MOLA BUX @ MOLU S/O MUHAMMAD JUMAN (Appellant) VS THE STATE (Respondent)

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IN TTXE HI G H CCUITT OF S.iI\iDH AT -KARACEtI P!esent:

I Mr. Jusdce Mohnfirnail Kaitn Khdl Agha l Mr, Iushica Khadirn Hussali Tufiio,

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I SPECIAL CRIMINAL A .T. APPEAL NO.2O8 oF 2020

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Appellant: Moula Bux @ Molu son oI Muhammad Juman through Ms. Humaira MemorL advocate tit Respondent: The State through Mr. Abrar Ali Additional Prosecutor General,

Date of Hearing: 29.03.2022

Date of Announceinent 45.44.2022

U MENT

Mohammad Karim Khan Agha, J, Appellant Moula Bux @ Molu *ri ol Muhammad Juman was charge sheeted to face his hial in Special Case N osbf of 2018 arising o.r" of FIR No.21 ;i 2!72 r/s. 392i i97 /353/324/3Nr/324/34 I r/w Section 7 ATA, 1997 registered at t?S Sher Shah Karachi and was c vide impugned judgrnent dated 30.11.2020 passed by the leamed Judge, Terorism Court No,ll, Karachi u/0.302(b) Prc for life irnprisonment till ts aJive as Tazi'r and u/s.7(1)(a) with Im1)risonment for IiIe but with no fine lor reasons that the accused was given advocate to defend fum at State expense. I

2.The brief facts of the prosecufion case as narrated in thq lodged by fIR l

comP lainant Waseem son of Shoukat are that he lives in Hoise Baba rVada Shab Babar Manzil Karachi having phone No.0300-8275436 ard works at A1lah Steel Godown near Tanga Stand which is owned by his matemal On 04422072 at about L530 houls he was present in Godown Mohammad Riaz son of Mohamrnhd Anwar when two boys who Baloch b1, app6616116e came and tDok oLt fire arms arld snatched his mo phone China and took tlvo and hall lacs which were in draws and flom Riaf his mobile phone Nokia 10x01 was also snatched, They had inJormed the Po who were sitting at Imambalgah saying that two boys going on motorbike committed dacoity in their Godown on ILe arms whereuPon Police chasing them. Those accused peisons seeing police coming towards them

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firing at the pollce. The Police retaliated meanwhie Police mobile o{ rF also arrived at the scene whose oflicials also started firing. By the firing df the accused one policeman afld one Passerby and one child got iniured. c minals left their motorbike No.KEI-1709 maker Unique and escaped. mobile olficer whose name was known as SIP Naseer Magsi sent d Raheemullah and other injured in Edhi Ambulance to Civil HosPital, The of the child was known as Rida Shah daughte! of Muneeb Shah aged 74 years old and the name of passerby is Shahid, The name of t$irred ASI la ,:l came to know as Raheemullah. He can identily both accusediperpons iI before him. His case is against those two Persons for taking two and haif lacs, his mobile and mobile phone of Iriend ifljuring ASI Raleemullah and child Rida Shah. His claim is against persons for killing ASI Raheem Shalu child Rada Shah arrd injured Shahid'

3.Ajter usual investigation the case was challaned and the {pp sent uti to face kial. He Pleaded not guiltv and claimed trial'

4.The prosecution in order to Piove its case examined 11PWs and e d vaiious documents and other itefns. The statement of accused was under Sectiqn 342 C!.P.C in which he dfnied aU the allegatiiihr tdveled him. He did not give evidence on oath or call anY DW in sulPort oI his case

5.AIlcr hearing the Pa1:ies and apprecia';ing the evidence on record th! court convicted the aPPellant and sentenced him as set out earlier in] judgment, Hence, the aPPellant has filed this aPPeal against his conviction'

6.The facts of the case as well as evidence produced before the triat find an elaborate mention in the itnPugned iudgment dated 3q .71.2020 hete so as to the trial cou* and, thelefore, the same may not be reDroduced and unnecessary rePetition' iduplication

Leamed counsel for the aPPe[ant has contended thf! the

this clpe b)'r the completely irurocent and has been] fatsely implicated in

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order to 6how their efficiency; thit the eye wihress is a Put uh wihess even if the eye wi not present at the time of the incident and altematively was Dresent his identilication oI the aPPellant as the Peison *ho Jfued upon in deceased canltot be safely relied upon; ihat there are r'aior contradictior's evidence of thd PW's which males it unreliable;

that the emPties were serlt for

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ISL after a delay of one month and as such the FSL report cannot be sajely upon and as Euch the appellant for any or all of the above reasoru be acquifted of the charge by extendi4g hirt the benefit of the doutt. In (,u of her contentions, she placed reliance on the caoes of Javed Khan alias Bacha another v. the State and another (2017 SCMR 524) and Mian Sohail Ahmeri otheE v. the state and others (2019 SCMR 956).

8.On the othe! hand the

complainant fully supported the prosecution had proved should be dismissed,

9.We have heard the arguments of the leamed counsel for the well as leame<i Additional Prosecutor Genelat Sircih and gond through the evidence which has been read out by the learned counsel for the aP the impugngd iudgment with thdir able assistance and have rclevant law'including the case law ci6ed at tlle bar.

Based on our reassessment df the gvidence of the PW's; especially witr,.esses, the other witnesses including medical lePorts, recoiery of em the scene of the incideflt we find tlut the Prosecution has proved bey a reasonable doubt that ASI Raheemullah (the deceased), on 04.02'2072 at t 1530 hours was shot and murdered by fiearm aJter police encounter with the Persons who committed the Steel Godown Shershah Karachi.

11.The only iuestion teft belore us therefore is who cafiied out the Iired at the police dulin8 the encorinter whlch lead to the mulder o{ the on account of firearm iniuries at thd said time, date and location?

12.Afte! out leassessment of the evidence we find NOT proved beyond a reasonable doubt the charge wluch he was convicted for the lollowing reasons;

to the

in detail below;

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entered into an encounter with the robbers whilst they were . escaping on their motor bike. He gave lts evidence to similar effect and noted in his FIR that the lobbers were Baloch and were young and he could recognize them iI he saw them again. He did not give any hulia of the robbers who also fired upon the police in his FIR. Admittedly it wa6 a day time incident and he ought to have got a good look at the lobbels howeve! the lobbe$ wele not apprehended until 6 years after the incident. Whm the rob\ers which included the appellant appeared before an identification parade held by the judlcial magisiate the eye wikress was not Jble to identif-. ihe appellant a! )eing one of thc robbeIs due to i1 his own worris lapse of over' 8 yeals since the incident. He lIas declared as a hostile witness and cross examined by [he prosecution whereby he denied that he refused to identify Ir," accused because he was ajraid.

As such this eye wihress was not able to correcdy identify roQbers including the appellant who also had an encountet q) the police and caused the death of the deceased by firearm as :uch his evidence is of no relevance in determining whethei appellant was oire of the pers 0115 who committe.i the offences so charged.

(ii)Eye witness PW 7 Wazir Sultan wae a police olficbr who present with the decdased at the time of the incident. to his evidence PW 8 Wiseem inlormed them that dacoits had ro them and are going on motor bike wheleupon he and tl-re chased them ofl foot whereupon the dacoits lired at them lead to one passer by and one gid being iniured. They retumed and one dacoit was irljured and took shelter behind a bus-and upon the deceased who received bullet injuries to his chest died on the spot.

He gave no hulia of the appellant and did not even say in eithel 5.161 C!,PC statement or evidence that he could recognize dacoits if he saw them again. Admittedly this was a day incident however the eye witness did not know tlle belore this incident ard would have only got a fleeting r,l ol him as he was escaping on his motor bike who they were after on foot. The exc hange oI file was not from palticularli close range as the decease{ had ro blackening aro ufld his fireaim r-ound hnd this eye witness would have had in the heat of a cha! exchange of fire whele he and the apPellant were both taking coi very little oppoltunity to get a good look at the aPPellant.

The identification parade {vherd the eye witness Picked out I appellant as being one of the robbers who shot the deceased fircarm was held 6 years after the incident and due to this lo time lapse, the fact that the aPpellant would have only gpl a -eeting glimpsc oI an unknowr. nPPellant and hii failure to gi any hulia of the appellant we find ihat we cannot rafely rely onl tf1is eye witness as having corectl y identified the appellant as bei ng one of the dacoits who fired on the deceased especially as it t] .as t

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to him in cross before the parade

With regard to the importance suspect the case of Javed tr(han V State (20U SCMR 524) conceming the necessity for an earIy hulia/description of an accused by an eye witness before an idefltification parade and the need to stdcdy follow the rules govelning idefltification Parades h.id as under at P.523 to 530:

"7. rNe haoe heard the leamed counsel and Sone through the ftcof d The ptQseadoa @* resk ot IE posltloc i ptoceedings afld the Forensic Science Laloratory ftporl states that thz *tllct ustug sent to it (t hich tDns shted tq been picked up from the crime s@tB) was fred ftont tlg safie (t hich was recaoered frofi Raees Khnn in another case). We tkereforc ptuceed to corlsider both these isPects of the case, As regards the idefiiificatign ptocectiings afld theit cott there is o lortg lite of Pfttzilefits stati S thqt proceedittgs ,rust be clftfully cotttlucted In 7).

Enryror (AIR 7g2g Sid 749) Perczoal, IC, @riting fo1' the I Cofirnissiotlcr's Co rt (the precursor of the High Coutt '''.4 si hetd tlat, '"Ihe ftcoSnltiol of a dacoit ot othet offefld'er I pelson urho has not Preltiously seefl hirrt is, I thinh a ,f eoidence, which hae ahbays to be tdkefl with d co s amo flt o/ cautTon, becalt:;e fiistakes a-re 6l@4ys possib srch c6es" (pege 1 49t column 2). It Alim a. Statr (PLD 967 ii SC 307) Comelius cl, who had dclioered thc iud$ncnt of this Court, with regard to the flatter of idefl rtca on ?arades Id, that, "Their lwitflesses] opPorh ities fot obsetuatiotr the cllpit roerc e$trefiely liaited- They hail xeoer seet befote. They had picked out the assdilaflt 4t the i.lentilica tion parades, but there is a cleat PossibiliE ot-tt of their slatefieflts that they @efi assisted to do s by l i

being shotDfl the acqEed Perscn e4 ie/' (P48e 313E) I Ldl

Pasand r. Slole (PLD 1987 SC 742) Dorab Patel l, who harl delioered the judStuent of thi6 Court, hed that, i/ a @itness i ,tot gioen a desc'{plTort of the assdildnt i,t his sta to the Police dnd l.renttflcatiot took pldce fou or fk)e alter the fiuder it wotld, 'rcact agaiflst the ")dr" prosecutiot cdse" (Page L45C), ln q nore re@nt iudgment this i Cturt, lfiran nAshraf o Statt (2001 SCMR 424), whidl r :..thoredby lftikhat ltuhamntd Clnudhry J; this Court hekl

it ,fllrst be e sured that the idefiif-llittg ltitnesses fiust ,10t 6ee the accused dfter the corftnissiofi of the cifie till the idertificatiofl pafide i8 held inrflediately $frer the ,l the 4c sed Perso nsas ea y as possible" (Page 485P)'

8.The Corttplqinint (PW'') had 'tot fiefldoned 4"Y the r,ssai&,rtts etther ifl the FIR or itt his s "f recoriled utiler sectiofl 767 C|.P,C. therefore thete t

betchmark ogqiflst tt hich lo test uthether tt" opp"ln)t", who he had tattlied aflei ovet a yeat of the ctime, and who he ttad fl*tittgly seefl, @erc ifl fAct the actual cltlprits, Neithar of the tr1o Magistratcs had certifed tll^t i1 tlg ide,tificatiofi ptoceedings thc otler per:ons, amongs: 'hatt the appellants uere placed, wete of similat age, hcight, b'tilt hnd colouing. The maia obJ.ct ol ideftificatiort proceedinSs is to il eflable a utlt taf,s to Ptopetly idettily a persot inooloed in a cine d tl to e*luda the possibilitr of a utitaess simply cofi/in ring a fdbtt recollectiofl or ifiple'siott, that is, ol4 uouflg, tdll, short, fat, thirt, ddrk or fdit s spect' 1S let anothel aspect to ttlE rrutter of identif@tion of tlu an "f this case. The Complainani had flrtlEd three a'iher Wlsonl auld recognizz the assaila/.ts, but he did not ne tbtt Su Mehmood Ahtud Kun (PW-6) as one of then.

Subedar Mehmood Ahntd Khan arfle fotuard to idcntifu the appellants, giyificintly, ,rofle of the three mefltlofled by the ComPlaitaflt ParticiPated ifi he idertificati on proceeditgs dfiil two were flot etefl pto as iDitnesses by the Prc1e tion, Duing the proceedings both the oppellants had itformed Magktldt6 wlto toefe cofltllctitg the id ploceedings, anil before the identilicdtion P commenceil, that they had earliet beet shourt to I @itnesses, The MagisfiLtes rccorileil this obiection of apP eltaflts ifl thei repofts bllt slfiprisi,lgly di'|'tot to it, tbhich cdtt ort ly be cateSorized as a seious lapse oa part. Thefelorc, for oll these ftasorts rcliance cL,tnot be p laced. upon the rePort of the identification in .ohich the dppellants were identified.

g, As regads the identifqtiofl of the apPell'ntE before the tial aurt by Nasir Mehboob @W-5), Stbedar Mehmood A Khafl (PW-6) AND Idress Muhammad (PW-7) tlltt 160 will assist the Proeution becduse these witnesses had a t In opportuni ties to see thembefore theit statefieflts weft SlatP IJ. Farfian (PLD 1985 SC1), thc n4onry i dgntrnt of t as outhored W Airnal Mian L the leafled iudge had held t an idanif ication parade'.)as fiecessdry |thc,t the only had a flee titg gtinpse of at accused who strdflget 4s corrtPq rcil to dfl accused who the wittess pteoiousty ttbt flumber of tbrcc (Page 25U). The pittcipk t'olloued ifl the uflaninotts i dSfiznt of this delioercdby Nns:n AsLam Znhid l, in tfu use of Mtnur

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abductee had Stdte (1998 SCMR 752), irl uhich case th!

nith the abfutdors for sofie tile alld ofl se|'vfiL occasiotls the fare6. lfl the pftseflt type of case the cul?rits rcquircd to bc idettified through proper idcttiJica ptoceedi.ngs, houreoer, the fianfler itt @hich ide tilicatio t ptoceedhgs were conilucteil taise

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do bts (as noted abooe) o11 the cre.libilitlt of the pro cess, The idefltilicdtion of the appellants ir coutt W eye' ii

@itnesses who had seen the culprit$ fleetirtgly once urott Ll be iflcoflsequefltidl" (bold added)

The later supreme cqurt case of Mian gohail Almed V State (2019 SCMR 956) has also emphasized the cale and caution which must be taken by the courts in ensuling that an unkno$'n accused is i correctly identilied.

With regard to the conduct of the identification Parade itsell in .ase we note tlat the rules goveming a saJe identilication were also largely not followed as for instance all oI the d i were diflerent and not the same which would make the a stand out and no CNICs ot addless was taken from most qf the dummies and the accused being in police lock up for 6 days to rl the identification parade would have Siven the eye witness was a police o{ficer ample oppo*uflity to be shown to him the identification parade as claimed by the aPPellant In i respect reliance is ptraced on the ca,se oI l(unwar Anwar Ali (PLD 2009 sc 488).

As su(h now that we have found that the Pro6ecution hao not been a to prove the (orrect identification of the appellant as the one of the person' s ho i carried out the robbery , engaged in the encounte! with the Police and at i the deceased the prosecution case must fail against the accused. I Even otherwise we have also noted the followin8 defects in the on

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(b)That no weapon was lecovered from the aPpellant and as such the emptles rccovered at the scme and positive FSL are of no assistarce the prosecution case in linking the appellant to the crime. ii

(c)The prosecution made no effort to bdng on record the evidence the li indepefldent injuled eYe wihress Shahid who would have been one the , best eye witnesses or Mohammad Riaz who was also Plesent at the oI the robbery anr:l would have gol a good look at tl'i(] robbels.

(d)That it does not aPPeal to logic, common$ense and feason ta PelsOn in lock up for offences under the Sifldh Afms A(t 2013 Explosive Substances Act 1908 would conJess befole the f 'rice an offence 6 yeas after the incident which carried the death Penaty w pdor to such confes6ion there was not a shled of evidence especially when the offences for which he t\ras arested only da maximum sentence of X4 Yea!5 under the ATA. Even I conJessions befole the Pqlice are i.,admissib le in evidence and fur do,1bt is caste on such coflIession when the apPellant was not ed belore belore a magishate to recold his bonfession desPite being Prcduced a magistIate lor an identification Palade.

(e)It is also some what susPicious that no deParture entry -was !rvel .r.oduced for the deceased who was in plain clothes as oPPosed to P9 lice no uniform and eye witness Pw Walr who was also-a Police rnan anq issued alrns evidence was iroduced that they wele on duty or had been and ammunition. .

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Ioot lt il have inJormed by the complainant who had just b€en robbed that the lobt ili had cscaped after the rc on motor biie? i

(g)How was it possible the Eppellant, who was shot in the le& to escape especially as police mobile tufned up and joined the .t.

encounte! as per evidence PW 2 Nageer Magsi who was also a police oIficer.

(h)The fact that the aPPellant and his acquitted co-accused took the to the wardat is inelevant as the police aheady knew where the was.

(i)In short the entire Prosecutron case does not apPear to ring true'

13.It is a golden PdnciPle oI jurisprudence that the Prosecutiofl prove its cas€ againEt the accused a reasonable doubt and that the of doutt mugt go tro the accused way of right as opposed to In this respect reliance is Ptaced on case of Tariq Pervez V/3. T'he State

SG\,IR 1345).

74.Thus, for the reasons above by extending the benelit oI the doubt to the appellant the is acquitted of the charge, judgment is set aside, the aPPeal appellant shall be unless wanted in anY other casel

15.The apPeat stands of in the above terms.

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