' MUNIR A. SHEIKH, J.---This appeal by leave of the Court is directed against the judgment dated 8- 9-1999 of the High Court of Sindh, Karachi by which while maintaining the conviction of the appellant recorded by the trial Court under section 302, P.P.C. Read with section 7 of Anti-Terrorism Ordinance, 1998, his death sentence was converted into life imprisonment with a direction to pay Rs,50,000 as compensation to the legal heirs of the deceased and Rs,10,000 to injured persons, in default whereof to undergo R.I. For 6 months.
2. The appellant alongwith Muhammad Tufail, Muhammad Razzaq and Muhammad Imran were tried under sections 302, 324, 148 and 149, P.P.C. And section 7 of Anti-Terrorism Ordinance, 1998 by Mr. Hussain Bakhsh Khoso, learned Judge, Anti-Terrorism Court No,IV, Karachi and were convicted and sentenced to suffer R.I. For. Life. They were also directed to pay fine of Rs,50,000 as compensation to the legal heirs of the 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 sentenced to 10 years' R.I. With fine of Rs,10,000 each to be paid as compensation to injured persons in default whereof to suffer R.I.
For 6 months. The case of Taha, co-accused was separated and was directed to be tried under Sindh Children Act as he was minor.
3. The facts of the case as disclosed in the F.I.R. Briefly stated are that on 2-7-1998, S.-I. Noor Nawab Khattak of Sachal Rangers, 73 Wing/complainant alongwith his subordinate Staff namely, Havaldar Mumtaz Ali, HavMar Noor Muhammad, Naik Abdul Hussain, Sepoy Muhammad Mithal, Sepoy Dildar Hussain and others were on patrolling duty in Liaqatabad 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 terrorist of M.Q.M. Unit No,64, namely, Nadir Shah alongwith his companions Mini, Obaid alias K-2, Junaid alias K-2, Asif Shakeel, Irshad, Rafiq alias Bullet, Sajjad and Irfan emerged raising slogans of "police and rangers murdabad" and shouted that they would not spare them (complainant party) and started firing at them from their automatic weapons in order to kill them (complainant party) and prevent them from discharging their duties as public servants. Due to 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 t6 Abbasi Shaheed Hospital where Sepoy Dildar Hussain succumbed to injuries. Thereafter, the complainant went to police station and lodged the F.I.R.
4. During the investigation, the police arrested the appellant and others and Taha, a juvenile offender, and the latter was put to identification test where he was picked up by the P.Ws.
5. Dr. Maula Bakhsh was the formal witness who produced the medical certificate of injured Sepoy Dildar Hussain and Havaldar Mumtaz Ali and post-mortem report of deceased Sepoy Dildar Hussain. Syeda Parveen Shah, a Judicial Magistrate was examined who produced the Mashirnama of identification parade of accused Muhammad Imran, Muhammad Faisal and Muhammad Razzak and juvenile offender, Taha, complainant S.-I. Noor Nawab was examined as witness who produced the Roznamcha entry, inquest report, Mashirnama of dead body, formal Mashirnama of arrest of the accused after holding the identification parade, Mashirnama of police of Wardat report under section 165, Cr.P.C., and report of the chemical examiner. It appears that the case was tried initially by the Military Court where the statements or the accused persons were also recorded but thereafter, in view_of judgment of this case in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445), the case was transferred to the abovementioned Anti- Terrorism Court where the learned Judge recorded the statements of the accused under section 342, Cr.P.C. Afresh who stated that they did not want to get their statements recorded under section 340(2), Cr.P.C.
6. After considering the evidence, the present appellant alongwith others were found guilty of the charges and convicted and sentenced as stated above. The appeal filed by the appellant has been dismissed through the impugned judgment dated 8-9-1999 by the High Court of Sindh, Karachi whereby the conviction of the appellant under section 302, P.P.C. Read with section 7 of the Anti-Terrorism Ordinance has been upheld but . His death sentence was reduced to life imprisonment in view of the fact that deceased Sepoy Dildar Hussain and Havaldar Mumtaz Ali had received one injury each which had not specifically been attributed to him which found favour with the learned Division Bench of the High Court and considered as mitigating circumstance to reduce the sentence whereas accused Muhammad. Faisal, Muhammad Razzak and Muhammad Imran were acquitted.
7. Leave was granted to the appellant to consider the following questions:-- "(i) Whether in the circumstances of the case, the petitioner could have been identified and what is the worth of the identification parade held in this case where only one person was identified?
(ii) Whether the mode and manner of attack and the participation of the petitioner stands proved according to the principles laid down to govern the appreciation of evidence in criminal cases? "
8. Learned counsel for the appellant submitted that there is delay in lodging the F.I.R. Which is sufficient to hold that the same had been recorded after due deliberations. We have gone through the evidence and find that there is no force in the argument. The deceased and the injured were taken to the hospital and on its way, the S.H.O. Of the Police Station who came there and it is in his evidence that he was informed about the incident. There is no hard and fast rule that in every case, the delay if any in lodging the F.I.R. Should be taken as a circumstance against the prosecution. In this case, we find that from the very start, the complainant named the present appellant who was earlier known to him. The delay if any, in our considered view in this case does not in any manner adversely affect the credibility of the prosecution: case as the other evidence is sufficient to convict the appellant.
9. The complainant S.-I. Noor Nawab in his evidence has supported the version as given in the F.I.R.
He was cross-examined but nothing could be brought on record against him. Learned counsel for the appellant submitted that there were contradictions in the evidence of the prosecution witnesses. In the evidence, the witnesses stated that the firing was made from the building whereas in the 'FIR., the version is otherwise. We have gone through the evidence of the prosecution witnesses and also considered the same in comparison with the version given in the F.I.R., and the evidence of the complainant in the Court and find that in fact, there is no material contradiction.
What emerges from the material placed on the record is that the assailants were in groups and they after firing would hide themselves in the streets and the buildings in order to protect them and save them from arrest. Even if they had emerged from a building and opened the fire and then again tried to hide themselves by going in the street and the buildings, it will not amount to say that the firing was opened from inside the buildings and they did not appear on the scene.
10. Learned counsel for the appellant further submitted that the appellant was not subjected to identification test, therefore, his involvement in the case has not been proved beyond reasonable shadow of doubt. According to settled law, it is not necessary that in each and every case, the accused should be put to identification test. In this case, since the appellant had been named in the F.I.R. From the very start as the complainant knew him earlier by his face, therefore, there was no question of putting him to identification test. Evidence of the complainant S.-I. Noor Nawab and version given by him in the F.I.R. inspires confidence, therefore, this aspect of the case does not in any manner adversely affect the prosecution case.
11. Learned counsel further maintained that it has come on the record that there was another vehicle behind the vehicle in question but it was not so mentioned in the F.I.R. This does not in any manner help the appellant or create any doubt for the evidence on the record is sufficient to prove the case. The question of arrival of other vehicle at the spot during the course of action and omission of the mention of the same does not in any manner detract from the evidentiary value of the complainant's evidence and other circumstantial evidence. The mode and manner of attack as mentioned in the F.I.R. Has been fully proved through evidence. It has been rightly observed by both the Courts below that all the prosecution witnesses have without any doubt mentioned the appellant having participated in the offence, therefore, the conviction recorded against him does not suffer from any legal infirmity. The appellant has already been given benefit by reducing his sentence to life imprisonment on cogent reasons, for it was a firing emanating from a group of persons and deceased and the injured sustained one injury each as such it could not be said to have necessarily been caused by the appellant. This being a mitigating circumstance has been duly considered according to the principles laid down for safe administration of criminal justice.
The participation of the appellant in the commission of offence has otherwise been proved beyond reasonable shadow of doubt.
12. For the foregoing reasons, we do not find any merit in this appeal which is accordingly dismissed.