' NAIMATULLAH PHULPOTO, J.---Appellants Atta-ur-Rehman alias Ibrahim alias Umer alias Tahir son of Habib-ur-Rehman and Shahzad Ahmed Bajwa alias Umar son of Mushtaq Ahmed Bajwa were tried by learned Anti-Terrorism Court No,II, Karachi, Division, Karachi, in Special Case No,58 of 2004 for offences under sections 302, 324, 427, 34 P.P.C., 3/4/5 Explosive Substances Act, 1908 and 7 Anti- Terrorism Act, 1997. Appellants Atta-ur-Rehman and Shahzad Ahmed were convicted under sections 302(b) read with 34, P.P.C. And read with section 7(a) of the Anti-Terrorism Act, 1997, 3 of the Explosive Substances Act, 1908, 7(h) of the Anti-Terrorism Act, 1997, 7(d) of Anti-Terrorism Act, 1997, 337-F(vi) read with 34, P.P.C. Read with section 7(e) of the Anti-Terrorism Act, 1997, 337-F(iii) read with 34, P.P.C. Read with section 7(c) of the Anti-Terrorism Act, 1997 and 337-F(v) read with 34, P.P.C. Read with 7(c) of the Anti-Terrorism Act, 1997 and sentenced them as under:---
(a) For causing Qatl-e-Amd of deceased persons namely Sepoy Ishtiaq Hussain and Kashif, an offence punishable under section 302(b) read with 34, P.P.C. And r/w section 7(a) of the Anti- Terrorism Act, 1997, the accused persons are awarded death sentence as ta'zir, on each count.
They are directed to be hanged by neck till they are dead;
(h) For throwing two handgrenades at the vehicle of the Rangers and causing explosions, an offence punishable under section 3 of the Explosive Substances Act, 1908, accused Shahzad Ahmed Bajwa is awarded imprisonment for life;
(c) Since accused Shahzad Ahmed Bajwa has been convicted under the provisions of the Explosive Substances Act, 1908, therefore, his whole property is directed to be forfeited to the Government, as provided under section 5-A of the Explosive Substances Act, 1908;
(d) For causing damage to the vehicle of Rangers GS-87-9089 and Mazda Wagon bearing Registration No,JE9445, an offence punishable under section 7(d) of the Anti-Terrorism Act, 1997, each of both the accused are directed to suffer R.I for 10(ten) years and to pay fine of Rs:20,000 (twenty thousand) each or in default to undergo R.I for 6(six) months more;
(e) For intimidating the Rangers Personnel in order to force them or refrain them from discharging their lawful duties, an offence punishable under section 7(h) of the Anti-Terrorism Act, 1997, each of both the accused are awarded R.I for 10(ten) years and to pay fine of Rs,50,000 (fifty thousand) each, or in default to undergo R.I for 6(six) months more;
(f) For causing Jurh Ghayr Jaifah Munaqqillah to injured Naik Mushtaque Ahmed, an offence punishable under section 337-F(vi) read with 34, P.P.C. And read with section 7(c) of the Anti- Terrorism Act, 1997, each of both the accused are sentenced to suffer R.I. For 7(seven) years as ta'zir;
(g) For causing Jurh Ghayr Jaifah Mutalahimah to injured Hay: Muhammad Munir, an offence punishable under section 337-F(iii) read with 34, P.P.C. And read with section 7(c) of the Anti- Terrorism Act, 1997, each of both the accused are sentenced to suffer R.I. For 3(three) years as ta'zir;
(h) For causing Jurh Ghayr Jaifah Hashimah to injured Hay: Muhammad Munir, an offence punishable under section 337-F(v) read with 34, P.P.C. And read with section 7(c) of the Anti- Terrorism Act, 1997, each of both the accused are sentenced to suffer R.I. For 5(five) years as ta'zir;
(i) The accused are directed to pay compensation of Rs,1,00,000 (one lac) each to the legal heirs of each of the two deceased persons namely Sepoy Ishtiaque Hussain and Kashif and Rs,20,000 (twenty thousand) to each of the injured Naik Mushtaque 'Ahmed and Hav: Muhammad Munir, as provided under section 544-A, Cr.P.C. Or in case of their failure to pay the compensation each of them shall 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 injured persons at the rate mentioned above and the amount of fine, if realized, be deposited in the Government Treasury.
2. All the sentences were directed to run concurrently and benefit of section 382-B, Cr.P.C. Was extended to the appellants. Learned Anti-Terrorism Court made reference to this Court for confirmation of death sentence awarded to the appellants. By this single judgment, we dispose of the same.
3. Brief facts of the prosecution case, as disclosed in the F.I.R are that on 19-3-2004 Hawaldar Muhammad Munir of Abdullah Shah Ghazi Rangers lodged his Report, alleging therein that on 19-3- 2004 at 3-40 p.m. Under Balouch Colony Bridge, Shahrah-e-Faisal, Karachi, he along with Naik Mushtaq Ahmed, Sepoy driver Sikandar Ali, Sepoy Ishtiaq Hussain, Sepoy Shakeel and Sepoy Willayat were performing official duty in Government Vehicle No,GS-9089. At 1540 hours, it is alleged that armed persons appeared in white Suzuki Margalla Car bearing Registration No,GS- 0345 from National Bank Service Road and started firing at the Rangers personnel deployed in official vehicle and deterred them from discharging their lawful duties, as a result of indiscriminate firing, it is alleged that complainant Hawaldar Muhammad Munir, Naik Mushtaq, Sepoy Ishtiaq Hussain and private persons (passers-by) namely Nawab, Maqbool, Maqsood and Kashif received fire arm injuries. Out of them, Sepoy Ishtiaq Hussain and private person Kashif succumbed to their injuries. It is alleged that appellants used hand-grenades at the vehicle of the Rangers personnel, damage was caused to the official vehicle. After the incident, police mobile van of Police Station Bahadurabad headed by A.S.-I. Muhammad Qasim, who was on the patrolling in the area, reached at the spot, thereafter, SIP Mir Afzal also reached at the place of occurrence, entry of incident was made at Police Station Bahadurabad. All the injured persons were removed to the Jinnah Hospital, Karachi, in the police mobile. Rangers officials also reached at the spot. Dr. Abdul Rasheed Khokhar MLO examined the injured persons. Injured Ishtiaq and Kashif had expired on account of fire arm injuries. S.H.O. Police Station Ferozabad recorded statement of injured Hawaldar Munir at 7-00 p.m.
At JMPC and incorporated it in 154 Cr.P.C. Book vide Crime No,179 of 2004 under sections 302, 324, 427 & 34, P.P.C., 3/4/5 Explosive Substances Act, 1908 and 7 Anti-Terrorism Act, 1997.
4. Investigation was entrusted to Inspector Muhammad Riaz, who inspected the place of Wardat, secured 56 empty bullets of SMGs, he also secured 6 projectiles, 2 magazines of SMGs, .30 live bullets. Pieces of hand-grenades, blood stained earth and blood-stained newspaper were collected from the place of wardat. P.C. Abid, who was deployed at National Bank had also fired a few rounds from his service SMG at the culprits, his SMG was also secured by the I/O. All the articles recovered from the place of Wardat were sealed in presence of mashirs namely Muhammad Shafique and Hashmatullah and such mashirnama was prepared. Rangers officials had removed damaged official van from place of occurrence to the Head Quarters. On 20-4-2004, white coloured Margalla Car bearing Registration No,GS0345, parked unattended, was recovered from outside the Mona Plaza, Gulshan-eIqbal, Karachi, which was used by appellants in the commission of the offence, the same was secured by SIP Manthar Ali of Police Station Ghulshan-e-Iqbal on the pointation of one Muhammad Raza and one live bullet of SMG bearing No, NK-1988, one photocopy of Registration paper of Car bearing Registration. No,AAD-043 in the name of Javed Ahmed son of Sagheer Ahmed were also recovered and memo of recovery, and seizure of the car bearing Registration No,GS-0345 was prepared in presence of mashirs namely Syed Muhammad Raza and Gohar Rahman. At the time of incident, one wagon bearing Registration No,JE-9445 of Route Y-2, was passing at the place of incident, was also recovered and passengers of the wagon namely Nawab, Maqbool and Maqsood had received bullet injuries in the incident. On 13-6-2004 at 5-50 p.m., SIP Atiq-urRehman of AVCC along with raiding party, raided Jinnah View Apartments situated at Al-Falah Society. After encounter, arrested appellant Atta-ur-Rehman alias Ibrahim alias Umar alias Tahir and Shahzad Ahmed Bajwa and two others. It is alleged that from the possession of appellant Atta-urRehman, one Kalashnikov with two magazines, one hand-grenade and one T.T.
Loaded were recovered for which he had no licence/permit, while from the possession of appellant Shahzad Ahmed Bajwa one Kalashnikov, loaded with two magazines, one hand-grenade and one T.T. Pistol were recovered for which he had no licence/ permit. All the illicit arms, live bullets were sealed at the spot. Mashirnama of arrest and recovery was prepared in presence of mashirs Muhammad Akram and Maqsood Ahmed. On 23-6-2004, both appellants were put in identification parade through eye-witnesses/injured Hawaldar Muhammad Munir, Sepoy Shakeel Ahmed, Sepoy Wilayat Khan, Driver Sepoy Sikandar Ali, P.C. Muhammad Abid and Muhammad Shafiq before learned Judicial Magistrate, Karachi East. Both the appellants were rightly picked up in the identification parade by the eye-witnesses held by Judicial Magistrate. Specific role was assigned to them in the commission of offence. Learned Judicial Magistrate prepared memo of identification parade. During investigation Inspector Muhammad Riaz had sent blood-stained clothes of deceased Sepoy Ishtiaq and Kashif, bloodstained earth collected from the place of wardat so also blood-stained newspaper to the Chemical Examiner Laboratory at Karachi, after sealing the same in separate parcels. According to the report of the Chemical Examiner, articles were stained with human blood. Inspector Muhammad Riaz had also sent 56 empty shells of bullets, 4 projectiles, 2 bullets, 2 magazines, 31 live bullets and 1 SMG Rifle bearing No,5033557 of P.C. Muhammad Abid to FSL to match with SMGs recovered from possession of the appellants, which were sent to FSL by AVCC Garden for examination and report. After usual investigation, challan was submitted against appellants under sections 302/324/427/34, P.P.C., 3/4/5 Explosive Substances Act, 1908 and 7 Anti- Terrorism Act, 1997. Fasih alias Hamad and Shahab were shown absconders in the challan sheet.
Case proceeded against them under section 512, Cr.P.C. Proceedings under sections 87 and 88 Cr.P.C. Were concluded against them.
5. Charge against Atta-ur-Rehman alias Ibrahim alias Umar alias Tahir and Shahzad Ahmed Bajwa alias Umer was framed by learned Anti-Terrorism Court No,II, Karachi Division, Karachi under sections 302/324/427/34, P.P.C., 3/4/5 Explosive Substances Act, 1908 and 7 Anti-Terrorism Act, 1997.
Both the appellants pleaded not guilty to the charge and claimed to be tried.
6. Prosecution in order to substantiate the charge, examined the witnesses namely, P.W.1 Sepoy Riaz Ahmed Exh.10, he produced memo of inspection of dead body of deceased Ishtiaq Hussain at Exh.11 and Inquest Report at Exh.12. P.W.2 Dr. Abdul Rasheed Exh.13, he produced MLC of deceased Ishtiaq at Exh.14, MLC of injured Mushtaq at Exh.15, Final Medico-legal Report of Mushtaq at Exh.16, MLC of injured Nawab Khan at Exh.17, Final Medico-Legal Report of injured Nawab Khan at Exh.18, MLC of injured Maqsood at Exh.19, MLC of injured Maqbool at Exh.20, Final Medico-Legal report of injured Maqbool at Exh.21, MLC of deceased Kashif at Exh.22, MLC of injured Hawaldar Munir at Exh.23, Final Medico-Legal Report of injured Hawaldar Munir at Exh.24, Final Medico-Legal Report of injured Nawab Khan at Exh.25, and letter of request bearing endorsement of cause of death of deceased Ishtiaq at Exh.26. P.W.3 Dr.Abdul Shakoor Bhatti Exh.27, he produced letter of request bearing his endorsement regarding cause of death of deceased Kashif at Exh.28. P.W.4 Mr. Zahid Hussain Metlo, XIV Judicial Magistrate, Karachi East Exh.29, he produced letter of request for holding identification parade of accused at Exh.30, memo of identification parade of accused persons at Exh.31. P.W.5- Sepoy Shakeel Ahmed Exh.46, he produced notice served upon him for identification parade at Exh.47. P.W.6 Hav: Muhammad Munir Exh.48, he produced Photostat copy of Roznamcha Register at Exh.49 and his 154 Cr. P. C. Statement at Exh.
50. P. W.7-Sepoy Sikandar Ali Exh.51. P.W.8 Naik Mushtaq Ahmed Exh.52. P.W. Sepoy Wilayat Khan was given up by the learned SPP for the State vide his statement at Exh.53. P.W.9 Muhammad Shafiq Exh.54, he produced memo of inspection of the place of incident and seizure at Exh.55 and notice for identification parade, at Exh.56. P. W.10 H.C. Muhammad Abid Exh.57, he, produced Entry No,26, dated 19-3-2004 of Police Station Bahadurabad at Exh.58 and notice for identification parade at Exh.59. P.W.11 Arif Khan Exh.60, he produced memo of inspection of dead body of deceased Kashif at Exh.61 and Inquest report at Exh.62. P.W.12 Tapedar Muhammad Qasim Exh.63, he produced Sketch of the place of incident at Exh.65. P.W.13 SIP Noroz Badshah Exh.66, he produced. Entry No,23 dated 19-3-2004 at Exh.67, Receipt of dead body of deceased Ishtiaque Hussain at Exh.68, Receipt of dead body of deceased Kashif at Exh.70. P.W. SIP Sarfaraz Alyana was given up by the learned SPP for the State vide his statement at Exh.73. P.W.14 Syed Muhammad Raza Exh.74, he produced memo of seizure of car bearing Regn.No,GS-0345 at Exh.75 and Photostat copy of Registration paper of vehicle bearing Regn.No,AAD-043 at Exh.76. P.W.15 SIP Manthar Ali at Exh.77. P. W P.W. 16 Inspector Atiq-ur-Rehman at Exh.82, he produced the memo of arrest of accused and recoveries at Exh.83. P.W.17 Inspector Tasawur Ameer at Exh.84, he produced memo of arrest of accused and recoveries at Exh.85. P. W.18 Inspector Muhammad Iqbal Bomb Disposal Unit at Exh.86, he produced Bomb Disposal Report at Exh.87. P.W.19 Inspector Muhammad Riaz at Exh.88, he produced letter of request for permission to record the statement of injured Munir Ahmed at Exh.93, memo of inspection of Mazda Wagon No,JE-9445 at Exh.94, letter of request for permission to record the statement of injured Mushtaque Ahmed at Exh.95, memo of arrest of accused dated 13-6-2004 at Exh.97, memo of arrest of accused dated 17-6-2004 at Exh.99, Report of Chemical Examiner at Exh.100, Report of Ballistic Expert at Exh.101, letter of request to FSL at Exh.102, Report of Ballistic Expert in connection with Toyota Pick up bearing Regn No,87-9089 Ghazi Rangers at Exh.103, Sanction for trial at Exh.104.
7. Statements of appellants under section 342, Cr.P.C. Were recorded. Appellant Atta-ur-Rehman has denied the prosecution allegations and stated that no offence was committed by him on 19-3- 2004 at 3-40 p.m. Under the bridge of Baloch Colony. He has denied firing upon Rangers Mobile and causing casualties. He has also denied for causing damage to the Rangers mobile. He has also denied the recovery of weapons from his possession by I/O in presence of mashirs and stated that weapons have been foisted upon him. Regarding identification parade, appellant has raised plea that he was shown to the witnesses before the Identification parade. Appellant Atta-ur- Rehman declined to give statement on oath in disproof of prosecution allegations, however, he examined in defence staff report of Daily Jang dated 12-6-2004. On the reply to the question what else he has to say, appellant Atta-urRehman has raised plea that he was arrested by police on 11- 6-2004 from his house situated at Model Colony District East, Karachi in evening time and nothing was recovered from his possession. He has pleaded innocence and stated that he is not affiliated with any religious group.
8. Appellant Shehzad Ahmed in his statement under section 342, Cr.P.C. Denied all the prosecution allegations and stated that prosecution case is false. Crime weapons have been foisted upon him and stated that P.Ws are interested. Appellant declined to examine himself on oath in disproof of prosecution allegations. However, he examined in defence one staff reporter of Daily Jang dated 12-6-2004. Appellant in reply to the question what else he has to say has replied that he is innocent and he was arrested on 11-6-2004 in the evening time from his house situated at Model Colony, District East, Karachi. Nothing was recovered from his possession. He has no concern whatsoever with any religious group.
9. D.W. Najeer Ahmed Journalist examined by the appellants in the defence has deposed that news item regarding arrest of the appellants appeared in Daily Jang on 12-6-2004 and he has produced photocopy of news cutting.
10. After hearing the learned counsel for the parties, learned trial Court scrutinized the entire evidence and convicted the appellants as stated above.
11. We have carefully heard Mr. Ilyas Khan learned Advocate for the appellants and Mr. Khadim Hussain D.P.-G. For State and perused the entire evidence.
12. The fact that deceased "Sepoy Ishtiaq Hussain and Kashif died unnatural deaths by means of fire arm injuries, is not disputed and P.Ws. Received injuries by discharge from the fire arms. Now we would discuss the evidence of the medical officer, who conducted the postmortem examination of deceased persons and examined the injured persons. P.W.2 Dr. Abdul Rasheed has deposed that on 19-3-2004, he was posted as MLO at JPMC, Karachi. At 4-10 p.m. Four persons namely Ishtiaq Hussain, Mushtaq, Nawab Khan and Maqsood were brought in the hospital by A.S.-I.
Muhammad Qasim. They were in injured condition. Firstly, he examined Ishtiaq Hussain and found following external injuries on his person:--
(i) Gutter shaped lacerated wound size 3.5 c.m, in diameter over mid vertex of skull.
(ii) Punctured lacerated wound size 0.5 c.m, over right interior chest with inverted margins (wound of entry) of fire arm discharging weapons with punctured lacerated wound size 1 c.m, in diameter over right posterior chest with everted margins wound of fire arm weapons.
' Injuries were fresh and caused by discharge from the fire arm. Injuries were reserved for want of x- ray report. Injured Ishtiaq Hussain succumbed to the injuries on the same day at 4-15 p.m. And he conducted postmortem examination of the deceased.
13. Sepoy Mushtaq Ahmed received following injuries:--
(i) Gutter shaped lacerated wound over right thigh.
(ii) Punctured lacerated wound size 0.5 c.m, in diameter over right lower leg with inverted margins forming punctured lacerated wound size 1 c.m, in diameter with everted margins, wound of exit of fire arm weapons.
(iii) Punctured lacerated wound size 0.5 c.m, in diameter over right inguinal region with inverted margins wound of entry of fire arm weapons forming punctured lacerated wounds .With everted margins size 1 c.m, in diameter over right lumber region.
' Injuries sustained by him were caused by discharge from the fire arm and the same were fresh.
Injuries were reserved for want of x-ray reports. M.O. Issued such medical certificate and produced at Exh.15.
14. Medical Officer examined injured Nawab Khan, he was a civilian and found following injuries on his person:--
(i) Multiple Tiny punctured lacerated wound over right side of forehead, right cheek and right side neck (could be of pallets).
' Injury was fresh and appeared to have been caused by discharge from the fire arm. Injury was reserved for want of x-ray examination. He produced such certificate as Exh.17. After receipt of the report of x-ray expert, final certificate was issued and it was produced at Exh.18.
15. P.W. Maqsood, a civilian aged about 30 years was also examined by the Medical Officer and he found following injuries:--
(i) Punctured lacerated wound size 0.5 cm in diameter mid of forehead (could be a pallet wound).
' Injury was fresh and appeared to have been caused by discharge from fire arm. It was reserved for want of x-ray report.
16. Said Medical Officer has been examined well conversant with the signatures and handwriting of Dr. Tayyab, who had proceeded to Saudi Arabia before recording of his evidence for the period of one year. Dr. Tayyab had examined injured Maqbool and reserved injuries for want of x-ray report and issued final certificate at Exh.21.
17. Injured Kashif was also examined by Dr. Tayyab, he had received two injuries, both injuries were reserved for want of x-ray report. Injured Kashif had died on 19-3-2004 at 4-15 p.m.
18. Dr. Tayyab had also examined injured Hawaldar Munir, he had received three injuries, the same were reserved for want of x-ray reports and final certificate was produced at Exh.24.
19. On 16-1-2005 Medical Officer received x-ray report in respect of injured Nawab Khan and issued final medical certificate and produced supplementary certificate at Exh.25. Certificate was also issued by Dr. Tayyab showing the cause of death of Ishtiaq Hussain as "Cardio Respiratory arrest due to acute head injury due to gun shot".
20. In the cross-examination, Medical Officer has denied the suggestion that he is in habit of issuing certificates of other hospitals. The efficiency and integrity of the Doctor have not been questioned, therefore, we have no hesitation to hold that both the deceased died unnatural death and injured persons received fire arm injuries as described by the Medical Officer.
21. The case of the prosecution rests upon the following items:--
(i) Direct testimony consisting of P.Ws. Hawaldar Muhammad Munir, Sikandar Ali, Naik Mushtaq Ahmed, Sepoy Shakeel Ahmed, Muhammad Shafiq and PC Muhammad Abid.
(ii) Identification parade of appellants through eye-witnesses of the incident.
(iii) Medical evidence
(iv) Recoveries.
22. Complainant Hawaldar Muhammad Munir has deposed that on 19-3-2004, he along with Naik Mushtaq Ahmed, Sepoy/ driver Sikandar Ali, Sepoy Mohammad Willayat, Sepoy Shakeel Ahmed and Sepoy Ishtiaq Hussain left company in Rangers mobile van and reached under Baloch Colony Bridge at 7-00 a.m. He was sitting on the front portion of mobile van on co-driver's seat, Naik Mushtaq Ahmed was standing alert at the rear portion of van whereas, Sepoy Ishtiaq Hussain was sitting of the rear portion of the mobile van, Sepoy Shakeel Ahmed was standing as guard about ten feet away from mobile van in its eastern side. Sepoy/driver Sikandar Ali and Sepoy Mohammad Willayat were standing at the back of mobile van near footpath as guards. At 3-40 p.m., an attack was launched at their mobile van from the road side of Bank. He immediately picked up his service rifle and got down from mobile van and saw one person armed with Kalashnikov standing near the pillar of bridge was firing at mobile, he also saw another person armed with Kalashnikov standing at service road near National Bank and was firing at their mobile and third person armed with Kalashnikov standing near a white coloured car parked at service road and was firing at them. He also saw a person who was sitting in the said car at co-driver's seat. He further deposed that person who was standing near the pillar of the bridge fired at him and the fire hit at his legs and he fell down. Sepoy Ishtiaq Hussain and Naik Mushtaq Ahmed also received the fire arm injuries and they also fell down. During the attack four passers by namely Nawab Khan, Maqbool, Maqsood and Kashif also sustained bullet injuries.
' Accused who was standing by the side of pillar of the bridge had thrown two hand-grenades at their mobile. Both the hand-grenades exploded and he received few splinters of the same over his legs. Due to such attack, mobile van was damaged. After firing and hurling hand-grenades the accused boarded in the white coloured car parked at service road and fled away. He further deposed that he saw the faces of those accused while firing at them and he did not fire a single shot at the accused as he became injured in the incident. He further stated that within five minutes police mobile of Police Station Bahadurabad arrived at the place of incident and police removed him, Naik Mushtaq and Sepoy Ishtiaq Hussain in police mobile to JPMC whereas, the injured civilians were taken to JPMC in some other vehicle and in JPMC Sepoy Ishtiaq and civilian injured Kashif succumbed to injuries. He further stated that he was admitted in the hospital for seven days and received the treatment. On 19-3-2004 at evening time SIP Noroz Badshah had recorded his report at JPMC. On 21-3-2004 Inspector Riaz had also recorded his statement at JPMC. He further deposed that civilian namely Shafiq who was already known to him had also witnessed the incident and P.0 Abid who was present at National Bank had also witnessed the incident. On 23-6- 2004 one A.S.-I. Had come to him and served him notice, for the identification of suspects. He along with Sepoy/driver Sikandar Ali, Sepoy. Mohammad Willayat and Sepoy Shakeel Ahmed came at Judicial Complex at Central Jail, Karachi, where civilian prosecution witnesses Muhammad Shafiq and P.C. Abid were also present. He further deposed that after verification of their identities through NICs and service cards they were asked to leave the .Court room and were made to sit in the courtyard. After ten minutes he was called inside the Court where he saw ten persons standing in a queue, the Magistrate asked him to identify the accused from the line, he identified one accused, his name was subsequently disclosed to him as Atta-urRehman, the said accused Atta-ur-Rehman at the time of incident, was standing near the white coloured car parked at service road. Again he was called by the Magistrate inside the Court where he again saw ten persons standing in queue and he identified one accused who was standing at S.No,1, who was one of the accused of the incident and at the time of incident accused was standing at the pillar of the bridge and had fired with Kalashnikov and hurled two hand-grenades at the mobile.
Magistrate prepared the memo of identification test and obtained his signature. Complainant identified both the accused present in the Court. Complainant denied in cross-examination that at the time of incident he was sleeping and could not see the incident.
23. P.W.5, Sepoy Shakeel Ahmed deposed that he along with Hawaldar Munir, Naik Mushtaq, Sepoy Willayat, Sepoy Sikandar and Sepoy Ishtiaq were deployed at Baloch Colony bridge. On 19-3-2004, they parked their mobile under the Baloch colony Bridge at about 7-00 am. Hawaldar sitting at the front portion of mobile, Naik Mushtaq was standing alert at the rear portion of the van and Sepoy Ishtiaq was also sitting in the mobile van whereas he, Sepoy Willayat and Sepoy Sikandar were standing on the road. At about 3:40 pm, one white coloured Margalla came and parked at a distance of about 50 paces away from their mobile, in which four persons were sitting, out of them three were duly armed with Kalashnikovs and one person was in car whose face he could not see.
He further deposed that one person stood by the side of the pillar of the bridge and the other was standing at the service road at the back and the third one was standing near the Margalla car and all the three accused started firing at their mobile. He further deposed that bullets hit to mobile and as a result of firing Sepoy Ishtiaq, Hawaldar Munir and Naik Mushtaq received injuries and were bleeding and subsequently Sepoy Ishtiaq died and the mobile van was damaged. He further stated that accused who was standing by the side of pillar was firing at their mobile and hurled two hand-grenades at their mobile, which blasted. All the three accused boarded in the same Margalla car and fled away. Four/ five passers by also received injuries out of them one expired. He further deposed that after two or three minutes of incident police mobile of Police Station Bahadurabad arrived at the place of incident and removed injured Sepoy Ishtiaq, Naik Mushtaq and Hawaldar Munir to hospital. Injured Sepoy Ishtiaq succumbed to injuries at hospital. He further stated that police and Ranger officials also arrived at the place of incident. He further stated that he had seen the faces of only two assailants clearly and could identify them. He identified one accused in identification parade from the line and informed the Magistrate that he was one of those assailants who had fired at mobile. Thereafter eight times he was called inside the Court and shown line of 10 persons and in one of those eight turns he identified one more accused and informed the Magistrate that he was one of those accused who had fired at mobile. Thereafter Magistrate obtained his signatures on some papers. This prosecution witness also identified the accused persons present in trial Court.
24. P.W. Sikandar Ali stated that on 19-3-2004 he along with Hawaldar Munir, Naik Mushtaq, Sepoy Shakeel, Sepoy Ishtiaq and Sepoy Willayat Hussain left Rangers company in mobile van and reached at parked the mobile beneath the Baloch Colony Bridge at 7-00 a.m. Hawaldar Munir was the head of the party and was sitting in the mobile at co-driver's seat, Naik Mushtaq was standing at the rear portion of van along with Sepoy Ishtiaq, Sepoy Shakeel was standing at Shahrah- eFaisal, whereas he and Sepoy Willayat Hussain were standing at the left side of mobile van. At about 3-40 p.m., an attack with Kalashnikovs was launched upon them from the side of National Bank and service road. He further deposed that he stood up and saw one culprit armed with Kalashnikov standing near the pillar of bridge was firing at their mobile van. He further deposed that he saw another culprit armed with Kalashnikov standing at the service road was firing at their mobile van. He also saw one person standing by the side of white coloured Margalla car bearing Registration No,GS-0345 armed with Kalashnikov was firing whereas one person was sitting in the car at back seat. As a result of such firing Hawaldar Munir, Sepoy Ishtiaq and Naik Mushtaq sustained bullet injuries and they fell down. The accused who was standing near the pillar of Baloch Colony Bridge hurled hand-grenades at the mobile van which Were exploded and caused damage to the mobile van. In firing four civilians Kashif, Nawab, Maqbool and Maqsood also sustained injuries. He further stated that above incident was also witnessed by P.C. Abid who was posted as guard at National Bank and one Shafiq Thailay wala. Thereafter all the accused boarded in white colured Margalla car and escaped from the scene of offence. Within five minutes police mobile of Police Station Bahadurabad reached there and immediately removed injured Hawaldar Munir, Naik Mushtaq and Sepoy Ishtiaq to hospital. The civilian injured were also removed from the place of incident to hospital in private cars. Injured Sepoy Ishtiaq and civilian Kashif succumbed to their injuries in hospital. Eye-witness Sikandar Ali has deposed that on 23-6-2004 he had identified both appellants in parade of identification and picked-up appellants, by assigning role in commission of offence. Magistrate prepared identification parade memo.
25. P.W.8 Naik Mushtaque Ahmed stated that on 19-3-2004 he along with Hawaldar Munir, Sepoy Ishtiaq, Sepoy Shakeel, Sepoy Willayat Hussain and driver Sepoy Sikandar left company and reached and parked their mobile van beneath the Baloch Colony Bridge at 7-00 a.m. Hawaldar Munir and driver Sepoy Sikandar were sitting in the front portion of mobile van and he was standing at the rear portion of mobile van, Sepoy Willayat and Sepoy Ishtiaq were also sitting in the rear portion of mobile van whereas, Sepoy Shakeel was standing guard near mobile van. Hawaldar Munir was sitting on the front portion of mobile van and he was standing guard at the rear portion of mobile van and Sepoy Ishtiaq was also sitting in the rear portion of mobile van. Driver Sepoy Sikandar and Sepoy Willayat was standing as guards at the back of mobile van in its left side Sepoy Shakeel was standing as guard on the left side of mobile van. At About 3-40 p.m. An attack was launched at their mobile van by means of rifles from the side of Habib Bank under Balouch Colony Bridge. He further deposed that he saw one accused armed with rifle standing near the pillar of Baloch Colony Bridge and was firing at their mobile van, he also saw another accused armed with rifle was firing at them. He saw third accused standing near white coloured car parked near Bank was firing at their mobile van with rifle, whereas fourth accused was sitting in the said car parked near Bank. He also saw the accused who was standing near the pillar of Baloch Colony Bridge thrown two hand-grenades on their mobile van and those hand-grenades were exploded and caused damage to their mobile van. As result of firing he sustained bullet injuries over his leg and fell down in the mobile van. After four/five minutes police arrived at the place of incident and removed him, Sepoy Ishtiaq and Hawaldar Munir to JPMC for treatment, where he became unconscious. He further deposed that three/four civilians also sustained bullet injuries and were shifted to hospital where one of them expired at hospital. He further deposed that he remained hospitalized for about three months. He further deposed that he regained his senses at JPMC after 2/3 days of the incident. Inspector Riaz came at hospital and recorded his statement. He identified both the accused present in trial Court.
26. P.W. Muhammad Shafiq has stated that he sells Biryani on a pushcart, beneath Baloch Colony Bridge on the road which leads to Tariq Road since last four years. He further stated that on the day of incident which took place about one year back it was Friday he as usual was present along with his pushcart, beneath the Baloch Colony Bridge at about 2-00 p.m. Rangers mobile van came and the Rangers parked their mobile van about 10/12 yards away from his pushcart and they were standing alert at their positions. At about 3-30 p.m. Or 3-45 p.m., he saw one white coloured car came and parked on the service road near National Bank from which car one person armed with Kalashnikov alighted and went towards the Rangers mobile van and started firing on the Ranger mobile van. He also saw another person came out from that car he too was armed with Kalashnikov and stood at service road started firing at the Rangers mobile van. He also saw third person came out from the same white coloured car and he stood by the side of that and also started firing at the Ranger mobile van by means of Kalashnikov. Accused also hurled two hand- grenades at the mobile van and they exploded and caused damage to Rangers mobile van. He further stated that he'heard firing reports from the side of National Bank and saw guard P.C. Abid, who was firing at the accused. As a result of firing from side of National Bank, the accused ran away from the scene of offence. He rushed towards the Ranger . Mobile van and saw three Rangers Hawaldar Munir and two others whose names he did not remember were injured. One Ranger was lying injured at the rear portion of the mobile van and the other two Rangers were lying injured on the road near Ranger mobile van. As a result of firing three or four civilians also received bullet injuries and they were also lying injured. Out of them, one civilian Kashif subsequently died in hospital. After five/six minutes of incident, one police mobile van arrived at the scene of offence and removed three injured Rangers from place of incident to hospital and thereafter civilian injured were removed to hospital in private vehicles. He saw Ranger mobile van was damaged, the blood was lying in the Rangers mobile van and also saw empty shells of bullet and few splinters of hand- grenades were lying in the Rangers mobile van. He then left for his house and returned back to the place of incident at about 8-00 p.m. Inspector Riaz called him and one Hasmatullah and inspected the scene of offence in their presence. Empty shells of Kalashnikov were lying scattered at the place of wardat, police collected 56 empty shells, two magazines one fully loaded and other contained two live bullets, 5/6 projectiles, two splinters two pins and one ring of hand-grenade and blood stained papers and earth from the scene of offence in their presence and prepared such mashirnama of the inspection of scene of offence. The articles were sealed in four or five parcels at the spot. Inspector Riaz also took into possession the service Rifle with magazine from guard P.C.
Abid and sealed the same. Police recorded his statement. After three months of the incident at about 10-00 a.m., one A.S.-I. Had come beneath the Baloch Colony Bridge where he was present along with his pushcart and he gave him a notice to appear before Magistrate at Central Jail Karachi for identification of suspects on the same day at 12-00 noon. Eye-witness Muhammad Shafiq identified both appellants in identification parade, with role held before Judicial Magistrate.
P.W Muhammad Shafiq also identified appellants in trial Court.
27. P.W. Head constable Mohammad Abid deposed that on 19-3-2004 he was posted as guard at National Bank near Balouch Colony Bridge. His duty hours were from 2-00 p.m. To 8-00 p.m. During his duty hours he was armed with service SMG Rifle and 30 live rounds, he was serving as police guard at the said National Bank branch since last six or seven years. On the day of incident i,e, 19- 3-2004 he as usual came on duty at 2-00 p.m. And was present near main entrance of the Bank whereas private guard Akram was inside the bank. Rangers mobile van was parked about 9/10 yards away from National Bank. At about 3-30 p.m. Or 3-45 p.m., I heard the fire arm reports and saw three culprits armed with SMGs were firing at the Rangers mobile van. He saw one culprit standing by the side of pillar of Baloch Colony Bridge, other culprit was standing at the service road and third culprit was standing by the side of white coloured Margalla car bearing Registration No,GS0345 parked at the service road. He saw, as the result of firing the Rangers received bullet injuries and they fell down. He took position and fired six rounds at the culprits and they also exchanged the fires and those fires hit to window of Bank. He also saw the accused who was present by the side of a pillar of Baloch Colony Bridge hurdled two hand-grenades at the Rangers mobile van and both the hand-grenades exploded and damaged the mobile van. Accused ran away in Margalla car. He then rushed towards the Rangers mobile van and saw two Rangers lying on the ground near Rangers mobile van, whereas one Ranger was lying injured in the Rangers mobile van in its rear portion. Passengers of bus had also received injuries. Shafiq Biryani seller and one Sharbat wala were also present there. After three minutes of incident one police mobile van arrived at the scene of offence, A.S.-I. Qasim along with staff immediately removed three injured Rangers to Hospital. He did not see the civilian injured persons who were present in Mazda Mini bus.
His statement was recorded by police after 9-30 p.m., on the same day. I/O inspected the scene of offence and took into possession his service SMG and sealed the same in his presence. He collected six empty shells of SMG which were fired by him and handed over the same to I/O, who sealed them in a parcel in his presence, he then returned to Police Station Bahadurabad and recorded his arrival entry in the station diary. On 23-6-2004 A.S.-I. Sarfarz came at the National Bank and handed him over the notice for identification parade of suspects to be held before Magistrate at Central Jail Karachi on the same day at 12-00 noon. He reached the Central Jail and appeared before the .Magistrate. P.W. Muhammad Abid rightly picked up both appellants in identification parade supervised by Judicial Magistrate. Appellants were also identified by him in trial Court.
28. P.W. Sub Inspector Noroz Badshah deposed that on 19-3-2004 he was posted as Sub-Inspector at Police Station Ferozabad and was working as duty officer. He received telephonic message from SIP Mir Afzal of Police Station Bahadurabad that an incident of firing had occurred near Baloch Colony Bridge, he recorded such message iri station diary at S.No,23 and along with S.H.O. Shahbaz proceeded to the scene of offence i,e, beneath the Baloch Colony Bridge. He saw damaged rangers mobile van No,1646 parked there having bullets marks. He saw high ranking Rangers and police officers already present. Blood was lying inside the Rangers mobile van and on the road and footpath. S.H.O. Ch. Shahbaz directed him to proceed to JPMC where the injured were already shifted. He proceeded to JPMC and reached there at 4-45 pm where he was informed by hospital authorities that one of the injured Ranger Sepoy Ishtiaq Hussain succumbed to the injuries in hospital, he went to the Emergency Ward where he saw the dead body of Ranger Sepoy Ishtiaq Hussain lying there. He prepared inquest report upon the dead body of deceased Ishtiaq Hussain in presence of Mushtaq and Riaz. He had also prepared the memo of inspection of dead body of deceased Ishtiaq Hussain in presence of above named witnesses. He had also recovered the blood stained uniform of deceased Ishtiaq and sealed it. He further deposed that he submitted a letter to the MLO requesting for issuance of the.Cause of death certificate in respect of deceased Ishtiaq Hussain. The MLO had endorsed the cause of death certificate on his request letter. After completing the formalities, he handed over the dead body of deceased Ishtiaq Hussain to DSP Rangers Anjum Masood and obtained such receipt. He had submitted a letter to MLO seeking permission to record statements of injured persons Lance Naik Mushtaq, Hawaldar Munir, Kashif, Nawab, Maqbool and Masood. He then recorded 154 Cr.P.C. Statement of Hawaldar Munir of Rangers on a plain paper and read over the same to him, who admitted its contents and signed it.
He further deposed that he had recorded above statement on 19-3-2004 at 7-00 pm at JPMC. He further deposed that while he was present at JPMC he was informed by hospital authorities that injured Kashif had also expired at hospital. The dead body of Kashif was lying in the Emergency Ward. He prepared memo of inspection of dead body of deceased Kashif in presence of witnesses Mukhtar and Arif and secured blood stained shalwar and shirt of deceased and sealed it in presence of above named witnesses. Thereafter, he prepared inquest report upon the dead body of deceased Kashif in presence of above named witnesses. He then submitted a letter to MLO requesting for issuance of case of death certificate in respect of deceased Kashif, which was issued by doctor. He handed over the dead body of deceased Kashif to his relative Arif Khan and obtained such receipt from him. After completing the formalities he returned back to Police Station Ferozabad where he incorporated statement of Halwadar Muneer in 154 Cr.P.C. Book vide F.I.R.
No,179 of 2004. He entrusted copy of F.I.R. No,179 of 2004 along with other relevant documents to Inspector Riaz of Investigation Branch for Investigation of the case.
29. P.W. Sepoy Riaz Ahmed of Rangers deposed that on 19-3-2004 he was present in Headquarter received information of incident at 4-30 p.m., he along with four Rangers employees and SIP Maqsood proceeded to JPMC in Emergency Ward at about 5:00 pm where he saw one Hawaldar Munir, Naik Mushtaq were injured and the dead body of deceased Sepoy Ishtiaq Hussain was lying there. The deceased was in uniform and it was stained with blood. The incharge of Police Station Ferozabad also reached at the Emergency Ward of JPMC and in his presence inspected the dead body of Sepoy Ishtiaq Hussain. He prepared the memo of inspection of the dead body in his presence and Lance Naik Mushtaq. The uniform of deceased was lying beside the deceased which was packed apd sealed by I.O. In his presence. He signed on the sealed packet. Police prepared the inquest report upon the dead body of Sepoy Ishtiaq Hussain in his presence and Lance Naik Mushtaq.
30. P.W. Abdul Shakoor Bhatti MLO, JPMC deposed that on 19-3-2004, he was posted as MLO at JPMC, when SIP Noroz Khan of Police Station Ferozabad submitted an application requesting ,therein to issue the cause of death certificate in respect of deceased Kashif who died during treatment. He further deposed that as per death certificate which was issued by Dr. Farzana RMO, SICU JPMC (Surgical Intensive Care Unit of JPMC) that the death of deceased occurred due to profuse bleeding and cardiac arrest due to gun shot injuries on the right side of chest. Deceased Kashif was under the treatment of Dr. Farzana and she issued the case of death certificate.
31. P.W. Aril' Khan deposed that deceased Kashif was known to him. He was brother of his friend Shadman. On 19-3-2004 at 5-45 p.m. On receiving the information of this incident, he rushed to JPMC where he saw the dead body of deceased Kashif was lying in. The Emergency Ward. Police was already present there. Police inspected the dead body of deceased Kashif in his presence and co-mashir Mukhtar. The deceased had injuries on his person. Police secured the blood stained clothes of deceased and sealed them in a parcel in their presence and prepared the memo of inspection of dead body and obtained their signatures.
32. P.W. Tapedar Muhammad Qasim has deposed that on 26-6-2004 he as posted as Tapedar at.
Jamshed Town, when he received the letter of I/O addressed to Mukhtiarkar for preparation of sketch of wardat. He proceeded to the scene of offence along with I/O Muhammad Riaz and inspected the scene of offence which was shown to him by Inspector Muhammad Riaz, The place of incident was situated beneath the Baloch Colony Bridge on Shaheed-e-Millat Road. He prepared sketch with the help of measuring tape, The distance, directions, positions and marginal notes were mentioned in the sketch. He prepared the sketch and produced in evidence at trial.
33. P.W. Syed Muhammad Raza deposed that on 19-3-2004 at about 3-45 p.m., he was present at his house/flat, Mona plaza situated at Bfock-5, Gulshan-e-lqbal. He was working as the General Secretary of the Union of the Residents Mona Plaza. Gohar Rehman was the watchman of plaza.
While he was present at his flat watchman Gohar Rehman came to him at his flat and informed him that a white coloured car was parked outside the plaza. On hearing the above information, he went outside the Mona Plaza and found a white coloured Margalla car parked unattended. The Registration Number of that car was GS-0345. He found the car unlocked, he asked the watchman Gohar Rehman to wait for a few hours to find out if the said car belongs to any guest of any resident of plaza. Till 7-00 p.m. Nobody came. He also sent watchman Gohar Rehman to verify from each flat but watchman came back and informed him that car does not belong to any resident of plaza. At about 9-15 p.m. Or 9-30 p.m., he informed "15" police control about the abandoned car. SIP Manthar of Police Station Gulshan-e-lqbal came at their plaza and met him and he pointed out the said car parked outside the plaza unattendantly. SIP Manthar examined the car and found the door of car unlocked, he also checked the car from inside in his presence and witness Gohar Rehman.
On checking the car one bullet was found lying on the front portion of the car near the driving seat and he took the same into possession and one Photostat copy of registration paper. SIP Manthar took the same into possession and sealed the live bullet in their presence and prepared memo of seizure of the vehicle and above recoveries in his presence and co-mashir watchman Gohar Rehman.
34. P.W. Zahid Hussain Metlo, Civil Judge and Judicial Magistrate-XIV, Karachi East deposed that on 23-6-2004 he as posted as Judicial Magistrate-X1\', Karachi East. His court was situated within Judicial Complex Central Jail, Karachi. On that day I/O of F.I.R. No,179 of 2004 Police Station Ferozabad appeared before him and submitted an application to supervise the identification parades of accused Atta-urRehman, Shahzad Ahmed, Muhammad Shoaib, Yaqoob Saeed Khan, Uzair Ahmed, Danish, Najeebullah, Khurram Saifullah and Shahzad Mukhtiar through P. Ws Muhammad Muneer, Shakeel Ahmed, Willayat Khan, Sikander Ali, Abid Ali and Muhammad Shafique. On receiving the request Judicial Magistrate directed the I/O to arrange for dummies and two mashirs. On the same day I/O produced the above named nine accused with their faces muffled. I/O informed Magistrate that the notices have been issued to the witnesses regarding identification parade. All the accused were made to sit in the court with their faces muffled, however, he got removed their handcuffs and they were given under the custody of Court staff.
After the arrangements of nine dummies he mixed accused Atta-ur-Rehman with them and told accused Atta-ur-Rehman to stand at any place of his choice. Who preferred to stand at S.No,05 from right side. Judicial Magistrate called complainant Muhammad Muneer through his court peon, when he entered the court he verified his identity through his NIC and obtained the Photostat copy of his NIC. The complainant was asked to identify the accused if present in the line. The witness Muhammad Muneer after having a look at the line identified accused Atta-ur-Rehman and informed Magistrate that he was one of accused who had fired at the mobile van of Rangers by means of Kalashnikov. He then made the witness to sit in the Court room. Before calling the second witness he told the accused Atta-ur-Rehman if he desired to change his position but he preferred to stay at the same position. He then called witness Shakeel Ahmed. The witness identified accused Atta-ur-Rehman. The witness informed Magistrate that he was one of the accused persons who had fired at the Rangers Mobile van by means of Kalashnikov. He then made him to sit in the Court room. He then told the accused to change the position. He then called witness Willayat Khan through peon of the court. The witness Willayat Khan identified accused Atta-ur-Rehman and informed Magistrate that he was the same accused who had fired at the Rangers Mobile van by means of Kalashnikov. He then called witness Sikandar Ali. The witness Sikandar Ali after having 'a look at the' line, identified accused Atta-ur-Rehman who was standing at S.No,5, from right side and informed Judicial Magistrate that he was one of the persons who had fired at Rangers Mobile van by means of Kalashnikov. Judicial Magistrate then called witness Abid Ali through his court peon, he verified his identity through NIC and obtained the Photostat copy of his NIC. Witness Abid Ali correctly identified accused Atta-urRehman and told Judicial Magistrate that he was one of the accused who had fired at Rangers mobile van by means of Kalashnikov. He then called witness Muhammad Shafique. He asked the witness to identify the accused if present in the que who after having a look at the line correctly identified accused Atta-ur-Rehman standing at S.No, 5 from right side. The witness informed him that at the time of incident he was standing at overhead bridge and saw the present accused firing at the Rangers Mobile van by means of Kalashnikov. He then sent accused Atta-ur-Rehman outside the Court. Thereafter, he called appellant/accused Shahzad Ahmed in the court, his face was muffled he got removed his muffler. He told the accused to stand in the que along with the dummies at place of his choice, who preferred to stand at S.No,1 from right side. He then called witness Muhammad Muneer through peon of the court. Complainant Muneer correctly picked up accused Shahzad Ahmed and informed Magistrate that he was one of the accused who had fired at the Rangers. Mobile van by means of Kalashnikov. He then made him to sit in the court. He then asked the accused to change his position if he so desired but he declined. Judicial Magistrate called witness Shakeel Ahmed. He correctly identified accused Shahzad Ahmed standing at S.No,1 from right side and informed him that he was one of the accused who had fired at Rangers Mobile van by means of Kalashnikov. Prosecution witness Willayat Khan had also correctly picked up accused Shahzad Ahmed in identification test and informed Judicial Magistrate that he was one of the accused who had fired at Rangers Mobile van by means of SMG. P.W Sikandar Ali had identified accused Shahzad Ahmed in identification parade standing at S.No,1 from right side and stated that he was one of the accused who had fired at the Rangers mobile van by means of SMG. Judicial Magistrate called witness Abid Ali through court peon he had picked up accused Shahzad Ahmed and informed Magistrate that he had thrown two hand-grenades on the Rangers mobile van and also fired upon the Rangers mobile van with SMG.
Civil Judge and Judicial Magistrate then called witness Muhammad Shafique through his court peon. He had identified accused Shahzad Ali in the identification parade and informed him that at the time of incident accused Shahzad was wearing the Commando paint and was firing upon Rangers mobile van with Kalashnikov. Judicial Magistrate in the similar way held the identification parades of remaining seven accused namely Muhammad Shoaib,Yaqoob, Uzair Ahmed, Danish, Najeebullah, Khuram Saifullah and Shahzad Mukhtiar through above named eyewitnesses one by one, but none of the above named witnesses identified the remaining seven accused in identification parade. He then prepared the memo of identification parades in presence of mashirs Naveed Shaikh and Rao Bashir Ahmed. He prepared the memo and obtained the signatures of mashirs Naveed and Rao Bashir Ahmed and also the signatures of identifying witnesses except Muhammad Shafique who put his LTI. After the identification parade the custody of accused was handed over to the Investigating Officer. Accused Shahzad Ahmed and Attaur-Rehman present in trial Court are same.
35. SIP Manthar Ali has stated that on 19-3-2004, he was performing his duty on Police Mobile No, 4, from 8-00 p.m. To 8-00 a.m. And was on patrolling. During patrolling duty at 9-30 p.m., he received a wireless message from police control that a car has been parked near Mona Plaza in Block-5, Gulshan-e-Iqbal, it was unattended. He went to check it along with subordinate staff and reached there at 9:45 pm, where he met watchman namely Gohar Reman of Mona Plaza, who informed him that white coloured Margalla car was parked near Mona plaza. He checked it and found unlocked.
Sub-Inspector Manthar Ali searched it in presence of the union member Muhammad Raza and watchmain Gohar Rehman. During search found one bullet lying in it so also Photostat copy of Registration papers of Vehicle No,AAD-043, Registration Number of that vehicle was GS-0345. He sealed live bullet in presence of the above named mashirs and prepared such mashirnama, seized Margalla car, prepared such mashirnama, removed the seized vehicle from the place to Police Station Gulshan-e-Iqbal. He made such entry at Police Station and lodged F.I.R. No,104 of 2004 against unknown persons under section 13-E of Arms Ordinance and supplied copy of the said F.I.R.
To A.S.-I. Aijaz Baloch for investigation.
36. P.W. Inspector Atiq-ur-Rehman has stated that on 13-6-2004, SP Farooq Awan formed a raiding party consisting about 20 to 25 police personnel headed by DSP Khurram Waris to conduct the raid at Jinnah. View Apartments as he has received spy information that some terrorists involved in various terrorist activities were present there. Raiding party proceeded to the pointed place and reached at 3-00 p.m. And saw two motorcycles parked in the parking area of Jinnah View Apartments. Two persons on each motorcycle were sitting. Police party alighted from the police vans and tried to apprehend those persons. On seeing police party, accused persons launched attack on the police party with Kalashnikovs and pistols. Police also fired in self-defence. After exchange of fires, he has stated that police succeeded to apprehend four culprits. Police had also obtained services of two private persons of the area, they were P.W Abdullah and Maqsood. He has further deposed that on enquiry by SIP Tassawur Ameer, names were disclosed by the accused persons as Danish Imam, Uzair Ahmed, Khurram Saifullah and Yaqoob Saeed. Personal search of the accused persons was conducted, one Kalashnikov with magazine and bullets were recovered from the possession of accused Danish Imam, one Kalashnikov with magazine containing live bullets were recovered from the possession of accused Uzair Ahmed, one Kalashnikov with magazine containing live bullets and one hand-grenade were recovered from accused Khurram Saifullah, one T.T pistol loaded and one hand-grenade were recovered from accused Yaqoob Saeed. All the accused failed to produce valid licences/permits for the illicit weapons and ammunition carried by them. Police collected empty shells from scene of occurrence. SIP Tassawar Ameer prepared mashirnama of arrest and recovery in presence of mashirs and obtained their signatures. Arms and ammunition were sealed at spot. Accused and case property were brought to the police station where SIP Tassawur Ameer lodged F.I.R. Of encounter against accused so also F.I.Rs, for carrying illicit arms separately. He has further deposed that they had seen one motorcycle and Mehran car parked in the playground. Two persons were sitting on the motorcycle and four persons were sitting in Mehran car. Accused were encircled, they started firing upon the police and police also fired in self-defence. Thereafter police succeeded to apprehend four accused persons, who were sitting by the side of Mehran car, whereas two accused persons who were sitting on motorcycle made their escape good by firing at the police. Accused who were apprehended disclosed their names as Attaur-Rehman, Shahzad Bajwa, Muhammad Shoaib and Najeebullah.
This witness made it clear that appellants Atta-ur-Rehman was armed with Kalashnikov, bullets, one hand-grenade and a T.T pistol were also recovered from him and from the possession of accused . Shahzad Bajwa Kalashnikov loaded and live bullets, one hand-grenade and one T.T pistol were recovered. From accused Shoaib one Kalashnikov loaded and 21 live rounds, one hand- grenade and one loaded pistol were recovered, from accused Najeebullah one Kalashnikov loaded, one hand-grenade were recovered, for which accused had no licences/permits. Police found two bags lying in the car containing five Kalashnikovs, 'four magazines, 30 live bullets and other ammunitions. He prepared mashirnama of arrest and recovery of four accused in presence of mashirs Muhammad Akram and Maqsood Ahmed and produced it at Exh.83. He lodged F.I.R. Of encounter and recovery of illicit arms against accused persons separately at police station. He had brought Mehran car, motorcycle, arms and ammunitions to the police station. He has further .Stated that accused were also interrogated by DSP Khurram Waris, during interrogation appellants admitted their involvement in the present case and other cases.
37. P.W. 17 Inspector Tassawur Ameer has stated that on 13-6-2004, he was posted at AVCC Garden. On the same date SP Farooq Awan had received information that accused involved in terrorist activities were present at Jinnah View Apartments situated at Al-Falah Society. On such information, SP Farooq Awan formed a raiding party, he was member of the raiding party. On 13-6- 2004 raiding party raided Jinnah View Apartments at 3-00 p.m., where saw four persons on two motorcycles in front of .Jinnah View Apartments. Spy informer who was with the police pointed out that the persons sitting on motorcycles were accused involved in such activities. Police proceeded further to catch hold the accused persons, who were armed with deadly weapons such as Kalashnikovs and T.T pistol. They fired upon the police and police also fired in self-defence. Police succeeded to catch hold four accused persons, they disclosed their names as Danish Imam, Khurram Saifullah, Uzair and Yaqoob Saeed. Froth accused Danish Imam, Uzair Ahmed and Khurram Saifullah Kalashnikovs and rounds were recovered, from accused Yaqoob Saeed T.T. Pistol was recovered. Accused had no licences/permits for the said weapons carried by them. It is further stated that hand-grenade was also recovered from accused Yaqoob Saeed. Empties were collected from the place of wardat, mashirnama was prepared in presence of mashirs, case property was sealed and accused were brought to the police station. Cases were registered against them. Investigation of all the above accused was entrusted to SIP Atiq-ur-Rehman.
Accused were interrogated at place of wardat, they led police party to Model Colony graveyard, where he saw one motorcycle and one Suzuki car parked near the graveyard of Model Colony. Four persons were sitting in Suzuki car and two persons were sitting on motorcycle. As police party reached near to the accused to apprehend them, they opened fires upon police party, police party also fired in their self-defence. Police succeeded to catch hold four accused persons sitting in Suzuki Car. They disclosed their names as Atta-ur-Rehman, Shahzad Bajwa, Shoaib and Najeeb.
They were holding SMGs in their hands. Crime weapons were recovered from their possession.
Personal search was conducted. Accused were enquired about the licences for the illicit arms and ammunitions carried by them to which they replied in negative consequent thereupon cases were registered against them at the police station.
38. P.W. Inspector Muhammad Iqbal has stated that on 19-3-2004, he was present in his office. He received a call from Police Station Ferozabad that an incident, had occurred beneath the Baloch Colony Bridge and he was directed to reach at the place of incident. He made such entry and proceeded to the place of incident where he saw Rangers Mobile van in a damaged condition parked at the corner of Shaheed-e-Millat Road. He inspected it and recovered one safety pin with ring and two fly off leavers. After inspection he opined the same as Russian made and grenades of high explosive type. After inspection of three items, he handed over the same to S.H.O. Police Station Ferozabad. He had prepared inspection notes which he produced at Exh.87.
39. P.W. Inspector Muhammad Riaz Investigating Officer of this case has stated that on 19-3-2004 he was posted as In-charge Investigation Branch at Ferozabad Police Station At 3-45 p.m., he received message that an incident of firing on Rangers Mobile had occurred at Baloch Colony Bridge. He proceeded to place of wardat along with his subordinate staff by making entry in the relevant Register and saw Rangers Mobile in a damaged condition having bullets holes and marks of hand-grenades. During inspection, S.H.O. Police Station Ferozabad also arrived at place of wardat. He had also received copy of F.I.R. No,179/2004 Police Station Ferozabad for investigation.
He inspected place of wardat and collected 56 empty shells of SMGs lying scattered on the road and collected six projectiles, two magazines of SMG, collected pieces of hand-grenades. He had also collected blood-stained earth and blood stained newspaper. He had also secured SMG from P.C. Abid, who was deployed at National Bank from which he had fired. He sealed articles at spot in five parcels in presence of mashirs, prepared mashirnama of inspection of place of wardat in presence of mashirs Muhammad Shafiq and Hashmatullah. He had also noted damage of the Rangers mobile van and recorded 161, Cr.P.C. Statements of P.Ws namely Muhammad Shafiq, Hashmatullah and P.C. Abid Ali. After conclusion of the spot investigation, he returned back to Police Station Ferozabad and made such entry. On 24-4-2004 he received message through control that a Vehicle No,GS-0345 used in the commission of the offence has been brought to Police Station Gulshan-e-Iqbal. He proceeded to Police Station Gulshan-eIqbal and took it into possession, prepared such mashirnama in presence of the mashirs, recorded statements of P.Ws.
Syed Muhammad Raza and Gohar Rehman and returned back along with Suzuki Car GS-0345. The same vehicle was snatched from the area of Defence owned by one Akbar Mirza, who had also lodged such F.I.R. I/O contacted Akber Mirza. Thereafter he went to JPMC where complainant of this case was hospitalized. He recorded his further statement on the same day. He went to Ranger Head quarters, where he recorded 161, Cr.P.C. Statements of P.Ws. Sepoy Shakeel Ahmed, Sepoy Willayat Khan, Driver/Sepoy Sikandar Ali, Sepoy Riaz Ahmed and Naik Mushtaq Ahmed. Then he recorded statements of SIP Mir' Afzal and ASI Muhammad Qasim. He had also recorded statements of Muhammad Akram, Furpn Haider and Shoukat Ali. On 22-3-2004, he came back to JPMC where he recorded statements of injured Maqbool. On the same day he recorded statements of owner of wagon Ajab Khan and its driver Haider Zaman and inspected wagon, prepared mashirnama of inspection of the wagon in presence of mashirs. On 24-3-2004, he went to JPMC, where recorded statement of injured Naik Mushtaq. On the same day he recorded statements of Arif Khan and Mukhtar Hussain at Police Station Ferozabad. On 13-6-2004 he was present at Police Station Ferozabad, where he received message from police control that SIP Atiq-ur-Rehman had arrested the accused of this case and they were detained at AVCC Garden. After receipt of such message, he went to lockup of AVCC where eight accused persons were confined, they were Atta-ur- Rehman, Shahzad Bajwa, Shoaib Ahmed Siddiqui, Khurram Saifullah, Danish Imam, Yaqoob Saeed, Najeebullah and Uzair Ahmed. I/O interrogated the accused persons and arrested them in this case in presence of mashirs namely SIP Nadeem Mubarak and SIP Sarfaraz Alyana, prepared such mashirnama, which he produced at Exh.97. On 17-6-2004, he had arrested one more accused namely Shahzad Mukhtar, prepared such mashirnama in presence of mashirs. On 18-6-2004 he recorded statements of SIP Atiq-ur-Rehman and SIP Tassawur Ameer. On 19-6-2004, he dispatched blood stained clothes of deceased Kashif and Sepoy Ishtiaq Hussain and blood stained earth and blood stained newspaper secured from the place of incident to the Chemical examiner for analysis duly sealed. He received positive report which he produced at Exh.100. On 23-6-2004 he sent empty shells of SMG, projectiles, two magazines loaded with 31 live bullets to the Ballistic Expert for report. He received positive report which he produced at Exh.101. He had also requested expert to examine the Rangers mobile van and received report of the Ballistic Expert and produced it at Exh.
103. He has further submitted that he made request to Sessions Judge, Karachi East to nominate a Magistrate for conducting identification parade of accused at Judicial complex Central Jail, Karachi, Judicial Magistrate East was appointed for holding identification parade and he issued notices to eye-witnesses of incident namely Muhammad Shafiq, P.C. Abid Ali, Hawaldar Munir Ahmed, Sepoy Shakeel, Sepoy Willayat Khan and Sepoy Sikandar Ali. Identification parade was held through above named witnesses in which appellants/ accused Atta-ur-Rehman and Shahzad Bajwa were identified by the eye-witnesses. Such memo identification parade was prepared by concerned Magistrate. Sketch of the place of wardat was also prepared by concerned Tapedar in presence of the witnesses namely Shafiq and Hashmatullah. He has further stated that he released remaining accused under section 497, Cr.P.C. And obtained sanction of the prosecution of accused as required under section 7 of the Explosive Substance Act, 1908 from the Home Department, which he has produced at Exh.104. After conclusion of the investigation he submitted challan against accused.
40. Investigating Officer has been cross-examined by the defence counsel at length with regard to the pieces of evidence collected by him during investigation. He has denied the suggestion that present accused have been falsely involved in this case and crime weapons have been foisted upon them.
41. Mr. Muhammad Ilyas Khan learned counsel for the appellants contended that incident had not occurred in the manner as narrated by eye-witnesses of the incident. Eye-witnesses had only momentary glimpses and it was difficult for them to identify culprits after such long period. Eye- witness P.C. Abid .Was standing on back side, it was impossible for him to witness the incident. It is argued that there was delay in lodging of F.I.R. Names or descriptions of appellants have not been mentioned in F.I.R. Appellants were arrested on 13-6-2004 and were put to identification parade on 23-6-2004. It is argued that identification parade was not conducted after taking all necessary precautions, full particulars of dummies are not mentioned and there was possibility that appellants were shown to eye-witnesses before identification parade. It is argued that delayed identification has been wrongly relied upon by trial Court. It is argued that place of incident is thickly-populated area but independent persons of locality were not examined by prosecution.
Some contradictions in the evidence of prosecution witnesses have been highlighted. It is contended that evidence of recovery of car used in crime and recovery of bullet from it, is highly unbelievable. It is argued that prosecution has failed to prove recovery of crime weapons from appellants by confidence-inspiring evidence. Motive has not been proved. Learned counsel for appellants did not touch defence evidence in his arguments. Lastly it is submitted that in case conviction is maintained by this court, there are mitigating circumstances in this case to convert death sentence to imprisonment for life. In support of contentions, reliance is placed upon the authorities i,e, SABIR ALI ALIAS FAUJI v. THE STATE (2011 SCM R 563), SOHAIL ABBAS AND OTHERS v.
KASHIF AND OTHERS (PLD 2001 SC 546), MUHAMMAD YAQOOB ALIAS QOOBA v. THE STATE (1999 SCM R 1138), NASIR MEHMOOD AND OTHERS V. THE STATE (2008 YLR 1755), MUHAMMAD IQBAL 'AND ANOTHER v. THE STATE (1984 SCM R 1184), HARI NATH AND ANOTHER v.STATE OF U.P (1989 M LD 1062) and NASREEN BIBI v. THE STATE (2009 PCr.LJ 619).
42. In the case of SABIR ALI alias FAUJI v. THE STATE 0011 SCMR 563), it is held as under:-- "Identification parade was held after about six months from the date of occurrence and also conducted after a delay of 9 days after the arrest of the accused. This delay per se in both counts create lot of doubt regarding the identification parade as the witnesses had various opportunities to see the accused persons."
43. In the case of SOHAIL ABBAS AND OTHERS v. KASHIF AND OTHERS (PLD 2001 SC 546), it is held as under:-- "There is nothing available on record to indicate why identification parade of the accused persons was not held. Admittedly they were not known to the witnesses and in such circumstances if identification parade is not held, it becomes virtually impossible, in absence of any other evidence, to connect with the alleged occurrence. The witnesses in their statements under section 161, Cr.P.C.
Did not mention the features of the accused persons nor other description like height and weight.
They saw the accused for the first time in Court after about 2 years. In such circumstances, their assertion that the accused are the same who had committed the murder, no importance can be attached to it in the absence of any identification parade.'
44. In the case of NASIR MEHMOOD AND OTHERS v. THE STATE (2008 YLR 1755), it is held as under:-- "Again this is a case where there is no description of the culprits made in the except making mention of their height, the parade if even had been held, could have hardly advanced the prosecution case."
45. In the case of HARI NATH AND ANOTHER v. STATE OF U.P (1989 M LD 1062), it is held as under:-- "The benefit of this regrettable and wholly unexplained lack of promptitude in holding the test identification, we are constrained to say enures to the appellants. The evidence of test identification lacks the requisite element of reassurance to support the conviction. A reasonable doubt arises."
46. In the case of MUHAMMAD IQBAL AND ANOTHER v. THE STATE (1984 SCM R 1184), it is held as under:-- "On the question of sentence it was contended by the learned counsel for the appellants that the motive, in the instant case, as set up by the prosecution, was not proved and the real cause of the occurrence in the circumstances still remained shrouded in mystery".
47. In the case of MUHAMMAD YAQOOB ALIAS QOOBA v. THE STATE (1999 SCM R 1138), it is held as under:- "In this view of the matter, the learned High Court was justified to observe that the prosecution had failed to prove the motive part of its story. Normally, where the motive is shrouded in mystery, the extreme penalty of death is not awarded."
48. In the case of NASREEN BIBI v. THE STATE (2009 PCr.LJ 619), it is held as under:-- "There is no doubt that ordinarily the weakness or insufficiency of motive or even the absence of motive in murder cases cannot be considered as a circumstance to justify the acquittal but where motive would be the only reason for committing the murder or the murderous assault and in the absence of such motive there would have been no possibility of murder at all, the complexion of the proposition would be changed. It is so plain a situation that the reasoning needs no illustration. Even otherwise it is well-settled that the motive once set, it is imperative for the prosecution to prove such motive in failure whereof adverse inference be drawn and the prosecution has to suffer the consequences instead of the defence."
49. Mr. Khadim Hussain learned D.P.G. Argued that prosecution has proved its case against the appellant by confidence-inspiring evidence. There are six eyewitnesses of incident. Presence of injured witnesses at the time of occurrence cannot be doubted. Prosecution witnesses had no reason to falsely implicate the appellants in heinous offence. Delay in lodging F.I.R. Has been fully explained in the case. Ocular evidence is corroborated by medical evidence. Eye-witnesses rightly picked up appellants in identification parade supervised by Civil Judge and Judicial Magistrate.
Crime weapons were recovered from possession of appellants and the car used by appellants in the commission of crime was recovered during investigation. Lastly it is argued that act of appellants created sense of insecurity and fear in the members of armed forces. Trial Court has rightly convicted appellants. In support of his submissions reliance has been relied upon the cases reported as SOLAT ALI KHAN v. THE STATE (2002 SCM R 820), AJAB ALIAS RAJAB AND ANOTHER v. THE STATE (2004 M LD 180), MUSLIM KHAN AND OTHERS v. THE STATE (2002 YLR 2813), GHAZANFAR ALI ALIAS PAPPU AND ANOTHER v. THE STATE (2012 SCM R 215) AND AHMAD NAWAZ AND ANOTHER v. THE STATE (2011 SCM R 593).
50. In the case of SOLAT ALI KHAN v. THE STATE (2002 SCM R 820) it has been held as under:-- "The identification of the appellant conducted under the supervision of Muhammad Rafiq, Judicial Magistrate (P. W.14) has been brought on record by Mrs. Shahnaz Hamid (P. W.4), Mirza Tariq Jawed (P. W.9) and Umer Shahid (P. W.12). The argument of the learned counsel for the appellant that the same was held after more than 530 days of the present occurrence and 9 days after arrest of the appellant would not advance the case of the defence. It has come on record that the appellant left the country and came back on 10-12-1998 when, as earlier stated, he was apprehended at the Jinnah International Terminal, Karachi. Mrs. Shahnaz Hamid (P.W.4) and Umer Shahid (P.W.12) in their evidence have categorically stated that it was the appellant who committed this gruesome offence. Mrs. Shahnaz Hamid (P. W.4) in her deposition stated that during identification parade she had a constant look on the appellant and identified him to be same person who had been seen by her in a white car at the site of occurrence. She further stated that she had only pointed out the appellant on the day of holding of identification parade and had told the Magistrate that "This is the man". In an answer to a Court question she further elaborated that the person sitting in the Court was the same who had been seen by her in the car at the site of occurrence on the material date and time. In the concluding portion of her testimony to a Court question she answered as follows:- "From the word 'unidentified' appearing in Exh.D.I meant was that I did not know the accused by name then seen by me who was driving the alleged car, now sitting here before the Court about whom I have not even the slightest doubt if he is not the same individual." (Underlining is ours).
' Similarly, Umer Shahid (P. W.12) had stated that he identified the appellant during the identification parade conducted by Muhammad Rafiq, Judicial Magistrate on 19-12-1998. He also stated in his cross-examination that prior to the identification parade he had not seen the appellant. He further reiterated his stance by saying that he had seen the appellant for a moment on the date and place of occurrence and then saw him in the identification parade held on 19-12- 1998. The figure . And features of the appellant must have been imprinted on the minds of Mrs. Shahnaz Hamid (P. W.4) and Umer Shahid (P.W.12), widow and son respectively of deceased Shahid Hamid. How they can forget the person who had committed this gruesome act of killing Shahid Hamid along with his driver and gunman? It is expecting too much from the complainant to point out the detailed description and features of the accused in the F.I.R. As at that moment she must be undergoing a very traumatic condition. In this regard, the learned Division Bench of the High Court of Sindh has observed as under:- "The arguments that P. Ws had only momentary glimpses and it was difficult for them to identify the culprits after such a long period have no merit. Suffice it to say that each criminal case has its own facts and circumstances and the value of evidence of identification is to be evaluated by the Court. It may be mentioned that the power to identify varies according to the power of observation and the observation is based upon minor details which a witness cannot describe and explain himself. In the instant case the incident has taken place in the day time just near the house of complainant party, who were receiving constant threats and they were conscious of the consequences. As soon as the lady and her son heard the fire shots, they came out of their bungalow and saw the incident and culprits. P. W. Mrs. Shahid Hamid and the other P.Ws., who were at the relevant time at the spot and seen the appellant/culprit and incident which was of immense importance, extending serious and saddest in one's life, therefore, the culprits to whom they saw could remain in memory as photo for sufficient long period hence there could be no mistaken identity."
51. In the case of AJAB alias RAJAB AND ANOTHER v. THE STATE (2004 M LD 180), it is held as under:- "The learned Advocate for the appellants has stated that no role was assigned to the appellants by the witnesses at the time of identification test; therefore, the identification test has lost its evidentiary value. On the above proposition he has relied upon the cases of the Khalid Mehmood and Khadim Hussain (supra). A similar point was considered by the Hon'ble Supreme Court of Pakistan in the case of Yagoob Khan v. State (PLD 1996 SC 97), wherein it was observed that if a witness fails to give role of the accused at the time of identification test, then he is not precluded from giving evidence in the Court when such evidence is given, it cannot be relied upon. In the said case similar position as in this case arose but as the witness had given specific role during the course of evidence then that was found sufficient to comply with the requirements of law. In the case of Solat Ali Khan v. State (2002 SCMR 820), similar position arose but the Hon Ible Supreme Court of Pakistan relied upon the evidence of witnesses who gave the role of the appellants during the course of recording of the statements in Court. As such in view of the above mentioned authorities of the Hon'ble Supreme Court the argument of the learned Advocate for the appellants has no force."
52. In the case of MUSLIM KHAN AND OTHERS v. THE STATE (2002 YLR 2813), it is held as under:-- "The Court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the Investigating Agency/prosecution, provided tize same have not prejudiced the accused in the fair trial. The people are losing faith in the criminal judicial system for the reason that in most of the criminal cases the criminals get away without being punished on technicalities.
53. In the case of GHAZANFAR ALI ALIAS PAPPU AND ANOTHER v. THE STATE (2012 SCM R 215), it is observed as under:- "Even otherwise the holding of identification parade is not mandatory and it is merely a corroborative piece of evidence. If the statement of a witness quo the identity of an accused even in Court inspires confidence, if he is consistent on all material particulars and there is nothing in evidence to suggest that he is deposing falsely, the absence of holding of identification parade would not be fatal to the prosecution.
54. In the case of AHMAD NAWAZ AND ANOTHER v. THE STATE (2011 SCM R 593), it has been observed as under:-- "The analysis of all the cases has led us to a conclusion that from the facts and circumstances of the case, if the Court finds the manner and method of incident, to be in the nature of brutality, horrific, heinous, shocking, involving terrorist nature, creating panic to the society as a whole or in part, callous and cold-blooded, in such cases (which list is not exhaustive), the penalty of death must not be withheld. In other words, grave inhuman attitude, acts, manners, method and the criminality of actions are the constituents, elements and the instances, where punishment of death must be awarded. The Court is therefore, expected to proceed very carefully and cautiously in the exercise of such discretion and not to ignore the circumstances and cause of occurrence."
55. Upon careful scrutiny of evidence and close assessment of the respective contentions of counsel for the parties, we have come to conclusion that prosecution has proved its case against the appellants for the reasons that Rangers van was hit on 19-3-2004 at 3-40 p.m., injured persons were removed to hospital and statement of Hawaldar Muneer was recorded on 19-3-2004 at 7-00 p.m. Police station was situated 3 K.M away. There is no force in the contention of the learned Advocate for the appellants that there was unexplained delay of 4 hours in lodging of F.I.R., for the reasons that delay of only 4 hours in lodging of F.I.R. In such heinous offence is of no consequence consequence especially when it is properly explained. It is the matter of record that names of appellants were not mentioned in F.I.R., thus no mala fide could be attributed to complainant. Even otherwise, F.I.R. In such cases is never considered an encyclopedia which must contain minor details of incident. Eyewitnesses who were injured have fully supported the case of prosecution and stated that appellants along with companions made indiscriminate firing upon Rangers' van, from automatic .Weapons and used hand-grenades, which resulted murder of two persons namely Sepoy Ishtiaq Hussain and Kashif and eye-witnesses sustained injuries. The passengers travelling in bus had also received injuries. We firmly believe that in such act of terrorism, the testimony of injured witnesses is to be kept on a high pedestal. Generally, it is accepted that injured witnesses would not in any case substitute a wrong person for his actual assailant. Eye-witnesses of the incident had no previous enmity with appellants. Even no enmity has been suggested to them in cross-examination. All the eye-witnesses had clearly seen the appellants at the time of incident, it was day time, P.Ws. Picked up both appellants in identification parade and identified both appellants in trial Court. Contention of the learned counsel for the appellants that incident had occurred on 19-3-2004, appellants were arrested on 13-6-2004 and they were put to identification parade on 23-6-2004, there was unexplained delay in holding the identification parade and trial Court has wrongly relied upon such piece of evidence, we are unable to accept the contention of learned defence counsel for the reasons that P.Ws. Picked up both the appellants in identification parade and identified the appellants in the trial Court, they had no motive to falsely implicate the appellants, delay in holding of identification parade would not be fatal for the prosecution in this case. Rightly learned D.P.G. Has placed reliance upon the case of Solat Ali Khan v. The State (2002 SCM R 820). In the above mentioned case identification parade was held after 530 days of occurrence and 9 days after arrest of the appellants. The honourable Supreme Court of Pakistan did not discard the identification parade test and relied upon the evidence of the prosecution witness, who identified the appellants in the Court, whereas, in the instant case the time between the incident and identification parade is only 95 days. We see no reason to disbelieve the evidence of the eyewitnesses, who had seen the appellants clearly for 2-1/2 to 3 minutes at the time of incident, the features of the appellants must have been in the minds of the witnesses, how they can forget the persons, who had committed this gruesome act of killing two persons and causing injuries to the prosecution witnesses. It cannot be expected from the eye-witnesses to point out detailed description and features of the accused in the F.I.R. And 161, Cr.P.C. Statements as at that moment they must be undergoing a very traumatic condition. Delay in holding identification parade without any inherent defect in it cannot be rejected in this case particularly in the circumstances, when eye-witnesses of the incident had clearly identified that appellants present before the trial Court were same. Evidence of Rangers personnel cannot be disbelieved simply because they are members of armed forces. Moreover, P.W Muhammad Shafique, who was selling Biryani and P.C. Abid have fully supported the prosecution case. Despite lengthy cross- examination, nothing favourable to appellants has been brought on record. Eyewitnesses are natural and independent in this case. Ocular evidence is also fully corroborated by medical evidence. Investigating officer collected from place of wardat empties, blood-stained newspaper, recovered crime weapons, all the reports of experts are positive. Learned counsel for appellants did not press the evidence of media person examined in defence. We have examined it carefully, it is hearsay evidence nothing substantial has been brought on record in defence. The learned trial Court rightly appreciated prosecution evidence and did not attach undue importance to minor discrepancies but considered broad spectrum of prosecution version. Minor discrepancies normally occur due to errors of perception or observation or due to lapse of memory.
56. Learned counsel for the appellants contended that motive is neither alleged nor proved, it is the mitigating circumstance to convert the death sentence to the life imprisonment. The manner in which incident was committed, it is proved that motive of the appellants was to create panic and terror in the society and prosecution has proved the motive. Terrorists or the sectarian killers did not have any personal grudge or motive against innocent persons. Thus, there is no mitigating circumstance in this case to convert the death penalty to the imprisonment for life.
57. Having considered the case from all angles in the light of evidence on record, we find no substance in the submissions of learned counsel for the appellants, learned trial Court has properly assessed the evidence and gave sound reasons, prosecution evidence is confidence inspiring, there is no -reason for us to disagree with the appreciation of evidence by learned Anti-Terrorism Court. The facts of the present case led us to the conclusion that manner and method of incident was heinous, shocking, involving terrorist act, creating panic to the society as a whole and penalty of death has rightly been awarded by the trial Court. We do not find any mitigating circumstance, in the case of AHMAD NAWAZ AND ANOTHER v. THE STATE (2011 SCM R 593), it has been observed as under:-- "The analysis of all the cases has led us to a conclusion that from the facts and circumstances of the case, if the Court finds the manner and method of incident, to be in the nature of brutality, horrific, heinous, shocking, involving terrorist nature, creating panic to the society as a whole or in part, callous and cold-blooded, in such cases (which list is not exhaustive), the penalty of death must not be withheld. In other words, grave inhuman attitude, acts, manners, method and the criminality of actions are the constituents, elements and the instances, where punishment of death must be awarded." The Court is therefore, expected to proceed very carefully and cautiously in the exercise of such discretion and not to ignore the circumstances and cause of occurrence."
58. For the above stated facts and reasons, impugned judgment of Anti-Terrorism Court-II Karachi, is maintained, Reference made by the trial Court for confirmation of death sentence is answered in affirmative, consequently, appeals are dismissed.