Muhammad Shaukat (Appellant) VS The State (Respondent)

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CERTIFICATE OF THE COUR T IN REGARD TO RI-PORTING

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HIGH COURT OF SINDH

Composition of Bench: *-3/D. B

Mr. Justice Mohammad Karim Khan Agha, rvrv i;it- 'Z-".(F1". nl; "(.-1r

Date(s) of Hearing:21-1,. -i5,Zt-,o"rf t at - 'r -tt Decide on: f !- - ll -2019

(a).ludgment approved for reportinB Yes ldt )

CERTIFICATE

certified that the judgment*/order i5 based upon or enLlnciates a principle of law */ decides a question oI law which is of first impression / distinguishes / over- rules / reverses / explains a previous decision.

* Strike out whichever is not applicable

NOT F (i) This slip is only to be used when som€ action is to be taken' (ii) lf the slip is used, the Reader must attach it to the top of the first page of the judgment

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

(ir)Those directions which are not to be used should be deleted'

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A.T.A APPBAL NO, , 'T2006,

Shaukat -raitnad *O luharEmad Sharil, - - -adull, Presentlv l4 Ecd al Cerllred l)dson, rf--x}l

Versus t'L State R5SPONDENT,

APPEAL UND ER SECTIO N25 I 1I OF ANTI

TERRORI SM ACT 1997

lp'rs afsrieved and dis-satisfied with tl)e judgment (lated 31* lr of Octotrcr, 2OO6, passed bv Mr' Feroz Mehmood Bhatti .hrdg Anti 'fcrrorist Court No: It, Karat:hi l)ivision in a case b:armg IrlR i 63t2OO3, t,nder Section 3O213241X4' Rea(l Wilh A.r:'rc 7 of Anti 'ter.orist Act lqq7, haying spccial case tr ltl'2ff)3 'fh(' slatr. '...Versus ...shahnawaz @ Shani an<l tbttrer the atxlve cast w{ls s{'nt try the Maripur l'olicc Statiorr' f-rhi Thc l,r'trrne<l .Iudgc awarde<l the conviction an(i lrnt.rtct to the Prcsrrrt Appellant mentioncd ab<rve as rrnder:- aacsrrrct the appctlant/accused for causing callous offence of kutal (la\ ligtrt Qatl e-Anrd of i(rnft:('nt de( Gastd Pcrsrttrs grch' Muiranmad Qasim, Raza Ali, Ather ALi, Syed Hashim *rr:r llawaklar Mtlltaornr l Raftqrtc ;tn wasi Htr$s'lill' an *rre l\rnishable Under sect,on 3O2 (ir) R/u'34 o[ I'akistan

oati to

OFFICE OF THE .IUDGE, ANTI-TDRRORISM COURT NO: II (ARACHI

5 No. AIC'll/K/Div/ 213 l'zooo. liarachi Dated 31s' October 2006- SIP-E-c-IilL S4!P NO; 3() OF 2OO3.

The State

t .// -' ,t a l. Shainawaz alias Shani alias lmran alias Usman- alias Bargar S/o Abdul Razzaq,

2.Shaukat alias Javed alias Chaod Son of Muhammad Sharif. ....... ACCLiSED

3.Asif alias Chhottoo alias Rizwan alias Nasir s/r-r Ahmed Khan.................... AbscondinB Accused ii fl\ FIR No: 63/2003.

U/S: 3o2 / 324l34 PPC and 7 Anti-Terrorism Act 1997.

s- t& P.S. Mauripur. Karachi wes!

9PESI4-Il O: 17 oF.

The State

Shahnawaz alias Shani alias Imran ahas Usnran alias Ba:gar S/o nbdul Razzaq.......................... ACCUSEI) FIR No: 229l2003.

I U/S: 13id) ofthe Pak. Arms. O.d P.A:-I4!!.h'\e-t(e!asbilIcs!

I 965

To The Registrar, High Court of Sindh, Karachi.

SUts.IDC'I REFERENCE UNDER SECTION' 374 CR.P.C. R/W SECTION

3O(2) OF THE ANTI-TERRORISM ACT. I997.

This Court, vide judgement dated 3tn October 2006, has convicted both the accused persons namely Shahnawaz alias Shar alias Imran atias Usman alias Barger or ffilJli*l "on

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IN THI: HIG I{ COURT O F SINDH A KARACHI

SDc, ialCr. Anti- l'crr.rl ism Appedl N(''29 Lrl 200h sll. Cr Anti- l errorism Idrl ApPea' No 27 of ?t)0/ Sl.t. Cr nnti- I crre,rism ldil ApPeal No28of20()7 ConJiflrnh,In Ca'c \o l)9 of 2tJ0o

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(,rri Iil,L illr. ltrstic. Zu Ii Srt

titl ApptlLants Muhammad Shaukat ancl Shahnawaz Shanr @ lirua[ O Usman @ tsur8er, throu8h Mr Abdul Razzak and N1/s. Muharnnlad Ashrat Kazi and l*had Ali Jakli, Advocates'

Rcspon.lent The State through Mr. Khatlim Hrrssain, Adcll Prosecutor Gencral Sindh

Date of he.rings: 22:tO.2O-19, 25.70.19, 30.10 and 0I 1'l'201e Date of anrounccment: 15.1r.2019

UD MENT

Mohanrmad Karim Khan Agha, f - Appellants Nluhammad Shaukat

@ Inrran 'rrr Usman L:lr son of Muhanrmad Sharil and Shahrra 'az'A Shani aPPeals against the Balgar son oI Abdul Razzaq have preferred the above tcarned Judge Antl impu8ned iudgment dated 3110.2006 Passed bv the lerorism CourI Noll, Karachi in sPe(ial Case No'311/2001' F'l'li No.63/ 2008 u / s. 302/ 124/ 34 PP( r/ \^' section 7 of A IA' 1997' registcred

bern convicted and at I's Mauripur, Karachi $herebl'the aPPellanls havc sentcnced as undert

rn) FL'r caus:ns cdllou' oiferr.c of brutal 'rnrl br(uJ da! lighl Qrtl-i- ' n-d of i,,io..nr der'caseJ person: numt lr Muharnn'MJ Qasrrn' i<lr" et,, ,n,f,r"t nli, tyed l iashim naza' tiaualdar \4uhammad ii..ti""- *i Wa.i lltr.sain an nifer'c punishable u/s 301(l') Act' .i*:+ f'fC,)nLl r,/w sc,cri'rn 7(d) ol the Anti-lerrL'rrsm t,lr, ,t"' or. uwarrlcd Jcath scntence as Ta zlt' t'n ea(h ccttlnt subject to conlirmation by this court'

cau(Ing lwo inJurirs Jerlarc'l as Jurh Charr lai'ah ' for tl,l'b"-'rrl,, LE irriureJ ,qli H'rsrr.rln lafri' an or[cnr\ PurrisILrL'lc Ii'iii E t,r rfw 14 PPC dnJ r/tv s(r trcJn 7(cl ol rhe Anri- 't'errolism Act, t992, they are scntenccd to suffcr R l tor l(one) 't vcir as Ta'zla

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(c)For causing tvl,o iniuries, dcclarcd as Jurh Chayr JaiIah Damil'ah, to injured Syed Asii Ali lafri, an ollerrce Pu shdble u./s.337-F(i) r/w.3.1 I'PC and r/rv section 7(c) of thc Antr- 'lerr.,rism Act, 1997, th€v are senlcnced to sufler R.l for'l(one) year as Ia'7irj

{d) For calrsin,i one injLrrl', dcclarcd as Shajjah-r'Khali-fah, to injurt'd Itmt Hlrssain, an tflence punishablc u/s.337 A(i) r/tv. }1 PPC' and r/t1r. se.tion 7(c) of th. Antr-Terrorism Act, 1997, tht'v nr€ s!,nten(ed to undergo R l. ft,r 2(two) vears as Ti'zir;

(e)Causing four injuries, declared as; (i) Shaijah-i-lvludihah punishable u/s.337-A(ii) r/* 34 PPC and r/w. scction 7(c) oi the Anti-Terrorism Act, 1997, (ii) Jurh Jaifah purushable u/s' 337-D r/w.34 PPC and r/!v. section 7(c) of the Anti-Terrorism Act, 1997, (iii) furh Chayr lailah l)ami)-ah Punishable u/s 337-f(i) r/* 34 PPC and r/ v!. section 7(c) oI the Anti-Tcrrorism Act, 1997 and (iv)]urh Gha)r JaiJah Mutalahimah Punishable u/s.337-F(iii) r/\\,.34 Pl'C and r/w. section 7(c) ot the Anti' 1elrorism 4ct,1997 to iniured Pervcz Akhtar for which thev ar' sentcnced as undcrt

(i)For causing Shaljah-i-Mudihah, R.l. for s(tive) vears as ta'z.J) (i, For causing Jurh Jaiiah, R.l. for 7(seven) years as ta'zir;

(iii)for causing furh Ghayr Jaifah Dami)'air, RL for 1(orre) Ycar as ta'zil;

(iv)Fo, caqsing Jurh Chayr JaiIah Mutalahimah, R'l for 3(three) ]'ears as ta'zir;

(f)For causing one iniury, declaretl as Jurh chayr )aifah Nlutaiahimah Punishable u/s.337 F(iii) r/w. 34 PPC and r/w' scclion 7(c) oi ihe Ant!'lerrorism Act, 1997, to injured As8har Zaheet th.y arc sentenccd to underSo R L for 3(thrce) years as Ta'zir;

(B)For causin8 c.lusing [ive inlurics, cleclared as(i) hao Sharah-i KhaliJah, Punishable u / s.\i7-A(\) t/lr-3dPrc and r/rT secti('n 7(c) of thlj Anti-Terrorisr Act,1997, (ii) one lurh Ghavr Jaifah IJashmiah punishable u/s.337'F(v) r/!v.34 PI'L* and r/w section 7(c) ot the Anti-Terrorism AcL 1997 (iii) one Iurh Iaifah punishabie u/s.337-D r/1,. 31 Pl'C an.l r//w section 7(c) of the inti-lerrorism ,Act, 1997 (iv) onc Iurh Cha)'r jaifah Mutalahimah punishable u/s 337-F(iii) r/w 34 PIt and r/w sccti(nr 7(c) of ihc .Anti-Terrorism Act, 1997 to iniured Munawar AIi Zaidi, for which they are sente,rced as under:_

(i)For i,ru.rn8 two ilriurrPs uccldrcd d' 5h'r,idh_i_ Khalilah,R.l. for 2(lwo; vear' as t,r'zir for cach tniurv-

(ii)ror causinll onc injury declared as Jurh C;havr raifuh H.rshrnah, I{.1. lor l(LhIe() vLrrs ds ta'zir;

(iii)For causing lurh Iaifah, RI. for 7(seven) years as la' zir;

(iu)[.or causin!! ]urh Ghavr.laifah Muialahimah, R l for 2(t!vo) )ear! as ta'zir,,

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(h)lt has come on the record that injlred Aslam Abbas, who has also Lieen examined at the trial. had also sustaineil injuries but hr *'as hospitalized at the Liaquat National IiosPjtal, Kara('hr and since hc was unable to halk, therelore, he did not accompanv the LO. to the IvtLO iol re_€xamination as such the naturc of iniulies sustained by him has nc't bccn eleclaretl so [ar, thereforc, the irrjuries sustained by him arc treated as othcr hurt an offence punishablc n/s337'Lt/\T 34 I't{ and r/w se.tion 7(.) oI the AntlTerrorisnl Act, 1997 lot which they arc sentenaed to suffer R.l. lor 5(fivc) ycars as ta'zi.;

(i)lt has also come on thtr rccorri and !)roved that bus l)earinll Rcgn. Noi lA-1629 in $'hich the dcceased and iniurcd Persons wcre boar,lcJ was aired at ard it receivcd .lamagt to the tunc of thousands oI rupecs and in this r*'ay both thc accuscd cortunitted an olJence prrnishable u/s 427 r/ w 34 PPC and r/ vt' section 7(d) of the Anti-"lerrorism Act, 1997, iur which they are sentenced to under8o R.l. Ior 2(two) years and to PaY finc of Rs.20,OttO/- (tu'enty thousand) t'r in default to sutlsr R I. ,or a period of 6(six)months more;

0)For possessin8 unliccrrccd SMC bearing Nor 32958 with doublc magazlne each containing J0 live rounds and unlicensed l2 bore pistol bcarin8 No: 328817loatled rvith fi!'c live bullets in its matja/ine, an of[cnce punishlrble u/s 13(d) ot lhe Pakistan Afins Ordirlancc, 1965, accused Shahnawaz alias Shrni ls sentenced t(r suffer R.t. for s(livc) years and to Pa!' Iine o{ Iis:10,0o0/- (ten thousand) oI in (lefault to undergo R I. lor a l,criod ()l 6(slx) nll'rnths morc;

(k)Doth lhe accuscd are clirected to PaY compensation oi Rsj1,00,000/- (one lac) io thc lcgal heiis of cach sir dcceased persons namcd above and R5.30,000,/- (thirty thousand) to ea.h of the injurcd persons named alDvc, as provnled u/s 544-A Cr P.C. or in case of lailure to Pay the compensation thc) shall undcrgo R.l. for 6(sir) monlhs more;

Ihe amount ol comPensation, if Paid, be Sivcn to the legal hcirs of the deceascd persons arrd the initlred Persons dt the rat(' mentioned above anJ the amount of fine, if dePosited, bc Siven to the ownel of the bus bearing ReBn No: lA 1629;

A1l the scntences are dirocte(l to rull concurrcntly ancl belletit ol sechon 182-8 IPC is also extended to both the accuse'l'

2.I'he brief facts of the Ptosecution case as Per FItt are that on 03 10-2003 at'12:50 pm neat oute! check Post SLiPARCO ltoad, Karachi the prcsent a.cused Shalmalvaz alias Shani alias llfian alias Usman alias Balgar, Shaukai alias Javed alias Chanrl.rlon8 lvlth absconding co-a'tused Asif alias Chotloo alias Rizwan alias Nasir, dnll armetl 1,!'ith Kalashnikovs, in furtherance of their common intention, fircd bcaring Re8n. Ncr.JA-1629 in whi(h e lPlovees of SUPARCo

boarcled with intcntion to commit thcir Qad_i'Amd, as a rcsult of r4'hich bus dri!,cr namely Qasim and cir-drivcr Raza Ali susiaincd bullet injttries and dicd on the spot while othcr emPloyees namely Ather Ali, Hashint l{aza, I Ialvaldar Muhammad Rafiq. Ali Hassan laffri, Masoom Ali, S-vcd Asif Ali Jaffari, ltrat Hus$in, Pervez Akhtar, Asghar Zaheer, Wasi Hussain Zai(li, Munara'ar AIi Zaidi, sustained bullet rniuries and \a'hile the), rvcre l,ein8 shiit€d to the hosPital, Aihcr.AIi, SYed Hashim l{aza and Harvaltlar Muhammad Rafique succunrbed to their injuries on lhe way to the hospiinl while Wasi Hussain succumbetl to his injuries at the Alrt]asi Shaheecl Hospital, Karachi After firing at the above bus, the accuscd persons retreated back and wtule firing at the contract bus boarded the motorcycle .rlready parked nearby and fled al'!'a! from th! scene ol offence. ljcside the injured witnesscs, the aboe intidcnt w'as lartnessell by.omplarnant lftikhar Hussain Shah, Intikhab. Aslam Abbas, Securit-v Cu.rrd Muhammad Younus a[c1 worker Anjum r\bbas. [nsPcckrr Waqar Ahmeci Khan, SHO, 15 lvlauripur, wiro, along with HC lbrahim was patrollinB in the area, received inJormation about the incident on hjs nrobile telephorre. He immediatelv !alled lol the re-enforcemcnt oI Police Iorce to rca.h thc SUPARCO Chea'k Post and himsell rushed to the pointcd placc where he salv nrary Persons lying hjured in the bus and crying for help. Proluse blood was lying in the bus. H(' with the assistance of his slrEordinate staff and cmployees of SUI'jAI{L-O remove'l the iniured irom the bus. Meanwl,ilc ambutan.es of SUFARCLI and ')thcr vehicles also arrived lhcre, the injured tlcre evacuated and shifted to larious hospitals through Ambulan(cs securitv Guards oi SUPARCO namelv Shahzad anl Younus s'crc Present there and then ()ther employees ol SUPARCO also arrivell there. I ligh rankin8 poli'e officials aftl Rangers Pcrsonnel had also arrived there On ('310 2003, at 2:30 Pm SIIO Inspector Waqar Ahmecl Jadoon insPected the scene oI oflence in presen(e ol lvluhammad Younus ancl Shahzad and collected 35 enrPty shells of Kalashnikovs, blood stained earth, blood staincd chaPels and blood frrrrl thc scene of oflence and scaled the'n at the sPot Policc also seizetl thc bullet riddled contract bus l,earing Regn. No'jA-1629 and prcparecl the melno of insPection 01 the scene of offeni:c in Presente of Muhammad Younus and Shahzail, On 03.1(12003. at 6:30 pm' complainant lltikhar Hussain Shalr enrPloyed as Manager in SUPAI(CO' appear.d nt Police Statior MauriPur an(l lodged his report t(' thc above -l

crfect bcfore the l)utv Offics SIP Mulumnrad NawaT, I^'ho rcgistcred the FIR bearing i.r-o.63/2003, under Section 302/32'1/34 PPC read u'ith Section 7 of the Anli-lerrorism Act, 1997 and entrusted its investigatirln t() InsFector S!'cd Abid Hussain Shah. The articles recovcred Irl,m thc Place of incident r,ere sent to the Chelrucal Examiner in duly sealeLl conditi()n t.

ior anaiysis. The bullet riddled contract bus was sent to FSI- lor inspe( tion. On 22.10.2[J03 accused Shahnawaz alias Shani alias Imran alias Usman alias Eargar lvas arrested by Police on a tiP o[f, lrom I_loust No.425, ttazarvi N4ohalla, Culshan-e€hazi and Police secured illicit arm and ammuniti()n from his possessioi and as such a seParate FIR bcaring Crime No,229 of 2003 h'as registered against him al 15 Nlochiko un(lcr &ction 13(rI) of the Pakistan Arrns Ordinance. 1965 on 23'10 2003, hc was formally arrestcd bv Police in this c'1sc after interrogation at AVCC Garden in Prcsen(e of mashirs On 31.10.200J, he was c()rrectiv identtli€d b), eyewitnesscs Iftikhar Hussain, intikhab, lvluhammaLl Younus' Ali assan anLl Anjum Abbas before Judicial Magistratc that they had seen him finn8 dt tlle conbact brrs lrom its leit side bv mcafls of Kalastulikov, thc Mag,istrale prepareJ thc memo of identilic.ltion test and obtained thc signaturer ot above eyelvitnelisc5.

3- l'hat after lomPletion o{ investigation the I.O' submittcd his rePort under Section 173 Cr.P.C, vide chalgc shcet Nu 59,/2003 before A.lminish-ative ,udgc, ATC, Karaclu on 2012 2003, to$arding accused Shahnawaz,Gr Shani @ Imran @ Usman @ Bargar in custody to facf his trial while thc names of othel accuseJ Shaukat alias Javed alias Chrnd and Asif .rlias Chottoo alia.s l{izwan alias Nasir weie dcclarcd as absconders. later on Shatrkat was arestcd on 16.05 2005 and h'as also sent uPto iace lrial. l hcre.lfler the charge l1/as framecl to which thc accusrd ple(i not tuilt)'dn.l (ldimcd trial

4.ln order to Prove its case the Prosecution exarnined 32 l'W's rvhc' exhibjted various do.uments and other itcms in suPP('!t ol lhc prosecution case lvhere after the Pros€cution closed its side The accus€d recorded their statem€nts under 5.342 C!.ItrC whereby they clairned falsc implication in the case as thev were arr€sted from thcir horncs and kept in illegal police detention and that they u'ere shol\'n to thc cve $'ilnesses betorc the identifi.ation parade at the Police station Lblvever, the4

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accuscd did not cxamine themselves on oath or producc an) delense witnesses in support o[ thei! defense cdse.

5.Lear ed ]udge, Anti-Terro sm Court-ll, Kara.hi, after hca ng thc lealne(l counsel for the parties an(l assessmcnt of t:\'idence availahle on record, vidc impugned iudgment dated 31.10,2006 convicted and scntenled the appellants as stated above, hence thesc aPPeals havc bcen separately filed b-y the appellaflts against their convi.tion. By this common iudgment wc intend to decide Lhe sanre.

6.Thc facts of the case as well as evidence produced be{ore the trial court lind an eiaborate mention in the imPugned judgment, therefore, the sarne are not reproduced hcre so as to avoid duplicdtion and unne(essary rePetition.

7.l.earned advocate for aPpellant Shaukat contende.l that the flR r,r.as lrdgcd alter an unexPlained delay of 5 hours against unknown persons; that in the FIR only two eye witnesscs fronl SUPAIICO arc named being lvluhammed Younis ard Aftab Aslaml th.1t thc comPlainant in his l,lR h.rs not givcn anv LiescriPtion of thc accused; that the elc rvitnesses roho i.ientified the accused Shauk.rt are.hance witnesses dnd were too lar away to ct)rrectly idcntif) him; thai the iJerrhfication Parade lvas not carricd or.rt in accordance tr'ith the l.llv as rro des{riPtion oi thc dummies \a'ere given and froD lvhere they wcre foundi thi]t the medi.al evidcnce oi the \'ll,O's contradicts the oral evidencc as to lvhere thc incident o!.currcdr tl.Lat the accus€d was illcgallv arrested; that the bus i{as not produce(i in court and ttL?t bascd (rn any one of the above reasons th.' ac.used 14as entitl€d to be acquitted base(l on the bcneiit o1 thc doubt' III support of his contentions he Placed reliance (,n Ilayatullah V State (2018 SCMR 2092), Mst Sughra tsegum V Qaiser Pervez (21)15 sCMIi 11'12), Muhammad Asif V State (2017 (MR 4lt6), Faz.l Bibi V The State (1988 SCMR 645), Barkat Ali V Muhammed Asif (2007 SCMR 1t112), Mul'ummed Shah V The State (2010 SMR 1009) MuhamNed Asghar v The State (2010 SC\'lR 1706), Shafqat Mehmood V The Statc (2011 SC\4R 537), AIi Sher V The State (2008 licNfR 707), Fayyaz Ahmad V The State (2017 SClvlR 2026), Mah (;ul V. The State (2009:d-=l!'tR 4), Abdul ,abbar !'

The State (2019 sclvlR 129), Khybcr Khan v Shahid Zaman (2019 I'Cr' I'

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J 979), M{rhamnrad Ahmed V The Stale (1997 9(INIR 89) nnd Aurentzeb V The State (1990 5Cl,1R 619).

8.Leatned advocatc Ior appcllant Shahnawaz admitted that the inciclerrt had taker place but contcndeJ that the apPellants werc not the culprits and had been wrongly implicated in this casc either deliberately or by rnistake; that a.cording to him none of the t,ye witnelses rYas present at the scene and wcre ali Put uP ivitnesscs; that the comPlainant \4a5 also not present at lhe scene as no one lud scen hiln on the bus or at the hospilrl whcre hc allegedlv r4'ent and he !4,as noi a siSndtory on an-v post mortem report or 5.17,1Report and he (lid not Sivt'any descriPtion of the assailants in his FIR which was delaycd by an unexPlained Period of 6 hours so thal a false shry could be.onco.ted lt'hich was shoB'n by the fact that onl) one eve rvihress out of the two namcd in the FIR 8.rve cvidence r,r'hilst 4 unrlamcd eyc vr,itnesses ga1'c evidencc as PIV'si that the inquir,"- had alrea(ly startcd before the IIR lvns lodSed; that no nt{}tivc was alleged for the attack on the bus and no motive \!as Proveni that even if the cve \,ritnesses were prescnt thcv rould not be safely relied upon as theh identification o[ the appellants was insufficient to establish that the appellants lvere the actual Persons h'ho conrnritted thc olfenses a: charged and tlmt the identification P.lrade had not been caffieLl out in accordance with the la&'t that no indePendcnt eye witness desPite being availablc had tpert associated with the case; that the ocular evidence was not supported by the nledical evidence because according to all PW's the appellaflts iired upon the bus with KK's yet one oI the tlereased was found to be hit by pelletsj that there $'as an unexPlained del.ty in sen(lin8 thc empties for forensic anal\'sisi that the taPedars qkctch could not bc relied upon as it did not even mark the position ol thc cclmPlainant; thal for any onc oI the above lcasons aPPellnnt Shahnawaz ra'as entitlcd to be acquitt€d bnsed on the b{nefit oa the doubt. In suPPofi of his contentiolts he placed reliance on Mehmood Ahmad and 3 othels v. The Slate and another (1995 SCMR 127), Ivtuhammad Rafiq v. Ihe stale (2014 SCMR 1698), Abdul Qayoom and another v. The State (2018 l'. Cr.LJ Notc 229), Kamtan Allmed Irarooqui and another v. The State (sBLR 2013 SC l8), Kanwar Aiwaar Ali (PLD 2019 SLlPreme Court 488), M6t. Sughra tsetum and another v. Qaiser Pervez and others (2015 SCMR 1142), Amin Ali .nd another v. The State (2011 {NlR l:1) lehantir v. Nazar Farid (2002

:,Sq

SCl,,rR 1986). Muhammad Ashraq v. The State (1995 sCtvtR 1321) ancl Allahando v. The State (1969 SCNIR 714).

9.On the othcr hand Mr. Khadim Hussain, ALI(ll. Prose.utor C€ncral, supported the impLrgned jud8ment and contended tltat the Prosecution had fully prorr'ed its case against both thc appellants beyontl a reasonable doubt and as such the appeals should be dismisted. He .ontendcd that the delay in the uR had bcen explained; thc fact that the FIR had been agninst uliknoh n persuns showed the FIR was honest and did not sct out to Ialsely implicate nrly pcrson; that all the eve B'itnesscs agarnst both the accused were natural ey€ lvitnesscs and wcre Present on thc sPot, that thc eye witnesses had all c()rrectly identiiied both the apPcllants and that the evidence of thesc eye witnesses was reliable, trust $'iJrthy and confidence inspirin8 and sincc thc medical evidenre suPPortcd the over whelming eye witncss evidcnce we could ronvi.t on tircse Sroun(ls alune; that the identilication parade had been rarried out in accor.lanct'rtith the larv an.l as such as the prosccntion had proved its (ase bevond i reasonable doubt the appeals be dismissed. ln suppott of his contentions he Pl.lced reliancc on Solat Ali Khen v. The State (2002 scl\'lR 820), Mulrammad As8har and four others v. The Stnte (2004 SCJ 387), Muhamm.d Arshad v. The State (2015 SCMIT 258), Muhzmmad Arshad allas Achhu v. The State (2002 fl\.lR t806) antl Muslim Khan and others v. The state (2002 YLR

10.We have heard the arguments of the learned counsel for the Parties, gone through the entire evidence whi.h has been read out b) the appellant and the impugned judgment with their able assistance and have considered tlrc relevant law including that €ited at the ttar.

li. Belorc dcciding this case we would rcilcratc that.old bloodied murdcr and injuly to many others on secta an,/reliSious Sroonds is an cxkemely abhorrent and heinous c me for whi.h thc nlost severc Penalty is applicable il proven against the accused as it hits nt the stability of the State. Hor^cvcr, althou8h lt'e are cogniTant oi thc hct that the larv needs kJ be dvnamic in criminal cases $,e cannot bc so cavali€l in our outtage as to caste aside s()me of the Soldcn PrinciPles of crinri[al iurisPrudence Namely that it is l1)r thc plosccution to prove its c.rse beyoncl a reasonable doubt dgainit tl (, a.cuscd bascd on cogent, rcliablc and tru'twortl-v

I

lst evidence on record (bolh oral. documenta and circumstancial) and that the accused is entitled to the benetit of thc doubt and that it is the cvidcnce on rccord and nol our efir()tions or Personal ieelings or gravity or heinousncss of thr offense whi.h must {orm the lasis our decisions.

-lhis view 12 was rdcntl), eDlPhasizcd by the suPrcme Court in the case of Azcem Khan and another v. Mujahid Khan and others (2016 SCMI{ 274) u,hich 1aas a case conceming kidnap lor ransom and murder oI a prc teenager which is also a crime of the most heinous nature rvhich held as un(lcr at P.291) Para 32.

''It is atso a \{,e11 cmlrcdJcd l,rinciple of I.r$'ard iusti.e that nr) ()l1e shoulLl bc construc(l rnk) a crime orl the basis 01 PresunrPtron in tlrt al;sente (rf strurg lrl'xlcni:e ol uninrpeachnblc (lEra.ter and lugallv admissiblc one. Similarly. mere heinous or Srlresom€ nature of crinre shall not detra.t the Courl of law in any manner frorr the due course to iud€ie and make the aPPraisal of cvidcnce in a l.lid dowlr nrannct and to extcnd lh€ bencfit of reasonable doubt fo an accuscd person b€ing indcf€asible and inalieMble right of an acclsed. ln tetting ilrfluencc frorn the nature of the (rime and other cxtraneous .onsidctalion might lead the Judge$ to a Patently wrong conclusion. ln that evcnt lhe iustice $o ld be caeualty."(b,)ld ad.l('d) 13 lve are of the vie$'that ir thc PrevailinS circumstances of chaos after the dcadly firing ihcidcnt on the bus alrd the ncerl to 8et the injurcd to hospital as soon as possible a dcla)'of about 5 hours in registering the FIR based on the particular facts and ctcumstalrces of this case has bcen adequately explaincd and as such this dela) is rlot iatal to the Prosecution .ase as thera rvas also insulficicnt time to concoct a casc aJter consultation which is bolsterccl by thc fact that the FIR is agairxt unknown persons who ar€ not even described in the FIR which indi'rates that there was no plan or intention to falscly imPlicate any Parti.ular P€rson in this (ase.

14.ln our vierv aflcl ()ul reas.scssnlent of the cvidcnce based on the evidence oi the PW cye witnesscs, PW MLO'S, post mortenl rePorts, PW poli.e wirnesses ancl lO along with recoveries of the Kalashnikov, empties, blood and chapels at thc srene oI the of{ense along with the positive fSL and chemi.al rePorts arrd buliet riddled brls we are satisfiecl that the prose.Lrtiol has prc,ved belond a rcasonablc doubt that on 03.10.200:l at about 12.5(lPm near outer check post SUI'ARCO Road Karachi 5 employees of SUPARCO of ihc shia scct werc muldered by t

3<L

Kalashdkov (K() firearm iniurics and 8 others lvcre iniured on a(count of KK firearm injuries $'hilst being passengers on a tontract bus cn route to pcrform liriday prnyers arld that the murdcrous attack on the bus was nrade on religious/ se(tarian grounds This Positi(,n has even t'een admitled by the appellants bar thc contcntiul that one ifljured receivecl an injury causcd by pcllets an.l not KK although the othcr lniuries aPPe'1r kr be bv KK and the cause of death is by iirearm

15.lhe onlv issu. therelort', in our !'irt\', l€il L'el('r' us is rr'h('th'r it \!'a5 thc npfclln,rts or \r,rrlL'olhtr third Partv who cnrricd out the allack or the L,us !^ hich lrid to 5 people being murdcretl in coltl blo-d antl tl othcrs L.einti rniu r,'.r1

16.In cssence therelore, h our viei{, the fate of the aPPellants b'ill dcpend on s'hether lheir identification can be sately reliecl upon keepingl in vielv that neither of the appellants was arrested on the sPot nor wc'rc they knolvn to any of the eye lvitncsses lvfui allegedly identijied the r at tho timc of thc lncident.

17- ln this regard we ieed to consider the relevaltt law on ldentlfication and thcn see il based on a detailed analysis of thc evidcnce of the cye wibesscs who allegcdll salv and irlentilied the aPPellants lvhcther or not the lal! on safe idcntiJication has been conrPlied with esFecially as this is 'r caPital case.

Thc L.rw on ;dcntifi(ation.

18.Ir the ..rse of Javed Khan V State (2017 trMR 52{) concerni g the necessity fol an eatly hulia/'descriPtion of alr acaused by an evc witrrcss before an iderltiJi.ation Paradc and the ne.d to strictly {ollow the rules governing idcntification parades it was helil as under at P.528 to 530:

"7. l\b hate lpiti IhE lcimal .ornscl und 3t, e lhrou*h tht .€(nrd. The plLtxcttlit'tt case resl\ oi lhP positil'( idt lt-ficatnl pl\:tcdin+s tfid lhe Forensr Sri|ttca l.nbo tlory rcPorl n'luch sla!:s lhnl thc b lful tasory sttll to it lu'|rch 'as slalcd kt halv bepn prckett up Jrotrt tlL crime scerld (as Jircd frot lll? snnt Yst.1l (tahich loos ltt\)Lercd hon, I(ire?s Kh,ln it utfithet cose)- VJe lh elatu' pro,"etl k) consirict Lrdlh lhese asyrls of lle cts? A' rcgarils tlrc t.le tilicatiot Proceedi Ss atul theb contc th1ft k a long line of preceilotts statinS that iierttilicatio,l ptuaeetliflgs rfi,6t be cdlet'ull! conilucteil. ht Ra :nn I' Lnp ar (AlR 19?, Sid 149) Per,vttl li, flnt?tl lot thP l itt''al C,,r.rrsrur.cr s lnurt 'lhe fc i\N ol tt| t lttt Lourt 4 5t ,1h:

P

l0

ipld lltjl, "The reL'ognitiofl of o dadrit or olfuet olfender by t .Iot prcT,iously scefi hirrt iq I tlli k, d fon of lJe5ofi urho h4s eltiile R, rt'hich has dlu'its lo bc tukef ilh a considerablc aD@ nl of cattion, bcca se istqket orc alu'ays pttssihle it stch cuscs' (pay 149, coiu,t| 2). tn Ahttt t'. Sl.'l. IPLD 19bl sC 30;l a o,"rcltrs Cl, tL'ho lnd llhitet IIP iu,lit t l o[ t]lts (butt. lrillt rtln tu ll!, , rltPr o{ tltlilicnhatt lalmdes ll.L!. lltnl, "Their lttitrt?rses] oppnttuttities Jot obsen'dtiott of thc c lpril tuffe ?xtftfiely lintilc.l. Th?y had hcvet sc.tt hit b{orc. fhey had picked oltt thc assnilant Ltt the idutliJicdtiofi pnrn.las. but thcre i5 a .leur possibilitq aristllg out of fhair tlnttfiettts thdt tl€l zttete /rssislel ro io so I,Y being shoton lhe acc sed pe6oh earlier" tpLtie 31il I. Itt 4 P,rs ,r, r. Srrrr IPLD 1981 -ca 112) Don ' litr! I ltc hrtl lrhi\.rcl th. jr.qt t l of Cortrt.

tJtis ht:ld tlnt, if a /]oit ess hdi ot gi7,e a lrsctiption of the ussailont i his stuk\nc t lu the Polic. arul idc tifi&tiott took pla* fout ot [i1\' tto ths aftfi the fiur,let it 1'o hl, "rctict ngnb$t lhe etttirr pnsecutioncAse" (pnic 145C) l n.rrrc Pretn itlSnt,:tlt o! th,q Crur!, Inmt Aslril i, 5h t r'-lUul 5C,l1R l2+). try'ticl r|rr' aulharul hV tfttkhn L4tlnmmrl Clt'tu'llr1 l, th,5 Cr rt lltll llnt, it , ust bt c s rel that thc idcntifltnry u'itn.sscs ttt,]sl " ot scc tlk nccus?il .tft tht .ortt issio o[ the crimc till th( ii?rllificatiort t ati.lc is held in edidtelv aftcr th? nrrest of tl]]" accuscd perso s ar ertlll os pttssible" (page 485P).

8- The Cornplnirntlt (Pt\t5) ha.l ot nuntiotlfll n Y /eatuft' r:tf the astnihutts eithet in the FIR ot in his statarne,l rc.otdil undcfiectiD lt;1, Ct.It.C, Lherelotu therc trutts to bc,nchtna/{ agairi6t tt,hith to test !'heth?r the apPcllints, ho he had ide tilicd altu otet a Veat ol thc crime, a d zt'ho he ha.l fleetitgllt see , ujere in /nct the actuul culqtits Neith o! tlt' nL'o N1..itslrut.s htd ,trtrJ'ieil tl t tu lltt ibLltfahn protL'dings llte t)ther pett("ls, nt a 8.l lunt tltt alli||,llattts 1L:ptt plnte,l, ttare t)l sorlthr i$c, h(iiht, built a ,1 colouflni. Thc muh object <)f i.lcntificatiot Pro*cdirSs is to ctnl'l? a u'ittt?ss to prop? ! idcntify o person inL'oh'ed i n ctirfle a il to exclude the possibility of a u,itness siDlPlv cot{trni g a lti t rc('ollectiot or inryrcssiott, that is, of utt oli, ltorttg, tdll, short,Iat, thin, dark orliit susPect. Th(rcb wt nl ,tlur nspe.t b tle nlittrr o.f idt ti.fiL'atiott oJ lhe &lfttls tlf l/,is .as. ll? Codpldntn l had nund thtee olhet Ferrn s lttho cohli t.ngni.? tht dssnilittls, b he i,d tDl ,P,tt Sr|,?d r M?httiad Ah ni Khn,, (Pvl tj) m one ,l thetn. Nrrrlellrrlrls Sfirdnr Mthnnod Alrnad Khtn.atu fi)nt:nnl n' dctttilt tht inlelltt ts.Sigrifiqntlv, ,tortc uf the three Persons ,ne tionel by the Co,'lpl,rirtiltt Patticiltited in tl( iilcfitilicatton proceeill gs ttttd t1t)o u,are tlot ctlcn Producal t1s ulitnesses b! the PrDsccutiott Dnting the iifitilicatiott ptoce.di,tss both tlc aPPelli ts had ity'onted the Migistrat?s tho toerc rc ductitg the idc tificutio,t procecilinSs, dnt bt/ot? lhe ide tificotiotl Pruceeli Ss rttmetcei,-1'h. that they had earlier bco slloto to thc .t,ittcsses. M.tgistrutcs tcconl l this (,bjcctioll of thc nppctlufits ifi thpir rcports but srtptisirgl! lil ttot .,tleni to it, uiti:h cnfi o lv be catcxoizeil ds i setiotts la\se o their part. Thuqloft, fol ill th?se rPasotts relii ce curttot b?

ll

3:-, r

placed upott the rcport of lhe ide tifi.ation Procccdings itt rL*idt thr a?pell ants .t:ete idetrtiJiei,

9 As rtgar& lhe iLlt tilil?tion of tlv ..tlq?l)i s belore lh. tinl &urt by Ndsit Mehboob (Pl4-5), Sufuilnr Mehnootl Ahne,l Khin (PW-6) AND ldrcss Muhanm'td (PlN 7) thdt toi) tt'ill ol asiis! lht Prcsccutitl,j brnu* thcse lljihr.ssas ,rrd n nunbet c,j opfo wutt.s lo 5ce lhtnt befoft'lheir slflIene ts n\:tc retoded I st;xt! p. Fnr vL OLD 19SS SC 1), tllP tldjoritll judgntenl of uhltlt urc a horel by Apwl iliun l, lh? linnul adSc hid )Eld tlut it1 tdt lt.fia rcfl l1nruda tLtut ||r'cesnTry dtn lhc :.,iltltss o ly hid n leeting gli pse L'l nn rt:t:usel lto uns a llringcr as LurPtrcl lo n n.cusei itrho lle u,it ess h d ptet)iausly t at n untbet of ltnrcs (pt9. )SV'). TI1! sn,llp prindple u\1s folla El il llu, kmki tort pdgnld t ol thts Contt, drli'erei l,1J N stt Ail;l.,,t Zlhu! l, tht 'tt risr L,f Mfiecr Ahnnld 1' Slole (1998 SCMR 752). itl ullich Lasc t tlh ll( dbduclors Jor rDnP li e anil on thc nhlutlee hnd rc taineA serernl occusions hnd scn thei -far s. ln the prcsent tlPe of case the nipits Nere ftquiteil to bc ide tifi l thTough piofer irlenti.ficatio,t ploc?etlirtss, houe7,.r, the rnart et ir1 uhich lhe iiollifigtion proceediflSs L'ere co,v)rctei raisc srrious dotbts (as otei |ltove) o th( ctedibilitY o/ th.' process. 7he idettificatio of the afPtlld ts;n coutt by eue- i,itncss?s toho hail seen the ptits JTcetirlglY oflce ruould be itcoflselucfitial." (rold added)

19.The reccnt suPreme court case of Mian Sohail Ahmed V State (2019 fMR 956) has also cmphasized the care and caution n'hi.h must be taken by thc courts in elsuring that dn unknowlt accused is correctl! identified ln fact such o(tra car€ and cauti(,n in tel'i'ing on identification parades is an a(ccPted global Phenomena in most criminal iurisdictions as thc possibility of detiberatell'or mistakenlv Pifking oLrt a wrong Person from an identiticatiol parade and gending an innocent man to iail or i.r this country potentially to the Eallolvs is very much retognized and thus most jurisdichons (includinF! t'akistan as noted beloh, have Put in Plac(' mandakrrj/ guidelincs to geatl)' limit ihe cllanccs oi such incorrcct idcntifi.ation.

The .ordu(t of lhe identifi(alion Parade.

20.ln the recent casc of Kanwar Anwaar Ali (PI.D 2019 SC '188) mandatory guidelines lvere laid down for conducting an identification parade *'hich flowed frorn and approve,l th.'earlier case of lUuhammed Yaqoob and Anothcr V State (1989 rcr.Ll 222:4 wlnch held as undcr in tcrms of guidelines !t P.498.

"3.Beforc partin8 with this order we would like to Point out thai thc matler of taking of dilferent stcPs in holding o[ a ProPer test t t:

identification parade in connection !t'ith a crifilinal casc has devcloped over nrany decades and the requirements oI 5u.h a paradc as well as tlte sale8uards to bc ensured during, such a parade so as to nlake il a mearunliful exercise and proviclilrl] nlaterial in a crinunal case to be considered in a trial have elaborately bcen rlctailed in thc landmark iudgmcnt passed by a loarned Division B€nch of lhe Lahore High Court, Lahore in the LascolM hatnmnLl Ytlutrnb ani a othttt.'llp slat( (1989I'Cr. Ll n27) artd in the said iudgment Mr. Justice Kllalil-Lrr-Rchma^ R,rrnady (as his lordship then \a-as a Judge of the Lahor. High Court, Lahore) had obsen.cd as f.,llorvs:-

"ltr. But bciore rve unrlertake a decper dnalvsis of tht- cvillcntiar\ !xlue oi the t{,st identihcdiion procee(lir185 held irr the prescnt casc, it woulcl be of advantagc to firsl appreciate the obi'r(t and the valuc of such an eviden(e as also to recnPitulate lhe standards requir€d lo be met befote cuch like identiflcation parades crruld be crcdited wilh rclian(e.

17.'l'he e\,idcnce oifer€d throuBh idc,rtification proceedings is rrot a substantive pisce of evidencp but is onl) corroborative of tht' evidence givcn by the v(itrcsses nt the tr ial t'l hn,n fitl Bushir 1' Tlk Sl4& (PLD 1958 Sc (Irak) '1. It has no independent value of its oh'n t1 h)')tttttli ,\i.,tl ,t ,rdirrr r,. r/r. -i1,r1, 1982 ANIR 129 nnd canrrol as a rulc, fornr a sutliaient basis for conviction th(,ugh the samE ma)'add some weight to Ihc othcr evidcn(e availablc on rccorJ Sulhirulrunath t. l1r. Srllr AIR 1952 Cal. 423.

18.lhe i.lentiiication parades (as they are normallY callcd) arc necessary only wherc thr o{Iend€r 11'as a conrplete stranger to the !vrinrrscs Is,n,irl ,,, r/ rir,rl ;.r i,. ft. Sl,r/r 197.1 !,CNilt-li'5 And thc r

whole obi€(t of the i(lentificntion Procecdinlis is to find ('ut rvhether th€ suspect was or r^ai nol the real offender .S,rlrn Ahrnrx r,. Ir. st?re AIR 1953 A1l. 38i and (14!. Cirrist/c (19'l.l AC 5.t5) 1!l Suchlike identil;.ntiur prc.cceiling' are n,)t thr toshm(,ny oi.r rrltness but thc tcsiimon! of thc serrsr-s of the witness. lt is essentiatly a test of his power of observatiolr nnd Perception, a test (,f his potYer to rccognize strangers ind a test of his memory. fhese gifts of God may vary from man to nran. A witncss may bc honcst, indcp€ndent and t.uthful but th€n hi3 memoiy may be faulty. And then the tricks of mcmorv nnd its (r,nscious ,rnd urcon$(ious activity (ould rlso wraP thc vilion of d man. When mislakes are possible in the recognition uf a man knor"'n fronr befDrc, thcn thc possibility of such mist.rkcs in idcntifying slrangers is definitely greatcr. And more so r'hen thc $itnesses hnve scctl th€ offendcr for lhe firsl tinle during the occurren.e and that also brieflv and not with a cal trut in an excited, (onfurcd and lerrorized state of mind.

2(1. It ivas prinrarily tor these lcasons that Dorab Patcl, J (as his Lordship then !vas) cautioned the Courts h) be1{arc of thc dargers inhcrent iri the identiJication oI stranger! and quotintj lrom the Crimirlal Law Revision Committee Report (1972), obsen'ed in 141 Pdsd,r./'s crse PLD 1981 SC 142 that nristaken identificalions wcret ",...,.,....,....by far the grealest cause of a.tual or Possible wrong.onvi.lions,..,,"

ti

1(c:

A similar note of caution ltas glvEn by i\'l(nir in his Evidence Act I,aL. Editio , Vol. I whcre ihe advice is thal, .the eviden(e as to identification ought in each casc. to be subjeated to a close and careful scrutiny," !\'h.1t then.lre the standards r&luired to be satrsficd by such an evtlcn.r: be,ore the sanre coultl be accepted by n Courl ol ]aw?

The ansr\er ;s that thc vitai factor det€rminative of the worth nnd value of identification proceedints is thc effectiveness of the pre(autions taken, before and during the course of such proceedinEs which are designed to €liminate the Possibility of unrustif ied (onvictions.

Although thcr€ is no larv, wlrich pres(ribes any such Precautions yct the necessnry llridelincs .rre available in th€ foml of €x€(ulive instructions .nd iudicial Ptonouricem€nts' Some of them are sunrrrarized a!t under:

(n)Ntcmories fade ancl viiions get bluffed with Passage of tirne Thus, an identifj(ation tcst, t'her(' an uncxPlailrell antl unreasonably hug periotl has htcrYened beha'een the L\'currence dnd '.he iLlcrtificarion prtreedings, shoultl 1,," viewcd rvith susplcion. Thcrefore, an idenlificrtion parade, tu insPire (onfiden(e, mqsl be held at the earliest possible opportunity ajter the occltrrcnce;

(b)a tesi identifitation, where the Possibility of the witnese ha\'ing s€€n the acrused Pcrson ,fter th€ir arrest cannol b€ ruled out, is i,\,orth nothing at all. It is, therelorc, imperntile k, climrnate aLl such P(,ssibilitics. It should L:e ensured tllat, aitcr iheir arre$t, thc susPccts are Put to identitication tests as carh as Possit e Such tusPects should pt€ferably, not be remandcd to Poli.e <ustody inthefitst instance and should be kePt in iuditial (ustody till the idenlification Procecdings are hcld. This is to avoid lhe Possibility of overzcalous I.Ot shorr'ing the 6uspe(te to the witneeses while they are in poli.c custody, [r'en rvhen thesc a.cuscll Persons 3re, t'[ necesslty, k, be tdk.n t() C,,urts ior rL'ntand ett thcv nrust t1c rvarnccl to cor.er iheir iarcs if thev s(l clrttr'se so tl1at n{' lvitness ,:ould sec tlr.m;

(c)identificatiur paradcs shtruld never be held dt Police stations;

(d)the lvtagisirate. supervising the identification proceedings, musl vErify the period, if any, (ot rvhirh the ac(used persons have remained in Pr,lice custody after their arr$t and before the lesi identi(ication and must in.orpordte this fact in his report aboul the Ptocecdings;

(e)in,rreler tl, guard dgarntt thc B)ssibility of a witness idertilling an acrused person bl ih.rnce, thl' ntr b(rr ol persons (durnnties) to L1e intenllin6lc(l r\ilh the ac.usctl persr)n should llc at fiuch as Possible Eut thcn ther€ is als(, thc nec(l to ensure thal th. numbcr oi luch Persurs is n(ii

3Gl

incrcascd to an extent ivhich could havc the eliect ol c(llrrusmil ihe identifying witncss. Thc su})erior Courls l'Iavr,, thlouBh their wisdom and long exPcrien.e, Prercrib.'(l that ordinarill the r'ntio bet!{'ecn the ac(uscd Pe$ons and thc durlrmles slroultl be I 10 9 or 10. Thig ratio nlust be followed unless there ate some sP€(ial iuslifiablc circumstances warranting a dcviation from it;

(l)if therc arc more accused persons than ofe who have to be subjerled to tcst identification, then the rulc of Prudencc laid dolvn by the super rr Courts is that seParnte idenhlication parades shor:ld ordinarili be heltl irr respett of each accused persinri

(l]) it must be ensurcd that lrefore a witness h.1s ParhciPatcd in the idcntiii.rtion procc€dings, he is stati(ncd at . placc fronr laherc he cannot obse 'e thc Proccedings and thal alter hjs parti(ipation he is lodtsed at a Pla(e fronr whcrc it ir not possible for him to (ommunicate with those who have yet to take their turn. lt also has to be ensured thal no onc who is lvihlcssirrg the ProgegS;.*it, su.ll as thc mernbcrs ()f the i.ril staff etc. is able h) comrruni(atc with th( i.lentiiying witnesses;

(h)the Magistrate crmducting the Pllx'ecdin8s must takc an intrlligent interest in the prtxeedings anil not trc just a silert spectabr oI the samr bearing in min(l at nll times th.1t tl(' iifc and Iib€rq ol someonc dcPends oI y uPon his vi8llan(u and caution:

(i)the luag,istrate is obliged to PrePa.e a list of all the persons (dumuries) who from part of the line-up at the parade along wilh thcit Parentage, occuPation .nd

0)lhe lvfngistrate must Iaithlullt'record all the obicctions an(i statements, ii any, rnade either by thc accused Pcrsons or b\'the identilying ltitnesscs before, Llurinll or aater thP p rr rcced in gs;

(k)wher€ a lvitness correctl)_ identilies an accuscd Pelson, the llagistrate must ask the witne5s about the (onnection in !vhi( h thc witness has idcntificd that Person ie. ns a fr;cnd, as a foe or as a cuhrit oi an ofience €t(. .1n.1 then in.orP(,r.]te this statemcnt in his report;

(l)and rvhere a ilihress identilies a Persort wrcnrgly/ thc Nlagistrate must so record in his report and should also state the number of persons wrongly Picked b]' the witness;

(n1) thc Magistrnte is required to record in his rePort all the preciutions taken by him for a fair colduct of the proceedings; and

I

Ii

-1cz

(n)the Magistrate has to give a certificat€ at thc end of his report in the form prescribed by CH. H.C of vol. tII i,f Lahore Iligh Court Rule$ and Orders

The measures above Iisted shcrulci, howcvcr, not be taken ;is cxhaustivc of the stcps whi\h are requrred k, be takerr bel()re, durirlg anJ alter the idpntifi,:.rtion proceedinSs. All these requirements no doubt mandatory but at the sarne time they are only illustrativ€ of the precautions which the Courts of law demnnd before sonre respect can bc shown to the evidence offered through the test identification proceedings"(b,rld addecl)

21.lhe Addl. l€ in terms of identification evidencc has Placcd llcat emphasis on Muhammed Asghar's case (Supra) however in our view that case is distinguishablc from thc casc af hand based on their own Farticular facts and cir(um9tances. ln Muhammed Asghar'g ca3e (SuPra) the culPrits l,'ere in the house for a long time with light provided by bulbs which cnabled tlrc complainant and other eye witnesses in that case kr 8et a gurd look at thern at close range h'ho they even sPoke to dnd some of lvhom they kne$'and the horrilic event was of ra'itnessing his trvo mirror children being slaughtered by churri blorvs in front of his verl' eves. In the instant case hor{,ever the cye $,itnesses got a fleeting vierv of thr accused for a short period of time and not at close range whilst they werc under atta(k and nee(led to dive lor cover in order to sal,e their own lives- Ihey knew neither oI thc accuserl beftrr'e thc attack a.d in our vicw witnessing the stabbiig to death ot your two n nor children c1o\e LrP wherc vou hear their scream! carurot in ou! view be equate,l k) being Present rvhen some of your rvork colleagues are shot from a lon8ish rdnSe and cithcr kille.l or iniured.

22.Before turning to tlle correctness of the identili.atiol o, both Shahnawaz and Shaukat we are ol the f ieh that nt,t natninti all the eye $'ihesses in thc FIR bascd c,n the Particuldr facts a d circun$tanccs of this case where terror, chaos, confusion and trauma rvould have reincd both during and immediately aiter lhe incident is not Parti.:ularl) signi[icanl ]n respe.t ot the credibilit-v and reliability of the evi(lence of the cye \a'itnesses not named in the FIR cspecially as in the FIR altet sPecilvinS, two narnes the words and oihers is sPecilically !vritten l(,

j 1.3

urhat is the evidence of the eye witnesses in this case who actually claim they s.rrv thc appelldnts at the scenc of the i'rcident.

Eye rvitness evidenre in respect of.rppell;tlrt shahnawaz.

2? P14'16 Muhammad Younus, lvas a security guard at SUPARC() at the time of the in.id€nt and was prcsent wh{-'n the in.ident mcurre.i along 11 ith anothcr s..(urity lluard na ed Sherzade and was named in the FIR as an eye witness. Hc sa$, lwo tcrrorists fire at thc bus with Kalashnikov's Llnc [ired at the frortt rvhilst the ot]rer came t(, th(] left ol the bus. The t\r! tcrrorisls cscaped on a nrobr bikc .lriven bJ'another person Ile re,Eorded his 5.161 statemcnt on tlle da), d the incident trr the evenrng. At lhc identifi(atk)n paradc whi.h took placc on 31.10.2003 hc idcnhliecl Shahnaq'az and gavr! him thL spccilic rolc r)f iiring at the bus fronr the left sitle. He gave hulia of the appeilant in his 5.16-l and described him as wheatish colour and wearing pants whereas he admitted in court that the appellant is of fair complexiorl. lhe bus was palked at about 5leet from rvhere he ivas standing. He did not know appellant Sh.lhnawaz plx,r to thc irLcident ard ihere !^'as no enmitl behlcen thcnr. He was a ndtural lvitness being a guard and his Presen.e at the scene rs crplajnable. We thus belicv€ his pre3ence at the s(ene. The only isgLre is whether he has aorrectly identified Shnhnawaz.

24.Pw 3l Mohamai€d Sherzade. lvas a sccurity liuard at SUPARCO at the tirne of the incident and was present when the incident occurreJ along with security guard PW 16 Muhammed Younus and is not named as an eye witness in thc FIR. He only idcntilies Shahna\a'az in court which identilication has been disapproved oI by the Suprcme Cou* as nded earlier in lhis judgmert.

25 Pvi 17 tftikhar Hussain Shah. ls the complainant and was an cnrployec of SUPARCO $'ho was on the bus $hen it ivas attacked. Hc sah' one pcfton firinti ivith a KK at the lro t tn the bus and onc pe$(,n firing with KK on thc lcft of thc bus. ln his evjdence he states that h€ clearlv sL'er the person firing at th€ front of the bus antl lelt o[ the bus. lle loclg,ps the Illt on the san'le day o[ the irrident against unkno\^'n persong but gave no hulia or description of the assailanls in hi6 FIR ()n 31-10- 2003 he identifietl Shahnahaz who u,as iirin)j from the left hand slde of the bus .rnd h.rs s errint pdnt\ Shahnan'az wa: ah,rur .l tards awar irum l/

Lq

thc bus whcn he was firing. Hc did not kflow dppeilant Shahnawaz prior to the incident and thcre was no cnmity betu'ecn them FIe ivas a natural lvitness bcing a SUPARCO cnrployee and his presence ar the scenr is explainable. We thus believe his presence at the scene. Thc only issue is whether he hns correatly identified Shahnawaz.

26.P'i{'18 Intikhab Hussain. Was an employee ofSUPARCO who was on the bLrs lvhen it was attacked. He is not named as an et e \4'itncss in the FIR. I Ie savY one pcrson filing \a,ith a KK at the front ot the bus arrd one person liring lrith KK olr the lett of the bus. In his evidence he states that he sau, clearly the faces of the trvo assailants who were firing on thc bus. Hc recorded his 5.161 statement on the same day and tave features and holia of the appellant who was of wheatish complexion and wore pants. On 30.10.2003 at the identilication parade he pi(ked out the person who ra'as lirin8 at the bus from th€ left side h'ho was Shahnawaz but in his eviden.e admitted that Shahnawaz in.ouIt is of fair complexion. 1'hal the firing on the bus lasled for about on€ and hall minutes to th1, minutes. He did not knon, Shahnar,r'az prt)r to this incident and there was no enmity beflvecn them. [It, *'as a natural h'itness bcing a SUl']Al{CC) employee an,J his preselce at the scen€ is explainable. We thus bclieve his presence at the scene, The only issue is whether he has .orrectly identifi€d Shahnawaz.

27.PW22 sy€d Ali Hu6sain. Was an ernplo't'ec ol SUPARCO who was on the l)us when it was attacked and was injured by the firin8. I Ie is not named as an eye witncss in the FIR. fle sar,!'one petson tidng with a KK at the front of the bus and one person firing r.ith KK on the left of the bus. ln his evidcncc he states that hc saw clcarly the faces of the two a6sailantr who were firing on the bus. tle received bullet iniulies and became un.onscious and arvoke in the JPMC hospital u'hich discharged him on the same day and thercaJter he was a paticnt of Khokrapar Hospital.l le recorded his 5.161 statenlent on 2G10-2003 (17 days after the incident and after the arrest {,f Shahrawaz) whercby he gave the hulia of the appellant as being of whealish complexion and lvcaring Pant shirt. L')n 31.10.2003 hc attended an identiJication parade lvherc hc idenhfird Shahnar,r'az rvho had firetl at them lroll1 thc left side of the bus horvever he ndmitted in court that Shahnawaz was of fair comPlexion and not wheatish. Hc did not know Shahnauaz paior b thc incidcnt and there

L

was no errmit) betwlr-n them. l lc was a nafural witncss bcinll a SUPAIiC() employee and his Presen.e at ihe scene is exPlainable especially as he u'as also injurcd at the scene. We thus believ€ his presence at the scene. The only i6sue io n'hether he has corredly identified Shahnawaz.

?8. PW 30 Syed Aniu'n Abbas. l le identificli boih Shahnah'az and Shaukat. He is not named as an eYe witness in the FlR. He is a son of a SUPARCO emplovee u'ho was livint!, at th€ SUPAItCO coloney u'ho caught the bus ivhiah \,v'as attacked as he used it in order t() tra\cl to gct a connrrtiur rvith another bus so he coultl go to GEITRON lndustrics where he rvas working. As he gd dow'n trom thc bus he saw a motor cycl. with 3 persons on it a few yards away from the bus fle saw two Persons from the rnobrcycle Bet dow_n from mohrcyale. [Ie saw one of these persons firing rvith a KK at thc front oI the bus and the other PeEon firing $'ith KK on the left of the bus. After the ffting the assailants ran to the motor(yclc lr'hich was about 50 lo 60 paces away and cscaped from the s.cne of the in.ident. After \vilnessing th€ incidenl he boarded his connecting bus anLl left tor hub Cholvki. On 06--10-2003 (3 days after the incident) his 5.161 statement was taken by the Police. On 31.10.2003 he attended dn idcntificatic,Il Parade where hc i(lentitied Shahnawaz who he sau'firing at the bus from thc lclt side h'ith a KK He did not knr)w Shallnawaz pior to the ircident and had no enmjt)' tvith him. lve wlil come to whetlter he was cven Present at the scene of the incidcnt and iJ io the rchabilitlr of his evidencc ris a vis the identificatiorl of the appellants later in thi5 iudgment

Eye wilness evidence in resPe(t of aPPellant Shaukat.

29.PW 31 Mohammed Sherzade !l'as a se.lrrity guard at SUI'ARC() at the time of the incident and was prcsent \a'hen the inci(lcnt occufied along witir se(urity guard PW 16 Muhammed Younus. He was not nanrecl as an ev€ !\,ih1ess in the FlR. lle saw 3 persons come riding on a motorcvclc parked some diEtance from the bus. He !a1^' two Persons from the motorcycle gct down liotn motorct_clc He sa\a' olrc of these Persons fidng with a KK at thc front of ihc bus and the other Persorl firing &'ith KK on the left ol the bus. ()ne person renrained on the motorc)'llc and kept it lurming in siand by condition. All tlYeE Persons iler'l from the sccne on the motorbike. Hc slates in his evider,ce that he saw all three l9 r

,3r6

. pcrsons clearly and could recognizc them again if they came beforc him. ltis 5.161 Cr.rc statement was recorded on ihe same da1'. Hc atttnded an identilication paradc on 23.05.2005 (over 2 years after the incident) where he identified Shaukat as thc pelson on tlre motorcvclc who came with two other persons anLi escapcd $'ith them from the s.:ene of the in.ident altcr the firing on thc bus. ln his 5.161 Cr lt- stahrment he had stated the leatures, complcxion and height of the cslPrits The motorcy{le was parked 4q/50 pa.es away from th€ bus at the time of the incident Hc dr.l not know Sluukat prior kr the incident and thcre was no cnmitv bctween them. At the identification Parade he identified Sluukat. lve arc ot the vieu' that he lvas a natulal !,rilness and $as Frescnt at the sccne o[ the incident but ra'e will deal $'ith the reliatlility of his evidence vis a vis the identification of thc Shaukat Iater in this judBment

30.PW 30 Syed Anium Abbas. As mcntioned earlicr in thc case of Shahnawaz he is a son oI a SUPARCO ernPlc,\'€'e rvho u'as living al the SUPAIiCO colony wllo caught the bus which l^'as attacked as he uscd it in order to travcl to rlct a connection $ith another bus so hc could go to GETTIION lndustrics i{here he was working. As he 8oi down frorll the bus he sarv a Drotor cyclc $'ith 3 persons on it a few yards away fr(,m th€ bus. Hc saw two p€rsons from the motorcycle get do*'n lrom motorcyclc.

l le saw onc of these persons firing $'ith a KK at the front of the bus and the other pcrson liring vYith (K on thc left oi the bus. Alter the firinS thc assailants tan to the nrotor(vcle vvhich lvds ab(,ut 50 to 60 Pares away and escapEd frorn thc s(ene of the irltident- A1tcr lvitnessing the incident hc boardccl his connecllng bus and left lor hub Chorvki. On 06-10-2003 (3 days nfler the in{ident) his 5,161 statetnent wae tnken by the Police where he described the a(cused as being of wheatish €omplexion and wearing pant ancl shrt. (-}n 23 03,2005 (over two years later) he attended an identification pararle where he idcntified Shaukat lvho he saw on thc motor bike who t()ok the oth€r assailants aB'av from the scene of the inci(lent atter thev had made firing on the bus. He did not know Shdukiit prir)r to this incident an(l lhetc lvas no cnnritv txjtheen them l[e gavea flrrther statcmcnt after the arrest of Sh.rukat. Iie Snve hulia ol the assallants in his S.161 statemenls. Sluukal was 1^,'earllg un(lean cl()thes at the tinre of the identitication paradc. He also admits knou'ing the naoe ol the accused prior to th€ identificatior Paradc. As menlione(l earlier lve will come to &,helher he'!vas oven present at the scenc oI th€ incident nn(l r t(l

3r-l iJ so the r€liabilit], ol his cvidence vis a vis the identilication of tht appellants later in this judgment

31.It is note worthy that eye rvitness AJtab Aslam who is named in the III< as an eye L{itneris and wllo lvas originally on thc list of PW's lvas given up bv the prosecution without any explanation which can lead to tlre adverse inJercnce under A.129 (g) Quanon-e-Shahdat Order 1984 that he might not have supported the prose.ution case in terms of the identification r){ the appelLlnis.

3,2. In t-rur vierv however, 1'\'hilst exanining the eve \rltness €vidence ir) lerms of its reliability irr idcnhlying the aPPellants the evidcnce of Inw 32 Muhammed Yousaf is ,l]so vcry inrportant in that context esPe€ially as he was a potice (,lficer ra'ith 37 years oI cxpe ence and who remained [O \, tually throughout the entire investiSation and recorded all 5.161 statern€nts and took all the ac.used to lhe ideotifi(atiofl Pa.ades.

33.At typcd pages 1 and 2 ol his cvidcnce in chiei (PaPer book P 268 to 269) hc atates as under starting, from the l5tr'line from thc toP:

"OD the sarrc dav (0i 10.2003) I alsu rerorded th( 161 Cr.l'C statements of P.W.s lftikha! Hussain Shah, Muhamnrad Yourus. Shahzad, Nayyar Llrooj, Shahid Iqbal, .Abdul t{ashce(l, Rafiquc !,aleerIi, Hameed+rl-Hassan. Havr Raza \'luhirmmad, \aib Sobr'tlar Haq Nawaz, Narft1b Alarrr Zaidi, Shakeel. N1alik Ai,,nl, Sher ]v uharmad and fntikhab Hussain at SUPARCO se(urit) guard room On 05-l(l-2003 I h,ent to the SUPARCo hhere l errquire.] regarding tl1c iniured, ivherc I canle to knoh'ihat inltrcd Pcrs(n1s nrc aJr)itte,l in !.urL,us privdte h(,\ftt.rls.

On 06-10-2003 I rscordcd thc 161 Cr I'C. statement of Syed Anium Abb.rs. On l)7-1(l-2003 I subnritte(l .1 lett.'r to lvlukhtiarkar Distri.t West Karachi, requesting for dire(rinE the 1a]--Liar to lx'ePare th.' sketch of the scenc of oifcnce- I lec rPqucst l.'tter ds Exhrgg, it is samc corrcct ancl bcars mv silFalurc and elrdor\ement made bY the Nlukhtiarkar Khmnri lolvo Karaclri. L)n {)9 10-2003 I alongwith l apedar oi the beat u'e t to tllP icene of oilence rvhert' P !!. Anjunr ,Abbas !,\'.rs alren(iy present, who Pointed the Place of vardat k) Tapedar, who prepaled the sketch. The Place oi vardat was sitUated near thc outer chtrck post and SUPARCo MoR near Watan Yar Hotel. on 13-10-2003 I re.ordeLl thc 161 Cr'P.C. stdLcment ol P.!vs. Shahzad Hussain, Aamir.Ali, farooq }Vaheed, SvcLl ltaza, S]-ed Itrat Hlrssain. On 20-1U-201:13 I re(orded the 161 Crl'C statern8nt of P.Ws Ali tluseain, Ivlunalvar Zaidi and Asif Ali Jalfu." (bold added in resPecl of each eye witness lvho allegedly re(ognized Shahnawnz ard Slraukat) .t

]I

.l( t

This mcans by his own adBission he recorded nll the 5.16lstatements of all the eye witnesses u,,ho recognized and later identified the accused.

3.1. OI ry*ped Pagc 6 (pape. book P.273) of his crols examination he gives cvidcn(e as under;

"l .rrn r'\,orking in ille p,rlice alcllnrtnert since Lrst 37 r'ears i prepareel thc Hullia Forn of aci usetl Shahnnh?z at the time of his drrest. \!hich I produ('c as E\hrl19, it is samc.orrcct anLl bcars n1\' signalurc. [t i5 (orre.t lhat in llullia liorm Exh:119, I have nrentioned the Hullia of ac(used having/dir complexioned, thin built and hcight five feet four in(hes. All the eve witnesses examined by me Vs.161 Cr,P.C. did ror statc in their rtatements that accuccd was fair complexioned having thin built and medium height." (bold rdlled)

This confirms that the hulia of shahnawaz was ol fair c{,nrpletion and ,rof whe.rtish .rs stated b] .ll lhe ey€ witnesses (11h{) allcgedl}'gave a hulia) in their S.161 statencnts or t-lR,

i; ()n lf f.Ll ll1;u 7 ipal,cr l](\1L P:;'l) oi h;s in,ss r\nmllr.tion lrr gircs cvidcn(e is Lrndcr;

"A1l thc e]-ewitnesses dkl ,,ot mcntiirn bcforc rnc during thc recordirg or their'161 Cr.P.C. statements, feature, comPlexiuls and statures oi accused. Votuntarily states that thcy had only stated that they can identify th€ a(cuged if they are produccd before theor." (bold aclded)

36 On ti,ped IJ.10 (paper book P 277) with regard to ,ipP€ltant Shaukat of his cross eian{nation he gives evidencc as snderi "lt is correct that $ibress Shahzad aml Anium Abtras had not stat(rd in their 161 Cr.P.C. statemenls the comPlciil)ns, staturer and the clothcs wor by the accused at the lime oi in.idcnt."

37.it is also sitnificant that all the above I'JW eve witnes,ses (excePt PW 17 lftikhar }lussain Shah who $'as thc .onrplainant and admits giving no hulia/desription of the appellants) lverc specilicallt' confronted in their cross examinations by thc appellants that they Save no hulia/desc.iplion especiall).. in trrms of lcatures. complexion and stature oI thc aPPellants in their 5.161 staternents. The appcllants also cross exanrined most ol the cye \^'itness PW's that th€y lvere shown to thc appellants p )r to the identilication parades either at the I5 or throuSh PhotograPhs Pdor to the idcntification parade which they b(,th spe(ifically nentioncd in their statements under S 342 Cr.11-*. Such cross examimtion is consistent lvith

,3 c-l

both thcir delcnses that they wcre ialscly inrpiicatcd in this case and werc arrcsted hom home (and not elsel4'I1crrj .1s claimed b]' the Pc,lice) and held at PS garden before being faiseh' rmplicated in this case. fhc mother ol appellant Shahnarvaz evcn sent lettets to con.cmed oliicials in this resPect r 'fuch rvere (tulv exhibitcd .rt hial.

38.From what llolvs from the above evidence c,t thc IO lvith legard to both the appellants is that none of thc e]e witnesses mentioned above who allegedly recognized the accused at thc identification parades gave any hulia or description of either oI the accused at the time of thei! 5.161 Cr.t'L- statements or whcn the F1R was (odged and that at b€st all dcscribed the hulia of tl'\e appellant Shnhaawaz as wheatish when in fact as per the lo's hulia and their recognition in collrt Shahnawaz was of fair skin.

39.Since ihis was a dav light incident we find it alm(,st impossible to bclieve that all the ele lvitne$!€s (if thel gave any hulia at all) ltescribcd Shahnauaz as \ahcalish instead of fair as wheatish in effect means of bror,'i/dark colour whereas lair in effcct fieans of light colout skin we mat'have becn ablc to overcome our anxiety on tlis issue oI coior i[ at least one oi the eve rvihEsses had described Shalrnawaz as bcinrl of fair complexion kecping t|r'ier^' the panic and terro! \ahich would havt' seizcd all the cye witnesses when the firinB stdrted on the bus but rvhefi all of them got the (ompl€xiory'.olor wrong especialll as apparently one or tvvo of thern werc close to Sh.+mawaz t,hen he was aliegedly n'taking fire for about one and a half ninutes rve find it hard tcr believe that they have detinitely colrectlv idenlificd Shahnaivaz bascd on tlle rclevant law as mentioncd earlier or hulia (Javed Khan's case) (suPr.r) keePing ilt vie\,\, that tltey had nevcr seen him beiorg only caught a brief SlinrPse ol him and most oi the eye rr'ilnesses woulcl have been divinii for cover irr older to escnpc the carnage unlolding before them and whose main priority rvould have been to save theii own Iives.

4ll. Furthermore, the tapedar's sketch only shows thc Position o[ PW's Muhamnred Yolrnis and Nruhanrmcd Sherzad both of whom are unamed securih guards lvho are shown behind the bus and as such it is unlikely that the,r'could havc safel)-/colr(rtl)'identilied eitherShahnawaz or Shaukat who they lrere also a considerable distance from esPccially b

Shaukat keepilg in view that they would have becn diving [or cover in order to save thct own lives since they lvere unarmed and would not have been ablc to return firc. In lact if Shatuuwaz's and PW Anjum's positioninti orr thc tapedar's skctch is at all accurate it begs the questiorl r,' hy Shahnarvaz and lhe other absconding shooter did not also kill el'c rvitncss PW Anjum while they werc retrcalinB to the motor bike as thcy woultl lTave passed by hinr and presurnably they u'oulJ not hale wanted to take the risk that PlV Aniu could recoEilizc them. Killing one more altcr killing so ,na,ry lvould not have brtn an issuc For them. It ls also significant in tenN ol the accuracv and the reliability ol the sketch that ro other eye witness including the complainani is shown in the sketch let alone there position. It is als., inhiguing that it is not the complainant $'lto assists the tapedar in prcparing the sketch but an eye \a itness who cante for\a,ard 3 da}'s after the incident.

41.In la( t it seem-9 to us very coincidcntal/odd ttrat a person rvhonr ail lhe eve rvihresses allel;edll describe as being wheatish in their S.161 Cr.PC statcments is pickr:d out bl all ol them at thc identification Parade desPite being fair. Keeping io vieia that all thc eye v, itnesscs came lrorn SUPARCO consultahon and manipulation bctu'een tfiem cannot be ruled out. It is also tr orrl vip\,\, some what suspicious that .1ll the eyc wiinetset who claim to have ideotified the appcllants had givcn exhemelv sir-Ul.r!

42.Ufe are also of the vierv that a number oi the rules and guideline! concerning safe identification parades as mentioned in the .bove law (Kanwar Anwaa' Ali's cise) (Supra) have not been complied with. For example, when Shahnarvaz r,!'as €rrested 18 days after tLe in.ident he was taken intc, police custody and remained thcre a furthcr 9 days before hc was put to an identilication parade when he should havc immediately been sent to juclicial custody to ensure that he could not be sh.rwn k) thc eye l^ itrresses. Instcad the police had a 9 day opportunity to shoh him to the eve witnesses before the identili(ation parade as was put to the relcvant PW at the lime of ctoss examination and is a defcnse taken in his section 5.3:12 Cr.PC statemen!. No explanation has been provided for tlls unexplained deJ.r;- oi 9 days in putting the aPPellant before an identiticdtion parddr, /r

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43.lVe have also noted irom thc cvidence of some of the eye ivitnesses !r'ho parti.ipated in thc identilication parades that somc of the.lummies l,r'erc of ditfercnt featufts and complexiorls and that in some cases ]\_lc's and addresses o[ the dumoies $ere not taken. It is also not clea! $'hethcr a fresh set o[ dumrnies rvas usctl for each antl cvery irlentiiication parade as 4 eye lvitncsscs att.ndcd 4 scparate idenlitilication parades on lhe sarne dav in Shahnawaz's case. l'hat the magistrates fail€d to notc for how long the accused had been iD policc custody, that tv!'o of the eve wilnesses who identifieel Shahnawaz left bgcther aiter thc idertitication parade aitcr identifying Shahna$'az in order k) sav lrridal' pra),ers togeth€r- We are also of thc vierv that bnrrgirrg most of the eye witncsscs together at thc same time in the SUPARCO van and lcaving thcDr iri the sanre room prior to thc identilication parade might not have been a saic practi.c as all the eve w'itnesscs c(ruld have discussed the tvpe oI pcrson thcy !'.(,uld all pick out and then donc exactlv that or at vv'orst passed around a photograph of the accue:d which had becn Biven to them by the police. In this respect it is interesting that all I'jW's are SUI'AIICO employees and not a sint e independent PW rvas taken lrom eiiher the tea shap or the pan shop which ra'ere very rlose to the incident and $'here people were also present \\,ho h'ihressed thc incidcnt

44.tt has als() in rrrlr view not been fully explained as to how the appellant Shalna*,az came to be arrested in this case. rle was arrested on sp)' intormation that some suspects were prcsent in iloLrsc No.425-A, Ilazara Coloney. Though it is n()t mentiqned $hat rhe Percons were suspectcd oF. When Shahnawaz was arested after leaving thc house a ba8 containing an SI!'C, maBazines, pistol and live ammunition r-\'as found on him and he lr'as arrested io a separatc case under thc Arnrs Odinan.c. Hoh'ever according to the evidence oi the IO there is no cxtra rudicial conlession and the IC) arresled him aJter interrogation and belore an idenriiication para(le alter satislyinB himsclf about Shahnaw.lz's involvernent in the bus.ase. But ho\^, did he reaclr this conclusion? lhere is nothing in eyidence to point to this. Furthermore. when Shahna\4'az leFt lhe house just prior to l'is arrest in the unli.enscd arms case he locked the door yet quite inexplicabh no key was found on him during his search and arrest which took placc as soon as he locked the door and nor is one lrenliolled il] his ,nemo oI arrcst and recovery rvhich gjves creden.e to the fact that Shahna$az ma)/ not have been arrested ftom that place and

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cdstes doubt on thc pros€cution's version of his alrcst. It also seems to us a littlc too convenient that Shahnarvaz was ajrested car$'ing a bag containing ai SMG and live rounds $'hich also matcherl thc empties lecovered at the rene accordirg to the FSL rePort. Surely. after such a high proiile massacre h'hele all the apparatus of the various l.rr'! enforccment agencies would have been vigorr.rus hunting lor the murdcrer's logic, cornmon sense and teason would dictate that the fire nrm used i,r thc massacre should be immediately,lisposed of. Shahnawaz keeping the nlurder rveapon (SMG) and evcn carr)'ing it ar()und with him alter participatinB and using it in thc bus massa.re does not in our viclv appeal to nafural hunun behavior b.rsed on the particular facts and circumsLances oI this case.

14 ith regard to the identifi(alion of Shaukat.

.15. As \.\,ith xpp(.llnnt Shahnalvaz we h.rve also takrn inlo .oflsillcrali(rr the evi.l€nce mentioned earlier ()1 thc I() \!ith resPc\t to Sharrkat rrr terms ol huila/rlcscriPtion in the eye witnesses 5.1{J1

46.lherc are only two eye iritne$ses against Shaukat and we must keep in !,ie!v that Shaukat did not carry out any firins Hc allegeclly brought tlrc two other assailants o[ motorbikc who then disenrbarked and made the firing on thc bus \ahilc Shaukat rel[aincd with the niotor bike and thcn helped the tr^'o assarlants cscape by dri\'ing thc motor bike away from the scene of the incident. Although this does not )essen his rolc/rcsponsibilitv and liabilitt- in the massacre on the bus it is releYnnl and significant in terms of how far away shaukat was from the eyc lvitnesscs who clainred to have idcntilied him and rvhethe! their identilication of him can be safely relied upon

47.Ih€ first cye r4itness against Shaukat is P1v 31 Mohammed Sherzade u'ho in our view has faiicd to safely identify Shaukat. This is becausc in his orvn evidencc he claims to have givPn hulia ol Shaukat in his s.161 Cr.PC statemcnt but d()cs not state !!'hat hulia he actually gave Nlore enrphasis is place(l on his statement that he could recognize Shaukat again il he saw himi in his evidcncc hc states that hc sara'3 Persons (omr riding on a motorcyclc parked 3ome distance irom the bus; in his evidence he states that the motorcy.le \a'as parkcd 40/50 paces away f!c,m / t

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the bus dt the time of the incidcnt and thus u,e find it hard to believe that Irom such a great distance awal' in thc heat oa a gun baRlc ra hen the unarmed eye witness would have been s(ared and trying to save hinLself he could have accurately identified the aFpellant Shaukat. Ihe credibilitv of this witness is Iurther damag€d when hc states that while removin8 thc injured his uniforBr'rvas not stained lrith blood which r5 not believable when .onsidcred in thc light of the other evidence that the bus was full of blood and that all the injurcti or dcad were blood) or blceding having rcceived in somc cases mr-rltiple fresh gun shot wounds 1^'ho he helped move to ambalances. lve must also take into account that thc identificatiofl parade was held over 2 yearc flfter the incid€nt in ivhich time medories can tade. Although ue accept dre Prcsence of this eye witncss at the scene of the incidcnt rae do not consider that tve car salelv rel]- oll his identilication of appcltant Shaukat for thc reasons mentioned .18. Thp othcr eye lvitness against appcliant Shaukat is l'Ii17 30 Syed Anium Abba3 lvho again states in his evidencc that the motor bike la-as 50-60 pa(es away from the bus at the ti,ne of the incident and thus once again we fi|rd it hard to believe that from such a Breat distance awa), in the heat (r1 a gun baLtle r,'hen the unarmed eye witncss would have been scared and trying to save himself he could have accurately identijied thP appellant Shatrkat.l'urthcnnorc, or1 06-10-2003 (an unexPlained delay of 3 days after the incident keepint in view that he was alletedly livin8 at the SUPARCO coloiey) his 5.161 stalement was takcn bJ' the Policc where he rlescribed the a(cused as bein8 oF wheatish cLrnrplerion rvhich was not the case. I{e aPPcars to b€ a chan.e w;tness i\,ho it aPpears did not give his correct address bcf(xe the lrial (.ourt, lO and magistrate by his oh,n adfirissionj he did not Ptoduce any evidence that he was working at CET"I RON lndustries o! whY he was Soilrg to stad r4'.trk at such an unusudl t.mc, no one cls' sar^ hrnr on tl,c Lus unJ his s.1r'1 :t,rtcnlerll w.r: recorded after an unexplained delay of three days lt also does not apPeal to rcas()n that after u'itncssjng a deadly gun battle where mani't'ere killed and iniumd he therr just casually junrPed on his connectinB bus rn(l went to rvork aml tlid not bother to Sive any statement tct the Police tor anothcr 3 days despite altcgedly living in the SUPARCO colonY whi.h inc;dent during thosc days must h.tvc t'een the oniy subject ol conversatiort. Natulal alrd logical human beluviour t^'ould have dictated

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that afte, witnessirlg the gun bahle the witness would have Sone and helped transport thc iniured to hospital or go home and lbr8et about his connecting bus anci his oi{n !,i7o!k which would have Paled into insigni{icance alter witnesstrg such a horrilic and traumatic incidcni. It is also suspicious that he laas the pers(,n l{,ho took thc tnPedar to the s(ene Y ol the incident ivhose sketch does not show the Presencc of the complainant and shows only two other eye l.y-itncsscs who werc lrot in.r positiun from lvhcre they could havc seen the accused since as mentioned earlicr they ltere positioned behind the bus. 1hus, although this eye witness might have becn present at the fime of the incident we do not consider him to be reliable, lrust worthy or confidence insPiring at leas! in t.rms of hilr identili.ati('n .,f Shaukat.

19- With regard to the corduct of the identilication ParaJc the same considerations appiy as were mentioned lor aPPellant Shahnawaz,lt also appears that Shaukat was the onlv one in the line out who w?s Produced in unclean clothes rvfurh rvould have made hi stan(l out lroln the othcr dummies an(l this fact of hirn [teing in unclean clothes \aas conceded io by toth PIV'S (PW 31 Mohammed Sherzade and PIV 30 Syed Anium Abbas) who both pickcd him out from thtl identifie.ltion parade

50.fhe upshot of the dirussion of the evidcncc of the two e-vc n'ilnesses against Shaukat is that &'e do not consider that the evidence ol eithcr (d them can be safely relied upon with regard h) thc accurate and corEct identiFication of Shaukat at the rene of the incident and as such there is no direct oral €vidence linking Shaukat to the offcnses for which he has been charged. Therc is also no circumstantial or other kind of evidence linking Shaukar to the offenses for which he has been chargcd

51.t-urthermorc, we also notc th.t no person on a nrotor bike was mentioned in the FIR and no rnotor bike rvas r.'cove.ed from thc aPPellant or anvone else. Even if a motff bike had been recove.ed at the time of Shaukat's arrest tu,o years aftcr thc incident horv coultl it have bcen proven th.rt it rvas the same motor bike used in thii oilenses commitled over tlvo yeals ago? I hat like apPcllant Shahnawaz it is not exacdy clear as to how he (.1mc to be lnrked with lhis case since once he wds interrogated almost 2 years later whilst in (astody in another case as he ncither made any extraiudicial .onfession of his involvement in this case lr

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nnd nor had he been named by Shahnawaz as txring his accomplicc. Likc Shahnawaz he also stuck to his delense as mentioncd in his 5342 statement throughout thc trial and he cross examined ca.h relevant rritness on his defen-sc lvhich remained .or$istcnt throughout the lrial.

52.Apart {rom tl1e identiiication issue rve rrote that the empties which were collL'cted lrom the scenc were not imnrediately sent Io, I]SI- test but r,lere kept with no cvidence of safe custrdy for about onc nlonth and hele sent onlv aJter lhe allcged KK used in the conrmission of the offenre rvas reiovered trom Shahnara?z on his arrest on a3-10-2003 together with the recovered KK rvhich unexplained clelay in sending thc cmpties for a forensic leport also rastes doubt on the fSL report as it appears that the cmpties wcre deli*Lratcly retained until the alleged murder weapon had been recovered so tha! a positive FSL repo could be maneuvered.

53.It is .1 car,linal principle of criminal jurisprudence that tlt, prosecution must prove its casc beyond a reasonable doubt and it is not for the accused tu disprove the case against him n'ho rnay take any and as many defen!,es as hc Iikes to the alleliatiorl.\ ag3inst him as the onus rests on thc prosccuti()n to piove its case bevond a reasonablc doubt as was held in the c.rse of Muhammed Shah v State (2010 SCMIi 1009) and if thcre is any doubt in the prosecuti,lns case the bencfit must go to th(' a.cused. As lals held in thc case of'I ariq P€rv€z V The Statc (1995 SCMR 1345) that if there is a single aircumBtan€e, which (reates reasonable doubt in a prudent mind about the guill of the accuse(j, thcn the a.cuserl will be entitled to the benefit not as a matter of grac€ and concession but as a rnatter oI right. Such prin iple was !€cently rciterated by the Supreme Court ilr the case of Abdul ,abbar V Stat€ (2019 SClvlR 129). Such benefit of the Lloubt applies cquaul whether thc (iffense is a t'el'mi^or criminal offenst, or an cxtrenlely hcinous one such as this tvhere manv innocetlt people wele rnurdererl and inju.ed soleiy on thc basis ot thcir faith.

5{. ll nray be lhat thc countr\ ltas at the timc ol the offense anll strll is p.lssintl throrrgh.l (lifficult phas.ln ternls oi l.r!{' and order ard tL'rrorism both lvithin anll (,utsid€ I'dkistan [,ut it is still r€rrains the (lut\ of lhr .ourt k, bLr rvak ui to ensurc that an irlnoc(,lrt person's libc l, is n,,t \acrili.erl on the xlter anLl m.lntra of the war.lg.in\t tcrr(,r L]r pul)li. clutiaBe at a particulrrly henrous ()lfensc su(h as in this.asc wherc so nrdrlr rn,xr,''nl pc'rprr, \\1 r(i rrtrtr'lI rrrrrrJ"rcJ irr / I'r. n,c l.l.'lr.l i.'1.1 l9

bloodied manner on account of their faith and ensure that only those a8ainst r4'hom therc is reliable, credible and tiustworthy and cogent evidence of their gu;lt in respe.t of a Particular olfense are c(,nvicted of thc same. lt is the duty of thc prosecution to prove its case bevontl .r rcasonablc doubt through such kinds of aforementioncd cvidenic and a cardinal principlc ol criminal iurispmdence that a Pelson is inno('ent until proven guiltl- and it is on such PrinciPles thai the edifice of the criminal justice systenr rests and it is the duty of the courts to sacredly and jealouslv ensure that such principles are fbllowed without fear or favour whatever the outcome oi the case mav be. Such conduct of the (ourts will go alontj \a?t- in en\uring that the rule of law is maintaired and th€ Publi. have faith and confidence in thc.riminal iustice system wl'latever their station in liJe may be.

55.'lhus, based on our reassessm€nt of the evidcncc f()l thc rcasons me:rtionecl .rbot'e the Pros€cution has in our vielv not hcen alrlc to safell' idelttil), the appellants (Shahnalvaz and shaukat) os being the Persons w'ho collmitted the offcnses as chargcd evhich mal'have been cthrnitted bv sonre other parties and thus the Prosecution has not been able to Prove its case against thc nppellants Ior thc offenses for which thev luve been chargcd bcyond a rcasonable,loubt and as such thc aPPellants.lre acquittell of all the charges in the imPugnc(l judBment b1'extending them thc bcneflt of the doubt. The appeals are tllerefore allo!',cd and the impugrcd iudgment is sct aside the convictiolls arld sentences contailrccl thcrein are also set asirle with thc crrnJirmation references bein!', answeled in thc ncgativt with the result that thc apPellants shall be relcased rrnless lvantcd in any other cuslody case.

50.Thc dppe.rls .tn(l .onlirmation rtlcrrnce stancl urrPlrsed ('i in the t47-) ,, tuw,t t'/,//)7

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