KHADIM HUSSAIN TUNIO, J. Through this common judgment, we intend to dispose of the above captioned appeals filed by the appellants, Syed Kazim Abbas and Nauman, who have challenged judgment dated 30.11.2020 (impugned judgment) passed by the Anti-Terrorism Court XVI, Karachi in Special Cases Nos. 08 and 22 of 2014 (Re-The State v. Syed Kazim Abbas and others) emanating from FIR No. 280/2013 registered at Police Station Saudabad, Karachi under sections 302, 324 and 34 P.P.C. read with S. 7 of the Anti-Terrorism Act 1997 (ATA 1997) and FIR No. 396/2013 under section 23(1)(a) Sindh Arms Act 2013 (SAA 2013). Through the impugned judgment, both the appellants were convicted and sentenced to each suffer life imprisonment for the offence punishable under section 302 read with 34 P.P.C. They were also sentenced to another count of life imprisonment under section 7(a) of the Anti-Terrorism Act 1997 (ATA 1997) with a fine of Rs.
200,000/- each. Both the appellants were also convicted under section 324 read with 34 P.P.C. and sentenced to rigorous imprisonment for ten (10) years with a fine of Rs.100,000/- each, in default whereof to suffer S.I for six (06) months more. They were also convicted for an offence punishable under section 7(c) of the ATA 1997 and sentenced to suffer another count of life imprisonment with a fine of Rs.100,000/- each, in default whereof to suffer SI for six (06) months more. They were further convicted for the offence punishable under section 7(1)(h) of the ATA 1997 and sentenced to suffer RI for ten (10) years with a fine of Rs.50,000/-. They were also ordered to pay compensation of Rs.200,000/- each to the legal heirs of the deceased Naimat Ali. Appellant Syed Kazim Abbas was also convicted under section 23(1)(a) SAA 2013 and sentenced to suffer ten (10) years of rigorous imprisonment with a fine of Rs.50,000/-, in default whereof to suffer SI for three (03) months more.
The appellants were extended benefit of Section 382(B) Cr.P.C. and their sentences were ordered to run concurrently. The revision application is also filed against the same impugned judgment, seeking enhancement of sentence of the appellants from life imprisonment to death.
2. Precisely, facts of the prosecution case as narrated in FIR No. 280/2014 are that the complainant and his father left their office next to City Court Karachi in a white Margala which is when they were shot at from the back near Nazimabad bridge at 7:45 pm by two unknown assailants. The complainant Muhammad Tauqeer Randhawa himself received an injury on his wrist while his father Naimat Ali also received an injury to which he succumbed during treatment at the hospital.
The complainant appeared at the police station and got the FIR lodged against unknown culprits.
During investigation, appellant Syed Kazim Abbas was arrested from an empty plot near Gulf Cross Road No. 2, DHA Phase-IV with a 9mm Pistol and was taken into custody and while being interrogated, he disclosed information of his involvement in the attack on the complainant and his father along with his accomplices appellant Nauman Ali, Salman and Rehan, based on which he was challaned and then appellant Nauman was also arrested.
3. After completion of Investigation and submission of challan, necessary documents were provided to the accused and then a formal charge was framed against them to which they pleaded not guilty and claimed to be tried. In order to substantiate its case, prosecution examined in all 20 witnesses being PW-1 Muhammad Tauqeer Randhawa the complainant and deceased's son, PW-2 Dr. Muhammad Nadeemudin, Medico-Legal Officer of Abbasi Shaheed Hospital who conducted medical examination of the deceased and the complainant, PW-3 Additional Deputy Commissioner-I Malir Syed Shujat Hussain, PW-4 Additional Police Surgeon Qarar Ahmed Abbasi, PW-5 S.I Syed Idrees Pasha, PW-6 PC Umesh Ali, PW-7 Riaz Hussain, PW-8 HC Sajjad Ahmed, PW-9 S.I Inspector Nasrullah Khan, PW-10 Nazeed Ahmed Vaid, PW-11 Civil Judge Asif Ahmed, PW-12 S.I Waseem Ahmed, PW-13 S.I Shabbir Ahmed, PW-9 S.I Nasrullah Khan was again examined as PW-14, PW-15 Deputy Commissioner Ali Nawaz, PW-16 Murtaza Khan Babar, PW-17 (Rtd.) ASI Imdad Ali, PW- 18 Muhammad Ameen, PW-19 Muhammad Nasir and PW-20 Inspector Muhammad Naeem.
4. Statement of both of the accused under section 342 Cr.P.C was recorded wherein they claimed their innocence and Nauman stated that he was falsely involved in the case by Rangers for being a social activist for MQM Pakistan and was picked up by them and kept at 73 Wing Sachal Rangers Headquarter and was eventually implicated in the case while Kazim Abbas stated that he too was picked up by Rangers for his affiliation with the MQM prior to the incident on 27.09.2013 and was falsely involved for his association with MQM Pakistan. Syed Kazim Abbas produced copy of application moved to DIG West Zone and CPLC filed by his father which he produced at Ex.48/A and 48/B.
5. Learned Trial Court, after perusing the material available before it, convicted and sentenced the accused as stated above, hence these appeals and the revision for enhancement of sentence awarded to them.
6. Learned counsel for the appellants jointly contended that there is a delay of one day in the lodging of FIR; that there are various contradictions in the evidence of the prosecution witnesses which have been ignored by the learned Trial Court; that memo of the car's inspection was delayed by 5 days and as such the recovery of Sikka with which the crime weapon matched is doubtful; that the appellant Nauman was not identified during an identification parade and identification by witnesses in Court after the lapse of 7 years is doubtful; that the recovery of the pistol on appellant Kazim is foisted; that appellant Kazim was arrested on 27.09.2013 from his house and such application was moved by his father for his release; that the prosecution failed to produce Rangers personnel who were party of the recovery and arrest of the appellant Kazim; that no entry of malkhana was produced either; that all entries produced by the investigating officer of the case are not original ones; that nothing was recovered from the appellant Nauman and he was arrested and involved on the basis of alleged admission of appellant Kazim before the police; that the appellant Kazim had been shown to the witnesses prior to identification parade; that even the name of appellant Nauman does not transpire in the FIR.
7. Learned Additional Prosecutor General, assisted by learned Special Prosecutor Rangers, while supporting the impugned judgment, contended that the eye-witnesses have identified the appellant Kazim during identification parade and appellant Nauman before the Court; that both the eye-witnesses have also established their presence at the spot and cannot be deemed as chance witnesses; that the eye-witnesses and police have no enmity or ill will against the appellants nor has the same been alleged, neither proved; that the appellant Kazim confessed about his guilt during interrogation before the JIT; that the recovery of the crime weapon from the appellant Kazim matches the crime empties recovered; that the appellant Kazim's finger prints have been found on the crime weapon as well; that chemical examiner's report also found human blood in the car which further strengthens the prosecution case.
8. Learned counsel for the complainant, while arguing in the same line as argued by the learned Additional Prosecutor General, contended that the learned Trial Court has shown undue leniency to the appellants despite the charge having been proved against them, as such he has prayed for the enhancement of sentence awarded to the appellants from life imprisonment to death.
9. We have heard the learned counsel for the respective parties and perused the record available before us.
10. The case of the appellant Nauman and that of Syed Kazim Abbas is distinguishable in nature as such will be discussed separately. The allegation against the appellant Nauman is that he had accompanied the appellant Kazim and was the driver of the motorbike on which the appellant Kazim rode while shooting at the deceased and the complainant. It is the prosecution's case that the incident took place on 26.09.2013 and the appellant Kazim was arrested on 30.09.2013 after receiving spy information. During interrogation, he disclosed regarding the involvement of appellant Nauman and on this basis, Nauman was arrested. He was arrested empty handed with nothing related to the crime recovered from him, nor could prosecution establish his connection with the incident besides in-court identification by PW-18 Muhammad Ameen who pointed out the appellant Nauman stating that he was driving the motorcycle and by PW-19 Muhammad Nasir.
After perusing the impugned judgment, we observed that the reasoning adopted by the learned Trial Court mainly revolved around the appellant Syed Kazim Abbas and not appellant Nauman against whom no solid incriminatory evidence was available besides the word of two prosecution witnesses who identified hint and that too not during an identification parade, instead in Court despite having never seen him before. Their correct identification of appellant Nauman is therefore in some doubt and as such we cannot safely rely on it and this being the case especially as there is no other corroborative/ supportive evidence against him, he is acquitted of the charge by extending him the benefit of doubt. In this respect, reliance is placed on the case of Ayub Masih v.
The State (PLD 2002 SC 1048).
11. Now coming to the case of the appellant Syed Kazim, prosecution has brought forth a plethora of proof to establish his involvement and culpability in the incident. He was arrested on 30.09.2013, merely after three days of the incident from an open plot at Khayaban-e-Jami Road near Gulf Course Road-2, Phase-IV DHA after PW-9 Sub-Inspector Nasrullah received spy information regarding his presence there in suspicious condition. He was not known to the police prior to this and his arrest was unrelated to the prior incident. Unbeknownst to PW-9, while proceeding with the appellant Kazim's arrest, they recovered a 9mm pistol with 5 live rounds in the magazine with "CAL 9mm ARMADA Punjab Arms Company" written on it. This weapon then turned out to be the crime weapon which was used in the murder of deceased Naimat Ali Randhawa. The weapon was sealed on the spot by PW-9 SI Nasrullah himself. A discrepancy was noted by the Trial Court and rightly appraised while noting that there was in fact a serial number mentioned on the pistol, however even the Trial Court itself noted that it was hard to read in Court and was only possible after seeing it three times. Given the odd hours of night when the recovery was made and the memo was prepared, it is entirely possible for anyone to have missed it and as such the same discrepancy is not sufficient to discard the weapon as a whole. Empties recovered at the place of incident had an inscription on one of them being T-C9MMLUGER' which was also found on the bullets recovered from the 9mm pistol that was recovered from the appellant Kazim. With regard to the arrest and recovery procedure, both, PW-9 Nasrullah and PW-12 SI Waseem Ahmed have deposed in line with each other. Crime empties were sent to the FSL on 28.09.2013 along with the mutilated bullet recovered from the car which were then returned after determining their bore to be 9mm and then were sent again with the crime weapon to the FSL on 02.10.2013, two days after the arrest of the, appellant. Both these recoveries were sent to the FSL examiner within 72 hours and as such hold great credibility as pieces of evidence. The recovered case property was sealed on the spot and this fact too was reaffirmed by the FSL Examiner who notes under General Remarks in his report that the parcels received were in sealed condition. in this respect, reliance is placed on the case of Zahid and another v. The State (2020 SCMR 590). The FSL examiner noted with regard to the recovered empties as follows:- Two 9mm bore crime empties already marked as 'CI and C2' were fired from the above mentioned 9nun bore pistol rubbed number in question, in view of the fact that major points i.e. striker pin marks, breech face marks and chamber marks are 'similar'.
The car in which the complainant and deceased Naimat Ali were attacked was also sent to the FSL for examination on 01.10.2013. The FSL examiner noted the car's registration number being Z-0765 which, when put in juxtaposition with the FIR, is the same and as such rules out any question of the car not being the same. Within the car, the FSL examiner found:- The hole now marked as ENT-I (right side door inner side), is caused due to the passage of fired projectile of fire arm.
This also strengthens the prosecution case in that the version brought forth by the prosecution finds further support. During the examination of the car, another lead bullet (sikka) and its jacket cover were recovered which were examined by the FSL examiner on 05.10.2013 who noted that the jacket was for the same bullet recovered from within the car. The investigating officer also got fingerprint specimen of the appellant Kazim to have it matched with the weapon recovered from him and such report is also available at Ex-45/AAF. The examiner observed that the fingerprint available on the gun matched the left thumb impression (LTI) of the appellant and such pictures were also attached with the report. Appellant Kazim was also identified in an identification parade by PW-19 Muhammad Nasir who was an independent labourer who had a fruit cart at the place of incident. He identified the appellant Kazim from a row of dummies and assigned him the role of being the one shooting at the deceased Naimat Ali first. Appellant Kazim's face was muffled which was also attested by PW-11 Asif Ahmed, the Civil Judge responsible for conducting the identification parade. Section 164 Cr.P.C statement of PW-18 Muhammad Ameen was also recorded and he too fully implicated the appellant Kazim Abbas which further strengthens the prosecution case. PW-18 Muhammad Ameen had also identified the appellant Syed Kazim Abbas in an identification parade which was conducted by CW-3 Ali Akbar, who deposed that the identification parade had failed on his part as the witness admitted that the appellant was shown to him. Even if the said identification parade is taken out of consideration, the one conducted through PW-19 Muhammad Nasir was still sufficient to help ascertain the prosecution case. In terms of the correct identification of Kazim especially as the eye-witness had seen the appellant for 30 minutes in good light prior to the attack on the deceased and would easily have been able to correctly identify him at an identification parade, which he did with the specific role of firing on the deceased. So far PW-18 and PW-19 being chance witnesses is concerned, learned Trial Court gave adequate observations to justify why it were not the case as it was part of the daily routine for PW-18 Muhammad Ameen and PW-19 Muhammad Nasir to bring their carts at the same place daily and tend to their respective business.
12. Evidence of all the P.Ws is consistent on all material particulars of the case, although there are minor contradictions in the evidence of the PWs, but the same are not material and certainly not of such materiality so as to affect the prosecution case. These variations may well be due to mere lapse of memory or confusion caused in his mind by a relentless cross-examiner. It needs no special emphasis to state that every contradiction cannot take place of a material contradiction and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. Reliance, in this respect, is placed upon Zakir Khan v. The State (1995 SCMR 1793) and Khadini Hussain v. The State (PLD 2010 SC 669). The defence Counsel could not point out any material discrepancy in the evidence of the eye-witnesses besides the few minor ones. As far as attracting the provisions of Anti-Terrorism are concerned, prosecution has adequately proved sufficient connection between the killing of deceased Naimat Ali Randhawa and him being a prosecutor for many high profile cases on behalf of the State due to which he had developed many enemies and had been receiving threats of dire consequences for helping to bring to justice and closure to the families of many victims of terrorism and target killing.
13. Coming to the defence plea raised by the appellant Kazim, it appears to be an afterthought, which has rightly been disbelieved by the learned Trial Court. The appellant failed to provide any valid proof that he was in fact picked up by the Rangers. He did not examine any defence witness to ascertain such claims and only produced photocopies of two applications from his father to concerned authorities for his release which is insufficient in itself to prove that he was picked up and then falsely implicated. No enmity or ill will has been alleged or proved against either the prosecution witnesses or the police officials as such police had no reason for falsely implicating the appellant Kazim Abbas in this case, nor do the two independent witnesses namely PW-18 Muhammad Ameen and PW-19 Muhammad Nasir all of whose evidence we believe and find to be trustworthy, confidence inspiring and reliable especially in terms of the eye-witness' correct identification of the appellant Kazim.
14. After proper assessm ent and evaluation of evidence, this Court concurs in the conclusion regarding the guilt of the appellant Kazim having been proven to the hilt. The point now requiring consideration before this Court is whether there were any mitigating circumstances which could justify the sentences of life imprisonment awarded to the appellant Kazim rather than the normal sentence of death. Deceased Naimat's son Touqueer Randhawa filed Criminal Revision Application No. 10 of 2021 for enhancement of sentence awarded to the appellants. The same to the extent of appellant Nauman has already become infructuous following the findings above. Without doubt, learned Trial Court came to the conclusion that the prosecution has established the guilt against the appellant/respondent Kazim Abbas beyond any shadow of doubt. At the very outset, we find that as a rule when a case of pre-meditated cold blooded murder is proved beyond a reasonable doubt by a target killer, he should be sentenced to death as such barbarous acts justify a deterrent sentence, however based on the mitigating factors mentioned in the impugned judgment, we find in this case, the lesser sentence of imprisonment for life to be justified and therefore uphold the same and dismiss the criminal revision application.
15. In summary, for what has been discussed above, we are of the considered view that the prosecution has proven its case against the appellant Syed Kazim Abbas and the view taken by the learned Trial Court is just and appropriate, which does not call for any interference, resulting in Special Criminal Anti-Terrorism Appeals Nos. 206 and 207 of 2020 being dismissed. However, prosecution miserably failed to do the same for the appellant Nauman, who while being accorded benefit of the doubt is acquitted of the charges levelled against him, as such Special Criminal Anti- Terrorism Appeal No. 214 of 2020 is allowed. As a consequence thereof, impugned judgment is upheld to the extent of appellant Syed Kazim Abbas, but not for appellant Nauman. Following said conclusion and the observations above, criminal revision application filed the complainant Touqueer Randhawa is also dismissed being meritless. Appellant Nouman is ordered to be released forthwith if not required in any other custody case.
16. Captioned matters stand disposed of in the above terms.