HIGH COURT OF SINDH AT KARACHI
Special
Criminal Anti-Terrorism Appeal No.23 of 2010
Criminal
Reference No.08 of 2010
Present: Sajjad Ali Shah, J.
Naimatullah Phuploto,
J.
Appellants: Kamran and Farhan Ahmad Hashmi through Mr. Abdul
Razzak, Advocate.
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Respondent: The State through Mr. Khadim Hussain Khoonharo, Deputy
Prosecutor General Sindh.
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Date of
hearing: 23.01.2013
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JUDGMENT
Naimatullah Phulpoto, J.-- Appellants
Kamran and Farhan Ahmad Hashmi
were tried by the learned Anti-Terrorism Court No.1, Karachi Division in
Special Case No.45/2006 under sections 302/34 PPC read with section 7(a) of the
Anti-Terrorism Act 1997. Learned Anti-Terrorism Court convicted both the
Appellants under sections 302/34 PPC read with section 7(a) of the Anti-Terrorism
Act 1997 and sentenced each of them to death, both were ordered to be hanged by
neck till they are dead. Fine of Rs.100,000/- was also
imposed upon the appellants out of which Rs.50,000/- were ordered to be paid to
the legal heirs of deceased PC Muhammad Ashraf. Reference of confirmation of
death was also made by the trial Court to this Court. By this single judgment
we will dispose of the same.
2. Brief
facts of the case as disclosed in the FIR are that on 30.06.2006 information
was received through police control at P.S. Shahrah-e-Faisal
from Dr. Hassan of Liaquat National Hospital that
dead body of P.C. Muhammad Ashraf has been brought in the hospital having
sustained fire arm injuries, on such information ASI Ghulam
Mustafa Shar made entry No.18 in the relevant record
and proceeded to Liaquat National Hospital where he
came to know that dead body of P.C. Muhammad Ashraf was lying in the emergency
ward. Dead body was examined and inquest report under section 174 Cr.PC was prepared. An application was moved to the Medical
Officer for issuance of a certificate showing the cause of death. It is further
stated that Medical Officer concerned sent the dead body to the M.L.O. Jinnah
Hospital where dead body was examined, such
certificate/report was issued. It transpired that deceased died of fire arm
injury at his head. It is further stated in the FIR that P.C. Muhammad Ashraf
was riding official motorcycle No.HM-1826, to attend the duty. At about 1315
hours, when deceased reached near Rashid Minhas Road,
opposite COD Gate, some unknown culprits fired upon him with intention to kill
and fire hit him at his head and he succumbed to the injuries. After
registration of FIR vide Crime No.363/2006 under section 302/34 PPC read with
section 7(a) of the Anti-Terrorism Act 1997, it was entrusted to SIP Sajjad Ali for investigation. He inspected the place of wardat in presence of mashirs on
30.06.2006, secured one empty of 30 bore pistol, collected blood stained earth
and Honda motorcycle No.HM-1826 of the deceased. SIP Sajjad
Ali recorded 161 Cr.PC statements of the PWs and got
prepared sketches of accused through eye witness Tariq Mehmood
son of Abdul Karim on 20.10.2006.
3. Investigation
officer received information from P.S. C.I.D. Napier that appellant Kamran has
been arrested in Crime No.190/2006 under sections 353/324/34 PPC. During
interrogation by the police, appellant Kamran has admitted his guilt about the
murder of P.C. Muhammad Ashraf. On such information, SIP Sajjad
Ali proceeded to P.S. C.I.D. Napier and interrogated appellant Kamran. He
admitted his guilt about the commission of the present offence alongwith appellant No.2 Farhan
Ahmad Hashmi. On such admission/disclosure SIP Sajjad Ali arrested appellant Kamran in the present crime on
20.10.2006 and on his pointation appellant No.2 Farhan Ahmad Hashmi was arrested on
28.10.2006 and one 30 bore pistol with magazine was recovered from his
possession for which he had no license. Mashirnama of
arrest and recovery was prepared, accused was brought
to the police station where FIR No.639/2006 under section 13(d) of the Arms
Ordinance 1965 was registered against accused Farhan
Ahmad Hashmi at P.S. Shahrah-e-Faisal.
During investigation both the appellants were put to identification parade
conducted by the Civil Judge and Judicial Magistrate concerned through eye
witness Tariq Mehmood. In the identification parade
held on 02.11.2006 and 18.11.2006, eye witness Tariq Mehmood
identified both the appellants. Arms recovered from both the appellants were
sent to the Ballistic Expert for report. Blood stained earth and clothes of the
deceased were dispatched to the Chemical Examiner for report. During
investigation postmortem report was also received. On completion of
investigation, investigation officer submitted challan
against the appellants.
4. Charge
against the appellants Kamran and Farhan was framed
by learned Judge Anti-Terrorism Court No.1, Karachi Division at Ex-20 under
above referred sections. Both the appellants met the charge with denial and
claimed to be tried.
5. In
order to substantiate the charge, prosecution examined the following witnesses:
1)
PW-1 Ghulam
Mustafa.
2)
PW-2 Muhammad Kamran Khan
3)
PW-3 Muhammad Siddiq.
4)
PW-4 Muhammad Aslam
5)
PW-5 Abdul Sattar
6)
PW-6 Allah Bachayo
7)
PW-7 Tariq Mehmood
8)
PW-8 Syed Farhat
Abbas.
9)
PW-9 Sajjad Ali
6. The
statements of the appellants were recorded under section 342 Cr.PC in which both the appellants have denied the
prosecution allegations and pleaded innocence. Appellants have denied the
recovery of the crime weapons used in commission of offence and raised plea
that the same have been foisted upon them. Appellant Kamran denied that on his pointation co-accused Farhan was
arrested. Regarding identification parade, plea has been raised by appellant Kamran
that witness had already seen him in the police lockup and he made such
complaint to the concerned Civil Judge and Judicial Magistrate. While replying
to the question as to why PWs have deposed against him, he replied that PW
Tariq Mehmood is tout of police that’s why he has
deposed against him. He has further raised plea that police has involved him in
this case to show the efficiency to superiors.
7. Appellant
Farhan Ahmad Hashmi has
also pleaded innocence and stated that he was in the custody of C.I.D. police since
14.10.2006, he has no concern whatsoever with the murder of P.C. Muhammad
Ashraf. It is further stated that his statement is same as that of co-accused
Kamran.
8. Learned
trial Court after hearing the learned counsel for the parties and after
assessment of the evidence, recorded conviction against the appellants as
mentioned above.
9. Mr. Abdul Razzak,
learned Advocate for the appellants contended that incident had not occurred in
the manner as setup by the prosecution. Incident was unwitnessed.
PW Tariq Mehmood was setup eye witness of the
incident. He had not given probable cause of his presence at the place of
incident at relevant time. Investigation officer of the case has prepared
sketch of the place of wardat in absence of eye witness
Tariq Mehmood. Both appellants were in police custody
since 14.06.2006 and they have been falsely implicated in this case. Piece of
identification parade has been seriously questioned by the defence
counsel and it is argued that Civil Judge and Judicial Magistrate had not held
the identification parade as prescribed in the Federal Capital and Sindh Courts
Criminal Circulars. The full particulars of dummies have not been mentioned. PW
Tariq Mehmood had already seen the appellants in the
custody. It is also submitted that the signature of the eye witness Tariq Mehmood has not been obtained by the Civil Judge and
Judicial Magistrate on the memo of identification parade thus it looses its sanctity.
There was inordinate delay in sending of 30 bore pistol recovered from
appellant Farhan and empty to expert for report. It
is submitted that report of the ballistic expert has been managed. Lastly it is
submitted that the prosecution case is highly doubtful.
10. Mr. Khadim Hussain Khoonharo, Deputy Prosecutor General Sindh argued that in
this case eye witness of the incident, namely, Tariq Mehmood
has given probable cause of his presence at the place of occurrence. PW Tariq Mehmood had taken the dead body of the deceased to the Liaquat National Hospital on 30.06.2006 at 01:45 p.m. as is
evident from basic investigation slip, which has been placed on record as Ex-7/E.
It is also argued that pistol 30 bore recovered from the appellant Farhan and empty bullet were sent to the ballistic expert,
the report is positive. Ocular evidence is fully corroborated by medical
evidence. Learned D.P.G. argued that trial court has discussed each and every
piece of evidence in detail and properly appreciated evidence and recorded
conviction. It is submitted that appellants by such act created terror and
sense of insecurity in police and deserve no leniency at all.
11. Record
reflects that in this case eye witness Tariq Mehmood
has categorically stated that on 30.06.2006 at 01:15 p.m. he was going from Drig Road and was passing from the bridge, he saw that one
person while riding on white motorcycle and another motorcycle of black colour on which two persons were following him. A boy who
was sitting on back seat of black
coloured motorcycle took out his pistol and fired
upon a person sitting on white motorcycle, fire hit him and he fell down. The culprits drove away.
In the meanwhile, one taxi car appeared, he and taxi driver took the injured in
the taxi to the Liaquat National Hospital. Taxi
driver left the injured in the hospital and went away and he attended the
injured by disclosing his name and address. Later on, PW Tariq Mehmood came to know that deceased was police constable,
police came to his house in the evening and he narrated the facts to the police
and claimed to identify the culprits if brought before him. Police recorded his
statement. On 01.11.2006, he received notice to identify the accused in the
Court. On 02.11.2006 he identified appellant Farhan
Ahmad Hashmi, who fired upon deceased PC Muhammad
Ashraf. On 18.11.2006 he identified accused Kamran, who was driving the
motorcycle at the time of incident. In the cross-examination he has denied the
suggestions that he had not witnesses the incident.
11. Syed
Farhat Abbas, Medical Officer, J.P.M.C., Karachi has
produced postmortem report of deceased P.C. Muhammad Ashraf, being well
conversant with the signatures and handwriting of Dr. Abdul Hameed
Jumani, Ex-M.L.O., J.P.M.C., Karachi. The deceased had
received surface wound injuries as under:
(i)
Penetrated wound 0.5 c.m.
in diameter, inverted margin over right occipital region of skull. No cheering,
blackening and tattooing seen (wound of entry)
(ii)
Lacerated wound 1.5 c.m.
in diameter, everted margin over right check near right
nasal of nose.
(iii)
Abrain right forearm 3 c.m. x 6 c.m.
(iv)
Abrain right shoulder 6 c.m. x 2 c.m.
(v)
Abrain right lower leg 4 c.m. x 4 c.m.
12. Cause
of death has been shown cardio respiratory failure due to head injury resulting
from discharge of firearm. Evidence of Medical Officer went unchallenged and unrebutted in the cross-examination, with regard to weapon
used, which clearly shows that unnatural death of deceased is not disputed.
13. P.W.
Ghulam Mustafa had received information of the
incident on control that dead body of P.C. Muhammad Ashraf was lying in Liaquat National
Hospital, he proceeded there and got postmortem examination of the deceased. He
has also produced prescription and basic investigation slip, which showed that
dead body of P.C. Muhammad Ashraf was brought in the
hospital on 30.06.2006 at 01:45 p.m. by one Tariq Mehmood
in the hospital. There is no cross-examination of the defence
on such prescription, which is produced in the evidence, which proves that dead
body was brought by eye witness Tariq Mehmood in the Liaquat National Hospital.
14. Piece
of identification parade is very much essential in this case as FIR was lodged
against unknown persons. Mr. Allah Bachayo, Civil
Judge and Judicial Magistrate has deposed that on 02.11.2006 SIP Sajjad Ali of Investigation Wing of P.S. Shahrah-e-Faisal produced before him appellants Kamran and Farham Ahmad Hashmi to hold
identification parade in Crime No.363/2006 of P.S. Shahrah-e-Faisal
under section 302/34 PPC through PW Tariq Mehmood.
Learned Judicial Magistrate held identification parade through PW Tariq Mehmood, who rightly identified accused Farham
Ahmad Hashmi. Learned Magistrate refused to hold
identification parade of appellant Kamran as he was wearing dirty clothes.
Against the order of the Judicial Magistrate Revision was filed, which was
allowed by the learned Additional Sessions Judge and he held identification
parade on 18.11.2006 in which appellant Kamran was identified by PW Tariq Mehmood and he was sent to the jail. The manner in which
the identification parade has been held/supervised by
the learned Judicial Magistrate clearly shows that all possible precautionary
measures were taken by him and it was held by observing the guidelines given by
the Superior Courts from time to time. Despite lengthy cross-examination
nothing substantial or adverse to the prosecution came on record.
15. Sajjad Ali, investigation officer received FIR of Crime No.363/2006
under section 302/34 PPC read with section 7(a) of the Anti-Terrorism Act
registered at P.S. Shahrah-e-Faisal alongwith memo of inspection of dead body. He issued letter
to the M.L.O., J.P.M.C., Karachi, got the dead body, sealed the clothes of the
deceased, inspected the place of wardat in presence
of mashirs, took photographs of the place of wardat, recovered one used bullet of 30 bore pistol and
collected blood stained earth from the place of wardat
and secured motorcycle of the deceased from the place wardat,
prepared mashirnama of recovery in presence of the mashirs, recorded statements of PWs under section 161 Cr.PC, including eye witness Tariq Mehmood
on same day. On 01.07.2006 got sketches of the culprits prepared with the
assistance of PW Tariq Mehmood and received
postmortem report on 12.09.2006. On 20.09.2006 he received information from
P.S. Napier that culprit namely Kamran has been arrested in Crime No.190/2006
under section 353/324/34 PPC and during investigation he has admitted the
murder of the deceased of this case. On such information, investigation officer
has deposed that he proceeded to the C.I.D. P.S. Napier and arrested appellant Kamran
in this case. Appellant Farhan Ahmad Hashmi was arrested on the pointation
of appellant Kamran and he had recovered pistol alongwith
three live bullets from the fold of Farhan Ali Hashmi at the time of his arrest in presence of mashirs and lodged FIR under section 13(d) Arms Ordinance against
him on behalf of the State. He produced both the accused before the Judicial
Magistrate, Karachi West for identification parade. In the identification
parade held on 02.11.2006 appellant Farhan Ahmad Hashmi was identified by PW Tariq Mehmood
in court premises whereas identification parade of accused Kamran was not held
as he was wearing dirty clothes. On 18.11.2006 identification parade of accused
Kamran was held in Central Jail Karachi in which he was identified by PW Tariq Mehmood. Despite lengthy cross-examination nothing favourable to the accused has been brought on record.
Investigation officer has denied the suggestion that he had provided an opportunity
to PW Tariq to see the accused before the identification parade. IO has also
denied the suggestion that PW Tariq Mehmood had seen
the photographs of the accused before the identification parade. He has also
denied the suggestion that PW Tariq is police tout.
16. We
have scrutinized/scanned the entire evidence brought on record. The presence of
PW Tariq Mehmood at the time of incident is
established, the same is supported by the prescription/basic investigation slip
of Liaquat National Hospital produced in evidence at Ex-7/E,
which shows that dead body was brought in the hospital by PW Tariq Mehmood. Version of PW Tariq Mehmood
that he had seen the accused persons on the motorcycle, who
followed the deceased and appellant Farhan Ahmad Hashmi fired fatal shot at the head of the deceased is
corroborated by the medical evidence. Absolutely nothing has been brought on
record to show any enmity of PW Tariq Mehmood with
the present appellants. PW Tariq Mehmood is
independent witness of the incident, mere plea of the appellants that PW Tariq was
police tout, is not sufficient to discard his trustworthy evidence. It is
absolutely unbelievable that an independent person like Tariq Mehmood would depose falsely against the appellants in the
case which carries capital punishment. This Court is satisfied that PW Tariq Mehmood had taken the injured to the hospital on
humanitarian grounds so that life of deceased could be saved. We have no reason
to disbelieve such natural and trustworthy evidence of PW Tariq Mehmood, who had absolutely no motive to falsely implicate
the appellants in this case. Moreover, nothing is brought out in
cross-examination to indicate that PW Tariq Mehmood
was interested in prosecution case or inimically deposed towards the appellants
and the contradictions referred to in evidence were too insignificant to be
taken notice of same. Identification parade has been held in this case by the
learned Civil Judge and Judicial Magistrate by taking all the precautionary
measures. On 02.11.2006 Magistrate refused to conduct/supervise the
identification parade of appellant Kamran as he was wearing dirty clothes, he
thought unfair to hold identification parade on that date. However, on same
date (02.11.2006) appellant Farhan Ahmad Hashmi was identified by eye-witness Tariq Mehmood in the identification parade. Thereafter, in the
identification parade, held on 18.11.2006 at Central Prison, Karachi, according
to the Judicial Magistrate appellant Kamran was properly identified by PW Tariq
Mehmood while specifying the role of each appellant
at the time of commission of offence. We have no reasons to disbelieve the
evidence of the Judicial Magistrate, no illegality or irregularity in
conducting the identification parade has been brought on record. Even
otherwise, holding of identification parade is not mandatory and it is merely a
corroborative piece of evidence. Eye-witness Tariq Mehmood
had identified both appellants in trial Court. Therefore, delay in
identification parade would not be fatal to prosecution case. In this case
ocular evidence is fully corroborated by medical evidence, recoveries and
positive Ballistic Expert report are sufficient, to establish the case of the
prosecution. There is no legal force in the contention of the learned counsel
for the appellants that trial Court has awarded death penalty to appellants on
the basis of evidence of sole eye witness. Under the law evidence of sole eye
witness, if natural and trustworthy corroborated by medical evidence is
sufficient to record the conviction, in the cases of capital punishment. Law
does not require plurality of witnesses, it is well
recognized maxim that “evidence has to be weighed not counted”. Reference can
be made to the following cases:
(i)
Muhammad Azam Vs.
State (SBLR 2004 Balochistan 21)
(ii)
Ghazanfar
Ali alias Pappu and other Vs. the State (2012 SCMR
215)
(iii)
Muhammad Latif
Vs. the State (PLD 2008 SC 503)
In the case Muhammad Azam
(supra) it has been held as under:
“Though the prosecution case is based on the solitary statement
of PW-1 but it is settled that, conviction can be based on the statement of a
solitary witnesses, if it is confidence inspiring. In the case in hand, the
statement of PW-1 is fully supported by medical evidence, coupled with the
recovery of knife, which has not been disputed by appellant and event the appellant in his statement has stated that, he
inflicted the injuries, though as per his own statement, the incident did not
take place in the manner as deposed by prosecution, but failed to prove the
same. On the contrary, as observed herein above, PW-1 withstood the test of
lengthy cross examination, nothing could be elicited from him, benefiting the
accused, hence the contention of learned counsel for
appellant is repelled.”
In
the case of Ghazanfar Ali (supra), it has been held
as under:
“Even
otherwise the holding of identification parade is not mandatory and it is
merely a corroborative piece of evidence. If the statement of a witness qua the
identity of an accused even in Court inspires confidence, if he is consistent
on all material particulars and there is nothing in evidence to suggest that he
is deposing falsely, the absence of holding of identification parade would not
be fatal to the prosecution.”
In
the case of Muhammad Latif (supra) it has been held
as under:
“13. All the above
segments of evidence have led to one important conclusion that it was the act
of Appellant-accused, who had committed heinous crime of murder of innocent
baby and ladies. It was a tyrannous and callous actions
of accused who had not only cut the throats of two hapless ladies but also a
four months baby. Therefore, the events and the circumstantial evidence had
proved that the Appellant is the person who had committed this cold-hearted
offence of murder
to
deprive a soul from his berth is the most sinful
act;
to take
the life of a human being is the most reprehensible, satanic act;
as the
death of on human is the death of whole of the Humanity;
life of
human being is a precious gift of Almighty Allah. The Creator of Universe;
no can
be allowed to snatch it away through his vicious act.
14. Accordingly, we
have found no merit in the appeal of the Appellant and dismiss the same.”
17. For
the above stated reasons, while relying upon the above cited authorities we
have come to the conclusion that prosecution has succeeded to prove its case
against the appellants, the trial Court had rightly appreciated the evidence, according
to the settled principles of law. Death penalty awarded by the learned
Anti-Terrorism Court No.1 requires no interference by this Court at all, as it is proved that the appellants in furtherance of
common intention have committed murder of PC Muhammad Ashraf, who was going to
perform his duty, such act of appellants involved serious violence against a
member of the police force. Thus, case of appellants falls within the category
of “rarest of rare cases”, the appellants are
disentitled to any leniency in the sentence. Therefore, conviction is
maintained. Reference made by the learned trial Court is answered in
affirmative. Consequently, appeal is dismissed.
JUDGE
JUDGE
Karachi, dated
Feb. 21, 2013