HIGH COURT OF SINDH AT KARACHI
Special
Criminal Anti-Terrorism Appeal No.23 of 2010
Criminal
Reference No.08 of 2010
Present: Sajjad Ali Shah, J.
Naimatullah
Phuploto, J.
Appellants: Kamran and Farhan Ahmad Hashmi through Mr. Abdul
Razzak, Advocate.
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Respondent: The State through Mr. Khadim Hussain Khoonharo,
Deputy Prosecutor General Sindh.
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Date of
hearing: 23.01.2013
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JUDGMENT
Naimatullah Phulpoto, J.-- Appellants
Kamran and Farhan Ahmad Hashmi
were tried by the learned Anti-Terrorism Court No.1, Karachi Division in
Special Case No.45/2006 under sections 302/34 PPC read with section 7(a) of the
Anti-Terrorism Act 1997. Learned Anti-Terrorism Court convicted both the
Appellants under sections 302/34 PPC read with section 7(a) of the Anti-Terrorism
Act 1997 and sentenced each of them to death, both were ordered to be hanged by
neck till they are dead. Fine of Rs.100,000/- was also
imposed upon the appellants out of which Rs.50,000/- were ordered to be paid to
the legal heirs of deceased PC Muhammad Ashraf. Reference of confirmation of
death was also made by the trial Court to this Court. By this single judgment
we will dispose of the same.
2. Brief
facts of the case as disclosed in the FIR are that on 30.06.2006 information
was received through police control at P.S. Shahrah-e-Faisal
from Dr. Hassan of Liaquat National Hospital that
dead body of P.C. Muhammad Ashraf has been brought in the hospital having
sustained fire arm injuries, on such information ASI
Ghulam Mustafa Shar made entry No.18 in the relevant
record and proceeded to Liaquat National Hospital where
he came to know that dead body of P.C. Muhammad Ashraf was lying in the
emergency ward. Dead body was examined and inquest report under section 174
Cr.PC was prepared. An application was moved to the Medical Officer for
issuance of a certificate showing the cause of death. It is further stated that
Medical Officer concerned sent the dead body to the M.L.O. Jinnah Hospital
where dead body was examined, such certificate/report
was issued. It transpired that deceased died of fire arm injury at his head. It
is further stated in the FIR that P.C. Muhammad Ashraf was riding official
motorcycle No.HM-1826, to attend the duty. At about 1315 hours, when deceased
reached near Rashid Minhas Road, opposite COD Gate,
some unknown culprits fired upon him with intention to kill and fire hit him at
his head and he succumbed to the injuries. After registration of FIR vide Crime
No.363/2006 under section 302/34 PPC read with section 7(a) of the Anti-Terrorism
Act 1997, it was entrusted to SIP Sajjad Ali for investigation. He inspected
the place of wardat in presence of mashirs on 30.06.2006, secured one empty of
30 bore pistol, collected blood stained earth and Honda motorcycle No.HM-1826
of the deceased. SIP Sajjad Ali recorded 161 Cr.PC statements of the PWs and
got prepared sketches of accused through eye witness Tariq Mehmood son of Abdul
Karim on 20.10.2006.
3. Investigation
officer received information from P.S. C.I.D. Napier that appellant Kamran has
been arrested in Crime No.190/2006 under sections 353/324/34 PPC. During
interrogation by the police, appellant Kamran has admitted his guilt about the
murder of P.C. Muhammad Ashraf. On such information, SIP Sajjad Ali proceeded
to P.S. C.I.D. Napier and interrogated appellant Kamran. He admitted his guilt
about the commission of the present offence alongwith appellant No.2 Farhan Ahmad Hashmi. On such admission/disclosure SIP Sajjad Ali
arrested appellant Kamran in the present crime on 20.10.2006 and on his
pointation appellant No.2 Farhan
Ahmad Hashmi was arrested on 28.10.2006 and one 30
bore pistol with magazine was recovered from his possession for which he had no
license. Mashirnama of arrest and recovery was prepared,
accused was brought to the police station where FIR No.639/2006
under section 13(d) of the Arms Ordinance 1965 was registered against accused Farhan Ahmad Hashmi at P.S. Shahrah-e-Faisal. During investigation both the appellants were
put to identification parade conducted by the Civil Judge and Judicial
Magistrate concerned through eye witness Tariq Mehmood. In the identification
parade held on 02.11.2006 and 18.11.2006, eye witness Tariq Mehmood identified
both the appellants. Arms recovered from both the appellants were sent to the
Ballistic Expert for report. Blood stained earth and clothes of the deceased
were dispatched to the Chemical Examiner for report. During investigation
postmortem report was also received. On completion of investigation,
investigation officer submitted challan against the appellants.
4. Charge
against the appellants Kamran and Farhan was framed
by learned Judge Anti-Terrorism Court No.1, Karachi Division at Ex-20 under
above referred sections. Both the appellants met the charge with denial and
claimed to be tried.
5. In
order to substantiate the charge, prosecution examined the following witnesses:
1)
PW-1 Ghulam Mustafa.
2)
PW-2 Muhammad Kamran Khan
3)
PW-3 Muhammad Siddiq.
4)
PW-4 Muhammad Aslam
5)
PW-5 Abdul Sattar
6)
PW-6 Allah Bachayo
7)
PW-7 Tariq Mehmood
8)
PW-8 Syed Farhat
Abbas.
9)
PW-9 Sajjad Ali
6. The
statements of the appellants were recorded under section 342 Cr.PC in which
both the appellants have denied the prosecution allegations and pleaded innocence.
Appellants have denied the recovery of the crime weapons used in commission of
offence and raised plea that the same have been foisted upon them. Appellant
Kamran denied that on his pointation co-accused Farhan
was arrested. Regarding identification parade, plea has been raised by appellant
Kamran that witness had already seen him in the police lockup and he made such
complaint to the concerned Civil Judge and Judicial Magistrate. While replying
to the question as to why PWs have deposed against him, he replied that PW
Tariq Mehmood is tout of police that’s why he has deposed against him. He has
further raised plea that police has involved him in this case to show the
efficiency to superiors.
7. Appellant
Farhan Ahmad Hashmi has
also pleaded innocence and stated that he was in the custody of C.I.D. police since
14.10.2006, he has no concern whatsoever with the murder of P.C. Muhammad
Ashraf. It is further stated that his statement is same as that of co-accused
Kamran.
8. Learned
trial Court after hearing the learned counsel for the parties and after
assessment of the evidence, recorded conviction against the appellants as
mentioned above.
9. Mr. Abdul Razzak,
learned Advocate for the appellants contended that incident had not occurred in
the manner as setup by the prosecution. Incident was unwitnessed.
PW Tariq Mehmood was setup eye witness of the
incident. He had not given probable cause of his presence at the place of
incident at relevant time. Investigation officer of the case has prepared
sketch of the place of wardat in absence of eye witness Tariq Mehmood. Both
appellants were in police custody since 14.06.2006 and they have been falsely
implicated in this case. Piece of identification parade has been seriously
questioned by the defence counsel and it is argued that Civil Judge and
Judicial Magistrate had not held the identification parade as prescribed in the
Federal Capital and Sindh Courts Criminal Circulars. The full particulars of
dummies have not been mentioned. PW Tariq Mehmood had already seen the
appellants in the custody. It is also submitted that the signature of the eye
witness Tariq Mehmood has not been obtained by the Civil Judge and Judicial
Magistrate on the memo of identification parade thus it looses
its sanctity. There was inordinate delay
in sending of 30 bore pistol recovered from appellant Farhan
and empty to expert for report. It is submitted that report of the ballistic
expert has been managed. Lastly it is submitted that the prosecution case is
highly doubtful.
10. Mr. Khadim
Hussain Khoonharo, Deputy Prosecutor General Sindh
argued that in this case eye witness of the incident, namely, Tariq Mehmood has
given probable cause of his presence at the place of occurrence. PW Tariq
Mehmood had taken the dead body of the deceased to the Liaquat
National Hospital on 30.06.2006 at 01:45 p.m. as is evident from basic
investigation slip, which has been placed on record as Ex-7/E. It is also
argued that pistol 30 bore recovered from the appellant Farhan
and empty bullet were sent to the ballistic expert, the report is positive. Ocular
evidence is fully corroborated by medical evidence. Learned D.P.G. argued that
trial court has discussed each and every piece of evidence in detail and
properly appreciated evidence and recorded conviction. It is submitted that
appellants by such act created terror and sense of insecurity in police and
deserve no leniency at all.
11. Record
reflects that in this case eye witness Tariq Mehmood has categorically stated
that on 30.06.2006 at 01:15 p.m. he was going from Drig
Road and was passing from the bridge, he saw that one person while riding on
white motorcycle and another motorcycle of black colour on which two persons
were following him. A boy who was sitting on back seat of black coloured motorcycle took
out his pistol and fired upon a person sitting on white motorcycle, fire hit
him and he fell down. The
culprits drove away. In the meanwhile, one taxi car appeared, he and taxi
driver took the injured in the taxi to the Liaquat
National Hospital. Taxi driver left the injured in the hospital and went away
and he attended the injured by disclosing his name and address. Later on, PW
Tariq Mehmood came to know that deceased was police constable, police came to
his house in the evening and he narrated the facts to the police and claimed to
identify the culprits if brought before him. Police recorded his statement. On
01.11.2006, he received notice to identify the accused in the Court. On
02.11.2006 he identified appellant Farhan Ahmad Hashmi, who fired upon deceased PC Muhammad Ashraf. On
18.11.2006 he identified accused Kamran, who was driving the motorcycle at the
time of incident. In the cross-examination he has denied the suggestions that
he had not witnesses the incident.
11. Syed
Farhat Abbas, Medical Officer, J.P.M.C., Karachi has
produced postmortem report of deceased P.C. Muhammad Ashraf, being well
conversant with the signatures and handwriting of Dr. Abdul Hameed Jumani, Ex-M.L.O., J.P.M.C., Karachi. The deceased had received surface wound
injuries as under:
(i)
Penetrated wound 0.5 c.m. in diameter,
inverted margin over right occipital region of skull. No cheering, blackening
and tattooing seen (wound of entry)
(ii)
Lacerated wound 1.5 c.m. in diameter,
everted margin over right check near right nasal of nose.
(iii)
Abrain right forearm 3 c.m. x 6 c.m.
(iv)
Abrain right shoulder 6 c.m. x 2 c.m.
(v)
Abrain right lower leg 4 c.m. x 4 c.m.
12. Cause
of death has been shown cardio respiratory failure due to head injury resulting
from discharge of firearm. Evidence of Medical Officer went unchallenged and unrebutted in the cross-examination, with regard to weapon
used, which clearly shows that unnatural death of deceased is not disputed.
13. P.W. Ghulam Mustafa had received information of the
incident on control that dead body of P.C. Muhammad Ashraf was lying in Liaquat National
Hospital, he proceeded there and got postmortem examination of the deceased. He
has also produced prescription and basic investigation slip, which showed that
dead body of P.C. Muhammad Ashraf was brought in the
hospital on 30.06.2006 at 01:45 p.m. by one Tariq Mehmood in the hospital.
There is no cross-examination of the defence on such prescription, which is
produced in the evidence, which proves that dead body was brought by eye
witness Tariq Mehmood in the Liaquat
National Hospital.
14. Piece
of identification parade is very much essential in this case as FIR was lodged
against unknown persons. Mr. Allah Bachayo, Civil
Judge and Judicial Magistrate has deposed that on 02.11.2006 SIP Sajjad Ali of
Investigation Wing of P.S. Shahrah-e-Faisal produced
before him appellants Kamran and Farham Ahmad Hashmi to hold identification parade in Crime No.363/2006 of P.S. Shahrah-e-Faisal
under section 302/34 PPC through PW Tariq Mehmood. Learned Judicial Magistrate
held identification parade through PW Tariq Mehmood, who rightly identified
accused Farham Ahmad Hashmi.
Learned Magistrate refused to hold identification parade of appellant Kamran as
he was wearing dirty clothes. Against the order of the Judicial Magistrate Revision
was filed, which was allowed by the learned Additional Sessions Judge and he
held identification parade on 18.11.2006 in which appellant Kamran was
identified by PW Tariq Mehmood and he was sent to the jail. The manner in which
the identification parade has been held/supervised by
the learned Judicial Magistrate clearly shows that all possible precautionary
measures were taken by him and it was held by observing the guidelines given by
the Superior Courts from time to time. Despite lengthy cross-examination
nothing substantial or adverse to the prosecution came on record.
15. Sajjad
Ali, investigation officer received FIR of Crime No.363/2006
under section 302/34 PPC read with section 7(a) of
the Anti-Terrorism Act registered at P.S. Shahrah-e-Faisal
alongwith memo of inspection of dead body. He issued letter to the M.L.O.,
J.P.M.C., Karachi, got the dead body, sealed the clothes of the deceased,
inspected the place of wardat in presence of mashirs, took photographs of the
place of wardat, recovered one used bullet of 30 bore pistol and collected
blood stained earth from the place of wardat and secured motorcycle of the deceased
from the place wardat, prepared mashirnama of recovery in presence of the
mashirs, recorded statements of PWs under section 161 Cr.PC, including eye
witness Tariq Mehmood on same day. On 01.07.2006 got
sketches of the culprits prepared with the assistance of PW Tariq Mehmood and
received postmortem report on 12.09.2006. On 20.09.2006 he received information
from P.S. Napier that culprit namely Kamran has been arrested in Crime
No.190/2006 under section 353/324/34 PPC and during investigation he has admitted
the murder of the deceased of this case. On such information, investigation
officer has deposed that he proceeded to the C.I.D. P.S. Napier and arrested appellant
Kamran in this case. Appellant Farhan Ahmad Hashmi was arrested on the pointation of appellant Kamran
and he had recovered pistol alongwith three live bullets from the fold of Farhan Ali Hashmi at the time of
his arrest in presence of mashirs and lodged FIR under section 13(d) Arms
Ordinance against him on behalf of the State. He produced both the accused
before the Judicial Magistrate, Karachi West for identification parade. In the
identification parade held on 02.11.2006 appellant Farhan
Ahmad Hashmi was identified by PW Tariq Mehmood in court premises whereas identification parade of
accused Kamran was not held as he was wearing dirty clothes. On 18.11.2006
identification parade of accused Kamran was held in Central Jail Karachi in
which he was identified by PW Tariq Mehmood. Despite lengthy cross-examination
nothing favourable to the accused has been brought on
record. Investigation officer has denied the suggestion that he had provided an
opportunity to PW Tariq to see the accused before the identification parade. IO
has also denied the suggestion that PW Tariq Mehmood
had seen the photographs of the accused before the identification parade. He
has also denied the suggestion that PW Tariq is police tout.
16. We
have scrutinized/scanned the entire evidence brought on record. The presence of
PW Tariq Mehmood at the time of incident is established, the same is supported by
the prescription/basic investigation slip of Liaquat
National Hospital produced in evidence at Ex-7/E, which shows that dead body
was brought in the hospital by PW Tariq Mehmood. Version of PW Tariq Mehmood
that he had seen the accused persons on the motorcycle, who
followed the deceased and appellant Farhan Ahmad Hashmi fired fatal shot at the head of the deceased is
corroborated by the medical evidence. Absolutely nothing has been brought on
record to show any enmity of PW Tariq Mehmood with the present appellants. PW
Tariq Mehmood is independent witness of the incident, mere plea of the appellants
that PW Tariq was police tout, is not sufficient to discard his trustworthy evidence.
It is absolutely unbelievable that an independent person like Tariq Mehmood would depose falsely against the appellants in the
case which carries capital punishment. This Court is satisfied that PW Tariq Mehmood had taken the injured to the hospital on
humanitarian grounds so that life of deceased could be saved. We have no reason
to disbelieve such natural and trustworthy evidence of PW Tariq Mehmood, who
had absolutely no motive to falsely implicate the appellants in this case. Moreover,
nothing is brought out in cross-examination to indicate that PW Tariq Mehmood was interested in prosecution case or inimically
deposed towards the appellants and the contradictions referred to in evidence
were too insignificant to be taken notice of same. Identification parade has
been held in this case by the learned Civil Judge and Judicial Magistrate by
taking all the precautionary measures. On 02.11.2006 Magistrate refused to
conduct/supervise the identification parade of appellant Kamran as he was
wearing dirty clothes, he thought unfair to hold identification parade on that
date. However, on same date (02.11.2006) appellant Farhan
Ahmad Hashmi was identified by eye-witness Tariq Mehmood in the identification parade. Thereafter, in the
identification parade, held on 18.11.2006 at Central Prison, Karachi, according
to the Judicial Magistrate appellant Kamran was properly identified by PW Tariq
Mehmood while specifying the role of each appellant at the time of commission
of offence. We have no reasons to disbelieve the evidence of the Judicial
Magistrate, no illegality or irregularity in conducting the identification
parade has been brought on record. Even otherwise, holding of identification
parade is not mandatory and it is merely a corroborative piece of evidence.
Eye-witness Tariq Mehmood had identified both
appellants in trial Court. Therefore, delay in identification parade would not
be fatal to prosecution case. In this case ocular evidence is fully corroborated
by medical evidence, recoveries and positive Ballistic Expert report are
sufficient, to establish the case of the prosecution. There is no legal force
in the contention of the learned counsel for the appellants that trial Court
has awarded death penalty to appellants on the basis of evidence of sole eye witness.
Under the law evidence of sole eye witness, if natural and trustworthy
corroborated by medical evidence is sufficient to record the conviction, in the
cases of capital punishment. Law does not require plurality of witnesses, it is well recognized maxim that “evidence has to
be weighed not counted”. Reference can be made to the following cases:
(i)
Muhammad Azam Vs.
State (SBLR 2004 Balochistan
21)
(ii)
Ghazanfar
Ali alias Pappu and other Vs. the State (2012 SCMR
215)
(iii)
Muhammad Latif
Vs. the State (PLD 2008 SC 503)
In the case Muhammad Azam
(supra) it has been held as under:
“Though the prosecution case is based on the solitary statement
of PW-1 but it is settled that, conviction can be based on the statement of a
solitary witnesses, if it is confidence inspiring. In the case in hand, the
statement of PW-1 is fully supported by medical evidence, coupled with the
recovery of knife, which has not been disputed by appellant and event the appellant in his statement has stated that, he
inflicted the injuries, though as per his own statement, the incident did not
take place in the manner as deposed by prosecution, but failed to prove the
same. On the contrary, as observed herein above, PW-1 withstood the test of
lengthy cross examination, nothing could be elicited from him, benefiting the
accused, hence the contention of learned counsel for
appellant is repelled.”
In
the case of Ghazanfar Ali (supra), it has been held
as under:
“Even
otherwise the holding of identification parade is not mandatory and it is
merely a corroborative piece of evidence. If the statement of a witness qua the
identity of an accused even in Court inspires confidence, if he is consistent
on all material particulars and there is nothing in evidence to suggest that he
is deposing falsely, the absence of holding of identification parade would not
be fatal to the prosecution.”
In
the case of Muhammad Latif (supra) it has been held
as under:
“13. All the above
segments of evidence have led to one important conclusion that it was the act
of Appellant-accused, who had committed heinous crime of murder of innocent
baby and ladies. It was a tyrannous and callous actions
of accused who had not only cut the throats of two hapless ladies but also a
four months baby. Therefore, the events and the circumstantial evidence had
proved that the Appellant is the person who had committed this cold-hearted
offence of murder
to
deprive a soul from his berth is the most sinful
act;
to take
the life of a human being is the most reprehensible, satanic act;
as the
death of on human is the death of whole of the Humanity;
life of
human being is a precious gift of Almighty Allah. The Creator of Universe;
no can
be allowed to snatch it away through his vicious act.
14. Accordingly, we
have found no merit in the appeal of the Appellant and dismiss the same.”
17. For
the above stated reasons, while relying upon the above cited authorities we
have come to the conclusion that prosecution has succeeded to prove its case
against the appellants, the trial Court had rightly appreciated the evidence, according
to the settled principles of law. Death penalty awarded by the learned
Anti-Terrorism Court No.1 requires no interference by this Court at all, as it is proved that the appellants in furtherance of
common intention have committed murder of PC Muhammad Ashraf, who was going to
perform his duty, such act of appellants involved serious violence against a
member of the police force. Thus, case of appellants falls within the category
of “rarest of rare cases”, the appellants are
disentitled to any leniency in the sentence. Therefore, conviction is
maintained. Reference made by the learned trial Court is answered in
affirmative. Consequently, appeal is dismissed.
JUDGE
JUDGE
Karachi, dated
Feb. ___, 2013