' SARMAD JALAL OSMANY, J.---These three appeals arise out of the same facts and circumstances and hence we proposed to dispose them by this common order.
1. Special A.T. Appeal No,114 of 1999 filed by Appellants Ahmad Saeed and Muhammad Saleem assails the judgment, dated 4-8-1999 passed by the learned A.T. Court No,IV Karachi. As per F.I.R.
No,211 of 1997 of Police Station T.P.X. Karachi registered on 12-11-1997 the facts therein are that on the same day complainant Asim. Raees Khan an employee of Union Texas Company Pakistan Ltd.
Gave a statement under section 154, Cr.P.C. Before the S.H.O. Police Station IPX to the effect that on that day at about 8-10 a.m. When he reached his office he received a wireless message that a car belonging to the company had met with an incident. Thereafter complainant went to the P.I.D.C.
Bridge situated on Moulvi Tameezuddin Road and saw that one car bearing No,J-0812 Nissan of the company was standing there and the same had bullet holes in it and so also the wind screen and side view mirrors were completely sma shed in which dead bodies of Driver Anwar Mirza, and four American nationals namely J. Enlo. T. Ritchie, E. Egbo and L. Jemming were lying. The dead bodies were taken to Agha Khan Hospital. The complainant further stated that some unknown persons riding in another car had fired at the company car at about 8-5 a.m. Hence the complaint.
2. During the investigation 'of the crime Appellants/Accused Ahmed Saeed and Mohammad Saleem were arrested by the Police, who admitted their guilt during interrogation. Hence on 24-2- 1999 both these accused persons were produced before 1st Judicial Magistrate Karachi Central where their judicial confessions were recorded. Arrest of both the accused persons were shown in this case on 10-2-1999 from jail custody as they had been previously arrested in another case under section 13-D of the Arms Ordinance. After usual investigation both the accused were challaned before the Anti-Terrorism Court whereas co-accused viz. Ajmal Pahari, Kashif David, Faisal Lamba, Waseem Tunta, Sajid, Altaf Hussain, Nadeem Nusrat and Anees Ahmed were declared as absconders.
3. A charge was farmed against both the accused to which they pleaded not guilty and claimed to be tried. In support of its case the prosecution examined as many as 24 witnesses, including the complainant Asim Raees, eye-witnesses Fakeera and Mohammad Mushtaq, Judicial Magistrate Syeda Parveen Shah, Dr. Riffat Rehmani, Judicial Magistrate Ayaz Mustafa Jokhio as well Farooq Ahmed Abbasi etc. During evidence complainant produced the statement under section 154, Cr.P.C. As Exh.7/A, SIP Muhammad Ishaque produced F.I.R. As Exh.8/A, P.W. Fakira produced two memo.s of identification of the accused as Exh.11/A and 11/B and his statement under section 164, Cr.P.C. As Exh.11/C P.W. Muhammad Mushtaq also produced two memos. Of identification of the accused, and his statement under section 164, Cr.P.C. As Exh.12/A of Exh.12/C, respectively. Dr. Riffat Rehmani produced four death certificates of the deceased as Exhs.18/A to Exh.18/E, respectively.
Judicial Magistrate Ayaz Mustafa produced the judicial confessions of the appellants as Exh.19/A and 19/B etc. So also the prosecution has relied upon the recoveries viz empties of Kalashnikov and .30 bore pistol bullets from the scene of the crime as well is the recovery of Kalashinkovs from the appellant including the Ballistic Report of the same.
4. The statements of the accused were recorded under section 342, Cr.P.C. In which they deRied the case of the prosecution. Appellant/ accused Ahmad Saeed also produced his discharge slip, prescription slip, original report, dated 2-11-1997, original bill of Hospital, dated 8-11-1997, blood reported, Ultrasound photographs, Laboratory report etc. As Exh.30/A to Exh.30/P alongwith his defence.
5. Based on the foregoing evidence on record and after hearing the learned counsel for the appellant/accused as well as State Counsel, the learned Trial Court came to the conclusion that both the accused stood guilty as charged viz. For the murder of the deceased persons.
Consequently both the accused were sentenced to death under section 302, P.P.C. And also a fine of Rs,2,00,000 was imposed upon them which was payable to the heirs of each deceased under section 544-A, Cr.P.C. And in case of default they were to suffer R.I. For a further period for one year.
Both the accused were also sentenced to death under section 7 of the Anti-Terrorism Act 1997 read with section 149, P.P.C, also they were sentenced to suffer RI for one year more under section 148 read with section 149, P.P.C.
6. As far as Special A.T. Appeals Nos.115 and 116 are concerned which have been filed by the appellate/accused Ahmad Saeed and Mohammad Saleem respectively, they assail the judgments both, dated 21-8-1999 passed by the learned Judge Anti-Terrorism Court No,4, Karachi regarding offences under section 13-D Arms Ordinance viz for possession of unlicensed weapons which were recovered from the appellants/accused and were allegedly used for committing the murders of the deceased which are the subject-matter of Criminal Special Anti-Terrorism Appeal No,114 of 1999. Upon said recovery F.I.Rs, Nos.366 of 1998 and 32 of 1999 were lodged with Police Station Gul Bahar Karachi. Thereafter the accused were challanged before aforementioned Court for trial.
Charges were framed against both the accused who pleaded not guilty whereafter the trial commenced during which the Mashirs of recovery were examined by the prosecution as also the complainant. The Mashirs produced Mashirnama of arrest of the accused and recoveries as well as F.I.Rs, Based upon such evidence and after hearing the arguments of the learned counsel for the State as well as the accused, they were both the convicted and sentenced to suffer R.I. For 7 years each under section 13-D, Arms Ordinance.
7. On the basis of foregoing evidence on record learned counsel for the appellants has firstly submitted that the only two eye-witnesses viz. P.W. Faqira and Mushtaq, who were allegedly following,the deceased's car in a water tanker and who saw the accused alongwith two others riding in a white car fire at the deceased, cannot be relied upon as admittedly after the incident had taken place on 12-11-1997 they had gone to their village and had only surfaced on 13-6-1999 when P.W. Sher Dil (the owner of the water tanker) had produced them before the police after a passage of more than one and a half years from the date of incident. This delay has gone unexplained as per learned counsel the only reason given under cross-examination by both these witnesses is that out of fear they had left Karachi, as they did not want to become witnesses. So also per learned counsel the identification test which was held thereafter again cannot be relied upon, particularly where the role of the accused was not described in material details. In support of these propositions learned counsel has relied upon Ghulam Rasool v. The State 1988 SCM R 557 and Mehmood Ahmed v. The State 1993 SCMR 127 as well as Muhammad Khan v. Moula Bukhsh 1998 SCM R 521.
8. Next learned counsel has referred to the deposition of ASI Habib Khan who was posted as Traffic Inspector in front of Habib Public School. According-to him at about 8-10 a.m. On the date of occurrence he heard heavy firing coming from P.I.D.C. Side and then saw a red car coming towards, him at a high speed in which four persons were sitting armed with Kalashnikovs. Per learned counsel his deposition regarding the firing by 4 persons from a white car is mere hearsay, since he was not an eye-witness of the incident. So also in cross-examination he has admitted that he has not stated anything in his police statement about the white car. Similarly no water tanker is mentioned at all by this witness. Additionally learned counsel has submitted that both P.W. Habib Khan and P.W. Mushtaq have deposed, is to the red car in which four unknown armed persons, were sitting and so also the same was recovered by P.W. Mohammad Irfan Zaman. However, this red car does not find. Any mention in the confessional statement of the accused which causes further doubt in the matter.
9. Next learned counsel has submitted that although the appellants had confessed to the crime in question before the concerned Judicial Magistrate, however, since the said confessions were retracted these needed to be corroborated in material particulars from other convincing and cogent evidence which is lacking in the circumstances of the case. In this connection he has further submitted that nowhere in the said confession has anything been mentioned at all about the water tanker in question or the red car. Learned counsel has also submitted that there has been delay in recording of the confessions of the two appellants in as much as Appellant Ahmad Saeed was arrested on 27-1-1999 and his confessions was recorded on 24-2-1999, whereas Muhammad Saleem was arrested on 27-11-1998 and his confession was recorded on 24-2-1999 learned counsel has relied upon Daniel Boyd v. The State 1992 SCM R 196 in this regard.
10. As regards the recoveries, learned counsel has submitted that these are also doubtful in the circumstances of the case. In this connection he has teferred to the memo. Of arrest of appellant Ahmed Saeed in which a KK alongwith 16 rounds in a magazine was shown to be recovered from him on 27-1-1999. In this connection learned counsel has referred to C.P. 1986 of 1998 which was filed on 24-12-1998 with the prayer for the production of appellant Ahmad Saeed who had allegedly been picked up from his own house on 22-12-1998. Per learned counsel the Order sheet of this matter, dated 15-1-1999 records the allegation that he was arrested from his house on 22-12-1998.
Similarly the Order sheet, dated 28-1-1999 records that more time was prayed for by the State for producing Ahmed Saeed and finally the order, dated 10-2-1999 records that he was arrested on 27-1-1999. Hence, there is some doubt as to this recovery.
11. Next learned counsel submitted that the incident took place on 12-11-1997 and it was impossible that Ahmad Saeed took parting it as he was operated on 4-11-1997 for appendicitis discharged on 8-11-1997 and his stitches were removed on 12-11-1997, per the appellants statement recorded under section 342, Cr.P.C. And the Hospital record receipts etc. Produced by him as Exh.30/A to 30/P.
12. Finally learned counsel has submitted that according to the Ballistic report one KK was received on 3-4-1999 which belonged to Ahmed Saeed, hence there is delay of 3 months since he was arrested on 27-1-1999. The second KK was received on 8-6-1999, whereas the recovery was effected on 27-11-1998 from appellant Muhammad Saleem and hence there is a delay of 6 months.
Per learned counsel the delay in sending the weapons in question for the ballistic test is fatal in view of Wazir v. The State PLD 1960 (W.P.) Kar. 674 and Allahando v. The State 1969 SCM R 714. Finally in this connection, learned counsel has submitted that only appellant Ahmed Saeed's weapon was tested positive i,e, it matched the empties recovered from the scene of the crime. For all the foregoing reasons. Learned counsel has prayed that Special Criminal A.T. Appeal No,114 of 1999 be allowed and the appellants acquitted.
13. On the other hand Mr. Muhammad Habib Ahmed, learned A.-G. Has firstly submitted that there is a plausible explanation in the delay of recording the 164 statements of P.Ws. Faqira and Mushtaque viz. That after witnessing the crime, they became frightened and had left for their native place. They returned to Karachi after 17 months of the date of incident when the Tanker owner P.W. Shera had come upon them by chance and had produced them before the police as he was being pressurized to do so. They learned A.A.-G. Submitted that both these eye-witnesses have picked up appellant Muhammad Saleem as one of the accused who was firing at the deceased, while Ahmed Saeed was driving the car. This has been stated by both the witnesses in their 164, Cr.P.C.
Statements as well as in their depositions. Hence per learned A.A.-G there is sufficient corroborations, as well as consistency in the depositions of both the witnesses and they being independent witnesses are quite reliable. So also the delay has been explained in sufficient detail.
Per the learned A.A.-G. The Honourable Supreme Court in Criminal Appeal No,336 of 2000 entitled Solat Ali Khan v. The State has held that when the crime is of such a heinous nature as the broad daylight and cold-blooded murder of innocent persons, the witnesses would have lasting impressions of the culprits, who had perpetuated such murder. The Honourable Supreme Court took into consideration, the delay in the holding of the identification parade viz. Of a year and half and based upon the foregoing observations ruled it out of consideration. As far as the issue of the red car is concerned, learned A.A.-G. Has submitted that the case of the prosecution is not that anyone from said car had taken part in the crime, and neither has the Traffic Inspector who was posted at Habib Public School ever said so. The learned A.A.-G. Has further submitted that the confession of the appellants have been materially corroborated by the eye-witnesses account as well as the recoveries and the position ballistic test. He has relied on Khan Muhammad v. The State 1999 SCM R 1818, Muhammad Gul v. The State 1991 SCM R 942, Nabi Bakhsh v. The State 1999 SCM R 1972, Fazal Mahmood v. The State 1999 SCM R 2040, Haq Nawaz v. The State 2000 SCM R 785 and Ahmad Hassan v. The State 2001 SCM R 505. For all the foregoing considerations, learned A.A.-G.
Prayed that the conviction and sentence awarded to the appellants be upheld.
14. Mr. Suleman Habibullah appearing for the deceased driver's wife has submitted that both the eye-witnesses have corroborated each other and have remained steadfast both in their depositions as well as in their 164, Cr.P.C. Statements and identification parade. As for the delay in recording of their 164, Cr.P.C. Statements, this too has been sufficiently explained by these two witnesses. In any event, per learned counsel no question has been asked of the witnesses in cross- examination as regards their absence from Karachi for a long time and their appearance thereafter when their statements were recorded etc. Learned counsel relied upon Puryo v. The State 1975 PCr.LJ 1304, Abdul Khaliq v. The State 1996 SCM R 1553, Criminal Appeal No,366 of 2000 Solat All Khan v. State, Mst. Naseem Akhtar v. State 1999 -SCMR 1744. Learned counsel has submitted that all the confessional statements of the two appellants tally and corroborate each other and are further corroborated by the deposition of the Investigating Officer Muhammad Aslant. Hence although these confessional statements were retracted, the other evidence available on the record would be sufficient to bring home the guilt of the accused. This was the eye-witnesses account, the identification of the two appellants by the eye-witnesses and finally per learned counsel there is the deposition of P.W. Abdul Rehman, who was the owner of the red car in question which was snatched by Ahmed Saeed. The F.1.R. Of this incident was lodged on 12-11-1997. So also the owner of the car has identified appellant Saeed Bharam as the person, who had snatched the car in the identification parade held no 8-3-1999. Finally learned counsel has submitted that both the appellant had led the police to the place of incident, as deposed by the Investigating Officer and there is no cross- examination on this issue.
15. In rebuttal, Mr. Azizullah K. Shaikh, learned counsel for the appellants has submitted that there is no material at all with the prosecution to connect the red car to the crime in question. He has also submitted that the case of Solat Ali Khan was not a final judgment as a Review has been filed before the Honourable Supreme Court which is still pending and hence it could not be relied upon at this stage.
16. We have heard learned counsel as well as the learned A.A.-G.. Our conclusions are as follows:--
17. It would be seen that the evidence against the appellants consists of the following:-
(a) Confessional statement;
(b) Occular account:
(c) Identification test;
(d) Medical record;
(e) Recoveries.
' As far as the confessional statements are concerned, though they appear to have been made in accordance with law, however, as these have been retracted, as a matter of abundant caution and prudence they are not to be acted upon unless corroborated through some other reliable hnd cogent evidence. In this respect reference can be made to Muhammad Yaqoob v. The State 1992 SCM R 1983 and Naseem Akhtar v. The State 1999 SCM R 1744.
' As far as the ocular account is concerned which is the primary evidence available against the accused, it would be seen that P.Ws. Faqira and Mushtaq admittedly went away from the City of Karachi to Rawalpindi after the incident due to fear and had only surfaced one and half years thereafter then their statements under section 164, Cr.P.C. Were recorded. The only explanation given for this delay is that they were frightened and consequently decided to return to their village as they did not want to act as witnesses to the crime in question. In our view this is insufficient explanation for the delay in question and hence the eye-witnesses account cannot be accepted without some element of doubt. Of course it goes without saying that such doubt can be satisfied by the other corroborative material which we would now propose to examine. In this regard reference can be made to Muhammad Khan v. Moula l3ux 1998 SCM R 570, Pinyo v. The State 1975 PCr.LJ 1304 and Muhammad Ahmad v. The State 1995 SCMR 147,
18. Reverting now to the Identification Test which was held on 16-6-1999 whereas the witnesses police statements were recorded on 13-6-1999 and hence there was hardly any delay in the same.
However, in our opinion, in the circumstances of the case where the incident occurred on 12-11-1997 and the Identification Test was held one and half years thereafter, this could hardly be accepted as positive identification of the accused by the eye-witnesses. Admittedly there was one car in between the water tanker in which the eye-witnesses were available and the till fated car of the deceased. So also during the firing the witnesses have admitted that they were frightened and there was confusion all around. Hence in our opinion, in such circumstances positive identification after a prolonged period of one and half years cannot be accepted without some degree of doubt.
As far as the case of Solat Ali Khan is concerned, the same is distinguishable as firstly the two eye- witnesses who recognized the accused were the wife and son of the deceased in which even it could be accepted they had retained a photographic memo.Ry of the accused's features as according to them he was the person who had fired on the deceased. Such is not the case in the present matter viz. The eye-witnesses are not related to the deceased.
19. Next we would like to advert to the recovery in question. According to the memo. Of recovery 9 used empties of SMG and I used empty of .30 bore were recovered from the place of incident on the fateful day whereas recovery Exh.34/A on 27-1-1999 one Kalashnikov was recovered from the accused Ahmad Saeed and vide memo.. Of arrest/recovery Exhs.35/A another KK was recovered from the accused Muhammad Salim on 27-11-1998. The weapon recovered from accused Ahmad Saeed was sent for the ballistic test. On 30-4-1999 whereas that recovered from Muhammad Salim was sent on 8-6-1999. Hence in the first case there was a delay of 3 months and in the latter there was a delay of 6 months. These delays have gone unexplained and we are therefore, of the view that again some doubt has been raised as to whether these were the same weapons which were seized from the accused. So also it would be seen per the ballistic report that only accused Ahmad Saeed's weapon yielded a positive result. Hence in any event the weapon seized from accused Muhammad Salim is hardly any evidence to connect him with the crime in question. For the foregoing reasons we are of the view that the ballistic report cannot be taken into consideration as positive corroborative material. In this regard reference can he made to Allahando v. The State (supra).
20. For the foregoing reasons we are of the opinion that Criminal Appeal No,114 of 1999 should be allowed as the prosecution has failed to prove its case against the appellants/accused Ahmad Saeed and Muhammad Saleem beyond reasonable doubt. ,They stand acquitted in this case. They shall be released forthwith if they are not required in any other case. The reference is answered accordingly.
21. As far as Special A.T. Appeals No,115 and 116 are concerned which have been filed by the appellant/accused Ahmad Saeed and Mohammad Saleem respectively, they assail the judgments both, dated 21-8-1999 passed by the learned Judge Anti-Terrorism Court No,4. Karachi regarding offences under section 13-D, Arms Ordinance viz. For possession of unlicensed weapons which were recovered from the appellants/accused and were allegedly used for committing the murders of the deceased which are the subject-matter of Special Anti Terrorism Appeal No,114 of 1999. Upon said recovery F.I.Rs, No, 366 of 1998 and 32 of 1999 were lodged with Police Station Gul Bahar Karachi. Thereafter the accused were challaned before aforementioned Court for trial. Charges were framed against both the accused who pleaded not guilty whereafter the trial commenced during which the Mashirs of recovery were examined by the prosecution as also the complainant.
The Mashirs produced Mashirnama of arrest of the accused and recoveries as well as F.I.R. Based upon such evidence and after hearing the arguments c f the learned counsel for the State as well as the accused, they were both convicted and sentenced to suffer R.I. For 7 years each under section 13-D, Arms Ordinance.
22. Mr. Azizullah K. Shaikh learned counsel for the appellant has submitted that insofar as Special A.T.A. No,115 of 1999 is concerned, the circumstances whereby appellant Ahmed Saeed was arrested in this case on 27-1-1999 at 5-00 a.m. In the morning are quite strange viz. That he was standing in a street near Noorullah Nala duly armed with a Kalashnikov and 15 live bullets. Per learned counsel this appears to be unnatural, fictitious and false. He has further submitted that per the memo. Of recovery the alleged Kalashnikov did not bear any legible identification number as the same was rubbed off and therefore, the possibility of involving the appellant/accused cannot be excluded as this weapon could have been foisted upon him. Further learned counsel has stated that no question was asked of the appellant in his 342, Cr.P.C. Statement as to whether or not the Investigating Officer had demanded the licence of the Kalashnikov, hence the offence was not proved. In this connection, he has relied upon; Sajid Ahmad v. The State 1992 SCMR 408. Finally, the learned counsel has reiterated the arguments advanced by him in the main case viz. Special A.T.A.
114 of 1999 to the effect that the appellant had been picked up earlier by the police from his house on 22-12-1998 and as per the order sheet in C.P. No,1996 of 1998 he was shown to be arrested on 27- 1-1999. Learned counsel has submitted that in the circumstances the appellant should be acquitted of the charges against him.
23. As regards Special A.T.A. No,116 of 1999, learned counsel has submitted that the appellant Muhammad Saleem already stands acquitted in two other cases which related to F.I.R. No,365 of 1999 and F.I.R. 369 of 1998 under section 13-D of the Arms Ordinance and sections 3 and 5 of the Explosives Act and which are based on the same incident and hence in the third such F.I.R. Arising out of such incident no conviction should have been recorded by the learned trial Court.
24. On the other hand Mr. Habib Ahmed learned A.A.-G. Has fully supported the impugned judgment on the basis that the evidence on the record viz. Deposition of the witnesses to the recovery as well as that of the Investigating Officer were unexceptionable.
25. We have heard learned counsel as well as learned A.A.-G. And our conclusions are as follows:-- ' As far as Special A.T.A. No,115 of 1999 is concerned, it would be seen that the conviction was recorded on the basis of recovery in question which was witnessed by two independent witnesses.
So also the testimony of the complainant as regards such recovery has gone unrebutted. In our opinion the evidence adduced by the prosecution clearly establishes the guilt of the appellant/accused. We also find no infirmity in the judgment of the learned trial Court, which had discussed each and every aspect of the matter in detail including evidence produced by the prosecution and hence we find no reason to interfere with same. We would accordingly uphold the judgment and dismiss this appeal.
26. Similarly, as far as Special A.T.A. No,116 of 1999 is concerned we also find that the learned trial Court has come to the correct conclusion after appreciating the evidence on record which consists of independent witnesses to the recovery as well as the deposition of the complainant D.S.P.
Muhammad Aslam, which has not been shaken in cross-examination. As to the learned counsel's contention that in the connected matters the appellant Muhammad Saleem was acquitted, suffice it to say that F.I.R. 365 of 1998 was lodged under sections 353, 324 and 34, P.P.C. And have no relation to the F.I.R. In question which is under section 13(d) of the Arms Ordinance. The learned trial Court came to the conclusion that there was admittedly no evidence on the record to connect the appellant/accused as well as other accused with the offences in question and acquitted them under section 249-A, Cr.P.C. Similarly, in F.I.R. No,369 of 1998 the appellant/accused as well as other co-accused were acquitted due to lack of evidence. As stated above we have gone through the evidence on the record and find no reason to interfere with the conclusion arrived at by the learned trial Court. Hence, we would dismiss this appeal also.