RASHID AZIZ KHAN, J.---The above 3 cases will be disposed of by this judgment as all of them relate to the same F.I.R. And judgment impugned is also common.
2. In Criminal Petition for Leave to Appeal No,94-K of 1999 complainant Sohail Abbas has challenged acquittal of respondent Kashaf Baig. Similarly, in Criminal Petition for Leave to Appeal No,95-K of 1999, the complainant has challenged acquittal of respondent Muhammad Saleem and has also sought enhancement of sentence from life imprisonment to death of Muhammad Naeem while in Jail Petition No,133 of 2000, Muhammad Naeem has challenged his conviction and sentence.
3. Facts in brief leading to the filing of these petitions are that a case under sections 302/34, P.P.C.
Read with section 7 of Anti-Terrorism Act, 1997 (initially under section 396/34, P.P.C. Read with section 17(4), EHO) was registered with Police Station Jamshaid Quarters, District Karachi East, for the murder of Allah Dad Khan, father of the first informant. In the F.I.R. Nobody was named as the assailants were not known. Muhammad Naeem was apprehended at the spot by a police squad which happened to be present there. Rest of the three accused managed to escape. Later on Muhammad Saleem was arrested on 15-2-1999 and Kashif Baig was arrested on 26-5-1998. Waqib Shah was arrested on 13-2-1997. He was allowed bail. Later he jumped the same, therefore, was declared a proclaimed offender. A Special Court constituted under Anti-Terrorism Act, 1997, vide its judgment dated 31-7-1999, found Muhammad Naeem, Muhammad Saleem and Kashif Baig guilty under section 302, P.P.C. Read with section 7, Anti-Terrorism Act, 1997, for the murder of Allah Dad Khan and convicted each of them to death with fine of Rs,1,50,000 each or in default 2 years' R.I.
Each of them was also found guilty under section 397, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997, and each was convicted to 7 years' R.I. The convicts appealed which were heard by a learned Division Bench of High Court of Sindh, who vide its judgment dated 23-10-1999, acquitted Kashif Baig and Muhammad Saleem of the charges by extending benefit of doubt. Muhammad Naeem's appeal was, however, dismissed but his sentence was converted from death to imprisonment for life.
4. We have heard the learned counsel for the complainant at length. His contention for challenging the acquittal of Kashif Baig and Muhammad Saleem was that the same evidence was relied upon qua the conviction of Muhammad Naeem, therefore, they should have been convicted as well.
Argued that the witnesses had clearly identified the respondents in Court as culprits, therefore, case against them was proved beyond reasonable doubt. As far sentence of Muhammad Naeem is concerned, it was submitted that he along with his co-accused, was responsible for the murder of an innocent person, therefore, deserved no lenience.
5. We have heard the learned counsel at length and with his assistance perused the file. In order to establish its case, prosecution relied upon ocular account furnished by Mst. Soofia and Imran P.Ws.
2 and 4 respectively. Both of them gave a detailed account of the occurrence, the way it transpired and also stated that Muhammad Naeem was apprehended at the spot immediately after the occurrence with pistol in his hand. As far the other culprits are concerned, not a word about them was stated except that in Court, the accused are the same who had committed the offence. Imran P.W.4, son of the deceased, further stated that it was Muhammad Saleem who had committed the murder of his father by firing at him. There is nothing available on record to indicate why identification parade of the accused persons was not held. Admittedly they were not known to the witnesses and in such circumstances if identification parade is not held, it becomes virtually impossible, in absence of any other evidence, to connect with the alleged occurrence. The witnesses in their statements under section 161, Cr.P.C. Did not mention the features of the accused persons nor other description like height and weight. They saw the accused for the first time in Court after about 2 years. In such circumstances, their asserting that the accused are the same who had committed the murder, no importance can be attached to it in the absence of any identification parade. In these circumstances, we feel that benefit of doubt has rightly been extended to Kashif Baig and Muhammad Saleem. As far Muhammad Naeem is concerned, his case stands on different footing. He was apprehended at the spot and identified there. The witnesses have also deposed on oath that he is the same person who was apprehended at the spot. In such circumstances, we feel his involvement in the alleged occurrence has been established beyond reasonable doubt and he has rightly been convicted. Motive for false involvement or enmity cannot be alleged. He was a stranger to the complainant side. As far the question of sentence is concerned, we have noticed that fatal shot was fired by Muhammad Saleem. Muhammad Naeem was not alleged any overt act qua the deceased. In these circumstances we feel that he has rightly been given imprisonment for life. As far jail petition of Muhammad Naeem is concerned, we ,do not find any merit in it for the reasons discussed above.
6. The upshot of above discussion is that Criminal Petition No,94-K of 1999, Criminal Petition No,95-K of 1999 and Jail Petition No,133 of 2000 fail and are hereby dismissed.