ASIF SAEED KHAN KHOSA, J. --- Atta-ur-Rehman appellant in Criminal Appeal No, 25-K of 2013 and Shahzad Ahmed Bajwa alias Umer appellant in Criminal Appeal No, 26-K of 2013 and some .others had allegedly resorted to firing and throwing of hand grenades at a Rangers party at about 03.40 p.m. on 19.03.2004 under a bridge in Baloch Colony in the area of Police Station Ferozeabad, District Jamsheed Town, Karachi in which incident two persons namely Sepoy Ishtiaq Ahmed and Kashif had died and five others had received injuries. The incident in issue was an act of terrorism and in respect of that incident FIR No, 179 was registered at the above mentioned Police Station within a few hours of the occurrence on the same day. After a regular trial the present appellants were convicted and sentenced by the trial court for offences under section 302(b), P.P.C. read with section 34, P.P.C. read with sections 7(a) of the Anti-Terrorism Act, 1997, sections 7(d) and 7(h) of the Anti-Terrorism Act, 1997, section 337-F(vi), P.P.C. read with section 34, P.P.C. read with section 7(c) of the Anti-Terrorism Act, 1997, section 337-F(iii), P.P.C. read with section 34, P.P.C. read with section 7(c) of the Anti-Terrorism Act, 1997 and section 337-F(v), P.P.C. read with section 34, P.P.C. read with section 7(c) of the Anti-Terrorism Act, 1997. Both the present appellants were sentenced to death each on each count of the charge pertaining to murder with terrorism whereas Shahzad Ahmed Bajwa alias Umer appellant was additionally convicted for an offence under section 3 of the Explosives Substances Act, 1908 and was sentenced to imprisonment for life on that count of the charge. The appellants challenged their convictions and sentences before the High Court through separate appeals which were dismissed and their convictions and sentences recorded by the trial court were upheld and confirmed. Hence, the present appeals by leave of this Court granted on 16.08.2013.
2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.
3. After hearing the learned counsel for the parties and going through the record of the case with their assistance we have straightaway observed that the present incident was an incident of terrorism in which firing had been resorted to and hand grenades had been hurled at a Rangers party resulting in two deaths and five persons getting injured. It may be true that in the FIR lodged in respect of the said incident no culprit had been identified or named but some time after the occurrence after setting some clues to involvement of the present appellants and their co- accused they were arrested in connection with this case and were put to a test identification parade. The proceedings of the test identification parade show that the present appellants had been picked up by the eye-witnesses with reference to the roles played by them during the occurrence in issue. Even during the trial the eye-witnesses produced by the prosecution had pointed towards the present appellants as some of the culprits who had actively participated in the main incident. The ocular account of the occurrence in question had been furnished before the trial court by as many as six witnesses out of whom two had the stamp of injuries on their bodies vouchsafing their presence at the scene of the crime at the relevant time. The consistent ocular account furnished by the said eye-witnesses had received sufficient support from the medical evidence. Both the courts below had undertaken an exhaustive analysis of the evidence available on the record and had then concurred in their conclusion regarding guilt of the appellants having been established beyond reasonable doubt and upon our own independent evaluation of the evidence we have not been able to take a view of the matter different from that concurrently taken by the courts below.
4. We have particularly attended to the sentences of death passed, against the appellants and have noticed some peculiarities of this case warranting exercise of discretion in matter of their sentences of death. In this context we have noticed that although all the other formalities required by the law vis-a-vis holding of a test identification parade had been duly compiled with yet the dummies had remained unchanged while all the accused persons were put to identification. This was an irregularity not vitiating the parade itself but putting the Court to caution. Both the courts below had observed in the impugned judgments passed by them that the firearms recovered from the appellants' custody during the investigation had matched with some crime-empties secured from the place of occurrence but we note that those observations made by the courts below were not factually correct. Apart from that the allegations leveled against the appellants and their co- accused were joint and common and no specific injury had been attributed to any particular accused person. It is, thus, not clear as to which one of the accused persons, including the present appellants, was actually responsible for causing the fatal injuries to the deceased. In such circumstances generally a sentence of death is withheld when it is not clear as to whether a particular culprit was actually responsible for causing a death or not. For all these reasons we have decided to exercise caution and to err, if at all, on the side of precaution.
5. For what has been discussed above these appeals are dismissed to the extent of all the convictions and sentences of the present appellants recorded and upheld by the courts below except the sentences of death passed against them on two counts of the charge pertaining to murder with terrorism which sentences of death are reduced to imprisonment for life each on each such count. All the sentences of imprisonment passed against the appellants shall run concurrently to each other and the benefit under section 382-B, Cr.P.C. shall be extended to them.
These appeals are disposed of in these terms.