1994 P Cr (PLP)

IMAM ALI G. KAZI, J.

The Judge, Special Court-III for Suppression of Terrorist Activities, Karachi, by his judgment passed on 21-12-1992, has convicted accused Shaman Jatoi, Gul Muhammad Sanjarani and Imdad Hussain Jakhro under section 307/34, P.P.C. and sentenced them to undergo rigorous imprisonment for 7 years in Special Case No.336/91. The convicts have been allowed the benefit of section 382-B, Cr.P.C. for the purpose of computation of their sentence. All the three convicts have appealed against their conviction and sentence. Criminal Jail Appeal No.17 of 1993 has been filed by convict Gul Muhammad Sanjarani from jail, while Criminal Appeal No.28 of 1993 has been filed by convicts lmdad Hussain Jakhro and Shaman Jatoi. Since both the appeals are directed against the common judgment, we have heard the appeals together and propose to decide the two appeals by this common judgment.

2. The case of the prosecution is that on 19-10-1989 at about 9-30 a.m. one Naveed Younas was taking his son Saad Younas to his school. He drove his Honda Accord car. His servant Aman Room sat in the rear seat of the car. Naveed Younas resided on Business Recorder Road, Karachi and after he had covered about 100 paces distance from his house, he negotiated a left turn in the street and found a white coloured car blocking the road. Two persons armed with Klashnikovs, got down from that car and started firing on them. Glasses and rear mudguard of the car were damaged due to firing and the child Saad Younas, sitting in the back seat of the car, received bullet shots. Naveed Younas managed to escape and rushed to Agha Khan Hospital, taking the injured with him. After some time, police reached the Agha Khan Hospital where statement of Aman Room, servant of Naveed Younas was recorded. His statement was treated as statement recorded under section 154, Cr.P.C. and sent to the police station for registration of the offence in the register kept under section 154, Cr.P.C. The present appellants were arrested on 27-10-1989 by C.I.A. Police in investigation of some other offence and through their interrogation, it was found that they, alongwith one Agha Naveed, were responsible for committing this offence. D.S.P., Arshad Kamal Kiyani, summoned the file of this case and arranged identification test of the accused in this case. The present appellants were picked and identified by the witnesses and were arrested in this case as well. After completion of investigation of this case, the appellants were sent up to stand trial in the Court of Judge, Special Court-III, Suppression of Terrorist Activities, Karachi for offence under section 307/365-A/34, P.P.C. Agha Javed the fourth accused in the case was killed in an encounter with police in some other incident.

3. The trial Judge framed charge against three appellants under section 307, read with section 34, P.P.C. The prosecution, in all, examined prosecution witnesses Gulzar, Aman Room, Ali Bux, Syed Arshad Hussain Zaidi, Anwer Zeb, Abdul Nabi, Sultan Masood and Shahzad Ali Naqvi in support of the case. In their statements recorded under section 342, Cr.P.C. the appellants Shaman Jatoi and Imdad Hussain denied the allegations of the prosecution and alleged that they were implicated falsely in the case as they are Jeay Sindh workers and were arrested in front of Haider Manzit. The third Appellant Gul, Muhammad Sanjarani claimed to be having differences with the P.P.P. Government at the time of his arrest from a place at Sardar while making some purchases. Appellant Imdad Hussain examined himself on oath and one defence witness Sher Ali to prove his claim of being a worker/office-bearer of Jeay Sindh Organization. The trial Judge, on the appraisal of the evidence recorded in the case, found the appellants guilty of offence under section 307, read with section 34, P.P.C, and convicted and sentenced them as stated above. Aman Room, P.W.2, who is an eye-witness to the incident gave clear description of the incident and is the complainant in the case. According to him, he was sitting in the rear seat of the car with child Saad Younas. The car was being driven by Naveed Younas, his employer. They hardly covered a distance of about 100 paces from the residence of Naveed when they turned left and found the street blocked by a white coloured car. Three persons were sitting in the car. Out of them, Appellants Gul Muhammad and Shaman Jatoi had Klashnikoves in their hands and they fired at the Honda car of Naveed Younas from their weapons. Saad Younas sustained injuries due to the firing in his right hand and right shoulder. Naveed Younas could turn around and scape in the car and rushed to the Agha Khan Hospital. His report was recorded in Agha Khan Hospital. According to his statement; appellant Imdad Hussain remained seated in the car while appellants Gul Muhammad and Shaman, armed with Klashnikovs came out of the car and fired at them. He identified all the three persons in the identification test. While he was being examined in Court, he pointed to the appellants Gul Muhammad and Shaman Jatoi to be the two assailants while, according to him, the third person was not present in Court. The other witness Ali Bux, P.W.3, examined in the case is Chowkidar of Naveed Younas and he rushed to the scene on the sound of firing and had witnessed the incident. Although the car of Naveed Younas immediately escaped from the scene but according to his statement, he had seen four persons. Out of them, he saw two persons standing on road who had fired, while two were sitting in the car. The two persons standing oh the road were armed with Klashnikoves. He pointed out that out of the four persons, there were present in Court. He pointed out that appellants Shaman and Gul Muhammad were armed with Klashnikoves and had fired on the car. He identified the three appellants in Court besides picking them in the identification test. , In addition to the evidence mentioned above its injuries on the person of Saad Younas, blood available in the car and damage to the car itself, corroborated the evidence of the two principal eye-witnesses and the trial Judge found the case to have been proved against the Appellants. Appellant Gul Muhammad, Sanjarani, who had filed his appeal from jail, was called and heard. He claimed that he was victim of police and due to his participation in Jeay Sindh activities, he was implicated in the case otherwise there is no evidence on record against him. He further contended that important eye-witnesses have not been examined by the prosecution, which renders the whole case doubtful.

3. Mr. M. Ilyas Khan, Advocate for the other two appellants in Criminal Appeal No.28 of 1993, raised the following arguments in support of the appeal: (1) That there is no specific mention that Klashnikoves were used by the appellants in the F.I.R. and, therefore, the offence is not a scheduled offence that could be tried by a Judge, Special Court of Suppression of Terrorist Activities, and (2) That the only piece of evidence against the appellants is of identification. To support his contentions, he referred to the cases reported in P L D 1965 (W.P.) Kar. 31, P L D 1981 Kar. 1, P L D 1992 Kar. 104, 1992 A L D 373(1), 1993 S C M R 585, 1988 S C M R 557, P L D 1981 SC 142, 1992 P Cr. L J 150 and 1990 P Cr. L J

417. Mr. Ashiq Raza, Advocate appearing for the State, has supported the judgment impugned in these appeals.

4. The two important eye-witnesses Aman Room, P.W.2, and Ali Bux, P.W.3, have proved the incident of firing by Klashnikovs injuries to the child and damages to the car. They are the eye-witnesses to the incident. Their evidence is consistent and they do not appear to be having any motive to falsely implicate any of the appellants. The names of the appellants are not mentioned in the First Information Report as they were not known to the prosecution witnesses. F.I.R. is lodged promptly and without any exaggeration. On 19-10-1989 the incident took place in broad daylight in an open public street where the witnesses had sufficient chance to see the assailants clearly. The identification test was conducted only after 11 days and the appellants were duly picked out in the identification test. The evidence of conducting the identification test in accordance with the laid-down principles, has not been shattered by the appellants in their cross-examination. No exception can be taken to such evidence. The ocular evidence of the witness, the evidence of identification, corroborated by evidence in injuries having been received by the child (2-1/2 years old), damage to the car, securing of empties from the Wardat, put together, make out the case of the prosecution. The cases referred to by Mr. M. Ilyas Khan, Advocate, for the appellants in Appeal No.28 of 1993, will hardly be of any help to the appellants. It is true that Naveed Younas has not been examined by the prosecution. Saad Younas is a child of 2-1/2 years and was not examined due to his tender age while medical certificate of his injuries is also not brought on record. This is not a case of hurt where, in order to determine the nature of hurt, medical certificate would be the basis. This is a case of attempt to kill. The appellants knew that by firing the deadly at the inmates of the car, it could result in death of someone. Offence under section 307, P.P.C., has therefore, been proved. The omission to describe the weapons used in the commission of the offence will not take the offence out of the purview of the Court. The witnesses in the investigation and in Court have unequivocally stated that Klashnikovs were used by two appellants, bringing the trial of the offence within the jurisdiction or the Court in question. The evidence lead in defence by one of the appellants is no help as nothing has been alleged against the eye-witnesses to show that they in any manner, were politically motivated to give evidence against the appellants who claim to be Jeay Sindh activities.

5. It has, however, attracted our attention to the fact that P.W. Aman Room; in his statement recorded in Court did not identify appellant Imdad Hussain Jakhro in Court. His statement on such aspect appears to be honest as the said appellant is said to be sitting in the car and his identification by the witness would even otherwise be doubtful. For such reason, we give him the benefit of doubt, set aside the judgment and sentence passed against him and allow his appeal. He should be set at liberty forthwith, if not required in any other case . We find no merit in the appeals filed by Gul Muhammad Sanjarani and Shaman Jatoi, which are dismissed. N.H.Q./G-366/K Order accordingly.