SYED AIJAZ SHAH QADRI S/O SYED QASIM QADRI (Appellant) VS THE STATE (Respondent)

IN THE HIGH COURT OF S INDH, KARACHI

SPL. CRIMINAL A.T.A. NO.3O6 OF 2018.

Presenti MLl.lstlce Mohamfiad Ka fi Khqt, Agha Mr. lustice Khadim Hussain Tuflio,

Appellant: Syed Aijaz Shah Qadd 5,/o. SYed Qasim Qadli through Mt.

Mulrammad ramil, Advo<ate.

Respondent: The State though Mr. Muhammad Iqbal Awan, Additional Prosecutot General.

Date of heaiing 13.01.2022.

l)at€ of Announcement 18.0"t .2022.

TUDGMENT

MOHAMMAD KARIM KHAN AGEA. It The appellant Syed Aijaz Shah Qadri 5/o, Syed Qasim Qadri has preferred the instant aPPeal against the judgmcnt dated 13.10,2018 passed by Leained Anti-Terrorism Court NoXVUI, Karachi in Special Case No.1O8/2013 a.rising out of Crime No.11/2006 u/s 302, 32a, 353' 786,332,70g, g4 PPC read with s€ction 7 of ATA, 1997 regisbered at Gizri Police Station, Karachi and sPecial Case No.1O9/2013 atising out of Crime No 07/ 2006 u/s. 1}E Arms Ordinance,l 5 registered at Frcre Police Station Karaclli whereby the appeuant was convicted and sentenced as under:_

1)Twice sentenced to lile imPlisonment for causing deatl of deceased ASI Muhammad Arif and HC Nadcem under section 302 PPC as wcll as he shall pay an amount oJ Rs.10,00,000/- as fine, and if such fine is to legal hcirs re.overed from the accused the same shall be distributed of both rleceased cqually as comPensation as provided under section 54,{-A CI-P.C. in defauti thereo(, hc shall further undcrgo SI for six months.

2)Sentcnce for Life Imprisonment for cornrnitting offence under scction 7(a\ ot ATA, L997.

3)Sentence R.I. for two years for committing olfence under section 353

PPC.

I

4)Sentence I{.I. for five years and fine of I1s.10,000,/ - in default thereof, he shall further unrlergo S.I. for tfuee montlu for commifting oflence r-r/s 7-(h) Anti-Terrorism Act 1997.

5)Sentence R.I. for seven years and fine of Rs,10,000/- in default thereof he shall further undergo 5.1. for thrc€ months for committing offencc r:nder section 324 PIjC.

6)Sentence R.I. Ior ten years and (ine of Rs.10,000/- in delault theleof he shall further undergo S.l for three months for comnitting oifencc under section 7(b) oi ATA, 1997 for attack on Police Party to endange! the lile of PC lr{alik Khalid.

AII tlle sentences were ordered to be run concurrendy Benefit oI section 382-8 C!.P.C. was also extended to the accused.

2.The blief facts of the prosecution case as alleged in the FIR are that on 05.01.2005 comPlainart SP Muhammad Aslam. l/C CIA rePorted through written application under section 154 Cr.P.C, alleging the,ein that on the relevant day at about 1510 hours he deParted Irom his home irl a govemrnent police mobile No,SP-6334 along with ASI Muhamrnad AriJ, HC Nadeem Akhfar and

PC Malik Khalid for his office. When they reached at Strcet No14' f'unjab Colony, where one silver Alto Car No.AGR-185 was already available On seeing police paity four susPects loaded their Kalashnikovs, as such the comPlainant orrlered his subordinateB to load their a!ms. ln the meaflwhile accused slarted their indiscriminate fuing on the comPlainant Pa*y with intention to corrunit mulder, howevet, the Police Party also retaliated in self-defence ln consequence of encountet ASI Muhammad Arif and HC Nadeem Akhtar sustained firearm PC Malik injuries in their heads, therefore, they were seriously wounded' white Kha.lid also rc<eived Iirearm injury on his leS The 'omPlainant sa*' that ASI police also Muhammad Arif and HC Nadeem had died at the sPot The local arrived there. It is asserted that since 9 months he is engaged in Lyari oPeration

against antistate elements as well as gtouPs of Lyari Cang war' therefore he

suspects that this incident wae the outcome of enmity with the said climinals or as well as cntry on thet behalf by other Pelsons. Accordinglv written application 154 Cr'P C kept at P S No,21 of daily roznamcha was incolPoratcd in the book of undcr being instant FlR. However, a seParate FIR b€a ng Crime No'7/2006 Statiofl Frere by S l section 13(e) ArmB Ordirunce 1965, was registered at Police 236 live Muhammad Rashecd, when four Kalashnikovs, ten load magazine' abandoned car butleB, 39 emPties, one dagger (Churra) were recovered from alter the recoverv of No.AGR-181 Maker Suzuki Alto of silver colour' therefore'

a s

above arms and ammunition FIR of offEhoot case was r€gistered against unknown accused.

3.Alter registration of the FIRs and alter completion of usual investigation I.O. submitted charge sheet against the accused Person.

4.The plosecuHon in order to Plove it$ case examined 15 witnesses and exhibited various documents and other itctns. The statement of accused was recorded under Section 342 Cr.P,C in which he denied all the allegations leveled against him and claimed ttat he had been aMucted by the ran8ers ftom his house and then falaely imPlicated by the Police in this case. In suPPort of his defence case he produced 2 DW's who exhibited vaious documents' 5, Ajter aPPreciating the evidence on record the trial court convicted the appellant and sentenced him as stated above, hence, thc aPPellant has tiled this appeal against his conviction.

6.The facts of tlle case as well as evidence produced before the trial court find an elaborate mention in the imPugned judgment dated 13 10 2018 Passed by the trial court and, theteloro the same may not be rcProduced here so as to avoid duplication and r.mne.essary rePetitiorL

7.Leamed counsel for the appellant has con'tendcd that the aPPellant is the completely innoccnt and that he haa been falsely imPlicated in this case b)' police; that the eye witnesse3 arc Put uP witnesses and were not Present when his the incident took Place and as such there evidence camot be believed; that was con ession before the Police is ina&nissible in evidence; that no tecoveiy made from him and that for any or all the above leasons the aPpcllant should be

acquitted of the charge by extending hirn the benefit of the doubt ln suPPorr of

his contentions, he has Placedreliance on the cases of Muhammad Yasin vs' The

(NLR 1985 UC

State (NLR 2003 Criminal 428), Muhammad Saleem vB' The State 208), Asghd Ali aliae sabah and others vs. The state and otheE

(1992 SCMR

2088), Saidullah ve. The State (PLD 1994 Karachi 122), Khadim Hussain vs' The

State (1985 SCMR 721), Mah Cul vs. The State (2009 SCMR 4)' Mehmood vs' Altmad and 2 othets vs. State (PLl 1995 Sc 1), Ghgtarn Rasul and 3 others Th€ state (1988 SCMR 554. zahid Hussain v6. Aieeb & others (SBLR 2019 rs{ 1), ]aved Khan aliaB Ba(ha and anothel v5' The state and another (2017 S(:N{R 956)' sabir Ali 524), Mian Sohall Ahmed and others v8. The State (2019 SCMR

alias Fauii vs, The State (2011 sCMR.563), Azhar Mehmood and oth€a8 v8' The State (20u SCMR 135), Noor Ielam v3. Ghani ur Rehman and another (2020 SCMR 310), Muhammad Pervez and othels v3. The State and othere (2007 SCMR ti70), Dadan alias Allahdad vs. The State (18 CiU 589). Eiaz Ahmad @ Fooil etc, vs. The State in Criminal APPeal No'327 of 2005, Muhammad farooq vs, The State in Criminat Appeal No.339 of 2005 and The State vs' Ejaz Ahmad @ Fooji et(. in Murder Reference No.5O7 of 2005 Qml CiLJ 475)' Qai8er and 2 others vs- The State (2017 rcr.LJ 324, Farman Aimed vs' Muhammad Inayat and other8 (2007 fMR 1825), Muhammad Nadeem alias Banka vs' The State (2011 SCMR 1514. Naveed Ani(rm alias Navecd Hursain vs' The State and another (2014 rcr.LJ q3), sarftaz alias SAFU and others v3. The state (2017 YLR Note 220), Muhammad wali Shah and anoths vs. Stale and another (2017 PCT.LJ 779), Qazi alies Dost Muhanrrnad and another v6. The Stdte (2014 rcr'L] 611), Abdut Jabbar and another v3. The State (2019 SCMR.l29), Shafiq'ur- Rehman vs. The Slate (SBLR 2CLB Sindh 779), Mst. Margi Bhatti vs' The State (2018 MLD 1329), Muharnnad Sharif Shar vs. The State (2000 rcr'L] 18t12)' Ghulam and 2 otheta vr. The State (2008 SCMR 1221), Mst' Rukhsana Qadit Begum and otheis vs. Saiiad and other3 (2017 scMR 596), Muhammad Arshad Kiani vs. The State and others (2018 YLR 1002), Muhammad ldrees vs' Collector of Cu6toms and otheis (PLD 2002 Karachi 60), Khalid Javed and anothe! vs. The State (20m SCMR 1419), Rehhatultah and another vs The State (2005 IrCr.LJ 60), Raja Zahid Hussain vs. The Slate in Crimiaal Appeal No.22-E of 2004 Abdul Nadeem l(han ve' Chairman NAB & another in Criminal Appeal No. 2&E of 2fi)4, Sh. Muhammad Arnin vs Chairman NAB & anolher in Criminal APPeaI No'2+E of 2004, Abdul H'yee Qamar vs' Th€ state in Crimlnal APPeal No'25'E of 2OM, Qazl Naeem Ahmad vs' The Statc in Criminal Appeal No.26"E of 2004, Padrt Sharif Atam vs' The State in Crimlnal Appeal No.27-E of 2m4 (2012 CILJ 505), Rajab Ali vs' The State and others (2018 YLR 809), Syed Anwar Badshah vs. Chairman, National Ac'ountability Court, Islamabad and 2 others (2013 rcr.Lj 1604, knran alias Dully and vs' another vB. The State and othe.s (2015 SCMR 155), Nasii Javaid and another The State (2016 SCMR 11'14), AUah Bakhsh vs. State (PLJ 2015 Cr'C l'hore 148) and uaneported cases of Muhammad sho.ib alias Shthoo vs' The State in vs' Special Criminal A.T.A. No.62 of 2021 and Fahad Bin Shakeel alias Bandoo of The State in Special Cnmina.l A.T.A. No 63 of 2021 passed by Division Bench this Court

I

/- A

8.On the other hand leamed Additionat Prosc(uto! General appearing on behalf of the State has fully suppolted thc imPuSned iudgment and submitted that the appeal is without medt and should be dismissed.

9.we have heard the arSuments of the leamed counsel for the aPPellant as well as learned APG/ Sone through the entire evidence which has becn lead out by learned counsel for the aPPellant along with the imPugned iudgment i{'ho have ably assisted us and have considered the relevant law including the case law cited at the bar.

10.Based on our reaggessmmt oI the evidence oI the PW's, esPecially the the medical eviderrce, the medical rePorts and certiJicates, recovery of emPties at that scene, we find that the Prosecution has Proved beyond a reasonable doubt on 15.01,2006 at about 16.10Pm at Street No 14 Punjab Colony Persons got out ol by an alto ca! silver in colour a.rrd rude sEaight fire on a Police Party hcaded Muiammed Aslam Choudhry (SSP) with intention to kill the police Party and as

a result of such firing ASI Muhammeti Arif and HC Nadeem Akhtar (collectively

referrcd to ae the deceased) werc Eured by firearm and died on the sPot as a

result of guch fuearm injuries and that rc Malik Khaliri received a fire arm

xlury

11.Thc or y question left before us therefore is who engaged in the encountcr lead to with the Police and who seriously iniured the de'eased by filearm which their (leaths (murcler) at the said timc, date a]ld location?

72.Atter our leassessment of the evidence we find that the Prosecution has ior NOT proved beyond a reasonable doubt the charge against the appellant which he was convicted for the following reasons;

(a)No doubt the FIR was registercd- with PromPtitude- bv the at the-time of iJmplainant SP Muhammcd Aslam khan who was present the incident which left no time fo! the Police to cook up a false case imPlicate the asainst the apDellant. Hatl the complainani wanted m falscly nove named him in rhe FIR' lnstead the FIR is aSainst ;;;;ii;;;;';;J PC u'nl.rlo-n terrorists of L,vari gang wa! Hc also states in his FIR that rc VaUl fftolia.an iaentil-v the-tcriorists along with PeoPle on the.sPot rtaiiit rf,"ria apPealed as PW 14 and supptrrted the contents o[ the FIR ih" iomplainant who *as unable to giv.9- eyid:::: as le this had i;;"J;y in iV" *Uf diicuss the evidence oI PW 14 Malik Khalid later ""pi"J judgmcnt.

reliability of the

(b)In our view the Prooecution's case rests on theability to.correctly evidence oI the eve witnesses and in parhcular their iJ"",ify'rf," upp"riu"t as one oI the accused who fired on the Police Partvl

0a

during the encounter and caus€d the death oI the deceased and as such we shill consider such eye witness evidence in detail as set out below;

(i)That the challan was filed in "A" clasg one year alter the incidcnt and in that challan none of the so called independent eye witncs$es ale mentioned (PW 8 Shamshad Ahmed and PW 9 A[ Muhammed) which in our view castes doubt on how and why the so called independent eye wikless popped up a numtrer of years late! to appear before an identification Paade of thc aPPellant especially as even in their own evidence they did not say-that they rec<rrcle,,i their S.161 Cr.rc statements on the sPot but only apparcntly gave their namcs and contact details to the police There names wete also not mentioned in the FIR

(i, Eye witnees PW 8 Shamshad Ahmed According to his evidence on 15.01.2006 he left his home in Bath lsland at aboul2Pm to do some shoPPing at Delhi Colony and alter making such purchases he met his friend PW 9 Ali Muhamrned at a bus stoP at i'unjab Chouangi where they witnessed the encounter between the culprits and Jre pr.:lice at about 4Pm He saw the culprits aJter making fire leave the s<ene of the incident in two cars He stated that do police officers receivcd file arm injury as well as SP Chaudhry A51am. He did not know il the police officers died as he lett the scene. Accoiding to his evidence in chief he statee tl1at the police recorded his statement and he also gave them his address lttd phor,u .,r*b.r *hilst in his cross examination he states that he only gave his name and addrcss to the police ifithout l91tti:n^oj anf sLtement artd thus it is doubtful when he Save his.S 161 C!'PC statement (if at aI) On 03 10.13 he Picked out the aPPcllant from an identilication Parade as onc of the persons who fiied on the Police party.

We fhd this eye witness to be a chance witness csPccially as he does not menti;l in his evidence that he had arranged to meet PW 9 Ali Muharnmed who was his old ftiend and he indicates that he mct him by chance al a bus 5toP for a chat whereas PW 9.Ali Muhammed statcs that he called this eye lvrtness and affangeJ lo meet him for a chit chat. If this is so why did this eye witness not 8o to PW 9 A.li Mohammed's house for tea and a chit chat or meet in a cdl€ rather than at a [ru. stoP on a busy street whcre in hts own cvidence he states tJut thele was no peaceful area where tley could stand and have a chit chat. This cilcumstance creates doubt in his evidcnce that he was cven Present. If he gave his 5161 Ci'PC statement at all there is no mention of any hulia or description of the appellanfs featurcs. Although it was a day time incidcnt it.is ur*noin n now far away from the incident he was or whether he could get any kind of ilear and unobstructed Yicw of the faces of the peion's who carried out the firing on the police €sPecially as hc was on a busy road and the public were rururing here antl-there out of fear and he also ran I& cover. He allegedly identilied a Person who he did not know from before who he only saw a heeting glimpse of at a chaotic mornent before an identification paradi lield ouer 7 years later when the aPPellant who was. in police custody for nearly 3 weeks claimed that he had becn earlier shown to the witness by the policc. He also stated in hir etidence,

/rq

that SP Muhammed Aslam had been injured by thc firing which was not the casc.

Thc witness might not have had any enmity \Mith the apPellant o! any reason to filsely imPlicate him i! this case however based on the reasons mentioncd above and the Pa-rticular facts and circumstances of this case we find that even if the eye witness was prcs€nt at the time of the incident he would not have been able to iorrectly. salely and reliably idcntify the aPPellant especially after a lapse oi nearly 7 years since he allegedly witnessed the incident without giving any hulia.

In this lespect reliance is placcd on the case of Javed Khan V Slate (2017 SCMR 52,1) conceming the necessity {or an- early iulia/description r.rf an accused by an eye witncss before dn identiJication parade and the need to strictly Iollow thc rules goveming identification Parades where it was held as under at P.528 to 53O:

"7- we fut?c heatil lht lelnled coung"l a d gone tllrougll lle rcco l' Tln wo*anhon ct.a,e rPsls ott tl| Posilue iirnltf'atiott Prcceeditrys atd tlu iorenstc Scietce lahotulorv rep x'hich stat?s thal tlv bull?l iltttt1 snt to il (uthich rtvs statcd ti lnpe heen picked up fton tht cine scene) tnas frred fiom lhe samr ltslal (trhtch u'o5 PtotPzil lrofl Rrl,fs Klnn tt urotihtliu). We rhc,efore yrorced lo considet bolh lles osqectl ')f llu ose. As tesarils the identifi.attott proceedings and their context tltere is o" Iorg line o/ precedmts statl't8 that idelltlficati.on (All( brcceedlflcs rnu;t b4 carclulhl co,tducted' l't Rnnzan o Emferor '1g2g Std i'4g) Percrl'al 1C, t:ititgJot ttu lulrial Con'nissit'ntt's Co tl.

*fhe recognilion ol (lhc pterurar ol llu Hrgh Courl ol Jndt) ltcld thtl, a dacoit or oiher olfitrdet by 4 Pefion @ho has not preoiously seen hi; is, I think, a iom o7 eoiaince, rohlch hls alrrays to be tak?fl with a cotsiietible arnorttt ol caution, because 'nistakes .are ahoaus vossibte ifi strch ceses" WaSc'I4g' colutfl 2) ln Ali -ti'ti"tiaz t' slal( Sc lozl Cnrncltus Cl, trho lr,d dtlrcaed the judgitn.t.oJ t.h^ 'i""1. held' lhnt' *nt, ftenrd to th. rnatt$ ol idenhf@hon Pand?s '"fhcir 1ia,itaeisesl owortu,rittcs for obsc''lration of the allPit u'erc. emelu linitei.' TtEu had ficoer see7. hifi be/ore' They had "rt o;",rfu1oLt the assaita ;t the ktc,ttificalion parades. but lhere is 4 clear possibititu ,,tisiflg oul o[ thcir sts'efieflts that lhey 'u'tc iitittLa n a, io by being ahown the accTtsed persoh eaT.lie/' .Atnqe, 'itlij.

t" tot p*oni". stit, (PLD 1gE1 sc 742) Dorab Patel I' toho h'td iir.*a tt" ;"arr*rt of n, Coutt, held thdL if a wit hal flol 'ss t to th' Police iii i a*iap:u., of the a.ssatla"t in his stateneafter "r'riii""inrlnu toiok placc lour or fioe 'nofltke (pngethe, !y'd1tttt it tDould, i'raad acainst the entire ptosccution case" l45t l o-raiinnit a*n'nnt oJ tltts court, ln n Advaft Stute t200.1 SC.MR (burt aii, u,trirn rl*Zunorri ay lpkho, M'hu mad cluudhry I' this iii'ttor, t must be ensluted that the ide tifyint, the witnesses..must ci'ne till.the "not see the accused aft* the comfiissiofi o/ ii."iiiot:io" oarode i h"td imn?dlatety after the anest oI the **"id p"norc o, "orty as Vossible" Qnge 485P)-

8.The Cornploinant (PW-') hod fiot 'nentiotcd any Jeatures of ut"ler the assaila*s either in the FIR ot itt his state"te'lt rccotil'il thare was flo beflchnqtk agsirst 'w,,icn n, cr.P,c. therelore "i,iitiinto ist wnether tha aPPellants, who he had idm|lied alter,

ooet a yeat of the ciifie, aid uho he had /leetitgly 6een, were ifi Iect th? actuol culpits. Nenher of tl? ltv Magistrutes lnd erlrfrd 'tlat n ttu idmtifcaion proeedngs lie olltt pcr*is' amongsl a'hom tltc appelbnls tcrc Placed, \Lerc oI sifiilar nge, ltciSht, bltilt and colouins 'iie main object oJ tde tific\tion Ptuceedings k to e able a u'itncss to ptope y ideatify a Percofl inoolaed in a crifie afld to e$lude lhe possiiitity of a winess simpty coafinniry a laitt rccollect-lon or 'imprlsslitr, ihat is, o1 an old, young, toll, shon, ftt, thlh, dark or fair s spect..,.

g. As ftgard5 the td"nttfcntion of lhe qrllanls before lhe lrial aur-l (PlN'6) W Ntlsn Mehboob (PW-5) Sutcdar Mehmo'td Ahmed Khan AND ldress Mulummad (PW-7) that loo utill not assisl tlD Prcsecttion becaulf llP\e u'ittusg.s had ar mbet of oPForlu,uties to xe llunr bcfore tleir stntel,,enls rcrc reco ?.t. In 5l!Ll=I!!A!!! ( PLD 7985 SC 1), llE majotity ludgnent ol lt,tidt tLY,s authored by Aimal Mia l, the learned 1"ig" i;a fud that an identlfkqtion patade was fleecssary when 'the-.uitfless oily had a lleetirtg SlinPse o/ an acdrse!' toho wa.s s- sttanger as cimpared to ai accuseil u'rho the witncss hdd preoliusly mel a numb$ o/ tines (Ngc 25V)' Tfu sarnc pintryle ,ttas 'follou'ed "Aslan ii ttu unanmaus judgment ol lhrs Caur!. *!ryere-a^.Ay-l11tr Znhid l, in tlg case of Muiaer Ahnqd t' Shte (7998 SCMR 752)' l itt thich casc the awuctee d renai ed uith u abductorc for sonrc time axd on seoeml occasions lnd *en thejr fa@s. ln the pftsefi tyPe of I c45e the culltik were require.l to be identilied th,ough .p.roPer identlfleatioi Ploceedi Ss; ho@eoet, the tnantor itt lohich thc idenrificatioa proceeitu{s were cottducted rtise seious doubts bs notei abooe) on the cniitttttty o7 th" p'ouss' Tha identfleation oJ the apPellanls in court by rye-wit esses who h4il seen lhe culPrits /leetiigly once would be iacinsequeattal'" (bold added) The recent suPreme court case of Mian sohail Ahmed v State (2019 SCMR 956) has also emphasized the care and cauhon which must be

iatu,r lry ttte c;ults in ensu-ring that an unkntrwn acclsed is couectlv identifi;d. ln Iact such extta care and caution in telying on identification paJades is an accepted global phenomena in most climinal jurisdictions as ihe possib ity uf deliber,rtely or mistakenly Pi(king out a 14rong Pers('n trum an ideritlficatior, puraje a.t.l sending an inn(rent man to jnil.or in this counky potentially to the gallows i5 very much recognized and thus me,st;urisdritions (inctuding Pakistan) have Put in Place- nundatory guideiines to greatlylimit the chanccs of such inconect identification

(iii)Eye witness PW 9 Ali Moha.urmed. Gave similar eYe witncss e,ri.lence as eye witness PW 8 Shamshad Ahmed The same considerations apply to hirrr as to eye witness PW 8 Shamshar'l Ahmed This is more so sin'cJ although he identilied the aPPellant at the identification Parade about 7 yearJalter the incident he wai unable to identily hirn in court only 5 vears after the identification parade whir-h raises doubt about hi< idJntification of thc appellant at th; identijication parade in the lirst Place'

(iv)Eye witne3s PW 14 Malik Khalid. He was the driee! of the Police ,r,oblte ut th" tim" of the incident. In his evidence he narrated the incident as per the FIR in which he was named as witness and as such we believe his'presence at the scene and his evidence with legard to the in'idcnt He gur" hi. S.t61 C..rc eye witness statement on the same day and there arc io material improvements in lhe same He was named rn the promptlva

j filed FIR as a person who could recognize the terrorists however we find that we cann;t rely on him aa having correctly and eafely id€ntifying the appellant as one of those personl who flred uPon the Poli(e Party and caueed the death of the deceaaed. This is because although he gave his 5.161 eye witness Cr.PC statement on the same day he gave no hulia or description of the aPPellant which he bcing a s€rving policemen must have known was essential in such cases where the accused was not previously known to him or aEested on the sPot.lt is unclear how Iar iway he was from the dpPellanr during lhe incident but it must hnvc bcen more thar 3 feet as there was no blackerung on the wounrls ot the deceascd as per the medical evidence At best lrc would havc only got a fleeting glanie at the aPPellant in a chaotic situation where he was sliShtly wou,r.L,I anrl apparently passed out alte, being shot ln exPlicably hervas not callcd to atte;d the id;ntifrcation paradc and his identification oi the appeltant in court 13 years atter the incident cdrlnot be safely relied uPon esicclally as the suPerior courts have dePrecated in court identification evln after a short passage of time in rcsPect of unknown assailants let alone 13 years.

Thus, having found that th€ eye witnesBea would not have been able to <orrectly, saflly and reliably identify the aPPellant after a laPse o{ 7 and t3 years reepectively of th; in(ident the (onduct of the identification parade becomes in consequenHaL

(c)With no eye witness evidence to the murders the medi'al ef idence be"omes inco.tseqrential as it can only rcveal how the deceased died' what kind of weipott was used and the seat of the injuries lt cannot idcnlif) the person who inJli.tcd thc injuries.

fd) lt is notable that the appellirnt conJessed to thc offence whilst tn pollcc c,.rsLody. Conlcssions lxfore the police aJe inddmissible in evidcncc and thus we place no reliance on such conlession Even other \4ise it does not appeal to logc, reaaon or commQrls€nse that a Person letLina ilis *1., in'"r. *u" nJuny evidencc against would cordesg to an offence which car ed the death penalty. ThJ appellant's conlession was also not i"."tJ"a U"fo," a maglstrite dcspite-the appellant being taken belore a miUlstrate fi,r an identifnad('n Parddt'

G) The appellant taking the Police to the Pla'e of wardat and $'here itr" .u, ** iUurdonetl is iirelevant as thc police alreddv Ln(\^ !4 here the placc of wardat was and had already found the abdndoned car and there is no eviclence to link the aPpellant to the abandoned car'

(f)No wcaPon was recovcred lrorn the appellant as such th! rc{overy of anv empties at the crime xene and any FSL report is irrelevant an(l does not cJnnect the aPpellant to thc cornrnission of the offence Ia\ Havins found thal thc prosecution was n!'t able to corrc(tly and pulice [ielv identiJi the appellant as one of the Persons who fired on thenol party an.l ,tiu..lureJ the drccascd it follows that he can aho bc ionuiat"d of his involvement in any encounter with the Police in which the deceased was killed.

(h)That according to the FIR the incidelt was catried out by te"odsts i*arJ in the Ly# gang war however there is no evidence that the appellant was involved in that Sang war'

(i)The apPellant has raised the defenc. that he was Pick'd uP by the )Jngor" ot oioe.zola from his housc and tLereafter was falsely imPlicated in t'his case and other cases He Prcduced two DW's in suPPort of his defence case who filed a C.P. i!

the Sindh High Court conceming his alleged aMuction whereby in their comments the Police-disclos{-l-h1^l: lud"been arrested on 12.0i.2013 as oPPosed to 24.09 20'13 in FIR 659/20'13 u/si53/324/W/A, FIR 660/ 20'13 u/s S.23 (a) (i) SAA and FIR 661/20]i J7" l7i r*pr*ir" substances Act ali lodg"j it r+ cto Karachi' At.trtal the appellant was acquitted oI all oftencels under these 3 FIR'S and in so aoini'tfre ciat court placed heavy rclian e on the delence Plea oI- the appeliant's abduction and false implication by the rangers/Polkein these cases. Keeping in view that the same defence evidence was lead in this case whicli hi been largely believcd in another trial which lead to the acquittal of the accused Je iannot ignore the defence case out of hand and the'refore give some weight to it when Placed in juxtapo6ition with the p.osecutioln casu especiaiiy as all documents retied upon by the defence were exhibited at k;l which Ieads to doubt in the Prosecution case'

13.That the Prosecution must Prove its cas€ against the accused beyond a reasonable doub,t and that the benefit of doubt must go to the accused by way of of right as opPosed to concession. ln this tesPect reliancc is Placed on the case guPreme Coufi has Tadq Pervez V/e. The State (1995 SCMR 1345), wherein the observcd as follows:-

"lt is *tttcd lau thal it is not tucessary thtt thore should be nutry cirdtmstances creating doubts. If there is a si gl4 clrtunstnnd' rLthich creales tcasonaile doLtbt in n prudent mirtd about the guill ol lhe ac.Jtsed, Ihe the acclt',tl Tttill be entitled to lhz berkfit nol ds tt atter of grnce onll concessiort htt as a tuatt'r ofiShl

74.For the reasons discussed above by extending the benelit of the doubt to the app€llant he is acquitted oI the charge, the imPugned judgment is tset aside'

his appeal is allowed and the aPPellant shall be released ur ess wanted in any

other cr$tody ca5e.

15.The appeal stands disPosed oI in the above terma'

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