MUHAMMAD ISHAQUE @ BOBI @ HUSSAIN & ANOTHER (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COUR TOFS INDH AT KARACHI

Prescni:

lurtire .\Iohafimd.l Kttin Kln Agha Mr. lustice Khadihl Hussaifi Tunio, -Mt, SPL. CRIMINAL A .T. AI'PEAL NO.218 oF 2020 CO oN C-lrSE NO.01 OF 2027

Appellants 1) Muhammad lshaque alias Bobi alias Hussain son of Muhammacl lbrahim

2)Muhammad Asim @ Ahmad @ Capri @ Mamo thrcugh Mr.

Hashmat Khalid, Advocate.

Respondent: The State through Mr. Abrar Ali Klichi, Additional Prosecutor General, Sindh.

Date of Hea ng: 1A.05.2422

-* Date of Announcement 20.a5.2022

I UDGl\4ENT Mohammad Kadm Khan Agha, J. ApPellants Muhammad Ishaque alias Bobi alias Hussain and Muhammad Asim @ Ahmad @ CaPri @ Mamo were charged sheeted to face their trial in Special Case No.AJ-2552 of 2016 (New Special Case No.216 of 2019) arising out of FIR No' 163 of 2016 under section 302/324/34 PPC 3/4 ExPlosive Substance Act 1908 r/w Section 7 Anti-Terrorism Act 1997 registered at IIS Sharifabad, Karachi Appellants were convicted vide imPugned judgment dated 1912'2020 passed by the Iearned ludge, Anti'Te orism Court No.XVI, Karachi whereby they were awarded followinlj sentences:

a) For causing death of the deceased Faraz Hussain tltough cracker/bomb blasL Punishable under section 302 r/w 34 PPC both the present accused Muhammad lshaque @ Bobi (q) Hussain s/o Muhammad [brahim and Muhammacl Asim (" Ahmed @ Capri @ Mamo s/o Abdul Rehman are scntence(i to death subject to conlirmation by this court;

b) Ior causing death of ttle deceased Faraz Hussain through cracker/bomb blasL punishable under section 7(A) o{ the Anti Tefforism Act, 1997, both the Present accused are sentenced to death subject to confirmation. by this court with fine of Rs.200.000/- rtwo Iac') edch; ,

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c) For causing serious injuries to 25 innocent peoplc, punishable under sectiotl 324 tlw 34 PPC both the present accused alc sentenced to suffer rigorous imprisonment for tcn (10) years on each count with fine of Rs.1,00,000,i- (one lac) each and in case of failure to pay the Iine, he shall suffer SI for six (06) months d) For causing seious injudes to 25 innocent PeoPle, Punishable unde. section 7(c) of Anti-Terorism AcL 1997 both the Preseni accused are sentenced io suffer rigorous impdsonment for tell (10) years on each count with fine of Rs.1,00,000/- (one lac) each and in case of failure to Pay the fiie, he shall suffcr SI for six (06) months more;

e) For involvement in explosion by bomb blast and committing the act of terrorism, punishable q s.7(fl) ol Anti-Terrorism Aci, 1997 both the accused persons are sentenced to suffer SI for (14) fourteen years.

0 For act oI terrorism committed by both the accused, Punishable u/s.7(1)(h) oI Anti-Teroism Act, 1997 botll the accused are hereby aiso sentenced to undergo RI for (10) ten yeals and to pay Inle of Rs.50,000/- (FiIty Thousaicl) each.

I g) Both the accused are hereby also convicte,"l Ior the offence u/s. 11-F and sentenced to RI for 06 months with fine of Rs.10,000/- (Ten Thousand) each and in case of failure to Pay ti'le fine, they sllall serve R.L for one month more.

h) Both the present accused are hereby also directed to Pay an amount of Rs.2.00,000/- (two lacs) each for each deceased to the legal heirs as compensation, as provided under Section 544-A Cr.P.C. and in default of such payment the accused shall undergo S.L for six months.

i)Both the present accused are hereby also dilected to Pay an amount of Rs.1,00,000/- (one lac) each for each iniuled as compensation, as Provided under Section 544_A Cr.P-C. and ill default of such payment the accused shall unrlergo S L for six months;

j) The property oI the accused are directed to be folfeited as rcquired u/s.7(2) of the Anti-Terrorism Act, 1997.

All the sentences are directed to run concurently. The benefit of Section 382 (B) Cr.P.C. was also extended to the accused Persons.

2.'l'l'rc brief facts of the ptosccutioll case arc that the comPlainant Syed Shamin Raza Naqvi rcsidenl of fC area lodgeri FIR wherein it is stated that on 17.10.2016 at Maghdb Prayer at about 08:05 Pm two identifiablc persons on one motorcycle came at Imam Bargah Dar-e_Abbas a

lqt and l-rurled a bomb / cracker near the Sate which exploded in result whereof 30 persons reccived exPlosive injuries out of them one Faraz Hussain succumbed to his injuries and died, hence the instant FIR lodgecl t against the unknown Persons Ior the above cime on the basis ol rtater nent of complainant u/s.1 54 Cr'P.C.

3.AfteI registuation of FIR, the investigation was assigned to Inspector Syed Zulqarnain Akhtar, PS Nazimabad, Karachi who after' usual investigation filed the rePort under "A" class. Later on a.cuscd Muhammad Ishaq @ Bobi and Muhamrnad Asim (4 CaPri were arrested in other cases and during interrogatioD the accused admitted thaf they hurled the bomb/cracker on gate of Imam Bargah Dar-e-Abbas and after sufficient evidence, the l.O. of the case submitted challan against the said accused.

4.The prosecution in order to Prove its case examined 14 PWs antl exhibited vadous documents and other items. The statement oI accused persons were recorded under Section 342 Cr.P C in which tlley denied all l the allegations leveled against them and claimed that they had been falsely impiicated by the police after their release from prison and arrest {rom home respectively. They did not Sive evidence under oath or call any DW in support of their defence case.

5.Alter hearing the arguments of the resPective Parties and appleciating the evidence on record the trial court convicted the appellants and sentenced them as set out earlier in this judgment. Hence, the appellants have filed this aPPeal against conviction-

6.The facts of the case as well as evidence produced before ihe trial court find an elaborate mention in the impugned judgment dated 19.12.2020 passed by the tiial court and, therefore, tlle same may not be reproduced here so as to avoid duPlication alrd unnecessary rePetition.

7.Learned counsel for the appellants has contended that the appellants are entirely innocent oI any wrong doing and have been falsely implicated in the case by the police; that the identification of the ^ appellants at the crime scene cannot be safely relied uPon; tllat the identification parade has not been carried out in accordance with the law; that no recovery was made lrom the appeilants and that this is a case of no evidence and that for any or all the above reasons the accused should be

l1+ acquitted by extending them the benelit of fte doubt. In suPport of his contcntion he has placed reliance on the cases of Imran Ashraf v The State (2001 SCMR 424), Gulfam v The State (2017 SCMR 1189), T Hayatullah v The State (2018 SCMR 2092), Muhammad Akram v The State (2009 rcMR 230), Noor lslam v Ghani ur Rehman (2020 SCMR 310), Muhammad Ali v The State (PLD 2012 Sindh 272), Manzar Ullah v Asghar & 3 others (2018 YLR 1508), Faisal Alee v The State (PLD 2010 SC 1080), Alim v The State (PLD 1967 SC 307), Shafqat Mehmood v The State (2011 SCMR 537), Lal Pasand v The State (PLII 1981 SC 142), Province of Puniab through Education S€cretary v Mufti Abdul Ghani (PLD 1985 SC 1), Tariq Pervez v The State (1995 SCMR 1345), Muneer Ahmad v The State (1998 SCMR 752), Fazal Subhan v The State (2019 SCMR 1027) and Mian Sohail Ahmed v The State (2019 SCMR 956).

8.On the other hanrl Additional Prosecutor Ceneral Sirdh has lully suppo*ed the imPugned judgmcnt and has rnainly relied on the corrcct identification of the aPpellants who carried out the attack on the I Imambargah and other corroborative/suPPortive evidence on record and contended that the appeals should be dismissed and the confirmation reference answered in the affirmative as this was a very heinous offence where a place oI worship Ilad been attacked by telrorists and a young boy had lost his life and many others had been seriously injured. ln suPPort of his contentions, he placed reliance on the cases of Muhammad Zaman v The State (2007 SC\.4R 8l'1), Solat Ali t\h.rn v The Slate (2002 SCMR 870 . Saiid Sohail v The State (2009 SCMR 356), Islanr Sharif v The State (2020 SCMR 690), Khadim Hussain v The State (PLD 2010 SC 569), Muhammad Ismail v The State (2017 SCMR 713), Farooq Khan v The State (2008 SCMR 914, Muhammad Ehsan v The State (2006 SCMR 1857), Sh, Muhammad Abid v The State (2011 SCMR 1148), Mumraiz v The State (2011 SCMR 1153), Naeemullah Niazi v The State (SBLR 2016 Sindh 1334), Dr. Javid Akhtar v The State (PLD 2007 SC 249), Abdul Baqi @ Talaha v The Srate (SBLR 2014 Sindh L472), D\ldat Hussain v Muhammad Afzaal alias Chala v The State (PLD 2004 SC 663) and Abdul Rehman v The State (1998 SCMR 1778).

9.We have heard the arguments oI the learned counsel for the appellants as well as learned Additional Prosecutor General Sindh, Sone lhrough the entire evidence wlri(h has been redd out by '/ thc lcarnc.i

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counsel for the appellants, and the imPugned judgment with their able assistance and have considered the lelevant law including the case law cited at the bar.

10.At the outset based on the Prosecution evidence, including iniured eye witnesses to the incident, other PW's, medical evidence and medical reports, DBU report we find that the Prosecution has ploved beyond a reasonable doubt that on 1710.2016 at 2005 hours at Dar Abbas Imam Bargah main gate F.C Area Nazimabacl Karachi Persons caused a boml) blast which lear] to the murder of Faraz Hussain and injuries to 31 others who suffered blast injuries. In fact this is an admitted Position by learned counsel on behalf of the aPPellants and as such is not in disPute'

11.The only question leIt before us therefole is who threw the explosive device whicll blasted outside the main Sate of the lmambargah which lead to the deatl, oI one young boy and caused se ous injuries by bomb blast to 31 others at the said time, date and location?

,r L2. We are acutely aware that this is a veiy sensitive case where one young boy lost his IiIe and 31 other innocent Persons have been injured by an explosive device in the most brutal manner without aPParent reason by a group of tefoiists at their Place of worship. However. as Judges we have to put such aspects aside and decide the guilt or innocence of the appellants by disPassionately assessing the evidence be{ore us anci coming to a decision which is supPorted by the evidence on recold and the governing law and not by our emotions or own Pelsonal Ieelings We can only be guided by the evidence and the law and nothing else' This aspect of the judges role in such like cases {^.as emPhasized in ihe case of Naveed Asghar V State (PLD 2021 SC 600) at P.617 Para 10 in the following terms:

" Heinous s and oonraisal af eaidencc

10.The ruthless and thnstly rnur.ler of Ji)e Persans is n cru1k af heinous nature; bul the hishtt'ul at rc of c/ine s]nuld not blur ihe eyes of justice, allouting emotions liSSered by the horriliJutg natuie of the oft'erlce ta Prejudge the accusPd. Cases are to be 1 decided on thc basis of eoidarce afiil eoiilefice alo e afid ot on thc basis of s.fitifients anil cll1otiorts. Gnesofie, hei ou; ot brutal flature of the offeflce fiay be relcoafit at thc stage ol au,adinR suilabl? Punishnrnt aftcr rcnri(tion; bul il i' lotallv irreieoant aI thc slagc of apPraisins ot raapptttisinq the eiidcnct auailabh on rccoil to lctemlinc guilt ol tlttl

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dccused perion, as possiLtititll oI an inno.enl p'rcon hauifiR cannol bt -'An inuolut:d i eases of bc.n wrcnRlV <tch 'nture ruleil o t. accused pefio is presuficd Lo be i nocent lill tht lime hc is propen gtiltll bellond reasonable doubl, and |h: nrcsunDlrc,l al hB intfi,Pn,e .onttn P\ ltntil lhr frc'"'ulintt t ',t.ccei' i,, froang tfu dnryt ngain>l ltn bcyonrl rea'onnbl- dotlbt on tl1J: basis of legally ndnlissibb, confde ce inspiru19, lrusttorlhll afid rcliable eoitlence. No flnltcr lmo hcinous tht crtne, the;o stitulionnl gtaranlec ot' fnir ttiol utldcr Atlicle 1A A cannat be taketl nntav fioit lhe nccused. lt is, thercfore, d ty of the coltt to lssess the prcbatite oal e (u)eight) of eaetq piecc of eoidcnce iTrailable o recotd h accotilance t)ith the settlei plillciples of appteciatioll of aidencc, in a ilispassio,Mt., stlslctnatic and s!ru(lured manfiet Loilhoul beinx influenred by lhP ,lotuft ol thc allryalions Atttt rcndlncv to struin ot str.tch or haphazardl\ apprcciat' puidence lo tcoch a d.siftil or popuktr ilrcision in a ca<t lfi st be scrupttlousl! T7,oideil ot else highly ileletetious. resu1ts seriou;ly affectillg proper ailmi istntiofl of ctininal iusti( uilt lotlow ll nay bt pcttinint to undcrliu hrte tlnt 'ttp pnntryl.s o[ lnir lrinl tnt'' t'ot lten Sunranlrll n' I t-uniancnital Riphi undet An,dP t0 A ol ttP Con>titutrcn nnJ nt to h? ffnd o, an lnkBral fatl at , .'eru rul'- an'ltttlrcnat \gslnt tt instrument that dials r|ith determination oJ ciTtil riillts and obligotions of, or cfilfiinal cJfirge agail1sl, ny Penon" (Bold I addetl)

13.After oui rcassessment of the evidence we Iind tlut the prosecrltion has NOT ptoved beyond a reasonable doubt the charge against the appellants for which they were convicted for the following reasonsj

(d)In our view the prosccLrlion's casc resls on lhc evrdence o[ rhe so e e\ e wilnesc to the in( idcnl dn.l hi5 abrlrly to correctly iJ"ntrt) the afpelants who allegedly came on a motor bike and threw the explosire device outsid; the main Sate of the Imambargah which kllli.,g one and injuring 31 others whose evidence we "rplod"d shall consider in detail below;

(i)Eye witness PW 8 Syed Shamim Raza He ls thc complainant of the case and was Mutawali of the lmambargah. According to I'tis evidence on 17102016 at 2005pm he was sitting with others at the lmambargah as thc ladies Majlis ended when he saw two accused on a motorcycle throv,r a cracker bomb at the Imambargah which explod;d which lead to the cieath of child Faraz Ali ancl ca;sed se ous iniuries to at least 30 others' He was injured at the place oI incident on account of the bail bealings /pellets which were a Part of the exPlosive device anrl treated at hospitai for his iniuries.

The witness was a natural as oPposed to a chance witness as he worked at the Imambargah and was also injured at rhe scene on account of the bomb blast Io1 which h€ has.

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produccJ a MLC. He lodged thc FIR a day aftcr the i,rcidenl wlrich slight.lclay is e\plained bv the trct lhdl Ire hdd to [i^l receive medical treatment for his injuries which were caused by the blast and as such there was no unexplained delay in { Iodging the FlR. The FIR was Iodged against unknowrr pe.ionr and there wrs no attcmPt to falsely imPlicatc an) person let alone the accused who the comPlainant had no cnmity with. TI1us, we believe the Presence of the witness at the spot at the time oI the incident and his evidence in respeat of the incident. FIe corectly identified each of thc appellants with a speci{ic role at an identification Parade heid around 6 weeks after flle incident and about 12 days after tlle auest of the accused.

What goes against the eye witness being co[ectly ab]e to identify the aPPellants is that (a) he had not seen them belore and only got a Ileeting glimPse of them (b) he did not give dr, hulia of thc aPPellanls In ihe I-lR and hit S l6l irPC statcment which grcally undermrne\ Iris Jbilrty l' pick out any accused with certainty/accuracy at an identification parade (c) he aPParently made sketches of thc accused but not immediately after the incident but shortly belore the identification Parade and after the accused werc arested which raises doubt as to whether he was shown the accused before he made the sketches and even otherwise it is I not clear that the sketches matched the aPpearance of the accused (d) That it was UPm in the month of October when the in ident oc.ured and as sucll it would have been quite dark and therelore extremely difficult for the witness to accurately identify both of the aPPellants esPecially as thcy both remained on one bike and did not dismount beforc speeding away keePing in view that fhere was no evidencc as to the source oI liSht (e) That it is unclear how fal away the witness was from the accused and from what angle he saw them from. He does not claim that he saw them form close range and as such this also goes against his accurate and conect identilication of the accused (f) it is difficult to believe keeping in view the above factors and esPecially the facts unfolding on the Sround at the crime scene i.e a chaotjc situation where a blasi had just occurred in which maiy were injured including himself and crying out for help with dust and smoke every where that he would have been able to hang onto his fleeting recollection of the apPellarts.

It is true tllat we can convict based on the evidence of a sole eye witness however based on the Particular facts ancl circumstances of this case as discusse.l above we find that even if the eye witness was plesent at the time of the incident based on the reasons mentioned above he woultl 1 not have been able to corecdy, salely and reliably identify the appellants and as such wc veer on the side oI caution jn this case especially as there aPPears to be hardly any cogent corroborative or supportive evidence and find that the cyc witness was not able to collectly identify either of thc

!i In this respect reliance is Placed on the case of Javed Khan V State (2017 SCMR 524) conceming the necessity for an early huiia/description of an accused by an eye witness in his S.161 CI.PC statement before an identification Parade and / the need to strictly follow the rules governlng identification parades where it was ltld as uhder at P.528 to 530:

"7. We haoe heard lfu learned co ns?L n d Sane tlrauth thc record. The prosecutiott cdse rests on the Positirc identifcaliott pta,(r1tnR5 ;nd th,' t ttt\i'' <.tttrc I'lbornlorJ ftforl 'ihil' 'stnps tlnl t t-uu.t tnrng btrl lt' il lt'l clt 'a\ slnt.d tr tttl \ bp ph l'rd up fron th?' n tth,t P nc t n n< fi t Pd lt ot11 thc -nmP pi'lrl nrhiih nn" rc'oterd lron Ro?c' t'hn in anolhcr ,a\P). wt tturcforc pto.p lo ,on<tdrr lolh thr<c t|'pctt' ol tlte cast A' regards lhe idcntifiotion procctilings afid lheit rofitPxl tierc is a tong lifle oI prcc.d?r1ts stating lhat identificotiott proceeilittgs fiust be ca/efully cottiluctcil ln Rsmzan ? rnmrcr ,Atn 19,o <d 140) Per.n nl. lC.,t' tinBlorthrludi i,t Commissnn(t s Court rthe ptt ur'or ot tl| HBlt Coutt oJ <mdlt' held thnt, "The re.ognition of a ilacoit ot other ofiendet by a arrson utho ha' noi prel)ioustv se(n hirlt is, I lhink, a lor "l ?aid?flce, uhich has aluavs lo bc ta|t:n 7,ilh a consid?nbl( afiounl ol coution, bftause nlistal'e. arc aluay> Possiblc in such (as;s 'pagt Uq- rclunn 2, l Allnt ?

crnlr rlLD Ioo- SC 307) Cornetius Cl, toho htd deLirercd th? iudgment af lhis t Coutt, l,itl1 rcgard la Lhe nntter of identifcotioll parades lrld, tlnt, "Thcir liitnesses] oPpoftunities fot obsenrat[o,t of th? culpit Toere ettuenely liltitetl. Thell hail neoet seefi hinl bclor.. 'Iheq had piehcd oul Lh. a>taila l dl th' iienlifkation paradc, b t lhtr. is a cl.ar possibilily atisttlS oul ol lheir stalen?nls lhal lheV urrc assisltd lo do 'o bu fuing shoun lh? d(cus?d pc$on ?artiPt" tPaSe -71\F l lnt Pasmrl u. Stnte OLD 1981 SC 142) Dorub Patel l, 1do hntl LleLirered Lhe iudgnent of this Caurt, held that, if a uitncss had description of the assaila t i his statement to the Police a fid identificdtio took Place foltt or fixe fionths aftet the fiurdet it Toould, "react against the efitire prose.ution case't tpa4r l45Ct. ln a nrct re.Pnl tutlSnent or ltl' 'Court.

lntan A.hrul t'. Stat r20Al SCMR 424t, rtht h tr'1' a thorcd by tftikhar Muhammad Chaudltry l, this Coltrt lYld thnt; it m st be efisurcil that the idefitifying rDitltesses must "tlot see the acc seil aftet the corfllrtissioll of the uime till thc id.ntificatiofl parudc is hctd itln?diately after th. an.st ol the afi sed pcrso s as ca V as Possibl." (p08e 485f .

8- The Conplaiflant (PW-s) had not mentiorteil a y featurcs ol lhe assaillfils cithet i the llR or in his slatemcnl iecorded undr se(tion 1trt, C\.P.C lh tlorc lh?re oas tto beficht ark against @hich ta test @hether the apPellants, u)ho he had identified. after ooet a ycat of the ctiae, and who he had fleetingty see , u)ere in fact the achnl culPrits. Neithet of the hpo Magistrates had cettife.l thnl in lhc identifcation proceedings the other persol1s, afiongst 7d1an lht oppellanls 'erc placed, r'cte ol 'mlor ogc htqltl buil' n 'l rc\ou,inS. Th( main object ol identi/icatiorl pto.Ptdinss F lo enable a uitness to propeiy idefltify a pe$on inaollted it d .tirne and to ?xclude thP postibilitu of d uritfi.'s simplur' .t

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.onlinning a foint rrcollPctio or inlPffssio'|, thal is, of an old, uourlg, tall, shott,lat, thin, da* ot la susPccl .

9.A< rpRards th. id?nt$,at@n ol lh appcllants hcfa'c t]l tnal .ou,I bti Nas Mthboob tPW 5t subcd M?hnaad Ahm' d { Khdn (PW-i) ancl ldress Muhammail (PW-7) thot toa ]i|,ill nol assist the Prosecutiofi hecaltse lhese witnesses had a number of opporlullities Io scp thefi befure thei stalements utete recarded. lt1 State Lt . Fdrfian efD usi SC l), tln n |jority jud|nent of Illlidl utas arthored by Aj nnl Mian l, thc learuc.t judge had hel.l thnt an iilcfitification pataile uas t@cessaty whefi the Toitfiess o ly had a fleetixg glimpsc ol an accuscil zoho utas a stftinget as cofiPa rcil to n qccused ho thc zoitness had prcltio sllt tiet a numbet of tines (Page 25V). Thc sa tt' pinciple uas lolloloed in tht Lntninous judgment of this Courl' dP.liDered bu Nasir AsLa n Zahid l, ifi the cnse of M neer Ahmnd 1' State (1998 SCMR 752 ), in lrhi,:h case the nbductee had rennikd wilh the abcluctors t'or some linle and on se|reral occasions had seen their foces. lfi the Prcsent type of case the cltlprits werc rcqrlir?.1 to be id.htificd through prcper id? ification 'identificaiion houe\.r, proc?edings, lhc mdnner in urhich lh( pro.eeitirlgs Taere conilucted taise setious doubis hs noted abotte) o the ctedibility o/ the ptocess' The identification of thc appcll.utts in co tt by ele- u)itfiesses toho had seen the cul\tits flceti,tgl! once woltLd be )1 irlcoflscq e tittl." (bo1d added)

The Supreme Court casc of Mian Sohail Ahm€d V State (2019 SCMR 956) has also emPhasjzed the care and caution which must be taken by the courts in ensuring that an unknown accused is cofiectly identified' In fact such exha care and caution in relying on identilication Parades is an accepted giobal Phenomena in most cdminal iurisdictions as the possibility of deliberately'or mistakenly Pickin8 out a *.ong pe.son Iro.tt un identification Parade and sending an innocent man to jail or in this country potentially io th€ gallows is very much lecognized and thus most jurisdictions (including Pakistan) have put in place manrlalory guidelincs to $eatly limit the chances of sucll incorrect identification Thus, having found that the sole eye witness would not have been able to correctly, safely and reliably identify the appellants the conduct of the identification parade becomes in consequential.

(b)With no eye witness evidence to the identity oI who carrieci out the attack tl.Ie mcdical evidcnce becomes inconsequential as it can onty reveal what kind of weapon/device was usecl and the seat of the inju es of the dead and injured. lt.annot identily the Person who infli.ted the injuries.

(c)It is notable that the appellants confessed to the olfence whilst in police custody however they were not Produced before a magistrate to record their confessiorrs under 5.164 Ci.PC desPite being ploduced before a magistrate Ior an ideniification Parade anci thus we place no reliance on theit confessions made before the oolice.

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(d)It cloes not appeal to logic, reason ol commonsense that the appellants would confess to such a se ous clime as the Present one which carried the death sentence when they were only booked in an Arms and ExPlosive Substances case which only carried a I maximum pdson sentence of 14 years on conviction

(c)According to the evidence of the comPlainant ire. Salman antl Airul *e." ull eye witnesses who were called to the court for the iclentification pararle. Afzal appeared before the identilication parade however he clid not give evidence as a PW whilst Salmarr was listed as a PW bul was given uP by the Prosecutlon which leads to the inJerence ttlat he would not have suPPorted the t)rosecution case under A l2q (8) Qanun-e Shalrdat Ordinrnce 1984 irr terms o[ the irlentitication of the dPPcllanl].

(i)The appellants taking the Police to the Place of w;irdat is iriele"ant-u" the police already knew where the Place of wardat

74.That the prosecution must prove its case against the accus€d beyoncl a reasonable doubt and that the benefit of doubt must go to thc accused by way of right as opPosed to concession. In this resPect reliancc x is placed on the case oI Tariq Pervez vfs. The State (1995 SCMR 1345), wherein the Supreme Court has obseNed as follows:- "lt is settled tau) that it is not fiecessary that thete shouLd be many circumstances creating doubts. ry therc is a single circufislance, tphich creates reasonable doubl in a Wudent min.l about the Suilt of the accused, the the accused toill be entitled to the beneft not as a fintter of grace and concession but as a fiatter of ri3ht "

15.For the reasons discussed above by extending the benefit of the doubt to the appellants they are both acquitted of the charge, the impugned judgment is set aside, their appeal is allowed, the conJirmation reference is arswered in the negative and the aPpellants shall be released unless \ anted in any other custodv ca5e.

'16. The appeal and confirmation relerence stand disPosed of in the f-+X/ luDeEhflzz

to