REFERENCE MADE BY THE JUDGE ATC-VI KARACHI (Appellant) VS MUHAMMAD JAMEEL AHMED & ANOTHER (Respondent)

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IN THE HIGH COUR T OF SINDH, KARACHI

Special Criminal Anti-Terrorism Appeals No' 192 198 & 799 of 2O19 Confirmation Case No. 08 of 2019

Present:

Mr. lustice Mohammad Karim Khan Agha Nlr. llrstice lrshad AIi Shah

Appellants Muhammad Jamil Ahmed through Mr.

Munsif Jan and Mr. Umar Khan aclvocates

Muneer Ahmed through favaid Chatari and Ms. Saiina Shahreen Abbasi, Advocates

Responclent The State tfuough Mr. Mohammad Iqbaf Awan, Additional Prosecutor General

Date of hearing 25.08.2021,

Date of announcement 31.08.2021

I UDGMENT

MOHAMMAD KARIM KHAN AGHA, T- Muhammad Jamil Ahmed and Muneer Ahmetl appellants were Eied by learned Anti-Terrorism court No.VI, Karachi in Special Cases Nos. 220 lo 222 of 2071,, arising out of FIR No.765l 201 1 for off ences punishable under Section s 302/ 32a / 353 / 34 PPC read with Section 7 of Anti-Terrorism Act, 1999, FIR No 766 and 767 of 20L1 for offence punishable uncler section 13(D) Arms ordinance 1965 iodged at P.S Gulshan-e-Iqbal, Karachi. After full-dressed trial, the appellants were convicted and sentenced as under;:

1.Accused Muharnmad Jameel Ahmed is convicted in Crime No,765/2011, u/s 302(b) PPC and he is sentenced to death with compensation of Rs.200,000/- (Two Lacs) to be paid to the LRs of the victim.

2.Accused Muneer Ahmed is convicted in Clime No'765/201I u/s 302(b) PPC and he is sentenced to death with compensation of Rs.200,000/- (Two Lacs) to be paid to the LRs of the victim'

3.Accused Muhammad iameel Ahmed is also convicted in Crime No. 765/2017 u/s 324 PPC and sentenced to Rigorous Imprisonment for ten (10) years and fine of Rs'50,000/- in case of iefault in payment of the fine then he shall suffer a Simple lmprisonment of another 6 months,

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4 Accused Muneer Ahmed is also convicted in Crime No' 765/ 2011, t/ s 324 PPC and sentenced to Rigorous Imprisonment for ten (10j years ancl fine of Rs.50,000/- in case of default in puyr.,..,i oi ih" fi.'" then he shall suffer a Simple Imprisonment of another 6 months.

Accused Muharnmad Jameel Ahmed is also convicted in Crime No.76512011 u/s 353 PPC and sentenced to Rigorous Imprisonment for five (05) years and fine o( R-s'20,000/ - in case of clefault in pavment of the fine then he shall suf(er a Simple Imprisonment of another 4 months-

6 Accusecl Muneer Ahmed is aiso convicted in Crime No.765/2011 u/s 353 PPC and sentenced to Rigorous Imprisonment for five (05) years and fine of Rs'20'000/ - in case of hefartt in payment oi th" fine then he shall suffer a Simple Imprisonment of another 4 months'

7 Accusetl Muhammad Jameel Ahmed is also convicted in Crime -1997 and he is sentenced to No. 765/2071. u/s 7(1)(a) ATA death.

8.Accused Muneer Ahmed is also convicted in Crime No.765l2011 u/s711) (a) ATA ancl he is sentenced to death'

9.Accused Muhammad Jameel Ahmed is guilty of an offence u/s he 7(1)(c) of Anti-Terrorism Actl'997 in Crime No'765/2O11and is convicted and sentenced to R'I for ten (10) years and fine of fine then Rs.50,000/- in case of clefault in payment of the he shall suffer Simple Imprisonment of another 6 months'

10.Accused Muneer Ahmed is guilty of an offence u/s 7(1) (c) of Anti-Terrorism Act, \997 in Crime No' 765 /2011' and he is- convicted and sentenced R I for ten (10) years and fine of Rs.50,000/- in case of default in payment of the fine then he shail suffer a Sirnple Imprisonment of another 6 months'

11.Accused Muhammad Jameel Ahmed is guiity of an offence u/s 6(2) (n) punishable uf s 7(1) (h) of Anti-Terrorism Act 1997 in ancl sentenced to R'l for Crime No. 765/2l17and he L'convicted of in five (5) years and (ine of Rs.20, 000/- in case default paymeniof the fine then he shall suffer a Simple Imprisonment of another 4 months.

12.Accused Muneer. Ahmed is guilty o[ an offence u/s 6(2) (n) Crime No' punishable u/ s 7 (1) (h) of Anti"-Terrorism Act 1997 in ZOS lZOtt and he is convicted and sentenced to R'I for five (5) years and fine of Rs.20,000/- in case of default in payment of

[h" fir-t" then he shall suffer a Simple Imprisonment another of months.

in Crime

13.Accused Muhammacl ]ameel Ahmed is also convicted No.766/2011' u,/s 13-D Arms Ordinance 1965 and he is

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sentenced to undergo R.I 07 years and with fine of Rs.1O000/_ ancl in case of default in payment of the fine th"r, he shall suffer a Simple Imprisonment o1 another 6 months.

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14.Accused Muneer Ahmed is also convicted in bearing Crime No.767/2017 u/s 13_D Arms Ordina,.,." iSOS and he is :*_t:i."d to undergo R.l for 07 years and with fine of Rs.10,000/- and in case of defautt i" p;y;;"i;; the fine shall suffer a Simple Imprisonment then he of another 6 months.

'Por All the sentences were ordered to run concurrently. Benefit of section 382-8 Cr'p.C was arso extended of to the apperants. The sentences of death awarded to the appellants were subject to confirmation by this tfa court.

2' The brief facts of the prosecution case are that on 04.11.2011at 1230 hours complainant Faisal Mehmoocl S/o Ayoub Khan lodged FIR No. 765 of 201,L u/s 202/324/3s3/g4 ppC r/w section !a 7 of ATA 1,997 of w Gulshan-e-Iqbal Karachi. FIR No.766 4I of 2077 u/s 73_D of Arms ordinance and FIR No.Z67 of 2011. u/s 13-D of ra Arms Ordinance were Iodged by complainant slp Muhammad sarfraz t1; of f,s Gurshan-e-Iqbar Karachi. Complainant Faisa.r Mehmood narrated ,€ the episode of the incident by stating that on 04.11 .2011 at r230 hours, e he and his cousin Ghuram Zain- ul-Abdin left their home to meet sarfraz son of lustice (R) Zawar Hussain Jafferi, at his r.esidence because it was Friday and they had planned lt to offer the Jumma prayer together. On arriving, they rang the doorbell of the house of sarfraz in the meanwhile I a silver corour Curfus car bearing ( Registration No. AUT-209 came in front

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of the Bungalows No.B_l5g & B_ 163 from which four persons arighted and fired at them, indiscriminately. In order to save his life, he laid down on the ground, however, his cousin Ghulam Zain-ur-Abidi. sustainecr multipre fire arm injuries fe, down.

The police guard Hassan AIi Chandio posted at the house of Justice (R) Zawar Hussai, Jafferi on seeing the incident fired upon the curprits and in the meanwhile, a police mobile of [rS Guishan_e_Iqbal also arrived at the place of incident and he apprised the police regarding the incident. The police chased the accused persons and after exchange of fire succeeded to arrest two accused persons with their car at certain distance whereas their companions fled away from the scene. On enquiry the apprehended accused disclosed their names as Muhammad Jameel and Muneer. During personal search from accusecl Muhammad ]ameel, SIp Sarfraz recovered

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one 30 bore Sten gun without license loaded with four live rounds in its magazine and one in chamber. One bag was also found hung on shoulder of accused Muhammad Jameel from rvhich SIP found ten live bullets and two scarfs like Mask, one ladies shalwar, one pair of ladies sock, one bottle of spirit and one Samsung Mobile phone, whereas from the possession of accused Muneer Ahmed, SIP recovered one 30 bore pistol loaded with five live rounds in the magazine. Six empties of 30 bore pistol and seven empties of SMG were also recovered from the place of incident. The case properties were sealed at the spot and SIP Sartraz seized the vehicle of the accused persons from the place of incident. SIP Sarfraz recorded the statement of complainant Faisal u/s 754 Cr.P.C at the spot. SIP Sarfraz brought the apprehended accused persons along with case ProPerty at PS Gulshan-e-Iqba1, where he incorporated the statement u/s 154 Cr.P.C of complainant Faisal Mehmood in 154 Cr.P.C. Book and registered FIR No.765 of 201.1. for the offence punishable u/s 302/353/324/34 PPC r/w section 7 AT A 7997 . He also registered FIR No.766 of 2011' and FIR No.767 of 2011 and FIR No.768 of 201.1 for offence punishable u/s 13-D Arms Ordinance against the apprehended accused persons as well as against the absconding accused, who made their escape good after throwing away unlicensed arms and amrnunition.

3.After registration of the cases, the investigation was assigned to Inspector Chowdhry Manzoor Ahmed, who received the custody. of accused Muhammad Jameel and Muneer Ahmed at SIC District East. On 06,1,1,.2017 he called the owner namely Ammad Sher Khan of vehicle bearing registration No.AGB-663. Maker Cultus Suzuki of 2004 who injormed lrim that he had rented out the car to one Shafi on 28.1.0.201'1' for which he produced receipt. LO. has seized the same and prepared the memo of seizure of the receipt in presence of Ammad Sher Khan. On 10.11.201-1, he sent two letters to his SSP for obtaining permission to send the case property for FSL and chemical analyzer. On14.12.20'L'l', he got identified both the accused persons by eyewitnesses through Judicial Magistrate Karachi, East. On 15.71.20L1., he deposited the Perchajat of the deceased in the office of Chemical Examiner along with letter. After receiving the FSL report, the I.O submitted the report u/s 173 Cr.P.C. before the competent Court of Law, _

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4.The trial court framed charge against the accused to which they pleaded not guilty and claimed their trial.

5.At trial, the prosecution in order to prove its case examined 12 PWs and exhibited numerous documents and other items. The statements of the accused were recorded under section 342 CI.P.C whereby they claimed false implication. They did not examine themselves on oath or call any witness in support of their defence case.

6.Learned trial court after hearing the learned counsel for the parties and assessing the evidence available on record convicted and sentenced .

the appellants as sl.ated above.

7 . Learned trial court in the impugned judgment has already discussed the evidence in detail and tl'rere is no need to repeat the same here, so as to avoid duplication and unnecessary repetition.

8.Learned counsel for the appellants have contended that the appellants are completely innocent and have been falsely implicated in this case; that the eye witnesses evidence regalding the incident of murclet is false as this was an unwitnessed incident; that the police departure entry at P.89 A does not mention one of the PW's as being part of the patrolling party which shows the falseness of the police case; that there are major contradictions in the evidence of the PW's and as zuch their evidence cannot be safely relied upon; that the recovered pistols were foisted on the appellants by the police; that the identification of the appellants cannot be safely reliecl upon as it was conducted 10 days after the incident and the rules for conducting identification parades have not been followed; that tirere was a delay in sending the recovered empties for FSL report and as such the FSL report cannot be relied upon and as such for any or all the above reasons the appellants by extending them the benefit of the doubt should be acquitted of the charge. In support of their contentions, they have relied upon the cases of Sarwar Gul vs. The State and 2 others (2002P.Cr.L.J 163), Muhammad Hafeez alias Babu vs. The State (2005 P.Cr.L.J 1335), Muhammad Imran vs. The State (2009 P.Cr.L.J 997), Fida Hussain vs. The State (2013 P.Cr,L.J 1.237), Ziarat Gul vs. The State (2017 P.Cr.L.J Note 86), Shah Izzat alias Shahzad vs. Adnan, Constable No.5355 and another (2017 P.Cr.L.J 25), Ali Sher and others vs.

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{o The State (2008 SCMR 707), Mst. Sughra Begum and another vs. Qaiser Pervez and others (2015 SCMR 1142), Hakeem and others vs. The State (2017 SCMR 1.546), Azhar Mehmood and others vs. The State (2017 SCMR 135), Raees Khan vs. The State (2018 t!'lLD 835) and Makhan vs. Allahdino and 4 others (2019 MLD 1383).

9.On the other hand learnecl Additional Prosecutor General Sindh on behalf of the State iras fully supported the impugned iudgment. In particular he has contended that the evidence of the police eye witness and other eye witnesses are trust worthy reliable and conlidence inspiring and can be safel1, relied upon, that the appellants were arrested on the spot and their pistols recovered from them; that the medical evidence supports the prosecution case, that the empties recovered from the scene led to a positive FSL report when matched with the above pistols and as such the prosecution had proved its case beyond a reasonable doubt against the appellants and their appeals be dismissed and conf irmation reference answered in the affirmative. In support of his contentions, he placed reliance upon the cases of Maji vs. The State (1970 \ SCMR 331), Muhammad Din vs. The State (1985 SCMR 1046), Noor Muhammad vs. The State (1999 SC|i4R 2722), Muhammad Ehsan vs. The State (2006 SCMR 1857), I(hadim Hussain vs. The State (PLD 2010 S.C 669), Muhammad Ilyas and others vs. The State (2011 SCMR 460), Muharnmad Ashraf vs. The State (2011 SCMR 1046) and Dadullah and another vs. The State (2015 SCMR 856).

10.We have heard the arguments of the learned counsel for the parties ancl gone through the entire evidence which has been read out by learned counsel for the appellants and the impugned judgment with their able assistance and have considered the relevant law including that cited at the bar,

11.We find after our reassessment of the evidence based on the evidence of the eye witness police guard, other PW witnesses including police witnesses, PW MLO and post mortem rePort, recovery of empties from the spot and the dead body being moved from the place of incident to hospital that the prosecution has proved beyond a reasonable doubt that on 04.11.2011 at 12.30pm Zain-ul-Abdin (the dqceased) was shot by.

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8t firearm and succumbed to his injuries (murdered) before reaching hospital in front of Bungalow No.B-158 and B-163 Block 5 Gulshan-e-lqbal Karachi.

12.The only issue therefore, in our view, left before us is whether it was the appellants (Jameel and Muneer) who w'ere a part of the group of assailants who fired at the deceased ancl injured him with their firearm shots which lead to his murder ancl had an encounter with the Police and had unlicensed pistols recovered from them at the aforesaid time, date and location

13.After our reassessment of the evidence we find that the prosecution has proved its case against the appellants (Jameel and Muneer) for murdering the deceasecl by firearm, engaging in an encounter with the police and for carrying unlicensed firearms beyond a reasonable doubt and hereby uphold the convictions and some of the sentences in the impugned juclgment against the appellants for the following reasons;

(a)that the FIR was registered with promptitude within an hour -f and 30 minutes of the incident in which the appellants have been narnec'l ancl given specific roles of firing at the cleceased and being involved in an encounter with the police where unlicensed pistols were recovered from tl-rem on their arrest and as such there was no time for the police to consult and concoct a false case with the complainant. Furthermore no enmity existed between either the complainant or the police against the appellants and thus the cornplainant and the police had no reason to implicate the appellants in a false case.

(b)that both the accusecl were caught red handed each with an unlicenserl pistol ancl were arrested almost on the sPot by the police after an exchange of fire between them and the police so once again there is no chance of false implication or even misidentification,

(c)The key witnesses in this case in our view are eye witnesses PW i Hu.u., Ali, pW 10 Fasial Mahmoocl, PW 5 Amad Sher Khan and PW 6 Muharamed Qureshi, PW 1 Muhammed Sarfraz and PW 2 Ghulam Mustafa's as this prosecution case mainly revolves around the correct iclentification of tile accused who shot the deceased and were involved in the encounter with the police' We shall consider the evidence of these eye witnesses in turn below;

(i)Eye witness PW 7 Hasan AIi, He was a security guard performing his duties outside the house of Justice (Rtd) Zawar i{ussain Jiffery. Accorcling to his eviclence the deceased and PW 10 Fasial came to the irouse at about 1230pm ,, on 411 2011-

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gZ and he u/ent insicle to inlorm Justice (Rtd) Jaffery when he heard firearm reports. He r,vent outside and saw 4 persons in a silver cultus car 3 of whom had got out of the car who fired on the deceased who sustained bullet iniury to his head. He returned fire but the culprits escaped in the cultus car which was chased by a police mobile whereupon the culprits in the cultus car exchanged fire with the police in the mobile where after the police managed to apprehend two of the culprits at a certain distance in another street. He was called before an identification parade 10 days later where he picked out the appellants as the persons who had fired on and murdered the deceased. Such delay in our view will not hinder his correct iclentification as there is no hard and fast rule as to when an identification parade should be held although the sooner the better even if it was required which was not necessarily the case based on the particular facts and circumstances of this case as cliscussed below. The law has also moved on in giving the role of the accused during an identification parade as discussed below as each case must be judged on its own particuiar facts and circumstances and not in a mechanical manner. Even otherwise we have not been alerted to so Srave a breach of the rules governing identification parades which would render the current identilication parade unreliable as minor irregularities are permissible under the law.

This eye witness was a natural witness and not a chance witness a as he was one of the police guards to the retired Judge stationed in a tent outside his house. He did not know the appellants before the incident and had no enmity with them and had no reason to implicate them in a false case. His presence at the scene was not challenged during cross examination. It was a day tight incident and since three of the accused had dismounted from the car he would have got a good look at them. He is named in the FIR along with his role at the scene which accords witl'r his evidence and since the FIR was lodged within t hour and 30 minutes of the incident he would not have had time to cook up a false case against the appellants with the complainant or the police especially as he had no reason to do so. He recorded his 5.161 Cr.PC eye witness statement immediately after the incident as such once again there was no time for him to cook up a false case against the appellants. We find that he has correctly identified the two appellants as a Part of the group which fired upon the deceased which lead to the death of the deceased. This is more so since both of the appellants were caught red handed almost on the spot only a few minutes after the incident following an encounter with the police. His evidence was not dented during a lengthy cross examination. As such we find his evidence to be reliable, trustworthy and confidence inspiring and we believe the same especially in respect of the correct identification of the appellants as firing upon and murdering the deceased. " Even otherwise based on the particular facts and circumstances of this case whicll was a day light incident and the eve witness * Dirrple

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got a good look at the appellants who were arrested a few minutes after the incident a few streets away it was not even strictly necessary to hold an identification parade. In this respect reliance is placed on Muhammed Siddique and others V State dated 02-01-2020 (unreported) in Crim. lail Appeal No's 24,69,21,5,486 of 201,6 and 682 of 2017 which held as under at Para 5 which is set out below;

"5. Castigating severely the evidence of test identification parade, the learned counsel relied upon the guidelines laid clown in the case ol Kanruar Aruttar All (PLD 2019 Supreme Court 488) to urge exclusion thereof. The supra case indeed a fine piece of juridical literature, nonetheiess, does not extend much help to the convicts; it mainly addressed laconic approach adopted by a Magistrate in holding the test identification parade in the said case while highlighting general principles of law on the subject.

Test identification parade is a method oi proof contemplated by Article 22 of the Qanun-i-Shahadat Order, L984, reproduced below for the convenience of reference:-

"Facts necessnrtl to explnin or introduce a fact in issue or releunnt fnct, or which support or rebut an -f inference suggested by a fact in issue or releaant fact, or rohich establish thc identity of anything or person ruhose identity is relettant, or fix tlrc time or plnce at which any fact in issue or releannt fact lmppened, or tuhich sltozp the relation of parties by ruhom any such fact ruas transncted, are releuant in so far as tlrcy nre necessary for that purpose" .

The above framework provides enough space to admit evidence in prosecution of offenders previously unacquainted with the victims or the witnesses; appraisal of such evidence is subject to same principles as are universally applicable to any piece of evidence, under cor-rsideration in a criminal trial; there are no additional barricades as is evident from the plain reading of the Article rbid; without prejudice to the safeguards available to an accused at each stage of trial, essentially fair as guaranteed under the Constitution, nonetheless, it does not cast an artificially heavier onus on the prosecution to meet standards of proof beyond human capacity. Each criminal case is to be decided having regard to its own peculiar facts and circumstances. A test to be essentially applied is one case may absolutely be irrelevant in another, as the crimes are seldom committed in identical situations; there may be cases wherein prosecution must assign distinct roles played during the occurrence by the culprits for determination of their guilt as well as consequencesy'

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thereof, however, there are cases in which totality of transaction may not warrant reparability for such determination, like the one in hand. Cases involving abductions, dacoities and sudden assaults, more often than not, constitute episodes wherein different roles played by the culprits merge into integral totality of the crime, thus, it would be too harsh as well as unrealistic to demand exact reenactment of roles by the witnesses. Capacities even intellectually most sharp dwindle drastically in calamitous situations, therefore, the administration of criminal justice, in such peculiar situations, has to be dynamically balanced upon f air trial without prejudice to the accused as well as due weightage to the prosecution evidence without being swayed by illusory notions, subjectively structured upon hypothetical beliefs

Having found the witnesses with no axe to grind, in a comfortable unison on all the salient features of the prosecution case as well as events collateral therewith, we do not feel persuaded by the arguments, couched on hyper technical premise' Petitions fail. Dismissed. " (bold added)

The appeal which we are currently deciding attracts the above dicta as it is a case of sudden assault.

(ii)Eye witness PW L0 Faisal Mehmood is the complainant in this case. According to his evidence on 4.11'2011 he and the deceased left for Justice (Rtd) |affery's house with a view to offer Juma prayers with his son (Sarfraz).When they rang the bell of the house he saw a silver cultus car pull up in front of the house and 3 persons get out who made indiscriminate fire on the deceased and himself' The deceased received multiple firearm injuries. He was not injured as he took cover by laying on the ground'He saw the police guard at the house (eye witness PW 7 Hasan Ali) fire ,rpon ihe cultus car which was then chased after his intervention by a passing police mobile and after an exchange of fire between the police and the culprits two of the culpt'its were arrested nearby. He was mashir to the arrest and recovery of the appellants and thus having seen them there was no need for him to attend an identification para,Je as he was Present at the time of the arrest and he would have got a ciear vieu' of them firing at the deceased as this was a day light incident as aiso the police encounter' He also witnessed the encounter between the police and the appellants. He was not a chance witness as he had gone with the deceased to the house of the Retired Justice in order to collect his son (Sarfraz) for juma Prayers. He had no ill will or enmity with the appellants and had no reason to falsely implicate them in a false case. He registered his FIR within 90 minutes of the incident and as such had no chance to concoct a false case against the appellants in league with the t

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police. His evidence accords n'ith his FIR and corroborates ihe ,rersions of eve u'itness PW 7 Hasan Ali and the other police lvitnesses who were Present at the encounter (especially PW 1 Muhammed Sarfraz and PW 2 Ghulam Mustafa) and the time of the arrest and recovery of the fire arms from the appellants. He was not dented despite a lengthy cross examination and we have no reason to disbelieve his evidence which we find to be reliable, trust worthy and confidence inspiring and we believe the same' His evidence and that of IrW 7 Hasan Ali who he states was on guard cluty at his fathers house is also corroborated by PW 4 Sarfraz Haider (the son of the retired Judge) who states in his eviclence that he had arranged to perform Juma prayers with the deceased.

(iii)Eye witnesses PW 5 Amad Sher Khan and PW 5 Muhammed Qureshi are not eye witnesses to' the actual incident but are eye witnesses to hiring out the car which was used in the attack i.e the silver cultus. Both of these eye witnesses are in essence concerned with the business of renting out cars. Both witnesses gave evidence that on 0g.11.i012 the silver cultus was given on rent to the appellant Jameel rn'ho they had seen before' They had no enmity with appellant Jameei and had no reason to falsely implicate trim in tnis case. The renting of the car used in the assarlt also links appeliant Jameel to the murder and T encounter with the police which car was recovered after the encounter and producec'l in court. We have no reason to disbeiieve their evidence which was not shattered despite a lengthy cross examination and the evidence sugSests that the! were both in the car business and as such we believe theie evidence that the car used to transPort the appellants during tl-re murder and the encounter was rented out to appeli-ant Jameel who was identified by PW 7 Hasan Ali'the g.,ura ut being one of the persons who fired upon the Ieceased and who was arrested almost on the spot along with the recovered vehicle.

(iv)PW L Muhammed Sarfraz and PW 2 Ghulam Mustafa poiice officers ate eye witnesses to the encounter with the p"rrorrc in the "il't cultus (which included the appellants). In tl.reir evidence they state that whilst on patrol o.r-OA.ft.Z0fl about 12.30 they heard gun shots and reached the Judge's house whereby PW 10 Faisal -Mahmood' infonned them oI this incident. They then gave chase to the siiver cultus ancl a{ter an encounter with the persons in the vehicle they managerl to arrest the two appellants from which they .ecoreied from each unlicensed pistols and ammunition. They corroborate PW 10 Fasial Mehmood and PW 7 Hasan Ali concerning the events after the murder of the deceased. Both of these eye vvitnesses corroborate each other in all material respects and were not dented despite lengthy cross examinatitn. They had no enmity with the a.cised and no reason to implicate them in a false case and

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as such we have no reason to disbelieve their evidence which we do believe as we find it to be reliable trust worthy and corrf idence inspiring.

(d)It is settled law that we can convict if we find the direct oral evidence of one eye witness to be reliable, trust worthy and 1 confi<lence inspiring. In this respect reliance is placed on Muhammad Ehsan V The State (2006 SCMR 1857). Furthermore, the supreme court in the case of Niaz-Ud-Din V The State (2011 SCMR 725) held as under in respect of the ability of the court to uphold a conviction for murder even based on the evidence of one eye witness plovided that it was reliable and conJidence inspiring and was substantiated from the circumstances and other evidence since it is the quality and not the quantity of evidence which matters atP.734 Para 11 as under;

"11. Ttu statement of lsrneel (P.W.g) the eye-ruitness of the occurrence is confidence inspiing, which stands substantiated ftom tlrc circumstances nnd other euidence. There is apt -obsentntions appearing in Allah Bakhsh o, Shammi and others (PLD 1980 SC 225) thnt "etten in a murder case conoiction can be based on tlrc testimony

of a single tuitness, if the Court is satisfed that he is reliable." Tl'e reason being tlut it is the quality of ettidence and not the quantity tohich matter. Therefore, ue are left toith no clottbt tohntsoetter thnt conttiction of Niaz-ud-Din ruas fully justifed and ltns ightly been maintained by the High Court."

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In this case we fincl the evidence of the 6 eye witnesses mentioned above to be fully corroborative and reliable, trust worthy and confidence inspiring especially in terms of correctly identifying the- appellants as iome-of the persons who committed the murder of the tleceasecl by shooting him with their pistols and being involved thereafter with the police in an encounter whereby an attempt wds made to murder the police and prevent them from carrying out their official duties. Never the less by way of abundant caution we will consider below whether any corroborative /supportive evidence is available' in respect of the direct oral eye witness evidence.

(e)It is well settled by now that police witnesses are as reliable as any other witness unless any ill will or enmity has been attributed to them which has not been done in this case. In this resPect reliance is placed onZatar V State (2008 SCMR 1254),Riaz Ahme! V State (2004 SCMR 988) and Muhammed Hanif V State (SCMR 2OO3 1237).Like wise it is well settled that simply because a witness is related does not make him an interested witness and unreliable unless he has reason to falsely implicate the accused, or he is biased, partisan or inimical to the accused which there is no evidence of in this case in resPect of PW 10 Faisal Mehmood who was related to the deceased. In this resPect reliance is placed on Ijaz Ahmad V The State (2009 SCMR 99).Thus, we rely on the evidence of the remaining police PW's 1 Muhammed Sarlraz and PW 2 Ghulam Mustafa who arrested the appellants following the,

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s1 chase of the silver culfus and encounter with the appellants who also recovered the unlicensed firearms of the appellants as per the memo of arrest and recovery, PW 3 Muhammed Akram, PW 11 Aijaz Ahmed the first IO and PW 1,2 Chaundhry Manzoor the second IO none of whom were dented let alone shattered during cross examination. In fact Ex 89 A clearly shows that PW 1 -1 Muhammed Sarfraz was on patrol at the time of the incident. PW B Zahida Parveen who was the judicial magistrate who carried out tl-re iclentification parade of the accused also as per her evidence carried out the identification parade in accordance with law and was not dented during cross examination and who also identified in court the two appellants who were picked out at the identification parade by the concerned PW identifiers. She is a judicial officer and we have no reason to doubt her evidence

(f)The medical evidence fuliy supports the eye witness version of events. PW 9 Dr.Zafar who carried out the post mortem of the deceased gave evidence that the deceased received 4 firearm injuries one to the front of his chest, one to the back of the chest, one to the abdomen and one to the left thigh which ties in with the prosecution evidence that the appellants opened indiscriminate firing on the deceased. The fact that there was blackening around each wound also ties in with the prosecution evidence that the car pulled up in front of the house, 3 appellants dismounted and opened fire on the deceased which was clearly at close range.

(g)On the arrest moments after the murder following an { encounter with tl-re police the appellants were almost arrested on the spot and at the time of their arrest an unlicensed pistol was recovered from each of them.

(h)That some of the empties which were recovered from the scene of the murder when compared with the recovered pistols lead to positive FSL reports. The fact that there was a delay in sending the pistols and empties for FSL will have no impact on the FSL report in this case as no allegation of tampering l-ras been made. In this respect reliance is placed on the case of Muhammed Ashraf (Supra).

(i)The silver cultus motor vehicle which was used by the appellants at the time of the murder and attempting to make their escape was recovered from the appellants following their arrest after an encounter with tl-re police which as mentioned above PW's 5 and 6 had rented to appellant Jameel the day before and as such clearly links them to the offence.

0)All the most relevant and significant police entries were exhibited at trial in support of the prosecution version of events.

(k)That all the PW's are consistent in their evidence and even if there are some contradictions in their evidence we consider these contradictions as minor in nature keeping in view the terror and chaos which was then unfolding and not material and certainly not of such materiality so as to effect the prosecution case and the.

"rep1"

BB

conviction of the appellants. In this resPect reliance is placed on Zakir Khan V State (1995 SCMR 7793) and Muhammed Ilyas V State (SCMR 2011). The evidence of the PW's provides a believable corroborated unbroken chain of events from the time the appeilant Jameel rented the silver cultus car one day before the incident, the cleceased antl PW 10 Fasial Mehmood reaching Retired iudge Jaffery's house on the day of the incident, to the silver cultus car pulling up in front of the house and 3 persons dismounting and making indiscriminate fire on the deceased who died in hospital, to the appellants attempting to make their escape good to the encounter with the police ancl there arrest and recovery of their pistois close to the scene of the murder.

(l)Of course it is for the prosecution to prove its case beyond a reasonable doubt against the appellants which we find that it has done in this case ho*"r"t we have considered the defense case before reaching this conclusion. The appellants have taken the defense plea oi false implication bv the police as they refused to pay a bribe of RS 50,000 having been arrested from the disco bakery a day before the incident However they have not given evidence under oath or called any defense witness in support of their defense case nor during cross examination have they suggested to any police PW that he lad any enmity with them and therefore a reason to falsely implicate them in this case and as such we disbelieve the defense case of false implication which we consider to be a mere after thought in order to save the skin of the appellants -v especially in light of the overwhelming prosecution evidence against the appellants and the fact that the appellants were correctly identifiecl by the eye witness PW's and they were almost arrested on the spot within moments of the incident after an encounter with the police which would have left no time for them to be substituted with the real culprits by the police. -14. Thus, basecl on the above discussion especially in the face of reliable, trust worthy and confidence inspinng eye witness evidence and other corroborative/supportive evidence mentioned above we have no doubt that the prosecution has proved its case against the appellants beyoncl a leasonable cloubt with resPect to all the charges against them'

15.With regarti to sentencing all the sentences handed down in the impugned judgment are kept intact along with any fines and/ or compensation however we have noticed that the prosecution has failed to assert and prove the motive for the murder which aPPears to be a target killing and it is not possible to ascertain which of the appellants fired the fatal shot at the cleceased. Under these circumstances the superior courts have consiclered such factors as mitigating and justifying the reduction of the death sentence to that of life imprisonment. As such with regard to the conviction fcr the murder of the deceased under 5'302 (b) PPC and the - q Dtrnple

f, 15

ATA for each of the appellants the tleath sentences handcd dorvn to each of the appellants ln resPect of each oi these offences are converted from cleath sentences to sentences of life rmprlsonment' The appeilants shall have the benefit of s 382 (b) Cr.PC and any other lan'ful remissrons which they are entitled to. All the sentences shall run concurrentlv

16.Thus, for the reasons discussed above the appeals against all convictions are clismissed, the lmpugned juclgment and tts sentences rmposed therein are all uphelel except that the death sentences under S 302 (b) PPC and the ATA are converted from death to life impnsonment in respect of each appellant and as such the confirmation reference is answerecl in the negative.

17.The appeals and confirmation reference are disposed of in the above terms

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Iud lz

JUDCE