' TANVIR AHMED KHAN, J.---This appeal with the leave of the Court is directed against the judgment dated 21-1-2000 passed by a learned Division Bench of the High Court of Sindh, Karachi, whereby A.T.A. Appeal No,28 of 1999 filed by the appellant was dismissed and the Confirmation Case No, 11 of 1999 sent by the trial Court was accepted and death sentence awarded to the appellant was confirmed.
2. The facts succinctly narrated for the disposal of this appeal are that F.I.R. No,158 of 1997 was got recorded on 5-7-1997 at Police Station Defence, Karachi, under sections 302/34, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 hereinafter referred to as the Act, at the instance of Mrs. Shahid Hamid P.W.4 for the murders of her husband, Shahid Hamid, who was Managing Director of Karachi Electric Supply Corporation (K.E.S.C.), his driver, Ashraf Brohi, and gunman, Khan Akbar. It was the case of the complainant that her husband in the company of aforesaid persons left his residence bearing No,75-B, South Sea View Avenue, Defence Housing Authority, Karachi, for his office at about 8-30 a.m. Just after few minutes of the departure of her husband she heard gun shots, whereupon she with her son, Omar (P.W.12), ran out of the house and saw unidentified assailants driving away in two vehicles. She suspected that the assailants were affiliated with MQM (A), the reasons being the differences which had emerged between her husband and the high-ups of the above political party on matters concerning the affairs of K.E.S.C. Which included retrenchment of certain officials/officers of K.E.S.C. Her husband had also received threats of dire consequences from these quarters on several occasions.
3. P.W.18 Muhammad Mubeen, S.-I./S.H.O. Of the Defence Police Station. Who was on patrol duty on the day of occurrence on receiving a wireless message conveyed to him .Through H.C. Maroof, reached at the place of incident. There he saw a white Honda Civic Car with registration No,Z-2638 parked near 'Kachra Kundi' hit by number of bullets. Shahid Hamid, in an injured condition, and the dead bodies of abovenamed driver and gunman were already removed to the Jinnah Post- Graduate Medical Centre, Karachi, in a Police mobile and a K.E.S.C. Vehicle. Shahid Hamid expired in the hospital. The post-mortem examination of the dead bodies was performed by Dr. Abdul Khaliq (P.W. 3) and Dr. Shafi Ashraf (P.W. 5). The former conducted the post-mortem of Shahid Hamid deceased while the latter performed the same in respect of Ashraf Brohi, driver, and Khan Akbar, gunman. According to the report of doctors Shahid Hamid suffered seven fire-arm injuries, Ashraf Brohi eight injuries and Khan Akbar six injuries. In their opinion all the three deceased died due to shock and haemorrhage resulting from multiple fire-arm injuries.
4. Muhammad Saqlain, 5.-I. (P.W.8) on the direction of Muhammad Mubeen, S.H.O. (P.W.18) reached the hospital. He prepared inquest reports of the three deceased and prepared memos. Of inspection of the dead bodies at J.P.M.C. Muhammad Mubeen, S.-I. (P.W. 18) took into possession 155 empties of kalashinkov from the place of occurrence which were recovered from different places in the following manner:--
(a) 30 scattered empties near the footpath close to the wall of Bungalow No,67 B-II.
(b) 33 scattered empties on the left side near the gate of Bungalow No,67. B-1. The gate of the said house opens in South Seaview Avenue.
(c) 57 scattered empties from South Seaview crossing on the main road.
(d)
35. Scattered empties from the place on 13th Street opposite to "Kachra Kundi".
' The recovery memo. Was signed by Muhammad Iqbal and Muhammad Yasin P.Ws., both employees of K.E.S.C. Muhammad Mubin, S.I.(P.W. 18) also recorded the statements of the witnesses.
5. The appellant, on a tip by a Mukhbar, was apprehended on 10-12-1998 at 21-30 hours by Muhammad Aslam, P.W. Of Police Station Ghulbahar, Karachi, from the Taxi Stand of Jinnah International Terminal, Karachi, on his way back from Bangkok. Certain articles including the passport, National Identity Card, visiting cards, airline boarding card and currency notes were recovered from him. On 11-12-1998 the appellant led to the recovery of kalashnikov alongwith 25 live rounds hidden under the heap of flags at the Union Office of M.Q.M. Located in Halqa No,188, Nazimabad Karachi which was witnessed by Muhammad Alam, S.I., Muhammad Yousaf, S.I. And Muhammad Sarwar P.Ws. The appellant was also produced before the local as well as international media where he not only admitted the commission of the present occurrence but also confessed many other such-like incidents.
6. It it pertinent to mention here that another F.I.R. No,395 of 1998 was registered against the appellant respecting the recovery of a kalashnikov under the Arms Ordinance, 1965 (hereinafter referred to as the Ordinance), at Police Station Gulbahar, Karachi. The Investigating agency also got recorded judicial confession of the appellant before Mashooq Ali Palejo (P.W. 17) on 24-12-1998.
The statements under section 164, Cr.P.C. Of the eye-witnesses, namely Mrs. Shahnaz Shahid Hamid, Omer Shahid and Mirza Tariq were recorded on 22-12-1998.
7. After usual investigation of the case, challan was submitted. The prosecution examined as many as 22 witnesses in order to establish its case. The appellant in his statement recorded under section 342, Cr.P.C. Admitted his arrest from the Jinnah International Terminal on his way back from Bangkok. He also gave his statement under section 340(2), Cr.P.C. On oath wherein he confessed the holding/convening of Press Conference and stated that the same was done under Police threats. He also produced two witnesses namely, Sharafat Ali Khan (D.W.1) and Shahnaz Fatima (D.W.2), his brother and sister respectively, to state that on the alleged day of incident i.e, 5-7-1997 he was present in the house of Shahnaz Fatima (D.W. 2), his sister.
8. This case was initially tried before the Military Court but subsequently after the pronouncement of judgment of this Court in the case of Mehram Ali, the same was entrusted to the Court constituted under the Act for trial. The said Court after scanning the entire evidence through its judgment dated 24-5-1999 convicted the appellant under section 302, P.P.C. Read with section 7(1)
(a) of the Act and sentenced him to death on three counts with a fine of Rs,1,00,000 on each count.
He was also convicted under section 13-E of the Ordinance and was sentenced to seven years' R.I.
With a fine of Rs, 10,000 or in case of default in payment of fine, he was to suffer six months' simple imprisonment.
9. Criminal Appeal No,28 of 1999 was filed by the appellant against the aforesaid judgment of trial Court in the High Court of Sindh, Karachi, while Murder Reference No,11 of 1999 was forwarded by the trial Court for confirmation or otherwise of the death sentence imposed on the appellant. A learned Division Bench of the High Court of Sindh through its judgment dated 22-1-2000 dismissed the appeal of the appellant and answered the murder reference in the affirmative. Hence this appeal with leave of the Court.
10. It is argued by Mr. Aziz Ullah Shaikh, learned counsel appearing for the appellant, that the ocular testimony in this case is not trustworthy as the eye-witnesses had momentary glance of the alleged scene of occurrence. It is further argued by him that the identification parade was conducted after a lapse of 530 days of the occurrence and 9 days after arrest of the appellant and no particular description or features whatsoever of the alleged assailants were given in the F.I.R. He has also stated that the eye-witnesses had seen the appellant prior to the holding of identification parade. Apart from it, according to him, much publicity was given on the national and international media respecting apprehension of the appellant and, as such, the alleged identification test had lost its evidentiary value. According to the learned counsel, the recovery of kalashnikov from the appellant cannot be relied upon as the same was allegedly effected from a place which was not in his exclusive possession. He has further stated that the alleged judicial confession of the appellant was obtained through duress and coercion and the same was not recorded in the instant case as it was allegedly recorded in another case bearing F.I.R. No,395 of 1998 registered at Police Station Gulbahar, Karachi, under section 13-E of the Arms Ordinance, 1965. According to him, the motive alleged in this case as put forward by the prosecution has not been substantiated.
11. On the other hand, Mr. Raja Qureshi, learned Advocate-General, Sindh, who is appearing for the State, has supported the impugned judgment. He has stated that the prosecution has proved its case beyond any shadow of doubt through unimpeachable and confidence-inspiring ocular account which has been fully corroborated by the medical evidence, recovery of incriminating weapon, identification of the appellant made in identification test, voluntary judicial confession of the appellant and the motive.
12. We have considered the contentions of the learned counsel for both the sides and have gone through the entire record minutely with their assistance. We have noticed that the prosecution has examined as many as 22 witnesses to establish its case. The ocular account has been narrated in its material particulars by Mrs. Shahnaz Hamid (P.W. 4), Mirza Tariq Jawed (P.W.9) and Umer Shahid (P.W. 12). P.W. 4 and P.W.12 are wife and son respectively of Shahid Hamid deceased, who have described the manner in which the three deceased were done to death. They have also stated that it was the appellant who was seen by them firing at the deceased. Their presence, being inmates of the house in front of which the occurrence took place, cannot be doubted on any score. Mirza Tariq Jawed (P.W.9) is totally an independent witness. He has narrated the manner in which the appellant brutally killed the three persons. He has also stated in his testimony regarding the presence of Mrs. Shahnaz Hamid (P.W.4) and Umer Shahid A (P.W.12) at the time of firing by the appellant. This witness has further pointed out that he was drinking water from a "Sabeel" at that time when the incident had taken place. The defence side subjected these witnesses' to lengthy cross-examination but totally failed to shatter their testimony. Their presence at the spot is natural and has been proved beyond any doubt. They do not have got any malice or ill-will against the appellant to attribute him the deaths of Shahid Hamid alongwith Ashraf Brohi, driver, and Khan Akbar, gunman.
13. The medical evidence completely corroborates the stance taken by the aforementioned eye- witnesses in their testimony. Dr. Abdul Khaliq (P.W. 3) and Dr. Shafi Ashraf (P.W.5) who conducted the autopsy on the dead bodies had stated that deaths of the deceased occurred due to heamorrhage caused by multiple fire-arm injuries.
14. The appellant has not denied his arrest by Muhammad Aslam, S.-I. (P.W. 13) from the Jinnah International Terminal, Karachi, on 10-12-1998. He, however, stated that he was apprehended by said Muhammad Aslam, S.-I. On 10-12-1998 while he came back from Bangkok from Jinnah Terminal while the prosecution had stated that the appellant was arrested from the taxi stand of the Jinnah International Terminal on his way back from Bangkok through Thai Airlines. This variation in the place of arrest would not have any material effect when arrest of the appellant got established from Airport on 10-12-1998, subsequent to his arrest, it is in evidence that he on the next day i.e, 11-12-1998 led to the recovery of a kalashnikov alongwith 25 live rounds from the Unit Office of M.Q.M. Located in Halqa No, 188, Nazimabad, Karachi. He has reflected from the prosecution stance, took out the same from the heap of used clothes, banners and flags lying under a table in the said office. The incriminating weapon alongwith 25 live rounds and magazine were sent to the Examiner of Fire-Arms, Criminalistic Division. Sindh, Karachi. Which. According to the report of expert. Some of the crime empties recovered from the spot matched with the said kalashnikov. This recovery, as already stated, was effected at the pointation of the appellant who had the exclusive knowledge of it being placed under the papers in the said Unit Office. Simply because of the fact that the recovery has been proved through the testimony of the police officials, the same cannot be discarded. In this background when the placement of the incriminating weapon under the papers and flags was within the exclusive knowledge of the appellant and the same was recovered at his pointation, no exception can be taken to that.
15. The identification of the appellant conducted under the supervision of Muhammad Rafiq, Judicial Magistrate (P.W. 14) has been brought on record by Mrs. Shahnaz Hamid (P.W. 4), Mirza Tariq Jawed (P.W. 9) and Umer Shahid (P.W. 12). The argument of the learned counsel for the appellant that the same was held after more than 530 days of the present occurrence and 9 days after arrest of the appellant would not advance the case of the defence. It has come on record that the appellant left the country and came back on 10-12-1998 when, as earlier stated, he was apprehended at the Jinnah International Terminal. Karachi. Mrs. Shahnaz Hamid (P.W. 4) and Umer Shahid (P.W. 12) in their evidence have categorically stated that it was the appellant who committed this gruesome offence. Mrs. Shahnaz Hamid (P. W. 4) in her deposition stated that during identification parade she had a constant look on the appellant and identified him to be the same person who had been seen by her in a white car at the site of occurrence. She further stated that she had only pointed out the appellant on the day of holding of identification parade and had told the Magistrate that "This is the man". In an answer to a Court question she further elaborated that the person sitting in the Court was the same who had been seen by her in the car at the site of occurrence on the material date and time. In the concluding portion of her testimony to a Court question she answered as follows:-- "From the word 'unidentified' appearing in Exh. D.I meant was that I did not know the accused by name then seen by me who was driving the alleged car now sitting here before the Court about whom I have not even the slightest doubt if he is not the same individual." (Underlining is ours).
16. Similarly, Umer Shahid (P.W. 12) had stated that he identified the appellant during the identification parade conducted by Muhammad Rafiq, Judicial Magistrate on 19-12-1998. He also stated in his cross-examination that prior to the identification parade he had not seen the appellant. He further reiterated his stance by saying that he had seen the appellant for a moment on the date and place of occurrence and then saw him in the identification parade held on 19-12- 1998. The figure and features of the appellant must have been imprinted on the minds of Mrs. Shahnaz Hamid (P.W. 4) and Umer Shahid (P.W. 12). Widow and son respectively of deceased Shahid Hamid. How they can forget the person who had committed this gruesome act of killing Shahid Hamid alongwith his driver and C gunman? It is expecting too much from the complainant to point out the detailed description and features of the accused in the F.I.R. as at that moment she must be undergoing a very traumatic condition. In this regard, the learned Division Bench of the High Court of Sindh has observed as under:-- ' "The arguments that P.Ws. Had only momentary glimpses and it was difficult for them to identify the culprits after such a long period has no merit. Suffice it to say that each criminal case has its own facts and circumstances and the value of evidence of identification is to be evaluated by the Court. It may be mentioned that the power to identify varies according to the power of observation and the observation is based upon minor details which a witness cannot describe and explain himself. In the instant case the incident has taken place in the day time just near the house of complainant party, who were receiving constant threats and they were conscious of the consequences. As 'soon as the lady and her son heard the fire shots, they came out of their bungalow and saw the incident and culprits. P.W. Mrs. Shahid Hamid and the other P.Ws, who were at the relevant time at the spot and seen the appellant/culprit and incident which was of immense importance, extending serious and saddest in one's life, therefore, the culprits to whom they saw could remain in memory as photo for sufficient long period hence there could be no mistaken identity."
17. Mirza Tariq Jawed (P.W. 9) is totally an independent person who also identified the appellant during the identification parade conducted on 22-12-1998. He as already stated, had mentioned in his testimony the presence of Mrs. Shahnaz Hamid (P.W. 4) and Umer Shahid (P.W. 12) at the time of firing by the appellant. Muhammad Rafiq, Judicial Magistrate (P.W. 14), who had the identification parade, had stated in his deposition that the same was conducted strictly in accordance with law and the rules and the eye-witnesses correctly pin-pointed the appellant.
18. There is another aspect of the case that the appellant made a judicial confession before Mashooq Ali Palejo, Magistrate (P.W. 17) on 21-12-1998 and admitted his involvement in the case in hand apart from many other cases. His confession was voluntary and without any coercion as the Judicial Magistrate who had recorded the same had stated that the appellant did not make any complaint qua the treatment meted out to him at the hands of the Investigating Agency prior to recording of his confessional statement. The appellant had signed each page of his confessional statement. It is true that in the application submitted before the Judicial Magistrate by Muhammad Aslam. S.-I. Of Police Station Gulbahar, Karachi (P.W. 13), as well as in the certificate issued by the Magistrate, F.I.R. No,395 of 1998 registered under section 13-E of the Ordinance at Police Station Gulbahar, Karachi, is mentioned, but that fact by itself would not create any fissure in the appellant's confessional statement wherein he had admitted his involvement in the present case.
The application for confessional statement was given by Muhammad Aslam, S.-I. Who was from Police Station Gulbahar, where F.I.R. 395 of 1998 was registered while the present case which had emanated out of F.I.R. No, 158 of 1997 was registered at Police Station Defence, Karachi. It was not expected from Muhammad Aslam, S.-I. Of Police Station Gulbahar that he would mention in the application the F.I.R. Of the present case registered at a different police station. This is 'merely a technical objection as the appellant in his judicial confession had confessed not only his involvement in Arms Ordinance case but in the present incident apart from many other cases.
19. The motive behind the Instant occurrence resulting into deaths of three persons has been narrated in the F.I.R by Mrs. Shahnaz Hamid (P.W.4). Which she has reiterated in unequivocal terms in her testimony before the trial Court. The appellant had also admitted his association with a political party in his confessional statement as well as before the media. The complainant in the F.I.R had stated that she suspected that the culprits involved in the present incident were affiliated with MQM(A). The reason for entertaining such suspicion on the part of the complainant was on account of some difference which had cropped up between her deceased husband and the high- ups of the above political party respecting the affairs of Karachi Electric Supply Corporation which included the removal/retrenchment of certain officials/officers of the Corporation, of which deceased Shahid Hamid was the Managing Director. Resultantly, taking stock of all the aforestated features of the case, we are of the considered view that the prosecution has successfully been able to bring home guilt against the appellant through unshakable and confidence-inspiring ocular account, identification of the appellant made in two identification parades, recovery of incriminating weapon from him, his voluntary judicial confession in this regard coupled with medical evidence and the motive set up by the prosecution. The learned trial Court after scanning the entire evidence epilogue convicted and sentenced the appellant as stated in the preceding paragraphs, which determination has been affirmed by a learned Division Bench of the High Court of Sindh, Karachi.
' The upshot of the above discussion is that the instant appeal being devoid of any force is dismissed.