IRFAN @ JABBAL S/O ABDUL RASHEED (Appellant) VS THE STATE (Respondent)

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CERTIFICATE OF THE COURT IN REGARD TO REPORTING

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HIGH COURT OF SINDH

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

Mr. Justice Mohammad Karim Khan Agha, t,ir i.. r L- Kl^,1'^ il"'-i-s.* 7*'* "

Date(s) of Hearing: ,lo c? rf !.)-.'l lt Decideon: o6 oi -2019

(a)Judgment approved for reporting Yes

CERTIFICATE

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

* Strike out whichever is not applicab e

NOIE (i) This slip is only to be used when some 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 Judge writing the JudBment whether the Judgment is approved for reportang.

(iv)Those directions which are not to be used should be deleted.

I\ THE HONORABI,E IIIGII COUITT OF SINDTI

AT

l.(,,\R,{CHI

(Crirninal Appcllate Jurisdiction) NTED \ u Specirl Anti Ierrorism Appeal No.

Irfan @ Jabbat S/o Abdul Rasheed Muslim, Adult prescnrly confined ft) 5 ar Central Prison at Karachi,.................. :....... Appellant

Versus

l he- State .Ilespondent

F.l.l{. No.40212013 uls.302/324/353/tost

34 PPC] R/W 7 NTA

Challan Submitted Under Section 3 53 /324/302/

34 PPC] R/W 7 ATA

IVW 5 l2 Cr.p.C.

CI{ I ]\I IN I

C/.^ l'.S. Mehmood Abad.

E(.IAL ANT I'E I{ oti SA III AP PI,]A I, r)utt sll N25OF NT TI: Rts]\t A 1997 l.l tI 561- Cr.l'.C.

Being aggrieved and dis_satisfied with the Judgment dated 30.11.2015 passed by the leamed Anri Tcrrorism Court No. IXth, Karachi, in Special Case No.26 (iii)/2014 as title (Thc State V/s Irfan @ Jabbal & Others ) in ltR No.402l2013 p/S MehmoodAbad, Karachi for the ofibnce Under Section 302/32413531t09/34 pPC Read with 7 ATA 1997, convicring thc Appellant abovc named above in following Section ofLaw.

a) Accused,/Appellant is convicted and sentenced to Sutfer inprisonmenr of Life and finc of Rs.200,00,0/_ for the Charge of Olfence Undcr Section 3l)2 ppc

p Read With Section 7 of ATA 1997, in case of default he suffer further R.I. for one year more. The fine amount ilrecovered shall be paid to the l_egal heirs of the deceased HC Javed lqbal. b) Accused,/Appcllant is found guilty of his Charge of offence Under Section 324 ppC as such is conyicted

'a(

IN THE HIGH COUI(T OF SINDI{ AT I(ARACHI

Special Cr. Anti-Terrorisnr Appeal No.292 of 2015 Prescnt itlt. I,isti.e Nlohi',nt utl K \1r. l sti.e Khntlifit lllr.sniD T,l,t t

Appr.llant: Irfan alias .,alrbal son ot Abdul RashcL'd through Mr. Habitr AhfiPd, Advocatr

Responclent: Ihe State thJough NIr. Nluhalnmael ltlb.rl Alvan Dcputy Prosccutor Ccneral Sindh

Date ol hcaring: 30 08.2019 and (12.09.2019

Date of announcement 06 {)9 2019

IUDGMENT

Moharrrnqd Ka'itt Kh.rn Aglta, I.- Appellant Irtan alias Jabbal son of Abdul Itashccd has preferred this appeat against thc iudgnlcnt dated 30.11.2015 passed by the learned Judge Anti- lerrorism Coult No.lX, Karachi in Special Case No.26(lll)/2014, F.l.R. No.402/2013 U/s. ?fizl353/324/34 PPC r/(,section 7 of ATA,1997, rcgistered at policc station Melunoodabad, Karachi (the impugned iudgment) whereby thc appellant has been convicted and sentenccd as undcr:- Accused is convicted and s('ntenccd rc suller imprisonment for life anci fine of Rs.20(),000/- ior the charge of offcnce u/s 302 P.P.C r/w. Section 7 of AIA '1992 in case of dcfault hc shall iurthcr suffer R.l. for onc year more. 'l he finc i[ recovercd shall bc paid to the leg.l] heirs o[ deceasecl HC Javetl lqbal.

IJ Accused is founLi guiltv oI the cl'targe of oflence u/s.32{ PPC as such is.onvicted and sentenced to sulIer R.l. for 'fen vears and fine of Rs.5tl,000,l- ir-r case of r.lefault ht' shall furthei sulfer ll.l for four months lnore. c Accused is found guilt, oi the char6ie c,f offcnce tr/s.353 PPC as su.h is convicted and senten.cd to suffer R.l. for Three years and fine of Rs.10.000/- in case of default he shall lurther sulfer R.l for one month morc.

All the sertcnces $hall run concurrentlv. The benefit o[ section 382 B Ci.l'.C. shall be extended to the accuscd." a

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2.The brief facts of the prosecution case as per FIR lodged by thc complainant on 19,12.2013 are that on the same date he along ia'ith IIC Yaqoob Shahid, HC Javed lqbal and HC Ansar Khan were on patrolling on goverrunent mobile, during which they rcceivecl a tip-off about presence of notorious narcotics dealers Sarclar Saqib, lrfan (O Jabal, Nadir @ Nado and Moosa in armed position at street No.01 (Alnn1ri Wali Gali) at Ashlaf Colony Karachi, rvhereupon the complainant alongwith aforesaid staff at around 2050 l]ours rvent to such place wherc the accused persons seeing the poli.c parfy .oming towards them hide themselves in the streets. In thc meanil'hile Mst. Shabana and 2/3 other women who could be identified if secn again started fighting with the police party in order to prevent them arresting the accuscd. Mst. Shabana called thc ac.used Narlir @ Nadu s/o Shoukat Baloch and instigated hirn for killtrg the police officials by firing at them on which the aforesaid persons madc firing on thc poli.e p.irty h,ith intention to cornmit their murdcrs. The firing lvas returned by the police party in defensc at the dircctions of the complainant/ A5l Khalicl Yaqboob. As a result of the encounter HC Javed Iqbal got iniurcd seriously at his abdomen and fell down. 'lhe accuscd person-s laking advantage of the darkness and narrow strects nrade thcir escdpe good There alter the complainant took thc injurecl IIC Javed iqtral (the deceased) in the p<,rlice mobile at Jinnah Hospital for kcatment rvhcre he succumbed to his iniuries shortly aftcr his arrival. lt is also allr.ged flrat firing oJ accused cleatcd terrc! and panic amongst the pcople. Thc complainant tl€reafter came at f5 where he lodgecl such l-lR.

3.The a.cused lrfan alias Jabal was arrested on 19.0.1.201{ (rom KPK by police sent from Karachi where hc ,as in custodv and lvas brought back to Karachi as he was allegetlly one o{ the accused who opened fire on the police palty as narrated in lhe abovc nienlionccl FlR. On his arrest hc voluntarily lead thc police to his house rvhrre thc police recovered a 30 bore pistol witlr 1l rounds for $,hich a separate FIR was lodged. A supplcnrcntary charge shect rvas submitte(l in the court showing the remaining accused as abs{onders. Aftcr complctiorr l

of i[vestigation challan was submitted and charge was framed against thc accused person to which he pleaded not guilty and .lairned trial il. In order to prove its case the prosecution examinerl 08 P!V's r,r,ho exhibited various documerlts and other iteDls in support of the prosecution case where aftcr thc prosccution closcd its sidc. Thc accused in his 5.342 Cr.PC statement denied the allegations against him and claimed that he had becn falsely implicated in this case bv the Mehnroalabad police due to an old enmitv which existed beto'een them. He did not give evidence under oath or call any $'itness in support of his defense.

5.Learned Judge, AntLTe(orism Couit-ll, Karachi, after hearing the learncd counsel for the parlies and assessnrent of !'videfice available on lecord, r,ide the impugned iudgmcnt datcd:]0.11.2015, convi.ted and sentenced the appellant as gtated above, hence this appeal has been filed by the appcllant agairrst his conviction.

6.The facts of the casc as wcll as evidea(e produccd before the trial court Iintl an elaborate mention in the impugned judgment. therefore, the same are not reproduced here so as to avoir,l rlup)ication ancl unneccssaty lePeti[on.

7.Lealned advocate for appellants contended that lhat the e)e witness€s were unreliable being police witnesses, that it was a night time incident and no hulia has beefl given of the.icaused; that therc w.is no source of light, that since the parlice did not knol\' the accused before the in.ident it was essential to hold an identification parade r!'hich lras not donci that it was not believable tlut the spy (ould have given thlr names of the accuscd and thc parents namcs of thc accused; lhal matclial contradictions lud been urade i]r the eviden.e of the PW's in terrns of the locatior! whcther the complainant was armed, who else amongst the police party was armed, who actuall)' fired from the poli.c party; that the PW who stated that he made Iire clicl not have his SMC taken into possession let alonc forcnsically cxamined; that fei,," enrpties wcrc rccovered lrom the scene despite an intense cncounter; that the pistol had been Ioisted on thc accuscd and had not bccn recovered fronr .l

q_ his house as alleged by the police; that thc medical evidence docs rrot support the prosecution case; that thcre had becn overwriting on Exhibit 23 B which created doubts as to lhc genuinencss ol the prosc{ution case; that an enmitv cxisted between the iamily ol the accused and the Mehmoodabad police which l.ad Io them falsol)' implicating him in this case and that for anv or all the.lbovc reasorls th. appellant should be acquitted of the charge by extending him the bencfit of the doubt. ln support oi his contentions hc placed relian.e on State V Farman Hussain (PLD 1995 SC 1)

8.On the other hand N'lr. N,luharnmad lqbal Awan, Deputy Prosecutor Ceneral, contcndcd that the prosecuiion had fully provcd its case to the lequired standard and that the impu8ncd judgment di(i not require interlerence and as such the appeal should bc ctismissed. In particular hc contcnded that that apart from thc complainant who was an eye witness there are t\a'o other wihlesses who corroborate the complainant in all material respects; tlut there \a'as sufficnet light to identify the accused; that there was no need to conduct an identifi.ati()rl parade as the accused has been correctly identified in court Lry the eye witness PW'si that tlut the pistol used for lhe oflcnse r^ras recovered bl the police on the pointation of the accused and tlle FSl, rePort $'ns positive. [n support of fus contentions he placr-'d reliancc on Muhammad Amiad v. The State (1998 SCMR 1775), Muhammad Akbar v, The State (1995 SCMR 693), Bashit Ahmed v. The state (2004 P. Cr, L.J 1326) and Ali Imran v. The State (PLt) 2007 SuPrcme Court 8n.

9.We havc heard the arguments of the lt'arnetl counscl lor the appellants and DIiG, gonc through the entire evidence r,r,hich has been read out by the appellant's counsel, thc impugned iudgment with their able assistance and havc considered the relevant lau' inclucling tht' cas€s cited at the bar.

10.After carefully reviewing the prc,scculion e\.idencc iflcluding thc evidence oI those prcsent at the scene at thc time of the encounter and the MLO rcport $'e are satisfied thaf the prosecution has Prove.l beyond a rcasonablc doubt that on 19-12-2013 at about 2(l.50pm the

I

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dcceased was murdcred by firearm injury in the \.icinity oI street No 01 (Alamri Wali Gali) at AsfuaJ Colony Karachi, after an encountcr with miscreants.

11.The question before us in essence is latether the appella t was one of the persons who fired at and causecl the death of the deceasccl or was present at the time of thc cncounter.

12, ln our vier,r' after rc assessing the cvidcnce on rec.rtl tlre pros€cution has not been able to prove beyond a reasonable doubt that the appellant was either the person who fired upon the ,leceased or t{'as even present at the time of the incirlent for dmonSst others the following reasons:

(a)Only general allegations against the accused have bcen made in the FtR of firing.

(b)That the three PW cye witnesses in our vieh'can at bcst bc described as eye witnesses to the encounter but nol to lvho thc miscreants were who allegedlv fired on thc police for the reasons set out beloh'

(c)It was a night time in.ident at aiound 9 prn and accorcling to the evidcnce in chief of PW 1 complainant Khalid Yaqoob who nas also an eye witness to the incident the ".i(cused laking benefit of darkness l'led away from the spot by taking benefit of dark and narrow skeets." In closs examinatiorl he stated that, "When this incident took place at that time elcctricity was not.rvailablc in the area". Othe! Iatcr PW's who werc prcsent at the time of the ilcident havc tried to improve the prosecution case bv (laiming that some source o[ light was ptesent but no ]i8ht bulb $'as recovered and the account oI what kin<l of light was available is contradictory and as such thei. .lccount regarding thc iight cannot be believed and as such based on the prtrciple of "/irlsr'\ it urro, falsus i ofittibus" their evidence is tlisbelievetl rn rts entiret,. ln this respcrt reliance is pla.ed on Notice to Police Constable Khizar Hayat (PLD 2019 SC 527). The qucstion therefore arises as to hoh,he or ant'othcr of thc allo8ed evc witnesses was able to idenlify the atcused in stlch darkness? in the FIR the accused is not named as one of those \aho [ired on the police party and neither in thc FIR or the statement of PW 1 complainant Khalid Yaqoob is any hrrlia or facial descriPtion given of the appellant and the sarrrc is the case with regald to the other PW's i1'ho were present at thc time of the incidcnt The PIV's did not know thc accused beiore ar,d .ould nol lravc sten him by face in the darkness especiall) as accortling to thc Pollce an exchange <lf fire was going on and as suclt tlre police rvoulcl

tt

have kept themselves under covar. No identificatic,i Paradc (rf the appellant was also ever carried o(t. ln cases o[ ulknou'n accused where the P1V's havc only a flecing glancc t,l thern the Supreme court has placetl vew little, if any b'eight, oI1 in (ourt idenhfication as the accused can be show[ to the PW's beiorc the kial and as such we cannot safel,! rely on lhe in court identification of the accused by the PW's in this case which lve discard. Undcr these circumstances in our vielv the prosecution has not been able to prove that lhe person !./ho filed uPon the police was the accused.

(d)The manner in which thc accused ra'as itlenlifiecl also cloes not appeal to a Prudent mind. APParenlly the informant gavc thc names and fatherc names o[ the accused air] thc initlal IO callcd uqr all CRO's antl from picturcs/phoro's atl.rched to th(: CI{O'S the so called eye rvitnesses identifie(l thc accused. Likewise the alleged rccovery of the pistol docs not appcal to natural hum.n conduct h'hcreby a persor who had usccl a Pishrl in .rn encounter with the police where a police officcr was killctl woulci casually kecp the weaPon at his housc. It (anllot be ruled out that this pistol lvas foisted on the accu5a{ tr1' the police as ht' was a known.lilninal. Thc logiaal thing to (lo \aas to disPose of the pistol. In this respect rcliance is Placcd on Askar Jan V Muhammed Daud (2010 SCMR 160l), Muhnmrned Asif V State (2017 SCN{R 486) and Haq Nawaz V State (2018 SCNIR 95) lhe allegcd confession of the accused before thc police is also of no evidentiary value.

(e)There are material contradiction-s in the eviden.e of the I'W's r,v'ho are all policc officials in terms of the a!ailabilitv ot li8ht, the number of iniuries the deceased rrteived, who firerl frorn tht police party. Sonre overwriting on st,mc of the documenls cxhibited also appears to have been changed/altere,.l. For example Ex 23 B which makes thcir el,idcrrcc cloubtlul

(f)There is no post mofiem report available Ior the dece.lsecl so the oily medical cvidence ai,ailable to the prosecution is that the deceased was killed by fiream injury

(g)That therc is no evidence of sale custody of lhe cmptics from the timc of their recovery till they were sent for FSL rePort and as such no rcliance can safcly be plaacd Lrn the recovcred empties. It is also r.rnclear whether thc police al the saene of tht. ineidcnt were issued oflicial SMC's and bullcts and how rnany roun(is were firecl lry the police at the scenc sin.c thcrc appears to be no record of this. One SMC u,hich was allt'gedly usecl w'as not e" cn takcn into possession yet alone forensicall_"- testr'Li.

13.It is a cardinal principle of c minal jurisprudence that the prosecution must prove its case beyond a rcasonable doubt and it is not for the accused to disprove the case against him who may takc any anli as manv defenses as he likes io the allegationc igain.t him a5 lhe onus (r

rests on the prosecution to prove its case beyond a ieasonable doubt as was held in thc casc of Muhammed Shah v State (2010 SCMR 1009) and if there is any doubt in the prosecutions case the bcnefit must 8o to the accused. As was helcl in thc case oF Tariq Pcrvez V/s. The State (1995 SCMR 1345) that if there i5 a single .ircumstance, n'hich creates leasonable doubt in a prudent mind abotrt the Suill ol the accust'd, thcn the accused will be entitled to the bcnelit not as a matter oi grace and concession but as a nratter of right. Such PlinciPlc \4as recently reitcrated by the Supreme court in the case of Abdul Jabbar V State

(2019 SCMR 129)

14.In our view for the rcasons mcntioned above the prosecution has Iailed to prove its case against the appellant be,vond a reasonable doubt and as such the appeal is allowed and the appellant is acquitted of the charge ancl shall be released unless he is wanted in any other custodY

15.The appcal is disposed on in thc above tcmrs

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