AFSAR KHAN S/O FAZAL KHAN (Appellant) VS THE STATE (Respondent)

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CERTIFICATE OF THE CO U RT IN REGARD TO REPORTING

\p r:.1 A it L'\ 't;1 ct'l c - tt I l-l ^f'

HIGH COURT OF sINDH

Composition of Bench: S. B./D. B

Mr. Justice Mohammad Karim Khan Agha, w\r.1{,,'ti.-Z^tgi1a- + r". {o*1,

Date(s) ofHearing l4-1t-,f U- lf-l)-l( psgg6g en.p^2 - rr -2079

(a)Judgment approved for reporting Yes l.'t

CERTIFICATE

Certified that the iudgment'/order is ba5ed upon or enunoates a principle of law '/ decides a question oI law which is of first impression / distinguishes / over- rules / reverses / explains a previous declslon.

* Strike out whichever is not appli.able

NOI L (i) This slip is only to be used when some action as to be taken (ii) lf the slip is used, the Reader mu5t attach it to the top of the first paBe of the judgment.

(iii)Reader must ask the ludge writing the ludgment whether the Judgment is approved for reporting.

(iv ) Those directions which are not to be used should be deleted *sl's $\

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E HIGH COURT OF SINDH AT KATACHI

Special ATA App€al No. )A , /2017 /f,ESENTED .-\-53;,!?-,-3 o \']..

AfSAR KHAN S/O FAZAL KHAN

PRESENTLY CONFINED IN CENTRAL JAIL,

.ji-L,--./- lr6rFuu.'r KARACHI Appetrant \gtZ

f: VERSUS

The state Respondent

FrR NO.893/2012

u/s 302, 34 PPC

R-W 7 ArA 1997

P.S SOHRABGOTH

APPEAL UNDER SECTION 25

OF ANTI- TERRORISM ACT 1997

aggrieved and dissatisfied party/ appeltant w.ith the judgment dated 06/12/2017 awarded death under section 30? /34 PPC , R-W Section 7 ATA, They hang by neck titt his death, the appettant shatt atso pay ,000 (Two Hundred Thousand) compensation to the heiB of the deceased, awarded by the Leamed Anti, Court No.lV at Karachi by Miss Kosar Suttana Husain ln Speciat case No. A- 116 of 2013 to the appetlant t E appeltant prefer this appea( with prayer to set- !: impugned judgment- death sentence by ca(ting the R h Seciat case No. A-116 of 2013 by the Learned Anti, No.4 at Karachi and then acquit the Appettant

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Spttirtl Case No. A-l l61201-j

Al:{xr l( hr

I,'lR No. 8912tll2 tl^: 3{)2/31 PP':

R./* S(c 7 AI A 1997 P.S Sh,'ral' Colh Knrnchi

The Rcgistrar, Hon'ablc High Courl ol Sindh Karachi.

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II [,NTI'NCI' ,\}VART}ED TO AC( II

IilL\\ !iO F:\2.\1, KllA\ lN (Ol\,lPl.l^N( l,l Ol Sf(.lIt)\ :5 A\1t-TUt r CI 19\i

I have lhe honour lo submii rhli in lhe captioned case. lhis uourl Judgmcnl dalcd 06-12-201?, lbund accused AFSAR KHAN S/O FAZAL N , guilty of offtnce punishable under secrion 7 (a) ofAnti -'lcrrorisrl t I997. rcad vrith section -102i34 1,1,. lt,'w SEc ? A'IA 1997 nrd l|':c[scd victed U/s 265-H (2) (lr.l,C a d awnrded Death Senterce to him to lre ngcd by Decl( till denlh, subject to the confirflltion by thc Hon'rtlle gh Cuurt ol Sindh, Ksrachi .

'Ih. pruccsdings arc submirted herewilh for placing before rhe 'able High Cou of Sindh. Karashi, lbr confirmation of sentencc of dealh ed to ahovo narncd accuscd. as required Lt,/s 174 Cr.PC s\v\r1 rli\t S,\ lt A IIT'SSAIN]

ANr , rlRrr(xliddHL' No t\" Anti-Tenorisrn Cou rt No. l\ Y^rachiOiYisron

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In" THL HIGH COU ITT OF SINI)H A1' KAI{ACIII Specln Crl Anti'Terorism APPeal No.263 (,f 2{)17 Conlirmation Case No.11 d 2017.

&!i.'r-E I ust' \,,\tah,rt,t,t'ii knri Ur.lu* t tulfutt AltlrtUi

Af\ar Khan S/o. Fazal Khan through N17s.

Syed Mehmo('il Alam Rizvi and Zakrr l-aShdri

IhrouSli N'lr. Zalar Ahrncd Khai" Ad(iitionil Prosecutor Ccneral Sindh

Date tlj hearin8l l,l I L2ll1!i and l5 I 1.20I9

Date oIamoun.ement: lS ll 2lr1.r

t_!L!Gr\4-LNT

Nlohammad Karim Khan Agha, J.- APPellant Afsar Khan s/o Fazal Khan hali preferred this aPpeal aSainst the iml'utned iudgment dated 06.f2.2017 passed br. the leamed JudS€ Anti-Terrorism Court r\'o IV, Kara.hi Division in SPecial Casc No.A-116 of 2013, F l lt N<r'893 of 2012 u/s 3n?l u Pl'L- r/w sechon 7 of ATA, 1997 Ps. Rrhrab Goth, Kara'hi wh€reby the .lPP€ll rl has bccn convicted add sentcft'e'l to death under se€tion 302/34-PI'L- r€ad 1,ith S€ction 7(a) ATA, 1997 subiect k' (onlirmation by this court wiih fine oi Rs.200,000/- as (omPensation to be paid to thc legal hei$ of thc de{eased Umar Farooq ind in case ol default the convicl was o!deled to underllo [l l. ft,r two vcals more'

2.The brief fd(ts o, thc case as nanated in FIR No893/2m2 u/s 302-I'lt by the cornplainant Manzoor'-ul-Haq are lhat his )ounlicr brothcr namely Umar Farooq S/o. Muhammad Moosa aSed about 2612/ -veaF vr'as residing lvith him \4'ho was a !,tudcnt. His br('thc! wctrl from the house ofl 17.12.2t112 at about 04:m P.m' ('n his 'noto(yclc bearint r.,Sistration No.KFV 2032 but did not come bdck' O the saole day at about 06:00 p.m. hc r€reiverl ink,rmaiion that Umar Farooq has bcen killcd a d hrs ,te'acl boLly was lymg in Aga Khnn Hospital Thc complainant rushcd to Aga Khan llosPital with his lather and btother

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rvhere they identified the dead body of Unlar Farooq i{ho sustained bullct injury on his chcst. The police disclo*d to the complainant that sornc persons carrre on nrotorcycle and iired uPon him and comnritted his murder near Katcha Road, Dilda! Umrani Coth. The Police insPected thc dead body and prepared such memo of insPcction tl dead body and Inquest Report and after poslmort€m the dead bodv of thc deceas{rd was handed ov"r to the parents of the deccased.

3 -,\Iter fr)r,ral invesliSation5 insPe(tor Muhamnra(l Hussain Chandio suhmillcd the (harge sheet in th€ Plcsent (rimc on 25 ll20l:t bctorc th€ Anti- I'efiorisnr Court-|, Krrachi wherein d(us€d Afsar Khan S/o. Fazal Khan was shown ln custody and his nam.'was mcntioned in column ll3 (,f lhe Chargc Shect and the name.'a thc accusld namely ,ahnngir S,/!,. ran Nisar Khan and two (lnknown persons have lrcen shr)wn as absconding .lccu$cd in colu rl No.02 of chargc sheet with rctl ink NBW has becn issued against thc ahs(ondin8 a(cused jahangir

4.Tlre charge was lramcd againsl the a(cu-sed to trhich he Plcadeli not guilly and claimed his trial

5.In ordcr to provc its.ase the proseuti)n cxamined t] PW's *'ho exhibited various documents in supPort of the Prose(ution case whcre alter the pros€.ution closed its slde. The aPPcllanlla..cuse(t recordcd his statemcnt under 5.3!12(1) Cr'rc wherc denied the evidence aSdinst him and claimed false imPlication on a.clunl of enmity. Neither the ac'usetl cxamintd himscll on oaih nor Produ.ed .1ny dclense witnes-s in suPport of

6.harned Jud8e, Anti lerrorism Court-lv, Kardchi, after hearing thc leanred coLrnsel lor the Parties arrd a+s€ssrncnt of cviden(c availabl€ on rec(,rd, vid€ thc imPuBned judBment dated 0612.2017, lonvi(ted and s€ntenced the apPellant as stated above, hence tfus aPPeal has beerr filotl by the appeliaIlt a8ainst his conviclion.

7.The la(ts of the cas€ as wcll as evidencc Produced before thc trial Court find an elaborate mentit)n in the imPugned judgment, thereforc, the samc are not reProduced here 5o as to avDid duPli.ation and unne'cssarv rePetition

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8 I eamerl counsel fff thc aFPellant has tontende(l that lhere rvas 'r 40 hour delay in lulging the FIR which lead to thc rase berng labrjcate'l agarnsi the.rPPellant; that the PIV eve ivitnesses arc.hance witneises anJ are c(,rplet€ly u reliablt and unLrustworthy; thai the rpPellnnt had n(' t m(,tive to murder lhe.leieascd ,'l5 thcro $.rs no cvi(lcncc thnl tlre dtr(asL'(l rvali a polio worker, that thP aPPelli'nt had n(, cnmitv with the 'lec('nsetl .1nd ha (l no r.'ason lo mtr rder himl that lhc oral ev id e (:e contradi( ts lhe mldi.al cvidrnce as t.r thc time of dcath ol the dectdsed; that this was not d (ase hlting undcr tllc Purvi€w of thr AlA altd as su'h lh" aPp€ilant roul(l not have becn convi(ted u der any scctron ol the AT.^ :nd thai for an1- ol the above reasLrns thc aPPellant should be..(luitied of the chargc bl, this court ext!tu1int to hnn the benefit ol the dotrbt. In suPPort ol lis eontentions he has Pla.cd rellan.c on an unrePortcd iudgmcrt ()f llon'Lrle Supreolc Court ol Pakistarr in th('case ol Ghulanr Hussain. Muh'mmad Azeen, et(. ranvir Sikandar Havar v. The stat€ in Crininal ApPcnls No.95a|d96ot2019tlaled301tl.2019 K,ueem Nawaz Khan v The Statc (2019 SCMR 1741), Wrris Ali and 5 othtrs v, The State (20'7 glMR I572), Dilawar Nr€hmooil alias DuUi and rnalhe! v.'l'he Stale and others (2018 SCMR 591). Tahir Mehmood @ A(hoo v. The State and another (2018 SCI,{R 1691, Shahz.ld alins Pakora and others v. The State (20llt l'Cr l-i 396), Sam€er v. The State (21118 P Cr l-.1. N{,te 128), Sikandar Sani v' 'lias The State (2{118 l\fLD 1?20), Ahdul Karim rlies Patni and anoth€r v The Strt€ (2018 lr.C. Ll 1158), Zubair Ahnred alias Ladu e The slate (2018 YLR Not€ 160), Aq€el Ahmed alias Tiloo v l hc State (201u P Cr'l-l Note 12), Abdur Rehman and another v''Ihe State 'nd anothcr (2018 YI R 1629),'Iariq Pcrvez v.'the State (1995 SCtvlR 1315), Muhamnud Nawcz and ano(her v. rhe State and oth€rs (PLD 2005 SuPrenrL- Court a0)' Muhammad Per!ez nnd otheB v. Th€ State and others (20t17 SCIqR t'7o)' Ghui.m lltustafa v. The State (2t109 :r--\tR 916), Tasirullih v The Stnt€ (2018 YLR Note 1tJ2), Mst. Suthra uegum and anothe' v Qaiscr Perv€z and others (2U15.'r--MR 1112), Liaquat Ali v. The stale (2008 SCNIR 95), ]'hc Stdle v. Sy€d Mustafa Abba3 and 5 others (1986 P Cr'LJ 12t13)' Akhtar Ali atrd othcrs v 'l he State (200E rcMR 6), Chulam Qadir and 2 'l other6 v. Ihe Stats (2008 sCt{R 1221), Noot Muhammad v hc Statc and anothcr (2t110 SCNIR 97), Ahmcd (hin and 2 othets v' The Statc (2tlltj YLR 1515), }tuhammnd Asif v. The Stare (2017 SCMR 186)' Muhammad Nawaz v. Th€ State (2016 P Crll Nolc 72), Muhammar'l laved and

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another v. The State and anolher (2019 YI R Nt'jtc 1) Asmatullah and others !. The Slate (20lu Ir Cr.LI 1042), Aftab Ahmad v. The State (2001 N1LD 1137), Aiif Khan v. l'hc Slate (2018 YLR 661), Far€ed Ahnred Lan&ra v. l h€ state (1g9li P Cr.L, 1368), Salman alias Lamba and another v. The Stale (20t8 YLR 1()92), Sitaj Ahmed v. The Statc (:01I Ii C' l-l It)' Mulummad,aI 6haid and anoth€r v. Thc State and oth€rs (2016:''-MR 10lg),Sher Ali v. 'fh€ State throu8h Advo'ate Centtnl Khyber Pukhturkhwa (201t1 YLR 1836) ald Muhamm;d Ilyas v Muhammad Abid alias Rilln and othcrs (2017 qjvR 5{)

9.L.earne.l APC ia'ho is al$ reprcsenting thc c('drPlainant contended that the plotdution had proved its.as€ against thc aPPcllant bev'rnd n rcasonable doubt f()r the reasons that thc Proslrution casc as narrated hv the PW's showed an unbrok€n chairr of cridelrce provir8 that the appell.rnt had murdered the deceascd; that there wis no delay in lodging the FlR, lhat the evidetr€e ,,f the PlV eye witnesses were r€liable, trustworthl'and conlidencc insPrins ivhi.h Proved that the aPPellant had murdcred the (lcceas$li that th€ ocular evidence *as corrobor'tcd bv the medical evicler.ej th.rt n.ither the.omplainant nor the Polr'e had 'rrlv enmity rvith thc appellnnt slr as to fix him in .1 falsc (ase; ihaL th! .lPPcllnnt had adnritteJ rnurdering lhe aPPellant beiore the Police and it 1!as n ctear .asc of terrorism as ihe dcc€ased was murdered bccause he !1'as d Polio urrrker and as such lhe aPpeal should L'e dismrsse'l and tho co'rvict(n' anLl sentencc maintained in suPPort o( his.ontcntions he Pla'ed reliarrctl on Dr. Syed Muhammad Khalid Moin.nd 3 others v' Th€ State (PLf, Zroa Kara€hi 687), M3t. Dur Naz ,nd anoth€! v' Yousuf and another (2005 s(]Mlt 1906). zaklr Khan and otherE v, The State (l !l()5 SCMR 1793), Wilayat Ali v. The State (2004 S( I\'lR 177) and An*nr Sh'mim and another v. Ttre Stdle (2010SCtllR 1791).

10.Wc havc h€ard thc arguments of thc learned counsel for the Parties' gone ttuou8h the entire evidencc which has been read out by tlrc appellant an,l the impr,Sned iudgmcnt witi their able assistance and have .orlsiderLd the relcvant law ir\cludirg that cited at the l'ar

11.To murder a polio worker is a Particularly hcinous crime siice the polio workrr is helping io e.adKate this m(xt damaging oI diseases from being contra.tcd Lry our young children !vhich maY adverselv e'fecl their

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physical rvcll being for the rest of their livca and leavc a social stignra orl them and any attatk on such a worker designed dId intendcd lo terrorize other polio w.,rkers from carrying out their duhes is cven morc condemnablc. H(rwever we cannot allow our emotions and abhorrenc€ h, thc oflcnse t(, ouhveigh our strict adherence to th€ g:lden principlcs of crinrinal law which rquircs the Prosccution to Prove its cas€ b€yond a reasonabl€ doubt with a,ry beneiit of the doubt h€ing extendcd to the '12. h our vieL the first issue t., tE de.iiled is wh.th€r the dec.dscd u,as murdered at the datc lime and Place as allcgeci in tlte .hargc and it so whcther the appellant corn$rtted such murder and il so h'hcthcr the murdcr fall$ rvithrn thc purview o{ the ATA since not all murders attract the n.ressarv Incns rea in terms ol ,lesrtrn, PurFose dnd rntent to rnrs€ them to the level of ()flenses undcr the ATA. Thlrs, ii we find that thr prose<ution has not proved its casc against the apPellant for thc murdcr beyond a rcasonable doubt therr thc question of the opPlicabilit] oi th(' AIA falls a!va) and bc.omes a moot trcirt lvhich hill n',t nce.l k, t{ t deicrmined by us lf however v'c find thnt the Prosecuti(n l1as Provod its case against the aPPellani for thc mur(ier beyond a reasonable doubt or y then will we need to make a firdiflg on wlEther thc provisions ot the Al A are attracte(i or rrot m this case based on its own Particular farts atrd

13.ln our view altcr olrr rcassessment of the cvidence based on the cvidencc of the PW's in.luding the IO's, the PW MLO, P(,st mortem rcPort and other medical evidencc we are satigfied that the Proselution has provccl bey('nd n reasunable doubt thit on 77'122072 at about 1600 k' 1800 hours dt Kat ha RcEd Dildar Umrani VillaSe adiacent to Ali Carh Society ftheme 33 Karachi Afsar Khan (the deceas€{) was shot and murdered by fireann.

14.l'he next issu€ thercfore is whether Lased on the evidence on reeord the appellant was one ol the Persons who nrurdered lhe deccased thr('uth causing him a firearm iniury.

15 hl our view after (,ur reasse$ement of the evidence we find that thc pr(,sccution has rot been able to provc beyond a reasonable doubt that thc

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appellant murdcrcd thc dereased on the above m€nlioncll date, time and placc lor lhe followinB reasons;

la) that hased on the particulnr la.ts and circumstances of the casc therc has been.rn unexptaincd delav of 40 houls in reSistering lhe flR .rgainst unknown Pcrsons and thLts therc has t'.'tn a oppo.turiitl' to conrocl a falsc case against the aL.used lhe complainant i1'.1s a s.rvjnt Policc officer and woul(l have knoh'n well that su.h a delal can be iatal to a case and as such ihis is a fack)r !!'lich gocs against the prosccution, In this rcspect reliancr is placeil orr Akhtar AIi's.asc (Supra) and Mehmood Ahmed V St.te

(1995 5(-N4R 1?7)

(b)In our view the most rmPortant asPBci ol the casc ls whethcr wr can salcly rely on tlt idcntifi(aiion oI thc aPpellant by the two evc q,itrcsslrs PW.l Asghar and l'W 6 Niaz. Thc e!'iden.c of thc ('ve witn.rssss is that ihcy wcre Soing to view.r Plot on thl't'\'uring oI '17 12.2012 whcn the incident happened in their Presence- They have given no Prot)l that thev lvcre visitinS nny Plot in resP!\:l oi Siving i plot number or thc rcal €state agent theY were dealin8 wilh or even thc rellistration nu ber of tht Dotor bikc whi.h thev x,cre riding on anJ thus irl our vie*' lhey have not givcn sullicltnt rcason for bcing at thr PIa.€ of the incidcnt whcn il allegtdly or.urred ard .ls such we lind them ki bc (h.ncP witneeser lvhosl' eviden e $e nlust considcr !{'ith a great dc.rl .!l care and cautKtrt nnd seek other indcpendcni (orroboratit,n ln lhis resla'ct rclianc!' rs placed on Mst Sughra Begum's c.3€ (SuPra) Irvo dnvs ain'r witnessing the in.idcnt thev dBatrr iust ltPPened llr be Sorn8 lo vrew a ptot without Bivrnl! dny cviderrce as to lvhi.h Plot and who thcir r€al estatc agent was whcn ih€v camc a.ro:rs the lcl ('l the (ase insp('ctrn8 tht, Place uf the in.idcnt about one hour altcr the FIR haA been l(xlged and oflcr€d thenrselves as eve witnest$ to the poli(c. lve {ind such a cGincidencc hard k' tN:lievc Thc two cve witrrsse$ then in the ev€ning l',ave thcir S.1t'l statements to tll€ police 2 davs after the incident. It is settled b) now that a delay in ihe eyc *'itncss ijiving his 5.161 statement can be {atal to thdl e}c 14thres-ses'evidcnc!. In this resPect tliance rs pla'c'l {nr Muhamrn€d Asif's ca6€ (SuP'a) The e-"-e wihlcss€s did not aPPenr k) havc given .rnl hulia i their S 16l statemerlts an( ,:enerally hnve stated that they torrld id€ntity the i.cused if th'\ s.lw him atiain lvli{h cannot be regarded as,r safe uay to latcr idcntiJ! an a' usd who y(,u dl(l rlot knoh'bek)re or had n(d seen bef('rf thP incident anJ only Mw briet Sl,mPses or. ln this rPsP.{t rclian'e ls 524)) lnst€ad of thr eve I,lace(l on Javed Xhan V State (2017 SCN|R wrtness€s inrmcdiately being takerr k'] rL{ord their S 164 gtatements before tht concem€d nlagistrate this was (lone aftet an unexPlaincd delay of over 9 monlhs lnlercstinglt' thc S164 statcments of ihe €ye lvitnesses are rccorded [l davs after the arrcst of the accused and alto contain some huita ol the a'cused who is present wllcn iheit S 1&1 statcments arc ru( orded wherc hit absenc' irom thc sccne of the incident is sugfjested to the evc witncsses 1 durin8 his cross cranrinntron ol them. In {)ur view bas€d on thi5 ch.onoJr,gv ol cvents lt cannol be ruled out th'rt thc ac'used t'1s shot!rt to ihe eYc \r'ilnessls before tllev recorded their S'161

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statements hence their abilitl to Sive somc hulia and identifv lhu dc.Lrsed sho was riSht ill lront of thcm. lt is rlorable that nt the tim(' of re.ordlng his 5342 Cr.t'C statement the a.cuseil sPecificalh stated that he had b€en shoern to th€ eye witn€$e6 before they tav€ their 5.16,4 statementB. Since th€ a.cusrrl was not knowrr n) the cye witnesses and thc €)'e lvitncss€s onh got a lleeting SlimPs!' of tl'w accused at the time o[ thc inridcnt ivho lt'ere moving quicklv on motor bjkcs and brause thel hid as they were afraid in ()ur vieu th€ riler .ourse in determining the (orrcct identification ol the accused was to hold dn identification ParaLle howevcr this was n(,t donc and thc prost'cution hns not cxPlained v''hv dn i.lcndri(atron para,le was not hcld in order to identify thu a(us('d It rs also unknown holv far the etc s'itnesses rvere from thc rccused when thc inciJcnt t(lrk Pla.e co oit.e again this dents the pr(..€{uli.,r'5 i.rcr rn renn, ut , orrcctly rJuntriYins the ,.. usJ J- k)r i $.c ^now Lhe e\c lvrrnesses (ould hJve Lreen 50(, nrclers or nrore irom the incident and wouli, have ha-rdty bePn able k] see the acrused [rom such a distance let alone bt at'le to 'orrecth rdentify him 9 m(,nths laler. 'l he eye h'itncsses have also not siated how lar the d.cus€.I was from tht'dcceased when the dccused shot him i,,/hich was an important pie(e rrt Pvidcncc a.i n cordjnE k, thl mL'!1i(al evidencc thc shot was fircd bv the a.cused trom rvitlnn 2_3 feet bccause blackcning was Prescnt on t}1€ *'ound according to the cvidcncc ot PW 5 MLO IJr Altaf Ahmed who carried out tht P{'st morte r (,1 thc dcceased. The evidcncc retardins the (ondu't of the c],o wihresscs at the timc of the in(idcnt also iloes not aPPeal hr logic, c(nnmon sen5e or .1(Lord lYith nzllral hunun behavior Nimeiy, thcy witnesscd the dc(eas€rl beinll shot on d qui€t road and th;n whcn the urderers had l*it bv nt)tor bikc thcy dtd not comc forwanl to helP thc decea-sed who according to thP cvidencL' of some other Pw's was injured and not dead dtter b'inli shot as he h?s latcr taken bt rickrhaw to a private hosPital .1nd then ihe Aga Khan hospital *'her€ hc lal.er cxPired on dc'our1t of his tircarrn iniurv vpt the ete wihrs\cs dr,, not dllenrpt to help lhe rnlureJ J,lceu"",l *l,o rlie' had jusl \cen t'crn8 shot in lront 'rl thcir cvc' Instead thel, fL'.i a*a)'on a motorbike and d not evcn rePort the incident lo the Police or l,other to call frtr an ambulance' In lhis resoccl relrar, c l. Fla(ed on M!t. Rulhsrna Begum and oth€rc v' Saiiaa antr others 1rrtl7 SCMI{ gih) w" hdvP als. norrcc'l .o;t.iJ,(t,ons thp SlGl'tarcm(nts lt lween cach cle hilnL5' 'n and their evid€nce before the trial .ourt Thtts, tor all the rcasoni mentionc.l al1(^'e we do nol iilrd ll1e eviJence o{ cither ol tlE eve witnesses to be reliablc, truslw(,rth.v or .onfidente insPirin8 and wc'harbor seyere doubls that the so cdlled eye witnesses (tre Drcsent at the s(cne of thc inrident and even iJ lhey Bcr€ Present ilc aru oi the view ror the reasons which vle have dls( ussed atxrve that wc canflot sately rely on their identification of the aPpellant and !,,e hcrcb, rliscarrl their Pvidcnce in resPe(1 of the identilication of lhe aPPcllant.

(t)Turning to othcr circumstantial or suPPottive evidence Tlre al,pell.rnt tilin8 thc o,lx c h' (h\' plnce or the rn( JHnt rs rn our ! ics i' r;l(vdnt lh.i pol . c dlreru' t neh wh|rc the rnird( nt tool( Pl'tct''

(d)Ihe appcllant's adnrrssion bdtorc the Police that hc committe'i.

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thc critne t,ith other c(,-accuscd is inadmissible in evidence and has no i€tal value and in any event was later rclracted lhe tacl that hc marlc his admission whilsl hc lvas under arrest whilst in Poli(e custody in anothcr case which did not entail the death penalty also adds further doubt to his admission and Pointation as alter a Period ol 9 months when there was no evidence against hirn and dre.a5'€ had bcen disposerl of in "A" class w-hy would the arcused admit k) an offcnsc \ahich calrici the death Penalt]'-. Tlris to us scenls rather inplausibl..

(e)That no emply r^as rcco,"cred lrom thl's(cne (, the in(ideni (0 That rto pistol was recovered from the a..useJ whether on his pointation ot otherwise and thus the murder wcaP(nr hras not rccovered. lf the accused lvas so keen to take thc poli(e lo places on his pointaiion and he had alreadv admitted to the (rime then lrrgically he shoultl havc also taken the Poli.e tD wher€ the murder weapon was hniden <rr explaircd to the Poli.e holv h€ disPos€d of it r\4rich he did not do.

G) fhat ihe prosecution has not in our view satislactorilv ProveJ that th(, a.rused had a motive to mur.ler the d€ceascd because hE was a polio worker When he camc to submit the challan or1 his own admlssron the se(ond lO I'!V 11 InsPector Muhammcd Hussain added 5.7 ATA with(,ut tonducting anv investilgtn']n in resPcct ol whethcr the oilelrsc did or tlid not lall undcr the AfA Even otkrr4ise there was no evidence that the accused evcn knew thdt the de.easatl rvcs a Polio u'orke!, i{ indcc'l hc was ')n'' a'd the .lcceased could have becn nrurdcred fi,r any numbc'i oI oiher

(h)Thc prosd Lrti.,n hds nr,l beun able to Prov(' nn! ill will or clrmitv L".rv'.e,i th* a,.u"rd and rhe der casul whxh lvoulJ l;ivc ih( a(rused a nrotive to murder the de(€ased.

(i)In our !,lew th€ circur}lstantial c!idence aBarnst the aPPellant is .o:npler"ly t,rckitrg in rl"dt thc.,rrlv ({tJcn'c a)iarnst thc aPPelldnt ,n," th.'.t" *,rn-*t"t cvrdcn,( ol th. aFPeJlant's identrhcahr'n ir disca.d€d is the,nedi(al evidenre whi.h is oltl!'suPPortive or ..rrob()rak,rv ot dirc(t evidcn.c (of $hich *e hnve tound there is llonc having disrardcd the idPnLifi(atnrr testinronv ol thc ele wilnesses) rnd can only tell us, arnongsl other thrn8s, the 'nuse of death of the dcceased and possibll what kind of u'eapon/ rnstrument .aused the death of the deceascd lt (annot tell us who rnurdcred thc de.cased. Thu't, in our view there is rompletely itrsutiicl€flt circumstantial evidence .lvailable to mcet tlle leBal (equirement ()i .orlvichnt an accused base'l on circumsiantial €videncc bcing that it must Iink thc h']dy ol ttre deceascd to the n€ck 01 thc a;cusB-t tkou8h.rn unbroken chain of !'vi.lence leadinS to the inJeren.e that the accused was the onlv p.rson wlxr could have murllered the dec€ased which rs ntcntion€d uarlier is badly lacking in thrs ca* ln this resPert relianc is Placed orr Azeem Khan and another v. Muiahid Khan and others (201tl glMI( 274) and Wazir lluhammad and another v The State (2005 scMR 27). _

4fo

16.Thu!. based on the above discussion there is neither any rcliablc, trust worthy or conlidence insPiriql dirett oral r"widence against the appcllant (since rve have dis.arded the direcl eviden(c ol identification ol thc appellant by the e!'e witncsses) and no cir(umstantinl evidtnce k' linl thc appellant to the mLrrdcr of the deceased and as su.h we do not need t() delve irto whethcr or not thi! case fell within the Purvicw or not oI dre ATA as thcrc is insulficicnt efiden.€ to supPort d conviction for th!- offcnse of ,rimple murder undfr5.302 (b) PrrC

17.I heretirrc keePlnlt in view the cast oi Tatiq P€rvez V The Stdt€ (1995 s!-1"1R 1345) which held that if thcre is a single circumslnnre, which creates reasonablc doubt in a Prudcnt mind atx,Lrt the fFilt of the accuscd, then the accused will be entitl&1 to the b€nelit a$ .1 matter of grace an'i ^ot concessi(rr but as a matter ot riSht which PranciPle was lllcelrtlv rciterate(i b'!' thc SuPrerne Court in the c.rse o( AHul .labbar v statc (2019 SCMR 129) we hereby acquit the accusecl of the charge by extending to him thc benefit of ihc .loubt arld set iside the imPugne.l judgment and aliol4' the appeal. lhe conrirmdtion referencc is ansB'ereil in the negative and the appellant shall be released unl€ss hc is wnntcd in any othcr 'ustody c'se'

18.the appcal and.unfir ration reference stand disposcd o1 in the l,!',

IUNCT

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