HIGH COURT OF SINDH AT KARACHI
Special Anti-Terrorism Appeal No.17 and 18 of 2006
Present: Sajjad Ali Shah, J.
Naimatullah Phuploto, J.
Appellant: Muhammad Shoukat and
Abdul Wahab Afghani through Mr. M. R. Syed, Advocate
Respondent: The State through Mr. Khadim Hussain Khooharo, Deputy
Prosecutor General Sindh.
Date of hearing: 21.02.2013, 22.02.2013, 27.02.2013.
Date of
Judgment: ___.02.2013
JUDGMENT
NAIMATULLAH
PHULPOTO,J.- Appellants Abdul Wahab Afghani alias Khalid alias Jameel
son of Ali Khan alias Saleem, Shahnawaz alias Shani alias Usman alias Barger
son of Abdul Razzak and Muhammad Shaukat alias Jawed
alias Chand son of Mian Muhammad Sharif were tried by
the learned Judge Anti-Terrorism Court-II, Karachi under Sections 302/34 PPC read
with section 7 of the Anti-Terrorism Act, 1997 and 13(d) of the Arms Ordinance
1965 and vide judgment dated 22.05.2006 Muhammad Shoukat alias Jawed alias
Chand was convicted for offences under section 302(b) PPC read with section 7
of the Anti-Terrorism Act, 1997 and sentenced to imprisonment for life and to
pay the fine of Rs.100,000/-, in case of default in payment of fine, he was
directed to suffer R.I. for six months more. He was extended benefit of 382-B
Cr.PC. Co-accused Shahnawaz alias Shani
alias Usman alias Barger son of Abdul Razzak and Abdul Wahab Afghani
were acquitted in FIR. Appellant Abdul Wahab Afghani was
convicted under section 13(d) of the Arms Ordinance, 1965 and was sentenced to
five years R.I. and to pay fine of Rs.10,000/-, in case of default in payment
of fine he was directed to suffer six months R.I. However, benefit of section
382-B Cr.PC was extended to the appellant.
2. By this single judgment we intend to dispose of aforesaid
appeals as the same are inter connected and requires appreciation of same evidence.
3. Brief facts
of the prosecution case, as disclosed in the FIR are that on 20.02.2003 the son
of the complainant, namely, Sagheer Hussain Kazmi (now
deceased) went to meet his friend P.W. Khursheed Ahmad at his workshop, situated at Plot No.101/102, Zaman Town, Korangi, Karachi. It was 12:30 p.m.,
deceased was sitting with PW Khursheed Ahmed out of
workshop. It is alleged that three unknown persons armed with T.T. pistols appeared
on motorcycle and fired upon Sagheer Hussain Kazmi,
fire hit him and he fell down. PW Khursheed Ahmad took
Sagheer Hussain Kazmi to the hospital but he
succumbed to the injuries. Assailants made their escape good from the spot.
Complainant came to know about the incident at home, he went to hospital, met
PW Khursheed and went to the police station Korangi and lodged FIR of the incident against unknown
persons, it was recorded vide FIR No.73/2003 under sections 302/34 PPC read
with section 7 of the Anti-Terrorism Act, 1997 at police station Korangi. During investigation, investigation officer Chaudhry Barkat Ali inspected the
place of wardat, it was shown to him by PW Khursheed. He prepared mashirnama of the place of wardat, prepared
inquest report and got postmortem examination of deceased, and recorded 161
Cr.PC statement of P.W. Khursheed.
On 25.03.2003 he recorded 161 Cr.PC statement of PW Talib and Shahid Jamal. On
17.03.2003 he received wireless message that accused Abdul Wahab
alias Afghani required in this case has been arrested by police station Jamshed Quarters. I.O. proceeded to the police station Jamshed Quarters and he interrogated him and arrested the
appellant Abdul Wahab Afghani in presence of mashirs.
On 18.03.2003 he produced accused Abdul Wahab Afghani
before the Civil Judge/Judicial Magistrate for his identification parade test through
witnesses Khursheed and Shahid
on 24.03.2003. He sent the blood stained clothes of the deceased and blood
stained earth for analysis report. He had also sent two empties secured from
place of wardat on 26.03.2003 and sent to the ballistic expert for his report.
On 29.10.2003, he received message that absconding accused Shahnawaz
alias Shani had been arrested P.S. Mauripur. I.O. interrogated him and arrested in this case.
After usual investigation challan was submitted against the accused. Appellant
Muhammad Shoukat was arrested and supplementary challan was submitted against
him on 31.05.2005. A formal charge against accused Abdul Wahab
Afghani alias Khalid alias Jameel, Shahnawaz alias Shani and
Muhammad Shaukat alias Jawed alias Chand was framed at Ex-6. To the charge,
appellants pleaded not guilty and claimed trial.
4. In order to
prove its case prosecution examined following witnesses:-
1. PW-1 Kaleem Shaikh, MLO
2. PW-2 Rao Khursheed Ahmad, I.O.
3. PW-3 ASI Jameel Akhtar
4. PW-4 PC Raha Matloob
5. PW-5 Maqbool
Ahmed, JM-XI, East Karachi.
6. PW-6 Javed
Iqbal, Civil Judge & J.M. I, Karachi East.
7. PW-7 SIP Muhammad Aslam Mughul
8. P.W.8
Complainant, Kabeer Hussain Kazmi
9. PW-9 HC Irfan
Ali.
10. PW-10 ASI Muhammad Ashraf.
11. PW-11 SI Mehmood Akhtar.
12. PW-12 Asif Farooque, Doctor/MLO
13. PW-13 Muhammad Khursheed
Khan
14. PW-14 Abdul Rasheed.
15. PW-15 SI Chaudhry
Barkat Ali.
5. The
statements of accused were recorded under section 342 Cr.PC at Ex-7 to 9. All
the accused denied the prosecution allegations. Accused Abdul Wahab Afghani stated that he was arrested by the police
from his house and was detained at police station. Nothing incriminating was
recovered from his possession and police has foisted pistol upon him. Accused Shahnawaz alis
Shani has also denied the allegations and stated that
he was arrested from his house and was detained at police station three weeks
prior to 29.10.2003. Accused has further stated that he was shown to the
prosecution witnesses at police station prior to the identification parade.
Accused/Appellant Shaukat has also denied the allegations and stated that he
was detained at the police station prior to 20.05.2005. PW Khursheed
had seen him prior to identification parade at police station. Accused did not
lead any evidence in defence and declined to give statement on oath in disproof
of prosecution allegations. Accused pleaded innocence.
6. On the
conclusion prosecution evidence after hearing the learned counsel for the
parties and assessment of evidence trial Court passed judgment as stated above.
7. Mr. M. R. Sayed learned Advocate for appellants Mohammad Shoukat and
Abdul Wahab did not dispute the unnatural death of
the deceased. Prosecution has examined medical officer to prove unnatural death
of deceased. He has stated that on 20.02.2003 he was posted as Medical Officer
at Jinnah Postgraduate Medical Central (JPMC). SIP Abdul Rasool
of P.S. Korangi brought a dead body of one Sagheer
Hussain Kazmi for conducting his postmortem on
external examination of the dead body M.O. found the following injuries:
i)
Firearm punctured wound 0.5 c.m x 0.5 c.m, on left of
forehead (wound of entry) margins inverted.
ii)
Firearm punctured wound 1 c.m x 1 c.m, with everted margins
on right mastoid region (wound of exit).
iii)
Firearm punctured wound 0.5 cm x 0.5
with inverted margins below the front of right knee (wound of entry).
iv)
Firearm punctured wound 1 c.m x 1 c.m, with everted margins
on medial aspect of right thigh lower on third (wound of exit).
v)
Firearm punctured wound 0.5 c.m x 0.5 on medial aspect of right foot above the heel
with inverted margins (wound of entry).
vi)
Firearm punctured wound 1 c.m x 1 c.m with everted margins
on sole of the right foot (wound of exit).
vii)
Bruise 2 c.m x 2 c.m on left of forehead.
viii)
Bruise 1.5 c.m x 1 c.m on right of forehead.
On internal examination of the dead body M.O. found the
following damages:
Head:
Fracture of the left frontal bone and right mastoid bone seen. Corresponding
brain and meninges grossly raptured. No abnormality seen on Neck, Thorax and
abdomen.
8. From external
as well as internal examination of the dead body of the deceased, M.O. was of
the opinion that death of deceased had occurred due to cardio respiratory
failure as result of acute head injury, resulting from discharge of fire arm. As
the learned counsel for the appellants did not dispute the unnatural dead of
the deceased we, therefore, hold that deceased boy died unnatural death as
described by Medical Officer.
9. In order to
substantiate the charge against the appellants prosecution relied upon evidence
of following witnesses:-
10. PW Rao Khursheed Ahmad SIP has
stated that on 20.02.2003 he was on his patrolling duty, he received wireless
message at 12:30 p.m. that firing has taken place at Sector 35, Korangi, he proceeded to the pointed place, situated in
front of Auto Workshop of Khursheed, many persons had
gathered there. SI inquired them about the incident and he was informed that
one person has received injuries at the hands of motorcyclists and injured has
been shifted to the hospital. He proceeded to the hospital and came to know that
injured has expired. He then prepared the inquest report of the deceased in
presence of the mashirs Kabeer Hussain Kazmi and Khursheed Ahmad. After
postmortem examination he handed over the dead body to his father, namely, Kabeer Hussain Kazmi. SI proceeded
to place of wardat, inspected it in presence of mashirs, collected
two empties of pistol lying at the place of wardat so also blood stained earth,
sealed at the spot in presence of the mashirs. He has further stated that he
recorded FIR of Kabeer Hussain Kazmi,
father of the deceased against unknown
persons vide Crime No.73/2002 under sections 302/34 PPC read with section 7 of
the Anti-Terrorism Act, 1997 at police station Korangi.
11. Complainant Kabeer Hussain Kazmi has stated
that the deceased was his son. On 20.02.2003 he was present at his house situated
at Korangi, it was 12:30 p.m., a person came to his
house and informed him that his son Sagheer Hussain Kazmi
has been killed by three unknown persons, who came on motorcycle at Khursheed’s Workshop. Complainant proceeded to hospital and
found the dead body of his son. After postmortem examination, dead body was
handed over to him, then he went to the police station
and lodged FIR.
12. PW-13 Khursheed Ahmad, the sole eye witness of this incident. He
had deposed that he runs workshop. Deceased Sagheer Hussain Kazmi
was his friend. On 20.02.2003 at 12:30 a.m. deceased came to his workshop and
they were sitting outside of the workshop at wooden structure lying under the
tree at the distance of 40’ from workshop. He went to the house situated near
to the workshop for preparation of tea for his friend. They took the tea
together, he went house to leave the cups where he heard fire outside the
house. He immediately came out of the house and saw one person firing at
Sagheer Hussain Kazmi with T.T. pistol. Sagheer
Hussain Kazmi after receipt of fire arm injuries fell
down and three culprit drove away on their motorcycle.
He took Sagheer Hussain Kazmi to the hospital but he
was declared dead by the medical officer. He has stated that father of the
deceased lodged FIR against unknown persons. Police collected two empties and
blood stained earth from the place of wardat. He was made as mashir. After one
month of the incident SI Chaudhry Barkat
came to his house and informed him about identification parade test to be held on
19.03.2003 before the Judicial Magistrate Karachi East. He appeared on the same
date before the Judicial Magistrate and identified one accused who was one of
the culprits at the time of incident. PW Khursheed
Ahmad identified Abdul Wahab Afghani on 03.11.2003.
Identification parade was also held through him and he identified accused Shahnawaz alias Shani in the
identification parade. In the third identification parade held on 25.5.2005, he
had stated that he identified accused Shaukat and stated that he had fired upon
the deceased from his T.T. pistol. In the cross-examination eye witness has
admitted that accused Abdul Wahab Afghani was known
to him since last 10 to 12 years. He has also admitted that his 161 Cr.PC
statement was recorded on the day of incident at 03:00 p.m. but he did not
disclose the name of any accused in his statement. He had denied the suggestion
that police had shown to him accused Shoukat before identification parade at
police station.
13. P.W-4 P.C Raja Matloob,
has stated that SI Mohammad Aslam arrested accused Shoukat in his presence from
P.S Jamshed Quarters, where
he was under arrest in some other case. He was made as mashir, co-mashir was H.C Mohammad Ayoob.
14. P.W-7 S.I.
Mohammad Aslam has deposed that he arrested accused Shoukat in this case on
20.05.2005 from P.S Jamshed
Quarters where he was under arrest in some other case. He prepared mashirnama
of his arrest in presence of the mashirs H.C Ayoub and P.C Raja Matloob.
15. P.W.-6 Mr. Javed Iqbal Civil Judge & Judicial Magistrate-VII,
Karachi East has stated that on 18.03.2003 SIP Choudhry
Barkat Ali I.O of this case
produced before him accused Abdul Wahab for his
identification parade through P.W. Khursheed Khan and Shahid Jamal.
He held such identification parade test. Accused Abdul Wahab
was identified in the identification parade, such memo was prepared. On
31.10.2003 I.O. Barkat Ali
produced before the same Civil Judge & Judicial Magistrate accused Shahnawaz alias Shani for
identification parade through eye witness Khursheed
Khan. He also identified accused Shahnawaz and
prepared such mashirnama. In the cross-examination Civil Judge & Judicial
Magistrate has denied the suggestion that accused Abdul Wahah
and Shahnawaz had informed him that P.Ws had seen
them at Police station before identification parade test.
16. P.W-5 Mr.
Maqbool Ahmed Civil Judge & Judicial Magistrate has stated that on
25.05.2005, I.O of this case produced before him
accused Shoukat for conducting identification test through P.W.
Khursheed. Accused Shoukat was identified by P.W Khursheed in the
identification parade and stated that accused Shoukat fired upon deceased. He
prepared memo of identification parade in presence of the witnesses. However,
he has denied suggestion that he had prepared identification parade memo at the
instance of investigating officer.
17. P.W-ASI
Mohammad Ashraf, has stated that on 07.03.2003 he was on patrolling duty along
with H.Cs Irfan, Akram and
PC Mohammad Ramzan, while patrolling when they
reached at Sector 5-B/3, three accused appeared on motorcycle, police signaled
them to stop but they started firing upon them, police also fired in self
defence. In the firing one culprit received injury and he fell down and two
culprits made their escape good. Accused who was apprehended disclosed his name
as Jameel son of Saleem. His pistol was taken into
possession by ASI Ashraf, it was unlicensed. Mashirnama of arrest and recovery
was prepared. ASI lodged FIR against above named accused on behalf of state
vide crime No.66/03 under section 13(d) Arms Ordinance, 1965. In the cross
examination, he has denied the suggestion that pistol was foisted upon the
accused and fire arm injury was caused to him at police station.
18. P.W-9 H.C Irfan
Ali has deposed that on 07.03.2003, he was driver of the police mobile. During
patrolling with ASI Mohammad Ashraf and other staff members, they reached at
Sector 5-B/3 at 1:00 pm where they saw three persons who emerged on motorcycle.
ASI Mohammad Ashraf signaled them to stop, it was stopped, culprits
drew their T.T Pistols. ASI Mohammad Ashraf directed H.C Mohammad Akram and P.C Ramzan to be alert, there was
exchange of fires. During cross firing one culprit received injuries and he
fell down and two culprits made their escape good. Police party apprehended
injured culprit who disclosed his name as Jameel son
of Saleem. T.T. Pistol was taken from his possession by ASI, it was unlicensed.
Mashirnama of arrest and recovery was prepared in presence of mashirs,
motorcycle was also in possession under Section 550 Cr.P.C. Accused was brought
to the police station, where case was registered against accused on behalf of
state under section 13(d) Arms Ordinance, 1965. Injured was referred to
hospital for his examination, treatment and certificate.
19. P.W-11 Mahmood Akhtar S.I has deposed that on
07.03.2003 he was posted as SIP at Police station Khawaja
Ajmair Nagri. He received
investigation of crime No.66/03 under Section 13(d) Arms Ordinance, 1965 against
accused Mohammad Jameel son of Mohammad Saleem.
Accused was in injured condition, he got Medical certificate of injured accused
and completed investigation. During interrogation injured disclosed his real
name as Abdul Wahab Afghani.
20. P.W-12 Dr. Asif Farooq has stated that on
07.03.2003 he had examined injured accused Jameel
Khan aged about 22 years produced before him in police custody and he found one
fire arm injury on his person.
21. P.W-14 Abdul Rasheed S.I has stated that on 10.03.2003 he was entrusted
investigation of three FIRs bearing Crimes Nos. 64/2003 65/2003 and 66/2003 Khawaja Ajmair Nagri police station. FIR No.66/2003
P.S Khawaja Ajmair Nagri was lodged against
accused Abdul Wahab Afghani under Section 13(d) Arms
Ordinance, 1965. He investigated the case and submitted interim challan on
22.03.2003 against the accused.
22. P.W-15 Choudhry Barkat Ali I.O has stated that on
20.02.2003 he received investigation of the case. He inspected place of wardat,
it was shown to him by P.W Khursheed.
Place of wardat was situated near workshop of P.W. Khursheed. He found blood lying over the wooden structure
and prepared mashirnama of place of wardat in presence of mashirs, recorded 161
Cr.P.C statement of P.W Khursheed
on same day. He had also recorded further statement of complainant Kabeer Hussain Kazmi and 161
Cr.P.C statements of P.Ws Talib
and Shahid Jameel. On
17.03.2003 he had received wireless message that accused Abdul Wahab Afghani has been arrested by police of Jamshed Quarters in some other case. He then went to the
police station and interrogated accused Abdul Wahab
and arrested him in this case in presence of mashirs namely Khalid Rasheed and Islamuddin. On 19.03.2003
he produced accused Abdul Wahab Afghani before Civil
Judge & Judicial Magistrate concerned for identification through P.Ws Khursheed and Shahid Jamal. I.O has stated that on 24.03.2003 he had sent
blood stained earth and clothes of the deceased to the chemical examiner for
report, which he produced in positive. I.O has stated that he had sent empty
shells secured from place of wardat on 26.03.2003 to the Ballistic Expert for
report and he has produced positive report at Ex.72. I.O had received wireless
message on 29.10.2003 that absconding accused Shahnawaz
alias Shani has been arrested by Police station Maripur in some case and he was confined at police lockup
AVCC Garden. He went to AVCC Garden, interrogated accused and arrested him in
this case. Accused Shahnawaz was produced before the
Magistrate for identification parade through P.W Khursheed. He was picked up in the identification parade.
On the conclusion of the investigation, he submitted challan. In the cross
examination he has denied the suggestion that he had provided photographs to
the witnesses of the accused persons before holding of identification
parade.
23. Mr. M.R.Syed learned Advocate for the appellants contended that
neither names of appellants have been mentioned in the FIR nor
in 161 Cr.P.C statement of eye witness Khursheed. It
is further argued that deceased was class-fellow of P.W
Khursheed and according to the prosecution case P.W Khursheed had identified
accused Abdul Wahab along with others at the time of
incident but P.W Khursheed
did not care to inform the complainant about the names of the assailants on the
day of incident. It has also been argued that P.W Khursheed in his 161 Cr.P.C statement has also not
disclosed the names of the assailants. It is submitted that P.W
Khursheed identified appellant Mohammad Shoukat after
the period of two years. P.W Khursheed
was interested witness and his evidence is not reliable. It is also argued that
co-accused namely Shahnawaz alias Shani
and Abdul Wahab Afghani have been acquitted by trial
court. Evidence about Appellant Shoukat is same, he may
be acquitted in the case. Lastly it is submitted that trial court has not appreciated
the evidence according the settled principles of law. In support of the
contentions learned defence counsel has placed reliance upon the following cases:-
1.
Zahoor
Elahi and another versus the State (1997 SCMR 385)
2.
Mst.
Shamshad versus The State (1999 SCMR 2844)
3.
Haroon
alias Harooni versus The State (1995 SCMR 1627)
24. In the case of Zahoor
Elahi (supra),
it has been held as under:-
“Learned
counsel submits that Muhammad Azim and Bashir Ahmad
PWs were not believed by the trial Court while acquitting Muhammad Majid and 4 others and as such Zahoor
Elahi and Muhammad Younas
could not be convicted on the said evidence unless it was corroborated by
evidence of unimpeachable character. It is added that case of appellants was at
par with that of their acquitted co-accused. There is force in the argument of
learned counsel. Muhammad Azim, PW is the brother of
Muhammad Amin, deceased while Bashir Ahmad is also related to him. The enmity
was admitted because both the parties participated in the election held in the
year 1987 and they had thus developed ill-will against each other. Muhammad
Amin (deceased) defeated his rival candidates. It is, therefore, difficult to
believe Muhammad Azim and Bashir Ahmad PWs unless
they were corroborated by some independent evidence which was missing. It may
be noticed that benefit of doubt was given to five acquitted accused under
similar circumstances. No cogent reasons could be given by the Courts below in
order to convict the appellants in the same situation.”
25. In the case of Mst.
Shamshad (supra)
it has been held as under:-
“Burden
to prove its case beyond a reasonable doubt squarely rests on the prosecution.
Such burden cannot be discharged by weakness found in the case of the defence.
The mere fact that the defence version is not believed by the Court cannot lend
credence to the prosecution case if otherwise the prosecution has failed to
discharge its burden. For the reasons enumerated above, we have no hesitation
to coming to the conclusion that the prosecution has failed to establish its
case against the appellant.”
26. In the case of Haroon
alias Harooni it has been held as under:-
“The
High Court was of the view that the eye-witnesses had thrown the net wide
enough to involve all the members of the accused family and that Abdul Jabbar and Muhammad Ilyas were
involved in the case because they were real brothers of Haroon.
This will show that Muhammad Hussain Javed although
an independent witness had shown reckless disregard for the truth by falsely
involving the two co-accused in the case. Mere fact that a witness is neither related to the complainant nor inimical towards the
accused does not stamp his testimony necessarily with truth. Acid test of the
veracity of a witness is inherent merit of his own statement. Since the facts
of the two cases seldom coincide, therefore, no hard and fast rule for the
appreciation of evidence can be laid down. The general rule, however, is that
the statement of a witness must be in consonance with the probabilities,
fitting in the circumstances of the case and also inspire confidence in the
mind of a reasonable prudent man. If these elements are present, then the
statement of worst enemy of an accused may be accepted and relied upon without
corroboration, but if these elements are missing, then statement of a pious man
may be rejected without second thought.”
27. Mr. Khadim
Hussain DPG argued that trial court has rightly
believed the evidence of eye witness Khursheed and
convicted appellant Shoukat and his evidence is trustworthy and confidence
inspiring. He had no motive to falsely implicate the appellants in this case.
He has further submitted that acquittal of co-accused would not furnish valid
ground for acquittal of the appellant in this case. There was huge evidence
against the appellants to convict them in this case. As regards to the
contention of learned defence counsel that why P.W Khursheed promptly did not disclose the name of class
fellow co accused Abdul Wahab to the complainant,
learned DPG submitted that this omission would not be sufficient to discard his
entire evidence. In support of his contentions he has relied upon the cases
reported as under:-
(1)
Muhammad Ashraf versus the State (2001 Cr.LJ 412)
(2)
Muhammad Asghar
and others versus the State (2004 SCJ 387)
(3)
Solat
Ali Khan vs. The state (2002 SCMR 820)
28. In the case of Muhammad Ashraf (2001 PCrLJ 412) (spura), it has been
held as under:
“Likewise,
the rule that the integrity of a witness is indivisible too, cannot be accepted
because, in case, if it is proved that the witness was not coming out with the
truth on a particular point even then, it cannot be said that his entire
statement was false. In such a situation, it would not be proper for the Court
to discard statement of the witness out rightly but those portions of his
statement which find corroboration from other independent sources/evidence
should be taken into account.
29. In the case of Muhammad Asghar
(2004 SCJ 387) it has been held as under:
“Learned
counsel for the appellants rigorously argued that according to FIR, four
unknown persons had committed this crime, while later on it was alleged that,
in fact, there were three culprits, who had committed said crime. It is
difficult to understand the mental agony of the complainant when he had seen
his two minor children being slaughtered and killed before him, besides himself
having sustained injuries on vital parts of his body. Under such circumstances,
normally a person could not keep cool and narrate the entire incident with
minute details. It was the result of the mental shock,
he had immediately after the occurrence. It appears that for the same reasons Mst. Hafeez Bibi
was not nominated in FIR. The fact, however, remains that the
complainant in his supplementary statement explained the factual position.
Neither above grounds falsify the prosecution’s version nor jointly or
collectively are enough to discredit the testimony of the complainant, his wife
and son Hussain.”
30. It
the case of SOLAT ALI KHAN VS. THE
STATE (2002 SCMR 820) it is held as under:-
“The
identification of the appellant conducted under the supervision of Muhammad Rafiq, Judicial Magistrate (P.W.14)
has been brought on record by Mrs. Shahnaz Hamid (P.W.4), Mirza Tariq Jawed (P.W.9) and Umer Shahid (P.W.12). The argument of the learned
counsel for the appellant that the same was held after more than 530 days of
the present occurrence and 9 days after arrest of the appellant would not
advance the case of the defence. It has come on record that the
appellant left the country and came back on 10-12-1998 when, as earlier stated,
he was apprehended at the Jinnah International Terminal, Karachi. Mrs. Shahnaz Hamid (P.W.4) and Umer Shahid (P.W.12) in their evidence
have categorically stated that it was the appellant who committed this gruesome
offence. Mrs. Shahnaz Hamid (P.W.4)
in her deposition stated that during identification parade she had a constant
look on the appellant and identified him to be same person who had been seen by
her in a white car at the site of occurrence. She further stated that she had
only pointed out the appellant on the day of holding of identification parade
and had told the Magistrate that “This is the man”. In an answer to a Court
question she further elaborated that the person sitting in the Court was the
same who had been seen by her in the car at the site of occurrence on the
material date and time. In the concluding portion of her testimony to a Court
question she answered as follows:-
“From
the word ‘unidentified’ appearing in Exh.D.I meant
was that I did not know the accused by name then seen by me
who was driving the alleged car, now sitting here before the Court about whom I
have not even the slightest doubt if he is not the same individual.”
(Underlining is ours).
Similarly,
Umer Shahid (P.W.12) had
stated that he identified the appellant during the identification parade
conducted by Muhammad Rafiq, Judicial Magistrate on
19-12-1998. He also stated in his cross-examination that prior to the
identification parade he had not seen the appellant. He further reiterated his
stance by saying that he had seen the appellant for a moment on the date and
place of occurrence and then saw him in the identification parade held on
19-12-1998. The figure and features of the appellant must have been imprinted
on the minds of Mrs. Shahnaz Hamid (P.W.4) and Umer Shahid (P.W.12), widow and son respectively of deceased Shahid Hamid. How they can forget the person who had
committed this gruesome act of killing Shahid Hamid
alongwith his driver and gunman? It is
expecting too much from the complainant to point out the detailed description
and features of the accused in the F.I.R as at that moment she must be
undergoing a very traumatic condition. In this regard, the learned Division
Bench of the High Court of Sindh has observed as under:-
“The
arguments that P.Ws had only momentary glimpses and it was
difficult for them to identify the culprits after such a long period has
no merit. Suffice it to say that each criminal case has its own facts and
circumstances and the value of evidence of identification is to be evaluated by
the Court. It may be mentioned that the power to identify varies according to
the power of observation and the observation is based upon minor details which
a witness cannot describe and explain himself. In the instant case the incident
has taken place in the day time just near the house of complainant party, who
were receiving constant threats and they were conscious of the consequences. As
soon as the lady and her son heard the fire shots, they came out of their
bungalow and saw the incident and culprits. P.W. Mrs. Shahid
Hamid and the other P.Ws, who were at the relevant time at the spot and seen
the appellant/culprit and incident which was of immense importance, extending
serious and saddest in one’s life, therefore, the culprits to whom they saw
could remain in memory as photo for sufficient long period hence there could be
no mistaken identity.”
31. From perusal
of evidence of P.W Khursheed
Ahmed, the sole eye witness of the incident, it appears that he has
categorically stated that on 20.02.2003 at 12:30 pm, deceased came to his
workshop and they were sitting outside of the workshop at wooden structure
lying under the tree. He went to the house situated near to the workshop for
preparation of tea for his friend. They took the tea together, he went house to
leave the cups where he heard fire arm report outside the house. He immediately
came out of the house and saw one person firing at Sagheer Hussain Kazmi with T.T. pistol. Sagheer Hussain Kazmi
after receipt of fire arm injuries fell down and three culprit
drove away on their motorcycle. He took Sagheer Hussain Kazmi
to the hospital but he was declared dead by the medical officer. He has stated
that father of the deceased lodged FIR against unknown persons. Police
collected two empties and blood stained earth from the place of wardat. He was
made as mashir. Identification parade was also held through him and he
identified accused Shahnawaz alias Shani in the identification parade. In identification
parade held on 25.5.2005, he had stated that he identified accused Shaukat and
stated that he had fired upon the deceased from his T.T. pistol. Medical officer
in his opinion has stated that death of deceased had occurred due to cardio
respiratory failure as a result of head injury sustained by the deceased from
the discharge of fire arm. Pistol used by the accused Muhammad Shaukat in the
commission of offence was also recovered from his possession and a separate
case under section 13(d) of Arms Ordinance, 1965 was registered against him. Learned
trial court has rightly appreciated the evidence and taking lenient view
convicted and sentenced the appellant Muhammad Shaukat for imprisonment for
life.
32. We have
scanned the entire evidence and came to the conclusion that PW Khursheed Ahmed was the independent and natural witness of
the case. Incident had occurred outside of his house. Immediately after the
incident he had taken the injured friend to the hospital but he died. Evidence
of PW Khursheed is corroborated by the medical
evidence. He had no motive to falsely implicate the appellant Muhammad Shaukat
in the commission of offence, merely deceased was his friend is no ground to
discard his evidence. We find no substance in the contention of learned defence
counsel that PW Khursheed did not disclose name of
accused Abdul Wahab Afghani, who was known to him
since long, is sufficient ground to reject his whole statement. PW Khursheed rightly identified him in the identification
parade held before the Civil Judge/Judicial Magistrate and specifically
attributed fire to the appellant Muhammad Shoukat. Learned Civil Judge/Judicial
Magistrate has also categorically stated that the appellant Muhammad Shoukat
was identified by PW Khursheed in the identification
parade. Delay in identification parade was caused due to abscondence
of accused after commission of offence. After arrest of accused Shoukat he was
put to identification parade and was picked up in identification parade. PW Khursheed Ahmed had no motive to falsely implicate the
appellant Muhammad Shoukat. It was day time incident, PW Khursheed
had clearly seen the appellant Muhammad Shoukat at the time of incident.
Therefore delay in holding identification parade would not be fatal to the
prosecution case. Rightly reliance has been placed upon the case of Solat Ali Khan (supra).
Moreover, appellant Muhammad Shoukat has been identified by PW Khursheed in trial Court. Appellant Shoukat was found going
armed with T.T. pistol and he was arrested on 20.05.2005 and was put to
identification on 25.05.2005. Pistol (30 bore) was recovered from him was sent
to the ballistic expert along with two empties used in the commission of
offence. Report of the ballistic expert was positive. Report of blood collected
from wardat was also positive. In these circumstances learned trial Court rightly
appreciated the evidence, acquitted co-accused and convicted appellant for life
imprisonment by taking lenient view though it was day time incident and
involved act of terrorism. Relevant portion of the judgment of trial Court is
reproduced as under:
w
“In view of the above discussion, it
becomes crystal clear that the incident was took place as alleged. The evidence
of all the witnesses specially the eye witness Khurshid
is confidence inspiring having the chain of truth, which has been corroborated
by circumstantial evidence, medical evidence, recovery of blood stained cloths
and articles which were also supported by the report of Serologist. The star
witness of the incident namely Khurshid has only
identified accused Muhammad Shaukat being the accused who had fired at deceased
Sagheer Hussain Kazmi due to which deceased sustained
injuries on his head and died on the spot.
The eye witness Khurshid
has assigned a specific role to accused Muhammad Shaukat being the accused who
had fired on the deceased leaving aside the other two accused namely Abdul Wahab Afghani alias Khalid alias Jameel
son of Ali Khan alias Saleem and accused Shahnawaz
alias Shani alias Usman aliasa Bargar son of Abdul Razzak. He in his deposition stated that he knew accused
Abdul Wahab Afghani since childhood but even then the
FIR is silent in respect of the involvement of accused Abdul Wahab Afghani.
The aforesaid situation creates doubt
in respect of the involvement of accused Abdul Wahab
Afghani and Shahnawaz alias Shani
and benefit of doubt always goes to accused.”
33. We firmly
believe that it is the duty of the Court to sift grain from the chaff. Learned
trial Court has rightly distinguished the case of the appellant Muhammad
Shoukat from the other accused. In the case of Mehboob
Khan versus the State, reported in 1997 CrLJ 721
Honourable Supreme Court was pleased to hold as under:
“Therefore
there is little substance in the contention as the principle that a witness
found to be false in part shall be disbelieved in whole has been held to be
inapplicable in such cases. In Jehangir v. Crown
(1969 SCMR 875), it was held that the argument that the greater part of the
prosecution evidence has not been relied upon, as six of the accused had been
acquitted, the appellant was also entitled to an acquittal was not entertained
holding that there exists no such rule of law and the matter depends solely
upon facts and circumstances of each case.”
34. On the above
analysis, we have come to the conclusion that the principle, a witness found to
be false in part should be disbelieved in whole is not applicable in this case
as laid down in the case of Mehboob Khan (supra) for the reason that PW Khursheed Ahmed has clearly deposed that accused/appellant
Muhammad Shoukat fired upon the deceased and his version is corroborated by
medical evidence. PW Khursheed had no motive to
falsely implicate the appellant in this case. Learned trial Court keeping in
view the peculiar circumstances of the case, took lenient view and sentenced
the appellant/accused Muhammad Shoukat to imprisonment for life. Thus, Conviction
and sentence recorded by the trial Court vide judgment dated 22.05.2006 are
maintained. Consequently, the appeal filed by appellant Muhammad Shoukat is
dismissed.
35. Mr. M. R. Syed,
Advocate for the Appellant Abdul Wahab submitted that
appellant after serving the sentence awarded to him by the trial Court has been
released by the jail authorities and he has no instructions to proceed with the
appeal, therefore, Mr. M.R. Syed does not press Special Anti-Terrorism Appeal
No.18 of 2006. We have perused the evidence. Learned trial Court has rightly
appreciated the evidence and convicted the appellant Abdul Wahab
under section 13(d) Arms Ordinance, 1965. Since the learned counsel for the
appellant does not press the appeal, therefore, Special Anti-Terrorism Appeal
No.18 of 2006 is dismissed as not pressed.
JUDGE
JUDGE
Gulsher/PA