid Hussain and two unknown and produced at Exhs.27 to 33 respectively. This witness also conducted postmortem on the dead body of one Khadim Hussain son of Ali Muhammad at Imam Bargah Ancholi as the dead body of deceased was lying in Imam Baargah Ancholi and produced postmortem report.

10. Constable Javed Mehmood as P.W.3 at Exh.35, A.S.-I. Rana Waked Ahmed as P.W.4 at Exh.36 produced F.I.R.No..51 of 2003 of Police Station Al-Falah, mashirnama of arrest of appellant Muhammad Shaukat at Exh.37, mashirnama of arrest at Exh.38, Muhammad Ayoob Judicial Magistrate as P.W.5 at Exh.40. He has produced letter dated 12-3-2003. Identification parade of appellant/accused Abdul Wahab at Exh.42. Identity Card of P.W. Muhammad Shafi at. Exh.42-A.

Identification parade of appellant Abdul Wahab was held through P.W. Muhammad Abbas at Exh.43 and identity card of P.W. Muhammad Abbas at Exh.43-A. Identification parade of accused Abdul Wahab through P.W. Gul Abbas at Exh.44 and his identity card as Exh.44-A. Identification of appellant Abdul Wahab through P.W. Muhammad Hussain son of Muhammad Hassan as ExhA5 and his identity card as Exh.45-A. Two letters dated 18-3-2003 at Exh.46 and 47, letter dated 20-3- 2003 at Exh.48 identification of motorcycle MNR-2157 made Honda CD-70 of red colour through P.W.

Basharat Ali, Muhammad Ali, 'Muhammad Essa as Exh.49 to 51 respectively. Statements under section 164 Cr.P.C. Of P.Ws. Muhammad Ali and Muhammad Essa at Exh. 52 to 53 respectively. P.W Zabiha Rizwan Civil Judge and Judicial Magistrate as P.W.6 at Exh.54. She has produced letter dated 11-11-2003 for conducting identification parade at Exh.55. Identification parade of accused Shah Nawaz at Exh.56 through P.Ws Muhammad Abbas, Gul Abbas and Muhammad Shafi at Exhs.56 to 58 respectively. Ghulam Farooque, Civil Judge and Judicial Magistrate as P.W.7 at Exh.60.

He has produced letter dated 19-5-2005 at Exh.61. Two letter dated 19-5-2005 and 20-5-2005 at Exhs.61 and 62 respectively. Identification parade of appellant Muhammad Shaukat through P.Ws Muhammad Shafi, Gul Abbas, Muhammad Moosa at Exh.63. List of dummies at Exh.63-A. Mohsin Ali as P.W.8 at Exh.65. He has produced statement under section 154, Cr.P.C., at Exh.66, mashirnama of wardat Exh.67, Basharat Hussain as P.W.9 at Exh.68, Gul Abbas as P.W.10 at Exh.69. He has produced three notices at Exh.70 to 72. Khadim Hussain as P.W.11 at Exh.73, Muhammad Shafi as P.W.12 at Exh.74. SIP Shakeel Javed as P.W.13 at Exh.75. He has produced mashirnama of arrest of accused Shah Nawaz at Exh.76. Muhammad Abbas P.W.14 at Exh.77. He has produced mashirnama of dead bodies at mortuary at Jinnah Hospital, at Exh.78, inquest report of deceased Ahmed Ali son of Ghulam Hussain Exh.79 to Exh.87. Mashirnama of dead bodies of deceased Khadim Hussain at Exh.88, inquest report of deceased Ahmed Ali son of Ghulam Hussain, Muhammad Abbas and Khadim Hussain, at. Exh.89, Muhammad as P.W.15 at Exh.91, He has produced notice dated 20-3- 2003 at Exh.92, Muhammad Iqbal SIP as P.W.16 at Exh.93. He has produced Report No.36 dated 22-2- 2003 at Exh.94, notice dated 22-2-2003 at Exh.95. HC Muhammad Kamal Anwar P.W.17 Exh.96. He has produced mashirnama of arrest of accused/appellant Abdul Wahab dated 10-3-2003 Exh.97.

Mashirnama of recovery dated 11-3-2003 at Exh.98 SIP Abdul Rasheed 1.0. As P.W.18 at Exh.99. He has produced order dated 10-3-2003 of TPO Jamshed Quarter at Exh.100. Report No.43 dated 10-3- 204)3 at Exh.101. Report No.45 dated 10-3-2003 Exh. 102, notice dated 10-3-2003 at Exh.103 and Identity Card of Muhammad Sultan at Exh.103-A. Statement under section 154, Cr.P.C. At Exh.

104. Mashirnama of arrest of accused Abdul Wahab Afghani dated 11-3-2003 at Exh.105, mashirnama of recovery of motorcycle from accused Abdul Wahab dated 11-3-2003 at Exh.106, letter dated 19-3-2003 at Exh.107, Ballistic report at Exh.108, A.S.-I. Azeem Solangi as P.W.19 at Exh.109.

He has produced copy of Crime No.29 of 2003 of Police Station Model Colony at Exh.110, Report No.36 dated 12-3-2003 at Exh.111 SIP Muhammad Ashraf P. W.20 at Exh.112. He produced letter dated 22-3-2003. S.H.O. .P.S. Jamshed Quarter at Exh.113, Retired Police Officer Muhammad Yaqoob as P.W.21 at Exh.115. He has produced letter addressed to MLO JPMC at Exh.116. Tapedar Sikandar as P.W.22 at Exh.119. He has produced letter at Exh.120, map of place of wardat at Exh.121, Two letters dated 1-7-2006 at Exh.122, map of place of wardat at Exh.123, Inspector Rasheed Ahmed as P.W.23 at Exh.124. He has produced order dated 10-3-2003 at Exh.125, two notices to accused Abdul Wahab dated 11-3-2003 at Exh.126 and 127. Letter addressed to AIG Police Criminalistic Sindh Karachi at Exh.128, report of Ballistic Expert at Exh.129, Chemical Examiner at Exh.130. Letter written to Chemical Examiner at Exh.131, notice to Muhammad Shaukat at Exh.132. Prosecution after completion of evidence closed its side vide statement 4-7-2006 at Exh.

134.

11. Statement of. Appellants under section 342, Cr.P.C. Were recorded where appellant Abdul Wahab pleaded innocence. Appellant Shah Nawaz alias Shani also pleaded innocence and stated that he was arrested on 15-10-2003 from his house and nothing was recovered from his possession. He further stated that after his arrest, his mother Hameeda Bibi sent telegrams to President of Pakistan, Federal Interior Minister, Governor of Sindh, Chief Justice, High Court of Sindh, 1.6 Police Sindh, Mohtasab Aala Sindh, regarding his arrested. He has produced eight leaves photostat copies as Exh.136-A to 136-F. Appellant Shoukat also pleaded innocence and false implication and stated that in fact he was arrested from his house about ten days prior to his alleged arrest.

12. After hearing the parties the impugned judgment was passed.

13. We have heard Messrs Abdul Waheed Katpar, advocate for appellant Abdul Wahab and Shoukat and M.R Syed Advocate for appellant Shah Nawaz alias Shani and Mr. Saleem Akhtar, Additional Prosecutor-General for the State.

14. It is contended by 'Mr. Abdul Waheed Katpar that at the time of identification parade, appellant Abdul Wahab Afghani was having bandage at his left arm and the dummies mixed during identification test were of different features, height and description. He stated that the said bandages were not concealed at the time of identification parade which carries no weight. He further contended that P.Ws Muhammad Shafi, Gul Abbas, Muhammad Abbas, Muhammad Hussain, Pesh Imam of Mosque Al-Muntazrin-e-Mehdi, their evidence is not confidence-inspiring as according to them there was a discriminating firing and in such a situation the persons present there are trying to save their own lives and are unable to recognize the culprits as evident from the evidence of P.W Mohsin who was the owner of the Hotel that persons entered in his Hotel in order to save their lives. It is further contended that P.W Mohsin has admitted that there was an iron grill at the main door of his Hotel and TV was on. It is further contended by Mr. Katpar that people of Shia Sect do- offer prayers of Maghribain where there is some darkness after sun-set and in the above situation the witnesses Were not able to recognize or identify the culprits who had fired in discriminate manner. In the F.I.R it is stated that all the three persons were armed with Kalashnikovs but only one Kalashnikov was recovered on the pointation of appellant Abdul Wahab Afghani whereas from appellant Muhammad Shaukat two pistols were recovered as evident from the evidence of prosecution witnesses. It is contended that P.W.12 Muhammad Shafi has not stated in his evidence about source of light. Even this witness has not given features of the culprits in his statement recorded under section 161. Cr.P.C. Mr. Katpar contended that P.W.14 Muhammad Abbas has admitted in his evidence that there was bandage at the left arm of accused Abdul Wahab at the time of identification. He further stated that in the same situation a Division Bench of this Court in Special ATA Jail Appeal No. 51 of 2005 and Confirmation Case No.09 of 2005 discarded the identification test on the ground that the appellant Abdul Wahab Afghani was in bandages and the Magistrate has not concealed such bandages or put similar bandages on the dummies so that each person should have seen alike. He further stated that in Criminal Jail Appeal No.51 of 2005 Abdul Wahab Afghani was the appellant and after his arrest he was involved in so many cases and his identification test was held in different cases at the same time. It is further contended by Mr. Katpar that circumstantial evidence in shape of recovery of Kalashnikov on the pointation of appellant has no value as no independent witness was cited. In absence of independent evidence the evidence of police officials could not be relied upon where the police has involved the appellant in so many cases of similar nature.

15. As regards appellant Muhammad Shaukat, Mr. Katpar contended that according to F.I.R two pillion riders were holding Kalashnikovs in their hands, alighted .And started indiscriminate firing upon the Nimazees but P.W.8 Mohsin Ali, who is running a Hotel near Imam Bargah stated that three persons came on red colour motorcycle. Out of them two were armed with Kalashnikovs and 3rd was armed with T.T. Pistol and parked their motorcycle about 6/7 paces away from his Hotel.

Persons armed with Kalashnikovs started firing and person who was armed with TT Pistol was standing by the side of the motorcycle. He further contended that P.W.9 Basharat Hussain stated that three persons were riding on a motorcycle and came and parked it in front of Imam Bargah about 6/7 paces from him, two persons alighted from the motorcycle out of them one culprit was armed with Kalashnikov and other with pistol and started firing at the people waiting for Azan. He further stated that two persons were armed with pistols whereas P.W.10 Gul Abbas stated that three persons came riding on red colour motorcycle and started indiscriminate firing with their weapons upon the people present there. He further contended that P.W.11 Sabir Hussain who was an injured stated that all of a sudden the incident of firing occurred at the Imam Bargah during which he sustained bullet injuries over his left leg. He tried to escape from the scene of offence meanwhile another bullet hit his left hip and he fell down and became unconscious. Whereas P.W.12 Muhammad Shafi who is said to be an eye-witness of the said incident has stated that at the time of incident he saw three motorcyclists came riding on red colour motorcycle and stopped in front of Imam Bargah, two of them alighted from the motorcycle whereas one culprit who was driving the motorcycle sat on the motorcycle. Out of those: one was carrying K.K and the other was holding magazine in his hand whereas the person who was sitting on the motorcycle was having TT Pistol. It is contended by the learned counsel that the eye-witnesses have given contradictory and conflicting evidence about the weapons by the culprits. In the above circumstances it could not be said with certainty that whether appellant Shaukat was armed with pistol/magazine or Kalashnikov. As regards Identification parade, Mr. Katpar stated that admittedly: appellant Abdul Wahab had bandages at his left arm and that the Magistrate had not concealed the bandages of the appellant or dummies mixed with appellant had no bandages on their arms at the time of identification parade. It is contended that in such circumstances regarding the identification of Abdul Wahab Afghani a Division Bench of this Court had already acquitted by observing that the appellant's arm was in bandages, the Magistrate should have concealed such bandages or put similar bandages on the dummies so that each person should have seen alike. He further contended that it was observed that appeal of appellant Abdul Wahab was allowed on the sole score that it was easy for police to have informed the witnesses that the person with bandages was the accused person. He contended that statements under section 161, Cr.P.C. Of the witnesses were recorded by the police with a delay of one month, which is also fatal for the prosecution as no plausible explanation has been offered for such inordinate delay. He further contended that P.W.

Muhammad Abbas stated that during identification parade appellant Abdul Wahab Afghani has plaster on his hand so also P.W.18 SIP Abdul Rasheed stated that in the mashirnama of arrest of appellant Abdul Wahab Afghani it is mentioned that there was plaster/bandage at the left arm of accused. Mr. Katpar placed his reliance on the case of Shafqat Mahmood and others v. The State 2011 SCM R 537, Bashir alias Bashira and another v. The State 1995 SCM R 276, State/Government of Sindh through Advocate-General Singh Karachi v. Sobharo, 1993 SCM R 585, Assadullah v. The State 1999 SCMR 434, Tariq Pervez v. The State 1995 SCMR 1445 and unreported judgment passed in Special Anti-Terrorism Jail Appeal No.51 of 2005 and confirmation case No.9 of 2005 authored by his lordship Mr. Justice Rahmat Hussain Jafferi (as then he was) and sum .Up his arguments that the prosecution has miserably failed to establish guilt of the appellant beyond any shadow of reasonable doubt, there are so many dents in the prosecution case. Only one circumstance creating doubt in a prudent mind is sufficient to extend benefit of doubt to the accused.

16. Mr. M.R Syed, counsel for the appellant Shah Nawaz alias Shani stated that P.W.8 Mohsin who is complainant and eye-witness of the incident but he was not asked during investigation to identify the appellant Shah Nawaz alias Shani so also P.Ws Basharat Hussain and Sabir Hussain. It is contended that according to Tapedar, who prepared the sketch of the scene of the offence, stated that there was a curtain in between the room of Hotel and Veranda, no marks of blood inside or outside the Imam Bargah were seen and that no injured or dead body of any deceased was recovered from inside the Imam Bargah or Hotel. The ocular evidence is contradictory and identification of appellant is not according to law laid down by the superior courts. He has placed reliance on 2001 SCM R 424, PLD 1995 SC 01, 1993 SCM R 585 and 2008 SCM R 1221. He also stated that the statements under section 161 of the witnesses were recorded with a delay of one month without any plausible explanation which rendered the prosecution case doubtful.

17. On the other hand, Mr. Saleem Mukhtiar, Additional Prosecutor-General stated that ocular evidence is consisting of seven eye-witnesses. P.W.8 Mohsin, P.Ws. Sabir Hussain, Basharat Hussain, Muhammad Abbas, Gul Abbas, Muhammad Shafi and Muhammad Essa, all the eyewitnesses have supported the prosecution case and P.W Gul Abbas, Muhammad Abbas, Basharat and Muhammad Shafi had identified the appellants in identification parade. Medical evidence is also, available which supports ocular evidence. He further contended that circumstantial evidence in shape of recovery of empties of Kalashnikovs and TT Pistol from the scene of offence, recovery of Kalashnikov from appellant Abdul Wahab and motorcycle also support the prosecution case. The defence has not established enmity with the witnesses and nine persons had lost their lives and eight persons had sustained injuries in an indiscriminate firing. He has placed reliance on the case of 2010 PCr.LJ 11, 2011 SCM R 877 Muhammad Akram Rahi v. The State and contended that the prosecution has proved its case against the appellants beyond any shadow of reasonable doubt and that the learned trial Court rightly recorded conviction and sentence against the appellants.

18. With the assistance of learned counsel for the parties, we have scanned the entire record. P.W.1 Dr. Abdul Shakoor has conducted autopsy on the dead body of deceased Pervez, Yawar Abbas, Sajid Hussain, Mohabat Ali, Muhammad Ali son of Ali Gohar, Ishtiaq Ali, the same is not disputed by the defence. P.W.2 Dr.Kaleem examined injured Muhammad Ali, Zahoor Ahmed, Imtiaz Hussain, Basharat Hussain, Shamsullah, Muhammad Ali son of Khuda Yar. Rashid Hussain. Sabir Hussain, Muhammad Ali son of Ali Muhammad, Yawar Abbas, Mohabat Ali son of Muhammad Ali, Rizwan Ali son of Unknown, Muhammad Ali son of Ali Gohar, Sajid Hussain and one another unknown and also conducted autopsy on the dead boy of Khadim Hussain son of Ali Muhammad. The evidence of both medical officers have not been disputed by the defence.

19. P.W.3 Javed Mehmood a police constable stated that on 22-2-2003 he was posted at Police Station Al-Falah and on that day SIP Muhammad lqbal, who was duty officer, received wireless message at about 6-35 p.m. That an incident of firing had occurred at Imam Bargah, Salman Farsi Colony. He along with SIP Muhammad lqbal proceeded to Imam Bargah Al- Muntazreen-e-Mehdi on motorcycle. Where they were informed by the persons present there that as a result of firing by three unknown youngsters at Imam Bargah, some persons died and some were injured. The dead bodies and injured have been shifted to JPMC. At about 8-15 p.m. One Mohsin lodged the F.I.R of the case which was recorded by SIP Muhammad lqbal on a plain paper and handed over the same to him and he handed over the same to Duty Officer A.S.-I. Wakeel Ahmed of P.S. AlFalah. He further stated that the same statement was incorporated in 154, Cr.P,C. Book and numbered as Crime No.51 of 2003 of P.S. Al-Falah. The duty officer handed over the F.I.R to him for handing over the same to SIP Muhammad Yaqoob for investigation. He was examined by SIP Muhammad Yagoob on 23-2-2003. The defence has not disputed the evidence of this witness.

20. P.W.4 A.S.-I. Wakeel Ahmed stated that on 22-2-2003 he was duty officer at Al-Falah Police Station and at 9-00 p.m. a Police Constable Javed Mehmood appeared and handed over 154, Cr.P.C. Statement of complainant Mohsin which was recorded by SIP Muhammad Iqbal for incorporation in the 154, Cr.P.C. Book. The same was incorporated in 154, Cr.P.C. Book as Crime No.51 of 2003 and entrusted the same for investigation to SIP Muhammad Yaqoob. His statement under section 161, Cr.P.C. Was recorded by SIP Muhammad Iqbal on 23-2-2003. On 17-5-2005 he was working in the investigation branch of Police Station AlFalah where he received telephonic message from Inspector Rasheed. Ahmed who was posted as Reader to DIG Investigation and directed him to reach at the office of DIG Investigation at New Town. He went there, from where he along with Inspector Rasheed Ahmed went to the Office of Town and Investigation Officer Jamshed Quarter where accused Muhammad Shaukat was confined in the police lockup. Inspector Rasheed Ahmed took out accused Muhammad Shaukat from the lock up and interrogated him in his presence and in presence of HC Waheed Akhtar and thereafter arrested him and prepared memo of his arrest. He and HC Javed Akhtar acted as Mashirs. Inspector Rasheed Ahmed recorded his 161, Cr.P.C. Statement in the office of DIG Investigation New Town. In cross-examination, the witness stated that he did not know that since how long accused Muhammad Shaukat was in police custody. He further stated that at the time of arrest of accused Shaukat he was having beard about two inches long. He denied the suggestion that actually the memo of arrest of accused Muhammad Shaukat was prepared by inspector Rasheed in his office at DIG Investigation New Town.

21. P.W.5 is Judicial Magistrate, Muhammad Ayoob. He stated that on 12-3-2003 he was posted as Judicial Magistrate-XV, Karachi East. On the same day. Investigating Officer SIP Rasheed Ahmed of Police Station Al-Falah submitted a letter requesting therein for holding identification parade in respect of suspect Abdul Wahab through witnesses Muhammad Shafi, Muhammad Abbas Gul Abbas and Muhammad Hussain. Such request was allowed by him and on the same day identification parade was held. He stated that accused was produced before him with muffled faces duly handcuffed. He got removed the handcuffs and muffler of the accused and asked the police to leave the Court Room. Accused Was made to sit in the Court Room. He arranged for nine dummies through bailiff of his Court and arranged queue and asked the accused Abdul Wahab to stand in the- row at his choice. At the first instance, accused stood at Serial No.10 from left side and he called witness Muhammad Shafi for identification. The witness after having look at the line identified accused Abdul Wahab and informed him that he had fired at the persons present at Imam Bargah on the day of incident. After a short while, he called some dummies and asked the.

Accused Abdul Wahab to stand along with dummies at any place of his choice. The accused stood at Serial No.6 from right side, Muhammad Abbas witness was called who correctly identified accused Abdul Wahab and informed him that he had fired at the persons at Imam Bargah. In such manner witness Gul Abbas also identified the accused Abdul Wahab so also witness Muhammad Hussain. On 18-3-2003 an application was moved for identification of motorcycle and recording statements of witnesses namely Muhammad Ali and Muhammad Essa under section 164, Cr.P.C.

But the same day Inspector Rasheed Ahmed submitted another application extending the date of identification of the case property and recording of the 164, Cr.P.C. Statements which was allowed by him and fixed the date as 24-3-2003. On the same day motorcycle produced by ,I.O. Rasheed Ahmed which was mixed with nine other motorcycles and witness Basharat. Ali,' Muhammad Ali and Muhammad Essa identified the motorcycle. On the same day he recorded 164, Cr.P.C.

Statements of witnesses Muhammad Ali and Muhammad Essa in presence of accused Abdul Wahab. During his evidence the witness' was unable to identify accused Abdul Wahab sitting in the dock of court due to laps of time. In cross-examination, the witness admitted that he did not remember if he enquired from Investigating Officer Rasheed Ahmed that how long accused Abdul Wahab was in police custody. He admitted that date of arrest of accused mentioned as 7-11-2003.

He admitted that he has not issued any summons to the witness for identification parade. He admitted that he had not asked accused Abdul Wahab since how long he was in police custody.

He stated that he did not remember if the left arm of the accused was having bandages at the time of identification parade. He also do not remember whether accused Abdul Wahab was having beard or not at the time of identification. He admitted that dummies which were procured by him through his Court staff were having different built, complexion and structure. He admitted that the memos Exh.42 to 45 do not bear the signature of identifying witnesses.

22. P.W.6 Zabiha Rizwan, Civil Judge and Judicial Magistrate stated that on 14-11-2003 she was posted as Civil Judge and JM-XVII Karachi East. On that day as the link Magistrate of the Court No. XIX, the Investigating officer appeared before her in the Court and submitted a request letter on which order dated 11-11-2003 was already passed by the Magistrate. I.O. Produced accused Shah Nawaz before her in Court in custody with muffled face. After ten minutes of producing the accused, court staff informed her that the witnesses namely, Gul Abbas, Muhammad Abbas and Muhammad Shafi are present. The witnesses were made to sit in the other side of corridor. The handcuffs got removed and she arranged 11 dummies through her court staff. She arranged for a row in the court room and mixed the accused Shah Nawaz with dummies, she called the witness Muhammad Abbas who identified the accused in the row and informed her that on 22-2-2003 he went to offer Margrib prayer at Imam Bargah and one accused was firing at Imam Bargah and the present accused was by his side and was passing magazine to him at the time of incident. After that, she called another witness Gul Abbas who also identified accused Shah Nawaz and informed her that on the day of incident as he was going to offer Magrib prayer at Imam Bargah and saw one accused was firing at Imam Bargah and the present accused Shah Nawaz was present by his side and was passing magazine to him and he also informed that 3rd was present nearby the motorcycle. In the same manner witness Muhammad Shafi also identified accused Shah Nawaz and stated the same facts as stated by other two witnesses: This witness admitted in cross- examination that she has not appended any certificate at the foot of the mashirnama of identification and dummies which were procured by her for the purpose of identification parade and stated that the dummies were of different features, descriptions and particulars of the dummies has not been mentioned in the mashirnama. She further admitted that witness Gul Abbas had not mentioned the year in which the incident had occurred. She denied the suggestion that accused Shah Nawaz had complained to her during the identification parade that he was shown to the witnesses prior to the identification parade.

23. P.W.7 Ghulam Farooque stated that on 10-5-2005 he was posted as Civil Judge and Judicial Magistrate of Court No.9, Karachi East. On that day Investigating Officer of this case appeared before him and submitted a letter requesting for holding identification test in respect of accused Muhammad Shaukat through witnesses namely Muhammad Shafi, Gul Abbas and Muhammad Essa. Such application was allowed and date was fixed as 20-5-2005 for holding identification. On 20-5-2005 Investigating Officer appeared before him at about 9-40 a.m. And submitted letter showing his presence in pursuance of the earlier order passed by him on 19-5-2005. He further stated -that in the letter I.O. Stated that P.W Muhammad Abbas was not available hence Muhammad Essa is present and the identification be carried through witness. Such application was allowed by him. After 5 to 10 minutes the accused was produced before him by I.O. With muffled face duly handcuffed. Handcuffs of the accused were removed. He asked the court staff to arrange ten dummies. Out of the dummies six having beard as accused had beard. He called the witness Muhammad Shafi who identified accused Muhammad Shaukat and informed him that he was the accused who had fired. The witness further told him that this accused has now trimmed his beard. Similarly, P.W. Gul Abbas and witness Muhammad Essa also in the same manner identified the accused Muhammad Shaukat in identification parade. In cross-examination, this witness admitted that he has no jurisdiction of Police Station AlFalah on 19-5-2005. He further admitted that he has not mentioned in any document produced by him that he has conducted the identification test in accordance with the general orders of the Sessions Judge. He further admitted that in request letter Exh.61 name of witness Muhammad Essa was not mentioned but Muhammad Abbas was mentioned. He admitted that address of dummies and their occupation has not been mentioned by him. He had obtained CNIC's of dummies. He admitted that certificate is not appended with the memo as the same is not required. He did not know if the certificate is required under the High Court Rules. He has admitted that he has not mentioned in the memo of identification that witness Muhammad Shafi while identifying the accused had informed him that he had fired. He admitted that witness Gul Abbas had not disclosed the role of accused during incident. He admitted that accused Shaukat could be about 30 years old. He admitted the suggestion that in, the list of dummies none of them was 30 years of age. He also admitted that he has not mentioned in the memo Exh.63, that witnesses Gul Abbas and Muhammad Essa have told him that at the time of identification parade, the witnesses have not disclosed the role of the accused. He stated that witness Gul Abbas has stated that he has received fire shot and in such firing present suspect is involved.

24. P.W.8, Mohsin Ali who is cook. He in his evidence has stated that he is running hotel near Imam Bargah AlMuntazari and started running the hotel about 25-days prior to the incident. He stated that the incident took place on 22-2-2003, at 6-30 p.m. And it was Magrib prayer time and he along with others were waiting for call of Magrib prayer. He saw three persons came on red motorcycle, out of them two were armed with Kalashnikovs and 3rd person was armed with T.T pistol; they parked their motorcycle about 6/7 paces away from his hotel. Persons who were armed with Kalashnikovs came down from the motorcycle and started firing at the persons who were present at stairs of Imam Bargah waiting for Magrib prayer and 3rd person who was armed with T.T pistol was standing by the side of motorcycle. One person closed the gate of Imam Bargah. In such situation persons standing outside Imam Bargah rushed towards his hotel to save their lives and his hotel had an iron grill and those persons came and stood about five paces away from his hotel and started firing at the persons who came to take refuge at his hotel. During incident of firing he had taken shelter of wall and was witnessing the incident from there. After firing all, the three persons boarded the same motorcycle and escaped away from the scene of offence. After' the accused fled away from the scene of offence he saw many persons were injured in his hotel.

People took the injured in Suzuki vans to various hospitals.' He further stated that he came to know through telephone call that nine persons succumbed to the injuries in hospital and eight persons were lying injured. He knew the deceased persons who belonged to his vicinity. He further stated that police came at his hotel at 8.15 p.m. And recorded his statement on a plain paper. He has produced his 154 Cr.P.C. Statement as Exh.66. He stated that police visited scene of offence and collected 21 empty shells of Kalashnikov which were lying in scattered position and five empty shells of pistol. He further stated that police had also collected 30 projectiles of those bullet marks, bloodstained foot wears, blood-stained cloth sheet, one empty blood-stained flour sack. The police also collected the blood-stained earth lying in his hotel. He stated that at the time of incident one accused was having bearded and two were unbearded. The witness pointed out accused Shoukat present in the Court and informed the court that he was having beard and was armed with T.T pistol, whereas accused Abdul Wahab and Shah Nawaz were un bearded and they were armed with Kalashnikovs; motorcycle was driven by accused Shoukat.

25. In his cross-examination the witness admitted that originally he belong to Gilgit and came to Karachi in the year 1975, and resides in a rented house at Saiman Farsi Housing Society since last six years. He admitted that there is an open plot in front of Imam Bargah Al-Muntazari. He admitted that there are houses on the either sides of the Imam Bargah. He has denied the suggestion that he was viewing the Indian Movies on the televisions set at his hotel. He admitted that no bullet marks found on the walls of Imam Bargah. He admitted that persons belonging to various sects/communities were residing in the neighbourhood of the Imam Bargah. He admitted that police had recorded his statement on two occasions. He stated that he has informed the police at the time of recording of his statement that he was standing outside of his hotel. He admitted that main entrance of the Imam Bargah was opened at the time of incident. He admitted that he is illiterate and he cannot say that what has been written in his statement due to illiterateness. He admitted that he has not given his present address to police. He admitted that police had not prepared sketch of scene of offence in his presence.

26. P.W.9, Basharat Hussain, stated that on 22-2-2003, at about 6-30 p.m. a motorcycle on which three persons were riding came and parked in front of Imam Bargah about 6/7 paces away from him. Two persons alighted from motorcycle; out of them one culprit was armed with Kalashnikov and other with pistol and started firing at the people standing outside the Imam Bargah waiting for Azan. During firing people rushed and went inside the hotel of Mohsin Bhai and he also rushed and went inside the hotel of Mohsin Bhai. Those two culprits came towards the hotel and started firing at the hotel with Kalashnikov and pistol. The third culprit who was sitting on the motorcycle was armed with pistol and was firing during the incident and also proceeded some distance ahead on his motorcycle. The culprit who was armed with Kalashnikov was firing upon them at hotel whereas the co-accused who was standing by his side was passing on the magazine to him. After firing all the three culprits fled away from the scene of offence on the same motorcycle. He received bullet injury over his abdomen; eight persons received the injuries, whereas nine persons died during the incident. He stated that he remained as indoor patient for about three weeks at JPMC and remained as outdoor patient for about a year and was receiving treatment. Police had recorded his statement at JPMC. Witness pointed to accused Abdul Wahab present in the Court that this accused was armed with Kalashnikov and was firing. Witness pointed out to accused Shah Nawaz alias Shani that this accused was passing magazine to accused Abdul Wahab; witness pointed out towards accused Shoukat that he was sitting on the motorcycle and was firing at the time of incident. The witness stated that he did not remember if he had given descriptions of motorcycle and those three culprits, who came on the motorcycle. Again says that probably he had given descriptions, complexions, ages, built and statures of those three persons to 'police. Again says that he has not given the above information to police. He admitted that he had not stated in his statement that whether those culprits were Sindhi, Balochi or Pathan by appearance. He stated that he has not stated in his statement that those accused were bearded or not. He admitted that he informed the police that he can identify those three culprits if they appear before him. He stated that police recorded his statement at JPMC on the same day at night time. He denied the suggestion that SIP Rasheed Ahmed had come at his residence and served upon him notice for identification and recording of his statement before Magistrate. He stated that Mohsin Bhai was running hotel near Imam Bargah since last six months prior to the incident. He stated that the houses are situated at some distance from Imam Bargah. He admitted that hotel of Mohsin Bhai was having iron grill in front of it. He admitted that as he was lying injured, hence he cannot say if there were bullet marks on the front of Imam Bargah. He had denied the suggestion that he has stated in the court that one culprit was armed with Kalashnikov and other with pistol and they fired with their respective weapons during the incident. He admitted that he had stated in his police statement that out of those persons one was armed with Kalashnikov and others with T.T pistol.

27. P. W .10, Gul Abbas, in his statement stated that on 22-2-2002, he came to offer Namaz-e- Magrib at Masjid Imam Bargah Al-Muntazir Al-Mehdi, where other persons were also present outside the Imam Bargah waiting for Magrib prayer. He was present about 20-paces away from Imam Bargah, where he saw three persons riding on red colour motorcycle and opened indiscriminating firing upon the people present there. The person who was driving the motorcycle was armed with T.T pistol and at that time he was standing about 10/15 paces away from the motorcycle. During firing some persons ran towards Imam Bargah and some to nearby Chapra hotel to save their lives. Two culprits who were armed with Kalashnikov came at Chapra hotel and started firing at the hotel. After firing they returned back towards the motorcycle, where an accused armed with pistol was sitting on the driving seat and fled away from the scene of offence.

He stated that he received injuries and at hospital he came to know that nine persons have died as result of firing and eight persons had received injuries.. He went to his house, but soon he was called at Masjid Imam Bargah Al-Muntazir Al-Mehdi, where police was present and made enquiries from him and recorded his statement. He stated that on 11-3-2003, he was called at Masjid Imam Bargah AlMuntazir Mehdi where Inspector Rasheed Ahmed served a notice upon him for identification parade to be held at city Court on 12-3-2003, and obtained his signature. On 12-3- 2003, he along with Muhammad Shafique, Muhammad Abbas and Muhammad Hussain went to city court, where-after making enquiries about the concerned court, went to a court at the 1st floor.

Where met with peon of court and informed him about arrival for identification test He stated that they were produced before Magistrate, who verified their identity through their NICs: and directed them to sit at gallery at the back of court. He was called in the court and was shown a line of ten persons and the Magistrate asked him to identify the accused if present in the row. He identified one person and informed the Magistrate that he was one of those persons who had fired at the persons present in front of Imam Bargali and the Magistrate sent him back outside the court and again called him in court and shown him a row of ten persons and he was asked to identify accused, he again identified the accused. The witness pointed out to accused Shoukat that he has identified accused in identification test before Magistrate. On second time on 14-11-2003, he along with Muhammad Abbas, and Muhammad Shafique went to city court and appeared before Magistrate and they were made to sit in a gallery at the back of the court and called them one by one and showed them a line of 9/10 persons standing in a row and Magistrate asked him to identify accused, if present in the line. He identified one person and informed the Magistrate that on the day of incident this accused was passing on the magazines to co-accused who was firing at the persons at Imam Bargah. On third time on 19-5-2005, he was again called for identification parade through Inspector Rasheed. On 20-5-2005, he went along with Muhammad Shafique and Muhammad Essa to city court before the Magistrate, who made them to sit in the chamber and verified their NICs: and shown them a row of 10/11 persons and asked him to identify accused; he identified one accused who was sitting on the motorcycle on the day of incident. The witness pointed out to accused Shah Nawaz present in the court and he also identified accused Shoukat and stated that he was driving the motorcycle and was armed with pistol. The witness also pointed out towards accused Abdul Wahab Afghani and stated that he was armed with Kalashnikov and was firing at the time of incident and stated that accused Shah Nawaz was passing magazine to co-accused. He admitted that he had not disclosed before the police the registration number of the motorcycle used by the accused. He stated that he informed the police that out of three culprits, one had grown up shave, other was having beard and third one was clean shaved. He admitted that he had not stated the complexion, built, descriptions and features of those culprits but had only stated that they were in age of about 25 to 30 years. He admitted that in the month of February, at 6-30 p.m. The sun-sets and darkness starts. He admitted that according to Shia School of thought, they offer Magrib and Isha prayers at the same time. He stated that Mohsin Bhai had opened the hotel about one month prior to the incident. He admitted that his NIC was prepared from Gilgit but he does not know how many years back. He admitted that at the time of preparation of his NIC, he had not gone to Gilgit, but had simply signed the form and sent the same to Gilgit. He admitted that at the first time of identification parade he identified accused who had beard and was wearing Shalwar Qamees and the dummies who were standing with the accused, some of them were bearded and some were clean shaved. Some of them were of similar statures and some of them of different statures and complexions. On the second occasion of identification parade the accused was clean shaved, while on third occasion the accused was having beard. The dummies in all the identification parades, some of them were having bearded, some of them were clean shaved and some of them were in Shalwar Qamees and some of them were in gaint shirt.

28. P.W.11 Shabir Hussain, stated that on 22-2-2003, little before Magrib prayer time he had come to offer Namaz-e- Magribain at Imam Bargah Al-Muntazir and was standing outside Imam Bargah waiting for the call of Magrib prayer. Many other persons were also present there. All of a sudden the incident of firing occurred at the Imam Bargah, during which he sustained bullet injury over his left leg. He tried to escape from the scene of offence, meanwhile an other bullet strucked over his left hip and he fell down and become unconscious. He regained his senses at JPMC.. He was admitted as an indoor patient at JPMC for about two weeks, after discharge from JPMC he received treatment from a private doctor. Police had recorded his statement.

29. P. W.12, Muhammad Shafi stated that on 22-2-2003, he went o offer Namaze-Magerben at Masjid Imam Bargah Al- Muntazir and reached in front of Imam Bargah at 6-30 p.m. Where so many persons were already present near the entrance of Imam Bargah and were waiting for call of prayer. At that time he saw three motorcyclists came riding on red colour motorcycle and stopped in front of the Imam Bargah. Two of them alighted from the motorcycle, whereas one culprit who was driving was sitting on the motorcycle. Out of these two, one was armed with Kalashnikov and the other was holding a magazine in his hand, whereas the person who was sitting on the motorcycle was having T.T pistol. The, culprit who was armed with Kalashnikov stared firing at the persons standing in front of Imam Bargah. The person who was sitting on motorcycle was also firing on the persons with T.T pistol. The third culprit was standing by the side of the culprit who was firing with Kalashnikov and he was 'holding the magazine. As a result of firing one person sustained the bullet injuries and fall down inside Imam Bargah whereas remaining persons ran towards hotel of Mohsin by the side of Imam Bargah to save their lives. After indiscriminating firing all three culprits fled away from the scene of offence on the said motorcycle. So many persons gathered at the scene of offence. Many persons who were lying inside the hotel of Mohsin were evacuated from the scene of offence to various hospitals in different vehicles. He remained present at the scene of offence till morning. He was informed that nine persons had been died and eight persons had received serious injuries. Police came at the scene of offence at about 9-30 p.m. And inspected scene of offence in his presence. Police also inspected hotel of Mohsin, where number of blood- stained footwear were lying, one cloth sheet and, few packets of flour having blood-stained and many coins were lying spread inside the hotel. The blood was also lying inside the hotel, which was collected by the police. Empty shells of bullets were also lying scattered inside and outside the hotel; police collected all the articles and sealed these in four parcels Police prepared memo and obtained his signatures and signatures of Mohsin. Police had recorded his statement in Imam Bargah. On 11-3-2003, Inspector Rasheed Ahmed along with one person came to his house after Magrib time and informed him that one culprit has been arrested, so. He should come at city court on 12-3-2003, and served such notice to him. - On 12-3-2003, he along with Muhammad Hussain, Gill Abba and Muhammad Abbas went to city court, where police met them on down, stairs.

Inspector Rasheed Ahmed was also present there and taken them to the court of Magistrate. The Magistrate verified their names and made them to sit on the back side of the court and thereafter called theta inside the court one by one. Magistrate demanded NIC from them. Magistrate enquired from him about incident and he narrated him the entire facts of ' the incident. He saw ten persons standing in the row. Magistrate asked him to identify the culprits standing in the row, where he identified one culprit from the row, who was armed with Kalashnikov and was firing on the day of incident. He was again called and asked to identify the Lulprits from the row, he identified the same culprit. Again on 13-11-2003, Inspector Rasheed informed him about arresi of culprit and required him for identified test; he was asked to visit city court on 14-11-2003. On 14-11-2003, he along ss ith Muhammad Abbas, and Gul Abbas went to city court, where SIP Rasheed and other police personnel were present arid produced them , before Magistrate. After enquiries he was shown a line of 8/9 persons and asked to identify the culprit, he identified culprit who was passing magazine to co- accused. Again on. 19-5-2005, Inspector Rasheed informed him about arrest of another culprit and stated him to visit city court- on 20-5-2005. On 20-5-2005, he along with Muhammad Essa and Gul Abbas went to city court and 'met Inspector Rasheed and other police officials, who produced them produced them before Magistrate and a line of 8/10 persons was shown .To him and asked to identify culprit; he identified culprit and informed the Magistrate that the culprit was sitting on the motorcycle and was firing with T.T pistol on the day of incident. The witness pointed out to accused Abdul Wahab Afghani, Shahnawaz alias Shani and Shoukat. In his cross-examination, the witness stated that he is dealing in business of running provision shop at Salman Parsi Society and. Used to open his. Shop at 6-30 a.m. And close the same at 11-30 p.m. He admitted that in CNIC his residential address is mentioned as H. No. G/11, Falah Housing Project, Rifah-e-Aam Karachi. He stated that he had informed the police that he is residing in Salman Parsi Housing Society and his CNIC was prepared on 23-11-2002. He admitted that he had not noticed any bullet mark on the main entrance of Imam Bargah. He admitted that during incident of firing persons had fallen down inside the Imam Bargah. One had fallen at the place of abulation and other near the main entrance, hence main entrance of the Imam Bargah was closed. He admitted that he saw blood lying at the main entrance and at the place of abulation but the police did not collect blood from those two places in his presence. He admitted that persons of different communities are residing in the vicinity of Imam Bargah and there is hotel on one side of the Imam Bargah and on the other side residential houses are situated, there is shop by the side of open plot and residential house on its upper storey. One Manzoor Bhai is the owner of the shop and runs provision shop at that place. He admitted that his clothes were stained with blood but he has not shown the clothes to police. He admitted that he was present about 100 paces away from his house when the incident took place. He stated that P.W. Mohsin is running hotel since about two months prior to the incident. He stated that he had informed the police that the culprit who was driving the motorcycle had bearded, whereas two culprits had grown up shaves. He stated that he also informed the police about complexion of all three accused. He stated that he informed the police that culprits had come on Honda motorcycle. He admitted that at the first time he identified culprit who had grown up shave and the dummies who were standing with accused at the time of identification test were having different complexions, statures and built. He admitted that he had not disclosed role of the accused played by them during commission of offence. He admitted that Magistrate had not obtained his signature on any document after third identification test. He stated that he had seen the culprits from distance of 15 to 20 paces.

30.. P.W.13 SIP Shakeel Javed stated that on 5-11-2005, he was posted at AVCC Garden. At about 9- 30 p.m. SIP Rasheed came at AVCC Garden and informed him that he was Investigating Officer of case F.I.R No. 51 of 2003, Police Station AlFalah and sought permission from him to interrogate accused Shahnawaz alias Shani who was already lodged at police lockup at AVCC Garden. He allowed him. Accused Shahnawaz alias Shani was interrogated by him in his presence. Thereafter he was arrested in the above case in his presence and co-mashir PC Muhammad Ali. SIP Rasheed had recorded his statement.

31. P.W.14, Muhammad Abbas stated that on 22-2-2003, at bout 6-25 p.m. He went to offer Namaz- Magrihain at Masjid Imam Bargah. Many persons were already present outside the Imam Bargah waiting for the call of prayer. He saw three persons came on red coloured motorcycle and stopped their motorcycle, two persons alighted from the motorcycle out of them one was armed with Kalashnikov, other was holding a magazine of Kalashnikov, the person who was driving the motorcycle was armed with T.T pistol and was sitting on the motorcycle. The persons armed with Kalashnikov and T.T pistol stated firing towards the Imam Bargah and the people present there stated running, many of them went towards hotel of ,Mohsin, which was adjacent to the Imam Bargah; thereafter; accused turned towards hotel of Mohsin started firing.. After firing both the accused returned back and boarded the same motorcycle and fled away. Many persons of the locality assembled and with the assistance of each other shifted injured persons to various hospitals in private vehicles. He came to known that nine persons were expired and eight persons sustained serious injuries. He stated that his statement was recorded by police on 23-2-2003, at IMam Bargah Al-Muntazir Al-Mehdi. On 12-3-2003 Inspector Rasheed came at Imam:'Bargah and served notice upon him regaiding identification test of suspect to be held on 12-3-2003. Again says that the notice was served upon him on 11-3-2003 and not on 12-3-2003. In response of above notice he along with Muhammad Iussain, Gul Abbas, and Muhammad Shafi went to city court, where Inspector Rasheed met' with them, who directed them to go at the 1st floor, where the court was located; they went and met with clerk of the court and after 20-minutes he was called in the court, where Magistrate demanded his NIC. After verifying his NIC, he was shown a row of 9/10 persons present in the court, of Magistrate and the Magistrate asked him to identify the culprit from amongst them. He identified one persons and informed the Magistrate that the accused was armed with Kalashnikov and had fired on the day of incident. After fifteen minutes he was again called in court and was asked to identify the accused and he identified the same accused. On 13- 11-2003, said Inspector Rasheed, came at Imam Bargah and called him from his house and served with notice at Imam Bargah regarding identification of suspect to be held on 14-11-2003 at city court. On 14-11-2003, he along with Muhammad Shafi and Gul Abbas appeared before lady Magistrate at city court, who after verification of identity through their NICs: shown a row of 10/11 persons and Magistrate asked him to identify culprit; he identified one culprit who was passing magazine to the co-accused. Magistrate prepared such memo and obtained his signature. The witness pointed out to accused Abdul Wahab and informed the court that on the day of incident he was armed with Kalashnikov and was firing and he had identified him in the first identification parade. During cross-examination this witness stated that at the time of identification parade the left arm of accused Abdul Wahab was bandaged or having plaster but the rest of dummies standing along with him, their arms were neither having plaster nor bandaged. He admitted that he did not remember if he had narrated the facts of the incident to the Magistrate at the time of identification test.

32. P.W.15, Muhammad Essa stated that on 22-2-2003, at 6-00 p.m. He left his house and proceeded to Imam Bargah AlMuntazari for offering Namaz-e-Magerben. Some other persons were also present outside the Imam Bargah waiting for the call of prayer. All of a sudden the firing started at Imam Bargah behind his back, he saw one person received bullet injury over his face and rushed towards Imam Bargah and the door of Imam Bargah was closed from the inside. The people present outside Imam Bargah rushed towards hotel of Mohsin to save their lives; he also rushed towards hotel of Mohsin to save his life. While he was running towards hotel of Mohsin he saw three culprits, one was armed with Kalashnikov who was firing, other person was standing by his side and third culprit was sitting on the motorcycle armed with T.T pistol and was firing. He also received bullet injury on his left arm. Culprits fled away from the scene of offence. He stated that he came to know that nine persons had been expired and eight persons received serious injuries. On 20-3-2003, at about evening time he was present at Imam Bargah, when SIP Rasheed came and served notice of identification test of suspect to be held on 24-3-2003, before Magistrate. In pursuance of the above notice, he along with Muhammad Ali, Basharat and Ghulam Nabi went to city Court, where SIP Rasheed was present and he produced them before Magistrate, who recorded their statements separately, read over the same and obtained signatures. He stated that when his statement was recorded, accused Abdul Wahab was present in court. After recording of their statements, they were taken on the ground floor at the back of court at, the parking lawn, where 9/10 motorcycles were parked in a row and he was asked to identify the motorcycle, on which the accused came on the day of incident. He identified motorcycle red colour CD-70. He further stated that on 19-5-2005, at noontime SIP Rasheed came and served him with notice of identification of suspect arrested by police and asked him to come on 20-5-2005, at city court. On 20-5-2005, he along with Muhammad Shafi and Gul Abbas went to city court, where SIP Rasheed was present who produced them before Magistrate, who enquired his name and identity and he showed him his NIC. He was made to sit in a room. Thereafter they were called in court by Magistrate one by one, he was called at number three, where he saw 10/12 persons in a row, the Magistrate was present and told him to identify the culprit; he identified one culprit and informed the Magistrate that on the day of incident, the accused was sitting on motorcycle and was firing from T.T pistol.

During trial the witness pointed out to accused Muhammad Shoukat and stated that he was sitting on motorcycle and fired from T.T pistol. He stated that he had not stated in his 161 as well as 164, Cr.P.C. Statements about built, complexion, stature and clothes worn by the culprits at the time of incident. In his evidence he has stated that in police statement and statement recorded by the Magistrate that he could identify motorcycle on which accused came riding on it on the day of incident, but he has not stated so in his 164, Cr.P.C. The witness admitted that he had seen the left arm of accused Abdul Wahab bandaged When he was brought in court of Magistrate, where his - statement was recorded in his presence. He admitted that at the time of identification test accused Shoukat was having beard and the dummies who were standing with accused Shoukat at the time of identification parade, some of them were bearded. He admitted that he had not stated role of accused Shoukat played by him before Magistrate. He stated that Magistrate had not obtained his signature on any paper when the identification test was over.

33. P.W.16 SIP Muhammad lqbal stated that on 22-2-2003, he was posted as SIP/duty officer at Al- Fatah Police Station, at about 6-50 p.m. He received wireless message from control that incident of firing has occurred in front of Imam Bargah AlMuntazir Mehdi. Situated at Salman Farsi and Refah Aam Society. He recorded such message on the station diary at Serial No.36. He then informed S.H.O. And high police officials about the incident and proceeded to the scene of offence along with his subordinate staff. The scene of offence was situated in front of Imam Bargah Muntazir AI-Mehdi, Salman Farsi Society, where many persons were present, who informed him that many persons sustained bullet injuries as result of firing inside Imam Bargah and they have been shifted to various hospitals through private vehicles. Mohsin owner of Chapra hotel situated adjacent to Imam Bargah was present and he recorded his 154, Cr.P.C. Complainant on plain paper and obtained his signature and incorporated the same in 154, Cr.P.C. Book at police station Al-Falah. He went to JPMC and prepared inquest report of deceased and handed over the case papers to SIP Yaqoob for further investigation.

34. P.W.17 H.C, Muhammad Kamal Anwar stated that on 10-3-2003, he was posted as constable at ACLC Jamshed town, where accused Muhammad Jamil son of Muhammad Salem was confined in the police lockup of Police Station Jamshed Quarters. SIP Abdul Rasheed of Police Station Jamshed Quarters interrogated accused Jamil son of Saleem in my presence, who disclosed his actual name as Abdul Wahab son of Ali Khan and volunteered to produce the Kalashnikov and the ammunition which was concealed in a house at Malir area. He along with SIP Abdul Rasheed formed police party and proceeded to Malir area in a police mobile. Accused led the police party to Model Colony through Malir Halt. SIP Abdul Rasheed went to Police Station Model colony, whereas they were sitting in the mobile van and recorded arrival entry in the station diary. Thereafter SIP Abdul Rasheed came back and accused led them to Gandi Galli in Lassi Para, in Model colony and stopped in front of House No. B-84, and took them on the 1st floor through its stairs outside. They went to the 1st floor, there was a house, its door was closed but unlocked. Accused pushed open the door and we all went inside the house. The accused took them to the side washroom, there was a wash basin with pedestal. Accused took out one Kalashnikov. SIP Abdul Rasheed inspected the Kalashnikov in their presence. SIP Abdul Rasheed prepared such memo of recovery. They came back at police station and handed over the memo of arrest and recovery to him and directed him to go to Model Colony Police Station and to lodge F.I.R under section 13(E) of Arms Ordinance; he then went to Police Station Model colony, where duty officer A.S.-I. Azim Solangi did not register F.I.R, but directed him to send SIP Abdul Rasheed for registration of F.I.R. He informed SIP Abdul Rasheed on telephone, who came at Police Station Model Colony and registered such F.I.R. In his cross- examination, he admitted that residential houses near the place of arrest and recovery at Lassi Para were situated. One Sultan was the owner of that house from where the recovery was effected, who was residing in the house at ground floor, but he refused to give statement. He stated that he cannot say since how long the accused Abdul Wahab was in police custody.

35. P.W.18 SIP Abdul Rasheed stated that on 10-3-2003, he was posted as SIP at Police Station Jamshed Quarters. He had received investigation of crime case F.I.R Nos. 64, 64 and 66 of 2003 of Police Station Khuwaja Ajmir Nagri under the orders of TPO Jamshed Town. Accused Abdul Wahab was confined at Police Station Jamshed Quarters and he got interrogated him in presence of SIP Tanveer Ahmed and H.C. Raja Khalid, who at first disclosed his name as Jamil son of Saleem but latter on he disclosed his name as Abdul Wahab Afghani son of Ali Khan and volunteered to produce the Kalashnikov and magazine which be had used in the commission of various offences, at Lassi Para Malir, Mode Colony Karachi in House No.B-84. He therefore arranged police party, which consisted of himself, SIP Tanveer, H.C. Raja Khalid, H.C. Mehmood-ul-Hassan, PC Kamal Anwar, and PC Shah Hassan and proceeded to Lassi Para in police mobile van along with accused, he made such entry in the station diary at Serial No.

43. First he went to Police Station Model Colony, where he gave information about his arrival, which was recorded in the station diary by duty officer at Serial No.

45. Accused Abdul Wahab led police party to House No.B-84, situated at Lassi Para in Gandi Galli.

The house was consisting ground and 1st floor. The landlord of that house Sultan was residing at ground floor. He was called and asked to act as witness but he declined. Accused Abdul Wahab produced Kalashnikov and magazine along with 30-live bullets: He prepared such memo of recovery in presence of H.C. Raja Khalid and P.C. Kamal Anwar and registered F.I.R under section 13(e) A.0 at Police Station Model colony as Crime No.29 of 2003. On 11-3-2003, SIP Rasheed Ahmed of Police Station Al-Falah came at Police Station Jamshed Quarters who also interrogated accused Abdul Wahab and also arrested him in case Crime No. 51 of Police Station Al-Falah and prepared such memo of such arrest in his presence and in presence of SIP Aslam Lodhi. He handed over sealed parcels of Kalashnikov with loaded magazine and motorcycle with number MNR 1357, which was recovered in case F.I.R No. 65 of 2003 of Police Station Khuwaja Ajmir Nagri to SIP Rasheed Ahmed. He stated that on 12-3-2003, the investigation of Crime No.29 of 2003 of Police Station Model Colony was entrusted to him under the orders of DIG. On 19-3-2003, he sent the parcels containing Kalashnikov and a magazine to Forensic Science Laboratory for examination. He produced report of Forensic Science Laboratory at Exh.108. The investigation of crime F.I.R No. 29 of 2003 of Police Station Model Colony was transferred to A.S.-I. Muhammad Ashraf, who submitted challan sheet against the accused. In his cross-examination the witness stated that there are number of houses on one side of House No. B84 in Gandi Galli. He admitted that Exh.106, is written in handwriting of Munshi Shah Hassan. He admitted that in Exh. 105, it is written that the while bandage is tied on the left arm of the accused due to injury.

36. P.W.19, A.S.-I. Azim Solangi, stated that on 10-3-2003, he was posted as A.S.-I. Duty officer at Police Station Model Colony. SIP Abdul Rasheed of Police Station Jamshed Quarters along with his staff and accused Abdul Wahab in police mobile van, and he recorded such entry. At about 12-15 night, PC Kamal Anwar of Police Station Jamshed Quarters appeared and produced 154 Cr.P.C.

Statement recorded by SIP Abdul Rasheed and the same was incorporated in 154, Cr.P.C. Book as Crime No. 29 of 2003 of Police Station Model Colony against accused Abdul Wahab for offences under section 13(E) of Arms Ordinance. SIP Abdul Rasheed shown him place of recovery, he inspected place of incident in presence of SIP Tanveer and P.C. Kamal Anwar and prepared such memo and he recorded statements of witnesses SIP Abdul Rasheed, SIP Tanveer and PC Kamal Anwar. On 12-3-2003, he received orders of DIG that case F.I.R No. 29 of 2003 of Police Station Model Colony is transferred and its investigation is entrusted to SIP Abdul Rasheed of Police Station Jamshed Quarters and he recorded such entry in the station diary at serial No.36. He admitted that time of incident of F.I.R No.29 of 2003 of Police Station Model Colony is changed from 2445 to 2345 hours and such correction made in the above F. I. R is not initialed by him.

37. P.W.20, SIP Muhammad Ashraf stated that on 23-3-2003,.He was posted as SIP at Police Station Jamshed Quarters. On that day under the orders of S.H.O. Police Station Jamshed Quarters the investigation of Crime No. 29 of 2003 Police Station Model Colony against accused Abdul Wahab was entrusted to him; which was initially investigated by SIP Abdul Rasheed of Police Station Jamshed Quarters and he submitted such charge sheet to the concerned court. Falah. On the same day at about 9-5 p.m. PC Javed Mehmood of Police Station AlFalah handed over 154 Cr.P.C.

Statement of F.I.R No. 51 of 2003, of Police Station AL-Falah for investigation. He stated that he proceeded to Imam Bargah Al-Muntazir Mehdi Malir Halt. Many persons were present outside the Imam Bargah. He met with complainant Mohsin hotel wala and made enquiries from him, who narrated the facts to him that due to firing many persons received injuries and they had been removed to the various hospitals for treatment. He prepared memo of inspection of the scene of offence at the pointation of Mohsin. He secured footwear, two electric bags, 30-projectiles and the blood lying in the hotel of Mohsin. He also collected empty shells of Kalashnikov and five empty shells of T.T pistol, which were lying scattered outside the hotel near Imam Bargah. He sealed the same in four parcels in presence of Muhammad Hussain and Muhammad Shafi. He recorded 161 Cr.P.C. Statements of complainant Mohsin, Muhammad Shafi and Muhammad Hussain. After that he proceeded to JPMC and after obtaining permission from M. L.O recorded the statements of injured witnesses. He recorded statements of Zahoor Ali, Essa, Imtiaz, Basharat, Rasheed, and Muhammad Ali; and as injured Shabir Hussain was in serious condition, he has not recorded his statement. On 23-2-2003, he recorded statement of SIP Iqbal, A.S.-I. Muhammad Wakeel, and PC Javed of Police Station AlFalah. He also recorded statements of witnessed Gul Abbas and Muhammad Ali. After that he again went to JPMC, where he recorded statement of injured Shabir Hussain. In his presence the witness stated that when he reached scene of offence at Imam Bargah, it was opened. He stated that SIP Rasheed Ahmed has also joined him in assistance of investigation under the orders of DSP. He admitted that he has not noticed a single mark of bullet over the front wall of Imam Bargah near the entrance and there is no blood lying inside the Imam Bargah near its min entrance. The hotel of Mohsin had JALI in front of his hotel. The entrance door of the hotel had also JALI. He stated that he did not notice any bullet mark over JALI of hotel of Mohsin.

He stated that till he had handed over investigation of the case to SIP Rasheed he was quite unaware of the arrest of accused Abdul Wahab. He admitted that P.W. Basharat Hussain had not stated in his 161, Cr.P.C. Statement about Hulia of any accused or any description of motorcycle. He admitted that witness Basharat Hussain had not stated in his police statement that three accused came on motorcycle and they parked motorcycle near Imam Bargah and two alighted from the motorcycle. He admitted that P.W. Basharat Hussain had not stated in his police statement that during incident two of these three culprits had fired at hotel of Mohsin Bhai. He also admitted that P.W. Basharat Hussain had not stated in his police statement that on receiving bullet injury he fell down in the hotel of Mohsin. He admitted that P.W. Gul Abbas was not present at the scene of offence but he was admitted at JPMC. He stated that he had recorded statement of Muhammad Abbas at. Salman Parsi Housing Society on 23-3-2003, he did not remember the time. He admitted that the date 23-3-2003, has changed to 23-2-2003 but the same is not initialed by him. He admitted that P.W. Muhammad Abbas had not mentioned in his police statement that he went to offer Namaz-e-Magerben at 6-25 p.m. He admitted that P.W. Muhammad Abbas had not stated in his 161, Cr.P.C. Statement that he was about 40-paces away from Imam Bargah when the incident took place. He admitted that P.W. Muhammad Abbas had not stated in his police statement that the culprit who was passing on magazine to culprit who armed with Kalashnikov was fair complexion and he was wearing Shalwar Qamees and was having beard. He admitted that P.W.

Muhammad Abbas had not stated in his police station that the culprit who was armed with Kalashnikov looked as Pathan. Likewise P.W. Essa had not stated in his police statement that, the Hulia and the dresses of the culprits.

39. P.W.22, Tapedar Sikander Ali, had prepared sketch of scene of offence. He admitted that there was no cemented structure near the stairs of Imam Bargah.

40. P.W.23, Inspector Rasheed Ahmed stated that on 10-3-2003, he was posted as SIP Investigation at Police Station Shahrahe-Faisal, and he was entrusted investigation of Crime No. 51 of 2003, of Police Station Al-Falah for further investigation by DSP Shah Faisal Town. On 11-3-2003, EIP Muhammad Yaqoob handed over case papers of above case to him. On 11-3-2003, he received telephonic message from SIP Abdul Rasheed of Police Station Jamshed Quarters that accused Abdul Wahab, who was involved in the case has been arrested and lodged at Police Station Jamshed Quarters. On receiving such message he along with DSP Investigation Shah Faisal Town and subordinate staff proceeded towards Police Station Jamshed, Quarters. Accused Abdul Wahab Afghani was lodged at police lockup. He was brought out from the police lockup and was interrogated thoroughly and he arrested him in the case. SIP Abdul Rasheed and SIP Muhammad Aslam Lodhi acted as Mashirs of arrest. He stated that he issued notice to P.W. Muhammad Shafi, Muhammad Hussain, Muhammad Ali and Gul Abbas for identification parade to be held on 12-3- 2003. He stated that on 12-3-2003, he produced accused Abdul Wahab before Mr. Ayoub Bhatti Judicial Magistrate East, and the identification parade was held in presence of Judicial Magistrate on 12-3-2003; and after one hour he was called in the Court and the custody of accused was handed back to him. Then he recorded 161 Cr.P.C. Statements of witnesses , Muhammad Shafi, Gul Abbas, Muhammad Abbas and Muhammad Hussain at city court. On 14-3-2003 he submitted application to Judicial Magistrate Muhammad Ayoub Bhatti for recording 164, Cr.P.C. Statements of the witnesses,. And the Magistrate fixed the date on 20-3-2003, for recording 164, Cr.P.C.

Statements of witnesses and identification of motorcycle, but the 164, Cr.P.C. Statements of witnesses 'were recorded on 24-3-2003. He stated that on 24-3-2003, he produced the accused and the motorcycle before Judicial Magistrate East: the witnesses also arrived in the court; and the Magistrate recorded 164 Cr.P.C. Statements of witnesses one by one in presence of accused. He further stated that on 5-11-2003, he was posted as SIP at Police Station Korangi in the investigation branch. On that day SIP Javed of Police Station Al-Falah informed him on telephone that absconding accused Shahnawaz alias Shani has been arrested and confined at AVCC Garden.

After receiving such message he proceeded to AVCC Garden, where he recorded his arrival entry in the station diary and interrogated accused Shahnawaz alias Shani and arrested him in presence of A.S.-I. Shoukat and PC Muhammad Aleem and prepared such memo of arrest. On 12-11-2003, he submitted application to Judicial Magistrate, Ms. Zahida Khatak for holing identification test of accused Shahnawaz alias Shani. The Magistrate fixed the date on 20-11-2003, for holding identification parade. On 19-11-2003, he served notices upon witnesses Muhammad Shafi, Gul Abbas and Muhammad Abbas. Again says that Magistrate fixed date for holding identification test on 14-11-2003, and on 14-11-2003, he produced accused before Magistrate. The identification test was held and then the custody of accused was handed over to him. He recorded 161, Cr.P.C.

Statements of witnesses in the city court. After completing the investigation, he submitted supplementary challan. On 17-5-2005, he was posted as Reader of D.I.G. Investigation, on that day he received telephone message from Police Station Al-Falah, that absconding co-accused Muhammad Shoukat has been arrested and is confined at police lockup at Jamshed Quarters and he then called A.S.-1. Wakeel Ahmed and PC Mehmood Akhtar of Police Station AL-Falah and proceeded towards Police Station Jamshed Quarters, where accused Shoukat was confined in police lockup. He interrogated accused Shoukat and arrested him and prepared such memo of arrest in presence of A.S.-I. Wakeel Ahmed and PC Mehmood Akhtar. On 18-5-2005, or 19-5-2005, he submitted an application to Illaqa Magistrate Muhammad Farooque of District East for holding identification test of accused Muhammad Shoukat through witnesses Muhammad Shafi, Gul Abbas and Muhammad Essa. The Magistrate fixed date on 20-5-2005, for holding identification test of accused Shoukat. He further stated that he served such notice of identification to witnesses as well as accused. He produced accused before Illaqa Magistrate and identification - parade was held. After identification parade was over, the custody of accused was handed over to him. He stated that he recorded 161, Cr.P.C. Statements of witnesses. After completing the investigation, supplementary challan sheet submitted by him. In his cross-examination he denied the suggestion that left arm of accused Abdul Wahab was plastered but it was bandaged, when he was arrested by him. He admitted that when he had produced accused Abdul Wahab Afghani and Shahnawaz alias Shani for identification parade, both the accused had grown up shaves. He admitted that accused Shoukat had medium size bearded when he was produced before the Magistrate for identification parade.

41. We have scanned the entire evidence with the assistance of learned counsa,1 for the parties. It is stated by P.W.8 Mohsin Ali who was owner of Chapra Hotel stated that he saw three persons came on motorcycle, out of them two were armed with Kalashnikovs and third was armed with T.T Pistol, parked their motorcycle about 6/7 paces away from his hotel. Culprits who were armed with Kalashnikovs came down from the motorcycle and started firing at the persons who were present at the stairs of Imam Bargah waiting for Magrib prayer and third culprit who was armed with T.T Pistol was standing nearby the motorcycle. He further stated that his hotel had iron grill. After finishing firing all the culprits fled away from the scene of offence. He admitted that police had recorded his statement on two occasions. P.W. Mohsin also admitted that he had-not given the descriptions, features and role played by each accused in his statement under section 161, Cr.P.C.

As well as 164, Cr.P.C. Even at the time of identification parade. P.W.9 Basharat Hussain stated that at about 6-30 p.m. a motorcycle on which three persons riding came and parked in front of Imam Bargah about 6/7 paces away from him, two persons alighted from the motorcycle, out of them one culprit armed with Kalashnikov and other with pistol started firing at the people standing outside the Imam Bargah waiting for Azan. He further stated that those two culprits came towards hotel and started firing at the hotel with Kalashnikov and pistol and third culprit who was sitting on the motorcycle was armed with pistol and was firing during the incident and he also proceeded some distance ahead on his motorcycle. He further stated that culprit who was armed with Kalashnikov was firing upon them at hotel whereas co accused who was standing by his side was passing on the magazine. P.W. Basharat Hussain who is also injured witness stated that he had not given descriptions of motorcycle of the culprits in his statement recorded under section 161, Cr.P.C.

As well as 164, Cr.P.C. He also admitted that he has. Not stated that those culprits were Sindhi, Balochi, and Pathan by appearance. This witness also admitted that there was an iron grill in front of hotel of Mohsin Bhai. P.W.10 Gul Abbass stated that he saw three persons came riding on red coloured motorcycle and opened indiscriminate firing with respective weapons upon people present there. The person who was driving the motorcycle was armed With T.T. Pistol and he further stated that culprit who was driving motorcycle was sitting at driving seat and was away from the scene of offence in front of him. He further stated that he Was standing at a distance of 40/45 paces away from motorcycle. He further stated that two culprits who were armed with Kalashnikovs came at Chapra hotel and started firing at the hotel,. He further stated that the person who was armed with pistol was sitting on the driving seat and all the three fled away from the scene of offence in his presence. P.W.12 Muhammad Shafi stated that at the time of incident he saw three motorcycles came riding on a red color motorcycle and stopped infront of. Imam Bargah two of them alighted from the motorcycle whereas one culprit who was driving the motorcycle sitting on the motorcycle. Out of those two one was carrying Kalashnikov and other was holding a magazine in his hand, whereas who was sitting on motorcycle was having T.T. Pistol.

The culprit who was armed with Kalashnikov started firing at the persons standing in front of Imam Bargah and the person who was sitting on a motorcycle was also firing on the persons with T.T.Pistol. The third culprit was standing by the side of culprit who was firing with Kalashnikov and he was holding the magazine. P.W.14 Muhammad Abbass also stated that he saw three persons came on a red color motorcycle and stopped the same. Two persons alighted from the motorcycle out of them one was armed with Kalashnikov and other was holding a magazine of Kalashnikov. The person who was driving the motorcycle was armed with T.T.Pistol and was sitting on motorcycle. He further stated that the persons armed with Kalashnikov and T.T Pistol started firing towards Imam Bargah upon the people present there. He further stated that people ran towards chapra hotel of Mohsin but the accused also started firing at Chapra hotel and then boarded the same motorcycle and fled away from the scene of offence. P.W.15 Muhammad Essa who was said to be an eve- witness stated that while he was running towards the hotel of Mohsin he saw three culprits one armed with Kalashnikov who was firing other culprit standing by his side and the third culprit was sitting on motorcycle armed with T.T Pistol and was firing while he was entering the hotel of Mohsin.

He received bullet injury on his left arm. P.Ws. Namely Mohsin, Basharat Hussain, Muhammad Shafi, Muhammad Abbass, Muhammad Essa and Gul Abbass they posed themselves to be eye- witnesses of the incident. The witnesses contradicted each other on the parking of motorcycle as stated above in their evidence. Witnesses namely Basharat Hussain, Muhammad Shafi, Muhammad Abbass, Muhammad Essa and Gul Abbass stated that third culprit was sitting on the motorcycle whereas witness Mohsin Ali stated that third culprit was standing nearby the motorcycle. Their evidence is contradictory about the weapons carried by culprits at the time of incident as appeared from their evidence as stated above. In the above circumstances, their evidence is not treated to be trustworthy and inspiring confidence as they have contradicted themselves on major points of carrying weapons by the culprits at the time of commission of offence. In case of a capital punishment the evidence of eye-witnesses should be trustworthy and inspiring confidence which attracts the prudent mind about their truthfulness. In such circumstances, we hold that their evidence is untrustworthy and could not be based to convict the appellants. We have also noticed that P.W.8 Mohsin Ali stated in his evidence that there was Iron grill in front of his hotel whereas P.W.21 Muhammad Yagoob Rajput retired police official who was I.O. And who first visited the place of wardat stated in his cross-examination that the hotel of Mohsin had Jali in front of it, the entrance door of the hotel had also Jali. He further stated that he did not notice any bullet mark over the Jali of Hotel of Mohsin, whereas Mohsin stated that there was an iron grill in front of his hotel. P.W. Mohsin and I.O. Muhammad Yaqoob had contradicted each other on installation of iron grill or Jali at the entrance of Chapra hotel of P.W. Mohsin. There is difference between iron grill and Jali and the Jali could be of different kinds, which may be made by cement or thread whereas grill is to be made by iron. If there was a Jali or any iron grill was installed in front of the hotel in the circumstances of this case where there was indiscriminate firing one could not recognize culprits in such situation. This fact also favours the contention of Mr. Abdul Waheed Katpar learned counsel for the appellants that the recognition or identification of culprits in such circumstances is doubtful.

43. P.W Gul Abbas admitted that he had not stated about complexion, built and descriptions of those culprits, but he stated that they were in aged about 20/30 years. This witness also admitted that at the time of identification the dummies were of different features, built and descriptions. P.W.

Muhammad Shafi stated that he has informed the police about complexion of all three accused, but the dummies produced at the time of identification parade were having different complexion, built, features and descriptions. He admitted that he had not disclosed at the time of identification parade, the role played by each of accused. He also admitted that Magistrate had not taken his signature on the memo of identification parade.

44. P.W Muhammad Abbas, who - is said to be eye-witness of the incident, admitted that at the time of identification parade left arm of the appellant/accused Abdul Wahab Afghani was bandaged or plastered, but rest of the dummies standing along with the appellant/accused; their arms were neither plastered nor bandaged. P.W. Essa also admitted in his 161, Cr.P.C. As well as 164, Cr.P.C. Statements about built, complexion, descriptions and features of the culprits. He also admitted that the dummies were of different features, descriptions and height at the time of identification test.

45. All the witnesses had admitted that they have not given complexion, features and description of the culprits in their statements recorded under sections 161 and 164, Cr.P.C.

46. It is noted that three Magistrates had held identification parades at different time. P.W.5, Judicial Magistrate (Muhammad Ayoub), also admitted that the dummies having different built, descriptions and features. He also stated that he did not remember whether at the time of identification test of appellant/accused Abdul Wahab Afghani his left arm was having bandage, though P.W. Muhammad Abbas admitted that appellant Abdul Wahab Afghani having bandage or plaster on his left arm at the time of identification test and the dummies having no such bandage or plaster at their left arms.

47. In Special Anti-Terrorism Jail Appeal No.51 of 2005, and Confirmation case No. 09 of 2005, a Division Bench of this court, headed by his lordship Mr. Justice Rahmat Hussain Jafferi (as then he was) and Mr. Justice Munib Ahmed Khan as Member, in which accused Abdul Wahab was appellant, his lordship noted that the appellant's arm was in bandages; the Magistrate should have concealed such bandages or put similar bandages on the dummies so that each person should have seen alike. It was easy for the police to have informed the witnesses that the person with bandages was the accused person therefore, the witnesses could have easily picked out such person with specific marks. Thus, the identification test in the present circumstances of the case carries no weight.

48. In the present case, the evidence against the appellants is of only identification parade. The contents of the F.I.R reveal that witnesses had seen the accused for the first time. In such circumstances, , identification parade becomes essential, which is to be conducted strictly in accordance with law after completing. Legal formalities. It is also settled principle of law that role of the accused in identification test should be described by the witnesses, if the witnesses had not described role of the accused at the time of identification parade, therefore, in presence of such defect; identification test lost its value and cannot be relied upon. From the evidence of the witnesses as discussed above, the witnesses did not mention name and role of the accused in their statements recorded by the Magistrate after identification parade. It is also settled principle of law that features, descriptions and built of the dummies should be the same as of the accused, but we have noted that in the instant case all the witnesses who had identified the appellants/accused in different identification tests and the Magistrates, who had conducted identification tests have admitted that the dummies were of different features, descriptions and height at the time of alleged identification test.

49. We have also noted that at the time of all the identification tests, the requirements of law have not been observed by the Magistrates conducting identification tests: The identification test of appellant Shahnawaz alias Shani was held after delay of nine days, whereas identification test of appellant/accused Shoukat was held on 19-5-2005, and he was arrested on 10-5-2005, however the incident had taken place on 22-2-2003.

50. In the case of Shafqat Mehmood and others v. The State 2011 SCM R 537, the Hon'ble Supreme Court has observed as under:-- "Identification was held after 7 days of arrest of accused. Said delay created. a lot of doubts regarding identification parade. Statements of P.Ws./eye-witnesses were also not consistent with each other. Courts below had erred in law while giving finding guilt against appellant. Contents of F.I.R were also not in consonance with medical evidence."

51. In the case of State/Government of Sindh through Advocate-General Sindh, Karachi, v. Sobharo, the Hon'ble Supreme Court has noted as under:-- "The facts of the case in which the eye-witnesses did not give name of the accused to the complainant nor gave description of his features for the reason that he was not known to them from before and was seen by them for the first time. We, therefore, agree with the trial Court that identification test has no value for want of descriptions of respondent in F.I.R. When ocular evidence and evidence of ,identification test in the analysis of evidence become unreliable and doubtful the remaining evidence alone is not sufficient and of satisfactory nature to justify conviction. "

52. In the case of Khadim Hussain v. The State (1985 SCM R 721), the Hon'ble Supreme Court notes as under:-- "It is not clear from the entire evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes. If it was the identification of their role then it should have been specific so as to complete the picture of the crime and reinforce the case against them for commission of the crime. The value of such an identification parade was pointed out as early as 1924 in Lal Singh v. Crown I L R 51 Lah. 396, in following words: "The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It might merely mean that the witness happens to know that accused person.

The principal evidence of identification is the evidence of a witness given in the Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight."

53. In the case of Mushtaq Ali Kalhoro v. The State (1996 PCr.LJ 1315), a Division bench of this Court, held as under: "The rule laid down in the case of Muhammad Sadiq v. Muhammad Sarwar 1979 SCM R 214, shows that irrespective of the fact that the witness had no animosity to falsely implicate an accused, it has to be seen that the evidence of the witness is inherently probable, and whether it is consistent with the circumstances of the case or not. The three eye-witnesses in this case may have been at the place of incident in this case, but it is doubtful if they had enough opportunity to see the culprits and their features so that they could pick them out in the identification parade held after six months of the incident. We have already held the identification parade itself of no evidentiary value in this case."

54. In the case of Lal Pasand v. The State (PLD 1981 Supreme Court 142), the Hon'ble Supreme Court, has held as under: "It is true that the witness said that he had identified the appellant, because he had green eyes and a thin neck, but in this part of the world there are so many people with green eyes and thin necks.

And, further, we do not know whether this explanation of the witness was a form of rationalization after the event, because he had not given any description of the murderer in his statement to the police. But, if the murderer had any physical features which distinguished him from other people whether it be green eyes or a thin neck, it was the witness's duty as a retired police officer to give the description of the assailant whatever it be in his statement to the police and as he did not this cannot but react against the entire prosecution case.

' This is so obvious that the learned Chief Justice has fallen back on the possibility that the witness was able to identify the appellant, because he must have had the opportunity to see him in the village. With all respect to the learned Chief Justice as the witness was emphatic that he had never seen the murderer except at the murder, the view taken by the learned Chief Justice involves the substitution of evidence but conjecture and we cannot agree with it. However, as far as we can see, the main ground on which the learned Chief Justice bases his finding that Saadullah Khan's opinion was sufficient to prove the appellant's guilt, was the assumption that Saadullah Khan had been able to memorize the appellant's features even though he had seen him for a fleeting moment on 9-8-1973, because he was a trained police officer.

' With all respect to the learned Chief Justice, powers of observation vary from individual to individual, and though a trained police officer is likely to be more observant than the ordinary man, sometimes, if we may be permitted to say so, country bumpkins are extremely observant, whilst geniuses are proverbially absentminded. Therefore, we are unable to subscribe to the proposition that a police officer has an infallible memory at least in the matter of remembering and identifying the faces of strangers. However, as we do not wish to lay down a wider proposition than is necessary for the decision of this case, we would observe that the position might have been different if the prosecution had led evidence to show that Saadullah Khan was a man with a perfect memory, who had never been wrong in his identification of strangers. But, as there is no such evidence, we do not see how the possibility of an erroneous identification by this witness can be ruled out."

55. We have also noted that the statements of the witnesses are recorded by the Investigating Officer with the delay and no plausible explanation for such inordinate delay is available on record.

We have also noted that witnesses have made improvements and exaggeration in their statements.

56. It has also been noted that in such circumstances, where the incident had taken place and there were indiscriminating firing and nine persons lost their lives, eight persons sustained injuries; where every person was trying to save his life; identification of the culprits by the witnesses is doubtful. It is also admitted by the witnesses Mohsin Ali and Muhammad Yaqoob that there was a grill (Jali) at the outer door of alleged Chapra hotel of P.W. Mohsin and it is also admitted fact that the darkness was spread over, in such circumstances, we are of the view that identification of the assailants by the witnesses is also doubtful. We have also examined the memo of identification test which had been held by different Magistrates at different times, had not been held in accordance with law laid down by the superior courts for holding identification test. We have noted that there was bandage/plaster at the left arm of appellant Abdul Wahab Afghani and the dummies mixed up with him; their arms were not bandaged or plastered at the time of identification test. This fact rendered identification test as doubtful, as observed by learned division bench of this Court.

57. We are of the opinion that recovery of Kalashnikov and motorcycle from appellant Abdul Wahab is also doubtful, as no person from locality was cited as witness, as required under section 103, Cr.P.C. The recovery of pistol from appellant Shoukat is also of no value, as no independent witness was cited during alleged arrest and recovery of pistol from possession of appellant Shoukat.

58. We have also gone through the case of Muhammad Akram Rahi and others v. The State (2010 SLJ (SC) 708, and Ali Khan and another v. The State (2010 PCr.LJ 11), relied upon by learned Additional Prosecutor General. With all due respect we are of the view that both the judgments are distinguishable from the facts and circumstances of the case in hand.

59. We have noted that the prosecution case hinges upon identification test of the appellants held before Magistrates. As we have already observed that all the identification tests were held against the principles of law laid down by the superior 'courts time and again. We are of the considered view that identification tests are doubtful and the benefit of a slightest doubt is to be extended in favour of the accused, as held in the case of Tariq Parvez v., The State 1995 SCM R 1345. The identification tests are doubtful, and the prosecution has no other incriminating evidence against the appellants. Consequently, we allow these appeals, set aside the impugned judgment. The appellants are acquitted from the charge and are directed to be released forthwith, if not required in any other case. The confirmation case No. 10 of 2006, is answered in negative.