2007 PLP 845 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

Muhammad Zubair, Shafqat Mahmood, Muhammad Ashiq, Aftab alias Tabi and Shahid Israr were booked in case F.I.R. No.122 registered at Police Station Rawat on 17-5-2003 for offences under sections 302/412/396/394, P.P.C. and section 7 of the Anti-Terrorism Act (ATA), 1997. Shahid Israr, co-accused, could rot be arrested and was, thus, declared proclaimed Offender (PO). However, Muhammad Zubair, Shafqat Mahmood, Muhammad Ashiq and Aftab alias Tabi were tried by the learned Judge, Special Court Anti-Terrorism No.1, Rawalpindi Division and Islamabad Capital Territory, at Rawalpindi, who, vide judgment dated 16-12-2003, convicted and' sentenced each of them as follows:- (I) For offence under section 396, P.P.C. to death each plus payment of Rs.20,000 each as compensation to the legal heirs of Muhammad Rafiq-deceased, in default whereof to undergo further R.I. for six months' each; (II) For offence under section 7(h) of the ATA, 1997, to undergo R.I. for two years each plus payment of Rs.10,000 each as fine, in default whereof to suffer R.I. for three months' each; (III) For offence under section 394, P.P.C. each to undergo R.I. for four years each plus payment of Rs'.10,000 each as fine, in default whereof to suffer R.I. for three months' each; (IV) Besides the above, Aftab alias Tabi and Muhammad Ashiq were further convicted and sentenced for offence under section 21-L of the ATA, 1997, to undergo one year R.I. each. All the sentences inflicted upon the convicts were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was also given to the convicts.

2. Aggrieved by their above noted convictions and sentences, Muhammad Zubair has filed Criminal Appeal No.550 of 2003, while Shafqat Mahmood has brought Criminal Appeal No.552 of 2003, whereas Aftab alias Tabi and Muhammad Ashiq alias Shaukat have instituted Criminal Appeal No.134 of 2006 through jail. Mst. Safdar Bi, the widow of Muhammad Rafiq deceased, has sought enhancement of amount of compensation by filing Criminal Revision NO.60 of 2004. Murder Reference No.8-T of 2004 seeking confirmation or otherwise of death sentence imposed upon the convicts/appellants has also been placed before us. All these matters are being decided through this single judgment.

3. The brief facts of the case per complaint Exh.PE recorded by Muhammad Sabir, S.-I./P.W.14, at the instance of Ahmad Iqbal, Manager, Habib Bank Ltd. Mankiala, complainant/P.W.4, which based the registration of formal F.I.R. Exh.PB/2, are that on 17-5-2003 at about 10-45 a.m. while the complainant was sitting on his seat in the bank and Muhammad Rafiq, Security Guard of the bank, armed with repeater pump action .12 bore was doing his duty; Muhammad Iqbal second Officer Cashier was present in the cash cabin and Amir Hussain, another Security Guard, injured/P.W.5, was standing empty handed in front of cash cabin in the bank. The door of the bank was open. All of a sudden, an Alto Suzuki car of grey colour stopped in front of the bank. There were five persons in the car, including the driver. Out of them three persons were armed with .30 bore pistols. One of them was of slim body dressed in blue coloured clothes; the second was of fair colour with a beard dressed in Shalwar Qameez and the third one was dressed in grey coloured Shalwar Qameez, entered the bank, while two persons; one with a large beard and the other smart young man dressed in grey coloured Shalwar Qameez, while armed with pistols, stood in front of the door. The persons coming inside the bank got the hands up of all on the pistol point. The person .dressed in blue coloured clothes caught hold of Muhammad Rafiq/Guard and tried to snatch his gun. When Muhammad Rafiq grappled with him, he caused a straight fire hitting Muhammad Rafiq on the right side of his chest. The person with beard fired the second shot which hit Muhammad Rafiq on his right bicep. The third tire-shot by he third person hit Muhammad Rafiq on the left side of his chest. Muhammad Rafiq fell down. Then both the persons standing in the door also came in and picked up gun of Muhammad Rafiq. When Amir Hussain stepped forward, he was given Butt blows by the two persons. Amir Hassain also fell down and became unconscious. The accused had to take away the cash but due to resistance they picked up the gun, went out of the bank and while firing three aerial shots went towards Kallar Syedan in Suzuki Car No.5611-IDK. Muhammad Rafiq succumbed to the injuries at the spot. The police was informed over telephone by the complainant.

4. On 17-5-2003 on "receipt of information about the occurrence over telephone, Muhammad Sabir, S. -I. /P. W .14, went to the place of occurrence, recorded the statement/complaint of complainant Exh.PB and sent the same to the police station for registration of formal F.I.R. Then the Investigating Officer (I.O.) prepared the inquest report Exh.PB of the deceased and sent the dead body for post-mortem examination. He also prepared the injury statement Exh.PY of injured Amir Hussain. He prepared rough site-plan Exh.PZ of the place of occurrence. On the same date, blood was secured from the place of dead body through cotton and sealed the same into parcel vide memo. Exh.PC. He then took into possession three empties P-3/1-3 from inside there bank vide memo. Exh.PD and three empties P-4/1-3 from outside the bank through memo. Exh.PE. On receipt of information about the occurrence, Nazar Hussain, S.-I./S.H.O. (P.W.13), also reached the spot. He along with Muhammad Sabir/S.-I. and other police officials left for search of the accused and took into possession Car No.5611/IDK P-1 (which was broken) through memo. Exh.PA. Meanwhile Shafqat and Zubair, accused, were arrested and .30 bore pistol from each of them was recovered. Repeater gun .12 bore was also recovered from Shafqat Mahmood. The I.O. got their identification parade on 24-5-2003 through the Magistrate/P.W.10. He then added offence under section 7 of the ATA. The remaining accused, i.e. Aftab, Ashiq and Shahid Israr could not be arrested and were, thus, declared proclaimed offender. However, on 29-7-2003 Aftab alias Tabi and Muhammad Ashiq were arrested and .30 bore pistols (P-10 and P-11) from each of them were recovered and taken into possession vide memos. Exhs.PJJ and PLL. Their identification parade was held on 11-8-2003 through Fakhar-ul-Islam Dogar, Judicial Magistrate/P.W.12. After completion of investigation all the four appellants were sent to face the trial.

5. To substantiate its version at the trial, the prosecution produced twenty two witnesses and after placing on record the reports of Chemical Examiner and Serologist Exhs.PNN and POO closed its side. In their 'statements recorded under section 342, Cr.P.C. the accused/appellants pleaded their innocence and false implication. Muhammad Zubair and Shafqat Mahmood, appellants, added that Muhammad Rafiq-Guard was murdered by unknown assailants due to personal vendetta. However, none of the appellants appeared as a witness under section 340(2), Cr.P.C. nor produced any witness in defence.

6. Ch. Zahoor Hussain, learned counsel for Muhammad Zubair submits that as far as recovery from Zubair is concerned, ,it has got no evidentiary value because none of the crime empties matched with the pistol recovered at his instance; that the description of Zubair as given in the F.I.R. is inadequate, insufficient and vague. As to the identification of Zubair, the learned counsel submits that it is of no value for the reasons that during cross-examination, Ahmad Iqbal, complainant/ Manager of the bank/P.W.4, categorically stated that 3 or 4 days prior to identification parade he read in newspaper that the accused had been arrested and to verify this news, he went to police station and there he identified the accused Shafqat Mahmood and Muhammad Zubair, who were in police lock-up and that the identification in the jail was a formality. Further submits that what role was played by each one of the accused during the occurrence was not specified by the eye-witnesses before the learned Magistrate neither the learned Magistrate bothered to record the same. According to the learned counsel, this is of vital importance which renders the identification parade insignificant. Places reliance on State through Advocate-General, Sindh, Karachi v. Farman Hussain and other (PLD 1995 SC 1). The learned counsel submits that as -far as the statement of Amir Hussain, injured/P.W.5, is concerned, he was not asked to identify Muhammad Zubair and Shfaqat Mahmood in the jail; that this omission on the part of Amir Hussain renders the identification parade unreliable. In this respect, he relies upon Sabir Ali v. The State (2006 PCr.LJ 1400). The learned counsel submits that the learned trial Court observed that Amir Hussain had identified all the accused persons in the Court during trial. According to the learned counsel, this identification is of no consequence or significance, rather it is an illegality. Reliance has been placed upon the case of Saiful Malook and others v. The State and others (1992 SCMR 1597), Zulfiqar Ali v. The State (1993 PCr.LJ 168) and The State v. Niaz Muhammad and another (PLD 1976 B.J. 10). The learned counsel submits that Amir Hussain had admitted during trial that he had been attending the Court for the last five dates of hearing and had seen the accused while appearing before the learned trial Court and on the sixth adjournment when his statement was recorded, he identified the accused; that for the above said reasons, if the identification parade is excluded, then there is no nexus of the appellants with the alleged crime and the prosecution has got no other material to substantiate the identification parade. The learned counsel further submits that there is conflict between ocular account and the medical evidence, as in the F.I.R., three fires were alleged to have been shot by the accused but there are only two injuries on the person of the deceased. The learned counsel urges that there is not an iota of evidence on record to connect the appellants with the commission of offence.

7. Mr. Muhammad Arshad Tabrez, Advocate for Shafqat Mahmood-appellant; submits that as far as recovery of repeater gun from Shafqat Mahmod is concerned, P.W.8 Zafar Mahmood admitted during trial that the gun was lying with the dead body when he came in the bank along with the Investigating Officer. He further submits that the accused persons had raised an objection at the time of identification parade that they were shown to the eye-witnesses and this has been admitted by P.W.4 Ahmad Iqbal also. In addition to these submissions, the learned counsel has adopted the arguments advanced by the learned counsel for Muhammad Zubair appellant.

8. Mr. Basharat Ullah Khan, Advocate, who has been appointed to defend Aftab alias Tabi and Muhammad Ashiq alias Shaukat, appellants, at State expense, while adopting the line of arguments of the learned counsel for Muhammad Zubair and Shafqat Mahmood, adds that the report of Fire Arms Expert is in the negative.

9. Conversely, Mr. Muhammad Asif Chaudhry, learned counsel for Mst. Safdar Bi, widow of Muhammad Rafiq-deceased, submits that none of the eye-witnesses had any animus or motive against the appellants, so there is no question of false implication; that immediately after the occurrence, causing the murder of the deceased and injuries to the P.W. and being failed in the commission of dacoity, the accused ran away towards a nearby jungle Bharwala where the police of Police Stations Rawat and Kallar Syedan reached and there was a police encounter and in the encounter both Shafqat Mahmood and Muhammad Zubair appellants were arrested and not only .30 bore pistols were recovered from them but also recovery of repeater gun of the deceased Security Guard of the bank was effected from Shafqat Mahmood. The learned counsel submits that they both had taken specific plea that they had gone to commit the dacoity but Muhammad Rafiq Security Guard was murdered by some one else due to personal vendetta. The learned counsel submits that Amir Hussain/P.W.4, being injured and a star witness of prosecution, has fully implicated the appellants and, thus, there is no question of false implication of the appellants and even no enmity or motive against the appellants has been ascribed to him. The learned counsel submits that variations or minor discrepancies in the statements of the witnesses do not destroy the intrinsic value of the evidence of such witnesses. He submits that the F.I.R. was lodged with promptitude. He, while relying on Abdul-Majeed v. The State (1992 SCMR 329) and Mushtaq alias Shaman v. The State (PLD 1995 SC 46), supports the judgment passed by the learned trial Court.

10. The learned Assistant Advocate General, while placing reliance on Muhammad Akbar v. The State (1998 SCMR 2538), submits identification parade is a rule of prudence and not rule of law and if the case is otherwise proved beyond reasonable doubt, then identification parade becomes immaterial and irrelevant and in this regard he refers to the circumstance i.e. immediate arrest of Muhammad Zubair and Shafqat Mahmood and recovery of repeater gun from Shafqat Mahmood, belonging to the Security Guard who was murdered. Further submits that Amir Hussain, injured P.W.5, has fully implicated the appellants in the commission of the offence. Reliance was placed upon Mushtaq Hussain alias Mushtaqi vs. The State (PLD 2006 SC 519).

11. We have heard the learned counsel for the parties at a great length and have also gone through the record of the case.

12. The occurrence in this case took place on 17-5-2003 at 10-45 a.m. in Habib Bank Limited Mankiala Railway Station Kallar Syedan Road, District Rawalpindi. The complaint was recorded in the bank through Ahmad Iqbal, Manager of the bank, by the police, who after being informed, came there and recorded his statement. Formal F.I.R. was recorded on the same date at 12-30 p.m. No body was named in the F.I.R.; it is but natural because dacoits are mostly not known to the complainant neither they leave anything to tell their names. Shafqat Mahmood and Muhammad Zubair appellants were arrested on 17-5-2003. On 29-7-2003, Aftab alias Tabi and Muhammad Ashiq appellants were arrested. Muhammad Zubair got recovered .30 bore pistol. Shafqat Mahmood got recovered a .30 bore pistol and also a repeater gun which was taken away by them from Muhammad Rafiq who is deceased and gunman of the bank. Aftab alias Tabi got recovered .30 bore pistol and the same is the position of Muhammad Ashiq. Three empties of .30 bore pistol were recovered from inside the bank and three empties of .30 bore were recovered from outside the bank, though the report of the Fire Arms Expert in that regard is in the negative. The car in which the five dacoits came in the bank is a registered one and its registration number has been given in the F.I.R. and that was recovered immediately after the occurrence from an abandoned place near the place of occurrence. Identification parade of Muhammad Zubair and Shafqat Mahmood, appellants, was held by Amjad Saeed, Special Judicial Magistrate/P.W.10, on 24-5-2003. In the said identification parade, Ahmad Iqbal, Manager of the bank/P.W.4, identified both the appellants, while Muhammad Iqbal/Cashier did not identify them.

13. As far as identification parade of other accused, i.e. Aftab alias Tabi and Muhammad Ashiq, is concerned, the same was held on 11-8-2003 through Fakhar-ul-Islam Dogar, Judicial Magistrate/P.W.12. Three eye-witnesses had gone there. In the identification parade, Ahmad Iqbal/P.W.4 and Amir Hussain/injured, Security Guard of the Bank/P.W.5, correctly identified the accused, while Muhammad Iqbal, Cashier, did not identity the accused. The two eye-witnesses Ahmad Iqbal/P.W.4 and Muhammad Iqbal/P.W.5 had stated against the present appellants. It is a bank dacoity case. It was a broad daylight occurrence. Description of the accused was given in the first information report. Two of the accused Shafqat Mahmood and Muhammad Zubair were apprehended immediately after the occurrence by the police from a nearby Bharwana jungle falling within the jurisdiction of Police Station Kallar Syedan. The car on which the accused came in the bank was also recovered from an abandoned place near the place of occurrence. The repeater gun belonging to the Security Guard of the bank along with a .30 bore pistol was recovered from Shafaqat Mahmood and a .30 bore pistol was also recovered from Muhammad Zubair. The eye-witnesses, especially the injured P.W., has no animus whatsoever against the appellants. This type of offence is at the peak. The conclusions, which we are arrived at, are through the following:- (I) Muhammad Rafiq, Security Guard, of the bank was murdered by the dacoits; (II) Amir Hussain, another Security Guard of the bank sustained injuries at the hands of the dacoits; (III) Apprehension of both Shafqat Mahmood and Muhammad Zubair appellants immediately after the occurrence; (IV) The recoveries of .30 bore pistols from both the appellants along with the repeater gun of Muhammad Rafiq, the deceased Security Guard of the bank; (V) Identification of the accused and more so the identification of the accused in the Court. Taking into consideration the above noted facts and circumstances, we are of the opinion that the eye-witnesses are independent witnesses. They had no animus or motive whatsoever to falsely implicate the appellants especially Amir Hussain, Security Guard of the Bank/injured P.W. and Ahmad Iqbal, Manager of the Bank/P.W., are natural witnesses. No case for false implication of the appellants is made out.

14. For the foregoing reasons, the appeals filed by the convicts are dismissed. The death sentence imposed upon them is confirmed. The Murder Reference is answered in the affirmative.

15. Criminal Revision No.60 of 2004 seeking enhancement of amount of compensation is also dismissed. H.B.T./M-757/L Appeal dismissed.