NADEEM KHAN S/O ABDUL RAZZAQUE (Appellant) VS THE STATE (Respondent)

De-^t)- 15 n*.^dI ' 5's vrJ"- ,3o

CERTIFICATE OF THE COURT IN REGARD TO REPORTING

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C4-LlA- 66 "k?ots IJ r. K-/t""- V Cv r . y', r/..-.( i..k "loo,-

HIGH COURT OF SINDH

Composition of Bench: kh/D. B.

Mr. Justice Mohammad Karim Khan Agha, Mr. i,-,-L * l( !.-o-J * i'l r.r''.,.* 1i"'-.'

Date(s)of Hearing: Z.',-lZ'19 V Zl-aZ-tl Decide on: ?--( -<'? -20L9

(a)ludgment 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 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 judgment.

(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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f,\ THE HIGH COUII.T OI,'SINDI{ AT KAIIACTII (Crinrinal Appellate,lurisdiction) :aH:HS:f#ra Special ATA Appenl No of 2018 /Lb .-"-- ;r-'-- -ziPr,

4 aud".rn Khan S/o Abdul Razzaque, <-, rce*lrtf-Aeaktur!

: {bid Ali S/o Bawar Khan i \oor-ul Rasheed S/o Abdul Jabbar presently confined at Central Plison, tlu L-arachi Appellants/Accused

Versus

Ttre State Respondent

FIR No.4612014 u/s 303, 324,427, 109134 PPC 3/4 Explosive Substance Act, R/w Section 7 ATA P.S. PIB Colony, Karachi

CRIMINAL API'EAL I.J/S SEC'I'ION 25(I) OF ANTI

TERItORIS\I A(',-l' l99j l{/\\ SECTlON .lltl Cr.P.C.

Being aggrieved and clissatisfled with the impugned Judgment -ferrot'ism Court No'XIV d,ated 21.5.2018 passed by the Jtrdge Anti Karachi in Special Case No.A-'18/2015, FII{ No.46l2ol4, U/S 301,>- , 324, 4?7,109134 PPC,3/4 Explosive Substance Act, R-/w Section 7 -A,TA Karachi, P.S. PIB Colony' Karachi rvhereby the learned said Special Judge convicted and serlterrced the appellants Nadeem Khan S o Abdul Razzaque, lrbid Ali S/o Bawar I(han and Noor-ul-Rasheed S o Abdul Jabbar U/S 265-H(ll) Cr'.P.C. in fbllowing order:- I For of'tbrrce t)ls. 7 (i) (a) of Anti-Terrolism Act 1997, R/.w Se,ctiot't 302 (b)134 PPC to death on tbtu' (04) colnlts, cach cottvict be hanged by the neck till l.re is dead strbjcct to the conflnnation by thr: Hon'ble l-ligh Coult as provided U/s- 374 Cr.P.C. Cltrttvicts are also ordered to pay cornpensation of Rs.200000/- each (Two Lac) to the heirs of the deceased U/s. 544-4 Cr:'P.C. and in ! r---r. ^.r: ^..^t. iL-', .l".ll ,,nrlaron S I fnr

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! vr D A1\ I r- r r,Kl(ulu SM COURT NO: XIV INSTD rrrlJ lL, r-r\,

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CEN TRAL PRISIO N ATKARA CHI.

No:ATC-XIV/K-Di v fi,ll of 2078 Karachi dated: 22.05.2018 Spl Case No: A_49p015 State v/s

N-rl:"* Khan S/o Abdul Razzaque 02 Abid AIi S/o Bawar Khan 03 Noor-ul-Rasheed S/o Abdul labbar Convicts

FIR No: 46/201.4 U/S: 302,324,422,109/34 ppC, s/t Explosive Substance Act, f/w Sec: 7 of ATA ,NwArin ro OO,r,r,,..,,--.-- \o+t, P.S. PIB Colony, Karachi.

DAri - To, liifi7:,_, ri.,1irr I

The Registrar, Hon'ble High Court of Sindh, Karachi.

SUB/ECT: REFE RENC E FOR CON FIRM ATIO N OF DEA TH

SE NTE NCE :374 C R.P.C.

I have the honor to submit that in the above captioned case this court vide judgment dated; 21 05.201g, has convicted and sentenced accused persons namely 01. Nadeern Khan S/o Abdul Razzaque 02 Abid AJi S/o Bawar Khan and 03. Noor_ul_Rasheed S/o Abdul Jabbar, Ior offence Anti-Terrorism Act 7997, R/w u/s:7 (i) (a) of 302/3a ppC, and section 3 Explosive substance Act to death. The record proceedings (Page 01 to lo3l') submitted for confirmatior.,uto 'n" of the case are of sentence of death as required u/ s: 374 Cr.p.C.

o xl

()c ,o,"(kfu^, E I Judge Anti-Terrorism Court No:

XIV,

Karachi.

) v I

IN THE HIGH COURT OF SI NDH AT KARACHT

Spl. Cr. Anti-Terrorism Appeal No.162 of 2018 Confirmation Case No.06 of 2018

Present:

Mr. Justice Molnmmad Karim Khan Agha Mr. Iustice Khadim Hussain Tunio

Appellants: Nadeem Khan son of Abdul Razzaque, Abid Ali son of Bawar Khan and Noor-ul- Rasheed son of Abdul Jabbar, through Mr.

Muhammad Hanif Kashmiri, Advocate

Respondent: The State through Mr. Ali Haider Saleem, Deputy Prosecutor General.

Dates of hearing 20.08.2019 and 21.08.2019

Date of Announcement: 26.08.2079

I UDGMENT

MOHAMMED KARIM KHAN A GHA. I.- The a ppellants namely Nadeem Khan, Abid Ali and Noor-ul-Rasheed have assailed the judgment dated 21.05.2018 (the impugned Judgment) Passed by the learned Judge, AntlTerrorism Court-XIV, Karachi for offences under Sections 302, 324, 427,'l}g / 34 PPC, 3/4 Explosive Substances Act, 1 908 read with Section 7 of ATA in Special Cases Nos.A-18/2015 wherebv the appellants were convicted under sections 265 H(ll) Cr' P C and sentenced as under:-

01.For offence u/s. 7(i) of Anti-Terrorism Act 1997, fuw' Section 302(b)/34 PPC, to death on four (04) counts subject to confirmation by the Hon'ble High Coun as provided u/s 374 Cr.P.C. The Convicts are also ordered to pay compensation of Rs.200,000/- each (Two Lacs) to the heirs ofthe deceased Uls'544- A Cr.P.C. and in default of such payment they shall undergo S l for six months.

02.For offence u/s.3 Explosive Substance Act to death on fbur (04) counts, subject to the confirmation by the Hon'ble High Court as provided u/s.374 Cr.P.C. The prope(ies of the convicts shall stand iorfeited to the Government as provided by Section 5-A ol Explosive Substance AcL

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03.For offence u/s. 7 (1) (C) AT Act R/w 324/34 PPC ttt undergo R.l. for 10 (Ten) years and fine of Rs 10' 000/ (Ten Thousind) each in default of payment of fine the convicts shall further undergo S.l. for 6(six) months' M. For offence u/s.337 (0 (2), (h) PPC to undergo R'l for 01 (One) year and pay of Rs.10, 000/- each as Daman to the injured.

05.For offence u/s. 427 PPC to undergo R'l for 01 (One) year and to pay fine of Rs.5000/- each (Five thousand) in default of payment of such Iine S.l. for 3(three) months' 2. All the sentences were to run concurrently and the appellants were extended the benefit of Section 382-B, Cr.PC.

3.The brief facts of the prosecution case are that on 24 04'2014 SIP Safdar of I€ PIB Colony on information first went to the place of incident and thereafter visited Agha Khan Hospital and Jinnah Hospital Karachi flPMC), where he had seen the dead bodies of Inspector Muhammad Shafique aged 40 years, Muhammad Jalal Qureshi aged 35 years, Muhammad Dawood aged 60 years' Aiiaz Ahmed aged 40/45 years and of the unknown suicide bomber' SIP Muhammad Safdar had completed formalities U/s' fia Cr'P'C and obtained the death certificates from concerned MLO as well as the blood soaked cloths and body parts of the suicide bomber' It is also stated in the FIR that iniured Persons namely HC Saleem Khan' PC Ashiq Hussain and Abdut Qadir were not in condition to Sive statements therefore, SIP Muhammad Safdar went to the place of incident and gathered information, where the concerned SHO and DSP as well as officials of BDS were available, and it transPired that Inspector Shafique Tanoli during his posting at PS Maripur and PS Mochkohadtakeneffectivemeasuresagainsttheterrorists,therefore' he was on the hit list of same terrorists. It is further stated in same FIR that on 24.04.2014 at 0835 hours, Inspector Shafique Tanoli was sitting with his friends near his house at Aiiaz Tailoring shop' Pakistan Chowk, Mano Goth old Sabzi Mandi Karachi, where unknown terrorists alongwith unknown suicide bomber who was armecl with explosive materials had killed Inspector Muhammad Sha(ique' Muhammad Jalal, Muhammad Dawood and Aijaz Ahmed' while the gunman of Inspector Shafique Tanoly namely HC Saleem Khan and PC Ashiq Hussain of Security Zone-ll, and one passerby Abtlul Qaclir were injured. It is also stated in same FIR that the deacl bodies and the

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injured were earlier shifted to the hospital, and efforts were made to get recorded the statement u / s 154 Ct. P.C. of the heirs of deceased but to no avail, therefore, FIR was lodged on 26.04-20-14.

4.After the usual investigation of the case contluctecl by Investigating Officer challan was submitted against all three accusecl under the above re{erred sections of law.

5.Trial court framed charge against the accused persons. In order to prove its case at trial the prosecution examined 15 PWs and exhibited numerous documents and other items. Thereafter, the prosecution closed its side. Statements of the accused were recorded u/ s 342 Cr-PC whereby they denied the allegations against them and claimetl that they had been falsely implicated in this case. None of the accused gave evidence on oath or called any witness in support of their defense case'

6.Learned Judge, Anti-Terrorism Court-X, Karachi. after hearing the learned counsel for the parties and assessment of evidence available on record, vide the impugned iudgment dated 21.05.2018, convicted and sentenced the appellants as mentioned earlier in this judgment and hence all three appellants have filed appeals against their conviction.

7.Learned advocate for appellants contended that the eye witnesses were false and were not Present at the scene of the incident which was bolstered by the fact that the eye witnesses did not register the FIR and left it to the SI; that the rwo day delay in lodging the FIR meant that it had been concocted by the police in order to falsely implicate the appellants in the case; that there were major contradictions in the evidence of PW's 5 and 6 who were both allegedly eye witnesses to the incident and as such their evidence could not be relied upon; that the appellants had been arrested before the incident and had been falsely impticated in the case by the police; that the appellant's confessions before the police were inadmissible; that the identity parade was defective and could not be safely relied upon and that for all or any of the above reasons the appellants be acquitted based on the benefit of the doubt. In support of his

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contentions he placed reliance on Ghulam Qadir v' The State (2002 P Cr.L.J 2OO7), Shafqat Mehmood and others v' The State (2011 SCMR 537), Raja alias Dad Muhammad alias Dado v' The State (2013 MLD 1225), Abdul Salam and others v. The State (PLD 2005 Quetta 86)' Muhammad Yameen alias Raja v. The State (2009 SCMR 84)' Muhammad Shoukat v. The State (2012 YLR 1841), Nigah Ali Shah and another v' The State (7975 P. Cr'L.l 38), Asghar Ali alias Sabah and others v. The State (1992 SCMR 2088), Nasir Mehmood and others v. The State (2008 YLR 1755), Muzammal Hussain v' The State (2007 YLR 7627) and one unreported judgment passed by the Hon'ble Supreme Court of Pakistan in Cr. Misc. Application No-183 of 2019 in Cr. Appeal No.259 of 2018..

8.On the other hand Mr. Ali Haider Saleem, Deputy Prosecutor General suPPorted the impugned iudgment and contended that the eye witnesses are reliable and trust worthy and rightly identified the appellants and that we can uphold the convictions based on their evidence alone; that there were no defects in the identification parac{e whichwasconductedinaccordancewiththelaw;thattheaPpellants had been identified in the court ; that the appellants had confessed to the crime before the police and lead the police to the place of the incident; that there were no maior contradictions in the evidence of any PW such as to render them unreliable and all the PW's futly supportetl the prosecution case against the appellants and thus for all the above reasons the appeals should be dismissed and the death penalty upheld as it was fully iustified by the nature of the crime i'e' a suicide bombing

in a public place which kilted four innoc8rft\ieopte including a police officer and injured at least two others ln suPPort of his contentions he placed reliance on Dadullah and another v' The State (2015 SCMR 856), Zakir Khan and others v. The State (1995 SCMR 1793)' Bashirullah and another v. The State (2002 P Cr' L J 1183)' Muhammad Sadiq v' The State (2017 SCMR 144), Khan alias Khani and another v. The State (2006 SCMR 1744), Muhammad Ehsan v' The State (2006 SCMR 1857) and Nazir Shehzad and another v' The State (2009 SCMR 1440)'

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judgment dated 21.05.2018 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary rePetition.

10.We have heard the arguments of the learned counsel for the appellants and DPG, gone through the entire evidence which has been read out by the appellant's counsel, the impugned iudgment with their able assistance and have considered the relevant law inclutling the cases cited at the bar

11.After carefully reviewing the Prosecution evidence including those of the eye witnesses, the MLO's and the post mortems of the deceased, the bomb disposal expert and the suicide blast report and other PW's who arrived at the scene shortly after the bomb blast we are satisfied that the prosecution has proved beyond a reasonable doubt that on 24-04-201'4 at about 8 30 am in the morning a suicitle bomber blew up Aijaz Tailor shop near Pakhtoon Chowk Manoo Goth old Sabzi Mandi Karachi which iead to the death of Inspector Muhammad Shafique, Muhammad Jalat Qureshi, Muhammad Dawood, Aijaz Ahmed and iniuries to PC Ashiq Hussain and Abdul Qadir which position is admitted by the appellants'

12.With regard to the delay in filing the FIR we are of the view that the delay in filing the FIR two days after the incident has been adequately explainetl in the FIR in that it was expected that the family members of the deceased would file the FIR after the funeral of the deceased and when they failed to do so it was registered by PW one SI Safdar. Further explanation for delay in filing the FIR has been given by PW 15 Rao Zaheer Ahmed in his evidence as the police were awaiting reports from the DBS. Thus, we are not of the view that the delay in filing the FIR is fatal to the prosecution case based on the particuiar facts and circumstances of this case and that the delay tlicl not lead to a concoction of a false case against the appellants There is an abundance of evidence on record to show that the explosion at Aijaz's Tailor shop which took the lives of four and iniured two others as well as causing a huge amount of damage on account of a suicide bomber who was seen with three others prior to entering Aijaz's Tailors and detonating his suicide bomb and if the police wanted to

falsely implicate the accused in this case they could have done so bv naming them in the FIR straight away or within this two day periocl of delay. Instead the FIR states unknown Persons.

13.We have found that at least PW 5 Ashiq Hussain and PW 6 Mohammed Saleem were Present at the time of the incident and were eye witnesses to the same. They both served as gunman to InsPector Shafique who was the target of the attack on account of his hunting down of terrorists and who was killed in the incident and as such they were natural as opposed to chance witnesses. They had no enmity with any of the accused and no reason to falsely implicate them' Furthermore, eye witness PW 5 Ashiq Hussain also sustained injuries on account of the blast which injuries have been corroborated by PW 11 Jagdesh Kumar who was the MLO who examined PW 5 Ashiq Hussain at JPMC shortly after the incident and found his iniuries to be consistent with being caused by a kind of weapon of explosive ballistic material. We do not find any contradictions between PW's 5 ancl 6 to be so major as to rule out their evidence and consider any such contradictions to be of a minor nature. PW 7 Rashid Khan was the brother of the deceased and also seems to be a chance witness and as such we have placed little if any reliance on his identification of the appellants. PW 8 Mohammed Ashraf is local business man and is also a potential chance witness so we have also given his evidence with respect to identification of the appellant's very little weight and considered it with due care and caution as indeed we have with all the eye witnesses in terms of the identification of the appellants' 1,4. We do not consider the confessions before the police bv any of the appellants to be of any relevance as such conJessions before the police are inadmissible under the law. The fact t[at the appellants lead the police to the scene of incident is also in our view irrelevant as the police already knew the scene of the incident.

15.In our view the primary issue before us is whether the identification of the aPpellants as the Persons who were seen with the suicide bomber just be{ore he entered Aiiaz's Tailors shop and blew himself up and therefore can be deemed as his accomplices can be safelv relied on to maintain a conviction in a capital case,

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1,6. Thus, we have carefully considered the identification evidence which we set out below keeping in view the fact that in a capital case in court identification is regarded as being unsafe and could not be approved. In this case the appellants were identi{ietl by a number of eye witnesses in court but only one through an identification parade' In this respect reliance is placed on Azhar Mehmood V State (2017 SCMR 135) and Gulfam V State (2017 SCMR 1189);

"17. The FIR: This was registered after a delay of about 2 days and gives no description of the appellants lt simPly registers the FIR against unknown persons/ terrorists.

18.In our view the most reliable eye witness is PW 5 Ashiq Hussain who states in effect that he was standing in front of A1)az Tailors shop when 4 persons having beard crossed in front of him ancl went to Masha Allah General Store and Bakers and were talking outside when one of them went with a shopper in to Aiiaz Tailors shop when a blast occurred. In cross examination he states that he has not mentioned the smaller or taller height of any of the accused in his S statement which was taken two days after the incident although this delay is to some extent explainable as he was injured in the blast He was the only eye witness who attended the identification parade' -1.9. PW 6 Muhammed Saleem who was on duty with PW 5 Ashiq Hussain essentially states the same as PW 5 Ashiq Hussain in his evidence regarding the identification of the appellants'

20.FIV 7 Rasheed Khan whose evidence we have already largely discounted as being a chance witness in terms of identification only says the accused had beards. He made no mention of their features' height and description before the court.

2I. PW 8 Muhammed Ashraf another eye witness whose evidence we have given very little weight to in terms of identification simply statesthattheaccusedhadbeardsandadmitsnotdisclosinginhis S.161 statement the descriptiory height and features of the accused'

22.PW 15 Rao Zaheer Ahmed who was an earlier IO of the case durine cross examination states as under:.

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"ln statenrent recortled unrler 5.'161 Cr 'PC of PC Ashiq arul PC Saleem (the ttoo police eye ruitnesses mentionerl abot'e ns PW's 5 nnd 6) tle description of the culprits uere not mentioned' lt is colrect to suggest th.at the aboae ,nentioneil witflesses Ind not disclosed thiiescription of the accused perso,,s" (bolLl added)

23.Thus, having considered the identification evidence prior to the identification parade it aPPears that none of the eye witnesses knew or had seen the appellants before the incidenb that no hulia or description of any kind was given about the aPPearance of any of the appellants except to say that they all had beards. There is no mention of height' size or any other distinguishing feature of any of the appellants lt apPears that the eye witnesses only observed the appellants fleetingly when they crossed them in the street. There is no reliable evidence as to how far away the Masha Allah General Store and Bakers was from Aijaz's Tailors where the appellants apparently waited with the suicide bomber, for how long they stayed there, whether there was sufficient light to see them clearly and make out their features even if an eye witness had been watching them and whether the appellants were visible at the front of Masha Allah General Store and Bakers especially as they all had beards and may have had their heads turned or been obscured by other obiects.

24.In essence the later identi{ication of each of the appellants by PW 5 Ashiq Hussain tfuough the identification parade heltl by PW 4 Abdul Razaq senior civil judge turns on the fact that all three accused had beards.

25.Out of the alleged 4 PW's who saw the aPPellants at the scene of the incident only one PW 5 Ashiq Hussain appeared before the identification parade. No cogent explanation has been given as to whv none of the other 3 PW eye witnesses were not asked to attend the identification parade which raises suspicions.

26.With regard to the conduct of the identification parade we are not persuaded that this was carried out in accordance with the mandatory guidelines as laid down in the case of Kanwar Anwaar Ali (PLD 2019 SC 488) when all the following factors are considered as a whole.

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(a)The identification parade took place 9 months after the incident' (b) The appeilants were all in police custody when they were arrested and could have been shown to PW 5 Ashiq Hussain prior to the identification parade who was also a police officer' in fact the magistrate has noted that the appellants had remained in police custody before the identification parade for at least two months and could have been seen by a number of people especially as they took the police to the scene of the incident.

(c)The appellants were arrested on01-05-2015 yet the identification parade did not take place for an unexplained delay of 16 days

(d)The CNIC No.s, addresses and professions of the dummies were not recorded in the magistrates rePort

(e)At least 6 out of the 10 dummies were used in at least two out of the three seParate identification parades which in effect means that by the last identification parade the identifier was alreacly familiar with 6 out of the 10 dummies who he had seen before in the earlier two identification parades carried out on the same duy.

27.Most importantly as mentioned above the fact that the appellants were only initially described bv having beards in our view makes it extremely unlikely for a safe and reliable identification parade to be carried out. Such a general description Sives the identifier the license to pick out anyone especially as in this case it can be assumed that if the identification parade was carried out fairly all the dummies had beards. Thus, it cannot be ruled out, under these circumstances, that particular people whom the police suspected as terrorists were not deliberately and falsely implicated in the incident through the identification parade simply because they had bearcls.

28.In our view without sufficient hulia/ description of the features and overall bearing of the accused being set out in an FIR or by an eye witness in his statement recorded un{dr 5.161 Cr.PC very shortly after the incident to a large extent makes the identification parade of very limited evidentiary value even if it is carried out strictly in accordance with the law as there is no yardstick by which it can be determined whether the identifier is actually picking out the correct accused who he actually did see at the time of the incident especially when he only had a fleeting view of an unknown person. In this case there were three accused but for each it was simply stated that they all hacl beards. No distinction was made between any of them' Are we to

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assume that ail three all had beards, were of the same height, weight, build and all looked identical?

29.In the case of faved Khan V State (2017 SCMR 524) concerning the necessity for an early hulia/description of an accused by an eye witness before an identification parade and the need to strictly follow the rules governing identification parades it was held as under at 528 to 530:

"7. We haae heard tlp learned counsel and gone througlt tle record. The prosecution case rests ott tle positit'e identificntiort proceedings antl the Forensic Science Lnboratonl report uliclr states that the bullet cashtg sent to it (toltich u'as stoted to lnt'e been piclced up from the c nre scene) uas fired from tlrc snnte pistol (which ruas recotered fron Raees Khan in snother cnse) We therefore proceed to consider botlt tlrese aspects of tlv se As rcgards the iclentification proceedings and their cofltext there is a long line ol precedeflts stating that iilentification proceedings trrust be carefully cotrduc ted' ln Rnmzan a Emperor (AlR 1929 Sid 149) Percetutl, JC, uriting for tte ludicial Contnissioner's Court (the ptecursor of tle High Court of Sindh) held that, "Tle recogttition oJ a ilacoit or other offender by a petson who has not preoiously seen hirn is, I think, a Jomt of eaidence, tohich has alzoays to be taken uith a considerable amount of cautiott, because mistakes are always possible in such cases" (page '149, colwnn 2). ln Alitn r. Slate (PLD 1967 SC 307) Cornelius Cl, toho lnd deliuretl tfu ludgment o.f tlus Court, toitlr regard to the nntter of identificntiort patades leld, that, "Their [roitnesses] oPPorturtities for obserttation of tlrc culprit zuere extremely limited. They had ,rcaet seert him before. They had picked out tlrc assailaflt at the identification patades, but tlrete is a clear possibility aising out o/ ttreir staterrtertts that they u'ete assisted to do so by being shoun the acctsed person earlier" (pnge 313E). ln Lnl Pnsnnd a, State (PLD 1981 SC 142) Dorab Patel J, toho harl deliaered the judgntent of this Court, held that, if a roitness lnil not giaen a descriptiotr of the assailant in his statefient to the Police and iilentification took place four or fiae ntonths after the ,nu/de/ it woukl, "react against the entire ptosecutiotr case" (page 1.45C). ln a more recent judgnrcnt of this Court, lmran Asfuaf zt. State (2001 SCMR 424), rultich rcns autlnred by lftikhar Mulnmnmd Chrudltry J, tlris Court lrcld tlnt, it must be ensured that the iilentifying wihtesses fiust ",tot see tlrc accused a/ter the commission of the crime till the identification parade is helil immediately after the atrest of the accused percot s As early as possible" (page 485P)

8.The Complainant @W-5) had not mentioned any features of the assailants either in the FIR or in his statenentrccoriteit,::l:r::::.r.:ir_:.?.:,",rr;::*,r:,:Y:,:

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the appellants, who he lud identified after oaer a yeat of the cime, and who he hatl fleetingly seen, were in fact the actual culpits, Neither of the ttoo Magistrates lnd certifed that in the identifcation Proceedings tle other prrttns, ,*orgtt tuhom tlu appellants ruere placed, u'ere of similar age, height, built and colouring. The main obiect of identification proceedings is to enable a zoitfiess to properly identifu a persott inaoloed in a crime and to excluile the possibitity of a uitness simplv con/imring n faint recollection or impression, that is, of an old, rloung, tall, short, /at, thin, dark or fair suspect. Tlere is yct qnother aspect to the mattel of identifcation of the arlprits o.f this case. Tle Complninant lnd named tlvee other persons u'lro could recogrtizt the nssailsnts, but lt rlid not ntentiott Subedar Mehmood Ahnad Khan (PW-6) as one of them. Nonetheless Subedar Mehmood Ahruarl Khan conrc foru'artl to itlentifu the appellants. Significantly, none of the three persons mentioned by the Complainant patticipated in the iilentification proceedings anel tzoo 7l1e/e fiot eae't proiluced ds witnesses by the Prosecution. During the itlenti/ication proceeilings both the appellants had in/ormed the Magistrates tulrc were conducting the identification proceeilings, and befote the iclentification proceeilings commencecl, that they had earlier been slrcwn to tlrc ?oitnesses, The Magistrntes recordetl this objection of the appell*nts irt theit teports brrt surpisingly iliil not atteflil to it, tohich can only be categoized as a serious lapse on thefu part, Therefore, for ilt these reasons rcliance cannot be placed upott the report of the identification proceeilings ifl u'hich tlrc a p p ell ant s w ere i cl en ti/i e d.

9.As regartls tlu identifcation o/ the appellants before tlu trial court by Nasir Mehboob (PW-S), Subedar Melmtootl Ahmed Khan (PW-6) AND klrcss Mtthammad (PW-7) that too roill not assist the Prosectttion because these zoitnesses hnd a number of op'portunities to see them before their statenents ruerc recorded. ln Sttte a. Farman (PLD 1.985 SC 1), the nrajoity judgment of rohich roas authored by Ajnnl Mim J' the learned judge had held that an identificntiort parade u'ns necessary uilun the zoitness only hnd n fleeting SllmPse,o.f a. accusedioho 10ss s stra ger as compared to an nccused nlto tlt toitness lmd preoiously met a nunber of tintes (page 25V) The snme principle ruas folloroed in the unanimous judgment of tltis Couri, d.elioererl by Nasir Aslam Znhid J, in the case of Muneer Ahnad a State (1.998 SCMR 752), in roltich case the abductee had remained toitlr the abductors for sonre time and on sez'ernl occasions had seen tluir faces. In the present type of case t\rc culprits were required to be identified through ptopet iilentification proceeilings, howeoer, the mantet it uthich the identification proceedings were condrrctecl rliy seious do'ubts bs noted aboae) on the ctedibilifu of the process. The identification of the appellants in coutt br1 eye-witnesses who hatl seen tlrc culprits fleetingly once uoulil be inconsequentiaL " (bold adtted)

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30.The recent suPreme court case of Mian Sohail Ahmed V State (2019 SCMR 956) has also emphasized the care and caution which must be taken by the courts in ensuring that an unknown accused is correctly identified. In fact such extra care and caution in relying on identification parades is an accepted global phenomena in most criminal jurisdictions as the possibility of deliberately or mistakenly picking out a wrong person from an identification parade and sencling an innocent man to iail is very much recognized and thus most jurisdictions (including Pakistan as noted above) have put in place special guidelines to greatly limit the chances of such incorrect identification.

31.For example, to avoid cases of mistaken identity where the cases of the prosecution mainly rests on the identification of the accused the Turnbull guidelines exist in the UK

"The Court ofAppeal in Turnbull [19771 QB 224 In response to widespread concem over the problems posed by cases of mistaken identification, the Court of Appeal in Turnbull [ 1977] QB 224 laid down important guidelines for judges in trials that involve disputed identifi cation evidence.

The guidelines

Where the case against an accused depends wholly or substantially on the correctness of one or more identillcations ol the accused - which the defence alleges to be mistaken - thejudge should warn the-iury of the special need for caution before convicting the accused in reliance on the correctness of the identification(s). The judge should tell the jury that:

. caution is required to avoid the risk of injustice; . a witness who is honest may be wrong even if they are convinced they are right;

. a witness who is convincing may still be wrong;

. more than one witness may be wrong;

. a witness who recognizes the defendant, even when the witness knows the defendant very well, may be wrong.

The judge should direct the jury to examine the circumstancas in which the identification by each witness can be made. Some of these circumstances may include:

o the length of time the accused was observed by the witness; . the distance the witness was from the accused;

. the state ofthe light;

. the length oftime elapsed between the original observation and the subsequent identification to the police. , t

L1

Recognition

It is commonly accepted that recognition is more reliable than identification of a stranger; however, even when the witness appears to recognize someone he knows, the jury should be reminded that mistikes in recognition of close relatives and friends iue sometimes made.

Quality of evidence If the quality is good and reniains good at the close of'the accuscr's case, the danger of a mistaken identification is lessened; but the poorer the quality, th. g."ut., the danger. When, in the judgment of the trial judge, the quality of the identifying evidence is poor, the judge shoutd rvithdraw the case from the jury and direct an unless there is other evidence which supports the ""quittul, coirectness of the identification. The trial judge needs to tell the jury which evidence they betieve is capable of supporting the evidence of identification. (bold added)

If there is any evidence or circumstances which the jury might think was supporting when it did not actually have this quality, the judge should'say so;( https://www.inbrief'.co.uk/court-proccedir.r'is/turnbull- suidelines/).

32.It may be that the country is passing through a difficult phase in terms of law and order and terrorism but it is still remains the duty of the court to be watchful to ensure that an innocent person's liberty is not sacrificed on the alter and mantra of the war against terrorism and ensure that only those against whom there is reliable, credible and trustworthy and cogent evidence of their guilt in respect of a particular offense are convicted of the same. It is the duty of the Prosecution to prove its case beyond a reasonable doubt through such kinds of aforementioned evidence and a cardinal principle of criminal jurisprudence that a Person is innocent until Proven guilty and it is on such principles that the edifice of the criminal justice system rests and it is the duty of the courts to sacredly and jealously ensure that such principles are followed without fear or favour whatever the outcome of the case may be. Such conduct of the courts will go along way in ensuring that the rule of law is maintained and the public have faith and confidence in the criminal justice system whatever their station in life may be.

33.Thus, in conclusion we are of the view that the identification evidence in respect of all three aPPetlants cannot be salely relied upon to maintain their convictions and as such by extending to them the 1- --- -.:! ^r.L^ ,{^.,rrr }li6ir onnoalc arp allowed anri thev are acquitted of

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the charges against them. Resultantly the convictions and sentences in the impugned judgment handed down to each of the apPellants are set aside and the conlirmation reference is answered in the negative All tfuee appellants shall be released unless they are required in any other custody case.

34.The appeals of the appellants are disposed of in the above terms.

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