1. ' RAJA JALAL-UD-DIN, C.J.---This criminal appeal under section 410, Cr.P.C. Is preferred against the judgment/order dated 28-4-2011 passed by the Judge Anti-Terrorism Court No,1 Gilgit whereby appellant No,1 was convicted under section 302/34, P.P.C., under section 7(a), ATA and sentenced to death with a fine of Rs,2,00,000 (Rupees two lac), 10 years' R.I. Under section 324, P.P.C. 7(a) of A.T.A.
2. With fine of Rs,1,00,000 (rupees one lac), 10 years' R.I. Under section 337-D, P.P.C. 7(c), A.T.A. With Arsh of Rs,1,00,000 and 7 years' R.I. Under section 13(b), A.O. While appellant No, 2 was convicted under section 302/34, P.P.C. Read with section 7(a), A.T.A. And. Sentenced to imprisonment for life, 10 years'
3. R.I. Under section 324/34, P.P.C./7(c), A.T.A. With a fine of Rs, 1,00,000 and 10 years' R.I. Under section 337-D, P.P.C./7(c), A.T.A. With Arsh of Rs,1,00,000.
4. ' The F.I.R. No,88 of 2010 has been lodged on the report of Muhammad Nazeer son of Qadir Khan resident of Shote Gilgit who vide his written report disclosed that he is a driver by profession. On 29- 3-2010 he was informed that a vehicle of Shote village has been attacked by opening fires by the unknown miscreant. The vehicle No,GLT-NCR-0589 in which his brother Samad Khan along with Muhammad Akbar were travelling and whereby Muhammad Akbar had died whereas Samad Khan and Haibat Ali had received injuries and were in the operation theatre at DHQ Hospital Gilgit. The driver of the vehicle was Haibat Ali.
5. ' The F.I.R. Was promptly lodged and investigation started. Evidence was gathered, recoveries along with site plan were made and identification parade was also conducted. Resultantly the appellants/convicts were challaned and case put up for trial under the Anti-Terrorism Act, 1997.
6. ' At the end of trial the trial Court has sentenced the appellants/convicts as aforesaid hence this appeal.
7. ' Counsel for the appellants/convicts pleaded that the case has been initiated on mala fide intentions because the venue of the occurrence is shrouded in mystery and the occurrence has not taken place in the manner alleged. In this context the learned counsel relied upon the written report of the complainant which is Exh.P.W.1/A and placed on file. He pointed out over writings and cuttings in the written report where after the name of village Baseen at two places clearly visible from the report.
8. ' Secondly, that the identification parade conducted is not in a manner prescribed by law the requirements of identification have not been followed as such it cannot be termed as a good and valuable piece of evidence against the appellants/convicts.
9. ' The statements of the occupants of the vehicle in question are also not trustworthy and confidence-inspiring. The recoveries against the appellants/convicts are also fabricated and are not directly recovered from the appellants/convicts. The recoveries are not a result of pointation and neither has the weapon of offence recovered from the possession as alleged.
10. ' The forensic laboratory findings whereby the empty shells are attributed to have been fired from the recovered Kalashnikov are a result of belated sending to the test and hence cannot be attributed to the appellants/convicts.
11. ' Counsel for the convicts/ appellants agitated that the impugned judgment/order under appeal is not only null and void in the eyes of law but also factually incorrect and the conviction has been based merely on surmises and conjectures and all benefit of doubts have been extended to the prosecution instead of defence. That the only piece of substantive evidence with the prosecution case was the identification parade, which is a defective one and devoid of any law force. That the appellants are not directly charged in the F.I.R., in such circumstances identification parade was the only solid piece of evidence which is mockery in the eyes of law as is evident from the statements of P. Ws. And the Magistrate who conducted the identification parade. That the injured/eye-witnesses have made material improvements at trial to which they were duly confronted, but the trial Court has based conviction on these statements, which are not acceptable under the criminal justice system. That all the pieces of evidence are defective, as such the same cannot be relied upon without any independent corroboration,. Which is lacking in the instant case. That the evidence of forensic laboratory is also unreliable as both crime empties and weapon of offence were sent together to the expert who is not an authorized Arms Expert. That the appellants were under 18 years of age and on the application of appellants a Medical Board was constituted to determine the age, but the file of trial Court is silent about the fate of the age and death sentence even under ATA cannot be awarded to a minor, but the trial Court awarded death sentence to appellant No, 1 ignoring his own orders. That recovery of Kalashnikov was effected allegedly from one Saeed and F.I.R. No,89 of 2010 was lodged against him, but later on it was used against the appellant No,1 Arifuddin and the said Saeed was cited as P.W. But later on abandoned, making the alleged recovery a highly doubtful evidence and the said alleged recovery of Kalashnikov is not proved against Arifuddin. Then the subsequent so called identification parade is liable to be ruled out of consideration, because there are great contradictions in the statements of the said eye-witness and the identification parade. That the prosecution has miserably failed to prove its case against the appellants beyond any reasonable doubt and prayed that the appellants may be acquitted from the charges. To substantiate his arguments, counsel for the convicts/appellants referred PLD 1963 (W.P) Karachi 805, PLD 1964 (W.P) Karachi 356, PLD 1981 Supreme Court 112, 1988 SCMR 557, 1990 PCr.LJ 1018 (Karach), 1993 SCMR. 1602 (S.C), 1995 SCMR 127 (S.C.), PLD 1995 (S'yrerne Court) I, 1995 SCMR 599, 1998 PCr.LJ 1486 (Karachi), 2002 PCr.LJ 518 (Karachi), PLD 2005 (Quetta) 86, 2008 SCMR 302 (Shariat Appellate Bench), 2008 SCMR 6, 2009 SCMR 84, 2010 PCr.LJ 211 (Karachi) and 2011 PCr.LJ 470 (Lahore).
12. ' On the other hand Assistant Advocate-General representing the State assisted by private counsel for complainant party nmosed the contentions made by the defence counsel with the submission that there is eyewitness account of P.W.2 Samad Khan and P.W.3 Haibat Ali, who have directly charged the accused in their statements. That P.W.4 Muhammad Issa has also clarified the statements of P.W.2 and P.W.3 as immediately after the occurrence the said P.W. 4 has seen three persons running away from the place of occurrence. That the eye-witnesses have identified the accused during the identification parade conducted in the presence of Magistrate. That there are confessional statements of the accused recorded by the S.P. Gilgit under the provisions, of section 21-H of the ATA which is admissible in evidence, further strengthening the prosecution case. That the medical evidence also fully supports the prosecution version. That the recovery of 16 empty shells from the place of occurrence and the recovery of Kalashnikov from the accused Arifuddin coupled with the positive report of Arms Expert fully corroborates the statements of eye-witnesses, hence the prosecution has successfully proved its case against the accused beyond any shadow of doubt. The accused are liable to be awarded capital punishment. To substantiate their arguments, A.A.-G. And private counsel for complainant referred 1972 PCr.LJ 708 (Karachi), 2006 YLR 1161 (Lahore), 2006 YLR 3057 (Lahore) and 2006 YLR 1775 (Lahore).
13. ' We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the available record with their able assistance minutely.
14. ' The statement of P.W.1 Muhammad Nazir is perused and is a reproduction of the contents of the F.I.R. And no worthwhile addition or subtraction or major improvement has been mentioned except that he is illiterate and the other matter regarding the cuttings in the initial application were not made in his presence. The star witness Samad Khan P.W.2 has disclosed that he along with his nephew Haibat Ali and brother Muhammad Akbar proceeded towards the city. P.W.2 Samad Khan occupied the front seat and deceased Muhammad Akbar was sitting in the rear seat while the vehicle was being driven by Haibat Ali. On the way. P.W. Bulbul also took the rear seat. At the place of occurrence he saw three persons sitting on the upper side of the channel. Suddenly the convict Arif-ud-Din jumped on the road and started firing at the car with his Kalashnikov from the front side. The other two accused namely Mahfooz Wali and a third person who could not be recognized started firing from the upper side with Kalashnikovs. P.W. Haibat accelerated the vehicle on the way he also saw Muhammad Essa going on foot. When they reached near the house of Ghulam Muhammad he realized that he had been injured alongwith Haibat and his brother deceased Muhammad Akbar. From there the vehicle was rushed to the DHQ Hospital. Brother Akbar Khan had already expired. Identification parade was conducted where he recognized and. Pointed out both the convicts/appellants. The statement of P.W.3 Haibat Ali who is driver of the vehicle gives a similar statement which is at par with P.W.2 and P.W.4. Muhammad Essa has identified convict Arifuddin as the assailant who opened fire shots at the vehicle from the road side.
15. ' Before going into the other facts of the case we have perused the site plan Exh.P.W.14/A which gives a clear view regarding the placement of the vehicle at the site of occurrence along with the points where the fire shots were opened on the fatal day. At point-1. Is the car which was occupied by the deceased and witnesses and point-2 is shown as the spot where the fire shots were opened on the vehicle. The. Distance between point-1 and point-2 i.e, the vehicle and the accused is shown as seven paces. Point-3 is from where 16 empty shells of Kalashnikov were found. The distance between point-2 and point-3 is three paces. Point-4 where eye-witness Muhammad Essa is shown which is at distance of 20 paces from the vehicle in question. Point-5 is shown as the water channel (Cool Bala). The very interesting thing in the case is that the site plan is not according to the events narrated. The statements of the eye-witnesses have without doubt stated that the fire shots were opened from two different locations. One by the accused who came on the road and opened direct fire, shots at the vehicle which was carrying the witnesses, injured and the deceased and second fire shots were opened from the upper side of the. Channel thereby showing two groups of assailants but the site plan does not disclose any location from where the second set of accused may have fired on the vehicle. Neither any empty shells were found from the place above the upper channel where the fire shots are alleged to have been opened. The site plan has been drawn on the pointation of eye witness Muhammad Essa on 29-3-2010. It is very much possible that the second set of fire shots may not be opened from above the upper channel. The other interesting fact which has been concealed is that the distance from where the second set of fire shots by two accused from above the water channel is also not given. Such material concealment of facts gives an adverse reflection on the mode of investigation and also raises the suspicions that the matter may have been exaggerated to rope in other innocent people. There may be the possibility that other individuals may have been present or abated the commission of the crime but concrete proof of their involvement has not been furnished. As the site plan has been drawn at the initial stages of the investigation where in the desire of implicating others may not have been present but later on, we feel that same may have been done by none citing of the other two accused gives a presumption of innocence in their favour.
16. ' The other matter regarding the vehicle along with the entry holes of bullets of a vehicle could have been proved through photographs placed on record along with witnesses could also give a clear picture of the happenings of the day, a sketch of the car along with entry and exit holes could have been shown. The same has not been elaborated. So in our view we feel that in the circumstances discussed the assailant could only have been one person.
17. ' All the witnesses Samad Khan, Haibat Ali and Muhammad Essa state that they had seen the assailant opening fire shots at the vehicle which was attacked and have definitely taken the plea that they can identify the assailants if they are brought face to face for identification. The said identification was done so and all the eye-witnesses have definitely pointed out the convict Arif- ud-Din as opening the initial fire shots from the road side. The identification parade has been challenged by the defense regarding its operation and manner of conducting it. The matter and the objection has been deliberated and minutely perused but we feel that no major gross mistake could be observed which is contrary, to the manner laid down by law.
18. ' The distance between the empty shells at point-3 and from the distance from the accused is 3 paces which is very much logical as the fired empties are thrown out of the chamber to quite a distance after being used and extracted by the ejector from the chamber of the gun. It is quite impossible that the empties found from point 3 may also include the empties which were alleged to have been opened from the water channel as alleged. The empty shells found and parcel prepared on 29-3-2010.
19. ' Regarding the recovery of the weapon of offence the defence is of the version that there is no direct recovery of the weapon of offence from the convict Arif-ud-Din but the individual had nominated the convict Arif-ud-Din as the owner of the same gun. The said P.W. Had later on resiled from his statement and the same cannot be used against him. The Kalashnikov was recovered from the cattle shed of convict/appellant Arif-ud-Din and the minor boy present there identified the weapon of offence (Exh.P.W.9/C) belonging to the convict/appellant Arif-ud-Din. Tie P.W.8 also supports the same.
20. The empty shells found from the spot of occurrence were sent to the forensic laboratory which was proved positive as to have been fired from the Kalashnikov recovered from the convict/appellant Arif-ud-Din. The P.W.10 Firdous Ali, Tehsildar his been cited as a witness of the recoveries of the weapon of offence along with the identification formalities. The objection regarding the validity of the ballistic test result holds no ground.
21. ' The objection regarding the convicts/appellants being minors is not seriously contested by the counsel for convicts/appellants and hence the benefit of the same at the appeal stage can not be granted to him.
22. ' In the light of the material placed on record we feel that the statements of the witnesses and injured in the incident are unrebuttedly confidence-inspiring. No material has been placed on record for the false involvement of the convict/appellant in the case. No doubt the weapon of offence (Kalashnikov) has not been directly recovered on the pointation of the convict/appellant Arif-ud-Din but the evidence gathered shows that it was the property of the said convict and the weapon of offence was also owned by the convict in the presence of Magistrate. The positive result of the empty shells to have been recovered and proved to have been fired from the recovered weapon of offence points the guilt against the convict for being used by him.
23. ' The sectarian motive for the murder along with the other material placed on record we feel that the death sentence awarded to convict/appellant Arif-ud-Din by the trial Court, has rightly been passed and needs no interference. Whereas the case against the convict/appellant Mehfooz Wali has its defects as. No recovery of empty shells has taken place from the point where he had been cited to have opened fire. In the presence of the material available on record we acquit the convict/appellant Mehfooz Wali from all the charges levelled against him. He may be released forthwith if not required in any other case.
24. ' The murder reference made by the Judge Anti-Terrorism Court No,1 Gilgit under section 25 of the Anti-Terrorism Act 1997 read with section 374, Cr.P.C. Is answered in affirmative to the extent of convict/appellant Arif-ud-Din and the death sentence awarded to him is confirmed under the provisions of section 376, Cr.P.C. While the reference made by the Judge Anti-Terrorism Court-No, 1 Gilgit to the extent of convict/appellant Mehfooz Wali is answered in negative.