P L D 2004 Karachi 232 (PLP)

18. Lastly, the arguments with regard to misjoinder of charges and joint trial essentially are founded on conspicuous defects in the charge. Entry No.5 in the schedule, which brings the offence under Arms Ordinance, 1965 within the jurisdiction of Anti‑Terrorism Court runs as under:‑‑ "(5). Any offence including an offence punishable under the Pakistan Arms Ordinance, 1965 (W.P. Ordinance. XX of 1965), committed conjointly with any other offence punishable under this Act."

19. Illustratively, the term `conjointly' used in the above entry refers to a predominant condition that the offence under the Arms Ordinance should have taken place in combination that is to say at the time when a scheduled offence was committed. The record shows that as per FIRs No.141 of 2001 and 142 of 2001 of Police Station Jamshed Quarters (Exhs. 65 and 66) read with statements under section 154, Cr.P.C. (Exhs. 62 and 63) a residential place at Patel Para was raided by Inspector Rustam Khan oft 13‑5‑2001 and a TT Pistol of .30 bore was secured from the possession of Ali Sher (appellant in Spl. A.T.A. No. 53 of 2001, the respondent in SPL. ATA No. 58 of 2001) and a pistol of .30 bore was secured from the possession of main appellant Abdul Qayyum. Obviously, the recovery of these pistols from Ali Sher and Abdul Qayyum is at a different point of time and from a different place; in such an event combination would have formed only if evidence was placed on record to demonstrate that those were the pistols used in the commission of the offence of dacoity. Such evidence is wholly lacking. The offences emanating from recovery of unlicensed pistols from Ali Sher and Abdul Qayyum were, therefore, not schedules offences.

20. The Anti‑Terrorism Court, definitely, lacked jurisdiction in respect of the offences arising out of FIRs No. 141 and 142 of 2001 and those offences were to be tried by the appropriate Court of ordinary Jurisdiction. Consequently, the conviction of Ali Sher and Abdul Qayyum in respect of the offence under section 13(d) of Pakistan Arms Ordinance, 1965 was without jurisdiction and the same is liable to be set aside. It is ordered accordingly. A question arises if the ends of justice I would meet in retrial of these appellants or not. Admittedly, the Court of Magistrate would try the offence under section 13(d) of Arms Ordinance and, since the provisions of Anti‑Terrorism Act, 1997 would not be applicable there would be no embargo of maximum punishment. The fire‑arms do not fall within the definition of prohibited bore, therefore, the minimum limit of punishment of three years is also not applicable. The appellants have already remained in custody for a sufficiently long time, retrial of the appellants for these offences, in the circumstances, need not be ordered.

21. As regards the charge for an offence under section 13(d) of Arms Ordinance against Abdul Waheed, learned counsel Mr. A.Q. Halepota rightly pointed out that the accused has been gravely misled by the charge framed by the trial Court. It may, in this context, be observed that the trial Court has not mentioned in the charge that an unlicensed pistol was secured from possession of Abdul Waheed and that thereby he committed an offence under section 13(d) of Arms Ordinance, but has simply mentioned that during scuffle Abdul Waheed's pistol had fallen down. This, in no manner, would satisfy the requirements of sections 221 and 233, Cr.P.C. This omission, undoubtedly, is a material error and a damaging drawback as such the provisions of section 232, Cr.P.C. are unmistakably attracted to this part of the charge. It can equally be said that owing to this infirmity failure of justice has occasioned within the meaning of section 537, Cr.P.C. and the trial stood vitiated. Conviction of appellant Abdul Waheed for offence under section 13(d) of Arms Ordinance and the sentence awarded in consequence thereof are accordingly set aside.

22. The material on record is now to be scrutinized with respect to offence of Qatl‑i‑Amd coupled with dacoity. The ocular testimonies were assailed from different angles and their evidentiary value was seriously questioned. Learned counsel for accused/appellants invariably argued that the evidence of eye‑witnesses may not be credited with truth for the reasons that either they are chance witnesses, or related to the deceased and their evidence is full of inconsistencies and contradictions creating a doubt about their presence at the scene as also about the identity of the appellants. The ocular testimonies are, therefore, to be scanned and evaluated extensively. As regards the evidentiary value of the evidence placed on record direct and corroborative/supporting, it would be convenient to give a concise resume of the ocular evidence recorded at the trial.

23. The most important witness, P.W.1, Samiullah (Exh.20), deposed that he was a friend of deceased Haji Mir Dad Khan and had come down from Dera Ismail to visit him. On the day of incident he accompanied the deceased in his double cabin Toyota to Super Market, Defence etc. and on return they stopped the Pick‑up in front of the gate of the bungalow of deceased where two bottles of cold drink were ordered. After taking the drink, he was placing the empty bottles on the ground, while sitting in the vehicle when Haji Mir Dad Khan shouted that dacoits had come. He saw three armed persons. On pistol point both of them were forced to alight from the vehicle. One of the culprits occupied the driving seat and the other one sat in the front seat. During the recording of evidence this witness pointed out in the trial Court that appellant Abdul Qayyum had occupied the driving seat. This witness further stated that he tried to attack appellant Abdul Qayyum with the empty bottle, but the bottle slipped. Thereafter, appellant Abdul Waheed covered this witness, but since the bullet got trapped in the pistol he succeeded in catching hold of him. In the meantime, two/three other persons also reached there for his help. He also heard fire reports and noticed that Haji Mir Dad Khan had caught hold of the shirt of accused Abdul Qayyum at his collar. Appellant Abdul Qayyum made a direct fire at Haji Mir Dad Khan which hit the latter on his chest and he fell down. They drove the Pick‑up for some distance, but then returned back and hit Pir Rahman with the bumper of the vehicle and also fired shots, as a result, the people dispersed and the culprits rescued appellant Abdul Waheed and took him away. During scuffle pistol of Abdul Waheed and his mobile phone fell off which were secured. Haji Mir Dad Khan was taken to Patel Hospital where he succumbed to injuries.

24. The second eye‑witness Pir Rahman is maternal nephew of Haji Mir Dad Khan and at that time he was sitting in Al‑Kausar Kiryana Store and reading newspaper when his uncle Haji Mir Dad Khan and P.W. Samiullah came over there in the Pick‑up. The culprits reached there in a jeep. One of them demanded change of Rs.500 from Waseem, the owner of Al‑Kausar Kiryana Store and the other one demanded Supari. In the meantime Haji Mir Dad Khan and Samiullah, who had taken two bottles of cold drink, had finished their drinks and gave a horn for taking away the empty bottles. All the three culprits rushed to them, drew pistols and tried to snatch the key of the Pick‑up from Haji Mir Dad Khan, but the latter resisted on which both the culprits dragged him out and appellant Abdul Qayyum directly fired at Haji Mir Dad Khan which hit him on his hand. He gave further details almost in the same manner as stated by the complainant. He specifically stated that identification test parade of accused was held before a Magistrate and he had successfully identified all the accused.

25. The third witness Muhammad Yamin is a milk seller, his shop was situated in the same Arcade. He was present in his shop when he heard fire‑arm report and came out. He witnessed the incident from the stage when one of the culprits was apprehended by the people and the other culprit was dragging Haji Mir Dad Khan from his double cabin Toyota from the driving seat, while the third culprit was also standing near the driving door. He has given more or less the same account as stated by the above mentioned two witnesses. During investigation he had identified the appellants Abdul Qayyum and Abdul Waheed in the identification test.

26. The fourth eye‑witness Waseem was running Al‑Kausar Kiryana Store, Haji Mir Dad Khan's house was at a distance of 10‑12 ft. from his shop. His evidence shows that he had witnessed the entire incident. He has given the details in the same manner as stated by the above witnesses and has given a clear account how Haji Mir Dad Khan was fired upon at his leg and lastly at his chest which proved fatal. He has also given the account how the culprits drove back and rescued their third culprit who was earlier apprehended by the people.

27. The fifth eye‑witness Khona Jan had some time back worked with deceased Haji Mir Dad Khan and on that day he had come to see him, but since Haji Mir Dad Khan was not available he waited for him in the nearby hotel and, while he was taking a cup of tea he heard a fire arm report and came out. He found that Haji Mir Dad Khan, with his injured hand, was catching hold of the door of Pick‑up and was also holding the accused from his collar. From that stage onwards ate witnessed the entire occurrence including the fatal shot fired at the chest of Haji Mir Dad. In the identification test parade held before the Judicial Magistrate he had identified accused Abdul Qayyum and Abdul Waheed.

28. The sixth eye‑witness Saeedur Rahman is nephew of Haji Mir Dad Khan and is younger brother of Pir Rahman. He had not seen the entire incident, but while going towards Disco Bakery he had seen his uncle Haji Mir Dad Khan and Samiullah in the Toytoa Hi‑Lux double cabin Pick‑up who parked the Pick‑up near the house. He had also seen that their pick‑up was followed by a jeep of light silver colour. He had seen, four persons other than driver in the jeep. An identification test parade was held during investigation in presence of Magistrate wherein he identified all the three culprits.

29. In support of the above evidence the prosecution examined the Magistrate P.W.12 Jawed Iqbal on the point of identification test parade and recording of judicial confession of appellant Abdul Waheed. His evidence shows that he arranged 10 dummies for each accused and held identification test parade turn by turn. The witnesses identified all the three accused persons correctly excepting that the witnesses Khona Jan and P.W. Muhammad Yamin could not identify accused Ali Sher. On the following day he recorded judicial confession of appellant Abdul Waheed. He had observed all the requisite formalities.

30. Amongst the eye‑witnesses, presence of P.W. Samiullah was questioned, inter alia, on the ground that he was a chance witness as he had come down from Dera Ismail Khan to visit the deceased. Similarly, P.W.6 Khona Jan had sometimes back worked with the deceased and on that day he had gone just to see the deceased Haji Mir Dad Khan. Learned counsel for appellant called him, too, a chance witness. As regards Pir Rahman it was contended that he was nephew of the deceased; he was an interested witness and so also Waseem who was a friend of son of the deceased. It was, in this context, argued that the ocular evidence requires independent, supporting and corroborating evidence, which is lacking.

31. From the eye‑witnesses the testimonies of those, who identified the appellant during the identification parade before the Magistrate, stand on a higher pedestal. One of them P.W.3 Muhammad Yamin is the milk seller whose shop is situated in the same Arcade. He is a natural witness. On hearing fire‑arm reports he came out of his shop and witnessed the entire occurrence. He found that one of the culprits was apprehended by the people, while, the other one was dragging Haji Mir Dad Khan, the deceased from his double cabin Toyota from the driving seat and the third culprit was standing near the driving door. He found all of them armed with T.T. Pistol. He has given all the details and has specifically stated that one culprit fired from his pistol at Haji Mir Dad Khan which he received on his hand, but since he did not desist and continued the resistance the culprit resorted to direct fire at him. The bullet hit Haji Mir Dad Khan on his chest whereupon he fell down. He has also stated how the culprits drove away and then took a turn and rescued the third culprit who was apprehended by the people. During the identification test conducted in presence of Magistrate he identified two of the culprits namely appellants Abdul Qayyum and Abdul Wahhed. He was cross‑examined at length, but nothing could come on record to dispute his presence at the scene or show any grave inconsistency on material events rendering his version doubtful and unbelievable:

32. The other eye‑witness through whom identification test was conducted during the investigation is Pir Rahman, nephew of deceased Haji Mir Dad Khan. No doubt, he is related to the deceased, but looking to the venue of the occurrence he is certainly a natural witness. His residence, shown in the deposition, is the same house bearing No. B‑15, which is the house of deceased Haji Mir Dad Khan. He was sitting along with his friends in Al‑Kausar Kiryana Store and was reading newspaper when his uncle Haji Mir Dad Khan reached there alongwith P.W. Samiullah. He has given the details of the occurrence, as already narrated above. He had identified the accused persons during the identification test and again in the Court he specifically pointed out that appellant Abdul Qayyum was the person, who tried to snatch the key of Pick‑up from his uncle, but on resistance he made a fire which hit his uncle on his hand. According to him, his uncle Haji Mir Dad Khan had seen him, therefore, he called him for help as such he went near him, but in the meantime Abdul Qayyum made a direct fire which hit Haji Mir Dad Khan below his throat. Thus, he has given a clear account of the fires made by the accused and injuries caused to his uncle.

33. The third eye‑witness who identified the accused persons in identification test is Khona Jan P.W.6. His testimony was also assailed on the ground of being a chance witness. He has explained that he had previously worked with Haji Mir Dad Khan, and on that day he had gone to see Haji Mir Dad Khan, but he was not there. He was waiting in a nearby hotel and was taking a cup of tea. He was attracted to the scene .on fire‑arm report. He specifically stated that the culprit who, during the incident of snatching the Pick‑up, had succeeded in occupying the driving seat was Abdul Qayyum and ultimately it was Abdul Qayyum who fired the fatal shot at the chest of Haji Mir Dad Khan. He has given entirely a truthful account of the incident.

34. Mr. A.Q. Haleptoa, learned counsel for appellant assailed Khona Jan's testimony, inter alia, on the ground that his name was not mentioned in the F.I.R. The complainant Samiullah has stated in the F.I.R. that the incident was seen by Pir Rahman and many shop‑keepers including owner of Al‑Kausar Kiryana Store. It cannot be said that Khona Jan was known to Samiullah. Moreover, Samiullah himself had come from Dera Ismail Khan. Had it been established through evidence that Samiullah knew Khona Jan, then it could justifiably be argued that Khona Jan was absent, therefore, his name was not mentioned in the F.I.R. Samiulah has stated that many other persons had seen the incident including the shop‑keepers; quite possibility he might have taken Khona Jan for any person in general. The circumstances are such that mere absence of name of Khona Jan in the F.I.R. shall not render his testimony untrue which is, otherwise, fully believable and conforms to the story.

35. As regards identification of accused persons in the Court, it may be noted that P.W. Smaiullah, the complainant was the person who, as already discussed, accompanied the deceased since morning in his double cabin Pick‑up and he was sitting with the deceased when the culprits attacked them for the purpose of snatching the said vehicle. He had a scuffle with them. He had also hurled an empty bottle of Pepsi Cola at one of the culprits. His attention was again diverted when deceased Haji Mir Dad Khan was clinging against the Pick‑up and holding the culprit by the collar of his shirt and in this way from many angles he had enough and ample opportunity to clearly see, watch and gaze at their faces for sufficient time, therefore, it cannot be said that he would forget their features very soon. He was examined after three months of the occurrence. Ordinarily, when a fleeting glimpse of a culprit is seen under the settled law an identification test parade would be essential, but in exceptional circumstances as in cases of abduction and kidnapping or other incidents in which the victims or the persons affected have a continuous and clear vision in presence of sufficient light, identification through them in the Court at a subsequent stage can be accepted even if no identification test is conducted during the investigation. Learned counsel for appellants vehemently argued that identification of the appellants by P.W. Samiullah in Court is against the legal dictates and may be rejected outright. Mr. Abdul Qadir Halepota, learned counsel for appellant Abdul Qayyum, in this context, relied on Asghar Ali v. State (1992 SCMR 2088), State v. Farman Hussian (PLD 1995 SC 1), Muneer Ahmed v. State (1998 SCMR 752) and Jaspal Singh v. State of Punjab (AIR 1997 SC 332). Mr. M.R. Syed also relied on Farman Hussain's case (supra).

36. In Farman Hussain's case (PLD 1995 SC 1) identification test after arrest of the accused was insisted upon in the circumstances where the witness got only a momentary glimpse of the accused who happened to be stranger to him and not known previously: This rule laid down by the Hon'ble Supreme Court, would not help the accused/appellants in the instant case in the background of distinguishing features of the incident since, as already discussed, the witness Samiullah had enough opportunity to react against the dacoits and had enough time to see them from a very close distance of inches. He had tried to hit one of the culprits with an empty bottle of Pepsi Cola. As narrated above he was sitting in the front seat near the driving seat when the culprits attacked Haji Mir Dad Khan demanded the key. It was a daylight incident and one, of the culprits was once overpowered, while the other one dragged Haji Mir Dad Khan from the seat and then occupied the driving seat. In such a situation, it cannot be said that Samiullah had only a fleeting glimpse of the culprits.

37. In Muneer Ahmed's case (1998 SCMR 752) the rule laid down in Farman Hussain's case was followed and it was observed that there would be no necessity of holding the identification test if the witnesses had ample opportunity to see the culprits. Although in Munir Ahmed's case (supra) the evidence of abductee would stand on a different level, but the other two eye‑witnesses who had seen the culprits only at the time of incident and were believed could conveniently be compared with the witnesses in the instant case who had seen the culprits from a close distance and had ample opportunity to mark their features.

38. As regards Asghar Ali's case (1992 SCMR 2088) the facts of the occurrence would conform to the first part of observation in Farman Hussain's case that an identification parade is essential when the witness had a momentary glimpse of the culprit The facts of Asghar Ali's case (supra) were that some known accused persons alongwith unknown persons all of a sudden emerged at the scene at 9‑30 p.m. and fired at the victims killing two of them and went away. Obviously, in the night hours despite availability of electric light the witnesses could only see a fleeting glimpse of the unidentified assailants and identification test was as such, conceivably inevitable. The facts of the instant case are much different from the aforementioned circumstances.

39. The precedent cited from Indian Supreme Court's decisions (AIR 1987 SC 332) no doubt lays emphasis of identification test in case of unknown culprits, but the judgment does not represent clearly if the witnesses had ample opportunity or not, at the time of incident, which took place during the night, to see and watch the faces of culprits clearly. It was in somewhat different circumstances that the identification of culprits through those witnesses in the Court, was not accepted. The principle underlying the said pronouncement of Indian Supreme Court also does not help the appellants.

40. It may, in all earnest, be concluded that there is no valid and legitimate reason to question veracity of Samiullah's version who identified the appellants in the Court. It is to be accepted irrespective of the act that no identification test was held through him during the investigation.

41. In essence, it may be reiterated, no identification test was necessary even in case of P. W Pir Rahman, the nephew of deceased Haji Mir Dad Khan, since he had also ample opportunity to see the culprits, but since he was a close relative on the deceased perhaps as a matter of precaution the prosecution thought it appropriate to get corroborative and supporting evidence in the form of identification test. The concept of identification in Court can of course, be press into service against the testimony of P. W. Saeedur Rahman as he had seen the culprits going in a jeep which followed the Pick‑up of his uncle and certainly it can be termed as a momentary glimpse. There was no identification test during investigation through this witness and he identified appellants Abdul Qayyum and Abdul Waheed in Court and to that extent the contention of learned counsel for these accused/appellants would carry sufficient force.

42. As regards P.W.4 Waseem, he is a person who was running Al Kaur Kiryana Store and had, in the first instance, seen the three culprits when one of them demanded change of Rs.500 and another demanded pack of Supari for Rs.2, he noticed that they were watching Haji Mir Dad Khan, who had reached earlier in his double cabin Toyota Hi‑Lux Pick‑up. Up to that stage, memory of features could not ordinarily be expected; but this witness has further seen the entire incident when the said three persons went to the Pick‑up and attacked Haji Mir Dad Khan and pulled him out of the Pick‑up. He also saw that Haji Mir Dad Khan put resistance whereupon he was fired at and then one of the culprits occupied the driving seat. He has stated that in his presence the said culprit directed his companions to fire at Haji Mir Dad Khan as he was not leaving the vehicle and the second dacoit fired at Haji Mir Dad Khan which hit him on his leg. Thereafter the culprit, sitting in driving seat, made direct fire at Haji Mir Dad Khan which hit him on his chest. Third culprit was apprehended in his presence. Again, the second part of incident also took place in his presence when the culprits first drove away the double cabin Pick‑up and then turned back and rescued their companion, who, until then was in their grip. He pointedly stated in the Court that accused Abdul Qayyum was the culprit who fired at the chest of deceased Haji Mir Dad Khan and accused Abdul Waheed was the culprit apprehended by them, but subsequently got released by his companions. In this way, he had ample opportunity to see and watch the faces of the accused/appellant and it is a matter of common knowledge that when a serious incident occurs the persons who grapple with the situation become more watchful and pertinent much different from those who run away from the scene to save their lives. This witness was very much present all along and actively participated in apprehending one of the culprits. Identification of the accused/appellants by him in Court, therefore, cannot be doubted.

43. Precisely, the testimonies of five eye‑witnesses namely: P.W.1 Samiullah; P.W.2 Pir Rahman; P.W.3 Muhammad Yamin; P.W.4 Waseem; and P.W.6 Khona Jan, in view of the above discussion, consistently establish the acts perpetrated by appellants Abdul Qayyum and Abdul Waheed. Their versions are consistent on major facts with, of course, some discrepancies on minor points. They had absolutely no reason to tell a lie in implementing Abdul Qayyum and Abdul Waheed. Nothing could come on record to suggest that the investigating agency had a motive to set up witnesses to implicate the appellants falsely. In any manner, for small contradictions, truthfulness of the ocular testimonies cannot be questioned.

44. If corroborative evidence is needed, the medical evidence supports the ocular testimonies Dr. Muhammad Sarfraz Gul, Medical Officer P.W.11 has found the following external injuries on the body of Haji Mir Dad Khan:‑‑ (1) Lacerated penetrated wound 0.5 c.m. x 0.5 c.m. circular in shape with inverted margins over mid sternum of interior chest. No blackening or tattering (wound of entry). (2) Lacerated wound 0.8 x 0.8 c.m. over left part of lower scapula. (wound of exit of injury No. 1). (3) Lacerated gutter shape wound 3.0 c.m. x 0.5 c.m. over dorsal aspect of right hand. (4) Lacerated gutter shape wound 4.0 c.m. x 0.5 c.m. over interior aspect of left mid thigh.

45. The fire‑arm injuries on leg and hand are clearly mentioned. However, regarding injury on chest it was argued that P.W. Pir Rahman has said that the fire was made from close range, whereas there was no blackening around the wound. It is true that the word "close range" has been used by the witness, but it cannot be said with certainty what actual distance was meant by him. The incident had taken place all of a sudden and in utter perplexity the witness had attempted to catch hold of one of the culprits, while at the same time he had tried to rescue his uncle, therefore, it cannot be expected that he would engage in measuring the lengths of distances at that time.

46. The wound of entry was 0.5 c.m. in width and the wound of exist. over the left part of lower scapula was 0.8 cm wide which shows that the fire was made from front side. The witness Pir Rahman cannot be disbelieved merely because he used the word "close range" otherwise in true sense the medical evidence fully supports his version. After the occurrence he had removed his uncle to hospital and the police reached there. He produced the pistol snatched from one of the culprits and also the mobile telephone to police at the hospital which fact further supports his version. He was present in the hospital. He had also led the police to the place of occurrence and pointed out each and every place to them. On the whole, neither his presence can be doubted nor there is any reason to reject his testimony on the ground of relationship being nephew of the deceased, as the evidence given by him wholly rings true and is trustworthy. The law is well‑settled on the point that merely on the ground of relationship of a witness with the victim or the complainant, his testimony is not be discarded if it is otherwise believable. The authorities Abdul Ghafoor v. State (2000 SCMR 919) Dosa v. State (2002 SCMR 1578), Mir Hassan v. State (1999 SCMR 1418), Sohni v. Bahaduri (PLD 1965 SC 111) and Sharafat Ali v. State (1999 SCMR 329) may be cited with advantage in this regard.

47. Mr. A.Q. Halepota, learned counsel for appellant Abdul Qayyum, however, distinguished the importance of supporting evidence and argued that medical evidence is not of the kind that would, by itself, help in establishing the identity of the offenders. Initially, he attacked the medical evidence also on the ground that absence of blackening around the fatal wound should led to an inference that the fatal shot was fired from outside by someone else and not by Abdul Qayyum. I am afraid, such an inference would be too hypothetical. He also argued that if it is believed, as stated by one of the witnesses that the shot fired by Abdul Qayyum crossed the glass of the window by breaking it into pieces and then hit Haji Mir Dad Khan at his chest then too this piece of evidence would receive a setback as the pieces of broken glass have not been collected or produced in Court. No doubt, technically this argument cannot be overlooked with regard to pieces of glass, but merely on account of absence of pieces of glass the direct evidence of fires made at Haji Mir Dad Khan cannot be discarded.

48. Further, learned counsel directly assailed the value of identification test and contended that it was also liable to be rejected as the test was held on 24th day of incident and no role was specifically assigned by the witnesses in the test. In this context, he relied on Mehmood Ahmad v. State (1995 SCMR 127) wherein role of accused in the identification test was emphasized.

49. There can be no cavil to the exposition of law that ordinarily in the identification test the witness Should also ascribe the role of each accused when identifying him. In the present case the role has already been specified through direct ocular evidence, as such, this question would not bear material significance. Nevertheless, the Magistrate, conducting the test, has stated that roles were specified by the witnesses, but he did not note the same in the identification memo. An omission on the part of Magistrate could not wash away the direct ocular evidence. This irregularity should not damage the entire process of identification test. Reliance in this regard may be placed on the case of Solat Ali Khan v. State (2002 SCMR 820) wherein no specific role was assigned by the witness, while identifying the accused in identification test, but while pointing out at the accused this witness could only say; "This is the man". The identification was accepted, in the circumstances of the case.

50. With respect to the contention regarding the delay in identification test it may be observed that the delay was not exorbitant as the test was held on the 4th day of arrest of the accused persons. As regards the argument that possibility or arranging 30 dummies for the purpose of identification test was too remote, it may be mentioned that such minute particulars could, of course, be emphasized, had the identification test been the sole evidence to connect the accused persons with the crime. There is ample evidence, as already stated, to establish the identity of the appellants, therefore, it cannot be presumed that because of the aforementioned hypertechnicalities the identification test may be treated as a managed affair. The identification test, on the whole, was trustworthy. As rightly argued by Mr. Mir Nawaz Khan Marwat, learned counsel for complainant and Mr. Habib Ahmed, learned Asstt. Advocate General, technicalities shall in such circumstances be overlooked. Reliance was placed on Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445). Indeed, there appears no valid reason to discard the identification test.

51. As regards the recovery of the vehicle used by the culprits and the arrest of the accused persons from Patel Para, Mr. A.Q. Halepota as also Mr. Shoukat Hayat, learned counsel for accused/appellant argued that recovery was being made from a fixed place, therefore, in view of the law laid down in State v. Bashir (PLD 1997 SC 408) respectable inhabitants of the locality were to be joined as Mashirs. This legal proposition is not open to question, but it is also noteworthy that the Investigating Officer had made efforts to join such Mashirs. The Mashirs Sodo Jan (P.W.7) and the co‑Mashir Gul Sher Khan were present at Patel Para when they were asked to join the proceedings in respect of arrest of accused persons who were available in a house nearby. However, the fact remains that both the Mashirs were not of the same locality and P.W. Sodo Jan has stated in the cross‑examination that he informed the police about his address. As far the contention of learned counsel for appellants is concerned, it is not without force, but with regard to the main offence of Qatl‑i‑Amd and dacoity it may be observed that the Ballistic Experts report (Exh.72) shows that the pistols recovered from Abdul Qayyum and Ali Sher at the time of their arrest from Patel Para, were not used in the commission of the offence. These recoveries are immaterial and do not connect the accused with the crime.

52. There is also no evidence that the jeep was secured on the pointation of the appellants. This, therefore, is not an independent piece of evidence furnishing the required basic support and corroboration.

53. A significant piece of evidence in the form of judicial confession made by accused/appellant Abdul Waheed has also come on record. The Judicial Magistrate, who recorded the confession namely Jawed Iqbal, P.W.12 deposed that on 17‑5‑2001 when Abdul Waheed was produced before him he observed all legal formalities and gave two hours' time for reflection to the accused and after administering necessary warnings he recorded the confession. He had also appended requisite certificate in his hand. The accused had given the details of the incident which fully conform to the prosecution story. The accused/appellant has stated how the fatal shot was fired by Abdul Qayyum. He has also stated that he was overpowered and his pistol and mobile phone were snatched from him. He has made mention of the bottle hurled at him causing slight injury to his head. Lastly, he was retrieved from the grip of the complainant party, that too has been stated by him in particular. On a perusal of this confessional statement it becomes quite clear that it was true and voluntary. Learned counsel for accused/appellant assailed the evidentiary value of judicial confession on many grounds. Firstly, it was contended that a letter, dated 14‑5‑2001 (Exh.46) was written by police, but the confession was recorded on 17‑5‑2001 which indicates that the accused was not willing to make a confession. Secondly, the contents of the confessional statement are contradictory to other pieces of evidence, therefore, it is not true. Thirdly, it was a retracted confession and without corroboration the same was not to be relied upon. It was also argued that the questions were not put to the accused in his own language and each page has not been thumb‑marked or signed by the accused. Learned counsel further argued that the fact of identification test has not been mentioned in the judicial confession and that the learned trial Court has not compared the judicial confession with the independent material. Mr. A.Q. Halepota, learned counsel for appellant Abdul Qayyum also attacked the judicial confession almost on same lines. Mr. Habib Ahmed, learned Assistant Advocate General found no lacuna or drawback in the confession and submitted that the same has been rightly relied by the trial Court since it was voluntary and true in material aspects.

54. It may be noted that on the point of delay in confession learned trial Court has relied on the authorities Naseem Akhtar v. State (1999 SCMR 1.744), Khan Muhammad v. State (1999 SCMR 1818) and Muhammad Ismail v. State (1995 SCMR 1615) and has opined that in view of the law laid down in these authorities delay in recording of confessional statement was not crucial as the Court had to adjudge the main question whether it was true and voluntary. Mr. Marwat, learned counsel for complainant, however, argued that the confession can also be used against the co‑accused Abdul Qayyum as his role has also been clearly spelt out.

55. As regards the letter (Exh. 46) it may be observed that on 14‑5‑2001 two letters of request Exhs. 45 and 46 were submitted by police and the Magistrate fixed the date for identification test first, i.e. on 16‑5‑2001 and recording of judicial confession on the following day i.e. 1‑5‑2001 These facts are also stated by the learned Magistrate P.W.2 Jawed Iqbal in his deposition at the trial. It cannot, therefore, be presumed that because the accused declined to give confession, the date was fixed on 17‑5‑2001. The confessional statement covers a long story how the culprits used to meet and make plans and committed offences at different times. It is a detailed narration of a variety of facts not known to the witnesses and only its last portion relates to the instant occurrence in which he has given almost the same account as stated by the witnesses. Its truth is, therefore, not questionable. The Certificate also satisfied the requirements of law within the meaning of section 364, Cr.P.C.

56. The point of delay in recording confession has also rightly been dealt with by the learned trial Court, therefore, the evidentiary value of the judicial confession need not be assailed on that score. Question was put to the accused about the confession during his statement under section 342, Cr.P.C. which of course, was denied. On the whole, a thorough examination of the judicial confession would reveal that it has been recorded in accordance with law and was true and voluntary, I therefore, it carries evidentiary value as a judicial confession and was rightly used against the maker thereof namely Abdul Waheed despite the fact that it was retracted. It could have also been used legally against co accused Abdul Qayyum within the meaning of Article 43 of Qanun‑i‑Shahadat, but to the misfortune of the prosecution this fact was not put to co‑accused Abdul Qayyum during his statement recorded under section 342, Cr.P.C. It cannot, therefore, under the normal legal procedure, of trial be used against Abdul Qayyum as a corroborative piece of evidence.

57. The evidence on the point of recovery of the double cabin Toyota Hi‑Lux snatched during the incident is, however, of no significance as it was recovered from a distance place near the border of Balochistan and in a abandoned state.

58. In consequence of the above discussion it may be concluded that, the evidence of eye‑witnesses Samiullha, Pir Rahman, Muhammad Yamin, Waseem, Khona Jan and Saeedur Rahman is trustworthy and believable and out of them the identification made in Court by P. Ws Samiullah, Pir Rahman, Muhammad Yamin, Waseem and Khona Jan, out of whom three had picked the accused/appellants in the identification test, is also to be credited with truth in support of the case of prosecution with solemn reliance and the supporting evidence such as identification test during investigation and the medical evidence are also to be accepted. The judicial confession of Abdul Waheed to the extent of his involvement is further a hard and reliable piece of evidence, besides the other supporting pieces of evidence. The evidence on record fully establishes the case of prosecution to the extent of offence of Qatl‑i‑Amd committed during the course of dacoity on the day of incident and the guilt of appellants Abdul Qayyum and Abdul Waheed is made out beyond reasonable doubt for an offence punishable under section 396, P.P.C has a The learned trial Court has rightly given a verdict of conviction against them on this point, which is based on sound principles of appreciation of evidence and is hereby maintained. As regards the sentence of death awarded to each of the appellants Abdul Waheed and Abdul Qayyum, it is in accord with the provisions of section 396, P.P.C. which lays down that if anyone of 5 or more persons who are conjointly committing dacoity, commit murder in so committing dacoity everyone of those persons shall be punished with death or imprisonment for life etc. The expression `everyone of those persons' essentially connotes `each one' of the culprits/dacoits and accordingly each one is to be awarded the same punishment. The offence of dacoity accompanied with murder is to be viewed quite separately and since section 396, P.P.C. has a combined effect of sections 302 and 149, P.P.C. the concept of immunity for those to whom no overt act is attributed is misconceived. Reference in this regard may be made to Geedo v. State (1986 PCr.LJ 2192). In the circumstances of the case capital sentences awarded by the trial Court to Abdul Qayyum and Abdul Waheed as also fine are maintained.

59. As far the case of Ali Sher is concerned the evidence is to be assessed as against him on the pattern of acquittal appeal under the settled law and norms of appreciating the evidence on that scale. Ghulam Sikandar's case (PLD 1985 SC 11) lays down the broad principles and guidelines in his behalf, which have been consistently followed by the Hon'ble Supreme Court and the High Courts whenever a finding of acquittal has been assailed.

60. Mr. Habib Ahmed, learned Asstt. Advocate General, in his arguments, laid sufficient emphasis on the point that the name of respondent Ali Sher, the acquitted accused is mentioned in the judicial confession of appellant Abdul Waheed, the jeep which was used for the commission of offence belongs to brother of Ali Sher, a fire‑arm was also secured from his possession when he was arrested and he was also identified during identification test as also in the Court. The evidence was, therefore, adequate and the finding of conviction shall be rendered against him also. Mr. Marwat also argued on the same lines.

61. Mr. M.R. Syed, learned counsel for respondent Ali Sher contended that the confession of co‑accused cannot be extended to somebody else as observed by the Hon'ble Supreme Court in Faqir Ullah v. Khalil‑uz‑Zaman (1999 SCMR 2203), which is a decision of five Hon'ble Judges of Supreme Court. As regards the identification test he stated that Yamin and Khona Jan did not identify Ali Sher in the identification test and additionally the personal features of Ali Sher were not described in the evidence and the testimonies of remaining two witnesses Pir Rahman and Saeedur Rahman were not enough as Saeedut Rahman had seen a feeble glimpse, while Pir Rahman's evidence does not assign any role reliable against Ali Sher. He further argued that the identity of jeep was not established through a test that it was the same jeep used in the commission of the offence and in particular the Investigating Officer admitted that he did not mention if the jeep was seized by him.

62. As regards the Judicial confession of co‑accused Abdul Waheed the first and the foremost blow to the prosecution on this point is that, this question has not been put to Ali Sher, while recording his statement under section 342, Cr.P.C. Such a piece of evidence, therefore, cannot be used against an accused. The recovery of fire‑arm is also immaterial as the Ballistic Expert's report simply establishes the fact that‑ it was in working order otherwise there is no evidence if it was used in commission of the offences. Regarding recovery of jeep used in commission of the offence the Investigating Officer has not stated in the Court that it was seized on the pointation of any of the accused persons. Even the Mashirnama is silent on this point.

63. As far the identity of the respondent is concerned, complainant Samiullah has identified the appellants Abdul Qayyum and Abdul Waheed only. P.W. 2 Pir Rahman has identified respondent Ali Sher to be the person who was driving the jeep in which the culprits had, come. In cross‑examination he stated that he had seen the respondent in driving seat from a distance of about 10 ft. As already discussed, he was the main person, who grappled with the situation and had a scuffle with those accused who entangled in the incident of snatching the jeep and making fires, therefore, he had enough opportunity to see the faces and features of only those three. His identification. in Court, as such, was reliable with regard to them. As regards Ali Sher it can only be conceived that he might have had a scanty look at the jeep, the inmates whereof remained there and did not associate with the other three who carried the ground operation of snatching the Toyota Hi‑Lux. This is a case in which, in true sense, the identification test would be the sole evidence for the purpose of determining the identity and guilt, of respondent Ai Sher. The role ascribed to Ali Sher was not specifically mentioned in the memo. of identification test, consequently, the part assigned during the Court proceedings As the only aspect that could help the prosecution as in case of Abdul Waheed and Abdul Qayyum in making up the lacuna; but, as already mentioned, this witness had a' casual and scanty look at the other jeep, therefore, strong supporting evidence was required in this regard. The basic and direct evidence relating to Ali Sher is badly missing. It would be unwise to press into service this piece of evidence alone as the fundamental evidence for the purpose of founding conviction thereon, particularly when finding of acquittal has been recorded by the trial Court.

64. P.W.3 Muhammad Yamin had stated that he had identified only Abdul Waheed and Abdul Qayyum and so also is the evidence of P.W.4 Waseem. P.W.5 Saeedur Rahman was passing by the road when he had seen the jeep coming from opposite side and coming towards the direction of place of incident. It may be recalled that P.W. Saeedur Rahman had not stopped there, but had gone towards Disco Bakery and he returned in the evening when he was informed about the occurrence This was again a very weak piece of evidence and it was rightly argued by Mr. M.R. Syed that in the city of Karachi where hundreds of vehicles passed by a pedestrian within a span of minute it is uncommon to believe that one would note the feature of every driver of those vehicles.

65. Even otherwise in absence of direct and reliable evidence there lo is no other material on record to help in arriving at a conclusion that the identity of Ali Sher was established beyond reasonable doubt and that he was one of the persons associated with the dacoity in capacity of driver of the jeep in which the culprit had gone to the place of incident for dacoity. We are not inclined to upset the finding of acquittal, the same is hereby maintained.

66. In consequence of the above discussion it is concluded that on a minute appraisal of the evidence on record and on consideration of contentions raised by the learned counsel on the basis of material on record and case‑law:‑ (1) Spl. Anti‑Terrorism Appeal No.47 of 2001 preferred by Abdul Waheed is dismissed maintaining the conviction for offence under section 396, P.P.C. read with section 6(d) of the Anti Terrorism Act, 1997 and the sentences of death and fine of Rs.200,000 (or in default rigorous imprisonment for 2 years) awarded by the trial Court: (2) Spl. Anti‑Terrorism Appeal No. 48 of 2001 preferred by Abdul Waheed is allowed and the conviction for the offence under section 13(d) of Pakistan Arms Ordinance and sentence awarded are set aside: (3) Spl. Anti‑Terrorism Appeal No. 52 of 2001 preferred by Abdul Qayyum is partly allowed as under:‑‑ (i) the conviction for offence under section 396, P.P.C. read with section 6(d) of the Anti‑Terrorism Act, 1997 and the sentences of death and fine of Rs.200,000 (or in default rigorous imprisonment for 2 years) awarded by the trial Court are maintained; (ii) the conviction for offence under section 13(d) of Arms Ordinance and sentence awarded by the trial Court are, however, set aside. (4) Spl. Anti‑Terrorism Appeal No.53 of‑ 2001 preferred by Ali Sher is allowed and the conviction for offence under section 13(d) of Arms Ordinance and sentence of 7 years and fine awarded by the trial Court are set aside. (5) Spl Anti‑Terrorism Acq. Appeal No. 58 of 2001 preferred by State against Ali Sher is dismissed. (6) Confirmation Case/Reference No.7 of 2001 made by trial Court in respect of death sentence awarded to Abdul Waheed and Abdul Qayyum is accepted.

67. Ali Sher may be set at liberty if not required in any other custody case.

68. We feel in our solemn duty to record a note of appreciation for the valuable assistance rendered by all the Advocates appearing for the parties in this case namely:‑‑Mr. A.Q. Halepota, Mr. Shoukat Hayat. Mr. M.R. Syed. Mr. Mir Nawaz Khan Marwat and Mr, Habib Ahmed learned Asst. Advocate General. Their preparation of the case and the precise approach to the relevant points was commendable. N.H.Q./A‑24/K Order accordingly.