1. The appellants through this criminal appeal have challenged the judgment dated 30-10-2001 passed by Additional Sessions Judge (East) Karachi in Sessions Case No,389 of 1999, whereby he awarded conviction under section 302(b), P.P.C. And sentenced them to undergo R.I. For life imprisonment and pay fine of Rs,20,000 each, as a compensation to be paid to the legal heirs of the deceased. The brief story of the case as per F.LR. Is that complainant Kamran Danish was residing in House No,2/42 Model Colony, Karachi alongwith his parents and was employee of Gul Ahmed Textile Mills.
2. On 7-7-1999 at about 8-00 a.m. He left for his job. At about 8-30 p.m. He received a telephone call of his mother for reaching at home. He came to his house where she told him that at about 8-00 p.m. Three young boys entered the house and asked about his father. His father Iftikharuddin and brother Abdul Rehman went to meet them. During conversation there was quarrel between him and the culprits, who opened fire with T.T. Pistols upon his father and brother due to which they sustained serious injuries. They were removed to hospital by his cousin Rasheed Mehmood but Abdul Rehman died on the way to hospital whereas his father died on reaching the hospital. In the meantime police received telephonic information and they reached at the vardat and recorded statement of complainant which was subsequently incorporated in section 154, Cr.P.C. Book. After registration of the case, the police took up investigation and ultimately arrested the present appellants. The challan was submitted against them to stand trial. The case was sent up and tried by Additional Sessions Judge East Karachi. Formal charge was framed on 8-11-1999, to which they pleaded not guilty and faced the trial.
3. The prosecution in its support examined P.W.1 Mst. Hassan Feroze Exh.6, P.W.2 Nadeem Iqbal Exh.8, P.W.3 Rashid Mahmood Exh.15, P.W.4 Kamran Danish Exh.16, P.W.5 Hassan Khan Exh.19, P.W.6 Shahabuddin Exh.21, P.W.7 Sualeheen Khan Exh.22, P.W. 8 Zahoor Ellahi Exh.24, P.W.9 Imdad Ali Exh.25, P.W.10 Muhammad Ayub Bhatti Exh.27, P.W.11 Karar Ahmed Abbasi Exh.28, P.W.12 Farid Ahmad Exh.29, P.W.13 S. Shoukat Ali Exh.30 and thereafter Deputy District Attorney closed the side of prosecution. After close of prosecution side, the statements of accused under section 342, Cr.P.C. Were recorded as Exhibits 32, 33 and 34. The accused/appellants denied the allegations levelled against them and stated that they are members of Islami Jamiat Talba and since their party was staging agitation against the regime of Nawaz Sharif, therefore, they were implicated in this false case on that account. Consequently the trial Court came to the conclusion that prosecution had proved its case against the accused beyond any reasonable doubt and awarded the sentence in terms stated above. I have heard Mr. Azizullah K. Shaikh learned counsel for appellants and Mr. Fazlur Rehman Awan learned counsel appearing for the State. It is argued by Mr. Azizullah K. Shaikh that complainant Kamran Danish is not an eye-witness of the case. He lodged the F.I.R. On the basis of information conveyed to him by his mother Mst. Hassan Afroze, whose statement under section 161, Cr.P.C. Was not recorded by the police. Her statement under section 164, Cr.P.C. Was recorded on 28-7-1999. She is wife of deceased Iftikharuddin and mother of deceased Abdul Rehman. No independent witness was examined by the prosecution.
4. P.W. Rashid Mahmood is nephew of deceased and he did not see the culprits. His evidence is only of corroboratory nature. P.W. Shahabuddin is also in same category. Mr. Azizullah K. Shaikh further emphasized that motive is after thought and nothing to that effect is stated in the case diaries. No evidence has been adduced by the prosecution in support of motive. Identification parade was defective as the accused were mixed up with 9 dummies only. The prosecution's case according to the eye-witness Hassan Aforze is that kicks and fist blows were caused to the deceased but the said fact has not been supported by the medical evidence. Some other persons were arrested under suspicion who were subsequently released by the police. The question of motive has not been put to appellants in their 342, Cr.P.C. Statements. The articles recovered from the vardat were not sent to expert nor expert's report is on record. He further argued that the articles viz. Empties, magazine and the blood-stained earth were taken from the vardat but no such expert's report has been brought on the record. Neither the sketch of vardat was prepared nor tapedar was examined by the prosecution. Reliance is placed upon the cases of Kaim and others v. The State PLD 1961 (W.P.) Kar. 728; Mehmood Ahmed and 3 others v. The State and another 1995 SCM R 127; Muhammad Ali alias Mamoon and 2 others v. The State 2000 PCr.LJ 774; Asghar Ali alias Sabah and others v. The State and others 1992 SCM R 2088 and Farman Ali v. The State 1997 SCM R 971. Mr. Fazlur Rehman Awan learned counsel appearing for State supported the impugned judgment.
5. He argued that the names of culprits were not mentioned in the F.I.R. The complainant was not an eye-witness of the case. No previous enmity has been suggested to the prosecution witnesses.
6. Eye-Witness Mst. Hassan Afroze had no reason to implicate the innocent persons and substitute them for the real culprits. He further submitted that the accused engaged a counsel while the statement under section 164, Cr.P.C. Of Mst. Hassan Afroze was being recorded by the Magistrate. It is argued that lady witness who is no doubt mother of one of the deceased and wife of another but she has correctly identified the appellants in the parade as well as in Court. The record reveals that P.W. Nadeem Iqbal was nephew of Professor Iftikharuddin. He was present at his house and received a telephonic message that his uncle and cousin have received bullet injures and they were taken to Liaquat National Hospital. He went there and came to know that they were removed to Jinnah Hospital where he went and found them dead. He also acted as one of the Mashirs of dead body.
7. P.W. Rashid Mahmood was also nephew of deceased Iftikharuddin. He heard gun-shot at his house and went running towards the house of his paternal uncle Iftikharuddin where he found his uncle and cousin in injured condition. He accompanied them to hospital. P.W.4 Kamran Danish is the complainant. He was on his duty in factory and was called to his house after the incident had taken place. He was informed about the incident by his mother and on the basis of which he got the F.I.R.
8. Registered. He also acted as mashirs of the place of incident and seizure of the articles from the vardat. Hassan Khan P.W.5 is the lecturer in the college of which deceased Iftikharuddin Danish was Principal. He did not know anything, about the incident. P.W. Shahabuddin was available in his house and came out on commotion. On reaching the house of Professor Iftikharuddin he found Iftikharuddin and Abdul Rehman in injured condition. He accompanied the injured to hospital. P.W.
9. Muhammad Saleheen was one of the Professor of the college. He did not know anything about the incident. Zahoor Ellahi P.W.8 was the duty officer at Police Station Model Colony when he received a telephonic message. He went to the vardat and recorded the statement of complainant Kamran Danish which was later on incorporated in 154 Cr.P.C. Book by sub-Inspector Abdul Qayyum. He prepared the Mashirnama of dead body and inquest report. Imdad Ali P.W.9 was the Mashir of arrest of the accused. Muhammad Ayub Bhatti P.W.10 Exh.27 was the Judicial Magistrate-XV District Karachi East before whom the 164 Cr.P.C. Statement of P.W Hassan Afroze was recorded and the identification parade of accused was held. Farid Ahmed Khan P.W.12 is Inspector of Crime Branch Karachi to whom the investigation was transferred but since the interim challan was already submitted, therefore he only filed final challan in the Court and verified the investigation papers. S. Shoukat Ali P.W.13 was the S.H.O. Of Police Station Model Colony who carried out investigation of the matter. The testimonies of all these witnesses are of corroboratory nature and they had not witnessed the incident. Their testimony establishes the place of incident, death of the deceased in a manner stated by the prosecution and corroborate the factum of incident in the house of deceased Iftikharuddin. However, the record shows that the entire prosecution story hinges upon the version of P.W. Mst.
10. Hassan Afroze who is wife of Professor Iftikharuddin Danishi and mother of deceased Abdul Rehman Danishi. She was the only eye-witness of this case. Incident of this case occurred on 7-7- 1999 at about 8 p.m. And the F.I.R. Was lodged on same night at about 10-15 hours by Kamran Danishi, the brother of deceased Abdul Rehman. The names of culprits were not mentioned in the F.I.R. But they were arrested during investigation and subsequently they were identified in parade by Mst. Hassan Afroze. Identification parade is not the requirement of any law but it is the rule of proprietary in order to secure the authenticity of the identification of real culprits. Certain principles have been laid down by the superior Courts for guidance and are to be followed, keeping in view the facts and circumstances of each case. The deposition of eye-witness Mst. Hassan Afroze shows that she had seen the culprits on the day of incident as well as one day prior to incident when they came there to recover funds from her husband. On the day of incident also they pointed their weapons to her restraining her not to disclose this incident to anybody. She deposed that the cause of murders was the recovery of funds. Her testimony is supported by Medical evidence. The arguments that the identification parade was defective, has no force as no such objection was raised by the defence before the Magistrate, although, the accused were represented by an Advocate when statement under section 164 Cr.P.C. Of Mst. Hassan Afroze was recorded. The deposition of Mst. Hassan Afroze reveals that she had talked to the culprits and that one of the culprits asked her to tell her husband that Mubeen and other students of her husband Iftikharuddin had come to meet him. Even in cross-examination no suggestion has been given by the learned Defence Counsel that the parade was not held. This fact gets support from the evidence of Judicial Magistrate XVth of District East, Karachi and the Investigating Officer Shoukat Ali. While her deposition was being recorded in the trial Court where the appellants/accused were present, she rightly identified them before the learned Sessions Judge by saying that they were the real culprits who committed the murder of her husband and son. The identification by an eye witness in the trial Court was of much importance which gets supports from other attending circumstances stated above and other pieces of evidence. The reliance is placed upon a case of Ali Muhammad and another v. The State and Ghulam Hussain v. The State 1985 SCM R 1834 wherein thier Lordships have observed as under:- "The only question of opportunity to identify at the spot and the capability to identify at the parade after a year. There is no hard and fast rule that delayed parade due to late arrest/discovery of the culprits is always to be rejected. It depends upon a host of circumstances including the type, witnesses and other factors. In this case they had seen the killing. The killers' features were fixed in their memory due to many reasons some of them have been recorded in the High Court judgement with which we agree on this point. Regarding the formalities at the identifying parade suffice it to observe that all necessary precautions were taken. So much so that the suspects did not raise any objection before the Magistrate prior to the parade. They thought that they had, in the arrangements made for the parade by the Magistrate, a chance of not being identified. It was only after the parade that protests were made. Similarly there is no hard and fast rule that even where sufficient number of under trials in the jail is not available, the parade cannot be conducted or that it should not be conducted at all or that if conducted it would be valueless. This also depends upon all the relevant features involved in the case. The delay per se, particularly where the accused are apprehended after a long time, would not prejudice the capability, if otherwise enough, of the eye- witnesses to identify the culprits. It is not uncommon that even fleeting glimpse of a person, specially placed in a position of immense importance would be revived in memory after long time, provided the bond of event and embedding in memory were of permanent character. In this case they were so. The point regarding failure of the eye-witnesses to utter same words at the time of pointing out a culprit at a parade, though of some importance is not of any inviolable right or rule.
11. That also depends upon the facts of each parade and the type of witnesses. In this case they were, as already indicated, highly responsible persons. They already stood committed in their statements recorded in the lawful proceedings that they were there in the parade so as to identify the culprits of this case, The description of the culprits in the previous statements of the witnesses in this case is the one which might be expected in a normal daylight dacoity. The discrepancies pointed out at the bar do not furnish enough reason for rejecting the identification. The parade in a case like the present one is only a test regarding a corroboratory factor. Otherwise the substantive evidence is the statement of the eye-witnesses and the identification done during the deposition at the trial. This evidence in the present case is enough for conviction independent of the availability of other equally valuable evidence."
12. It is true that her 161 Cr.P.C. Statement had not been recorded on the, day of incident and her 164 Cr.P.C. Statement was belated by three weeks but the gravity of the incident is such that she must have pondered over it for quite a sufficient time to take a tussle with the criminals or forego all this what happened to her. All this must have taken time to recoup the balance of mind. She had no reason to falsely implicate the appellants that is why the names of the culprits were not given in the F.I.R. Arguments to the effect that she had not pin-pointed the role of each culprit at the time of parade has no force as each one of them was equally responsible for causing the fires by which two innocent persons lost their lives. Some suspects were arrested but they were let off after they were found innocent. Expert report is not on record but the place of incident is proved as ample evidence has come on record in that regard. But otherwise, all these lapses on the part of Police do not discredit the testimony of P.W. Hassan Afroze. She is a natural witness and her presence in the house at the time of incident is not doubted. Her evidence is further corroborated by Medical evidence. Both the deceased sustained fire-arm injuries as deposed by her.
13. Since the appellants are young boys and it is their first sin therefore the trial Court has already taken lenient view and lesser punishment is awarded to them. The case-law cited by the learned counsel for appellants is distinguishable and has no relevance to the facts and circumstances of the instant case.
14. In the above circumstances, the impugned judgment does not call for any interference and the same is maintained. Criminal Appeal No,173 of 2001 stands dismissed.