SYED HUSSAIN SALMAN @ SP & 02 ORS (Appellant) VS THE STATE (Respondent)

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IN THE HIGH CO URT OF SIND H AT KARACHI

Present:

1*ti"u Mohammad Kaifi Khar' Agha Mt, lusbice Khadiit Httssain Tu,tio, -Mr.

SPL. CRIMINAL A .T. APPEAL NO.117 OF 2019

App€llants 1) SYed Ahrned Hussain Salman @ SP son of SYed Abdul Hafeez though Mr. Muhammad Irnran Meo' advocate.

2)Muhammad Ubaidullah Siddiqui @ Habib Kala @ Pagat son of Muhammad Waheedullah Siddiqui

3)Muhamrnad Salman @ AmYa son of Munammad Bux through M/s' Parvcz Akhtar and Nadcem Ahmed Azar, advocates'

Respondentsl The State through Mr, Saadat Ali, soecial Public Prosecutor llalrgers aisisted by M-r. Abrar Ali Khichi, Addl. Prosecutor Ceneral, Sindh'

CR LA EA 1

Appellant: Muharnlnad Kamran Siddiqui son of Muhanmad Khalid Siddiqui, Through Mr. Abdul Khursheed Khan" advtrate

Respondent: The State throuSh Mr Saadat '{li, SDecial Public Prosecutor Rangers aicisted bY Mr' Abrdr Alr }.-hi(ht, Addl. Pros;cutor General, Sindh.

Date of hearing. 03.02.2022

Date of amounc€ment 14.A2.2022

IUDGM E NT

Hussai:T Salman -{ Mohammad Karim Khan Agha, J' APPellants Syed Ahmed @ SP son oI Syed Abdul Hafeez, Muhammad Lrbaidullah Siddiqui @ Habib qalman Kala * Pagal sorr uf Vuhanrmad l4ahccdullah Siddiqui Muhammnd

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(Cr Afiya son oI Muhanunad Bux and lvtuhammad Kamran Siddiqui son of Muhammari Khalid Siddiqui were charge sheeted to face their Eial in sPecial Case No.956 oI 2016 arising out of FIR No. 141 of 2016 under section 321/ 353/ 435ft4 Prc, Section 3/4 Explosive Substance Act ry'^/ section 7 of ATA lggT registered at PS Zaman Town, Karachi. APPellants were convicted vide impugned order dated 25.04 2019 Passed by the lcamed Judge, Anti- Terrolism Court No.xIII, Karachi/Judicial ComPlex at Cenkal Prison' Kaiachi. wheleby the accused PeNons were convicted and sentenced as undet:-

(1)Ac.used Ahmed Hussain salman @ SP S/o Syed Abdul Hafeez is convicted a6 underl

(i)He is lound guilty for the offence and convicted u/s 6(2xee) oi at& rsgZ u;d t"ntenced u/s 7(i)(f0 of ATA, 1y,7 Ior R'1' of 14 years.

{iil Ac' usetl rr furlller iorrvi'ted u/s' 6(txc) of .\TA' 1oq7 and se'ntencva u/s. z(iXd) ot ATA, 199 for R L of (t(n) 10 ) ears with fine Ra.1 lac and in case oI default in Payment of fine accused shall suffer R.t. six (06) montlu more.

(iii)Accused is further .onvicted u/t 6(2Xn) oJ ATA' 1997 and seritenced u/s 7(ixh) of A'rA, 197 for RI of five (05) years witl. fl''. ni.so,txxlT- and in case of delault in Pa)'mcnt of fine accused shall suffe! R.t. ttuee (m) months more' {2) Accused Mu}ammad ubaidullah Siddiqui @ Habib Kala @ Pagal iro vuhamtrad Waheedullah Siddiqui is convicted as unrler'- fi) Hc is found quilrv for the of{mce and cc'nvicted u/s' 6(2)(ec) .i era. rgpz oria se;tence.l u/s. 7(i)(ffl of AIA' 1997 for k I oI 14 years.

iii)Accused is Iurther convicled u'ls' 6(2Xc) of ATA' 197 and s.i.,t.n..a 7(D(d) oI ATA, 1997 for R'l' of ten (10) years \. irh "/s fine Rs 1 lac ur,i in .ut" of dclault irr Pay$ent of fine accuscd shall suffer R.t. sL'( (06) honthr more.

Iiii)Accused is further convi(ted uils b(2xn) of Al A' l9v7 and In,"n."a ,7..71i;1tt1oI A'lA, 1997 for R l of five (05) years wrth Ilne n .so,0dof- i" caee of delault in Payment oI line accused "nit shall sufter R I. of thrce (03) month6 rnore'

Accused Muhammad Karnran Siddiqui @ Kamoo son of

Muhammad Khalid Sidiliqui is convicted a5 under:- lil Accused 13 convrcted u/s.5(2Xc) of ATA' 1997 and sentence(l ir7s. z(iXu) of ATA, 1997 for R l of (ten) l0 years with line Rs'l tac ana'in case of .tefault in Palment of line accused slull suller R.l. ofsix (06) months mote .

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(ii)Accused is turther convicted u/s. 6(2Xn) of A-lA,'1997 ant s€ntenced u/s. 7(ixh) of ATA" 197 for R.I. oI fivc (05) years with fine P.s.50,000,/- and in case of delault in Payment of fire accused shall suJfer R.l. of tlEee (03) months more.

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(4)Accused Muhammad Salman @ Amya son of Muharnrnad Bux is convicted as under-

(i)Accused is corvicted u/s. 6(2Xc) of ATA, 1997 and sentenced u/s. lixd) of ATA, 1997Ior R.t. o( (ten) 10 years with fine Rs.1 lac and in case of default in Payment oJ fine accused shall ssffer R.l of ii\ (0h) nlonths more

(ii)Accused is further convicbed u/s. 6(2)(n) of ATA,797 ar.d scntenced u/5. 7(ixh) of AIA,1997 for R.t. of live (05) years with tine Rs.5o,om/- and in case of default in payment of fine accuBed shall sufler R.L of three (03) months morc.

AII the sentences awarded to all the accused wele ordercd to run concurreudy ex.ept the pa)'rnent of fine. The benefit of kion 382-8 Cr.l'C was also extended to all the accus€d persons.

2.The bliel facb oI the Prcs€{ution case as Per FIR No 141 of 2016 arc that on 2-t.03.2016 on the basis o[ statement u/s. 154 Cr.P.C of the cornplainant D5li lUIBers Abdul l,iaui s/o iYlclurl, I(IlJl! PosteJ ai Dhiii.ti RnirLti:i Il3 Wing Kolangi Karachi plesent FIR was registered at I5 Zaman Town. Karactu wherein it i5 stated by lhe coDPlakunt that he along with his subo'dinate staff was on paholling duty. During Patlollhg at 1350 hours when they rcached near Rangers Post, situated at Korangi No.2 li suddenly they heard voice of blast, as such, they immediately reached at Rangers Chowki and saw that the walls of Ranger€ Chowki were damaged and Range6 Persorurel namely Naik Shaman, Naik Eias, li€pahi Tanved and Sepahi Safdar GulIam were Plesent safely, whereas, the two ollicial motorcycles 125, bearing regishation No.e!{581 and e4521 pa.rked inside the chowki were damaged' On inquiry from Rangers personnel, the comPlainant came to know tlut unknown accused persons idenhfiable came on mototcyclcs and had tfuown hand cracker in t}re Chowki with ifltention to cornrnit thei! murder, to create tefior and to causc damaqe to the Goverrunent proPerty The ac'uscd pcrcons Lhercaftcr, esaaPcd on thcir motorcyclcs; hcnce the FIR was re8istered aSainst .{ unknom identif iable accused persons.,

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3.AItel usr.lal investigation the rnatte.s wcle challaned and dl the appellants were s€nt uP to face trial. They pleaded not Suilty and claimed tial.

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4.The Prcsecution in older to Prove its cas€ exarnined 09 PWs and pxhibited vaiious documents. The statement of accused Pctsons werc recorded under Section 342 C!.P-C in which they denied all the allegations lcveled agairat them and claimed false implication at the hands of the Police' None of the aPPellants gave evidence on oath but tfuee of the aPPellant6 produced documents showing that they had been arested by the rangers prior to the incident whilst one of the appellants Ploduced a DW in suPPott of his delence case.

5.AItcr appteciating the evidence on record the trial court convicted the appellants and gentenced them as set out eatlier in this judgment Hence' the

appellants have 6led these aPPeals against convictions'

6.The facts oI the case as well as evidence Produced befole the trial court passed find an claborate mention in the imPugned ludSment dated 25 0{'2019 her€ so as to by the tda.l aourt and, therefore, the same may not be reProduced avoid duplication and unnecessary rePetition.

7.Leamed couuele for the aPpellants have contended that the aPPeilants irr are entircly innocent oI any wrong doing and have been falsely inrPlicated s'ene cannot be the cas€; that the identilication oI the appellants at the crime saJely teued uPon; tttat the identification Parade has not been catried out in and that for any accordance with the law and that this i6 a case of no evidencc them or all the alBve reasons the accuscd should be acquitted bv extcnding pla'ed the benefit of the doubt tn suPPort of thet contentions they llad leliance on the.ase oI Kanwar Ali (PLD 2009 sC 488)

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8.On the other hand SPecial l+o€ecutor Rangers aPpearirrg on behalf the State a6sisted by Additional Prosecutor Ceneral Sindh have fully the correct suppolted the imPugned judgment and have mainly relied on identilication of the aPpcllarts who calried out the attack on thc rangers

chowki and othe! corroborative/suPPortive evidence on record { and

contended that the aPPeals should be dismissed ln supPort of theirr

contentions, they Placed reliance on the case of Muhammed ManBha V State (2001 scMR 199)

9.we have heard the ar8uments of the lea-rned counsel for the appellans as well as Spe(ial ttosecutor Rangers assisted by learned Additional Piosecutor General Sindlu Sone tlsough the entire evidence which has beelt read out hy the leamed counsel lor the appellarts, and the impugned judgment with their able assistance and have considered the relevant law inciuding the.ase law cited at the bar.

10.At the outs€t based on the Prosrrution evidence we find that the prosccution has Proved beyond a reasonable doubt that on o! about 21 m'2016 at 13.i0 hours Person's came on mototrycleg and threw a hand cracker inside 83 Wing ranger Post situatc at Korangi 2!4 within theiurisdiction of I€ Zaman Town which blasted and caused damage to alficial motor cycles 125 Parked inside the post and damaged the walls of the Post. ln fact this is an admitted position by learned couneel on b€half of the appellants and as such is not in > dispute.

11.The or y question left before us thereJore is who tluew a firc cracker at the rangers post which blasted and caused darnage to the Post and motor cycles therein at the said time, date and leation?

72.AJter our leassessment of the evidence we find that the Prooecution ha5 NoT Foved beyond a reasonable doubt the charge against the appellants for which they were convicbed for the following reasons;

(a)In our view the Prosecution's case rests on the evidence of the sole eye wihess to the incidcnt and his ability to corredly identify the appellants who allegedly came or! a rnotor bike and threh' the fire cracker inside the rangers Post whose evidence we thall consider in detail below;

(i)Bye wltness PW 6 Sh.ma[ According to his evidencc on 21.m.2m6 he was Present at the rangers Post along with othcr ra!8ers when at 155Pm one motor cycle arrived and the ders ttfew a Ptastic bag at the Post which blasted He chased the accused and fired upon them but the accused escaPed lje saw I the damage to the Post and the motolcycles'

The FIR was rcgistered with PromPtitude however he is not/

named in the !_tR as being Present desPite the other rangers who were present being named. It was a day liSht incident and hc saw the accused ftom an u[kno$'n distancc. He was a natulal witness as opposed to a chance witness. It aPPea$ that he was present in the chowki at the time oI the bla-st and he also had no reason to Ialsely imPlicate the aPPellanlr as therc was no enmitv between thcm.

Wllat goes against the cye witness being correcdy able to irlenti$' the appellants keeping in view that he only iclentified two of the apPellants Ahmed Hussain dnd Llbaiduliah is that (a) he is not mentloned as being Present in the FIR desPite other named rangets who werc at the Post bing Eentioned in the FIR (b) he did not know the aPPellants before the irrcident (c) he did not give afly hulia of the aPPeuants in his 5.161 CI'PC stabement or sav that he could identify ttte accused iI he saw them again which geatly undemin$ his abitity to Pick out any accuscd with certainty/accuracy at an identilication Paiade (see later authorities on this Point) (d) he gave his S 161 C''rc eye witness statement alter aonsidcrable detay for which he has provided nct

explaiation esPecially as hc was not iniured t'hich featly un<lermincs his eye rvitsiess evidence ln this resPect reliance is

placed on thc case of Muhamm€d AsiI V State (2fi7 scMR 48b) only got a ie) according to his own evidence it aPPeaE that he fleeting glimPse of thc aPPeuants when they threw the Plastic bag inio ihe ;ost (0 Ns sketch ot thc aPPeuants $'as inexplicable made 7,.layo after the inciclent (f) pnor to the identilication palade the aPPella s claim, as Per their defence case' that thev had been in rangers anct then Polic€ custody anr'l as such wcrc and (g) shown to the eye wimess before the identification parade it is dilficult to believe keeping in vicw the alrve factors and especialty the facts unlotding on the grouhd at the clime scene

i.e a chaotic situation where a btast had just o(curred in his chowld with dust and smoke every where that he lvould hayc been able to hang onto his fleeting rccollection of the aPP€llants'

An idenfiJication Parade was held two months aJter the incident in which he only picked out aPPellants Aluretl Hussain and 'L\fc Ubaidullah and failed to assiSn each of them a sPecific role' however find that tltre wele some procedural dcf€lts in this all identification parade especially in terms of th€ dummies

CNIC'S

being dillereni h terms of height and features and there put us on names, ages ctc were not tecorded which all tend to 1 caution with legard to the tegal r^'orth of the iclentification parade. In this lesPect reliance is Placed on Kanr'ear Ali's case (Supra),

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lt is tlue that we can convict based on the evidence of a sole eye witnesr however based on the Particular lacts and airurnstances of this case as discussed above we find that evcn if the eye witncss was prcsent at the time of the incident bas€d on the L reasons mentioned above he would not have been able to correctly, salely and reliably identify the aPPellants and as such we veer on the side of caution in this case cspecially as there appears to b€ hatdly any cogent corroborative or suPPortivc evirlence and find that the eye witness was not able to cofiectly identify any of the appellants.

ln this respect reliance is placed on the cage oI Javed Khan V State (2017 SCMR 524) concerning the neceB$ity Ior an early hulia/description of an accuBed by arl eye witness in his S 161 Cr.It statement before an identification Paradc and the need to strictly follow the nrles goveming identilication Parades where it lvas held as undci at P.528 to 530:

"7. We hotc heard lhc leorfled co sel antl Sone lbouSh the re@t'L ne pros?Llttio cav lesls ort thc positioa idmtifcation Prcceellittgs and ll9 Foransic ScienLc L^boratory rePort ulliclt states tlut tlt b bl casing sent to it (ulttch las stated lo laoe b€r pickel uP lron llu ) crime sccne) avs f1d from lhe safie Pislot (tl'hich uas recot'ercd lront RAj}:s K]tan ifl anothet case) We thErehrc ProcPed to consid both tha* Leqcts ol lhe cas< As regards tte ide|,tilication proceeili"Ss snd thei contert thete ie a long line of pteceile"ts stating thot identifitAtiofi ptoceedings rn,4st be carefully cottducted ltt &anzan u Emperor (AIR 1929 Sid 149) Pdcet'al lC, tt'itir1|.frt tl? ol ludicul Coi'lmissioner's Court (thP Precursor of tlv HiSh Courl Sirulh) Ield thal, "fhe rccogfiltion oI a dacoit or othd offender W a person tttho has not pftviously seel hiln is, I think, a /onn of eddence, uhich has LkDays to be taken .olth a 'oistilerable anotnt oI catttloL bccarge fiistak s aft olulqvs Possible in such clsei" (Pi(e 749, c.)lunn 2) ln Alrm t' Stnle (PLD 1967 SC 307) Conttlius CJ, rtw ld nelircrc,l tlt iulStttc l af tltis Cautt' lt:itlL ftgnttl lo Lhz n^tkl DI idttiifutiott Purad.s hdd llfit '"Ihelr lwit rcsscsl opportufrities lor ob9efl)atlon of the atl?tit Toere ertrernely timited- TheY had neoer secn him befote They had but theTe ?icked olt the assatlant 4t thc identilication PAtdiles, is 4 cleat possibility arising out ol thelr statene ts that they uere asslsteil to do 5o by belng showrt the actuseil Pcfion eorlier, (pnge 3138). Ifi bLlstguL!,']1g eLD 19E1 SC 142) Dorab Patel l, roho had deliuted tte iutlltuefll of lttis Caurl, held that, il a loitlt ss had ot gioen a descriPtiort of the assaildnt i -{ hts statet refit to the Pollcc 6t1d identificstion took pllce /ottr ot the enhre fft,e manttls qfter the murder it toould, "re'\ct against proseculiott case- lNSa 115C). hr u n@rc rctct iurlgn'n of tl't;

Courl,lmra, AshfiI D Slate (2001 SCMR 424), uthich uas a lhored by lftivur Mulunmad Chaudhry J, tis C-otttl lPId lhttt, it tlust be efisurcd that the tdeflt{ylng wih1sses must "rtot see thc qccused aftet the cotflt tlsslon of tlu cirne till th? identificattofl pdraile is held irflrnediately altet th4 arrest ol the Perco c as carly ^cclEeil ae p@sibb" (Nge 485P).

8.The Cornplainant (PW-;) had not mefltio,tcd 4,ry feahrres of the ,lsoaila ts eithet lfi the FIR ot in his state'flent recordeil uflilet section 767, C1P.C. theteJore thae a,as no benchnark against tohich to tcst u'l]!.ther tlrc appellatts, who lre had identtfied alter ooet a yeat ol the rii@, aid tDho ha had Neithgt of lht lia'o /leetlrtgly seefl, @eft ifl lact the Bctual .1llPits. Magistrater had certiled rtd i tttc identifcation proceedinSs lhe olhet petsotts, ofio gsl tuhotu lhe aPpellants were plaed, aere of sintilat age, height, buitt and colou'ir.s Thc main obiect of iientiti.ation proceedings is to enable a u'it112ss to ProPcrly identif! a Person inooloed in a cins o'td to efilude the possibilit! ol c witn ss simply con/itaring e /aitt recollcction ot tfiPressiort, that is, of an old, !ou,,8, tall, short, fat, thin, dark ot fair $spect... .

g. As regatuls lts idnttili.atian of lhc arycllanls beF/c the trial courl by |'hsit' iultltuooLt (ll"i'S), S'Lbltl LLh ionl A/rl,rt'i liir'ul (PW-6) and liltess Mulumnuil (PW-7) that loo u'ill not assist tle Prosecutiltfi beca$e tlA e :L0itnes&s had a number ol olryttunitics to yc lhem before lheir stabrl,enls uere ftcarded ln 5B!9]-IgglA (PLD 1985 SC 1), the ,naioity iudgnent of t)lliclt uas authoted by Ajnal Mian l, the learrrcd Jtulge had hetd that an itlentif{catiott \t)han the roitfiess o y hdd i flecti'|{ -gtlrnPse uas nccessary patade ol al qccuseil uho ao\s a s'rsnget as co'flParctl to an -accasel toho thc toitness had Pfttiollsly rnct a nurnbet of tlfies ua3 hlloued in the unantnous @t{.e 25V), Thc same pincipb juigmatt ol this Aurt, delicred by Nasir Aslnm Z$hid L in tlu cnse 'o1lau,,ni annaa l stute (1998 ;CMR 752)' in \'hich ci".,t: tile abdttclec lmdrcntai ei llilh lh? lblrctafi.ftJr sotne h cn 'l att s.i:tL

oacasions lni! seen their Jates ln the Pftseflt tlpe of case the cltl1rlts rtere rcquir.d to be identified lhtough ProPet identtlic4iofl PrcceedlnSs, hou)eoet, the "nflner ltt tohich the ideaiflcation ptoccedhtgs Qere co'irctd llise seiols iloubts (as tiotci aliot d ott th" .rcdtbilit,{ of the Process The iden'fication ol thc cq?ellsnts it court by eye4oibrcsses uho had s'een the culPitl flcctingly oflae urorld lte { conceque'ttiaL" (bold added)

I The recent Supreme Coult case of Mi'ur Sohail Ahfied v state (2019 SCMR 956) ha6 also emPhasized thc care and caution whrch nrust i* fr, ,ft" i".ts in ensuring that an unknown accuseJ is corrh rl\ "r."

identified.

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Thus, havint found that the tole eye witnes8 woqld not have been able to.oEectly, safely and.eliably identify the aPpellants the condu.t of the ldentification pande becomes in consequential.

; (b) With no eye witness evidence to the identity of who carried out the attack the medical evidence Ltcomes inconsequential as it can or v leveal what kind of weapon/device was used. lt cannot identiJy thc person who tfuev, the explosive device.

(c)It is notable that thc aPPellants co! essed lo the ofence wust in police custody. ConJessions trelore the P()lice are inadmissible in evidence and thus we place no leliance on such contessiods- Signiricantly despite all of the aPPeuants conJessing to the offence none of thcm were brought before a rnagisEate to record there conlessions despite them being brought beloie a Etagishate for an identification parade which s€erns to be very odd

(d)The appellants taking the Police to the Place oI wardat is iEelevant as the pollce/rangers already knew where the Place of wardat was'

(e)Nothing was recovered from the appetlants however this was to be expected as the cas€ against them was thlowing a 6re cracker into the .howli which obviously tlky could not h.rve retaincd' (0 That the defence ca3e it that the aPPetlante were detained in illegal custody by the rangers before the oflence and were falsely imPlicated in this case and they have produced various documents and even one DW (acts and in gupport of their contention which based on the particular circurnstances oI the cas€ we Sive some weiSht to.

G) With regard to aPPeUantB Muhammcd Karffam and Muhammed Salnran they were not identiJied as being at the scene of the c me bv any eye witness. They have o! y been imPlicated by their co-accused and it is s€ttled by now that this cannot be us€d as evidence against them unless there is other unimPeachable corroborahve evidence fronr an independent sou{e oI which theIe is none in this case- In this respect reliance is Placed on FedelaHon of PakiEtan v Muhamm€d Sh.fi Muha.armed (1991SCMR 932)

13.TlEt the Prosecution must Prove itrs cas€ against the accus€d beyond a reasondLl! doulrt ard that Lhe bendit oI doubt must to to thc accused bi rral' o( right as oPposed to concession. In this resPect reliance is Placed on the case of Tariq Pervez V/e, The State (1995 SCMR 1345), wherein the Supleme Court ( has observed as followst-

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"lt k tettted lalo thot it is ttot reccssary tlut th'le slould bc rnafly circun$lotrces creatit| douhls lf tlrcre is a sifi8te circumslanLz' rthich .renti reasotuble dotbt in i P defit mi d about lhe guilt of lhe uccusctl, then tl4 ac.]used .lltlt be entitled to lht beneft nol as a 'nattet ,. of grrce and concession bttt ds a ,nattet ol iShl ' 1{. For the reasoru discussed above by extmding the benefit of the doubt judgment to the appellants they are all acquitted oI the chatge, the imPugned asidc, their aPPeals aie allowcd and the aPPellants shall be rcleased is$et unle$ wanted in any other custody case.

15.The aPPeals stand disPosed oI in the above terms'

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