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.  ___, 2013