NAZIM HUSSAIN SIDDIQUI, J.- This judgment will dispose of Cr. Appeal Nos. 116/1993, 118/1993 and Cr.
Revision No. 46/1993. Cr. Appeal No. 116/1993 was find on 29.3.1993 by appellants Muhammad Ashraf, Syed Irfan alias Fauji and Kamal Jilani. Cr. Appeal No. 118/1993 was presented on 29-3-1993 by appellant Syed Irfan. Cr. Revision No. 46/1993 was presented by applicant/complainant Muhammad Islam son of Ali Sher on 5-4-1993 for enhancement of sentences of Muhammad Ashraf, Syed Irfan and Kamal Jilani. Appellant Muhammad Ashraf, who expired on 17-8-1994, had also find Cr. Appeal No. 117/1993. Consequent upon his death, Cr. Appeal No. 116/1993, Cr. Appeal No. 117/1993 and Cr. Revision No. 46/1993 to the extent of appellant Ashraf, stood abated vide order dated 13-11-1997, passed in Cr. Appeal No. 116/1993.
2. Above appeals and revision were find under Section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 against judgment dated 27th February, 1993 of the then learned Judge Special Court No. III, Karachi, in Special Case No. 50/1992, whereby said Ashraf Ali, Syed Irfan and Kamal Jilani were convicted under Section 302/34, PPC and sentenced to suffer life imprisonment as Tazir and also to pay fine of Rs. 10,000/- each or in default thereof to undergo R.I, for two years.
They were also convicted under Section 307 read with Sections 324 and Section 337 sub-section 2(iii) PPC and sentenced to suffer R.I. As Tazir for seven years. Above sentences were to run concurrently. Alongwith above named appellants one Farrukh Sheikh was also tried for said offences, but was acquitted by the same judgment.
3. The incident took place on 7-5-1992 at 12.30 noon at Leth Machine Shop of complainant Muhammad Islam, situated at Raxerlane Bridge, Manghopir Road, about for furlongs away from P.S. Pak Colony. Statement of said Muhammad Islam on said date, at about 15.30 p.m. Was recorded by ASI Sadiq Ali at Abbasi Shaheed Hospital and the same was incorporated in 154, Cr.P.C. Book and on its basis the FIR viz: Crime No. 77/1992 (Ex.20) was registered under Section 302/324, PPC.
4. The motive of crime, as set up in 154, Cr.P.C, statement was old enmity between the parties. It is alleged that sometime back said Ashraf's brother namely, Shahbaz was murdered and in that case deceased Tahir and his brother were nominated as accused, but they were acquitted in February, 1992. In the year 1992, said Ashraf Ali and one Muhammad Saleem allegedly had set the' complainant's house on fire and a case was registered which was pending before the Special Courts (Suppression of Terrorist Activities) Karachi, against above named persons.
5. The case of the prosecution, in brief, is that on the said date and time the complainant was standing at his shop and his younger brother Muhammad Tahir, aged about 22/23 years, the deceased of this case, and P.W. Muhammad Rafiq were working inside the shop. Two other persons namely, Nasir and Akhtar Gul, were-also working there. All of a sudden for persons on two motor cycles came there. They were armed with Klashinkovs. One of them was Ashraf Ali, son of Asghar Ali Langra, and the complainant could recognize remaining three persons by their faces. One of them remained standing outside, while Ashraf Ali and his two companies find upon Muhammad Tahir, and Muhammad Rafiq, who were critically injured. Muhammad Tahir succumbed to his injuries.
Besides above, the incident was witnessed by P.W. Muhammad Aslam son of Nawaz Khan and by many others.
6. The investigation of this case was conducted by Inspector M. Saleh Qadri and Inspector Safdar Sultan. Inspector Saleh Qadri visited the scene of offence in presence of mashirs Mumtaz Ahmad and Khalid Ahmed and secured blood-stained earth, 12 big and 2 small empties, and for lead.
Besides above, he also secured three other empties. He recorded statements of P.Ws. Aslam Parvez, Muhammad Aslam, ASI, Sadiq Ali, Muhammad Rafiq, Mushtaq Ahmed, Khalid Ahmed, Muhammad Nasir and Akhtar Gul. He sent the blood-stained earth and empties to the expert.
7. On 17-5-1992 the investigation was transferred to Sarwar Sultan. The appellants were arrested on 16-5-1992 by Inspector Shoaib Khan within the jurisdiction of P.S. Gul Bahar, Karachi. He recorded statement of injured Rafiq in Hospital on 25-5-1992. On 26-5-1992 during investigation, it was revealed that the arms and ammunition used in the commission of these offences belonged to Ashraf, Kamal Jilani and Syed Irfan and were lying dumped in Korangi Sector 50-A. It is alleged that above named persons led the police and mashirs to Section 50-A, Ghous Pak Road, Korangi and produced arms and ammunition, which were lying buried under the ground. Ashraf produced one Kalashnikov and 14 round in a magazine, appellant Irfan produced one stengun loaded with six rounds, and appellant Kamal Jilani produced one pistol with five bullets. On 27-5-1992, the appellants were produced before a Magistrate for identification test. Arms and ammunition were sent to Ballistic Expert for examination and report. On 29-5- 1992. The charge-sheet was submitted before the concerned Court.
8. Necessary charge on 10-6-1992 under Sections 302/34 and 307/34, PPC was framed against the appellants.
9. At trial, the prosecution examined (1) Muhammad Islam, Muhammad Nasir, Muhammad Usman Shahani, Saleh Qadri, Akhtar Gul, Mushtaq Ahmed, Muhammad Hanif, Sadiq Ali, Dr. Moula Bux, Muhammad Aslam, Muhammad Rafiq, Shoaib Khan, Dr. Mirza Muhammad Aslam and Safdar Sultan.
10. The appellants in their statements recorded under Section 342 Cr.P.C, have denied the prosecution's allegations and claimed to be innocent. Muhammad Ashraf stated that he was falsely involved in this case due to enmity with the complainant party. Acquitted accused. Farrukh Shaikh also maintained that he was involved due to enmity with the complainant party. Appellant Syed Irfan also denied all the prosecution's allegations. According to him, he was taken away by Raees Mulla and Zafar Iqbal of MQM Altaf Group Landhi Sector on 11.5.1992 and on the following day was handed over to the police of P.S. Gul Bahar, where alter on Ashraf and Kamal Jilani were brought and all were involved in this case. He denied recovery of arms and ammunition at his pointing out. About Ballistic Report, he stated that it was managed by the Investigating Officer. He maintained that he belonged to MQM Haqiqi Group and was falsely involved in this case. Appellant Kamal Jillani stated that he was arrested by police from his shop at Tin Hatti on 4-5-1992 and was initially involved in a false case under Section 399/402, PPC and later on in this case at behest of the complainant party.
11. Muhammad Ashraf, Syed Irfan and Farrukh Shaikh examined themselves on oath under Section 349(2) Cr.P.C. Appellant Kamal Jilani, in his statement recorded under Section 342, Cr.P.C., desired to examine himself on oath, but later on decided otherwise.
12. Dr. Mirza Muhammad Aslam conducted autopsy on the dead-body of deceased Muhammad Tahir and found the following injuries:
(1) Fire-arm e/w about 0.5 cm in diameter on the left side of upper chest at mid clavicle line margin inverted, sign of blackening and synging not marked. Exit wound 1.0 cm in diameter on the posterior lateral aspect of left chest at post axillary line margin/averted.
(2) Fire-arm e/w about 0.5 CM in diameter on the right side of the middle abdomen at the level of umbilicus, margin inverted. Exit wound about 1 CM in diameter on the back of left upper hypochondrium margin averted.
(3) Fire-arm e/w about 0.5 in diameter on the posterior lateral aspect of left lumber region of abdomen, margin inverted Exit wound about 1 CM x 0.75 CM on the back of left lumber region.
(4) L/W about 3 CM x 0.5 CM on the left partial region.
On internal examination:
(1) Head. Inside the cranial cavity no internal injury seen. The brain matter and the meningles found pale.
(2) Thorax About 1000 cc of blood-stained inside the thoracic cavity.
The upper lobe of the left lung was punctured through and through. The right lung and heart found pale. No surface injury seen.
(3) Abdomen. The abdominal cavity was full of blood. The saleem was punctured. The dcidney, small intestine, colon and mesentery are also punctured. The bladder was half filled with urine.
Semi digested food was present in the stomach."
13. According to Doctor, the cause of death was cardio respiratory failure due to actuate haemorrhage shock as a result of above injuries caused by fire-arm projectile. He deposed that rigour mortis was in developing stage and duration between death and post-mortem was 4/6 hours. Neither the factum of death is disputed nor medical evidence in any manner was challenged.
14. Dr. Moula Bux examined injured Rafiq and found lacerated wound of about 4" right lower leg joint just above ankle joint. It was caused by fire-arm. No blackening was seen and was fresh at the time of examination. The injured was examined at Abbasi Shaheed Hospital on 7-5-1992 at about 17.45 p.m.
15. Mainly the case of prosecution rests upon:
(i) Motive.
(ii) Ocular Evidence.
(iii) Recovery.
16. Mr. A.Q. Halepota learned counsel for the appellants contended that testimony of the eye- witnesses was not worth relying and it could not form basis of conviction of the appellants. He also argued that identification parade was not properly conducted by Magistrate Muhammad Usman Shahani and it was belated in nature. According to him, recovery of crime weapons was also not proved.
17. As against above, Mr. Azizullah K. Sheikh learned counsel for the complainant contended that there being no mitigating circumstances, the appellants should be awarded death sentence.
18. Admittedly, there were strained relations between the parties. It is evident from record that in the murder case of the brother of said Ashraf, deceased Tahir and his brother were nominated as accused persons, but were acquitted by the Court. Again it is alleged that, in the year 1992, said Ashraf and one Muhammad Saleem had set the complainant's house on fire and a case was registered, which is still said to be pending before Special Court, STA, Karachi, against the above persons. All the appellants maintained that they belong to "MQM Haqiqi Group" and complainant party has the blessing of "Altaf Group". In view of long standing enmity, the motive is proved-
19. Ocular evidence consists of complainant Muhammad Islam, P.W. Muhammad Nasir, Akhtar Gul, Muhammad Aslam and Muhammad Rafiq.
20. Complainant Muhammad Islam stated that at the time of occurrence P.W Akhtar Gul was working beneath a truck, which was parked at a distance of 50' from his shop. He deposed that suddenly he heard fire-arm reports from inside of his shop and saw three persons duly riped with weapons. One of them, was armed with Klashinkov, other one had a "long size weapon similar1 to that of Klashinkov, and the third one was also in possession of a fire-arm. While standing at the entrance door of his workshop, they find inside the shop. Said Ashraf was among those three persons. Fourth one was sitting on a bike, which was parked outside the shop. The witness stated that the person sitting on the bike was Farrukh Shaikh. These persons had come on two bikes. The witness also deposed that after firing, Farrukh and Kamal Jilani rode away on one bike, while Ashraf and Irfan on the other. According to the witness, deceased Tahir, who was alive at that time, told the witness that Ashraf and his companions had attacked them. Both the injured were taken to the Hospital, where the police also reached. Tahir expired on his way to the Hospital. Witness also deposed that empties were secured from inside and outside the shop.
21. He also stated that on 27-5-1992, he appeared before a Magistrate and identified the appellants. In cross-examination, he deposed that he had seen Kamal, Irfan.,, and Farrukh Shaikh first time at the scene of offence and second time before the Magistrate. He specifically denied that he had affiliation with MQM Altaf Group. He maintained that he is a business man and has nothing to do with politic. He showed his ignorance if appellants Irfan, Kamal, and Farrukh belonged to MQM Haqiqi Group.
22. ' The complainant is a natural witness and his presence at the scene of offence and at the time of occurrence stands proved without any shadow of doubt. Although, as a natural witness his testimony, as a rule, does not require corroboration, yet, it has been corroborated materially and substantially on all crucial points involved in this matter. He deposed that incident took place on 7- 5-1992 at noon time. All other eye-witnesses have corroborated this version. He had taken deceased to the hospital and his statement under Section 154, Cr.P.C, was recorded there. Had he not seen the incident, he could not provide its minute details to the police at the hospital. In fact, the trend of the cross-examination shows that his presence at the scene of offence was not seriously challenged. In a casual way a suggestion was given to him that he had not witnessed the incident, which he categorically denied. He also deposed that P.Ws. Akther Gul, Rafiq, Nasir and Aslam were present at the scene of offence and at the time of occurrence and this assertion also stands proved. He mentioned about the crime empties and this fact was proved by testimony of the Investigating Officer. Medical evidence also corroborates his version. He disclosed only the name ef said Ashraf in his 154, Cr.P.C, statement as he was known to him for the last 10 years because of enmity existing between the parties. Had he any motive to falsely implicate the parties.
Had he any motive to falsely implicate to any other person, he would have nominated him in his 154, Cr.p.C. Statement. It is an admitted fact that appellants Irfan, Kamal Jilani and acquitted accused Farrukh Sheikh were not known to him, nor he had' any motive to falsely implicate them.
They were perfect strangers for him and this excluded the possibility of their false involvement in this crime. His 154, Cr.P.C, statement was recorded within a reasonable time and this negated any chance of deliberation.
23. P.W. Muhammad Nasir deposed on the lines the complainant recorded his statement and maintained that he had also witnessed the incident. According to him, when the appellants started firing he was inside the shop and took shelter behind machines. He held appellants Kamal Jilani, Irfan, and said Ashraf responsible for killing Tahir and causing injuries to Rafiq. In cross- examination, he deposed that he was working with the complainant for several years. He denied the suggestion that he had deposed falsely as the complainant was his employer. According to him, the police visited the scene of offence two times on the day of incident, first at 12.30 p.m. And second at 5.00 p.m.
24. P.W. Muhammad Nasir is also a natural witness and had seen the incident. He too correctly deposed about the incident. Medical evidence corroborates his testimony. He even heard the dialogue exchange between the deceased and said Ashraf just before the occurrence. He only implicated Ashraf, Kamal Jilani and Syed Irfan, as he had seen them entering into the shop. His testimony was challenged mainly on the ground that, being an employee of the complainant, he had obliged the latter. It is significant to note that he had no previous enmity with the appellants nor such suggestion was given to him in cross- examination. We have thoroughly examined his testimony and are of the view that he furnished the true account of the incident. He also correctly identified the appellants in the identification parade held before the Magistrate. At the time of occurrence, he had seen the appellants from a close range. Mainly because he was an employee of the complainant is not enough to discard his testimony, particularly when he had no reason to falsely .Implicate the appellants in the heinous offence like murder.
25. P.W. Akhtar Gul is also an eye-witness of the incident. According to him, he was present at the shop. Like other eye-witnesses, he deposed that Rafiq, Tahir and Nasir, at the time of occurrence, were present inside the shop. He deposed that three persons had find and one was waiting on a motor bike. According to him, the assailants were Ashraf, Irfan and Kamal Jilani, armed with Kalashnikov, a long barrel weapon and a pistol respectively. He deposed that acquitted accused Farrukh was op motor bike and was armed with a pistol. He stated that on 27-5-1992, he appeared before a Magistrate and had identified the appellants. In cross-examination, he admitted that when he heard fire-arm reports, he was working beneath a truck. In reply to a question by Court, he stated that he was not related to the complainant. Also, he stated that never he was a party to a litigation in which Ashraf or his brother was involved. In reply to another question, he stated that at the time of identification parade, the witnesses were called turn by turn by the Magistrate.
26. P.W. Akhtar Gul is also a natural witness and he too has correctly narrated about the incident.
He had no malice against the appellants and have fully implicated them in the commission of this crime. In cross-examination, a suggestion was given to him that he heard fire-arm reports, when he was working under the Truck and that he had seen the appellants/assailants when they were running. Impliedly by this suggestion his presence at the scene of offence at the time of occurrence has been admitted. Neither he was related to the complainant party nor had any concern with the appellants. He had also correctly identified the appellants before the Magistrate. We do not find any reason to doubt his credibility. He was subjected to lengthy cross-examination, but without any success. We are of the view that his testimony is also free from doubt and inspires confidence.
27. P.W. Muhammad Aslam deposed that on the day of incident at the time of occurrence he was standing at the shop of Manzoor Electrician, which is adjacent to the shop of complainant. He saw three persons firing and fourth one was sitting on a duly started bike. According to him, said Ashraf, Irfan and Farrukh went inside the shop, while Kamal Jilani stood outside of it. In cross-examination, he admitted that he is related to .Complainant and the deceased. He admitted that he is a maternal uncle of complainant, but not real. He stated that he had no enmity with any of the appellants.
28. Muhammad Aslam is a chance witness. He had no special reason to be present at the scene of offence and at the time of occurrence. According to him, he is an electrician and does the electric work at the houses of his customers. Admittedly, he is related to the complainant party. He does not carry his business at any particular shop. His testimony is in conflict with the other eye- witnesses, when he stated that acquitted accused Furrukh Sheikh was the person who went inside the shop alongwith other appellants, while as narrated by the other witnesses, said Furrukh Sheikh was sitting on a bike parked outside the shop. We are of the view that his testimony does not inspire confidence. We ignore it.
29. P.W. Rafiq had sustained fire-arm injuries at the time of incident. He stated that when he heard fire-arm reports he sat down and could not see the assailants. In reply to a Court question, he stated that when he heard fire-arm reports he hided himself behind machines, rescued himself, and in the process was injured. He did not name the appellants as assailants.
30. P.W. Muhammad Rafiq is the injured eye-witness he has not implicated the appellants and stopped short by stating that, after sustaining bullet injury on his right leg, he took shelter behind machine, got frightened and did not known what happened thereafter. He confirmed presence of P.Ws. Nasir and Akhtar Gul. He has not involved the appellants.
31. The. Occurrence took place in a-broad day-light and assailants must have stayed at the scene of offence at least for five minutes. It was sufficient time to recognize the persons who participated in commission of said crime, specially when their faces were not muffled. The event of this nature leaves behind an indelible impression upon the mind, which continues for sufficient time and some times for ever. The appellants were put to identification parade within 20 days of the incident. This is not a long period as to make it impossible for the eye-witnesses to identify a person or persons, who brutally committed a murder within their sight.
32. Accordingly, we hold that the complainant, P.Ws. Nasir and Akhtar Gul had witnessed the incident and that these were Ashraf, Kamal Jilani and Syed Irian, who sharing common intention, had killed deceased Tahir and caused firearm injuries to P.W. Rafiq.
33. Next piece of evidence against the appellants is identification test, which was conducted by Muhammad Usman Shahani, the then ACM-I West, Karachi. Learned Magistrate deposed that there were for accused and for Witnesses and he had arranged 20 dummies. The test was held through eyewitnesses namely, complainant Muhammad Islam, P.Ws. Muhammad Aslam, Muhammad Nasir and Akhtar Gul. The witnesses correctly picked up the appellants as culprits of this case.
34 Mr. Abdul Qadir Halepota argued that the test was held after about 20 da\s ol the incident, and the witnesses had only momentary glimpse, as such, after so many days, they could not recollect and identify the culprits. From the testimony of the eye-witnesses, it is evident that they had clearly seen the culprits and had no difficulty to identify them. It is not a case of momentary glimpse, It appears that more than 5 minutes time was consumed by the culprits in carrying out their operation. They had come on motorcycles, and parked them. Thereafter, three of them entered into the shop and find upon the deceased and P.W. Rafiq. They continued firing till they were sure that they had done their job. Thereafter, they fled away on the bikes. For all this, at least five minutes must have been consumed.
35. Mr. Halepota also argued that learned Magistrate had not taken necessary precautions before holding the test. He however, has not pointed any particular lapse, on part of the Magistrate. It appears that no irregularity was committed by the Magistrate in holding the test. There is no personal allegation against the Magistrate, nor he had any reason to record incorrect finding out about the test. During the course of arguments, leaned counsel only stated that the appellants were shown to the witnesses by the police before the test. This is a general allegation and there is nothing on record to substantiate it. Accordingly, we hold that identification test was properly held and the witnesses had picked up the appellants as the culprits of this case.
36. As regards recovery of incriminating weapons we are not satisfied with .It. Normally recovery is affected within 2/3 days of the arrest, It is very hard to believe that, after 10 days of their arrest, the appellants would have led the police for recovery of those weapons. If so would have happened then they would have also confessed their guilt. Admittedly at no stage they hold themselves responsible for said crime and proclaimed themselves as innocent. Accordingly, we hold that recovery is not proved.
37. As regards enhancement of sentences, it is noted that said Ashraf was main accused. He had a motive to kill the deceased and was a notorious terrorist. Appellants Syed Irfan and Kamal Jilani personally had no enmity with the complainant party. What they had done, it was at the behest of said Ashraf. All find simultaneously, therefore, it could not be said with certainty that whose shot proved fatal. Under the circumstances, there is no justification for enhancement of sentences of appellants Syed Irfan and Kamal Jilani and the sentences awarded to them would meet the ending of justice. They would entitled to the benefit of Section 382-B, Cr.P.C.
38. In consequence, the Cr. Appeals Nos. 116/93 and 118 of 1993 and Criminal Revision No. 46 of 1993 are dismissed.