MOHAMMAD ASHIQ KHAN S/O MANZOOR KHAN (Appellant) VS THE STATE (Respondent)

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CERTIFICATE OI THE COUR TIN REGARD TO REPORTING

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HIGH COURT OF SINDH

Composition of Bench: i8./D. B

Mr. Justice Mohammad Karim Khan Agha, 14, j*r_t.". Oihr* aL. -*7f

Date(s) of Hearing: 12-1i- 11

Decide on: ez-l\ -2019

(a)Judgment approved for reporting Yes kJtl )

CERTIFICATE

Certified that the iudgment'/order is based upon or enunciates a principle of law */ decides a question of law which is of first impressiort / distinguishes / over- rule: / reverses / explains a previous deci5ion.

* 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 iudBment.

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

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

ttol IN 'fIII] TI IC}I CC) II OI; SINDII, K,,\I(AC]I I I (r\p P alc f urisd iction)

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iVlohamrnad Ashir; Khan Son of Manzooi Khan, B- /.'a

Adult, Muslim R/O House No I 103, Moch-.t catj No. J 3.

Sect0r I 1 72 Orangi'l'own, Karachi (Now conlined in Ccntal Prison, Karachi)... _.. Apl)r'il.inr 1hc Sta(e.

Respondetrt t t 'ri'r

(ii)FIR No.O 1/2016 Dated 03-Ot -2O t6 U/S.23 {i) A. Sindh Arms Act P.S. OraDgi Town, Karachi

Appeal U/ 25 of the A,T. Act, 1997 R w ectiolr 41 o Cr. P. C.

Humbly SheweLh:- Belng aggrieved bl, n.l dissatisficd ivjth tite .rudgrnent -]ereb-\' cor-tviction au,arded to the appellaDt by the Learned Anti_ I le-crisrn Court No,XX, Kar hi vide Judgment, date 28 07-2018 r:'-eieb,r ttle appellant has en convicted for the offence I Llncler .eccon 302 (b), P.p.C. R/w ectiotl 7 (a) ol rhe A.'f.Acr, 19!]7 lvith .,leath senLence by hangi liirn by lteck witi ltne of Rs -IOO,OOO/ - (Rupecs pour La ) to be paid ro the legal heirs of the aeceased person in equal amount or irr default of which to sulter f-.:r:hcr imprisonment lor tw'o (2) years. He was also senLenccd iR-t. for give (5) ye.rs under secdon 25 of ttre Sindh Arms Acr, l2a i3 and further orclererl that thc sentences shall fun i F:-c Lrrrent ly and also oldcftjd t0 confiscatc his movablc and

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IN THE HIGH COUITT OF SINDH, KARACHI

(Appellate Jurisdiction) . .i [tt :d q!/ffi"^t,:o/&:rr -""t '.'..1t,.7'F'?fk

Mohamnad Ashiq Khan Son o, Manzoor l(han, Adult, Muslim R/o House \ r.l No. I l03, Moch-J Gati No.t3, Scctor I I 72 Orangi Town, Karachi (Now confrned in Central Prison, Karachi).......

( Appellant

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1i1c State Rcspon(lent

FIR No.O7,r2O l3 Datcd 17 O I-2OOa, U/5.302/427/34 PPC r/w Section 7 of A.T. Act, 1997 P. S. Orartgi'I'own.Ka.racl]i

Appeal U/S 25 ofthe A.T. Act, l-1 9281$r qp4lgnl r_.o-q.p. c.

HuInbly Sheweth:

Being aggrieyed by and dissatisfied i.\,ith the Judgment thereby conviction au'arded [o the appcllant by the Learned Anti- .-.r. Terrorism Court No.XX, Karachi vide Judgment, date 28-07 20 l8 dYJ whereby the appellant has becn convicted lor the oflcnce under section 302 (b), P.P.C. R/w secrion 7 (a) of the A.T.Act, 1997 with death sentencc by hanging him by neck u,ith fine of Rs. 4OO,OOO/ (Rupees Four Lac) ro be paid ro the legal heirs of the deceased person in equal amount or in default of which to suflbr further imprisonment fqr two (2) years. He lvas also sentenced R.I. for give (5) years Lurder secrion 25 oI the Sindh Arms Act, 2013 and further ordered tltat the sentences shall run concurrently and also ordered to confiscate his rnoyable and

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IN THE HICH COUITT OF SINDH AT KARACru Spt\-ial Crl. Anti-Terrorisnr APPeal No 213 ot 2018 Special Crl. Anti-Terrorism APPeal No.214 of 201ti (:onfirmatron Casc Nt).tj9 of 2018

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Appelani Mohammad Ashiq Khan S,/o. Manzoor Khan lhrough \lr. Marnoon A.K. Sherw,rnl,

For State ThJough lvlr. Nluhammad lqbal Awan, DePut)' I,rosecutor Cencral.

Date ol hearinS: 12.1 I 2019

I)atcofnnrrouncelrlent: 22.11.2019

I UDCMENT

Mohammad Karim Khan Agha, I.- Appellant Mohamn1ad Ashiq Khan S/o. Manzoor Khan has prelerred these aPpeals against the imPuSned judgrncnt datcd 28.07.2018 Passed by the lcarned Judge Anti-]tr'orism Court No.XX, Karachi in SPc'Eial Casc No.l304 ol 2016, F l R No0Tof2013 t/ s.302/327 /34I'l'C r/1\'section 7(a) (l1 ATA, 1997 and another SPecial Case No.1342 of 2016. f.l.R No.O1 ot 2016 t)/s. Z3(l)-A Sindh Anns A't, registercd at P.S. ()an8i lown. Karachi whereby the aPPellant has bee' convicted.1nd sentenced to death under sechon 302 (b) Prc read hith Section 7(a) A tA, 1997 sub,cct to .onJirnlation by this cottrt with finL' of Rs.4t)0,000ri- to be Paid to thc legal hcirs of the deceascd Persois in equal amount and in case of dehult he was ordertd to underSo imPrisonment for two ycars nrole. The aPPellant was also sentenced to RiSorous Inrprisonmcnt for 05 years under section 23(l)(A) ot the Sindh Arrns Act' 2013. Both thc senterces rvcre onlered to be run concurrentlv' I lowevcr, the benefit oI section 3tl2-B Cr.PC. r,'as extended to the aPPellant The rroveable ancl imrnovablc ProPcrties ('t the appellant were also ortlcreel t'r bc fo eiled to the Government

2.The brief lacts of the casc as unJolded in lhe FIR are that on 17.01.2013 at about 1&:U houB the comPlarnant Syed M('hammad Azhar

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lmam S/o. S1-ed Naseeruddirl resident of House No'I103, Bl'lck-J, Strcct l No.23, Sector 11-1/2, Orangi To!t'n, Karachi recorded his statement under section 154 Cr.P.C. in which he stated that he is a Governmcnt officer and ' ' deceased MPA Syerl lVIanzar lmam was his younger brother residing 1r'ith him alon8 with his iamily On 1701.2013 he t'as present in his ofiice h'hen he received in-formation tluough tclePhonc Jrom his rclative that thc car ol his brother MPA MaJl-uar Imanr has bcen attackcd and lus brother has reccived firearm lnjuries along lvith olhers and thcv havc been shltcd to Abbasi Shahecd HosPital. On such information the comPlainant proceeded to Abbasi Shaheed Ho.spital and reached al mortuarv lvhere he found the deaLl b(,dies of lds brother N',PA Manzar lmam. his gunrnen rc Mohamrnad Saiirl s/o. Javecl, rc Inllan s/o. Mohamrnad Yas{e. and Driver lmran @ Nlurad s/o. \'lukhtiyar. He found several Iircarm injuries on thc different parts of their bodies. On enquiring the comPlainant was informed that his biothcr MPA Nranzar Imam ra'as going iu Towlr Llffi(c, OranSi [own with his driver and gunmen on GoYe.nrflcnt $l)itc cok)rcd car bearinB rcgistration No. GL7281 when at abolt 2:30 P in. near marn road, C)rangi Town at Chamcha Hotel his car was intercePt€d an(i attacked by six armed Persons on 03 ilotorc)'cles Thus F.l.R. was lodgtd against unknown persons for killing lour PeGons for unknolvn reasons'

3.SIP Abdul Sattar of P.S. Orangi To*'n collc<ted sPcnt bullets casing of differenl bores from thc Place o[ ill.ident, scnt the samc for FSL and seized the car oi deceased beadng registration Ncr'Gl--7281' IO' also obtained Phutogrdfhs oi Placc ot incrdelrl After rntistigation the rePort ," -,r:t',1r,'.! ** .,b-r[ed b! the I u On Zl. | 2.201 5 r letlPr tv.ls rd crv*l trom Rangers Auth,rrity regar.ling (oniession of the crlme ol instant offence by thc Present accused Mohammad Ashiq 5/o Nlanzo''r Khan r,r'ho was detained for 90 days Lrnder section 11 EEEE of ATA 1997 Thc accused duling intelrogation confessed comtnission of crime ol tho instant case and also conJessed belore JIT wtuch n'as constituted by the Home Department after issuinB notjJication. On such information SIP Gulzar Ahmed proceedcd to Central Iail During interlogat;on accused c(mfessed thai on 17.01.2013 at about 1430 hours he along with his (('mPanions Saqib. Shafqat and Pervez @ Choha and some 5-6 Persons lircd on thc cir of Manzar Imam which was coming on Shahrah-ecrangi, near Chamcha Hotcl, :rrtor 1l-,\, due to \^hich two policemen/guar.ls MPA i\Ian/Jr l

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Imam and his driver were murdered on 13.0t.2016 on the order ol high-ups investigation \&?s ttansferred to InsPeck)r Mohammad Muqcem Khan who intcrrogated thc accused and during interrogation a.cused showed his readiness/lvillin8ness to ptoduce thc crime weapon and to point out the placc of incjdent. On such tlisclosurc, Police Party in the police mobile proceeded to tlre poilrted place with the accused. The accused got the mobile stopped near ZMC office anr.l fronr the g3rbagrr collection bencath the ground hc recovered a concealcd 30 bore Pistol available in a polythene bag and he himselt also led the Police Par$'arrd showcd the place of incident where said offence vr'as comrnitted.

4.On 14.07.2016 l.O. Mohammad Muqelm Khan recorde.l statemcnt under section l{il CrP.C. of eye $'itness Ashfaquc Ahmed S/c) Mohanunad Mushtaque Hc also got his statcme t recorded under s(.ctiorl 1& Cr.P.C. and idcntification parade conducted beft)re iM-lll, hoh'ever, earlier his request lvas declined and after filing revision No.25,t2016 and on the orders of learned D.l. such exclcise wat comPlcted bv JM on 23.8.2016. Thc charge shect was then submilted bcfore the AdminiHtrahve Judge HiBh Court of Sjndh, Karachi.

5.Thc charge was frarned against the accused to which hc pleacieci not guilty and rlaimed his trial.

6.ln order to provc its case thc prosccution examined 12 PWs who exhibited various docunrcnts and other items in support of the prosccution case where afte! the prcxiecLlti(,n.]osed its side. The appellant/accused rccorlied his statement under 5.342 Cr.rc and claimed his {alse implication in the casc. He neither er(amined himsell on oath nor called any witncss in support of his defense case.

7.tearned Judge, Anti-lerrorism Court-XX, Karachi, alter hearing the learned counsel for the parties and assessment o[ cvidcnce availablc o record, virle the impugned judgment tlated 28.07.2018, convictcd and sentcnced the appellant as stated abov€, hencc this aPpeal has been liled by the appellant against his conviction-

8.The facts of the case as well as evidencc produced before the trial Court find an clak)rate mention in the impugned judgmenL thcreforc, thp

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same are not reproduecd here so as to avoid duplication arrd unnecessar\ repetition.

9.Lea ed counsel for the appellant has contended thnt the apPellant is completcly ifinocent and has been ialselv implicated in this case b]_ the poli(e; that the tinrings ol the incirlent, FIR and post mortems indicate thal this is a cot)k€d up case; that the sole cye rvitness is not reliablei that the appelJants confession before the police is inadmissiblei that the recove o{ the pist(,] 0nurder weapon) on the pointation of thc appellant is ol n(, evidenliary valuc; that there was an unexplainecl delay of ,l days io sending the empties for FSL report; that no reliancc could be placcd on tht JIT report arrd for anI of the above reasons the appellant was entitled to lx acquitted bascd (,n this cou cxtending him the benefit of the doubt which was his legal right. In support of his contenhons he placed rclianct' on Muhadmad AJif v. The State (2019 5!-\,1R 63i), Khalid Javed and arother v. The Stnte (2{}U3 SCMR 1419), Mian Sohail Ahmed and others v. The Stite and otherc (2019 SCMR 956), criminal Miscellaneous Application No.l83 of 2019 in Crinrinal Appeal No.259 (I'LD 2019 Suprenle Cou.t 488), Mst. Rukh6ana Begum and others v. Sajiad and others (2(n7 SC\,IR 956), NI6t. Suthta Begvm and another v, Qaiser Pervez and othera (2015 SCMR 114?), Nasir Javaid and anuthet v.'fhe State (2016 SCN{R 1144). Mushtaq and 3 others v. The State (PLD 2{Xlti Supreme Court 1), Asad Rehmat v. Thc State and others (2019 S{\'lR 1156), Muhammad Asif v. Thc Stale (2017:,(-NtR 4tl{,), Province of Puniab throuth Secretary t'unjab Public Prosecution Depaflment nnd arother v. Muhammad ltafiquc and otherc (PLD 2018 Supterne Court 77q, Nazlt Ahmed and another v. The Stat€ and otherE (PLD 2014 Suprcmc Court 241), Sy€d Muhammad Shah and another v. The State (1993 SCI,iR s50), saiian Solangi v. The Statc (2019 5L-\'tlt 872), Tariq Pervez v. The State (1995 SCN,IR 1345), Abdul Jabba, aod another v. the State (2019 S,CMR 129) and Mtrrsal Kazmi alias qamar Shah and .nother v. The State (2009 SC!!'IR 1410).

10.On the other hand learned DI'G has contended that the prosecution hav proved its case against the appellant beyond a reasonable doubt anJ as such thc impugned iudg-ment should be upheld and the appeal disntssed. ln particular he has elnphasizcd that the e),c witness is reliable, tlust woithy and confiden.e inspiringi that the t'yc witness is fully l

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supported by the medical evidence; that the recove of the Pistol rvas macle on thc Pointation of aPPellant and the scene ol thc incident was also shown to the police on the Pointation of the aPPellant and that there lvas a positive FSL report and as such the appeal should be disrnissed' ln suppori of his contentions he has Placed rc'liancc on Hryotullsh v l he State (2018 SCtvtR 2092) ond S.bir Ali Wase€m v.

'lhe Strl€ (2006 P Cr.l J

t400).

11.We have hcard the argumcnts of the learned counsel for the parties, BC,ne through the enlirc evidence whiclt has been read out bv thc appellant and the impugned judgment with their able assistance an.l have considercd the relevant iaw lncluding that cited at the b.r!.

12- In r,ur view after our reassessment o[ the evidcnce based on th( eviden.e of the Police Pw's includin8 the lO, the PW MLO, Post mortem reports and dher medical evidence along with the car in which the deceased $'ere shol wltch has bullet holes in it and was found at thc scene of the incident along with the de.cased v,'ho had all sustained firearm inju es we arc satisfied that the Prosecution has Proved beyond a reasonablc doubt that on 17.01.2013 at about 2.30Pm at Shahra-e-orangi near Chamch Hotel Orangi town Syed Manzoor Khan, Muhammcd saijid, Muhammed lmran and Imran @Murad (colle(tively referred t() as "the deceasetl") whilst driving a car werc all shot arrd murdered by fireafin by a targeted attack.

13.The only issue therelore, in our view, left before us is whethcr the appellant was one of thc atsassins who shot the deceascd b) firearnt which lead to their deaths.

14.lD ou! \,iew after our reassessment oi the evidenc. 1a€ find that the prosecution has not been able to Prove its casc against thc aPPellant beyond d reasonable doubt fur thc folloh1n8 reaions;

(a)Thc context to the.ase is that the ircident look placc at about 2.30 pm on 17.01.2013 and an FIR was lodgerl on 17.01.2013 at abolrt 6.30prn by d private (omplainant against unknoh'n Persons for unknovr'n reasons. lvhere after tlrc Police startcd investiSating thc casc- Alter !'arryhg out their investiSation thc Police had ni:,l un(overed any solid cvidence againsi any susPe.t so the case was disposed of in "A" class.

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(b)On 21.12.2015 (almost 3 years after the incident and lodgirg of the Ftlt) PW 2 Gulzar Ahnred who &as Posted as SIP PS Oranili Town rcceived iniormation from his high uPs that the aPPrll.nt i^,hiist following his detcntion by the Pakistan Rangers undcr s 11 (EEEE) AIA was now confinerl ill Central Jail Karactu and he was crrdertcl to inteffogate the appellant. During his interrogation the appellant (urlessed to taking part in ttle targct killing as mPnliorcd in the IllR along ia'ith his accomPlice5 and as such was a[esk'd in lhat caso, Ilis confcssi(xl to such serious and hcinous.tlmg ['hich .ar.icd r{ith it the dealh penaltv is in our !iew some l\hal inrplausiblc. Even otherwise his contesslon l)efore the Poltc.' is inaclnlissible in evidence.

(c)The key I'\ry is PW 10 Ashfaque Ahmcd who is alle8cdlv the sole eye witness to thE incidcit. I Ie is of great siBnilicance becar:sr' hc also gi\,es his statemcni undet 5.16{ Cr.lr-: and Picks out thc nppcilant in an identifi.ation Parade conducted by IrlV 9 Ju.lictal nugistrate Salman A iad Siddiqui. The Proeecution case will thus to a Sreat extent lurn on whether we believe this eye witness. In our view this eyc *'itness is a chance witness 1^ho had no competlttg reason t., bo whcre he allegt'dlv was when he wiinc\\(i the incident in that he Bavc no evidence thdt hc was in thc.cilinli busincss ot the pe$on hc was supposeci to mcet at thc location o[ the incidcnt and thus his evidence must be considcred raith grc.lt carc and caution. ln this r€spect reliance is placed on Msl Sughra Begum's case (Supra). At about one and a half hours dlkr ih. incideni hc came to know that ]\'lanzlbr lnalrl ha.l be€n killed i'r thu target killing which he witncssed howevor hc did not come forwarLl as a witness and prelerred to remain mum and did not tell a sirrtlle pcrson th.lt he had ivitnpssed this incident for alrnost 3 ycars Quite incredibl-v. hon'ever, alxrut 3 ycars iater !\'hen he camc to know-of thc arrcst of the appellant in this case he came i(rrward as rn cle wihress. Such conduct does not appeal to natural human conduct. ln this re\peci reliance is placed on Mst Rukhgana Begum's case (Supra) This means that his 5.161 statemcnt was rcrorded nearly 3 yenrs after the incidenl. lt is rvell settlecl by now that little, rI .rn\', relianc(. can be place(l orr a 5.161 statement g,ven by an e\'c witncss almost 3 -vears after allcgcdly !'!,itnessing an incidcnt. In this resPe.t reliance is placed on Muhanrmed Asif's case (Supra). ln his S.161 statement he gives no hulia ol thc appellant 1^'hi(} beBs ttrc question as to how he was able t(' pi.k him out at an ldentificatio paradc. Ll this rcspcct reliance is placed on laved Khan V State (2017 SCIVIR 521)).As he admits in his own evidencc the.lrea !va! in d tolnl Panr. and tcrror once the incidcnt started and PeoPle w'ere runnin8 hcnr a d thcre and in such a chaotic environmcnt it is difficult to bclir'!'r that the eye witness got mole than a fleeting glancc of the aPpellant as he himself *oultl have becn tcrrified, pani(ke(l and sccl.ing to cscapc the scene Furthcrmorc, in is evidence in chief he claimn lo bc itliterate and yet durirlg his cross cxammation he gives evidcncc that he came to know about the arest of lhc.rPPerlant by readin8 the news telecasted in a T.V (hannel. lhus, Ior the rea:ons mentiurcd .rbove lve do nol lind the evidcncr (,f this eyc ivimess to be reliatrle, trust lvorthy ()1 confidence inspirinB and wc do not believe thc evidence of this cye witne$s r,!'l() !r1' l.orlsidcl to be a Put up rvitncss and as such hls cvidencc is discartled bv,,us.

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(d)Having disbelievecl the evidence of this eve lvitncss it follo*s that we disbclieve his 5.16l Cr.PC statement \4'hi(h lvas madc 3 years alter thc incident and also contains ()verwritinE.

(e)Having disbelieved thc cvidcn.e of this eve witness it follov!'s that ue also place no reliance on his identiJication ol tlre aPPellani at the identiiication parade especiallv as the identilication Parade took place 3 years alter the incident, that he gave no hulia of the ippellant at ihe time of the incidenl, that initiaily the identification pande u'as disallowed bc(ause the magishate was oI thc view that the \,!,itnes! had scen the accused whosc face w-as unnrulfled and such identiliaation parade was only allowed after d succcssful revision application. Furthcrmore, we have also noted that the identilication parade was nol carried out in a(cordancc with the guidelines as laid down in the rase of Kanwar Ali (SuPra) and as such in any cvcnt his evitlence cannot b,e safelv relied upon.

(0 Turning to other circun$lantial eviLl!'nce The apPcllant taking tlle policc to the place of the incident is irrclevant as the Policc already kncw vrhere the in(ident took Pla.e.

Q, With rc8ard to the pirk,l (the alleged murder wcapon) being recovererl on the pointation uf the aPpellant we note that no diaD cnlry was made bv thc police indicatirrg lllat they were leavin8 thc PS with ihe appellant who would take thcm to the given location in ()rdEr to rccover the pistol and as such this rccoverv is inconsequcntial especially as ;t r .as kcPt in a Place wherc othels had a((ess to it for over 3 years

(h)Ihc empties were scnt lor fSL after a delay oi 4 days but evcn then there was no murcler ueapon lbr them to be nr|lrhcd with. Bcfore being sent to FSL an(l after bcin8 returned ironr FSL there is n(r evidencc that the empties wcre kePt in srl!'custody'-. Furthernxrre, it is somewhat surprising that the Pistol even lvorkecl and was not rusted having been kept out in the open for c,ver 3 years albeit in a polythcne bag. Thus, n'c Place no relian(e on th! positive FSL report. Reliance is placed on Asad Rehmat's case (supra)

(i)It does also not apPeal to r€ason th.rt a Person u'oul(l retain .r murde, wcapon used in a particularly lrcinous high Pr(lfile crime. Logic, comrnorr sen-se and natural hunran conds.t would di.tdt{' lhat you tiot rid of such h,capon so that neither it nor vou could be connecied to ahc crinre through its recoverv. This is more so since w_eapons are easily availablc in Karachi for such rcPlacement Iteliancc is placecl on Mst Rukhsana Begum's case (Supra).

0)As to thc lll report it is of no evidentiary value and cdn at best be (onsidered as a report under 5.173 Cr.PC. In this resPc(t rcli.r:lcc is placed on Province of Punjab V Muhammcd Rafiqre (PLD 201iJ sc 178)

15.Bas€d otr thc.lbove drscussion and kcr'pirrg in vrr'w the (.se rn Tariq Pervez V The State (1995 ![MI{ 1345) which held that i[ thcre is a

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single (ircumstance, irhich crcates reasonable doubt in a Prudent mind about ihc guilt of thc accused, theD the accuscd $'ill be cntitled to thc lrenetit not as a matter ol graae and concession but as a matter of right which principle $'as recently reiterated by the SuPrenrc Court in thc case of Abdul Jabbar v State (2019 SCMR 129) wc herebv a.quit the accuscd oi the charge b-v cxtending to him the benelit of the doubt antl set aside thc impugned judgnent and allow the appcal. The curfirmation refercnce is answered in thc negative and the aPPellant shall be rcleased unless he is i{,anted in any other custodY case.

16.The appcals and con(irmation refcrcnce stand disPosed o[ in thc t-4/ lubc I-:

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