2016 P Cr (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Tahir Hussain son of Muhammad Hameed, caste Mian, resident of House No.80, Street No.3 Landhi Stop No.1, Karachi, Chanzeb son of Ali Zaman, Caste Tanoli, resident of Hasan Bai, Police Station, Gandaf, District Haripur, appellants along with Malik Qamar (died in the hospital during the trial) were involved in case FIR No.319, dated 01.07.2003, offence under sections 302, 324, 411, 394, P.P.C., read with section 7 of Anti-Terrorism Act, 1997, registered with Police Station, Sadiqabad, District Rawalpindi and were tried by Malik Muhammad Akram Awan, learned Judge Anti-Terrorism Court No.1, Rawalpindi, who vide judgment dated 01.09.2009, convicted the appellants in the following terms:- Under section 7(a), Anti-Terrorism Act, 1997, read with section 302, P.P.C., for committing murder of Sher Bahadur, gunman of Adnan Jewelers, in furtherance of their common intention and sentenced to death with fine of Rs.100,000/- each, to be paid to the legal heirs of the deceased, if recovered. In default whereof to further undergo one year s R.I. each. Under section 392, P.P.C., and sentenced to five years R.I. with fine of Rs.20,000/- each, failing which to further undergo six months R.I. each. The sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was also extended in favour of both the appellants.

2. Feeling aggrieved by the judgment of the learned trial court, the appellants impugned the same through filing Criminal Appeal No.308-T/2009, whereas the learned trial court forwarded Capital Sentence Reference No.7-T of 2009 for confirmation of death sentence inflicted upon the appellants, in terms of section 374, Cr.P.C.

3. As both the matters are arising out of the same judgment, therefore, we intend to dispose off the same through this single judgment.

4. The prosecution story as alleged in the FIR (Exh.PA/1) recorded on the complaint (Exh.PA) of Adnan Yaqoob Baig; complainant (PW6) is that he is owner of Adnan Jewelers. On 01.07.2003, at about 2:00 p.m. the complainant was present in his shop, whereas his gunman Sher Bahadur of SAS Company armed with repeater .12 bore was standing at the shop. In the meanwhile, Sher Buhadur, gunman made a noise, why chilies have been put in his eyes? On hearing the noise, the complainant stood up from his chair and in the meanwhile he heard the voice of fire. Three accused armed with .30-bore pistols entered the shop. The complainant put the siren on at once. All the three accused warned the complainant loudly that he would be fired at if any noise is made and while breaking the glass of the showcase, the necklaces decorated in the showcase and five boxes containing golden rings lying therein were taken away by them. Two of them took two boxes each containing the golden rings in their hands and one of them took out one necklace and one box of golden rings from the showcase and ran away. The complainant came out of the shop and saw that his gunman was lying on the ground in injured condition. While snatching his repeater .12 bore, the accused fled away towards service road. Raja Muhammad Riaz, a mohallahdar, came to the complainant on seeing the occurrence, who was sent to the police station immediately to report the occurrence, who while running went towards the police station. The three young armed accused persons, who by putting chilies in the eyes of gunman of the complainant, causing him serious injuries, snatching gold ornaments, gold rings valuing Rs.400,000/-, snatching repeater .12 bore of his gunman and causing terror in the area, looted his articles, can be identified. Offence under section 302, P.P.C., was added on death of injured Sher Bahadur in the hospital on 06.07.2008.

5. On 01.07.2003, on receipt of information qua the occurrence through Riaz (PW-7), Mushtaq Ahmad, S.I. (PW-11) reached at the place of occurrence, where Adnan Yaqoob Baig, complainant (PW-6) narrated about the occurrence. The Investigating Officer recorded statement of the complainant, prepared injury statement of Sher Bahadur (Exh.PN) and sent the complaint (Exh.PA) at the Police Station through Tasawar constable for registration of formal FIR. After preparing injury statement, Sher Bahadur, injured, was sent to the hospital. The Investigating Officer alongwith the complainant proceeded towards service road, following the accused, where there was police encounter in process. The Investigating Officer arrested Tahir Hussain appellant. Mirza Fazal Ahmad, SHO (given up PW being unnecessary) recovered pistol .30-bore from him and took the same into possession vide recovery memo Exh.PL. The SHO told the Investigating Officer that the dacoits after entering into a house have injured one Saeed Akhtar and his wife Mst.Yasmeen, who have been sent to General Hospital. The Investigating Officer went to the General Hospital, where he prepared their injury statements and prepared the complaint of that case and also recorded their statements. The Investigating Officer came back at Adnan Jewelers, where Adnan and Riaz PWs were present, from where the Investigating Officer took into possession one empty of .30 bore pistol through recovery memo. Exh.PF. The Investigating Officer collected blood from the place of occurrence through cotton and secured the same vide recovery memo. Exh.PG. The Investigating Officer prepared rough site plan (Exh.PO) and thereafter he went to the police station. The Investigating Officer also recorded statements under section 161, Cr.P.C. of Adnan and Riaz, PWs, at the spot. Mirza Fazal Ahmad, SHO, told the Investigating Officer that the remaining two accused are in General Hospital in injured condition and their arrest was kept in abeyance. The Investigating Officer arrested Tahir Hussain accused in the instant case and on the following day sent him to the judicial lock-up. The complainant identified the jewelry in the police station, whereupon the Investigating Officer prepared fard shanakht Exh.PK, which was attested by the complainant and Khalique Ahmad, HC, Moharrar (PW-2). The Investigating Officer received information that Sher Bahadur had succumbed to the injuries in the hospital and his legal heirs had taken away his dead body to their village before reaching the Investigating Officer in the hospital. After checking record of the hospital, the Investigating Officer came back to the police station. On 07.07.2003, the Investigating Officer got prepared scaled site plan (Exh.PP & PP/1) of the place of occurrence by the draftsman. On 11.07.2003, the Investigating Officer formally arrested Chanzeb and Malik Qamar and sent them to judicial lock up on 12.07.2003. On 26.07.2003, the Investigating Officer recorded statements of Moharrar Malkhana, Khalique Ahmed (PW-2) and Shabbir Ahmad 4949/C (PW-4) through whom the parcel of said pistol was sent to Lahore. The Investigating Officer handed over the case file to the SHO, who challaned the accused. On 05.08.2003, the Investigating Officer obtained record from the PIMS Hospital and recorded statement of Record Keeper. On 01.07.2003, the complainant also got recorded his supplementary statement, in which he explained that during the commission of dacoity, the accused Malik Qamar, sprinkled chilies in the eyes of his gunman, whereas Chanzeb injured him by firing upon him and the 3rd accused was Tahir Hussain.

6. Having found the appellants guilty, the Investigating Officer prepared report under section 173, Cr.P.C. and sent the same to the court of competent jurisdiction for trial.

7. The appellants were charge sheeted by the learned trial court on 02.10.2003, under sections 7(a), A.T.A., 1997, read with section 302, offence punishable under section 17(4). The Offences Against Property (Enforcement of Hadood) Ordinance, 1979 and offence under section 411, P.P.C., to which they pleaded not guilty and claimed trial. Prosecution in order to prove its case produced as many as twelve witnesses. Occular account in this case has come out from the statements of Adnan Yaqoob Baig, complainant (PW-6) and Muhammad Riaz (PW-7). The investigation of this case was conducted by Mushtaq Ahmad, S.I. (PW-11). Khurram Shahzad son of Allah Ditta, Assistant of Qamar ud Din, Draftsman, (PW-12) has appeared before the Court on behalf of Qamar ud Din, Draftsman, as he was taken to Saudi Arabia for treatment. On 01.07.2003, Dr. Shaheen Akhtar Malik, CMO, Rawalpindi, (PW-3) examined Sher Bahadur in injured condition and found the following injuries on his body:- "1) There was swelling pain and deformity of left thigh. There was abnormal movement. 2) There was circular lacerated wound of fire arm entry over the left thigh, lower third, interiorly measuring 0.5 x 0.5 c.m. There was no blackening. 3) Circular lacerated wound of fire arm exit wound over the left thigh posteriorly lower third measuring 1 x 1 c.m. On the same day i.e. 01.07.2003 at 1:16 p.m. Dr. Muhammad Sher Gul, General Surgeon, PIMS Hospital, Islamabad, received the referred patient namely Sher Buhadur, who remained under his treatment and expired on 06.07.2003. He prepared the summary of death certificate Exh.PM. The said certificate was also signed by Dr. Zahir (PW-1) and Dr. S.H. Waqar (given up PW). Statements of rest of the prosecution witnesses are formal in nature.

8. On 19.03.2004, learned S.P.P. gave up Dr. S.H. Sarwar, Muhammad Arif, Senior Medical Record Officer and Prof. Dr. Muhammad Shaficjue, PWs, being unnecessary. Vide separate statement on 20.04.2004; learned S.P.P. further gave up Fazal Ahmad, Inspector/SHO, being unnecessary. On 28.04.2004, learned S.P.P., after tendering report of Serologist (Exh.PQ), report of Forensic Science Laboratory (Exh.PR) and report of Chemical Examiner (Exh.PS) closed the prosecution evidence.

9. The appellants were also examined under section 342, Cr.P.C.; wherein Tahir Hussain appellant neither opted to lead defence evidence, nor opted to appear as his own witness as provided under section 340(2), Cr.P.C. in disproof of the allegations levelled against him in the prosecution evidence. However, Chanzeb, appellant opted to produce defence evidence. To a question why this case is against him and why the PWs deposed against him, Chanzeb, appellant made the following deposition:- "I am innocent. The real facts have not been brought on record. Actual story is that Adrian Yaqoob who runs a jewelry shop purchased gold from Tahir accused and 01.07.03 was fixed for payment for the said gold. I alongwith Tahir and Malik Qamar accused went to Adnan's shop. Nazir Butt (PW) and Raja Riaz (PW) were already present there. Tahir accused demanded payment from Adnan but he refused to make the required payment. Thereupon an altercation took place; hot words were exchanged between Tahir and Adnan. Suddenly Adnan took out his .30 bore pistol and started firing upon us. I received a bullet on my leg, Sher Bahadur Guard also sustained the bullet shot fired by Adnan Yaqoob. Due to fear we ran away and crossed the road, but due to injury I stood still in the street, in the meanwhile Raja Riaz (PW) armed with repeater of the Guard, Adnan and Nazir armed with .30 bore pistols, chased us. Adnan fired a shot, which hit me on my chest on the left side. They continued firing and in result thereof Malik Qamar accused, Saeed Akhter deceased and his wife received fire-arm injuries. Nazir also got injuries during the firing. Even before reaching of the police at the spot we were brought to the hospital in an Eidhi Ambulance by the people who had gathered there. Further it is absolutely a false story. This is all concoction cooked up by Adnan Yaqoob and the police to exonerate Adnan Yaqoob and his companions and to scapegoat us/the accused, as Adnan Yaqoob has bribed the police. The police has acted dishonestly throughout". While replying to a similar question Tahir Hussain appellant deposed as under:- "I am innocent. The real facts have not been brought on record by prosecution. Actual story is that Adnan Yaqoob who runs a jewelry shop purchased gold from me and 01.07.2003 was fixed for payment for the said gold. I alongwith Chanzaib and Malik Qamar accused sent to Adnan's shop. Nazir Butt (PW) and Raja Riaz (PW) were already present there. I demanded payment from Adnan but he refused to make the required payment. Thereupon an altercation took place, hot words were exchanged between me and Adnan. Suddenly Adnan took out his .30 bore pistol and started firing upon us. Chanzaib received a bullet on his leg, Sher Bahadur guard also sustained the bullet shot fired by Adnan Yaqoob. Due to fear we ran away and crossed the road, but due to injury Chanzaib stood still in the street, in the meanwhile Raja Riaz (PW) armed with repeater of the guard Adnan and Nazir armed with .30 bore pistols chased us. Adnan fired a shot, which hit on the chest of Chanzaib on the left side. They continued firing and in result thereof Malik Qamar accused, Saeed Akhtar deceased of Case No.324 and his wife received fire-arm injuries. Nazir also got injuries during firing. Even before reaching of the police at the spot we were brought to the hospital in Eidhi Ambulance by the people who had gathered there. Further it is absolutely false story. This is all concoction cooked up by Adnan Yaqoob and his companions and to scapegoat us/the accused, as Adnan Yaqoob has bribed the police. The Police has acted dishonestly throughout". In defence Khalid Mehmood, Advocate tendered certified copies of the statements of Waheed Akhtar (PW-6), Shabbir constable (PW-2), Dr. Shaheen (PW-3), Mirza Fazal Ahmad (PW‑9), Farid Shah SI (PW-5), Muhammad Riaz, ASI (PW-4), Nazir (PW-8), copy of FIR No.320, certified copy of statement of Mushtaq Ahmad (PW-13), Muhammad Riaz, ASI (PW-9), Faryad Hussain, S.I. (PW-5), Muhammad Ishrat (PW-7), Dr. Shaheen (PW-12) of case FIR No.324 as Exh.DH and copy of challan of case FIR No.324 (under objection) and closed the defence evidence on behalf of Chanzeb appellant.

10. Learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt against the appellants resulting into their conviction in the afore stated terms.

11. Learned counsel for the appellants while advancing arguments at the very outset stated that the conviction under section 7(a) of the Anti-Terrorism Act, 1997 and section 302(b), P.P.C., was passed jointly, therefore, the impugned judgment is not sustainable in the eyes of law and prayed that the matter be remanded back to the earned trial court for re writing the judgment. On merits, learned counsel for the appellants while advancing arguments submitted that the FIR was lodged with a delay of thirty five minutes and for such delay no explanation whatsoever has been rendered by the prosecution. Learned counsel further submitted that there is absolutely no evidence against the appellants to establish their link in the instant case. Learned counsel went on arguing that no specific role had been ascribed to the appellants in the crime report. Learned counsel added that the appellants were not named in the crime report, rather they had been roped in the instant case by the complainant through supplementary statement. It was contended that no test identification parade was carried out in the instant case in order to ascertain involvement of the appellants with the commission of the offence. It was argued that Adnan Yaqoob, complainant (PW-6) had not witnessed the occurrence of putting chilies in the eyes of his gunman; rather he came out of the shop after the occurrence. Learned counsel argued that postmortem examination on the dead body of the deceased was not carried out and without such examination; no exact cause of death can be given by the Medical officer. It was forcefully agitated by learned counsel that in absence of any direct role, the medical evidence is of no avail. Learned counsel further submitted that no recovery whatsoever was made in the instant case. Learned counsel emphasized that as a matter of fact Adnan Yaqoob complainant, on account of payment of jewelry, had resorted to firing; thereby inflicting injuries on the person of Chanzeb (appellant), Malik Qamar, accused and Sher Bahadur, his gunman (who both subsequently succumbed to the injuries) and in order to save his skin, he while joining hands with the police while creating pressure upon the prosecution witnesses substituted the appellants. Learned counsel finally submitted that in view of deficit prosecution evidence available on the record to connect the appellants with the commission of offence, the learned trial court was not justified in recording conviction as such the same is liable to be set aside.

12. As against above, learned Law Officer forcefully opposed the contentions raised by learned counsel for the appellants. It was argued that the appellants had been implicated in the instant case by the complainant through supplementary statement. It was next argued that it is a promptly lodged crime report. Learned Law Officer submitted that the appellants are involved in a series of cases in which two persons were done to death while two others received injuries. Learned Law Officer went on arguing that as the appellants were caught red-handed after police encounter as such there was no need of holding test identification parade. It was further argued that the medical evidence is inline with the occular account. Learned Law Officer emphasized that the crime empties collected from the place of occurrence matched with the crime weapons recovered from the appellants and report of Forensic Science Laboratory being positive, the same fully substantiates the prosecution version. Further submitted that during the course of investigation, both the appellants were found guilty as such their names were placed in column No.3 of the report prepared under section 173, Cr.P.C. In presence of overwhelming evidence available on the record coming from the mouth of most natural/independent witnesses finding full corroboration from other attending circumstances, learned Law Officer stated, the learned trial court was rightly justified in recording conviction against the appellants.

13. We have heard the arguments of learned counsel for the appellants as well as learned Law Officer and perused the record. 14, As far as the preliminary objection raised by learned counsel for the appellants that the conviction recorded by the learned trial court should have been under separate heads of section 7(a) of the Anti-Terrorism Act, 1997, and section 302(b), P.P.C., therefore, the case should be remanded back for re-writing the judgment is concerned suffice it to say that under the provisions of sections 376/537, Cr.P.C. this Court has been empowered to cure any illegality while exercising powers at appellate stage. Releant portion of section 376, Cr.P.C. reads as under:-

376. Power of High Court to confirm sentences or annul conviction. In any case submitted under section 374, the High Court (a) ... (b) may annul the conviction and convict the accused of any offence of which the Sessions Court might have convicted him or order a new trial on the same or an amended charge; or (c) ... (Underlining by us) In the Indian jurisdiction in Jumman and others case [PLD 1957 Supreme Court (India) 381] it was held that the appellate forum is equally competent to cure illegality at the time of disposal of appeal/reference.

15. As far as merits of the case are concerned, there is no denial to this fact that the appellants are not named in the crime report, however they had been implicated by the complainant in the instant case through supplementary statement recorded on the same day i.e. 01.07.2003. It is worth mentioning here that the appellants are involved in a series of three cased including committing dacoity at the jewelry shop of Adnan Yaqoob (complainant), making firing on Mst. Yasmeen, as well as, her husband namely Saeed Akhtar and subsequently entering into a police encounter regarding which separate FIRs were registered.

16. As far as the argument of learned counsel for the appellants qua thirty five minutes delay in lodging the crime report is concerned, it is worth mentioning here that the inter se distance between the place of occurrence and police station is one K.M. and as such by no stretch of imagination it can be said that the FIR was delayed, rather the same is a promptly lodged crime report.

17. Occular account in this case consists on the statements of Adnan Yaqoob Baig (PW-6) and Muhammad Riaz, (PW-7). While appearing in the witness box, in their statements both of them fully involved the appellants being culprits of the occurrence. Admittedly in the instant case neither the accused were known to the prosecution witnesses nor test identification parade was held. However, as per contents of the crime report at the time of occurrence, the complainant, as well as, PW-7 had duly witnessed the occurrence. After police encounter, the appellants were caught red handed. In such circumstances, there was no need of carrying test identification parade. Even otherwise, in view of pronouncements of the superior courts of the country, when the prosecution leads sufficient incriminating evidence to prove identity of the accused, test identification parade becomes immaterial. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Muhammad Akram Rahi and others v. The State and others (2011 SCMR 877); wherein it was held as under:

S. 302(b)

Qatl-e-amd

Appraisal of evidence

Absence of identification parade

Effect

Where identity of accused is proved by other convincing direct or circumstantial evidence, the absence of identification test proceedings will be immaterial." Similar view was held by august Supreme Court of Pakistan in the case of Dr. Javaid Akthar v. The State (PLD 2007 Supreme Court 249).

18. There is no denial to the fact that prosecution version of the occular account finds full support from the medical evidence coming from the mouth of Dr. Shaheen Akhtar Malik CMO (PW-3). Due to nature of injuries, the injured was referred to Surgical Unit of PIMS Hospital, Islamabad, where he remained under treatment of Dr. Muhammad Sher Gul (PW -9) and he ultimately died in the hospital due to the said injuries. As far as argument of learned counsel for the appellants that as postmortem examination was not conducted on the dead body of the deceased, therefore, exact cause of death cannot be determined by the Medical Officer is concerned, the same is of no avail as Dr. Muhammad Sher Gul (PW-9) stated in categorical terms in his cross-examination as under:- "It is incorrect to suggest that as there was no postmortem, I was not able to give exact cause of death".

19. As far as recovery of crime weapons is concerned, admittedly the same was effected in case FIR No.320/2003. When Chanzeb appellant was overpowered by the police employees, besides jewelry boxes, pistol .30-bore was also recovered. Similarly after cross-firing Tahir Hussain appellant was also caught red-handed by Mushtaq, S.I. and from his possession pistol .30-bore alongwith one live cartridge was also recovered and the same was taken into possession. As per record available on file, the crime empties collected from the place of occurrence and the crime weapons recovered from the appellants were transmitted to the office of Forensic Science Laboratory and its report in respect thereof (Exh.PR), is positive, which further substantiates the prosecution version. Moreover, bloodstained earth collected by the Investigating Officer at the time of spot inspection was sent to the offices of Chemical Examiner/Serologist and according to their reports (Exh.PS and Exh.PQ), the same was stained with human blood, which straightway supports the prosecution case. Fact also remains that during the course of investigation the accusations levelled against the appellants in the crime report were found correct as such their names were placed in column No.3 of the report prepared under section 173, Cr.P.C. Moreover, as the appellants were caught red handed after police encounter, therefore, no question of substitution of the appellants arises, The provisions of sections 302, 392, P.P.C., read with section 7(a) of Anti-Terrorism Act, 1997 are attracted in the case in hand; therefore, the role has become immaterial as the word 'conjointly' has been used by the legislator while defining the provisions of section 391, Cr.P.C.

20. The appellants, on the other hand, failed to lead a single circumstance; thereby creating any dent in the prosecution version, which even otherwise is straightway confidence inspiring and finding full corroboration from other attending circumstances. Admittedly both the appellants were belonging to far away areas, Chanzeb hails from Hari Pur while Tahir Hussain is resident of Karachi and there is nothing on record to establish that why they had gathered at the place of occurrence at the relevant time and that too fully armed with firearms. The story advanced by the appellants in their statements recorded under section 340(2), Cr.P.C. does not advance the defence case rather it substantiates the prosecution version with regard to presence of the appellants at the place of occurrence at the relevant time.

21. Upshot of the above discussion is that the prosecution has substantiated its case through leading evidence by the most natural witnesses of the occurrence, who remained coherent on salient features of the prosecution version. The medical evidence fully substantiates the prosecution case. Recovery of pistols from the appellants and positive report of Forensic Science Laboratory in respect thereof, is also a circumstance, which fully establishes the prosecution case and the complainant was having no previous enmity with the appellants to have falsely involved them in the instant case. Hence, by any stretch of imagination, the prosecution case is fully proved beyond iota of reasonable doubt and we are constrained to observe that the learned trial court was well justified in passing conviction against the appellants and sentencing them to death. Resultantly, Criminal Appeal No.308-T/2009 filed by Tahir Hussain and Chanzeb, appellants is DISMISSED IN TOTO, as a consequence whereof, conviction and sentence recorded by the learned trial Court by virtue of judgment dated 01.09.2009 is upheld/maintained.

22. Capital Sentence Reference No.7-T/2009 forwarded by the learned trial Court in terms of section 374, Cr.P.C. for confirmation of sentence of death inflicted upon Tahir Hussain and Chanzeb/convicts succeeds, which is answered in AFFIRMATIVE. Death sentence inflicted upon Tahir Hussain and Chanzeb/convicts in CONFIRMED. HBT/T-19/L Appeal dismissed.