SYED RIFFAT HUSSAIN S/O SYED SHAKIR HUSSAIN &ANTHR (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: rB./D. B

Mr. Justice Mohammad Karim Khan Agha, xlr J...,-L * rL(.",.{.. A o;t--, -I*,*-

Date(s) of Hearing: 28 .8 - rg

Decideon: 03_!.1 -2019

(a)Judgment approved for reporting: Yes v

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 applicable

NOTE (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 judg ment.

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

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

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lN 'l'llll IlON"OtIR ltl,U lll(lllCO t)R I l) lstNI)ll,\r(ARncllll (;l F / /4 Crimlnal Appeal No, 2018

S\'cd IliffaL Husain S7'r, Sled Shakit Abb;ts M trslilr, adult. rcsirl(rt1 of

a G-7,/2.Jacob lincs, I-rnci Arca, Karachi Prosenlly confined at Ccfllral Jarl Karatrhi

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CRIMINAL APPI}AL I]NDER SECTION 25 OF

ANTI.TERRORISM ACT 1997

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certified copy o{the Judgm€nt dated.2l 03 20la is frl€d as annexuro "A"

FACTS

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IN THE HONOURAI}LE HIGH CO{JRT OF SINDH AT KARACHI

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OF ANTI.TDRR ORISM ACT L997

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AT KAITACH I.

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'to, 'I'he Registrar, (/ l.:st Honourable High Court of Sindh, Karachi <,/ SUBJTCI: ITEFERENCE U/S 37rl ( )F CIi.P.C I\.SPICIA C

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I i/: 015 OLD CAST NO. B. 014 fI{ 4 7/:r) t1 L/s 30yx I'PC SECTION 7 OF A1A. 1997 P,/S A7IZAts.,\ t] K.A. RT\ C IJ I THE STr\TI vERSUS SYID TUIiOA\ & ()THIRS L7S 2sl2) of ATA. 1e97

I have the honour to submit that the below mentioncti case has been clecirled or1 21-03-2018 and lht, accusecl persons nanrelv l) Syt cl furqan alias Babaji s/o Syed Hamid Hussain, 2) I,aisal Ntehmood s/o N{uhammad Ibrahim,

3)Sycd tlutrrrab Ali alias lrfan s/o Syed NlurLlza Kamal have tcen aia,arede.t dparh scncelterce subject to confirmation bv the Honourable lligh Court r)f Sildh, Karachi U/S 374 o( Cr.l,.C:

Case No. fliiused Names I]IR N{', st.rrion t;/s t,Jr - SPI](1AI, 1. Syeil f-notice i 20t4 A7,T7,AI]AL), t'l'(

CN.SE '17

KARr\CI II '\\' NC}.. Ltabaji s/o Syed l.r

49t>/ 2015 flamid Huss.rin I SICTION 7 OF oLl) 2. taisdl T'ASIJ NO I nr,r. ,r, B. fvluhammad j2t,/ 2ot4 Ibr.rhih

3.Sled Buturab AIi nlir\ Irfan s/o svc(t I NIurtd/i Kamal

Thc R&Ps of the abovc case has already bccn scnl in view ol 25(2) of ATA, 1997 for contirmation of death selltence of the above I lrersons or othcrh,ise t) ge Anti lcrrorisrl ( ourt No. Xt:lt Kn rarli

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IN THE HIGH COURT O[ SINDH AT KARACHI

Special Cr. Anti-Terrorism Appeal No.98 of 2018 Special Cr, Anti-Terrorisrr Appeal No.99 of 2018 ConJirmation (ise No.0.l oi 2018

Present Itlr.lusticr Nlohanrnul Ktritn Klt,ln Agha ML Jtstict Khttlin Husstlifi Tn io.

Appellants Syed Riffat Hussai , Azhar Hussain througll Mr. Shah lnrroz Khan, ndvo.ate, Syed Furqan alias Babaii and Faisal lr'lahmood through Abdul Razzak, Ativocate antl SyeLl 8u-lur.rb Ali alias lrlan through N'Ir. I4uhammad FaroBl, Advocate.

Respondent: 'l hc Stnlc through NIr. Abdullah Rajput DcputY Prosecutor Gener.rl Sindh

Date of hearingi 28.0i12019

Date of announcement 03.09 2019

JUDGMENT

Mohammad Karim Khan Agha, J.- Appellants Syed Rilfat Ilussain S/o. Syed Shakir Abbas and Azhar tlussain S/o. Naushad Hussain, Sved Furqan alias Babaji S/o. Syed Hamid Hussaio laisal Mehmcx-rd S/o. Muhammad lbrahim and Bu-Turab Ali alias lrfan S/o.5yed Murtaza Kamal have preferretl these appeals agaiist lhe judgmcnt dated 21.03.2018 (thc impugncd judgmcnt) passcd by the learneLl .luclge ,4.nti-Terrorisnr Court No.XVII, Karachi in Special Case No,495/2015, F.l.R. No.47l2014 U/s.34/34PPC r/w section 7 of ATA, 1997, registered at police station Azizabad, Karachi whereby the appellants have been convicted an.l sentenced as undet:-

"Accused persons namely l) Syed Furrlan trlias Babaji s/o sycd Hamid Hussain 2) Faisal Mehmood s/o. Muhammad lbrahcem 3) Syed Butulab Ali alias lrfan s/o. Syed Mu aza Kamal Undcr Section 302(b)/34 P,P.C each and sentenced to death as (Tazir). Accusetl be hangeti by ne.k till their dcath l-\'ith direclions lo pay lts.1,00,000/- each to the hcirs ol thc deceased by way of compensation u/s. 544-A CI.P.C. and in default of payment thereol undergo S.l. for six months more.

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UnLler Section 7(a) of Anti-Terrorism Act, 1+)7 each accused is sertenced to death. Accused be hanged bv neck till their death u,ith directions to pay Rs.1,00,000/- ea.h and in case of default o[ payment thcreof, shall undergo S.l. ior six months

Accused Azhar IIussain alias Faraz son of Naushad llussnin .lnLl Riffat Hussain ]affri s/o. Sired Shakir Abbas are conviclcd;

Under Scction 7(a) of Anti-Tcrrorism Act, 1997 r/rv. sci:tiorl 302/34 PPC each and sentenced to sulfer lmprisonment for Life; with.lirectioru to pay R5,1,t1O000/- each aml in rlefault of payment thereof, further unrlerger S l. for six tn(xrth5. All the scntcnces shall run concurrently and accuscd sl,all bc entitled to bencfit u/s.382-8 Cr.P.c.

2.The brief facts of thc prosccuhon casc as Per FIII ar!' that thc complainant Muhammad Waseem has stated in the F.l.R. that he u'as residing in his House No.66/68, Cali No.4, Sector-D, near.larrriir Masiid Qayyumabarl, Karaclri antl doing his own business. On 27.02.2011 he was plesent in his house rvhen his father's friend u'ho used to 8L) h'ith his father r)n the night of Juma in Madani Masjid Azizabad has inlormed him that his father alonF, ra'ith his friend Al\lrrl lvahid after olfering Esha prayer from Madani lvlasiid Azizabad when they w'ere on their wa-v back to lheir house were attacked by unknown culprits who rnatle tiring uptrn their Car AKX-146 \,ritz white colour ncar Kaka Bawani Sclrool Usm.rn Mcmorial Chowrangi at Main Road Bltxk-2 Azizabad and also rlirclost'tl that the complainant's fathcr and his friend Abdul Wahid havc' bcen injured and are bein,l shifted to Abbasi Shaheed HosPital and .lsked the conlplainant to !ea(h there. Upon such inJoimation he immediately rushed to the Hospitnl, where he came to know that his father Ordngzaib and his friend Abdul Wahid had expircd duc to firing and thcir dcad bodies were shifted lo mortuary. The complainant ra'ent to thc nr(rrtuary and saw the dead bodies. The complainant accused unknown Pe$ons for cotrmitting murder ol his father anrl oI Abtlul Wahirl w'ho was [ri.'nd crl his father. The F.l.R. h,as rcgistered vidc Crimc No..f7/2014 u/s. 302/3'l Prc r/w section 7 A1 A,1997 atP.S. Azizabnd, Karachi.

3, The investigalion was transfered to lncharge InsPector Nisar Ahrned Qureshi SWIO of PS Azizabad, Karachi who receivetl FIR along with 174 Cr.P.C. pro(eedings and started investigation and conducted the?

r1 same to some extent. Thcrcaftcr said invcstigation was handed over to Inspector Mir Aslam Khan SIO/CIA, who arrested the a(ru8ed persons Syed Furqan alias Babaji s/o. Syed Hamid Hussain, l-aisal Mehnrood s/o.

Muhammad lbrahim, Syed Bu-Turab AIi alias Irfan s,/o Sycd Murtaza Kamal, Azhar Hussain s/o Nausahd Hussain and Syed Rifat Hussain s/o. Shakir Abbas on spy information frorrr Block-2 ITFCHS Karachi on 25.M.2074 whilst they were riding motor bikes. During interrogation the accused disclosed that lhey are involved in Crime No.34/201,1 u/s. 302/324/34 PPC r/w Section 7 ot AT A,1997 ol PS Sharifabad as r.r,ell as Crime No.47/2014 r/s.302/34 PPC r/w Section 7 ol A'lA, 1997 of 15 Azizabad KaJachi. AIter completion of investigation challan was submitted and ahargc was framed a8ainst all thc accuscd persons to which they pleadecl not guilty and claimed trial.

4.In order to prove its c'ase the prosecution examined 12 PW's who exhibited various documents and other items in sllpport oI the prosecution case whcre after the prosE<ution closed its siLle. The accused Pcrsofls recorded their statements under 5.342 Ci.PC whereb)i thel, claimed their false implication in the case ard plead not guilty. I lowever, they did not exarnine themselles on oath or produce any defense witnesses in support of their defense which was in essence that they had been arrcstcd by the police before the crime occurred and were thijn fatsely implicated in it by the police.

5.Learned Judge, Anti-Terrorism Court-II, Karachi, after hearing the learned counsel for the parties and assessment ot' evidence available crn record, vicle the impugned judgment dated 21.03.2018. convictcd and sentenced the appellants as set out earlier in this judgmelrt, hen.e thesc appeals have been sepalately filed by each accused against their conviction. By this common judgment &,e intend to decide all of lhe appeals.

6- The facts of the aase as well as evidence produced before the trial Court find an elaborate mention in the impugned iudgment, therelorg the sane are not reproduced hcre so as to avoid duplication and urlneressdry repetilion.

7.Learned advocate for appellant Syed Bu-Turab Ali alias Irfan contended that this was a cotnpletely false case rvhich hacl been foisterl

upon thc appcllant; that the sarne accused had been said to have committcd a similar crime through FIR 24/20-14 al PS Sharifabad on thc same day at the same time by the same [O rvhich vvas not humanly possiblc; that the so called eys witness rvas a Ialse cye i,!'itness who ncver witnessed any such incident; that thc identification paradc of thc accuscd had not been carried out in accordancc with the la$ an(l as such could not be safcly relied upon; there was an unexplained delay ol over 2 months in sending the empties for FSL rcport rvhich rendcrcd it suspcct and sin.e it ivas a case of no evidence all the accused should be acquittc(i. LearncLl counsel for thc othcr appellanls adopted the arguments o[ learnerl counsel Ior appellant Syed Bu-Turab AIi and in addition stressel.i that Syed Riffat Hussain and Azhar Hussain had not evcn beerr pickcd out at tl'tc identiJication parade. AII the appcllants in suppott o[ thcir contentions placcd rcliance on Notice in pursuance of the order passed by this Court on 13.02.2019 in Criminal Appeal No.238-L of 2013 to Police Constable Khizar Hayat son of Hadait Ullah on nccount of his fnlse statement made before the trial Court in a Criminal Case (l'LJ 2019 SC (Cr.C ) 265), Mushtaq and 3 others v, The State (PLD 2008 Suprcmc Court 1) Kanwar Anwaar Ali Spe.ial Judi(ial Magistrale in the matter of Cr. Misc. Appli<ation No.183 of 2019 in Cr.Appeal No.259 of 2018 (PLD 201q Supreme Court 488) The State v. lmam Bakhsh nnd others (2018 SCNIR 2039), Khalil ul Bashii v. The State (2019 SCMIi 930) .1nd Minhai Khan v.

The State (2019 SCMR 326).

8.On thc other hand Mr. Abdullah Rajput Deputy Prosecutor General, supported the impugned iudgment and contended that the prosccution had proved its case agairEt all the a.cused beyond a rcasonable doubt tfuough a reliablc and trustworthy cvc witness to the incidcnt who had also identified most of the ar.cused from a legallv carried out identification paradc whcrcby each harl bccn plescribcd a spccific role and poBitive chemical aml ISL report was also available on record and as such the appeals be dismissed anr.l the (onvictions and sentences up held. In support of his contentions he placed reliance on Solat Ali Khan v The State (2002 SClvlR 820)

9.We have heard the arguments of the learned counsel for thc appellants and DPG, gone through the entire evidence which has Lreen reatl out by the appellant's counscl, thc impugncd iudgmcnt 1a ith their

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able assistance and have considered the relevant law including the cases cited at the bar.

10.After carefully reviewing the prosecution evidencc including the PW's, the MLO's and the post mo*ems of the deceased and the other evidence on record, we are satisfied that the prose(ution has prtrvcr.l beyond a rcasonable doubt that on 27-02-2011 at approx 2200 hours ncar Kaka Bawani S{hool Usman Memorial Chowrangi at Main Road Block-2 Azizabad that both Abdul Wahid and Orangzaib were murder&l bv fir. ,um.

11.The only real issue in the case is whether the prosecuthn has proved beyond a reasoiuble doubt that the accused have murcleretl the deceased at the said date, time and place by firearm or the deceased rv('rr murdere,J by sorne other third party.

12.ln essence the prosecution case hin8es upon \,,tether we lil]d thc evidcncc of the prosecution's star eye witness PM N,luhammcd Anncss to be truthful, reliable and conlidence irspiring. After carefully- considering the evidence of this e],e witness il is apparcnt thnt hc is a chance witness (aE admitted by the prosecution) and as such very little weight if any can be given to tus evidence without the strongest ol coEoboration. Even otherwise he states that he witnessed the incident but he gives no hulia or description of any oI the accused in his evidence and nor is any such huila or description given in the FIR where it is alleged the offense was committed by unknown persons. lt was also a hight tim. incident and thele is no evidence of any source of light or how lar awav thc eye witness was from the incident. Tlrc eyc witncss did not knolr thc accuse(l bcfore the incident and appears to have had onl,y a fleeting view of all five accused. Even at the identilication parade he was not even able to pick out accused Syed RiIfat Hussain and Azhar Hussain As such wt, do not find the eye witness to be truthful, reliable or conJidcncc inspiring especially as he only surfa.cd out of the blue months after thc incidcnt and at the time oI the identification parade. His lack ot descriptioi of thr, features/ hulia of the accused is highly damaging to his rcliability and castes severe doubts on hi5 abilit_y to sarely identif) an! one of the real accused out of the identilication parade. ln this respect reliance is placetl on Javed Khan V State (2017 SCMR 524).Even otherwise the identilicatiorr

paradc in our view' has not been carried out in accorclance with thc guiding principles o[ law in such matters as lair.l dor,'n in the case o[ Kanwar Anwaar Ali (Supra) in that all the same 8 dummies lvere used for all the 5 sepalate identifications of the accuscd r^'hich means after the third identilication parade the witness would have been aware o[ who had not been dummies before and thetefore rvho to pi(k out; that the addrcsses and CNIC'S of the dununies harl not becn taken; that there w.rs an unexplained delay of holding tlrtr idcntification Parade for 1ti davs and since the accused were all in police custody during this period there was ample opportunity Ior the accused lo bc sho$'n to the identiiier and that there lvas no mandatory certificate ol i(lentiiic.ltion

13.Furthelmore, the cmpties at the scene $'ere recovcred on 28 02.2011 and wcre not sent to the FSL for over t$'o months lvhich delay has not been explained by the proseculion, that the.e is no evidence of thc sale custody o{ the empties and quite conveniently they !"'cre only sent for FSL after thc pistols had b€€n recovered from the accused on their arrest (which was not made on the spot but after a delay of near'ly tw'o months based on spy inlormation $'hen the accused claim that they r4ete alrcadv in police ostody) and as such thc possibilitv that the Pistols once in Police custody had not been used to generate the emPties $'hich ll'ere sent to thc FSL along with the pistol cannot bc ruled out. Even othcn'ise the FSL rcport was not put to the accused during the recording of their 5-3-12 Cr.rc statements and as such it cannot be relied uPon to convict thc appellants. At this iunctuie we would like to Point out that due to this lapse we declined the rcquest of the DPG to remand the.ase back to tlle trial court for the re recording oI the 5.342 Cr.rc statements of ilre accuscd as it has been held by the supreme coult tlul lhe prosecution throu8h such tactics cannot fill up the lacuna's in their case to the detriment of thc defense. ln this rcspcct reliance is placed on Nusrat Ali Shah and othcr V the State (ulueported) dated 20-02-2019 in Criminai APPeal No 24-26-K oI

14.Even otherwise wc find the prosecution casc to be highly doubtful conceming the truth of the matter as it aPPeals that the same accused were invoh,ed in a similar ofJense on the same day at the same tinre a few KM's away in Sharifabad whcre the same lO was Prescnt. How could the accused have bcen at two places at once? ll also seems to be quite a c(F

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incidencc that the IO initially disposed of the casc in "A" class however orr the same day that the case G thcn entrusted to IO Mir Aslam Khan of the special investigation unit he immediatel) receives sPy in-lormation of the whereabouts of the accused who he arests on thc same day.

'15. In shott, we do not find the evidence of the e1'e rvihless l)W 9 Muhammed Aruress to be retiable, truthJul or confiden(c insPiritl8; that the identiJication parade has not been caried olrt in accordancc with the law and for the other reasons discussed above the Prosecution has inilcd to plove its case beyond a reasonable doubt against ary of tlrc aPPcllants Ior the murder of tlrc deccascd on the date, time and Placc as allcged. This being the case all oI the appeals are altowed and all of the aPPellants atc hereby acquitted o[ al] the charges against them in the impugned iudgment and each of the appellants shall be releasecl unless he is wanted in any other custody case. The confiimation referenae is anshttcJ in the negative.

16.The appeals are disPosed of in the above terms

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