REHMAT ULLAH S/O AJAB KHAN & ANOTHER (Appellant) VS THE STATE (Respondent)

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7 IN TIIE HIGH COUR'T OF SINDH AT KARACHI

(CRIMINAL API'IiLLATE JURISDICTION) cRTMTNAL APPBAL No. 2 c-8oP'zots

D REHN4AI I]LI,AH

S/O AJAB KHAN.

MUI{AMMAD.IAMEEL (.] ARI

S/O HAZRA'I GUL

Both Muslim. adult. Residenlof Katchi Abadi Sohrab Goth.

Karachi. PresentlY Confi ned APPELLANl'S in Central Prison Karachi "" "' Vl:l{Sl lS

I fhe Stalc

.......... RESPONDENT

FIR No. 5l / 2013 u / s 30213741353 I 427 134 PP C R/W Sec. 7 ATA 1997' P.S. Sachal Karachi.

t T 'rl Being aggrieved at an d di s s ati sfie d with th e

i mpugned .)udgmcnt dated 27 -O7 -20 1 8, Passed bY

rhe VIth Anti 'lerrorlsm Court at Karachi, in

Special Case No' A-56 of 2O 13, in which the

t .\ppellants are convicted a s under: -

1.The accused l?ehmatullah is convictcd lot

offence U / S 302(b) PPC and hc sentenc:<:ti t.tl death 'ts hanged till Ct h

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il ,--QFFI,CE=9!THE

IUD9E,

No: ATC-VI/K-DLV / ?& of 2018 o: vr. KeRACur.

Ku.-hi .1ut" d 27_07i0-ti.

To, The Regishar IIJYJAITI) TIf.l>-r+\

-G;:T'*

ERAl.iCH _.

! Honorable High Court of Sindh tt ,tTlE--:- t:|A Karachi.

I,!IGH CCU RI OI 5ltJ9 ! I,ARACHI

Subjectr REFERENCE FOR CONFIRMATION OF DEATH SENTENCE U/S 374 CRPC rN spECrAL CASE NO.A-56 OF 2013, FIR No.51 of 2013 and U/S 3o!s\3/j24/427/34 ppc

Y OF PS SACHAL

Respected Sir,

With reference to the above noted subject matter, I have the honor to submit that in the special case No.A-56 of 2013, FIR No.51 of 20!3 and u/s 302/ 353 / 324/ 427 /34 PPC of pS Sachal Karachi, judgment passed thereon by the undersigned vide judgment dated 27m July 207g, against accused namely, Rehmatullah s/o Ajab Khan and Muhammad lameel @ Ari s/o Hazrat Gul who have been convicted and sentenced as under:-

1.For offence u/s3O2 (b) ppc, accused Rehmatullah is convicted and sentenced to be hanged till death with penalty of paying compensation of Rs.2,00,000 (Two Lac) to be paid to the LRs of the victim.

2.For offence u/s 302 (b) ppc, accused Muhammad Jameel @ Ari s/o Hazrat Gul is convicted and sentenced to be hanged till death with

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penalty of paying compensation of Rs.2,00,000 (Two Lac) to be paid to the LRs of the victim.

3.For the offence u/s 353 PPC, I hereby, convict accused Rehmatullah s/o

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Aiab Khan and sentenced him to suffer R.I two (2) years with fine of Rs.10,000/- and in case of failure to pay the fine, he shall serve SI four months more.

4.For the offence u/s 353 PpC, I hereby, convict accused Muhammad Jameel @ Ari s/o Hazrat Gul and sentence him to sulfer R.I two (2) years with fine of Rs.10,000/- and in case of failure to pay the fine, he shall sufler SI four months more.

5.For the offence u/s 324 PPC,I hereby, convict accused Rehmatullah s/o Ajab Khan and sentence him to undergo for R.l. five (05) years with fine of Rs.1Q000/- and in case of failure to pay the fine, he shall suffer SI a four months more.

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Ar,tad( o,1 PS €Z- r-)zul,l,r2 J'is \r.LL.^,*n''( LLL

IN THE HIGH COURT OF SINDI I KARACTII

Special Criminal Anti-Terrorisnr Appeal No'20{t of 2018 Confirmation Case No.08 of 2018.

Present:

Mr. lustice Mohamnrud Koritn \!4n Aglu Mr. Muhrmm&d Ssleefi Iessur.

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Appeilants 1. Rehmatullah S/o Ajab Khan

2.Muharnmad Jarneel (D Ari S/ o I lazrat Cul through Mr. Sahib Khan Buneri, Advocate

Respondent The State Through Mr. AIi Haicler Salc'cm, I)eputy Prosecuto: Certeral, Sirrclh

Date of Hearing 75.02.2020 Date of Judgment 11.03.2020

IUDGMENT

MOHAMMAD KARIM KHAN ACHA, J:- r\.,.Lrst',-i lir.'hnratullalr s Ajab Khan and Muhammacl Jameel @ Ari s/o Flazrat Gul, were trit'd b,l' tht: learned ludge, Anti-Terrorism Court No.VI, Karachi in Special Cases No. I A-56/2013 arising out of Crime No.51l2013 U/s.302/32a/353/427/31 PPC r/w section 7 ATA,7997, registered at P.S. Sachal, Karachi. After trial virle judgrnent dated 27.07.201,8 the appellants named above were convicted antl sentenceri as under:-

1.Convicted accused Rehmatullah for offencc u/s 302(b) Ill'C' irnrl sentenced to death with penalty of paying compensation ol Rs.2,00,000/- (Two Lac) to be paid to the LILs of the victim.

2.Convicted accused Muhammad lameel @ Ari s/o Hazrat Gul for offence u/s 302(b) PPC, and sentenced to death with penaltv of paying compensation of Rs.2,00,000/- (Iwo Lac) to be paid to tht' LRs of the victim.

3.Convicted accusccl Rehmatullah s/o Aiab Klran ittr tl.tt' olit'ncc u/s 353 PPC, and sentencetl him to suffer lt.l two (2) ;'ears with fine of Rs.10,000/- and in case of failure to pay the fine. ht'shall serve SI for four months rnore.

4.Convicted accused Muhammad .[ameel u) Ari s/o H.-rzrat Gul lor * the offence u/s 353 PPC, and sentencecl hirn to suffer R.l tu,o (2) years with fine of Rs.10,000/- ancl in case of failule tLr P11' 111.' fine, he shall suffer SI for four months mort-..

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Convicted accusecl Rehmatullah s/o Ajab Khan for the offt'nct'u/s 324 PPC, and sentencecl him to unclergo R.l for five (05) vears u'ith fine of Rs.10, 000/- and in case of failure' to pa1' tht' line, hc sh.rll suffer SI for four months more.

6.Convicted accused Muhammad Jarneel @ Ari s/tt l lazrat Cul tor the offence u/s324PPC, and sentenced him to undergo R,l for tive (05) years with fine of Rs.10,000/- aud in case of failule to pav tlrc fine, he shall suffer SI for four months rnore.

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7.Convicted accused Rehmatullah s/o Aiab Khan for the offt'rrct'u/s 7(l)(a) of ATA, '1,997 and awarded him death sentence.

8.Convicted accused Muhammad Jameel @ Ari s/o Hazrat Cul ior the offence u/s 7(l)(a) of ATA, "1997, ancl awarded him death sentence.

9.Convicted accused llehmatullah s/t: Ajab Khan for the ollctrce u/s 6(2) (m) and punished him u/s 7(l) (h) of ATA and he is st'ntt'ncetl to undergo R.I for five (5) years.

10.Convicted accused Muhammad Jameel @ Ari s/o I lazrat Gul ftrr the offence u/s 6(2) (m) and punished him u/s 7(l) (h) of AJA antl sentenced to undergo R.l for five (5) vears.

1.1. Convicted accusetl Rehmatullah s/o Ajab Khan for the ofience u/s 6(2) (n) and punished him u/s 7(l) (h) of Al A 1997 .trr(l s('nt..'r'rceLl to undergo R.l for five (5) vears

12.Convicted accused Muhammad Jameel @ Aro s/o Hazrat Gul for the offence u/s 6(2) (n) and punished him u/s 7(l)(h) of A1 A 1997 and sentenced to undergo R.l for five(5) years,

So far as the injuries sustained by the two iniurecl persons art'c(tnccrnccl, injured No.1 namely PC Ghulam Nazik has been declare,,l as untler:- i. Injury No.1 Jurah Jaifa, 337-D PPC.

ii. Injury No.2 and 3 lurah Ghyar-Jaifa N'[utalahirnah 33T-F(iii) PI,C ii i. Injury No.4 Jural.r Chvar-Jaifa Murratlqill.-rh'137-t j(\'i) t'l'(i.

And the iniuries sustained by iniured No.2 namely, PC Chulam Arshatl have been declared as injury No.1,2 ancl 3 Jurah Ghyar-laifa Damiyah 337-1"(i) and convicted both the accused persons for causing injuries to both the iniure'ti persons as under:-

1.Convicted accused Rehmatullah s/o Ajab Khan for comtnitting offence u/s 337-D PPC ancl punishetl to pav [it.rc oI Its.5,60,106/- .rs Arsh as compensation to the victim/ ir1yured person.

2.Convicted accused Muhammad Jamee) @ Ari S/o. llazrat Cul for committing offence u/s 337-D PPC ar.rd punished to pav fitrc ol 1 Rs.5,60,106/- as Arsh as compensati()n to thc victim/irtjureri person.

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3.Convicted accused Rehmatullah s/o Aiab Khan for committing offence u/s 337-F (iii) PPC and punished to Pay fine of Rs.5,000/- as Daman to the victim/ injured.

4.Convicted accused Muhammad lameel @ Ari S/o. Flazrat Clul for committing offence u/s 337-F (iii) PPC and punished to pa1' [ine o[ Rs.5,000/- as Daman to the victim/injured.

,5. Convicted accused Rehmatullah s/o Ajab Khan for comrrittinll . I offence u/s 337-F (i) PPC and punished to pay fine of [ts.5,(]00/- as Y Daman to the victim/ injured.

6.Convicted accused Muhammad Jameel @ Ari S/o. I lazrat Gul for com:nitting offence u/s 337-F (i) PPC and punished to pav finc of Rs.5,000/- as Daman to the v icrim/ inju rccl.

7.Both accused Muhammad Jameel @ Ari S/o. Hazrat Gul antl Rehmatullah s/o Ajab Khan were convicted anrl sentencetl to undergo R.l. for 10 years each for the offence u/s. 7(1)(c) of A.l A 1997 and fine of Rs.10,000/- each and forfeiture of thcir ProPcrtics.

All the sentences by way of imprisonmerrt shall run concurrotttlt for both of the accused persons.

2.Being aggrieved and dissatisfied by the jutlgrnerlt Passe'(l [rt' learrrcti Judge, Anti-Terrorism Court No.VI, Karachi, the aforesaitl appeal has been preferred by the appellants against their conviction.

3.The brief facts of the prosecution case are tlrat orr 29.01.2013 at {)7:(X) pnr complainant Inspector Aziz Ahmeci Shaikh of I'S Sohrab Coth Karachi, Iodgecl FIR No.51/2013 u/ s 302/324/353/ 427 /34 PPC r/w Section 7 of A'l A of 15 Sohrab Goth on the basis of the statement u/s 154 Cr.PC antl stating thort'irr " tll.tt on 29.01.2013, he was present at IIS and it was about 7:00 pm then all of a sucicit'n 15/16 unknown terrorists attacked the police station witlr intention to kill ll.renr. They were on four motorcycles and two cars ancl armecl with dealll\' \^'eraP()ns. Due to such firing HC Zulfiqar, PC Arshati antl PC Nazik who were outsiele thc doors of the I'S receivetl bullet iniuries. Thereafter, police partv returnecl firc itr their self defence and all the accused persons fled from the'scene. lniured polict officials namely PC Nazik and PC Arshad were taken to Aga Khan llosPital, whereas injured HC Zulliqar succumbed to l.tis injuries. Ilis clcatl boclv u';rs taken to Abbasi Shaheed Hospital, inquest report was prepared hy SIP Mehboob Ali and so also memo of dead body was prepared. Thereafter, he went t() Agn Khan Hospital to inspect the in;ured persons. On the following morning at about 0800 hours, he prepared 154 Cr.P.C statement and thc'saure wds SCut to tl-ru Sl l() + [5 Sachal Karachi for its incorporating in FIR. Subsequently, such FIll wtrs lodged.

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4.After registration of the case, the illvestigatiorr w'as assigrtt-'tl to ltrspt'ttttr Muhammad Hussain Chandio. He inspected the place of incident in prc'sencc t't mushirs namely ASI Ali Akber and HC Sarfraz and so also he preparecl the memo of site inspection in presence of the mushirs, On 24.03.2013, ht'arrestetl accused Rehmatullah at PS Sohrab Coth in presence of mushirs nanr('lv Chul.rtn '160 to witrress Nabi and Shah Muhammad. On 30.03.2013 he issued notice u/s Y Sarkaz for identification test of accused Rehmatullah and Dilbar (rr) Muhanrnlati Ali before the Magistrate. On 01.04.2013 he also took thc.rccuscll llchtrtatull.rh trr the place of incident and on his pointation the place of inciclent was inspcctt'tl. On 19.04.2013 he made formal arrest of the accusecl Jameel Ahmeci at Ini Sachal in presence of the mushirs namely PC Ghulam Nabi ancl AIi Llassan anti prepared the memo of arrest. He also wrote a letter to the FSL. Subsequerrtlv l.te obtained the FSL report. He also prepared the sketch of the plact' of inciclent. After completion of the investigation he' subr.lrittetl tht' challarr lrcfotL' tltc competent court of Iaw.

5.The charge against the accuseci persons was franre.l to which tl.rer' plea,.iecl not guilty and claimed trial of the case.

6.To prove its case the prosecution examined 13 Prosecutitxl witrlesscs autl exhibited numerous documents antl other itetns ancl thereaftcr tht'sirlc r,I thL' prosecution was closed. Statements of the accused were recorded u/ s 312 Cr.P.C whereby t\ey denied the allegations against them and claimecl false itrplicatiorr, They did hot examine themselves on oath or call any DW in support of thcir delense case.

7.Learned Judge, Anti-Terrorism Court No.VI, Karachi after hcaritrll thc Iearned counsel for the parties ancl assessment of evidence available on recorti, vide iudgment d ated 27.07,2l-18, convictecl and sentenced the aPPellants as state(i above, hence this appeal has been filed by the appellants against thcir convictions.

8.The facts of the case as well as evidence produced before tlre trial c()urt find an elaborate mention in the iudgment dated 27.07.20'18 passed by thc trial court and, therefore, the same may not be reprotlucecl hert'so as t() n\/oi(l duplication and unnecessary repetition.

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9.Learned counsel for the appellants has contendeci that with regartl kr appellant Muhammad lameel the only cvidence against hint rvas that lrt, has been identified in the court by a nurnber of prosocution r^,,itnesscs as [irir]t1 on lh(' deceased and injured policemen. That with regard to appellant Ilehrnat llah PW 3 Sarfraz was not an eye witness to the event at all antl tllat n() roliancr'c. t b(, placeci on his e',,idence and that the other P\t"s hal,e or.rlf itlcntiliccl Irinr irr tourt Y and as such there is no reliable evidence against either of thc.rppell.urts h,h() should both be acquitte,d of the charge. In support of his contt.ntions lrt,placi',.i reliance on the cases of Umar Farooque v, The State (NLR 2008 Criminal 10-{), Sabir AIi l4y'aseem and 3 others v. The State (2007 YLR 2142), Zeeshan @ Shani v. The State (2012 SCMR 428), Muhammad Hanif alias Pocho v. The State (2()lJ P. Cr.LJ 928), Akhtar Ali and others v. The State (200t1 SCMIr 6), Wajid Unrar r,. The State (1994 P, Cr.LJ 409), Siral-ul-Haq and another v. The State (2()()ti 5(-N < 302), Azhar Mehmood and others v. The State (2017 SCMIT 135), Javed Khan alias Bacha and another (2017 SCMR 524), Kamal Din alias Kamala v. The State (2018 SCMIi 574, Shafqat Mehmood and others v. The State (2011 SCMIi 537), Ghulam Shabbir v, The State (2012 YLR 1199), Muhammad Imran v. The State (2009 P.Cr.LJ 997), Muhammad Aftab Siddiqui v. S.H.O. Shah Faisal Colony Police Station (2006 MLD 320), )an Muhammad and 3 others v. The State (1969 P.Cr.Ll 588), State through Advocate-General Sindh, Karachi v. Farman Hussain and others (PI-D 1995 Suprp;11. Court 1), Muhamrr.ratl Ahrrrad alias Danyal v. The State (2005 YLR 95il), and Muhammad lqbal v. Abid Hussain alias Mithu and 6 others (1994 SCMI( 1928).

10.On the other hand Iearuecl Deputy Prosecutor Clt'ncral has frrllr srrpp(rrt(,ri the impugned judgment. He has contenderl that both the appellanrs have been correctly identified with appellant Muhammacl lameel being identifier.l in court and appellant Rehmatullah being correctly iclentifieci bv PW 3 Sarfraz at atr identification parade where he was assignetl a spccifrc role an({ also lt'ad tlrt police to the place of incident on his pointation and both the accusecl attacker,l tht' police station, fired upon and killecl the cleacl police officer ancl the tw,o injureti police officers and as such their convictions ancl sentences shoulei lre uplt(!l(l nr](l their appeals dismissed. In support of his contentions he has placed reiiance upon the cases of Ghazanfar Ali @ Pappu (2012 SCMIT 215), Bashirullah and another v, The State (2002 P. Cr.LJ 11i13), Niaz-ud-din and another v. The State t

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and another (2011 SCMR 725) and Fazal Akbar and another v. The State through A.A.G. and another (2013 I,. Cr.LJ 369).

11.. We have heard the arguments of the learnecl counsel for the parties, gont through the entire evidence which has been read out by the a1.r;.r1.1161115;, 11.," impugnerl iudgment with their able assistance and have considered the relevarrt law including that ctted at the bar.

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12, Admittedly a brazen attack on a police station by 16 to l7 person,s anlctl with sophisticated deadly weapons which Iead to one policeman losing his lifc, and two others sustaining iniuries is an extremely heinous crime u,hich is arr attack against the writ of the state and must be cliscouraged at all ersts an,,l clamped down on with an iron hand. However our horror ancl angcr at suclr a brazen attack on those who risk their lives in protecting the citizens of tht country must not be at the price of failing to do justice. As suclr, as is r:ur tlutr., we have reassessed the evidence before us both clispassionately and objectivelr. and with a view to ensuring that justice is done and that the usual susp(,cts hit\,c not been rounded up simply to appease those amongst us r.r,ho mav scck rovt,rrgr, for such heinous acts against the State. The evidence ancl its applir,ation in accordance with the law must always prevail over emotion and personal ieelings

13.In our view after our reassessment of the evidence basecl on lhe relativelr.. Prompt lodging of the FIR i.e. around 12 hours after the inciclent wlrere clraos ancl mayhem reined after the incident and the immecliate concern was t() attcnd to the injured and secure the scene and th!" PS in our view such rlela.1. in Ioclging the FIR has been adequately explai,erl which leatl t() no time t, c.,c.ct a falsr- story, the evidence of the PW witnesses (including eye witnesses), pW MI_O.s, post mortem reports anci other medical evidence, lO,s evidence, r-ecovcr.\ ()i empties, positive chemical and FSL reports, we are satisfiecl that thc- pnrseculiorr has proved beyond a reasonable doubt that on or about 29.01.2011 at l9(X) Itrs around 1,6/17 persons arriving on motor cycles and 2 vehicles attackctl arrtl opened fire on police officials while they were rendering their tlutics .c.rr tlrt' main gate of PS Sohrab Goth with firearms which Iead to the rlelibc.r.rtc irnrl intentional premeditated murcler of HC Zult qar AIi antl irrjurics to pC- Muhammed Arshad and PC Chulam Nazek, Irrcleed learnecl counsel ior tlrt, appellants admitterl this position.

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14.In our view therefore the only issue before us is whether the. appellants have been correctly identified as two of the persons who fired at the I5 n,hosc firing lead to the death of one police oflicer and the injury ot two olhers trv firearm.

15.After our reassessment of the evirience w,e are of the vicu, tlr.rt tht, prosecution has not been able to prove bevontl a reasonal.rle tloubt llt.tt ttt,,,

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appellants were responsible for firing on the police Station and causing the rltath of one police man and iniury to two others for the following reasons;

With regard to appellant Rehmatullah.

(a)Only eye witness PW 3 Sarfraz identifies him as firing on thc policr, station and causing the death of one policemen and injuring two others at the main gate of the PS and identifietl him at an itlentification parade. Although he is not a chance witness we however tkr not fincl the evidence of this eye witness to be reliable trust w()rthv ()r ion-fidence inspiring and we disbelieve the same for thc folkrw,ing reasonsi

(i)lt was a night time incident ancl there is no evillc'nce of .tnv ,( source of light which evitlence was re'quiretl in tlr.icr tir support a safe identification. In this reslrcct re]iancc is pl.rc(:(l on Gulfam V The State (2017 SCMR 1189)

(ii)He did not know the appellant and at best woultl only have got a fleeting glance at him if he saw him at all (which is in doubt).

(iii)He is not named in the FIR as a witness despitc rh(. lilll being slightly delayed

(ir)In his 5,161 Cr.PC statement he has not given any hulia of any appellant, it is also not mentioned in his S.161 Statement that one culprit has been identified by me from his fe.rtures and he has not mentioned ir.r his S.16.1 statenlr.nt th.rt he i.arr identify the culprit again. He simply says that the appellant has features like a pathan. lt is not without significar.rce tlrat many pathans live in the Sohrab Goth area of Karachi. Such lack of an initial description is highlv damaging to the reliability of the correctness of his itlentification of the appellant keeping in view the other facts and circu r.ltsh tces of the case such as darkness, lack of light, flct,tirrg glarrct,, distance etc. In this respect reliance is placcrl on JaveJ Khan V srate (2017 scMR 524)

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(u)He was not stationed outside the gate where the policonrtlr were shot. ln his own evidence he admits that at the time o[ the incident he was busy distributing arms and ammuniti()n to the staff of the PS. Bv his or.r'tt .ltlnrissiorr it tht'rt'krrt' seems that he was not in a position to see any one who was firing at the 15. According kr PW 6 Mehboob lllahi who was also a PC at the time of the incident the boundarr" lvall ol Sohrab Goth PS is 15 feet high and the incident took plactr outside the main gate ancl the police picket which was Y attacked outside the PS is not visiblt'frotn tht'grotrrrLl [lr''r,r of the PS. Thus since PW 3 eye witness Sarlraz was itrsir.lt' the main gate and surrounded b1' walls tlris bcgs tl.rtr question as to how he was able to see or identifl' atly Lroti v let alone the appellant.

(ui)Based on the evielence of the other PW witnesses whtl u'ere present on the night ()l tl.te .lttack otr tlrt' l'S it ,rP[\',rrs tl],rt the culprits were at least 50 feet awav from the PS For example, PW 10 Muhammed Korral who was on the roof toP of the I,S states that this was more than 200 yarlls from where the firing was coming from the road. So once again this begs the question as to how the eve witness was able to see or recognize any ont' ir.r thc clark frotll str l.lt aw'ar. lhis aspect of longish distance of fire is supported bv the fact that neither the dead policeman nor the iniured policc nrctl haLl any blackening on their wounds which inclicates that the firing was not from close range.

(vii)Likeu,ise thc irlcntific.rtion Pnlnrlc itr rrrtt lir''rr' (irrrrrr'l l\' safely relied upon. This is becausc thc appclLlr.rt u'.rs irr police custody and could have been shown to tht evt' 1 witness Sarfraz who picked him out of the i(lcntificati()ll parade which lvas held alter a considerable tlelay. It is also note worthy that the appellant was the only person in the identification parade who haet a bandageel loot and tltus lre would have been an easv target for a pre plannc'el picking out at an identificatjon paratle. 'Ihus, it.t our Yit'u' tht' identification parade cannot be safety reliecl upon ;ts lea,'lirrg to the correct identification of the appc'llant. In this rcspect reliance is placeci on Kanwar Anwaar AIi Special Judicial Magistrat€: in the mafter of Cr. Misc. Application No,18-3 of 2019 in Cr.Appeal No,259 of 2018 (Pl-D 2019 Supreme Court 488)

(viii)Enmity has also been allegeti by the appt'llant.rgainst this eye witness for falsely implicating the accused in this case as he blamed the appellant for murdering his brother in lara' who was a traffic policemen

(b)It is correct that a number of eye witnesses have iclentifietl both of the appellants in court however in court identification has been deprecated by the Supreme Court especially in the circumsianc(.ri noted above where the accused were not known bef<.lrc thc irrcirlcrrt, no q

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hulia was given in their 5.161 statements, it was dark witlr tro source o[ light and the firing was taking place from a distance. In this respe'ct reliance is placed on the case of Gulfam (Supra). In our vit'u' tht' evidence of such in court identification can be cl isre2ia rrletl. lnterestingly PW 7 Muhammad Arshari who lvas atr itr jttreri t't t' witness and was much closer to the action than the other eye witnc,sscs Y cannot identify the accused. Likewise PW l2 Chularn Na[,i r.r'ho r'r'.rs present when the appellant was arrested stated that the appellant in court was not the same person who he arrested antl was ele.clareel as a hostile witness. It is also significant ancl in our view clamaginl5 to the prosecution case that none of the PW's who alkgetllv itltrrtilittl thc appellants in court, including the iniured eye witnesses, were callecl t<r appear before an identification paracle to iclentifl' tlrc appetlants. lhis is more so since these PW's were servirrg police officcrs who coulcl have been readily made alailablc for-such idcntilicnti()r'r t(,\ls k{'('l\ir'1i, in view that it was their 15 which was attacked arld thoir br()thqr' police officers who were killed and injured on account of thc.tttack orl the I1S.

(c)We have not seen any other evidence to link the accused t() the offenses as charged. For example, no weapon was even recovered front 1 him or motor cycle or vehicle used in the attack n,hich might halt. belonged to him and linked him to the attack on the [5.

(d)The fact that the appellant took the police to the scene of the attack on his pointation is irrelevant as the police alreatlr., kne',r,*,ht'rt, tlrt, a ack took place.

(e)In our view it is also not without consequence that according to thc evidence of the IO PW 13 Muhammttl I Iussain tl].rt Llntil lh(. lrr('st ()t the accused there was no evidence as to who caused the attack and it is therefore somewhat convenient that both the accusetl w,hilst irr polict, custody coniessed before the police (which is in arlmissible in evidence) to an extremel), serious crimt'which fhcl must h.rvL,knor.r.n would have carried the death penalty.

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16.Thus, in our view for the reasons,'liscussecl above, tlte ielr'rtrtilicaliotr ol appellant Rehmatullah cannot be safely relied uPon as one of the pt'rsons whtr fired at the IIS or killed or injured any policemen on the fateful nil]hl and in the absence of any circumstantial evidence to this effect by extending to him the benefit of the doubt he is acquitted of the charge.

Y 17. With regard to appellant Muhammad Jameel the only evidence against him is in court identification which, as discussed earlier, has be'en cleprecateel [rt' the Supreme Court. He was not even picked out ol attY itlt'lrtilir.atiort 1,ata.lt' Keeping in view the factors already discussed in respect ot appellant Rehmatullah such as darkness, lack of light, Iack of hulia etc we are also of tlre' view that the correctness of his identification in playing any role in lhe altack on the police station cannot be safely relierl on ancl thus he t()o is acquittell ()l thc charge by being extended the benefit of the doubt.

18.The upshot of the above discussion is that the appeal is allon,t'tl tl'rc ippellants Muhammatl Jameel and Rehmatullah are both acquitted o[ the charge and shall be released unless wanted in any other custody case. The confirrnation reference is answered in the negative.

19.The appeals are disposed of in the above terms,

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