MST. HAJIRA BIBI @ SEEMA W/O ABDUL HAMEED & ANR (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COURT OF SINDH AT KARACHI

Present:

Mt,lustice Moham Md Karim Khan Agha Mr. Ittstice Khadifil H ssaifi Tuniol

CRIMINAL IAII- APPEAL NO. 125 OF 2O2O A"/W

CONFIRMATION CASE NO.03 OF 2O2q

Appellants: Mst. Hajira Bibi @ Seema w/o Abdul Hamec<1 and Msr Shaina HamePd @ Shado d/o Abdul Hameed through Mr.

Muhammad Ilafi, Advocate.

Complainant: Abdul Qaseem S/o Abdul Hameed through Mr. Amir Mansoob Qureshi,

Respondentr The statc througl- Mr. Abrar AIi Khichr. Additional Prosecutor General. Sindh.

CITIMINAL TAIL APPEA t. No.185 0F 2020 Appellant: Haroon @ Sher Wali S/o Ghulam Hazrat through Mr. Nadeem Ahmed

Complainant: Abdul Qaseem S/o Abdul Hameed through Mr. Amir Man'oob Qureshr.

Respondent: The State through Mr. Abrar Ali Khichi, Additional Prosecutol General. Sindh.

Date of Heain8: 71.04.2A22

Date of Announcement: 22.04.2022

IUDGMENT

Mohammad Karim Khan Agha, J. Appellants Mst. Haiiia Bibi @ Seemi wife of Abdul Hameed and Mst. Shaina Hameed @ Shado d/o Abdul Hameed were charge sheeted to lace their tdal in SPecial Case No.681-A of 2019 arising out of FIR No.72 of 2019 under section 302/201/202/1'09/34 PPC registered at PS Tamoria, Karachi. The appellants, vide impugned judgment dated 27.012020

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passed by leamcd Ist Additional Sessions Judge/Model C minal T al Court (MCIC) Karachi Central wete convicted u/s 265-H (ii) Cr.P.C. for olfcnce under Section 302 (b),34 PPC r/w Section 109 PPC and both sentenced to death as T/zit t/s.302 (b) PPC subject to confirmation by this court. Both accused were also ordered under section 544-,4 CI.P.C to Pay compensation to the legal heirs of deceaserl Abdul Hamied Its.10,00,000/- each (RuPees Ten Lacs each) and in case of default in paynent, they shall sulfer Sl for six months more. The aPPellants Mst. Hajira and Mst. Sllaina were further convicted u/s.202 PPC for intentional and cleliberate omissioll to info n about the offence desPite being well aware oI the same in order to screen therrselves from Plosecution and were sentenced to suffer R-L for 06 months or to Pay fine of Rs.5,000/- (Rupees Five Thousand only) and in case of default thereof they shall sufler Sl Ior 05 days more. The sentences were to run concurtently and the aPPellants were given the benclit of 5-382 (B) Cr.PC.

2.Appellant Haroon @ Sher Wali son of Chulam Hameed was charge sheeted to face his tlial in SPecial Case No.681 oI 2019 a sing out of FIR No 72 of 2019 under section 302/201/ 202/ 109/ 34 WC registered at PS Tamoria, Karachi' Appeltant, vide imPugned judgment dated 27.01.2020 Passed by leamed Ist Additional Sessions Judge/Model Criminal Trial Couft (MCTC) Karachi Central was convictcd and sentenced to suffer LiIe Imprisonment as Ta'zir u/s 302(b), 3a PPC as he facilitated main abscondhlg accused Saoed Wali by driving motorcycle to accomplish the murder of the deceased tluough the abetment oI accused// appellants Mst. Hajira and Shaina. APPellant Haroon was also extended benefit of section 382-il Cr.P.C.

3.The biief facts of the Prosecution case are that comPlainant Abdul Qaseeir son of Abdul Hameed statcd that on 18.02.2019 through Phone call he came to know that his biother Abdul Flabib son of Abdul Hafreed has been murdered due to firing ancl dead body shifted to Abbasi Shaheed HosPitai. On such information hc reached thc hosPital where he saw the dead body of his brother' The police conducted legal formalities, thereafter dead body was handed over to them for funeral ceremony. I_Ie {urdlel disclosed that he inquired and came to know tha! on 18.02.2019 his brothei Abdul Flabib left the house to Pakistar. Llouse in his vehicle Black Colol Land Cruiser. When he reached at about 2025 to 2045 at seruice road, Sarena Mobile Market roacl near Sakhi tsIassan Chowlangi, sofre unknown accused havc made fires upon him and injurcd him thus hc died

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at the spot. Ile further stated that his brother was member of Pak Sarzameen Party (PSP). He also remained candidate fol MPA from PS-122, hence instant FIR was lodged against unknown accused.

4.During investigation evidence was found that appellants Mst. Hajira Bibr and Mst. Shaina l-{arneecl (the lady accused/appellants) had abetted the murder of the deceaserl by absconding accused Syed Wali who was facilitated by appellant Haroon. Alter completion of investigation LO. submitted charge sheet against the lady accused for abetting tlre murder of the dcceased to which they both plead not guilty and ciaimed t al- Since appellant Haroon was a minor his rrial for facilitating the murder of the deceased was separated from that of the Iady appellants and a separate charge was framed against him to which he aiso plead not guilty ard claimed trial.

5.Although the lady appellants and I-Iaroon were tried seParately and convictecl by scparate judgments since there appeals ale interconnected and a se out oI the same FIR where virtually the same evidence was lead in each case we intend to dispose of both thesc appeals and conJirnation relerence by tl'is common judgment.

6.The prosecution in order to prove its case examined 22 wihlesses in each trial and exhibited va ous documents and other iterns. The statements of thc accused were recorded uncler Section 342 Cr.P.C in each trial in whicll they deried all the prosecution allegations and claimed false irnplication. The accused declined to give statement on oath under section 340(2) CI.P.C in c{isproof of the prosecution allcgations and did not call any DW in suPPort of their resPective defence cases.

7.Altet appreciating the evidence on record the tlial court convicted and sentenced the appellants (the two lady appellants and apPellant Haroon) as set out earlier in tlis judgment vidc two separate judgments as mentioned above. i-lence, all thrce appellants have filed appeals against their convictions.

8.The facts of the case as well as evidence produced before the trial court Iind an elaborate mention in the impugned iudgments lesPectively Passed by the trial court and, therefore, the same may not be reploduced here so as to avoid duplication and unnecessary repetition.

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9.Learned counsel Ior the lady appellants has contended that the appellants ale completely innocent and have been falsely implicated in this case by the police and the complainant and this is why the FIR was lodged afrer a delay oI three days during which time the complainant party had cooked up a false case in league with thc police; that the appellants arc not even named in the FIR; that the only evidcnce against them was the voice recording Iound in a rnobile phone which had been foisied on them by the policei that there was no eye witness against them; that there was no other evidence to connect tllem to the murder of the deceased and thus for any of the above reasons the appellants should be acquitted of the charge by extending them the benefit of the doubt. With resPect to appellant I-laroon leaflled counsel contended that he was comPletely innocent anci like the lady appellants had been falsely implicated in this case by the complainant party in league with ttre police hence the thrce day delay in Iodging the FIR; that the two alleged eye witnesses were Plantecl witnesses and at best were chance witnesses whose evidence could not lre safely relied upon and even !y otherwise woulcl not have been in a position to sately reco8nize hirni that i1e was shown to the eye witness prior to the identification Parade which was not held in accordance with the Iawi tllat no recovery had been made from him; thal dlere was no other evidcnce to connect lim to the murder of the deceased and thus lor any oI the above reasons the appellant should be acquitted of the charge by cxtending him the bcnefit of the doubt. In supPort oI their contentions thev placed reliance o11 thc cases of Muhammad Khan versus Maula Baksh and another (1998 SCMR 570), Ghular,r Qadir and 2 other versus The State (2008 SCMIi 122:l), Lal Pasand verus The State (PLD 1981 SuPreme Court 142), Sahib Gul versus ziarat Gul and others (1976 SCMR 236). Syed Saeed Muhammad Shah and another versus The State (1993 SCMR 550), Mir Afzal Versus The State (2008 P.Cr.L.l 881), State through Advocate-General, Sindh, Karachi versus Farman Hussain and others (PLD 1995 Supreme Court 1), Rahat Ali Versus The State (2010 SCMR 584), Shakeel Nawaz and another Versus The State and others (PLD 2013 Peshawar T8), Liaquat versus The State (2014 YLR 2148), Kanwar Anwaar Ali, Special Judi(ial Magistrate (PLD 2019 SuPreme Court 488), Mst. Asia Bibi Versus The State and others (PLD 2019 SuPreme Court 64), Muhammad Fiaz I(han Vetsus Aimer I(han and others (2010 SCMR 105), Muhammad AEif versus The State (2017 SCMR 486), Iftikhar Ahm€d Versus The State (2020 MLD 1862), Noor Muhammad versus The State and another (2010 SCMR 97), Bakht Nawas and another Versus The State and

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another (2020 YLR 1685), Muhamnrad Ashraf alias Ac.hu v€rsus The State (2019 SCMR 652), Muhammad Saddique Versus The State (2018 SCMR 71), Mansabdar Versus The Stat€ (2020 P.Cr.L.J Note 47), Nazeer Ahmed versus The State (PLD 2009 Karachi 191), Muhamnrad Akram Versus The State (2009 SCMR 230), Abdul Baqi Versus Dawood and another (2020 P.CI.L.J 368), Rasheed Akbar Khan Versus The State (2018IJ.C{.L.J 1495) and Shahzada I(han Versus The State (2020 YLR 1048).

10.On tire othff hand lea.ned Additional Prosecutor General appearing on behalf of the State and learned counsel for the complainant fully suPPorted the impugned judgments against the lady appellants and appellant Haroon. With regard to the lady appellants they contencled that numerous witnesses had hearcl the lady appcllants conspiring, instigating and planDing absconding accused io rnurder the dp(eased o11 account of brr\inps< ancl interndl differen(es; that dfter the murder a number of phones had been recovercd {rom the lady appellants one of which disclosed that the lnurderer hacl sent them a voice message confirmin8 ? that the nurdel oI the deceased had been carried out which had been forensically examined by experts to prove its veracity and as such the aPPeals of the lady appeilants shoulcl be dismissed and due to the Palticularly brutal nature of the olfence whereby the deceased had received 4 bullet wounds including one to the head the confinnation reference shoulcl be answered in the afli native. With respect to appellant Haroon they contended tllat he had been recognized as being with the absconding co-accused at the time when the absconding co- accused fircd at and nurdered the deccased; that he was seen driving the bike from which the deceased fired hom and escaped the scene; that the two eye witnesses were not chance witnesses and there evidence could be safely reliecl upon in terms of the corect identification o{ Haloon at the scene oI the murder a1ld as such his appeal should also be dismissed. In support of theit contentions they placed reliance on the cases of Muha mad Nadeem alias De€mi versus The State (2011 SCMR 872), Shoukat AIi Velsus The State (PLD 2007 Supreme Court 93), Shamsher and another versus The State etc (1973 SCMR 69), Muhammad Arshad and 2 others Versus The State (Pl,D 1996 Supreme Court

11.We have hcard the arguments of the leamed counsel Ior tlle appellants (lady appellants and appellant Haroon) as well as learned Additional Prosecutor General and learned counsel for the complainant and have gone through the

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entire evidence which has been read out by counsel for the aPPellants, and thc impugned judgment with thc able assistance of learned counsel and have considered the relevant law including the caselaws cited at the bal.

1-2. In essencc the prosecution case divides into two Palts:

(a)Whether the appellants Ms.Hajira and her daughter Shaina (the lady appeliants) step wife and step claughter of Abdul Flabib (deceased) abetted the murder of the deceased and (b) Whether the deceased was murdered with abetment oI thc aforesaid Iady appellants by the absconding co-accused Syed wali who was facilitated in the murder by appellant Haroon.

The first issuc is wheth€r the deccased was actually murdcred

13.Based on our reassessment of the evidence of the PW's, especially the two PW eyewitnesses, and tlle other prosecution witnesses esPecially the medical evidence including the post mortem rePort of the deceased, recovery of emPties and the vehicle in whicl, he was murdered at the cdme scene we Iind that the prosecution has proved its case beyond a reasonable doubt that the deceased was shot and murdered lry firearm ot1 18.02.2019 Irom 2025 to 2045 at service load opposite Serina mobile market near Sakhi Hassan Chowrangi Sector 15-A/1 Buffer Zone Karachi.

The next issue is r.hether the two lady aPpellants abetted the murder of the deceased.

74.After our reassessment of the evidence we.find that the Prosecution has proved beyond a reasonable doubt the charge against the lady aPPellants for which they were convicted for the Iollowing reasons keePing in view that each criminal case must be decided on its own particular lacts and circumstancesi

(a)We do not Iind the delay in lodging the FIR to be fatal in this case based on the particular facts and circumstances oI this case. The complainant was informed about his btother's lnurdet whereuPon he reached the hospital. After tlle post rnorten he took the body Ior burial and then lodged his FIR. There is no evidence that he consulted with the police. The lady appellants are not even narned in the FIR as at that time he did not know tllat they were involved in the murdel. If he had wanted to falsely implicate the Iady apPellanls he would have named them in the FIR. Ever otherwise he had no enmity against the lady appellants and had no reason to imPlicate thcm in a false case ancl no benelit has been gained by the prosccutioil in the delayed FIR and no Prcjudice caused to the appcllants. In this respect reljance is placed on the case of

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Muhammad Nadeenr alias Deemi Versus The State (2011 SCMR

(b)It has come in evidence that the lady appellants were step wife and step daughter respectively of the deceased who had some intemal/business dispute with him.

(c)According to the evidence of PW 2 Abdul Qasim two days beIole the rnurder of the deceased he went with his nePhew Abdul Aziz to shoP for vegetables for his step mother. After buying the vegetables he entered the house oI l,is step mother where he heard the lady appellants and the absconding co-accused making a plan to murder the deceased. He told the deceased about the plan who told him that Cod would protect him. His evidence is corroborated by PW 3 Abdul Aziz in all material rcspects. The evidence of these witnesses was not dented du ng cross examination. Admittedly the witnesses were related to the deceased but no enmity oi ill will was su8Sested against either oI them ancl as sucll we have no leason to disregard there evidence. Furthermore PW 18 Ms Wardat Izar who was an independent witness and friend of aPpellant Shaina Save evidence that i11 the second week of February when she visitecl Shaina's house she heard her mother (Hajira) ancl Shaina saying that the deceased had not dole well with them and that they would take there revenge through Hajira's brother i.e Syed Wali who was involved in cdminal , activitics (as ,evealed by his exhibited CRO) and was the brotlter oI appellant Hajira. Appellant Shaina also told her latel in effect that the nurder of the deceased had been carried out and the next day she {ound out the deceased was dead. She had no reason to falsely inplicate the lady appellants and her evidence was not at all dented during cross examination and as such we believe her evidence.

(d)PW 20 Muhammed Nazim Rao who was the 2id and last IO oI the case having taken over ftom the odginal IO PW 11 Zulqainain. According to his evidence on 07.03.2019 he received spy information that appellant Hajira was involved in the cdme so he went to her house- At her l,ome he seized 3 mobile pl,ones including an iPhone which phones according to apPellant Flajira belonged to hcr daughter appellant Shaina. He found an audio message in Pashto on the i-phone and he called PW 6 Moosa to translate the message as he could not undeEtand Pashto whilst PW 6 Moosa could. According to PW Moosa the message concerned the murder of the deceased on which stated about the deceaspd being shot in thc head and for her (appellant Hajira) to keeP quiet and delete the messages. Appellant Hajira disclosed that the voice message was lcft by her brothei absconding co-accused Syed Wali and informec{ him that Syed Wali had murdered the deceased on Payment of 12 lacs He auested Appeliant Haiira wllo informed him that deleted messages on i-phone had been done by apPellant Shaina so l,e also arested her. The translation of the audio message is reProduced as under {or ease of reference;

Exh,27l Hiira's broth €r Sved Wali

Audio messaqe No.1 Urdu Translator.

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Keep quiet, site down, I did not see your any clevemess and I did not see your sNartness. (Talked twice time). Don't show smarhess).

Don't expose yourself before anyone. Keep quite this way as you have no knowledge. I fled by hitting fires on his head.

(Sir time of message is 18.02,2019 at 08:50 p.m. It is clear from voice that this audio metsage has been sent by running nrotorcycle. Our crime time i9 from 08:40 to 08:43 Pnl.)

Audio messase No.2 Now lTow are you and how is your health and what are you doing. (This message is additional one that it not does relate to it).

Audio messase No.3 First & Thircl message aie same

Audio messase No.4 You remain normal as you were. Bullet shot hit on his head. Delete all messages fronr mobile of mother/Ammi and from your mobile too,

Au(tio No.5 Switched off I.D even delete I.D and absolutely delete it.(bold added)

Sd/- in English.

Station House Officer Taimor.ia Police Station Disst. Central I(arachi"

(e)The evidence of PW 20 Muhammed Nazim Rao regarding the recovery of the phones and the kanslation of tlle voice rnessage is coroborated in all material respects by PW 6 Moosa Jadoon who was called to tlanslate the voice message which is also largely ieProduced in his evidence. PW 10 lo:usaf Zai also cotoborates the evidence of PW 20 Muhammed Nazim Rao and PW 6 Moosa who was a police man who was Present at the house whcn the mobiles werc seized fuom the apPellant Hajira and when Pw 6 Moosa ar ved and translated the voice message which was in pashto The abovc evidence is also corroborated by PW '1 Abdul Qaseem the complainant who was present in the house when the Phones were seized and checked fuom appellant Hajira. It is well settled by now that the evidence of a police witness is as reliable as any other witness Provided that no enmity exists between them and the accused and in this case no enmity has been suggested against any of the poiice PW's and as such the police had no reason to lalsely imPlicate the aPpellant in a lalse case Thus we believe the police evidence which is corroborative in all matedal respects. In this resPcct reliance is placed on the case oI Mustaq Ahmed V The State (2020 SCMR 474).Sitnificantly, the first audio message is sent about 10 to 15 minutes after the murder of the deceased and describes the manncr in which the deceased was killed as confirmed by the eye witncsses and the rnedical evidence and ties the lady aPPellants directly to the abetment oI thc murder esPecially as they were rold to delete sucll messages and e-mails concerning the same. The murderer is clearly

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reporting back to his planners, instigatorc and abettors that the job ltas been done. A motol bike is also heard in the back ground which according to the eye witnesses the murderer escaped on after the murder.

(Q The phones which we seized from Ms. Hajira were sealed and sent for forensic examination in Islamabad to PW 21 Masood Ali wl-ro received thcm in seated condition. There might have been a delay in sending the phones and voice rressages but these Phones were sealed on the spot. kePt in safe custody and were received in Islamabad by PW 21 Masood Ali under seal and no suggestion has ever been made that the phones were tampered with. AIter examining the lrlones PW 21 Masood Ali tkough internationally rccogrized methods gave his expert report which revealed that that the i-plrone belonged to Ms Ilajira and that many messages had been deleted Irom it which he was unable to tecover and that the voice message was authentic. This indicates tha( the lady aPPellants followed the voice message to delete all mcssages which may have linked them to the absconding accused Syed Wali who had allegedly muidered the deceased and the voice message creates a direct link between the allegecl murder of the deceased and the lady appellants which they planned, instigated and abetted with the alleged murderer absconding co_accused Syed Wali.

(g)That there are no majol contradictions in the evidence of the PW's and it is well settled by now that minor contradictions which do not effect the nateriality of the evidence can be ignored. ln this resPect reliance is placed on Zakir I(han V State (1995 SCMR 1793).

15.It is true that the evidence against tlle lady appellants is based on circumstantial evidence howcver when the evidence mentioned above is taken in a holistic manner it proves that the lady aPPellants on account of an intemal dispute planned, instigated and abetted the murder of the deceased throuSlr conversations overheard by at teast tluee PW's, that the murder did in fact take place allegedly by the persolt who they had aranged to ca y out the rnurder namely the absconding co-accused their closc relative Syed Wali, that shortly alter the murder based on spy information Phones were recovered from them which belonSed to them which contained an inc minating voice message lrom the murderer'as reproduced above which directly linked them to the Plan, instigation and abetment of tlle murder of the deceased which was also linked back to the lacly appellants through {orensics evidence and that the lady appellants complied with the voice tnail by deleting other incliminating rnessages on their phones as directed by the caller in the voice message who admitted murdering the deceased by shooting him in the head as found by the forensic evidence and as such the Prosecution l'us proved its case againsl the lacly appellants beyond a reasonable doubt and their convictions are maintained/

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as each piece of circumstantial evidence Iinks the dead body of the deceased to the neck of the lady appellants.

76- With regard to sentencing we find that in cases of circumstantial evidence extra care and caution must be taken before handing down the death Penalty and in this case since the lady aPPellants did not actually {ire on the deceased ancl thcir role was confined to abetment, Planning and instiSation and even it is doubtful whether the prosecution has asscrted and Proved the motive lor the murcler of the deceased we hereby reduce the death sentences handeri down to each of the lady appellants to one of lile imPrisonment each with all other fines, compensation and other sentences in the imPugned judgment remaining in tact.

Turning to the appeal of the appellant Haroon.

17- Alter our reassessrnent of the evidence we find that the Prosecution has NOT pioved beyond a reasonable doubt the charge against the aPPellant Ilaroon for which he was convicted for the following reasons keePing in view that each criminal case must be decided o11 its own Particular facts and circumstances;

(u)Although as discussed above we do not find the delay in lodging the FIR to be fatal to the Plosecution case we note that Hatoon was not nentioned in the FIR which was against unlnown person's

(b)We find that the prosecution's case P marily rests on the two eye witnesses to the mutder of the deceased and in Particular his correct identification of the aPPellant as the Person who was present at the time oI the murder of the deceased and facilitated the absconding co-accused in the murder of the deceased whose evidence we shall considel in detail below;

(i)Eye witness PW 15 Ghulam Murtaza. He was working as a cal worker near Sarina mobile market for the last 2 years. According to his evidence on 18.02.2019 he was in fuont of Sarina mobile washing a car when he saw a motor bike come with two Person's on it. He saw tl,e pillion rider get down ftom the bike and nake straight Iire on the Iand cruiser and then escaped on the same motor bike. He inJormed tl,e police shortly after the incidcnt that he saw the accused and he could identify them. This is corroborated by PW 20 IO Muhammed Nazim Rao. He also aPpeared before an identification parade and picked out the aPPellant as the Perso,r wllo was driving the motor cycle without weaPon and made no fire at the time of the mur<{er of the deceased as corobolated by judicial magistrate PW Adil Hyat Sindu.

It seems tl-Iat this witness was not a chance witness although he did not produce any document to show that he was employed as car washer by anyone at Sarina market. I{e is an independent witness who is not lelated to the deceased and his evidence was not dented during cross examirEtion and as such we have no reason toz l0

disbclieve his evidcnce which we find to be reliable and conlidencc inspiring in lespect of the murder and believe the same to that extent.

Ilowever we also note that he had not seen the appellant before, that at 8.30pn it would Ilave becn clark in February, that no source of light was given in evidence, that he was about 25 paces lrom the nrcident when it occurred and at such time the situation would Iuve been chaotic with people diving for cover during the Iiring as stated by the other eye witness PW 17 Ayoub Niyazi in his evidence which is discussed below and he would only have got a fleeting glance o{ the appellant at best. He did not give any hulia of the appellant and recorded his 5.161 CI.PC eye witness statement after a few days of the incident. As such keeping in view the above we find that we cannot rely on this witness as having corectly identified appellant Ilaroon as being present at the scene of dre incident despite him picking out l{aroon in the idendfication Palade.

With regard to the importance of an eye witness giving hulia oI a suspect tlrc case oI Javed Khan V State (2017 SCMR 524) concemin8 the necessity Ior an early huliy'description of an accused by an eye witness be{ore an identification parade and the need to strictly follow the rules goveming identification parades held as under at P.528 to 5301

"7. We lfioe lea the learfied counsel afid gotle lhrough tle recoftl. The prosecutio case rests on the posilirre idcntifcation prcceedin$ and the Forensic Science Laboratoty reliolt tilich states that the bulLel casing sent to it (t|hich oas stated to lmJe bee picked up fron the crine scene) uis Jired fton1 tle sine pislol (?thich uns recoaered from Raees Khan in another cnse). We tllcrct'orc yrcceed to consider both these asrycts af the case. As regarils the ide tificatiot procceilirlgs afiil thcit cohtext therc is a long line of prcceilellts stating that ituntificatioll proceeilifigs 11tust be carefully cofiductcd. h1 Ramzan 1t Empeftr (AlR 1929 Siru{ 149) Perceoal, lC, ,ritlng fot the Judicial Colfi lissionet's Court (the precurcor oJ the High Court of Sinrlh) held lhat, ''Ihe recognition of a dacoit ol othet offefiilet by a perso Taho has fiot ptctioltsly secrl hillt is, I thifik, a form of eoiile ce, uhich has alzoays to be takefi uith a considerable amo nt of cantion, becaus. fiistakes arc aluays possible il sltch cases" (page 1,49, column 2). lt1 AIit l). State (PLD 1967 SC 307) Cornelius Cl, who hatl deliaered llte judsnent of this Court, n)ith regard Io the fialter of identifcalion pnrades held, that, "Theil [TDitnesses] opportlt lities for obsefttation of the c lprit toerc extrcflely lilfiiteil, They hail neoer seen hirfi befoft. They had picke.l out the assailaflt at the iilcntification patudes, but thcre is a clear possibility arising out of their statelflents th.rt thev uerc assisted to do so b11 being shozan the accuseil pe5ofi earliet" (page 313E). ln Lnl Pasand t. Stute (PLD 1981 5C Donb Patel l, ulo had delirtred lhe judgnlent of lhis Courl, held that, if a witness hail flot gioeL a ilescriptiofi of the assailaflt ifl his stutement to thc Police aril identificatiofi took placc fow or fiae nonths after the tn rilet it tooulil, "react agaiflst the cntire ptusecution case" (page '145C). ln n more recent judgl?cnt of this Court, Imrnn Ashraf u. State QA01 SCMR 424), u)hich u)as authorcd by lftikltar Muh\nmad Chaudllty l, this Court held thnt, it must be e sured that the identifyiltg . t t1

x 7.-

zDit esses must " ot sec thc accuseil aftt the commissiolt o/ thc clime till thc identificatiolt parude is held imhtediately aftct the atrcst of the accuscd perso s as eatl! as possible" (page 485P).

8.The Complaiflant (PW-s) had tot nentiotted any feahres of the assdilants eithcr ifi the FIR or ifi his statefiEfit recorded ufidel scctiolt 161 C|.P.C. thercfore therc @os 11o benchmark agaifist which to test whether the appellafits, who he had idcfitified after oou a lcat of the ctime, anil uho he had fTeetixgly seen, were in /act the acttal culprit\. Neitl:rr of the tloo Mngistrates hatl certifed thal i fhc identit'icntion prcceedings tle other persons, amongsl trhonl the appellants nxrc placcd, uerc of sitnilar ase, height, buiLt arul colouring. The nain objcct of ide tification prcceedings is to eflablc a @itness to propcrlq idetltifll d person inttoloeil in a cilne afiil to ercluilc the possibility oI a uitn?ss sitkply onfiffiing a faint rccolleclion or inlpressiolt, that is, o/ a old, lloung, t.,ll, short, /at, thin, dark ot lair suspcct, Therc is yel another nspect to the ntter of identifcation of the c lprits of this cnse. The Complainant had ntned Lhree other persons 'ltho could rccognizc lhc assaihnts, but le did not tlrcntiol| Subedir Mehntood AIt ttld Khan (Pw-6) is one oJ tlEn. Nonetheless Subednr Mcllnlood Ah11ad Khan cftme fonord to identifl/ the appellants. Significantly, ltone of the tfuec percofls ne tioned by the Complainatlt participated in the identi/icatioll Procecdings ani[ ttlro were ot eaell produced as wit lcsses by thc Prosecution, Dltiltg the i.lcntificatiotl procceilings both the appella ts had i foflned the Magistlates urho uerc cofiiltctitlg the idcnti/icatiol1 procccilitlgs, and beforc the identificatiofi ptoceeilifigs comrnenceil, that thcll had carlier bec showrt to the Toitnesses. The Magistrates rccotilcil tllis objection of the appcllants i thcb rcports bnt s rpisitgl'll did flot attenil to it, tohich ca only be catcSoizeil ns a seious lapse o thc patt. Therefore, fot all these rcasofis rclia ce cafifiot be placed upon tlrc rcPort ol the iderltificatiotl prcceedings inT.Dhich the appcllants ucrc idctlti/ied.

9.As reSards the identificalion of the appellants before the triil courl by Nasi Mehboob (PW-S, Subedm Mehmoad Ahnled Khnn (PW6) AND ldrcss Muhant nd (PW-7) lhtll loo ll)illl]ot assist the Proseculian because tlrcse ,itfiesscs fu 1 a nollbct af opportunities to sec them behre thdr sLatenenls tot:re recofiled. ln Sl!k3!t!!t!11 QLD 1985 SC 1), thc nlnjority judgment of uthich uas authored by Ajnlal Mian L the learned judge ha.l held thot a idc tificatioll pataile was ltcccssary v)hcn the ?oitfiess o ly lfid a ftectiflg glimPse of afi accuseil @ho @as 4 sttafiget ns cofip.ttcil to a accuscil zuho the TDit ess had prcoiously nlct o flumbet of tirncs (page 25V). The same ptinciple 70ns follolled h tlrc unanimous juilg e t of tllis Cottrt, delioercd by Nasir Aslmr Zahirl l, in thc case of Mlneet Ahnlad 1t State (1998 SCMR 752), i1 tfiich crce the abductee hfld raniin(d Taith thc abductors fat so e tink and on serreral occasions llttl scefi tltfu faces. I the prcsertt tyPe of casc the cl prits @c/e rcquireil to be idetltified ttuoagll prcPet idchtificatiofi procccilings, houeoer, tle ,nanfier ifi |ohich tllc iientificatio,t lrtoccedifigs uerc coniluctcd laise serious iloubts (as noteil abooe) o,t thc ctedibility of the process. The ideflti/ictttio of thc appellafits in co rt by cyc-witfiesses @ho hail secfl the cltlprits fleetiflglll oflce would be inconscquential." (boid added) The recent supreme court casc of Mia[ Sohail Ahmed V State (2019 SCMR 956) has also cmphasized the care and caution which must be taken by the courts in ensurinS that an unknown accused i, corrcclly idenlitied. ln fncl 5uclr exlri carc and c,rulion in rpl) irt/

on identification parades is an accePted global Phenomena in most criminal jurisdictions as the possibility of delibqately or mistakenly picking out a wrong Person fuom an identification parade and scnding an innocent ntan to jail or ir1 this country potentially to the gallows is very much lecognized and thus most jurisdictions (including Pakistan) have Put in Place mandatory guidelines to greatly limit the chaices oI such incorect idcntilication.

Although it has now becomc inconsequential as we have found that the eye witness was not in a position to co ectly identify the accused at the titne of the incident we also note a sedous defect in thc identification parade which raises doubt as to its legal value as the eye witness dudng cross examination admitted that belore the identification parade, " the lO nade hin urulerctand all the things in PS nboul identiftcotion af naatsed" which is a clcar indication that either the cye witness was shown to the accused Prior to the identification parade or was described to him by the IO Pior to the identification parade wlici'r the appellant claimed to be the case in his 5.342 statement where he stated that the eye witlress was shown to him whilst he was in the custody at the PS and even claimed that this eye witness was a servant of the comPlainant and was a Put up witness,

I (ii) Eye witness Pw 17 Ayoub Niyazi. On 18.02.2019 he was waiting to catch a bus at Sadna market to go l1ome. Accoiriing to his evidence he heard firing and people were running herc and there duc to such firing. He saw two motor cycles whereuPon 4 persons were available. One boy got down from the motor cycle and {ired on the black parado. Then he saw that the person who was driving the motor cycle was of a tender age. He inJormcd the policc shortly after the incident that he saw the accused and he could identily them. This is corroborated by PW 20 IO Muhammed Nazim Rao. His evidence legarding the attack on the deceased is some what corroborative of eye witncss PW 15 Ghulam Murtaza except in respect of the number of bikes and number of Persons who came at the scene on the motor bikes.

We find that evcn iI he was flot a chance witness at best we can only rely on his evidence in respect of the muider and not as to the correct identification of appellant Haroon. This is because as with the other eye witness whose evidence we discussed above it was quite dark, the eye witness only got a fleeting glance oI Haroon in an admittedty chaotic situation where every body was running to save there lives, as per his own evidence he was 200 yards away from thc incident and could not lecognize the type of weapons which the co-accused carded which begs the question as to how he was able to recognize appellant Haroon from such a long distance in the dar'k when no source of light was ever given in evidence, he gave his eye witness 5.161 Cr.PC statement 7 days after the incident and he did not give any hulia in the same and did not even appear belore an identification parade and as such based on the particular Iacts and circumstances of Ilis eye witnesses evidence we lind that he was not in a position to coffectly identify appellant Haroon as being present at the scene at the time of the firing on the,, li

deceased

Sinc€ we have disbelieved the corre(t and safe identification of aPPellant Haroon at the scene of the murdd by the two eye witnesses what other evidence is tl,ere to connect aPPellant Haroon to the murder' The answer is llone.

(a)That appellant Llaloon was not a ested on the sPot but was later auested by the police in an illegal arms case. DesPite there being no evidcnce against him in tltis case he confessecl to the police to an oflence wllich catried the caPital Punishment which does not aPPeal to Iogic, reason or commonsense. Sitnificantly, he was not Produced beJore any magistrate in order to record l-is confession desPite being produced be{ore an identification Parade. In any event his allegecl conlession before the policc is inadmissible in evidence.

(b)Even if we bclieve the eye witness that one Person fired at rhe scene ol the crime according to thefu cvidence that Person was not aPPeliant Haroon.

(c)Thcre is no evidence that any emPties recovered at the scene matched the pistol which was recovercd from aPPellant Flaroon when he was arested in the arms case

(d)The latcr recovered ntotor bike wlich was allegedly used in the crime was not in the name of Haroon and PW 4 Shahid Syed who recovered the motor bike wlich 'ras allegedly used in the cdme stated in his evidence that Zameer who was the Person who was living in the housc from whele the motor bike was recovered told him that the absconding co-accused Syed had asked him to look after the motor bike and not Haroon and as such there is no connection with tlle rccovered motor bike to Haroon

(e)Apart from the eye witnesses no other PW deposed against aPPellant I-Iiroon apart Irorn his inadmissible conlession belore the police. He was not mentioned at all in any Plan, instiSation or ever abetment to murder the deceased.

18.It is a golden PinciPle of criminal jurisprudence that the Prosecution must prove its case against the accused beyond a reasonable doubt and that the benefit of doubt must go to the accused by way of right as oPPosed to concession. In this respect reliance is placed on the case of Tariq Pervez V/s. The State (1995 scMR 134s).

19.Thus, for the reasons discussed above by extending the benefit of the doubt to the appellant Haroon the appellant llaroon is acquitted of the charge, the impugned judgment in resPect oI him is set aside, the aPPeal is allowed and tlrp appellanl Haroon sllall be released unless wanted in any olher cuslod\ cace.

Summarv:

1.The appeals of appellants Mst. Haiira Bibi and Mst. Shaina Hameed are both dismissed however both their sentences are both reduced ftom [he death penalty to lile impdsonment and the confirmation reference is answered in the negative. There convictions shall run concuffently, they sl'ull have the benefit of 5.382 (b) CI.PC and any remission aPPlicable under the law.

2.The appeal of appellant Haroon is allowed and the imPugned judgment in respect of him is set side and he shall be released qnless wanted in any other custody case,

20.Ihe appeals along with conlirmation reference stand disposed of in the above terms

{h tvdc E

JUDGE

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