ADIL S/O ZAFAR HUSSAIN & ANOTHER (Appellant) VS THE STATE (Respondent)

IN THE HIGH COURT OF SINDH AT KARACHI

Present:

Mr. lustice Mohammail KarimKhan Agha lustice Mrs. Kausar Sultana Hussain

sPL. CRIMINAL A.T APPEAL NO.10+ oF 2021 Appellants 1. Adil sonof Zafat Hussain 2. Abdul Basit son of Haji Ismail Through Khawaia Naveed Ahmed, Advocate

Respondent: The State through Mr . Muhammad Iqbal Awan, Additional Prosecutor General, Sindh.

Date of Hearing 03.11..2021.

'r0.17.20?1.

Date of Announcement

IU DG MENT

Mohammad Kaim Khan Agha, l' Appellants Adil and Abdul Basit were convicted by the Iearned fudge, Anti-Terrorism Court No'lII' Karachi in Special Case No.117-A oI 201,4 and Special case No'B-88 ol 201'54 in Crime

-1997' PS

No.459 of 2013 u/s.302/32a/376/365/34 PPC r/w Section

7 ATA

and were Maripur, Karachi vide impugned Judgment dated 28'03'2020 sentenced as under

"Accused Adil s/o Zafat Hussain and Abdul Basit s/o Haji with Ismail were convicted for offences u/s 7(1)(l) ATA of i*f.iro.t*"rrt for life on each count for Imran; causing death Muzafar Baig, Mst' Shazia, Abdul Samad and PPC to undergo Accused were convicted for offence 302/34 for causing death- of i*p.it""".""t for life on each count to pay fine lrtrirufu, Baig, Shazla, Abdul Samad and Imran and of Rs.50,000/- and compensation of u/ s'544/ A Cr'PC and fine of deceased and in default -{ Rs.100,000/- payable tothe legai heirs of .i p"/*"", of ii.,u they shaf suffer R'I' imprisonment for one year.

gar.g raPe upon Accused were also convicted for committing accordingly the Mst. Shazia which is an offence u/ s'376(2) PPC uaaa,s"d were convicted and sentenced to undergo imprisonment for life.

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Accused were convicted and sentenced for having caused injury to Mst. Muniza which constitute offence u/s.7(1)(c) to 10 years and to pay fine of Rs.50,000/- to victim and in default of payment of fine shall undergo simple imprisonment for a period of three months.

Accused were also extended benefit of Section 382-B Cr.P.C "

I

2.We note that the accused Adil vide the impugned judgment was acquitted for offences u/s s. 353/324/34 PPC and for offences u/s 4/5 Explosive subsrances Act 1908 and uf s.23 (i) (a) sAA 2013. The State has not filed an appeal against such acquittals.

3.The brief facts of the case are that the accused challenged the judgment of Anti-Terrorism Court No. V before Hon'ble High Court of sindh in spl. Crl' A.T.A appeal No.314l2016 to Spl.crl. A.T,A appealNo.3l7/20L6. Accused Abdul Basit was also convicted in the main case against which spl.Crl. A.T.A appealNo.S3/20:rTwasalsopreferred.TheHon,bleHighCourtofSindh found that PW-6 Mst. Muniza daughter oI MuzaJar Baig was not crossexaminedbythecounselforaccusedAbdulBasitwhowasdeniedthe a right of cross examination of PW-6 Mst. Muniza. The Hon'ble High Court of sindh therefore, remanded the case for hearing application u/s.540 Cr'PC dated 02.04.201'6 filed by counsel for appellant Abdul Basit for cross examining Mst. Muniza and in the event that the said applicafion is

allowedlearnedcounselfortheaccusedAbdulBasitshallbegiven required to re- opportunity to cross examine Mst' Muniza' This court was then have come on write the judgment keeping in view whatever the evidence may directions of the record after the cross examinafion' In view of the above 540 Cr'P'C was Hon'ble High Court of Sindh the pending application U/S was allowed and Mr' heard and by order dated 13.03'2020 the application Basit cross examined PW-6 Farooq Hayat learned counsel for accused Abdul lJ/s M2 Cr'P'C was Mst. Muniza. Thereafter, the statement of the accused recorded.AccusedAbdulBasitduringhisstatementU/s342Cr.P.Cinan statement on oath and answer to a question replied that he would make making statement would examine his father in his defense' Later on without { his defense counsel closed his on oath and recording the evidence of his father side by statement on21..03.2020

5'154 Cr'P'C

4.Crime No.45g/2013 was registered on the basisof stated that deceased Muzafar, statement of one Muhammad Mushtaquewho

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Baig was his brother in law and on 29.12'2013 while he was present in his house, he received telephonic information at about 08.15 am that his brother- in-law Muzafar Baig ancl his family members have been done to death by firing and their dead bodies have been moved to Civil Hospital Karachi. He in law { reached at Civil Hospital and found the dead bodies of his brother His MuzafarBaig, sister Shahzia Begum, nephews Abdul Samad and Imran' she told him niece Muniza agecl about 18 years was also in the hospital and that at about 02:00 am the family members were taking food when 0l Abdul

Rasheed @ Chief 02. Mehar Bux S/o Rasool Bux, 03' Nazeer Baloch @ Mulla S/o S/o Muhammad Yaqoob, 04 Adil S/o Zafar Hussain' 05' Yaseen Baloch Manzoor Baloch and 3/4 unknown Persons entered their house armed Mst' Shazia' with weapons. They committed rape upon her and her mother near Gabo Pat The culprits then took the family members at Thandi Sarak and Imran' where the culprits fired on Muzafar Baig Shaz\a' Abdul Samad 1'3 years and Kiran Muniza then tried to escaPe with her sister Iqra aged about on her brother Sumeer aged about 12 yearsand upon which culprits also fired on right left side of her aged about 2lzyeats.She also received fire arm injury on she was taken to 4 abdomen as such she was also fell on the ground' Later took Muniza from Civil hospital in Cheepa Ambulance' The complainant then that Muniza was hospital to Abbasi Shaheed hospital' It is further stated pregnant at the time of incident and due to {ire arm iniury there was Pre- was under treatment in mature miscarriage of her child' The injured Muniza after completion of the I.C.U of Abbasi Shaheed hospital' The Complainant under 5'154 Cr'PC at funeral ceremony of deceased's recorded his statement was incorporated in the FIR about 1800 hours at his house and later on same ot 459/2013 of PS MariPur'

5'on30'12.2013basedonSPyinformationSlPlsmailapprehended from Baba Mazhar nominated accused yaseen and Adir during patroling 30 bore pistol loaded with Budni Goth Maripur after a brief encounter' One and one Hand Grenade was four live bullets in magazine and one in chamber recovered from the possession of accused Adil apart from one mobile phone accused Yaseen one 30 bore { Nokia and cash Rs.1900/-' From possession of pistol three live bullets in magazine and one in chamber apart from cash names of absconding accused as Rs.7[L/-were recovered. They disclosed the Mulla Zubait' SIP Ismail then Abdul Rasheed, Mehar Bux, Mulla Nazeer and arrest ancf recovery and re8istered, called BDU Team and prepared memo of

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2ts-

crime Nos.460 to 463/2013 at PS Maripur and handed over the PaPers to slo. On completion of investigation the report lJ/s 773 Cr.P.C was submitted by DSP Sohait Afzal against the accused before the trial proceedings against accused Adil and Abdul Basit were seParated from the case of adult accused I as the present accused were cleclared as juvenile offenders and trial o{ the accused was conducted accordingly.

6.After registration of FIR's initially the investigation of the cases were entrusted to SIO Arshad Khan of PS Maripur, who visited place of occurrence on the pointation of complainant, in presence of mashirs recorded statement of witnesses u/s1,61, Cr.PC. On30.72.2013 after encounter accused Adil and Yaseen were arrested by sIP Muhammad Ismail of PS Maripur and recorded statement of witnesses u/s 1,6'l Cr.PC. Meanwhiie the investigation was transferred to DSP Sohail Afzal, who produced the accused before the ATC-ll and obtained their police custody remand and during investigation sent samples for DNA test and obtained the report' On 04'01'2014 I'O recorded 161 Cr.P.C. statement of Muniza. on 05.01.2014 absconding accused Abdul Basit was arrested and produced before the ATC' During Interrogation his accused Abdul Basit conJessed his guilt to the offence and disclosed complicity in commission of offence along with his companions. on 1'0.01.201'4 during encounter absconding accused Mehar Bux was killed at Musharaf Mor' The I.O then conducted raid at different places on the pointation of accused but could not arrest any more of the accused as they had gone underground' The LO. then referred the recovered pistoi and empty shells to FSL blooc1 for examination and obtained such examination report as well as seized stained clothes sent to Chemical Examiner for examination and report' The sheet I.O. tried to arrest the absconding accused but could not succeed charge u/ s173 Cr.PC was filed against the accused'

T.Consolidatedchargeagainsttheaccusedwasframedon26.03.2015to which they pleaded not guilty and claimed to be tried'

8.In order to prove its case, the prosecution examined 12 PWs and recorded their exhibited various items and other documents' The appellants statements under Section342Cr.P.C. whereby they claimed that they were of a dispute innocent and had been falsely impticated in this case on account between the complainant Mustaque and the accused Adil who the complainant had enmity with' In support of his defence "7 case Adil save

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two brothers he evidence on oath that on 24.08.201'6 along with his father and waspickedupbythepolicefromhishouseandfalselyimplicatedinthiscase of his defence when he refused to Pay a bribe' He called 2 DW's in support case one of whom was his father who also stated that Adil had been fixed in Abdul Basit to the complainant's enmity with him' Accused this false case due gang war' awoke in also gave evidence on oath that he was shot during the hospitalandwhenhereturnedhomewasfalselyimplicatedinthiscasebythe case' police. His brother gave evidence in support of his defence trial court g. After appreciating the evidence on record' the learned earlier and hence' the convicted and sentenced the appellants as set out and sentences' appellants have filed this appeal against their convictions trial court

10.The facts of the case irs weli as evidence produced before the passed by the trial court find an elaborate mention in the impugned judgment here so as to avoid and, therefore, the same may not be reproduced duplication and unnecessary rePetition' the entire 1L. Learned counsel for the appellants has contended that prosecution case revolves around the evidence of eye witness PW-6 Mst' as she had given her evidence Muniza which could not be safely relied upon who had enmity with at the instance of her relative complainant Mustaque evidence that she had been appellant Adel, that there was no corroborative raped; that even if she had been fired upon it could not be proven that the family members; that there were appellants had fired on her or any of her the medical evidence and as such material contradictions in her evidence and not ring true; that there was no her evidence should be disbelieved as it did both the appellants should be other evidence against the appellants and the benefit of the doubt' acquitted of all charges by extending them l,2.ontheotherhandlearnedAdditionalProsecutorGeneralappearingon has fully supported representing the complainant behalf of the state and also has emphasized that the appellants the impugned iudgment ln particular he that it convicted based on the evidence on a sole eye witness provided can be inspiring as it was in this case and as is reliable, trust worthy and con-fidence suchtheappealsshouldbedismissedinrespectofeachoftheappellants.In reliance on the cases of of suPPort of his contentions he has placed v The state Mansha v The state (2001 scMR 199), rjaz Ahmad Muhammad 99), Muhammad Ehsan v ,/ Allah The State (2006 SCMR 1852'

(2009 SCMR

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ffi zgv Ditta v The State (PLD 2002 SC 52), Farooq Khan v The State (2008 SCMR 917) andZia Ullah and another v The State (2021 SCMR 1507)'

13.We have heard the arguments of the learned counsel for the Parties, gone through the entire evidence which has been read out by the appellant's counsel,theimpugnedjudgmentwiththeirableassistanceandhave considered the relevant law including that cited at the bar' -14. Before proceeding further we are fully conscious that this was a case of a particularly serious and heinous nature which concerns 4 brutal murders

one of whom was a young child and the gang rape of two women however as

Judges we cannot be swayed by the brutality of the offences which have been

committed and are obligated to decide these appeals based on the strength of the evidence before us and our reappraisal of such evidence'

15.At the outset based on our reassessment of the evidence and in particular the medical evidence and the medical rePorts we find that the at about prosecution has proved beyond a reasonable doubt that on29'12'2013 (collectively Zam Muzafar Baig, Shazia Begum, Imran and Abdul Sarmad at Thandi Sarak referred to as the deceased) were all murdered by firearm Gabo Pat.

L6. The questions before us are essentially (a) were either/or both the if so by whom and women in question Mst. Shazia and Ms Muniza raped and at the time' date and

(b)who murdered the deceased and injured Ms Muniza place as per the charge.

17.We find that when we examine the evidence in a holistic manner based NOT proved on our reassessment of such evidence the prosecution has raped Mst'Shazia or beyond a reasonable doubt that either of the appellants that the Ms Muniza and has NOT proved beyond a reasonable doubt the fact that both the appellants murdered the deceased keeping in view witnesses to show that accused gave evidence under oath and called defence enmity with the they were either arrested from home on account of was arrested when he complainant Mustaque or in the case of Abdul Basit of the Lyari Gang war went to the PS to report his own shooting by members for the following reasons;

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(a)The prosecution case revolves around the evidence of the sole eye witness PW 6 Muniza. Yes, she was an injured eye witness who was allegedly raped but this does not mean that her evidence is automatically to be believed. Her evidence has to be analyzed in terms of its reliability and whether it is confidence inspiring and whether there is any corroboration.

(b)When taken together the following findings tend to cast doubt on her evidence and the prosecution case;

(i)According to her evidence the accused barged into her house at 2am in the morning when all the deceased and herself were apparently awake eating dinner which to us seeru some what odd to say the least. At such a late hour most families have eaten and have long since gone to bed.

(ii)Apparently she narrated the incident to the complainant Mustaque whilst she was being treated in hospital yet according to the evidence of PW 3 Sedar Khan when he went to take the statement of Ms Muniza in hospital the Dr. inJormed him that she was unable to make a statement and stopped him from doing so which tends to caste doubt on the content of the later FIR lodged by the complainant.

(iii)At 1800hrs PW 3 Sedar Khan recorded the statement of the complainant Mustaque whom the appellants state they had an enmity with at his home who gave a very detaiied statement of the incident i.e rape and murder which had allegedly been given to him earlier by Ms. Muniza at the hospital which even gave the names of all the accused and co-accused. Appellant Abdul Basit however was not named in the FIR whom Mst Muniza later namerl in her evidence and claimed to have known for 10 years' Such detail in the FIR based on the hearsay evidence of an injured women who was not weli enough to record her statement before the police at about the same time as she gave the information to the complainant is also some what dubious' (iv) According to Ms Muniza's evidence a{ter the incident she managed to ieach I€ Maripur with her younger brother and sister. However no FIR was lodged at that time and no police entrytothateffecthasbeenproduced.Itseemsthatthepolice called a chippa ambuiance for this young injured women and sent her off unaccompanied to hospital. No member of Chippa was examined as a PW and PW 3 Sedar Khan who was on duty atSamthatmorningatPSMaripurhadnoideathatMsMuniza had reached the PS in the morning. He was only informed where the dead bodies were lying and when he reached that place found that they had alreadybeen taken to civil Hospital' This is also very ,r.p.iti.tg conduct on the part of Ms Muniza and the police and does not particularly accord with natural human concluctbasedontheparticularfactsandcircumstancesofthe case

(v)With regar{ to her rape and that of her mother Ms Shazia in her evidence she states that;

"Yasin Baloclt and Adit took me in a room and they committed Zinna on me forcibly.Thereafter Rashid, Mehr Bux took my mother Shazia in , ,ob* and committed Zina with her" ' h Page 7 of 1l

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Significantly, she knew appellant Adil for about 10 years who-lived in thi same Mohalla and as iuch she could not mistakenly have identified him if her evidence was truthful that he raped her. If her evidence is to be believed then appellant Abdul Basit played no Part in the,rape of either Ms Muniza or Nls Shazia as he is not named in the evidence as one of the rapists by Ms Muniza.

/ WithregardtotherapeofMsMunizaP,NTDr.FarredaMobeenwho medialli examined her o., 29.12.2013 shortly after the incident she did not notl any bruising around the vagina or thighs which-would.b.e commonly found in aiase of ga..grape, She was married and as such it was not zurprising that her hyman was not intact and PW 7 was of the view that whether intercourse was fresh or not would turn on the DNA report. In this case no DNA report was exhibited and the chemical report did not find any semen on the vaginal swabs taken from Ms Munizawhichindicatesthatshemightwel]nothavebeenrapedand castes some doubt on the reliability of her evidence' Even in the have been impugned Judgment neither appellants Adil nor Abdul Basit .o.,uift"d of riping Ms MunLi and only of gang raping .Ms Sha"ja' who Certainly tvts trirr.tLa coulci not have been raped by Abdul Basit was not even named as one of the rapists in her evidence' With regard to the rape of Mst Shazia for which both the appellants iniuries in were convicted she was not medically examined for physical her respect of a potential rape. No DNA report is on record regarding rape. Although the cheiical report showed that the vaginal swabs with the taken from Mst shazia did find semen this does not provide us identity of the rapist and according to th9 evidence of Ms Muniza although she did not witness Ms Shazia's rape she states in her room by co- eviden"ce that she (Ms Shazia) was raped in a different accusedRashidandMehrBuxandassuchthereisnoevidencethatshe as such the was raped by either appellants Adil or Abdul Basit and Ms Shazia appellants must be u.qritt"d of the charge of gang raping incident with wlio might even have had sexual intercourse prior to the her husband.

convicted

(vi)Interestingly the impugned judglent originally was set ihe appellants-oi murder anl acquitted them of rape and of the evidence of aslde by this court only for th9 ie.- recording in'cross Ms Muniza whose evidence has been more damaged the case of rape examination than before and did not improve judgment based on yet the trial court in the current impugned similar evidence or no better evidence has this time convicted both the appellants of gang rape which we find rather surPrising'

(vii)Significantly when PW 3 Sedar Khan went to the house his evidence that;

i*urauifot the rape) he stated in not fnd "We had seen the house from the inside but could treated as ptoof of anytlting i'7 Uy U" cttlpiits tohich can be tlrcir Ptesence in the house" ' the prosecution case'as This evidence also tends to caste doubt on armed men entered this according to the prosecrtiott uUo"t 10 heavily of whom there rather small house, beat up and tied up the occupants and then forcible were about 8, gang.up"a *o of the female occuPants to have'been i1.an took them all from the house yet the house appears ;;;t;;;'rtut" *rti.r't *oua not suPPort such an incident takin9, Page 8 of 11

"f place in the house. It is also significant that Ms Muniza's eye witness 5.161 Cr.PC statement was made alter a considerable delay of 6 days which gave her a chance to improve it or ensure that it was in line with the very detaiied FIR lodged by her father based on her hearsay.

(viii)Ms Iqra who was the daughter of one of the deceased and Kiran who was the son of one of the deceased who were also in f the house at the time of the beatings and rape and were also taken to the plot where they also witnessed the shooting of the deceased and were saved by PW Ms Muniza were about 13 to 14 and 12 to 13 years of age respectively at that time and would have been about 15 to 1.6 and 14 to 15 years of age respectively at the time of trial but did not give evidence for the prosecution at trial. We find this to be rather surprising as both would have been mature enough to support the evidence of Ms Muniza and as such it appears that the prosecution deliberately chose to omit some of the best evidence without any reason which tends to undermine the prosecution case.

(ix)According to the evidence of Ms Muniza after the rape the occupants of the house were forcibly removed by the culprits and were taken to a vacant plot where her mother was raped again. She does not say who raped her mother at the plot. According to her evidence the accused all then made indiscriminate fire on them which lead to the death of the deceased and her injury. She does not name a single accused who was present at the vacant plot and opened fire on the deceased and her. According to her own evidence there was no light available at the plot at the time of the shooting of the deceased. The question therefore arises whether it can be safely found that all of the about 10 Persons who entered her house heavily armed were present at the time when the deceased were shot. One or two might have left the grouP. She does not identify either of the appellants as being present by name at the time of the shooting. Furthermore, in her evidence she states that the culprits made indiscriminate fire and that the distance of fire was neither from close range or from a distance. Such evidence is not supported by the medical evidence. Three of the 4 deceased received fire shot injuries to the head where blackening and charring was found by PW 5 Dr'Ahmed who was the MLO *ho carried out 3 of the 4 post mortems of the deceased which indicates that 3 0ut of the 4 deceased were shot from a very close range. one deceased received one fire shot to thehead,2ofthedeceasedreceivedtwofireshotseachandone ofthedeceas'edreceivedthreefireshotswhenconsidered against the close distance of the shots also indicates that this was not indiscriminate firing but execution style killings which contradicts the evidence of PW Muniza on this aspect of the case. Thefactthattheaccusedleftthesceneastheyallranoutof ammunition and then returned also does not appeal to reason logic or common sense as how could about 10 heavily armed *ir, ,,.rn out of ammunition when shooting 4 people with about only 12 builets from relatively close range? Again this.suggests thai there were fewer than 10 heavily armed men and as such someofthemenfromthehousemightnothavebeenpresentat timewhenthedeceasedwereshot'Ifitwasdarkhowwasit Page 9 of 11

"-f, possibte for Ms Muniza to recognize accu,sed Abdul Basit who was according to her allegedly accidentally shot by the other accused? Inteiestingly she mentions no other accused by name which tends to indicate that at trial she was trying to negate accusedAbdu]Basit,sdefencethathewasnotpresentashewas shot by members of the Lyari Gang war lnd was receiving nospital treatment at the time of the incident' It is also significant ani suspicious that despite a long and detailed narration of the incidenf given to the iomplainant Mustaque whilst she was wounded"in hospital she neglected to narrate this aspect of the case.

(x)It may be that Ms Muniza was Present and was shot when ih" d"."ir"d were murdered but she has not produced any medical evidence of her gunshot injury and we find that she

cannot say for certain thai the appellants Adil and Abdul Basit *"ru pr"runt at the time of the shooting who have both given evidence that they were not Present during the incident and produced DW's in suPPort of their case' recovered

(xi)On appellant Abdul Basit's arrest no weaPon was the empties found i.om him und as such he cannot be linked to at the murder scene.

him

(xii)On appellant Adil's arrest a pistol was recovered from and case however he has been acquitted in the encounter case under sAA on the basis that the evidence of the prosecution witnesses in respect of this aspect of the case has been with respect disbelieved. This also means that the place of arrest be ruled out that to appellant Adel is now in doubt and it cannot case' he was arrested from his house as per his defence not sent for

(xiii)In any event the pistol recovered from him was at the wardat an FSL report in respect of the empties recovered of the *r.d"., so the recovered pistol story which was disbelieved cannot link him to the murder scene' to break

(xiv)There was no motive or reason for the appeilants in,o ,n" house of the deceased and gang raPe two women and complainant aim to kill the entire occupants' On the contrary complainant a Mrstaqre's enmity with appellant Adil gave the case in league ,"uror,'to faisely implicate the appellants in this with the police some of whose evidence has already been encounter and disbelievei when acquitting appellant Adil in the the reiiability of the Arms cases which castes fJrtner doubt on proru..rtio" case. Significantly the prosecution did not appeal Adil's acquittals in these cases' Muniza there is

(xv)Apart from the evidence of PW eye witness in respect of the no other supportive or corroboralive evidence which could link *p"t-."a ti',e mu,dets against the appellants noted above there are them to these offences. In fact as we have Muniza's nu*"rom dorlbts in the evidence of PW eye witness on to rely Luia"r,." and we find that we cannot rely safely -it the appellants for the offences for which they have been convict or charged wiihout some unimpeachable corroborative ,"ff,"t,i"" evidence which as discussed above there is none' Page 1O of 1l

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18.It is a cardinal principle of criminal jurisprudence that the prosecution must prove its case against the accused beyond a reasonable doubt and that to the benefit of doubt must go to the accused by way of right as opposed Yf s.

concession. In this respect reliance is placed on the case of Tariq Pervez as f The State (1995 SCMR 1.345), wherein the Supreme Court has observed follows:-

"It is settled law that it is not necessary that there should be many circumstances creating doubts' If there is a single mind circumstance, which creates reasonable doubt in a prudent to about the guilt of the accused, then the accused will be entitled as a matter the benefit not as a matter of grace and concession but of right."

1.g. For the reasons discussed above we find numerous doubts in the

the benefit of prosecution case against the appellants and thus by extending of the charge, the the doubt to the appellants both the appellants are acquitted and both the impugned judgment is set aside, their appeals are allowed custody case' appellants shall be released unless wanted in any other

20.The apPeals stand disPosed of in e above terms ,.1,,f zt

IUD

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