' Appellants Moinuddin alias Moin and Muhammad Azam alias Nawab have challenged judgment dated 8-7-1999 passed by Mr. Arshad Noor Khan, Judge, Anti-Terrorism Court, Karachi, whereby they were convicted and sentenced; (1) under section 302(a), P.P.C., read with section 7 of Anti- Terrorism Act (hereinafter referred to as the Act) with death. They were also directed to pay an amount of Rs,1,75,000 each as Diyat amount; (2) under section 324, P.P.C., with 10 years R.I. With fine of Rs,10,000 each and in default thereof to suffer further R.I. For one year; (3) under section 452, P.P.C., with 7 years R.I., with fine of Rs,10,000 each and in default thereof to undergo further R.I. For one year; (4) under sections 396, P.P.C., to 398, P.P.C. With 7 years R.I. And fine of Rs,10,000 each and in case of default in payment of fine to suffer further R.I. For one year; (5) under section 13-D of Arms Ordinance, 1965 with 7 years R.I. And fine of Rs, 10,000 each and in case of default in payment of fine to suffer further R.I. For one year.
2. They were, however, extended benefit of section 382-B, Cr.P.C., onwards computation of their sentence.
3. Briefly the case of the prosecution is that on 11-10-1998 at bout 6-30 a.m. Complainant Shaukat Zaman was available alongwith his brother and cousin Khalid Pervez and other family members in his house when his niece had gone to purchase milk from shop as such the main door of their house was open and suddenly there entered three persons duly armed with deadly weapon. The said culprits overpowered them and made them to sit on the cot in the courtyard and one of them confined the ladies and children in another room and the third one started search of the house but lie could not succeed in tracing out any valuable articles as such he came back in the courtyard and asked the-complainant party to hand over cash and golden ornaments otherwise he will kill them. Complainant's brother Sultan Muhammad told the said culprit that they had no cash or golden ornaments available with them, whereupon he got provoked and fired at his brother, who sustained fire-arm injuries on left side of his chest and fell down and succumbed to injuries. The other culprits also fired two shots at P.W. Khalid Pervez, complainant's cousin, who sustained injuries on his left arm and left shoulder. On fire reports Mohallah people got attracted, whereupon the culprits tried to decamp from there and meanwhile police mobile of Police Station Mominabad also reached and two culprits were apprehended by Mohallah people, namely, Haji Muhammad Amir, Aftab Alamm, Mumtaz Alam and Muhammad Ilyas, whereas the third culprit succeeded in running away. The apprehended culprits disclosed their names as Moinuddin alias Moin son of Feroz Shah and Muhammad Azam alias Nawab son of 'Muhamad Tariq and about their third accomplice they -disclosed his name as Anis. Two T.T. Pistols loaded with magazines and live bullets were recovered from the possession of appellants, about which they failed to produce any valid licence, as such separate cases, including the cases under section 13-A, Arms Ordinance, were lodged against them.
4. On completion of investigation the appellants were sent up to face trial before the abovementioned Court. After the receipt of challan, NBW was issued against the absconding accused Anis and the said warrants were returned unexecuted and it was disclosed that he had shifted to some unknown place and his whereabouts were not known or traceable, as such after recording the statement of Process Server he was declared as absconder and proclamation under sections 87 and 88, Cr.P.C., were issued against him.
5. Following charges against the appellants were framed by the Trial Court to which they pleaded not guilty and claimed trial:--- "That on 11-10-1998 at about 6-30 a.m. You alongwith the absconding accused duly armed with fire-arm weapons entered in the house of the complainant situated near Momin Mosque, Mianwali Colony Sector 4/F, Orangi Town Karachi with intention to commit the dacoity and while committing the dacoity you fired which hit Sultan Muhammad. Khan and Khalid Pervez son of Ahmed Khan and Sultan Muhmmad Khan succumbed to the said injuries and you were apprehended at the spot alongwith the crime weapons as such you have intentionally and deliberately committed an act of dacoity and during the course of such dacoity you committed murder of deceased Sultan Muhammad Khan and caused fire-arm injury to inured Khalid Pervez punishable under ection 452/396/397/398/302/324/ 34, P.P.C., read with section 7 of A.T.A. 1997 and is within cognizance of this Court.
' That at the aforesaid day, time and place you were apprehended red-handed and .30 bore pistol loaded with magazine alongwith alive cartridges were secured from each of you as such you have also committed an offence punishable under section 13-A, Arms Ordinance, 1965 and is within the cognizance of this Court."
6. At the stage of trial, the prosecution examined P.W. Shaukat Zaman son of Yar Muhammad, who produced the copy of his statement under section 154, Cr.P.C., P.W. Aftab Ahmed son of Muhammad Afzal, who produced the mashirnama of arrest and recovery of pistol, P.W.
Muhammad Ilyas son of Rawail who produced inspection memo. Of corpse inquest report and site inspection memo., P.W. Khalid Pervez son of Ahmed Khan, P.W. Allah Bux S.I.P. Who produced 3 copies of F.I.R., P.W. Dr. Shahid Shaikh, who produced the certificate and autopsy report of deceased, P.W. Malik Muhammad Nawaz, and Inspector who produced the various documents and then the prosecution closed its side.
7. Appellant Moinuddin in his statement under section 342, Cr.P.C., denied the case of the prosecution and claimed to be innocent, whereas appellant Muhammad Azam alias Nawab has admitted that incident but has stated that at the time of incident he was standing outside, whereas the offence was committed by co-appellant Moin and absconding accused Anis. He has, however, admitted his arrest at the spot and with regard to the recovery of T.T. Pistol he has stated that the absconding accused Anis had thrown the same which was foisted on him. He has further admitted that P. Ws. Have deposed against him to some extent correctly. He in his statement under section 340(2), Cr.P.C., reiterated the same version as stated by him under section 342, Cr.P.C. He, however, did not examine anyone in defence.
8. The Trial Court framed the following points for determination:--- " (1) Whether on 11-10-1998 at about 6-30 a.m. Sultan Muhammad Khan son of Yar Muhammad sustained fire-arm injury and expired as a result of the present incident?
(2) Whether on 11-10-199.8 at about 6-30 a.m. P.W. Khalid Pervez sustained fire-arm injury?
(3) Whether the present accused alongwith absconding accused entered in the house of the complainant with intention to commit dacoity and during the course of such incident they committed the murder of deceased Sultan Muhammad son of Yar Muhammad and inflicted fire- arm injuries to P.W. Khalid Pervez?
(4) Whether the accused are responsible for committing present offence? If so, to what extent?
(5) Whether unlicensed T.T. Pistols were secured from the possession of accused separately at the time of their arrest?
(6) What should the order be?"
9. On the assessm ent of evidence, appellants were found guilty and were convicted and sentenced as stated above. Since the appellants were awarded capital punishment as such under law they had to engage their counsel to defend themselves in this case. Accordingly, a notice was sent to them inside jail and they consented that some advocate on State expenses be provided to them.
As such Miss Akhtar Rehana volunteered and she was appointed to defend their case on State expenses.
10. Learned counsel for the appellant contended that the Trial Court has not appreciated the evidence properly while convicting and sentencing the appellants. According to her the material contradictions in the evidence of prosecution witnesses coupled with delay in despatching articles to chemical examiner and ballistic expert have not been considered by the Trial Court while delivering the judgment. She further argued that no empties were recovered from the place of incident, as such the report of ballistic expert has got no value in the eyes of law. She has relied upon cases reported in 1999 MLD 2947 and 1994 SCMR 1345 and contended that in the circumstances of the case a lenient view may be taken and the sentence of the appellants be reduced to imprisonment for life.
11. On the other side, Mr. Jalil Hashmi, A.A.-G. Vehemently controverted the above contention and argued that the prosecution has fully established its case beyond any shadow of doubt and there are no extenuating circumstances available in the case for reducing the sentence.
12. At the very outset, it is pertinent to note that the appellants have not denied to be the culprits of the incident. Their complicity in the commission of the offence and apprehending at the place of vardat by mohalla people as well as by the police officials of Police Station Mominabad stand established. Not only this, but the recovery of T.T. Pistols from them too has not been disputed by them, as such there is no option but to believe the evidence of the prosecution. On the factum of the incident, the prosecution has examined complainant Shoukat Zaman, P.W. Aftab Ahmed, P.W.
Muhammad Ilyas, P.W. Khalid Pervez and A.S.I.P., Allah Bakhsh, who have categorically deposed that on 11-10-1998 at about 6-30 a.m. The appellants alongwith the absconding accused Anis entered inside the house of complainant Shoukat Zaman and at pistol point made the inmates of the house hostage. They demanded cash and jewellery from complainant party and on their refusal, appellant Moinuddin alias Moin fired from his T.T. Pistol at complainant's brother Sultan, who received fatal injuries and resultantly expired. Appellant Muhammad Azam fired two shots of P.W.
Khalid Pervez who received the same and fell down. The absconding accused Anis confined the ladies and children in a room and guarded over them. On fire reports mohalla people, namely, P.Ws. Haji Muhammad Amir, Aftab Alamm, Mumtaz Alam and Muhammad Ilyas and police of Mominabad Police Officials Station gathered at vardat and appellants T.T. Pistols, whereas accused Anis succeeded in decamping. All the above witnesses were cross-examined at length but nothing fruitful came out in favour of the appellants. On the contrary, it appears that the appellants had pre-planned the commission of the offence, which is also proved beyond any shadow of doubt.
Irrespective of the above ocular version, the appellants have failed to shatter the evidence of recovery of T.T., Pistols from them. The ocular evidence is further corroborated by, the medical evidence which coincides with the ocular evidence and there is no reason to disbelieve the same.
The case-law referred by the appellants counsel is on different facts and circumstances to the case in hand and is distinguishable.
12-A. From the evidence on record, it clearly transpires that the appellants while committing the abovementioned offences, not only created the sense of fear and insecurity in the public, but struck terror by causing death of deceased Sultan and inflicting injuries to P.W. Khalid Pervez while committing robbery in the house of the complainant. As such the elements of section 6 of the Act are fully attracted and, thus, the appellants were rightly convicted under section 7(i)(a) of the Act.
13. In view of the above circumstances, we are of the considered view that the prosecution has fully proved the case against the appellants. Consequently, the appeal of appellants Moinuddin alias Moin and Muhammad Azam alias Nawab is dismissed and the conviction and sentence awarded to them by the learned Trial Court is maintained. Confirmation Reference No,30 of 1999 stands accepted.