1. ALLAHDINO G. MEMON, J: -- The appellants were charged and tried alongwith co-accused Gohar Habib son of Habibullah under sections 307, 395, read with section 397, P.P.C. Before the learned Judge, Special Court No.1 (Suppression of Terrorist Activities) who has convicted and sentenced them under section 307, P.P.C. To suffer R.I. For seven years and under section 395, P.P.C. Read with section 397, P.P.C. To suffer R.I. For seven years, with the direction that the two sentences shall run concurrently. However, accused Gohar Habib was acquitted vide judgment dated 5th June, 1990.
2. The brief facts giving rise to the prosecution case are that on 20-9-1989, at 10-30 a.m. P.C. Sarfraz was on guard duty outside Nasirabad Branch of Habib Bank Limited when a red colour car came there from which two boys got down. Those boys faced Adeel Complex, on the ground floor of which the Bank is located and gave a whistle. As they were calling some one after giving 3/4 whistles those two persons entered the building, while entering the building they signalled to the other persons sitting in the car to came, thereupon, the three remaining boys who were sitting in the car followed the two boys who had entered the building. The place where P.C, Sarfraz was sitting outside the bank was about 6 ft. Away from the staircase leading to Adeel Complex. The five boys had gone up into the building by the staircase. After 2/3 minutes the five boys suddenly came down from the staircase and surrounded P.C. Sarfraz. One of the boys took out pistol and asked him to raise his hands. That boy was standing just opposite him. He tried to snatch the pistol from him thereupon one of the boys who was standing behind him fired at him hitting him on his left shoulder. The same boy fired a second shot hitting him in his right leg due to which he fell down.
3. Thereafter another shot was fired at him due to which he sustained injury on the front of his left shoulder. They then snatched S.M.G. Loaded with forty rounds from him and he went unconscious.
4. Thereafter the boys entered the bank and fired from their arms. Two of the boys stood outer side of the cash counter, two went inner side of the cash counter and one was standing outside. The two boys who had gone to inner side of the cash counter snatched Rs.30,000 cash and prize bonds of the value of Rs.2,000. Due to firing of Bank Guard one of the boys who was standing outer side of the cash counter was shot dead, thereupon the remaining boys ran away with the cash and prize bonds which they had looted from the Bank. After the dacoits had escaped, leaving behind their dead associate, in the bank, Fazal Karim Mushtaq, Bank Manager telephoned the police on which S.H.O. Nasiruddin Ansari of Joharabad Police Station came to the Nasirabad Branch where he recorded the statement of Manager Fazal Karim Mushtaq under section 154, Cr.P.C.
5. After necessary investigation; the three accused were sent up before the Court.
6. A formal charge was framed against the accused, to which they pleaded not guilty.
7. At the trial prosecution examined Manager Fazal Karim Shah P.W.1, he has produced his statement/F.I.R. Recorded under section 154, Cr.P.C. As Exh.2--A; Bhai Khan Guard P.W.2, he has produced the inquest report in respect of the dead dacoit as Exh.3-A, Mashirnama regarding recovery of purse containing some papers, visiting cards, car driving licence in the name of Mehmood Khan, recovered from dead dacoit as Exh.3-B, the police had also secured the rifle with which the deceased dacoit was armed and the same has been produced as Article `C'. The police had also recovered an identity card from the flower pot inside the bank; which has been produced as Article `A'. The Mashirnama has been produced as Exh.3-C. Syed Shabbir Haider, Cashier of the Bank is P.W.3, Mr. Mouladad Khan, Ballistic Expert he has produced the ballistic -report -as Exh.5-A, P.C. Sarfraz Khan P.W.5; Abdul Jabbar Khan father of deceased dacoit, Mehmood Khan P.W.6, Muhammad Nasiruddin Ansari P.W.7, he had recorded the F.I.R. And has produced the F.I.R.
8. Incorporated in 154, Cr.P.C. Book, as Exh.8-A, Mashirnama of recoveries as Exhs.8-B/1 and 8-B/2, Medico-legal report regarding injuries on the person of accused Faisal Rashid as Exh.8/C. Dr. Aftab Aziz, he had examined injured accused Faisal Rashid and had issued medical certificate as Exh.8- C, D.S.P. S. Zulfiqar Hussain, who had supervised the investigation of this case. Muhammad Saleem brother of deceased dacoit Mehmood Khan P.W.10, he had identified driving licence of his brother Mehmood Khan produced as Exh.3-B and a purse article `D'.
9. After close of the prosecution case the statements of the accused were recorded in which they have denied the allegations. Appellant Saad Karim has also examined himself on oath as envisaged under section 340(2), Cr.P.C. They have not examined any witness in their defence.
10. We have heard Mr. Rafiq Khanzada, learned counsel appearing for the appellant Faisal Rashid, Mr. M.M. Pirzada, learned counsel appearing for appellant Saad Karim, Mr. Salman Ansari, learned counsel appearing for the State and have gone through the R&P of the cases.
11. It was contended by Mr. Muhammad Rafiq Khanzada, learned counsel for Faisal Rashid that the case was false and the appellant was made a scapegoat. He has further contended that appellant was not known to the witness and no identification test was held through the witnesses and, therefore, no reliance could be placed on the evidence of complainant and P.C. Sarfraz. He has further contended that the appellant was below 16 years of the age and he could not be kept in custody beyond 18 years and conviction and sentence awarded to him was illegal.
12. Mr. M.M. Pirzada, learned counsel appearing for appellant Saad Karim, has contended that the case was false and the appellant was made a scapegoat. He has further contended that the accused was not put to identification test through the witnesses and, therefore, no reliance could be placed on the evidence of P.C. Sarfraz and complainant with the regard to the identity of the appellant, he has further contended that S.M.G. Belonging to P.C. Sarfraz which is alleged to have been recovered from the appellant was foisted on him and the recovery was itself doubtful.
13. Mr. Salman Ansari, learned counsel appearing for the State has contended that there was sufficient evidence against the two appellants and they were rightly convicted.
14. We have considered the contentions and have gone through the evidence carefully. Complainant Fazal Karim Mushtaq, who was Manager of the Bank Nasirabad Branch has deposed that this incident took place on 20th September, 1989. On that date the Cashier at Nasirabad Branch H.B.L.
15. Was Shabi Haider and Guard was Bhai Khan at about 10-30 a.m. He was sitting in the cabin in his bank when he heard some shot being fired outside the Bank. Immediately thereafter he saw some boys entering the bank with fire-arms. They started firing inside the Bank. While shouting where is the cash, where is the cash, they went to the cash counter. On reaching the cash counter they picked up the cash lying there. Tb' number of boys who came inside the bank were 4/5. Two of the boys were; standing on the outer side of the cash counter duly armed with fire-arch while the other had gone to the inner side of the cash counter. Out of the two persons who were standing on the outer side of the cash counter, one died due to firing by their Chowkidar Bhai Khan. He had seen the other persons standing outside the counter, very clearly and he can identify him. That person is present in Court in custody (Note: points to accused Faisal Rashid). That one of the dacoits was killed due to firing of Guard Bhai Khan, the other dacoits including accused Faisal Rashid who had been pointed out run away taking the cash, which they had looted from the cash counter. After the dacoits had escaped he informed the police on telephone, and the police arrived in the bank within ten minutes. Police recorded his F.I.R. At the bank and read over the same to him and he had signed it. He has produced the same as Exh.2-A. After the dacoits had escaped they checked up the cash and found that a total amount of Rs.30,000 had been looted by the dacoits from the Bank.
16. Apart from Guard Bhai Khan, a police guard was also posted outside the bank. In cross- examination of Mr. Rafiq Khanzada, he has stated that he had not mentioned to the F.I.R. That he had seen one of the dacoits clearly and, therefore, he will be able to identify him. He had stated in his F.I.R. That 2/3 boys with fire-arms entered the bank but he explained that 2/3 boys had come into the bank on the inner side of the cash counter while the two were standing on the outer side of the cash counter but within the bank premises. There were some customers present in the bank at that time.
17. Guard Bhai Khan P.W.2, has deposed that on 20th September, 1989; he was on guard duty at the Nasirabad Branch of H.B.L. At 9-00 a.m. At about 10-30 a.m. He heard firing outside the bank. Police guard consisting of the two police--men were posted on duty on that day outside the bank.
18. Immediately, after the said firing 4/5 boys came inside the bank, as he was seeing from a hole in the wall. He was not able to say which person from among these 4/5 were armed. However, he heard the firing inside the bank. The firing was of 4/5 boys who had entered the bank. He fired two shots in the air. He was armed with shot gun. In the meanwhile one of the boys who had entered in the bank came very close to him, that boy was armed with rifle. The person who came very close to him tired at the glass of the cash counter, which was broken and then he jumped inner side of the cash counter. He immediately, picked up the cash from the cash counter and came towards him on which he fired at him from the gun. He was hit by his shot and he fell down, the remaining culprits ran away. That some cash was in the hand of the shot-dead culprit while the other cash from the counter was taken away by other dacoits. After the dacoits had escaped the police had come there. He will not be able to identify any of the dacoits. Police had prepared inquest report in respect of the dead dacoit and had obtained his signature on the same, which he has produced as Exh.3-A. From the hands of the dead dacoit a bundle of notes, and prize bonds were secured, as mentioned in the inquest report. Bundles of currency notes and prize bonds in Court (articles `A' and `B' respectively) are same. From the personal search of the dead dacoit, a purse containing some papers, visiting cards, cash amount and a driving licence in the name of Mehmood Khan were recovered. The articles present in Court are same. The driving licence is marked as Exh.3-B. A rifle with which he was armed was also secured which is lying in Court as Article `C'. The purse of the dead dacoit marked as Article `E' and pistol lying in Court were also secured from the dead dacoit. Police had also recovered an identity card in his presence from the flower part lying inside the bank. Identity card article `F' in the Court is the same. He has produced the Mashirnama as Exh.3-C. In cross-examination, he has deposed that he was disturbed due to the incident. Whatever articles have been shown to him were secured by police in his presence. He did not sign any of the articles. He was read over the Mashirnama Exh.3-C, which was prepared at the bank. His statement was also recorded on the spot at the bank. Shabih Haider has also signed the Mashirnama Exh.3-C.
19. Police had come in the bank within fifteen minutes.
20. Syed Shabih Haider, Cashier P.W.3, has deposed that on 20-9-1989 he was cashier at the Nasirabad Branch of Habib Bank. At about 10-30 a.m. He was engaged with his work in the bank when he heard gunshot which came from outside the bank. Thereafter, he saw some persons entering the bank while firing from their fire-arms. Some of those persons came to counter where he was sitting. They looted the cash from the bank. In order to save himself, he hide under the counter. He was frightened and did not see the dacoits clearly and, therefore, he is not in a position to identify them. The dacoits had looted the amount of Rs.60,610 as on balancing the cash they found this amount short. After the dacoits had looted the bank and had gone out, he came out from the place of hiding. In the meanwhile, the siren of the bank had sounded. He saw a dead body lying in the bank. It was of one of the dacoits who had entered the bank. He had died due to a shot fired by the gun man of the bank. In the hands of dead man, there was a gun a pistol was also found tucked under his shirt. Rifle article `D' and pistol article `E' are the same, which were recovered from the possession of the dead dacoit.
21. Mr. Mouladad Khan, Ballistic Expert P.W.4, he had examined S.M.G. No.07094 with magazine and found the same in working order. It was full automatic weapon capable of firing 6/8 cartridges per minute. The machine gun is a 7.62 mm bore and thus a prohibited bore weapon. He has produced the report as Exh.5-A.
22. P.C. Sarfraz Khan P.W.5, he was posted at Joharabad Police Station on 20-9-1989. He was posted at guard duty at Nasirabad Branch of Habib Bank. His duty was from 9-00 a.m. Up to the closing of the bank at 1-00 p.m. He was provided with a S.M.G. The S.M.G. Article `C' in Court is the same, which was issued to him. Such entry was kept in record. At about 10-15 a.m. He was on the guard duty outside the bank when a red colour car came up. He could not note the number of the car. From the car two boys got down. They faced Adeel Complex on the ground floor of which the Nasirabad Branch is located and gave a whistle as if they were calling some one. After giving, 3/4 whistles those two persons entered the building while entering the building they signalled to the other persons, sitting in the car to come thereupon. The three remaining boys who were sitting in the car followed the two boys who had entered the building. He was sitting 6 ft. Away from the staircase leading to the Complex. The 5 boys had gone up into the building by this staircase. After 2/3 minutes the five boys suddenly came down and surrounded him, one of the boys took out a pistol and asked him to raise his hands. That boy was just in front of him. He tried to snatch pistol from him on which one of the boys who was behind him fired at him, hitting on his left shoulder. The same boy fired another shot hitting his right leg, due to which he fell down; thereafter, a third shot was fired and sustained injury on the front of his left shoulder. Thereafter the boys snatched away his S.M.G. From him. Then he went unconscious. His S.M.G. Was loaded with 40 founds and he had fired four rounds. He could identify the boys who had fired at him and snatched the S.M.G. From him as he had been close to him. The three accused present in Court, Saad Karim, Gohar Habib and Faisal Rashid are the three boys who had fired at him and snatched S.M.G. From him. After some time, he was taken to Abbasi Shaheed Hospital where he remained as indoor patient for 22 days.
23. His statement was recorded by the Investigating Officer at the Hospital. He was not put to identification test. In cross-examination of Mr. Rafiq Khanzada, he has stated that he did not remember whether his statement was read over to him. He did not remember that in his previous statement he has stated that there were 5/6 boys, but now he recalls that there were 5 boys.
24. Abdul Jabbar, father of deceased dacoit Mehmood Khan P.W.6, has deposed that he knows accused Saad Karim, Zafar who are residing in his locality; his son Mehmood used to play with accused Saad Karim and Zafar since childhood. On 20-9-1989 while he was in his office, he was informed that his son Mehmood was involved in some incident and has been killed. He was informed that he was in his house, when some friends of Mehmood had called him and taken him away from his house. Driving licence bearing photograph Exh.3/B is licence of his son Mehmood Khan.
25. Muhammad Slaeem P.W.10 has deposed that Mehmood Khan was his younger brother, who died on 20-9-1989. He was informed that he had died in the Bank due to firing. The driving licence Exh.3- B and a purse article `D' belonged to his deceased brother. He knew accused Saad Karim, Gohar Habib and Faisal Rashid present in Court. They were all friends of deceased Mehmood and used to visit him at their house. In cross-examination, he has stated that he does not know what accused Saad Karim was doing. He had not seen the college identity card article `F before.
26. Muhammad Nasiruddin P.W.7, was posted as S.H.O. Joharabad Police Station on 20-9-1989. On that day, he was on Mobile Duty from the morning. According to him, at 10-30 a.m. He received information on the wireless that dacoity had taken place in Nasirabad Branch of Habib Bank and, therefore, he went there. He found a red colour car standing just opposite the branch. He then entered the branch and found a dead body lying just in front of the cash counter. The dead body was having a rifle in one hand and cash and bonds in another hand. One TT pistol was stuck under top of the pant of the dead body. The glass pan in front of the cash counter was broken. He found marks of bullets on the walls of the bank. He inspected the scene of offence in presence of Mashirs Shabih Haider and Bhai Khan, the Guard of the Bank. He also recovered cash and prize bonds of the total value of Rs.28,610 from the dead body. He also recovered pistol and rifle. The property in Court was the same. He also recovered from the pocket of the dead body a purse in which there was a driving licence in the name of Mehmood Khan. The purse article `D' and the driving licence Exh.3/B in the Court are same. He also recovered identity card of Government Degree Science College, Liaquatabad, Karachi, in the name of Saad Karim lying in Court as Article `F. He prepared such Mashirnama, which has been produced as Exh.3-C. He had prepared inquest report of the dead body, which has been produced as Exh.3-A. He then recorded statement of Bank Manager under section 154, Cr.P.C. The report Exh.2/A is the same. He had sent the said report through Constable Nazir to the police station for incorporating the same in the F.I.R. He has produced the F.I.R. As Exh.8/A. He sent the dead body to the Abbasi Shaheed Hospital for post-mortem and examination.
27. He also sent injured Police Constable Sarfraz to Abbasi Shaheed Hospital. He recorded the statements of Bhai Khan, Shabih Haider Cashier and other members of staff, namely, Muhammad Anwar, Abdul Salam and Mazher Hussain. The name of deceased dacoit was Mehmood. He had arrested accused Saad Karim and Gohar Habib and Faisal Rashid on 7-10-1989. From the possession of each of the accused fire-arms were recovered. He had recovered .7 mm rifle and two live cartridges from accused Gohar Ayub, two bore revolver with fire-arms from Faisal Rasheed, TT pistol with five rounds. They were arrested alongwith one Zafar from the bushes under construction bridge in Yasinabad. On the same day accused Saad Karim on interrogation took him to the ground and dug from the ground a S.M.G. Which was buried in the ground. It was fitted with magazine containing 26 live cartridges. The number of S.M.G. Was 07094. The above recovery was made in presence of Mashirs Nusrat Ali and Abu Harara. He has produced the Mashirnamas as Exh.8/B-1 and Exh.8/B-2. At the time of arrest, accused Faisal Rasheed had bullet on the ow of his body. He had sent him to Abbasi Shaheed Hospital for examination. He has produced medico-legal certificate as Exh.8/C. On completion of investigation challaned the accused. In cross-examination, he has deposed that the bushes under the bridge of Yasinabad will be about 7/8 furlongs from the police station. There are no hotel near about the place from where he had arrested the accused.
28. Mashir Shabih Haider resides in Block 21 in Joharabad area. He had picked up the two mashirs at the same time together from the Bus stop. There may have been other persons at the bus stop. The place from where the accused were arrested would be two furlongs from Yasinabad Bus stop. He had not sealed the arms on the spot, the-arms were secured from the accused. As there was fear of the accused escaping, he thought that he will not waste the time in sealing the weapons. The Mashirnama Exh.8--B/1 and Exh.8/B-2 are in the hands of H.C. Habib, who was with him. The statement of the witnesses was also in the hand of H.C. Habib. Accused Faisal was sent to the Hospital with the police constable from the police station. He has denied that he arrested Faisal from Qasba Colony. He did not inquire from the college authorities as to whom the identity card article `F was issued.
29. Dr. Aftab Aziz, P.W.8 has deposed that on 7th October, 1989, accused Faisal present in Court, was sent to him by S.H.O. Joharabad Police Station, for examination and report. He examined the accused and found the following injuries on his person.
30. (1)Infected wound 1 c.m. x 3-3/6 oval shape lying anteriorly over lower 1/3 of left thigh.
31. (2)Abrasion with thick healed scare 1/4 c.m. x 1/4 c.m. Nearly circular in shape, lying over inner aspect of left thigh at lower part.
32. (3)Infected wound 1/3 c.m. x 1/3 c.m. Nearly circular in shape not penetrating, lying over lumber region of abdomen on right side laterally.
33. The above injuries were about 2 to 3 weeks old and were caused by fire-arm. All the three injuries were simple in nature. He had issued such certificate, which has been produced as Exh.8/G.
34. Accused Faisal Rashid present in Court, is same.
35. We have considered the contentions. Adverting to the first contention of the learned counsel appearing for the appellants, there is nothing on record to show that the complainant, P.C. Sarfraz and S.H.O. Muhammad Nasiruddin had any enmity with the appellants nor any enmity was suggested to them in cross---examination, and, therefore, there was no reason for them to falsely implicate the, appellants.
36. Adverting to the question of identity of the appellants, the incident took place during broad daylight there was encounter between the accused and P.C. Sarfraz. Even there was grappling while service S.M.G. Was snatched from him. He has identified appellants Saad Karim and Faisal Rashid in Court and has stated that these two persons were amongst the culprits who had fired at him and had snatched S.M.G. From him. He had no enmity with the appellants and had no reason to implicate them falsely. Complainant Fazal Karim Mushtaq who was Manager of the Habib Bank Branch at the time of incident has clearly stated that he had seen the other persons standing outside the counter very clearly and he can identify them. That person was present in Court in custody and he pointed to accused Faisal Rashid. It was broad daylight incident and he had also no reason to falsely implicate appellant Faisal Rashid. No doubt, the identification test was not held through the witnesses by the police but the main evidence is the evidence given in Court. The evidence of two witnesses appears to be straightforward, natural and reliable and we have no reason to doubt the same. In addition to the above evidence, there is evidence of recovery of the S.M.G. From appellant Saad Karim, this S.M.G. Was snatched from Police Constable Sarfraz. There is also evidence of injuries on the person of appellant Faisal Rashid at the time of his arrest. He had fired injuries on his person and that when a question was put to him to explain the injuries, he has stated that `he can give no explanation, how he received injuries'.
37. There is also evidence that the present appellants were close friends of deceased dacoit Mehmood Khan who was killed in the bank while committing dacoity. There is also evidence that deceased dacoit Mehmood Khan was taken away from his house by his friends in the morning on the day of incident.