' ABDUL HAMEED DOGAR, J.---By a common judgment we propose to dispose of Special Anti- Terrorism Appeal No,21 of 1999 and Confirmation Case No,8 of 1999 as they arise out of one and same judgment.
2. Appellants Muhammad Tufail, Muhammad Razzak, Muhammad Imran and Syed Junaid alias K-2 have assailed judgment dated 19-5-1999 of Mr. Hussain Bakhsh Khoso, Judge, Anti-Terrorism Court No,IV, Karachi, whereby they convicted under sections 302, 324, 148 and 149, P.P.C. And section 7 of Anti-Terrorism Ordinance, 1998 and sentenced to suffer R.I. For life. They were also sentenced to pay fine of Rs,50,000 as compensation to the legal heirs of deceased under section 544-A, Cr.P.C. They were further convicted and sentenced to death. Under section 7 of Anti-Terrorism Ordinance, 1998.
They were also convicted under section 324 read with section 149, P.P.C. And were sentenced to suffer R.I. For 10 years and fine of Rs,10,000 each as compensation to injured and in default whereof to suffer R.I. For 6 months more. The case of juvenile offender Taha was separated and was directed to be tried under Sindh Children Act.
3 At the very outset we would mention here that learned Judge has wrongly quoted section 7 of the Anti-Terrorism Ordinance, 1998, in the judgment. In fact, Ordinance, 1998 does not exist but on 20- 8-1997 Act XXVII of 1997 was passed, which is being called as the Anti-Terrorism Act, 1997.
4. The brief facts of the prosecution case are that on 2-7-1998 complainant S.I. Noor Nawab Khattak of Sachal Rangers, 73 Wing, along-with his subordinate staff, namely, Havaldar Mumtaz Ali, Havaldar Noor Muhammad, Naik Abid Hussain, Sepoy Muhammad Mithal, Sepoy Dildar Hussain and others were on patrolling duty in Liaquatabad area in Government vehicle and when at about 12:20 p.m. They reached in Blocks Nos. 3 and 4 opposite Hashmia Imambargah near Poly Clinic, the terrorists of M.Q.M. Unit No,64, namely, Nadir Shah alongwith his companions Miru, Obaid alias K-2, Junaid alias K-2, Asif, Shakeel, Irshad, Rafiq alias Bullet, Sajid and Irfan emerged raising slogans of "Police and Rangers Murdabad" and shouted that they will not spare them and started firing at them from their automatic weapons in order to kill them and prevent them from discharging their duties as public servants. Due to the firing Havaldar Mumtaz Ali, who had come down from the vehicle and Sepoy Dildar Hussain, who was standing on the vehicle got seriously injured. Rangers party retaliated in defence, but the abovementioned accused succeeded in running away. Injured were removed to Abbasi Shaheed Hospital where Sepoy Dildar Hussain succumbed to injuries. The complainant thereafter went to police station and lodged F.I.R.
5. During investigation police arrested the appellants and Taha, a juvenile offender and were put to identification parade where they were picked up by the P.Ws.
6. On completion of investigation they were sent up to face trial before the Military Court where they were charged and tried by the said Court. In the charge they did not plead guilty and claimed trial.
7. Before the Trial Court the prosecution examined Dr. Moula Bux, who produced the medical certificate of injured P.W. Havaldar Mumtaz Ali, Dildar Hussain and the post-mortem report of deceased Dildar Hussain, Sayyeda Perveen Shah, Judicial Magistrate, who produced the mashirnama of identification parade of appellants Muhammad Imran, Muhammad Fasial and Muhammad Razzak and juvenile offender Taha, complainant S.I. Noor Nawab, who produced the F.I.R. Roznamcha entry, letter, inquest report, mashirnama of dead body, mashirnama of arrest of accused, formal mashirnama of arrest of appellants after holding the identification parade, mashirnama of place of vardat, report under section 168, Cr.P.C. And report of the chemical examiner, Havaldar injured P.W. Mumtaz Ali, Sepoy Muhammad Mithal, Sepoy driver Iftikhar Ahmed, S.I. Jawaid Hussain, P.C. Syed Dildar Hussain Shah, S.I. Muhammad Yakoob, Havaldar Noor Muhamad, D.S.P. Qamar Ahmed, Sepoy driver, Ansar Ali and Inspector Muhammad Nawaz and then the prosecution closed its side.
8. Statement of the appellants were recorded by the Military Court. In view of Mehram Ali's case, reported in PLD 1986 SC 1445, the case was transferred to the above mentioned Anti-Terrorism Court, where the learned Judge recorded the statements of appellants under section 342, Cr.P.C.
Afresh. The appellants did not lead any evidence in defence, but stated that their statements on oath were recorded before the Trial Court, as such they will not got their further statements recorded on oath under section 340(2), Cr.P.C.
9. The learned Trial Court framed the following points for determination:
(1) Whether Sepoy Dildar Hussain was killed?
(2) Whether on 2-7-1998 in Blocks 3 and 4 of Liaqatabad at about 12:20 noon accused Muhammad Fasial; Muhammad Razzaq, Muhammad Imran, Syed Junaid alias K-2 alongwith juvenile offender Taha and the absconding accused being armed with automatic weapons were members of unlawful assembly, with common object of an unlawful assembly all the accused intentionally fired at partrolling party consisting of Sub-Inspector Noor Nawab, Havaldar Mumtaz Ali, Havaldar Noor Muhammad, Naik Abid Hussain, Sepoy Mithal and Sepoy Dildar Hussain of Sachal Rangers 73 Wing, to prevent them from discharging their lawful duty resulting in the death of Sepoy Dildar Hussain, which created a sense of fear and insecurity in the people, as alleged by the prosecution?
(3) Whether on the above date and time the accused named above in prosecution of their common object intentionally committed Qatl-eAmd of Sepoy Dildar Hussain as alleged by the prosecution?
(4) Whether on the above date and time shown in point No,1 the above-named accused in prosecution of their common object fired at Havaldar Mumtaz Ali with intention to kill him with the result he sustained bullet injury, as alleged by the prosecution?
10. On the assessm ent of evidence the appellants were found guilty of the charges and were convicted and sentenced as above.
11. We have heard Mr. Sarfaraz Khan Tanoli and Mr. Muhmood A. Qureshi, the learned counsel appearing on behalf of the appellants and Mr. Syed Jalil Ahmed Hashmi, the learned Assistant Advocste-General, appearing on behalf of the State at length and have gone through the record and proceedings of the learned Trial Court in minute particulars
12. The learned counsel for the appellants contended that the names of appellants Muhammad Faisal, Muhammad Razzal and Muhammad Imran have not been mentioned in the F.I.R. And have been challenged without any justification. According to them the perusal of F.I.R. Reveals that the complainant was so specified that he while nominating the culprits, who participated in the commission of offence, have mentioned even their nick names. They attacked upon the factum of incident and argued that the same is shrouded in mystery for the following reasons:--
(i) As per F.I.R. So many fires were made by the culprits at the complainant party, viz. Rangers, who in retaliation had fired about 100 rounds from their respective weapons, but only 5 empties were found available at the scene of occurrence.
(ii) The very vehicle, in which the complainant party was said to be patrolling and came across the firing was not at all produced during the entire trial so much so even its number was not mentioned in the F.I.R.
(iii) In F.I.R. As well in 161, Cr.P.C. Statement reference is made about one vehicle only at the time of incident, whereas complainant S.I. Noor Nawab, P.W.s. Havaldar Mumtaz Ali and Sepoy Iftikhar Ahmed in their respective statements before the Trial Court have stated that there was another vehicle in which personnel of Rangers were patrolling and was at the distance of few paces away from their vehicle, which seriously casts doubt on the factum of incident;
(iv) According to P.W. Spepoy Iftikhar Ahmed, the driver, about 5/6 bullets had hit the grill of the vehicle and that blood was also available inside the same, but neither blood was said to have been collected from inside the vehicle nor that vehicle was produced in the evidence to establish that it actually came under attack and sustained 5/6 bullet marks.
(v) Not even a single person from the locality, a thickly populated area, was examined to strengthen the factum of incident; and
(vi) According to F.I.R. And statement of complainant S.I. Noor Nawab, he evacuated both injured persons to Abbasi Shaheed ' Hospital, whereas per evidence of Medical Officer Dr. Moula Bux and medico-legal certificate of Havaldar Mumtaz Ali and Sepoy Dildar Hussain, it was P.C. Liaquat Ali, who brought them to Abbasi Shaheed Hospital.
13. Mr. Tanoli further argued that the complainant in his examination in-chief before the Military Court has stated that the appellants present in Court were known by their faces and not by their names prior tope incident. They were, therefore, referred to as other persons (URDU TEXT). He was confronted with the F.I.R. And in answer to a question, it is recorded as "found not so recorded".
According to the learned counsel that in these circumstances holding of the identification test and subsequent identification in Court have got no value at all.
14. P.W. Havaldar Mumtaz Ali has deposed that he recognized the appellants/accused in the street while running after they came out of the building. He did not recognize them before the firing incident as they were firing from hidden places.
15. P.W. Sepoy Muhammad Mithal has categorically stated at trial that he did not see the appellants as well as accused Taha while they were firing, but recognized them while they were running with the weapons. He further stated that he was sure that except appellant Muhammad Imran he had recognized others while running.
16. P.W. Sayyeda Perveen Shah, Judicial Magistrate, who arranged the identification parade, deposed that expect Naik Abid Hussain, none, identified appellant Muhammad Imran in the identification test.
17. The learned counsel lastly contended that the ocular version furnished by the eye-witnesses is contradicted by medical evidence. According to ocular version the appellants had fired at the Rangers party from front side, whereas medical evidence shows that deceased Sepoy Dildar Hussain and Havaldar Mumtaz Ali had received one injury each from their back sides. None of the witnesses has deposed as to who caused that particular injury to the deceased and injured as such it leaves a room for consideration and its benefit goes in favour of the appellants. In cupport of their contentions the learned counsel for the appellants relied upon the following case laws:
(i) PLD 1960 (WP) Karachi 674,
(ii) PLD 1963 (WP) Karachi 805 and (ii) 1995 SCM R 127.
18. On the other side, the learned A.A.-G. Vehermently controverted the above contentions of the learned counsel for the appellants and argued that the prosecution has proved the case against the appellants beyond any shadow of doubt, as such the conviction and sentence awarded by the Trial Court be maintained. On our query he failed to show any material as to on what basis the appellants Muhammad Fasial, Muhammad Razzak and Muhammad Imran were implicated in the case when they were not nominated in the F.I.R. By the complainant. He further argued that the appellants were rightly identified at the trial by P.W.s. Which is the reliable piece of evidence. In support of his contentions he relied upon the case-law reported in 1982 SCM R 129.
19. Before appraisal of the evidence, we would like to discuss the evidence recorded at trial in minute particulars and the contentions raised at Bar.
20. The F.I.R., on the face of it, mentions the names of Nadir Shah, Incharge, Unit No,164 of M.Q.M. And his companions, namely, Mini, Obaid, K-2, Junaid alias K-2, Asif, Shakeel, Arshad, Muhammad Rafiq alias Bullet, Sajid and Irfan only. It does not describe that there were more unidentified culprits, except the above-mentioned accused; as such it had laft no room for the others to be substituted later on. It would, therefore, be pertinent to reproduce here the relevant portion of the F.I.R.: "On 2-7-1998 complainant S.I. Noor Nawab Khattak of Sachal Rangers, 73 Wings, alongwith his subordinate staff, namely, Havaldar Mumtaz Ali, Havaldar Noor Muhammad, Naik Abid Hussain, Sepoy Mithal, Sepoy Dildar Hussain and others was on partrolling duty in Liaquatabad area in Government vehicle and at about 12:20 p.m. When they reached in Blocks Nos.3 and 4 opposite Hashmia Imambargah near Poly Clinic, the terrorists of M.Q.M. Unit No,64, namely, Nadir Shah alongwith his companions Mint Obaid alias K-2, Junaid alias K-2, Asif, Shakeel, Irshad, Rafiq alias Bullet, Sajid and Wan emerged raising slogans of "police and Rangers murdabad" and shouted that they will not spare them and started firing at them from their automatic weapons in order to kill them and prevent them from discharging their duties as public servants. Due to the firing Havaldar Mumtaqz Ali, who had come down from the venicle and Sepoy Dildar Hussain, who was sitting on the vehicle got seriously injured. Rangers party also retaliated in defence, but the abovementioned accused succeeded in running away."
21. S.I. Noor Nawab, the complainant, at trial has deposed something contrary to the above version and improved and exaggerated his statement by saying that at the time of incident there were 15 to 20 boys including Nadir Shah, Incharge of 164 Unit of M.Q.M. Mint, Obaid alias K-2 Junaid alias K- 2, Asif, Shakeel, Rafiq alias Bullet, Imran, Taha, Razzak and Fasial. He further went on saying that they raised slogns of "Rangers. Fauji and police murdabad" and that "aaj inko naheen chorain gay", Nadir Shah had Taha had klashnikov, whereas others had pistols, revolvers and .7mm rifle.
Havaldar Mumtaz Ali was hit by the first burst whereas Sepoy Dildar Hussain was injured by the second burst. He was confronted with the F.I.R. That he has not said anything in F.I.R. With regard to other persons (URDU TEXT) which he frankly admitted.
22. P.W. Havaldar Mumtaz Ali in his statement at trial has said that there were about 18 to 19 boys raising slogans at the time of incident from some hidden places. They abused police, Rangers and army and started firing on them as a result he received a bullet injury on his shoulder and thereafter saw people running with klashnikov, rifles of .7mm and T.T. Pistols. He identified Nadir Shah only, whose photopraph was shown to him. He further admitted that he has stated in his statement under section 161, Cr.P.C. That mob did not abuse army. He has also deposed that he did not recognize the accused before the incident of firing and they were firing from some places. He has also stated that firing was being made by the accused from a distance of about 200 yards from the direction of Block No,3 and not from the direction of Block No,4.
23. P.W. Sepoy Muhammad Mithal has deposed that mob consisting of 18 to 19 persons emerged from the street of Liaquatabad No,3 raising slogans against police, Rangers and army saying that they will not be spared and started firing burst, in which Havaldar Mumtaz Ali and Sepoy Dildar Hussain received injuries. He was sitting in the vehicle and was ordered to dismount alongwith others and accordingly they took position and fired in air. They knew some of them by names and recognized them from their faces to be Nadir Shah, Miru, Obaid alias K-2, Junaid alias K-2, Rafiq Bullet, Arshad, Asif and Imran. He has further gone to the extent by saying that he did not recognize accused Imran judicial Magistrate. He did not see appellants and accused Taha while they were firing, but recognized them while they were running with the weapons.
24. P.W. Sepoy driver Iftikhar Ahmed stated on 2-7-1998 at about 11-30 hours he had left alongwith above-mentioned P.Ws. And deceased Sepoy Dildar Hussain for distributing food at different pickets and after delivering food at 4 pickets when reached at Poly Clinic located near Liaquatabad No,3, and had hardly turned his vehicle to Liaquatabad No,4, he heard slogans of about 15 to 16 persons shouting "police Rangers murdabad", Nadir Shah was leading the mob, which included Junaid alias K-2 Obaid alias K-2, Rafiq, Asif, Sajid, Imran and some others. On the questions to Court, he reported, that when he returned the vehicle, he saw few of them through side mirror. He had seen the persons roaming around with weapons for last 1-1/2 month, but had never challenged them his vehicle was Toyota Hilux B-A No,917171. It received 5 to 6 bullet shots on its grill. Admittedly neither any identification test of the appellants was arranged through this witness nor any explanation was furnished for the same, as such subsequent identification in Court losses its evidentiary value.
25. P.W. Driver Ansar Ali has simply deposed that he was the driver of second vehicle B-A No,197140 and there were other 5 personnel inside and were following the vehicle of Sepoy driver Iftikhar which was required to distrubute food at different places. At the last picket Iftikhar had hardly turned his vehicle towards Liaquatabad No,4, he heard slogans coming from the direction of Liaquatabad No,3. He remained in his vehicle and heard fires but did not know as to from which, directions those fires came. He saw Havaldar Mumtaz Ali and Sepoy Dildar Husain had sustained injuries and were evacuated to Abbasi Shaheed Hospital. Neither any identification test of the appellants was arranged through this witness nor did he identify any one in the Court.
26. From the above discussion, it transpires that the firing was made by a mob from hidden places in the streets and building from the direction of Liaquabad No,3. P.Ws. Injured Mumtaz Ali, Sepoy Muhammad Mithal, driver Iftikhar and driver Ansar Ali have not furnished any explanation as to whom they identified, further non-holding of identification parade of appellants Muhammad Faisal, Muhammad Razzak and Muhammad Imran through P.Ws. Drivers Iftikhar and Ansar Ali makes their testimony of highly doubtful nature. Except the complainant, none of them has nominated them either in section 161, Cr.P.C. Statements or the statements recorded at trial, as such their case is distinguishable from the case of appellant Junaid alias K-2, who has been nominated in the case.
On the factum of incident, the contentions raised by the learned counsel for the appellants have sufficient force. The prosecution has failed to produce at trial the very, vehicle which came across firing. The second vehicle being driven by P.W. Ansar Ali too was not produced at trial at all. Though an exchange of firing took place for about 10 to 15 minutes, anyone from the side of the appellants did not sustain any injury nor any corresponding fire-arm marks were found on the walls of the surrounding buildings. Recovery of 5 empties of klashnikov, 2 empties of T.T. Pistols and 1 empty of 7 mm rifle only from the side of the appellant/accused whereas recovery of not even a single empty from the side of complainant party though it has come on record that more than 100 fires were made by them and so many fires were made by the appellants party, further reflects serious doubt on the factum of incident. So much so that no evidence with regard to the collection of blood from the scene of offence or from inside the vehicle has come on record.
27. In the circumstances of the case, as stated above, we are of the considered opinion that the complainant has exaggerated and improved his version by impleading appellants Muhammad Faisal, Muhammad Razzak and Muhammad Imran at trial, about whom he did not mention anything in the F.I.R, Such exaggerations and improvements, go to the roof of the case and render the case of prosecution against the appellants to be of doubtful nature.
28. A Division Bench of this Court in the case of Wazir and others v. The State, reported in PLD 1960 (W.P.) Karachi 674, acquitted the appellants while observing in paragraph 15 that F.I.R. Is a valuable and important document and if the case set up at the very earliest moment, that is, at the time of giving the first information, is completely contradicted by the witnesses appearing at the trial, a grave doubt is created in the mind of Court which needs to be cleared up and explained satisfactorily, where no satisfactory explanation has come on the record regarding the omission of the names of two alleged appellants from the first information report, it was held that the only inference that could be drawn was that they were not identified at the spot and, therefore, the case against them became doubtful. In another referred case of Hadi Bux v. The State, reported in PLD 1963 (W.P.) Karachi 805, another Division Bench of this Court rejected the statements of witnesses subsequently made at trial to improve his version to strengthen the prosecution case. In another referred case of Mahmood Ahmed and 3 others v. The State and another, reported in 1995 SCM R 127, the Hon'ble Supreme Court found fatal two hours delay in lodging the F.I.R. And had observed that in the particular circumstances of the case it had assumed great significance as to consultation taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate on picking up of accused in the identification parade it has been held in the same citation that if role played by them is not described by the witnesses, the same has got no evidentiary value. In the case in hand the incident was reported with the delay of one hour and no explanation of any sort has been furnished by the prosecution for the same. The case-law referred by the learned A.A-.G, viz 1982 SCM R 129 has no relevant with case of the abovementioned appellants and is on different facts and circumstances.
29. Accordingly, appeal in respect of appellants Muhammad Faisal, Muhammad Razzak and Muhammad imran is allowed and they are acquitted, Conviction and sentence recorded against them are set aside.
30. So far the case of appellant Junaid alias K-2 is concerned; he was specifically nominated in the F.I.R. And has been implicated by nearly all prosecution witnesses. The only mitigating circumstances to reduce his sentence, which find favour with us, are that deceased Sepoy Dildar Hussain and injured Havaldar Mumtaz Ali had received one injury each which had not specifically been attributed to him.
31. Accordingly, the appeal in respect of appellant Junaid alias K-2 is dismissed. However, while maintaining the conviction under section 302, P.P.C. Read with section 7 of the Act, we reduce the sentence of death to imprisonment for life. He is directed to pay Rs,50,000 as compensation to the legal heirs of the deceased and Rs,10,000 as compensation to injured. In case of .Default of payment, he shall undergo further R.I. For 6 months.
32. Reference for confirmation of death sentence is declined.
' The above are the reasons of our short order dated 8-9-1999. Death Sentence not confirmed.