Rehmat Hussain Jafferi, J.--This Judgment will dispose of Crl. Appeals Nos, 69, 71, 72, 73, 79 & 80 of 2001 and confirmation Case No, 10 of 2001 as they arise out of a common Judgment.
2. The present appeals are directed against the judgment dated 18.9.2001 passed by the Anti- Terrorism Court No, IV, Karachi in special cases Nos, 6 to 9 of 2001 (State v. Muzaffar Ali and others) arising out of F.I.R. No, 123/2000 of P.S. Baloch Colony and F.I.Rs, Nos, 225 to 227 of 2000 U/S 13(d), Pakistan Arms Ordinance of P.S. Mehmoodabad Karachi. Under the impugned judgment the learned judge convicted the appellants and sentenced them as under:-- (i)Appellant Muzaffar Ali to death for offence punishable under Sections 396, 34, PPC read with Section 7 of Anti-Terrorism Act, 1997 (hereinafter referred to as Act of 1997); (ii)Appellants Ali Muhammad, Arshad and Haji Manzoor to suffer imprisonment for life for offences punishable under Sections 396, 34, PPC read with Section 7 of Act 1997; (iii)All the appellants to suffer imprisonment for seven years for offense punishable under. Section 13 (d) of Pakistan Arms Ordinance, 1965; (iv)All the appellants were directed to pay fine of Rs, 50,000/- each or in default thereof to suffer simple imprisonment for one year more. The amount of fine if recovered should be paid to the legal heirs of the deceased as compensation under Section 544-A Cr.P.C.
3. The facts of the prosecution case as disclosed in the F.I.R. lodged by complainant Liaqat Ali are that on 13.12.2000 at about 4.45 p.m. the complainant was present in his house when his nephew Muhammad Umer who was working at his shop informed him on telephone that three boys appeared at the shop of deceased Hakim Ali. One of them entered the shop while the remaining two stayed outside the shop. The boy who entered the shop was armed with a pistol and he took money box on which the deceased Hakim Ali tried to resist but during the struggle the said boy opened fire upon the deceased Hakim Ali who after receiving the fire-arm injury fell down on the ground. The accused persons ran away after taking away the cash box containing Rs, 15,000 or 16,000/-. The complainant was further informed that PWs Muhammad Hussain, Muhammad Haneef, Liaqat Ali and Shoukat Ali witnessed the incident. Whereas PW Salim shifted the deceased to Jinnah hospital. On receiving the above information the complainant went to Jinnah hospital where he found his brother deceased Hakim Ali lying dead. The police arrived at the hospital where the statement of complainant was recorded.
4. The statement of the complainant was sent to .the police station Baloch Colony where it was incorporated in 154 Cr.P.C. book. P.W. 2 Abdul Aziz Khan received the copy of FIR for investigation. He contacted the complainant who told him that the shop would be opened on 16.12.2000. Therefore on the said date PW.2 inspected the place of incident and prepared its memo. He recorded the statements of witnesses. On 19.12.2000 at 4.00 p.m. the police arrested the appellant Manzoor under a memo. On 20.12.2000, the investigation officer arrested three appellants namely Ali Muhammad, Muzaffar and Arshad from C.I.A. center as CIA police arrested them in some other cases. They secured Pistols from the possession of appellants at the time of their arrest under a memo. The CIA Police registered three separate F.I.Rs, against the said appellants under Section 13(d) of Pakistan Arms Ordinance. On 23.12.2000, the appellants were -produced before a Magistrate for holding Identification Parade through the eye-witnesses. In the identification parade, P.W. Salim identified two appellants Muzaffer and Ali Muhammad, whereas other P.Ws. identified all the appellants. After completing the investigation, the appellants were challaned in the Court of Administrative Judge Anti-terrorism Courts Karachi. The case was transferred to the Anti-terrorism Court No, III but subsequently it was transferred to Anti-terrorism Court No, IV Karachi for disposal according to law.
5. On 26.3.2001 a charge under Sections 396, 109, 34, PPC read with Section 13 (d) of Pakistan Arms Ordinance and Section 7 of Act 1997 was framed against the appellants but they pleaded not guilty.
6. In support of the case the prosecution examined following 15 witnesses:
(i) P.W. 1 Complainant Liaqat Ali. He gave the same details of the incident as disclosed by him in the F.I.R. which facts are mentioned above. He also acted as mashir of place of incident.
(ii) P.W. 2, Amir Khan. He was inspector of police at Police Station Baloch Colony. On 13.12.2000 at 7.30 p.m. he received the copy of F.I.R. of this crime for investigation. He went to the place of incident but the shop of the deceased Hakim Ali was closed. He contacted with the complainant who told him that the shop would be opened on 16.12.2000. Therefore on the said date he went to the place of incident, prepared it's memo and recorded the statement of witnesses. On 20.12.2000, he arrested the appellants Muzaffar, Ali Muhammad, and Rashid from CIA center as they were already in custody in F.I.Rs, Nos, 225 to 227. Then the investigation was transferred to C.I.A. police.
(iii)P.W. 3 Muhammad Salim. He was an eye-witnesses and working in the shop with the deceased. On 13.12.2000 at 4.45 p.m. he and the deceased Hakim Ali were present in their chicken shop when two persons entered the shop. They were armed with pistols, therefore, he and deceased became confused and tried to run away from there. In doing so, the deceased collided with one of the culprits, therefore, the said culprit fell down on the ground. The said culprit directly fired from his pistol at the deceased, which hit him, and the deceased fell down on the ground. In the meanwhile, the other culprit took cash box, which was the drawer of the table and tried to decamp from there but the said drawer fell down from his hands. Then both the culprits ran away.
He could not see the culprits taking away the cash from the drawer but when he picked up the drawer, it was lying empty. Thereafter he took deceased Hakim Ali to Taqi hospital which was situated in Administrative Society near the shop. But the doctor refused to entertain the deceased and then he shifted the deceased to Jinnah hospital but on the way the deceased succumbed to the injuries. On 26.12.2000, he picked out appellant Muzaffer in the identification test to be the culprit who fired at the deceased and appellant Ali Muhammad to be the culprit who picked up cash box.
(iv)P.W.4 Muhammad Haneef. He was also working at the chicken shop of the deceased Hakim Ali and an eye-witness. On 13.12.2000, at about 4.45 p.m. he, P.Ws Hakim Ali, Liaqat Ali, Salim and Shoukat Ali were present in the shop when four culprits armed with pistols entered the shop. Out of them two culprits pointed out, their pistols towards Hakim Ali and Salim whereas their third companion took out the cash drawer but the deceased resisted. Therefore, one of the culprits directly fired a shot from his pistol at the deceased. The deceased after receiving the injury fell down on the ground and then the culprits ran away. Because of the confusion and fear he could not see whether the culprits had taken away the cash drawer or not. In the cross-examination, he admitted that the fire-arm shot was fired at the deceased from outside the shop. No identification test was held for identifying the culprits through this witness.
(v)P.W. 5 Lia gat Ali. He was also one of the labourers working at the chicken shop of the deceased and an eye-witness. On 13.12.2000 at about 4:45 or 5:00 p.m., he, deceased Hakim Ali, P.Ws Salim, Shoukat, and Haneef were present in the shop when four culprits entered the shop. Out of them two culprits went towards the deceased Hakim Ali. From his counter, they attempted to take the cash box on which the deceased resisted and stood up. But one of the culprits fired at the deceased which hit him and he fell down on the ground. Thereafter all the culprits ran away. He identified all the present appellants to be culprits in the identification test held before the Magistrate. In the Court, he picked up appellant Muzaffer to be the person who fired at the deceased. But did not pick up any other appellant to be the person who picked up cash box/drawer. In the cross-examination, he stated that the identification test of all the appellants were held separately but the dummies were same which were mixed up with the appellants at the time of their identification tests. He further admitted that the investigation officer had produce the appellants in Court and that he alongwith the witnesses, investigation officer and appellants was waiting in the Court before identification test.
(vi) P.W.6 Erum Jehangir. She was Judicial Magistrate before whom the identification tests of the appellants were held. On 26.12.2000, the police produced all the four appellants before her for identifying the appellants through the witnesses Muhammad Salim, Shoukat Ali and Liaqat Ali.
Separate identification test for each appellant was held in which all the three P.Ws were called separately but the dummies mixed up with the appellants were same in all the four identification tests. First, the identification test of appellant Manzoor was held through all the three P.Ws. Then the identification test of appellant Muzaffer was held, and then of appellants Arshad and Ali Muhammad. The P.Ws. Salim identified only two appellants Muzaffer and Ali Muhammad. The other two witnesses identified all the four appellants. She also recorded the statements under Section 164 Cr.P.C. of the P.Ws Muhammad Salim, Liaqat Ali, Shoukat Ali and Muhammad Haneef. The appellants raised objection before her that the witnesses had seen them at the police station.
(vii) P.W.7 Dr. Abdul Rashid. He conducted the postmortem examination of the dead body of the deceased Hakim Ali and found the following injury :-- A punctured lacerated wound 5 cm x 0.5 cm in diameter with inverted margins over the left mid axillary line caused by firearm weapon. (Wound of entry) There was blackening around the injury.
Bullet projectile part was recovered from the right axillary line, which was sealed. The doctor opined that the deceased died instantaneously because of the injury and the time between death and postmortem was three to five hours.
(viii) P.W. 8 Naseem Ahmed. He acted as mashir of the inspection of dead body and inquest report.
(ix)P.W 9 Shoukat Ali. He was also one of Labourers of the deceased Hakim Ali, working at his chicken shop and an eyewitness. On 13.12.2000, he, deceased, P.Ws Salim, Liakat Ali and Haneef were present in the shop when at about 4:50 p.m. two armed culprits entered the shop. One culprit slapped him on his face whereas other two culprits were standing at the door of the shop. The culprits who came inside the shop took the cash box on which the deceased resisted but one of the culprits fired at the deceased which hit him and he fell down on the ground. Then the culprits took away the cash box and ran away. He cashed the culprits but could not succeed in apprehending them. P.W. Salim took the deceased in injured condition to hospital in a car. On 26.12.2000, the picked out all the appellants to be the culprits in identification tests held before a Magistrate. In the Court, he identified the appellant Muzaffer to be the person who slapped him and caused firearm injury to be the deceased and the appellant Ali Muhammad to the person who took the cash box.
(x) P.W.10 Zahoor Khan. He acted as mashir of the arrest of the appellant Manzoor.
(xi) P.W. 11 Muhammad Aslam Sub-inspector of police. He was informed that the deceased was shifted to hospital therefore he went there and prepared the memo of inspection of dead body and inquest report.
(xii) P.W. 12 Muhammad Ahmed Khan, Head Constable of CIA Police. On 28.12.2000, he acted as mashir of the arrest of appellants Ali Muhammad, Muzaffer, Arshad, and recovery of unlicenced pistols from their possession.
(xiii) P.W.13 Iqbal Mehmood ASI of Police Station Mehmoodabad. He recorded the F.I.Rs under Section 13 (d) of Pakistan Arms Ordinance against the appellants, Ali Muhammad, Muzaffer and Arshad.
(xiv) P.W. 14 Muhammad Azam Rana, SIP CIA centre Malir. He arrested the appellants Ali Muhammad, Muzaffar and Arshad and secured unlicenced pistols from their possession in presence of mashirs under a memo.
(xv) P.W. 15 Muhammad Aftab Khan investigation officer. He gave the details of the investigation.
7. The appellants in their statements recorded under Section 342 Cr.P.C. denied all the allegations of the prosecution. They claimed that they were shown to the witnesses before the identification tests. The appellant Muzaffer in his further statement stated that the police had demanded Rs, 15,000/- for his release, which he could not pay. The police arrested him from his house and pistol was foisted upon him. His brother moved an application before the Home Secretary for his illegal detention. The appellant Ali Muhammad in his further statement stated that on 13.12.2000 the police arrested him from the premises of Malir Court. He was maltreated and his photo appeared in the newspapers. Appellant Arshad and Manzoor in their further statements stated that they were falsely involved in this case.
8. The appellants examined themselves on oath but did not examine any witness in their defense except appellant Muzaffer. He examined his brother Muhammad Iqbal. His evidence reveals that on 10.12.2000 at 5:00 p.m. the police arrested the appellant from his house. On his inquiries, the police informed him that appellants Muzaffar was required in a case, therefore, they were taking him for investigation purpose. On the next day he went to see his brother at CIA Center but the police demanded Rs, 50,000/- for the release of his brother which he could not pay. Therefore, on 12.12.2000 he moved an application before the Home Secretary about the illegal detention of the appellant Muzaffer. All the appellants examined themselves on oath. They deposed the same facts as disclosed by them in their further statements.
9. After considering the material available on the record and hearing the parties counsel, the learned trial Judge convicted the appellants as mentioned above under the impugned Judgment.
The appellants were dissatisfied with the said Judgment; therefore, they have preferred the present appeals. The trial Court had awarded the death sentence to appellant Muzaffar Ali, therefore, reference under Section 374, Cr.P.C. has been sent for confirmation of death sentence.
10. We have heard the advocates for the appellants, complainant, Assistant Advocate General and perused the record of this case very carefully.
11. The learned advocate for the appellants Muzaffer and Ali Muhammad has stated that the prosecution case is based upon ocular testimony and identification test; that the ocular testimony consists of four witnesses out of them the name of P.W. Salim is not mentioned in the F.I.R., therefore, his presence at the place and time of incident is highly doubtful; that his statement under Section 161, Cr.P.C. was recorded after three days of the incident which adversely reflected upon the presence of the P.W. Salim at the place of incident. He has further stated that all the eyewitnesses have given different version of the incident, the number of culprits and the role played by them; that their statements are contradictory to each other on material points. As regards the identification tests. He has stated that the witnesses had seen the appellants at the CIA center; that the witnesses, investigation officer, and appellants were sitting together in the Court before the identification test; that for each appellant the Magistrate held separate identification test but in all the said tests the dummies were same; that the mixing of same dummies with the appellants in each test has destroyed the identification tests, therefore, the said tests are of no consequence.
12. The learned advocate for the appellant Arshad has adopted the arguments of the learned advocate for the appellants Muzaffar and Ali Muhammad. He further stated that the trial Court convicted the appellants under Section 396, PPC but the said provision of law is not applicable because this is not a case of dacoity but it is a case of robbery therefore the conviction of the appellants under Section 396, PPC is illegal. He has further stated that the private witnesses were available and one of them had helped P.W. Salim in taking the deceased to hospital but he has not been examined in the case; and that the appellant Arshed was not identified by P.W. Salim in the identification test.
13. The learned advocate for the appellant Manzoor has also adopted the above arguments and further added that P.Ws Salim, Haneef and Shoukat have not implicated the appellant Manzoor.
14. On the other hand the learned Assistant Advocate General has stated that there are two types of witnesses, (i) the witnesses whose names are shown in the F.I.R. (2) the witnesses whose names are not shown in the F.I.R.; that the complainant was not an eye-witness but he gave the details of the incident as disclosed to him by P.W. Umer but the said P.W. has not been examined, therefore, the statement of complainant about the above facts can be overlooked being hearsay. He has further stated that the chicken shop of the deceased had two shutters, therefore, the discrepancies with regard to the number of assailants and their role assigned by the witnesses have occurred; that all the witnesses are unanimous that the appellant Muzaffer had fired from his pistol at the deceased which hit him; that their evidence is supported and corroborated by the identification tests in which the witnesses had identified all the appellants; that the lacuna in the identification tests is not serious therefore the identification test can be relied upon. He has conceded that the trial Court has wrongly applied Section 396, PPC in this case, as this is the case of robbery and not the case of dacoity. He has further stated that the ocular testimony is corroborated by identification tests therefore it is sufficient to convict the appellants. He has supported the impugned judgment.
15. The learned advocate for the complainant has adopted the arguments of learned Assistant Advocate General.
16. We have given due consideration to the arguments and have gone through the evidence very carefully. We found that the prosecution case rests upon two pieces of evidence, which are (1) ocular testimony (2) identification test.
17. First, we will take up the ocular testimony, which consists of four eye-witnesses namely P.Ws Salim, Haneef, Liaqat and Shoukat Ali. A summary of their evidence has already been given in the earlier part of the judgment.
18. From the evidence of P.W. Salim it is clear that he saw only two appellants inside the shop out of them he assigned the role of causing firearm injury to the deceased to the appellant Muzaffer and the role of taking away cash box has been assigned to appellant Ali Muhammad. He saw two appellants running away from the place of incident. He did not speak about the presence of any other witness at the place and time of the incident rather he has excluded their presence at that particular time. He was silent on the said point. However in the cross-examination he admitted that he had stated in his 161, Cr.P.C. statement that the incident was witnessed by P.Ws Muhammad Haneef, Liaqat Ali and Shoukat Ali and that one of the P.Ws Ghulam Hussain was sleeping at that time. He also admitted in the cross-examination that he had stated in his statement under Section 161 Cr.P.C. that three culprits came there out of them two were identified by him. Thus from his above admissions in the cross-examination it is clear that the version given by the P.W. Salim before the Court is quite different from the version given by him in his 161, Cr.P.C. statement. The witness has changed the number of the culprits from 3 to 2 and omitted to show the presence of other witnesses at the place and time of incident though he showed their presence in his statement recorded under Section 161 Cr.P.C.
19. Furthermore, the police recorded his statement after three days of the incident viz on 6.12.2000.
The said fact has been admitted by not only the P.W. Salim himself but P.W.
2. Sub-inspector Amir Khan Niazi. P.W.
2. Stated that as he did not know the addresses or faces of the witnesses, therefore, he did not record their statements earlier. He could have ascertained the addresses of the witnesses from the complainant. He had contacted him who told the P.W. 2 that shop would be opened on 16.12.2000. Be that as it may, the delay in recording his statement after three days of the incident has put us on guards to scrutinize his evidence carefully. His evidence is in conflict with the initial story as disclosed in the F.I.R. in which the numbers of assailants were shown as three. The said fact has been confirmed by this witness himself in his statement recorded under Section 161, Cr.P.C. in which he admitted that the culprits were three. No explanation or reasons have been assigned by this witness about changing the number of assailants. The P.W. Shoukat has given the number of assailants as four. As according to him two assailants armed with pistols entered the shop. Out of them one culprit had slapped him on his face and other two culprits were standing at the door of the shop. The remaining two P.Ws also gave the number of assailants as four. Thus, there is conflict between the witnesses on the point of number of assailants.
20. As regards the incident itself. The case set up by the P.W. Salim is that when two culprits entered the shop armed with pistols they became confused therefore Hakim Ali tried to run away but he collided with one of the culprits who fell down on the ground and then the said culprit directly fired at the deceased which hit him and in the meanwhile the second culprit took the cash box and then they ran away. P.W. Muhammad Haneef tells the incident differently by stating that four culprits armed with pistols entered the shop. Out of them, two went towards the deceased and P.W. Salim.
Whereas one of them pointed out pistol at them and the fourth culprit remained outside the shop.
One of the culprits who went towards the deceased and P.W. Salim took out cash drawer whereupon deceased Hakim Ali grappled with the second culprit who fired from his pistol at the deceased which hit him. Then the culprits ran away. In the cross-examination, he admitted that the pistol shot was fired from outside the shop. Whereas the statement of P.W. Liagat Ali shows that four armed, culprits entered the shop. Out of them two culprits caught hold of the deceased from his collar and snatched the cash box on which the deceased resisted and stood up. Then one of the culprits fired at the deceased and then the four culprits ran away. The P.W. Shoukat has given a completely different version in his statement by disclosing that two armed culprits entered the shop. One culprit slapped him on his face two other culprits remained at the door of the shop. The two culprits who came inside the shop took the cash box on which the deceased resisted. But, one of the culprits fired at the deceased, which hit him. Then the culprits ran away alongwith the cash box. In the cross-examination, he admitted that he had stated in his 164, Cr.P.C. statement that he had heard the fire-arm reports but had not seen anybody firing. Thus, the statement of all the four witnesses are different from each other. In such a situation. It is not known as to who is speaking truth and on whose statement one should rely upon. This by itself is sufficient to create a doubt and dent in the prosecution story therefore every doubt is to be resoled in favour of the appellants.
21. Now we will take up the identification test of the appellants through P.Ws Salim, Liagat and Shoukat Ali. In order to prove this point the prosecution examined Judicial Magistrate Erum Jahangir and above named three P.Ws. A summary of their evidence has been given in the earlier part of the Judgment.
22. From the evidence of P.Ws., it is clear that the Judicial Magistrate mixed up the same dummies in all the identification tests. The learned advocates for the appellants have seriously objected over this procedure of identification tests. According to them when the same dummies are mixed with each appellant then, it will be for the witnesses to pick out a new face appearing in the line of the dummies in each test. The arguments have some force.
23. P.W. Liagat in his cross-examination stated that he alongwith the remaining P.Ws directly went to the Court. At the gate of city Courts. the SIP met them who brought the appellants in his transport. He further stated that they alongwith the appellants and 1.0 came to the Court at the same time; that he, other P.Ws. investigation officer and appellants were waiting together before they were called in the courtroom and that when the appellants were produced at that time their faces were muffled.
24. The possibility of seeing the culprits when the police brought the appellants in the Court in their vehicle or when the witnesses, I.O. and appellants were sitting together before the identification test, cannot be ruled out. The appellants in their statements recorded under Section 342 Cr.P.C. have stated that the witnesses had seen them at C.I.A. Centre. They complained the above fact to the Magistrate at the time of identification test, which has been confirmed by the Magistrate in his statement. However there is nothing on record to prove the above allegation. But the possibility of seeing the culprits in the Court premises cannot be ruled out in the circumstance of the present case.
25. After considering the material available on the record, we are of the considered view that the prosecution have failed to prove the identification tests of the appellant beyond any reasonable doubt.
26. It the identification tests are taken out of consideration then we are left with the ocular testimony of four eye-witnesses. The ocular testimony is full of contradictions about the number of the culprits, manner in which the incident took place. However from the ocular evidence it can be said that the incident had taken place in which the deceased had received fire-arm injury and died on account of the said injury and that an attempt was made to rob the deceased. But who committed this incident? The prosecution have not proved the said fact beyond any reasonable doubt. It is well-settled principle of law that a single doubts appearing in the evidence is enough to acquit the accused. Reliance is placed on the case of Tariq Bashir v. State, P.L.D. 1995 Supreme Court page 34.
27. As regards the allegation of recovery of unlicenced arms from the possession of appellants Muzaffer Ali, Ali Muhammad and Arshad Ali, suffice is to say that offence under Section 13(d), Pakistan Arms Ordinance is triable by Anti-Terrorism Court if it has been committed conjointly with the offence triable by the said Court.
28. In this case, the incident took place on 13.12.2000. The appellants were arrested on 20.12.2000.
No empties were secured from the place of incident. As such the weapons secured from the possession of the appellants have not been connected with the commission of this crime. The prosecution also did not lead any evidence connecting the said weapons with this crime. Thus, the offence of 13(d), Pakistan Arms Ordinance was not committed conjointly with the offence of this case, therefore, the Anti-Terrorism Court had no jurisdiction to try these cases.
29. In the light of what has been stated above the case of the prosecution is highly doubtful against the appellants therefore they are entitled for the benefit of doubt, which is accordingly given to them. Consequently, the convictions and sentences awarded to the appellants under the impugned judgment are set aside. The appellants are acquitted and set at liberty in Appeals Nos, 69,72 and 73 of 2001. They should be released forthwith if not required in any other custody case.
Whereas the cases of Appeals Nos, 79, 80 and 71 of 2001 are remanded to trial Court for transferring them to the Courts of competent jurisdiction. The appeals are allowed in the above terms. The confirmation Case No, 10 of 2001 is dismissed.