RIAZ S/O PIR BUX (Appellant) VS THE STATE (Respondent)

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Criminal APPc al N o-247 of 2020

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Riaz I

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Mr. Justice Mohamnrad i(arirn l(han Aglra I

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Dates of hcarirrg : 30- 10-2024 Decicled on : 05- I 1-2024

(a)Judgnretrt apploved [or Re1:orting tses

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-tllrlCATE.

Certified that the judgtuettt */Order is based upon or ellunciale.s a principle of lalv */decides a question of larv which is of first impression/di$tiriguishes/. Over-rules/ reverses/explains a previorrs deci sion.

* Strike out whichevet is uot applicable.

NOTE: - (i) This slip is only to be used wheu some actiou is fo be talien.

(ii)If the slip is usecl, the lteacier nrust attach it to tlle top of tlre first page of the .itrclgment. ,

(iii)I(eacler urust ask the .luclge r,vriting the Juclgnierit rvhether the Jrtdgnreut is a1l;lr"ol'ccl l'ot' rcltorting.

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(iv)Thos* clirections rvlriclr arc rtot lo be trsecl shotrl'd be deletecl.

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IN THE HONOURABLE GH CO URT OF H

AT I{ARACHI

Cri rll I nn I Anncal No. 2o2a "*-ft/ rtIAZ S/O. PIR BUX Muslim, adult, Resiclent of l(arachi, At presently confined in Cerr tral Prison, I(zu'achi n... ..... . . r. ... r t.. .,....... APPELLAIIT Vpnsus

TFIE STATE. RESPONDENT

FrR NO.82/2018 u/s.3e7 /3O2/3+ PPC P.S. Gulistan-e-Johar

APPEAL UNDER oN 410 0F. C i

PROCEDUILE CODE" 1 I 98. i^ 7*_ a

' Being aggrieved and ilissatisf,red with the impugned. Judgment dated: 19-O2-2O2O,- announced and passed

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by the lst Additional District & Session .Iudge Karachi East (Mr, Haleem Ahmed) in Session Case V ,n llo. 69212018, thereby convicted the accu.sed U/s. 393 R/*. 3+ PPC, and sentenced to five' yehrs simple lo imprisonment, the accused is also convicted U/s. 302(b) ri 4

t) |.,' .'r., , ) read with 34 PPC for committing Qatl-amd of the .:..t..'7a( deceased and he is sentenced imprisonment for life. Ip

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addition to thai the accused is required to pay i

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; compensation to the tune of Rs.500,000/- (Rr-rpees Five

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Lac Only) to the legal heirs of deceased, in case of i

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failure of payment of fine/ compensation, thd accuse,C

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IN THE I{I H OURT OF SII{DH T KARACHI

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lvlr, lusticc Mohstttumd ltnrim Khan Aglm

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CI{IMINAL Al'l'[AL No. 247 OF 2020

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Appcllarrt: I{iaz through lvl/s. Iftikhar Ahmed Sltah, t{aja Zecslran and Muhammad Naeem Awan, Advocates,

Respouclent: The - State through Mr. Muhammad Iqbal Awan, Addl. Prosecutor General, Sindh

Courplainant: Jehanzaib through M/s. Muhammad Dadd Narejo and Muhammad Yousif Narejo, Advocates.

Date of Hearing - 3}.fi.2024 Date of Announcement ' 05.to.zo2+

IU_DCMENT

Mohanunad Karitn l(hnn Ailru, l: Appellant Riaz son of Pir Bux was kied in the Model Criminal Trial Court/ I't Additional District & Sessions Judge, Karachi, East, in Sessions Case No. 692 of 2018 in respect of Crime No.82/2018 registered under Sections 397,342,34 P.P.C. at P.S. Gulstan-e- Johar, Karachi. After completion of the trial, vide judgment tlated .t*

19.2.2020, the appellant was convicted under Section 393 r/w 34 PPC ancl sentenced to undergo Iive years for simple irnprisonment. The appellant was also convicted under section 302(b) r/ra', 34 P.P.C. and sentenced to undergo imprisonment for life with clirection to pay compensation of Rs,5,00,000/ - to the legal heirs of the deceased and in default of payrnent whereof, he shall further unclergo simplc imprisonment of six morrths. All the sentcnces were clirccLed [o rr.ru concurrcntly. The benefit of section 382-l] Cr,P,C. was extended to the appellaut. The reason as disclosect in the impugned judgment for not awarding c{eath penalty to the appellant is that he was under the age of eighteerr years at the time of commission of offence; therefore, he was entitled to such benefit under section 16 of the Juvenile Justice SYstem Act, 2018.

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2' The brief facts of the case as narrated by complainant ]ehnazeb son of Zaman Khan are that Asad Khan son of Zahid Khan ('deceased') was lris gtand matertral son. On 14.3.2018 at about 17LS hours, when the deceased was colt:ting to his house, he received one shot near Masiicl; it was about 1715 hours' time Asr proyui, he was proceeding to Masjid. He saw solne people, along with children, running towards his house. Iqbal infoil:rerl hirn that Asad l{ran has sustainec{ a bullet injury near the gate of Ayesha Masjid, thereafter, they took Asad Khan to Dar ul sehat Hospital for treatment. The doctors aclvisecl thern to take him to Agha Khau Hospital due to his critical conclition. When they brought him to Agha Khan Hospital, he was pronouncecl deacl on arrival. Thereafter the complainant proceeded to his house. His son Shahzaib brought the deceased to JPMC for legal proceedings. Then Iqbal disclosed on the funeral of the deceased that he was going to perform Asr Nimaa and then on one motorcyclg three unknown persons came, who were wearing Shalwar Qameez and having deadly weapons, and tried to snatch a rnobile phone from him, and on his resislance, they opened straight fires upon the deceased, due to which he died, hence the instant FIR was registered.

3.After usual investigation police submitted the challan before the Court concerned and after completing necessary formalities, learned trial Court framed the charge against the appellant, to which he pleaded not guilty and claimed trial.

4.In order to Prove its case the prosecution examined twelve (12) witnesses, who exhibited numerous documents and other items. Then statement of accused under Section 342 Cr.P.C was recorded whereby he denied the allegations leveled against him ancl claimecl his false implication [:y the police. However, he neither examinecl himself on Oath nor Ied any evidence in his defense.

5.After hearing the parties and assessirrg the evidence on record the trial court convictecl and sentenced the appellar-rt as statecl earlier in this Judgment, hence the appellant has filed this appeal against his conviction.

6.Learned counsel for the appellant has contended that the appellant is innocent and has been falsely implicated irr this case hence the clelay of one day in lodging the FIR; that the eye witnesses clid not witness the incident and as such their evidence should be discarded; that even t

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otherwisc the idcntificntiort paraclc wns dcfcclivc; that no ro[:bccl amount or pistol was rccoverccl frotn tlrc nppullant; that thc US[} which containg CCI'V footngc <lf tlrc incidcnt tlttcs not show nny pcrrron mur(lcring thr rleceasecl; tlrat sven othcrwisc lltc USIS is inar,lrnls..,iblc asl its *afe eu*tocly was not Pre$ervccl; nnrl n$ suclt for" nrry or *ll of thri aboy# rearons th# appcllant should be ncquittcd try cxl,cnrllnll hirn the bcncflt of ths cl$ubf. Irr support of hls cotttuutioun lrc plnccrl rcllnncc on ths casorl of fihulam Akbar and ot'hcr$ v, thc $tatc (20{J7 YLI{ 15il{i), Javcd l(han alias llatha ancl arrotlrcr v, the Statc atrd altotlter (2017 SCMIT 5U), Flakecm ancl otlrers v. thc Stntc (2017 SCMI{ 15a6) ancl Ishtiaq Ahmed Mirza and 2 otlrers v. I;cderation of Pal<istan ancl othcre (l'LD 2019 SC 675),

7.Learned APG arrd Iearned counsel for the complainant f ully supported the impugned judgment. In particular, they contended that the eye witnesses evidence was trust worthy, reliable and confidence inspiring and could be safely relied uPon; that the photo's in the USB supported the prosecution case; that the medical evidence supported the ocular evidence and as such the prosecution had proved its case beyond a reasonable doubt and the appeal be dismissed. In support of their contentions, they placed reliance on the cases of Aiiaz Nawaz alias Baba v. the State (2019 PCr. LJ 1,775), Ansar and others v, the State and others (2023 SCMR 929) and Atta l(han and 2 others v. the State (2024 PCT.LJ B. I have heard the learned counsel for the appellant as well as Iearned APG and Iearned counsel for the complainant; I have also perused the material available on record and the case law cited at the bar.

g. Based on my reassessment of the evidence of the PW's, especially the medical evidence I find that the prosecution has proved beyond a reasonable doubt that Asacl Khan (the deceasecl) was murdered by firearm on 14.03,2018 at about 5pm at chowk ncar Masjid Ayesha Illock one Gulistan-e-Jaulrar wlren lre resisted a robbcry. In fact learnecl counsel for the appellant did not dispute this fact'

10.The only qucstion lcft l:eforc me thercfore is who murdered the deceased by firearm and attemptecl to rob hirn at the said time, date and location?

71.After my reassessment of the evidence on record, I find that the t

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prosecution has NOT proved beyond a reasonable doubt the charge ,5 against the appellant for which he was convicted for the following reasons;

(a)That the FIR was lodged after a delay of one duy. This delay has largely [:een explained by the deceased being transferred between hospitals where he cliecl on arrival at the Aga Khan I{ospital and then the body being taken back to JPMC for legal formalities and post mortem which was not allowed by the complairrarrt's side who immediately took the body for burial from the JPMC l:efore lodging the FIR. The main concern was to save the Iife of the deceased who was seriously injured at the scene of the crinre a$ opposed to Iodging the FIR. The fact that the FIIt was lodged against unknown persons also gives further weight to the fact that the complainant was not trying to falsely implicate any one. As such the slight delay in lodging the FIR is not fatal to the prosecution case. Although I find that the delay in lodging the FIR has been reasonably explained the fact that the f{S was only 3KM away from the wardat puts me to some caution.

(b)I find that the prosecution case primarily hinges on whether I believe the evidence of the eye witnesses especially in terms of the correct identification of the appellant who robbed and murdered the deceased whose evidence I shall consider in detail below;

(i)Eye witness PW 2 Asad Javed. He is related to the deceased who was a shop keeper whose shop was ailegedly robbed by the appellant and his accomplices. According to his evidence on 14.03.2018 at about 5p* he was present in a shop sibuatecl near Ayesha Masjid when tfuee person's duly armed came on motor cycle and robbed him of cash. As the robbers were leaving the shop one person Asad who was from the neighborhood was attempted to be robbed by the appellant and his two accomplices. Asad/deceased however put up resistance which lead to one of the three robbers shooting him. A house opposite the shop owned by PW Naveed had CCTV footage of the incident who handed over to him the CCTV footage which he handed over to the IO at the time of the site inspection. On 27.03.20'lB he picked the appellant out from an identification parade as one of the persons involved in this incident.

This witness was related to the deceased however he had no proven enmity with the appellant and as such his eviclence can be taken at its own face value. The police recorded his eye witness 5.161 Cr.PC statement within fwo days of the incident and he picked out the appellant from an identification parade 13 days later.

The eye witness ctid not know the accused before the incident and thus it was necessary for the identification parade to be held and it was also necessary that at the time of giving his 5.161 Cr.PC statement he gave a lrulia/descrption of the appellant which he faileJ to do which renders his correct identification of the appellant at the identification parade doubtful.

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ln this respect reliance is placec{ on the case of Javed Khan v State (20'17 SCMR 524) concerning the necessity for an early hulia/tlescription of an accuscrl by an eye witness in his S,161 Cr.lIC statcmcnt bcfore an iclentification parade and tltc nccrl to .strictly follow thc rules governing iclentification pnrarlc.s lvltcrc it was lrr:lrl ns untler at ['}.528 to 530:

"7, W, ltnur'ltt'nnl llw lmnutd rtutttstl tmil goile. tltrouglt llte Ilr.rrrrl. 'flu: yroscrttliott cns( ruSls otr tlrc posiliue identiJicntiott ;rrnrrtrfilgs tuul tlrc l:arcnsic Scitttctt Lnborntory reporl whiclt slrrlrrs llmt tlrc bullet cnsing seul to it ftplticlt runs slnled lo hnpe bccn yickerl up ft'otrt tlrc crinrc sr:r.rrc) runs fircd from tlrc snile pistol (rphiclt ?pfis recottered from Rnrcs Khntt itt nnotlrcr cnse). lNe tlwrefore procetd to consider botlr iltese nspacts of tlrc cnse, As rcgarls the identificatiott proceedings and their context tlrcrc is n long line of precedents stating that identification Ttroceedings mrtst be cnrefitlly conducted, ln Rnmznn u Emperor (AIR 1929 Sid 149) psvssunl, lC, writing for the ludicial Colrrrrissiofter's Court (tlw precttrsor of tlw Higlr Court of Sindlt) lrcIrl tlmt, "Tlrc recogttition of a dacoit or other otfender by o persoil tulro has not preaiously seur lritu is, I tltink, a form of euidence, wliclt has nlways to be talcat zuitlt a considerable Arrtortrrt ol caution, becnuse ruistalces fire alruays possible in suclt cnses" (pnge 149, colurun 2). In Alim a. Stnte (PLD 1967 SC 307) Cornelius Cl, who hnd deliztered tlrc judgment of this Court, ruith regnrd to tlrc mntter of identifcntton pnrndes held, thnt, "Tlteir [witnessesJ opportuttities for obseruation af the culprit ruere extremely lhnited. Tlrcy had neuer seen him before. They had picked out the nssailnnt at tlrc identification yarades,ltut tlrcre is a clear possibility arising out of thetr statemertts thnt tlrcy roere assisted to do so by beirrg sltowtt the acarced Ttersotr enrliet'' (pnge 313E). In Lnl Pnsnnd a. Stnte (PLD 1981 SC 142) Dornb Pntel J, rulru ltnd deliuered tlrc judgnrent of this Court, lrcld tlmt, if a ruihress hnd not giactt n dcscriptiorr of tlrc flssn ilnnt irr lris stntetrmtt to tlrc Police nnd identificatiotr took plnce four or fiue nrcntlts after tlrc nmrder if r.uould, "renct ng,afrrsf tlrc entire praseafiion cAse" (pnge 145C). In n rtrcre recent judynent ol tltis Courl, lnrrm Ashrnf v. Stntu (2001 SCMR 424), tuhfc/r u,ns nulhorcd by lfiikhnr Mulmtulnd Clmtdltry l, tlis Court lrcld tlmt, it tttttst bc enstted thnt tltc identifyittg tuituessss ,lrrs t "trot sce thc ncutsul nftcr tlrc cotturrfssrorr of the crinrc till the irlanlfficntion pnrnrlc is lrcld iuntredintely nfter tlrc arrest af lhe ncutseil pcrsotrs ,rs mrly as ;rossil.r le" (pnge 4S5P).

8.Tha Contylnlunnt (I,W-il ltni ttot tttetttiotred any feahrres t{ tlto ,rssrr llnnts eltltrr irt tlrr FIIi or in llis stntenrcnt reconleil unilcr srctiou '16't, Cr.P,C. tlrcrcfore there u){ts tto benchmnrk agaiust ruhich to test uthetlier the appellauts, rulro lrc hnd idutlfietl uttw at)w n yefir of the crinrc, atul he hn_d flcetingly seeh ruere in fnct thi actunl aiprits. 1u.hg Ne ither of tlrc lrpo Mngistrntes lmrl certified tlmt in tlrc ident.ificntion proceedrrrgs tlrc otlter personst nnnngst tolrcm the nppella.nts ruere plnced,.

.ruere af sinilnr figet trci{ht, built nncl coloyring. Tlrc main object of identificat{on priceedings is to enable a witness to properly identify a purir* inaalied n a,

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crhne and to the passittility o.f n zuitttess sirtrpty ,^1r{ir::r,r8 ,ex.clurle recolleciion or itrrpressiorr, tlrat fr, of oi, faint ottL young, ltall, short,fnt, thin, dsrk orfair suspect..., As yegyds tlrc irleilifmtiort of tlrc nppeilnnts before ttw :trinl. courf tly Nnsf r Meliltoob (pw-s),'stfiednr Meluwoi Alutrcd Rhnn (Pw-6) md lrlress Mtilmutnmd (pw-7) thnt too rpill rrct nssisl tlre Prosecutiott becnuse llu,se tuitttesses lmrl n nunfuer of apporfintities to see llwm ltefare tlrcir stntuuents ruere recorded, Iit $tnte u. Fnrun! (PLD 19BS sc'l), tlrc nmjority jurtgnrcnt af uiiclr tpns nutltared by Ajutnl Minu l, tlrc lenrnerl ludge-had hilcl tfuat nn irlentificntiott p*rnde u)fis ttecessnry rulrcn the witness ortly had a fleetittg glin4tse of nn nccttscd ruho u)ss n strrutger ns cotnytnred to ntt ncrl,rced wlrc the wittress had preuiously nrct n nwnber of tinrcs (pnge ZSV). Tlu: snurc Trrirrciplc tuns follorped in tlrc unnrtifircus judgnrcnt of tlils court, delioered by Nnsir Aslnm znhirl J, in tlrc cnse o! Muncer Ahmnd p Stnte (1998 SCMR 752), in tuhiclt cnse the nbductee lmd renmined ruitlt tlrc nbductors for some tirue nnd on scuer{tl occnsions hnd seen tlrcir fnces. Irt the present type of case the ailprits ruere requirerl to be identified tfuough proper identificatiort proceedhtgs, ltotueuer, the mfifircr in ruhiclt tlrc identificntion proceedilrys zuere conducted raise serious doubts (as noted aboae) on tlrc credibility o.f the process. l The identificatiott ,f the apltellants irt court by eye* zuifiresses ruho had seen the uipt'its fleetingly once would be t!

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itrconsequcntial." (bold added)

The Supreme Court case of Mian Sohail Ahmed V State (2019 SCMR 956) has also emphasized the care and caution which must be taken by the courts in ensuring that an unknown accuseci is correctly iclentified.

Not only was no hulia/description given by this eye witness in his S.161 Cr,PC statement the appellant had even assertert he had been shown to the eye witness by the police before the identification parade. Even in the merrro of iclenfification it is noted as under;

"Tlrc ruitness identtfed ncutsed by poirtting nt litn nnd snid, "Acutsed is stnndirtg nt Serinl No.0i fram teft wlto taok nrc ils ltostnge nnd rulto tphile fleeing stnrted tlw bike nnd escnped nlong rrrifft /ris 0z co-nccused nccottrplices" Thus, as Per the identification merrlo the eye rvihress c{ir,1 not give hirn the specific role of robbing ancl shooting the deceased [:ut instead his role was to take him hostage wtrilst fleeing with l"ris two accornplices, It is settlecl by ilou., ilri.ia that not only must the eye witness pick out the accused at the iclentification parade but he nrust also state the specific role which he saw the accuserl play irr the crinre for his eye witness evidence to be relied upon. In this respect reliance is placed on the case of Hakeenr (supra). In this case the eye witness has assigned the accused the role of taking him hostage not shooting any one on resistance. This statErnent b1fo1e the judicial magistrate is also contrary to the evic{ence wllich the eye witness later gave l:efore tl-re irial court rvhere he makes no mention of bei,g helcl l"rostage by a*yone. Even in his evidence disl"ronest irnprovements seern to have been

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made from his s.16r cr.pc statement. The identification parade itself was not carriecl out in accordance with the law, For example, no CNIC numbers of the clummie$ wcre taken, the durnrnies were all dissirnilar when they were meant tcr be the sirnilar to thc appellant; ttre samt: clummics wsre usccl in the secor"rd iclerrtification paratle,

As such based on thc a[:ovc cliscussion I finel that althouglr the eye witness nright havc bccn prcsent at tlre timc of thc inciclent I cannot safely rcly on hirn cclrrcctly idcntifyin g tltt appellant as one of the pelsolls who robbecl or murdcreel thc deccasecl.

(ii)Eye witness Pld 3 Abdul Sattar. Accorc{ing to his eviclencc on 14.03-18 at about 5.15prn he was on his way home on motor bike and when he reacl'red Aycsha Masjicl he hearcl firing. FIe continued his journey and saw three persons on a motor cycle who were fleeing away. Shop keepers informed hirn that ctacoits had shot the deceased. On 27.03,2018 he attended an identificatioh parade where he picked out the appellant as the person wlro was driving the motor cycle. The witness is not related to the deceased and as such he is "{ an independent witness who had no reason to falsely irnplicate the appellant in this case. This eye witness however did not give any description/hulia at the time of giving his 5.161 Cr.PC statemeut of tl're appellant. He also appears to be a chance witness. FIe did not witness the murder ancl only saw three persons on a motor cycle fleeing away. During his cross examination he stated that he was on his feet which contradicted his evidence that he was on a motor bike; he could not make out the make, model or even color of the motor bike as it passed him at sqeed; he could not even remernber the.color of the ShalE'rirQameez of thc persorls who were riding the motor cycle;'lhe saw no one firing at the deceased arrd as such was not air eye witness to the murder.

Based on the above discussion I firrd it irnpossible that he could have identified correctly the appellant which by his own adrnission' was on a motor cycle which was being driven speedily. If lie coulcl no[ remember the nrake, mo.lel or even color of the bike or the even the color of any of the clpJlr,es being worn by arry three of the persons who were ,_rifrg tlre bilcc I fincl it irnpossible that he coulcl correctly iirclentify the appellaut at the idgrrtificatiou parade wherr he had not given auy l-lulia/dcsclif tion of him, even otherwise his idcntification paracle sufferer-1 frour the sarne procedural defects as the cyc witrrcss mentionc-cl above. Thus for the reasotls mentionccl abovc I firrd that t cannot safely rely on this eyc witnesses correct irleutification of the appellant even if he was near the crime scene at the relevant time which appears doubtful.

Thus, based on my dishelieving the evidence of two eye witnesses in respect of correctly identifying the appellant as being one of the persons who murdlrel tn* cieceased what other supportive/corroborative material is their against the appellant?,

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(c)The prosecution has placed heavy reliance on photo,s taken from recovered CCTV footage from the hous. or rw o Naveed whicll faced opposite tlie shop and would have captured the entire incident as per evidence of pW 6 Naveed which is reproduced below in material part;

"Shop of PW-Asad Javec{ is located in front of my house. Thrce CCTV's are installed at my house. Shop of Asad and Masjid e Ayesha could be viewed in the CCTV installed at my house, The incident dated 14.03.2018 at 7700 hours was captured by CCTV installed at nry house"

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However when reviewing the photo's taken from the USB which carne frorn the CCTV which were exhibited none of them sllowed any shooting taking place outsicle the shop. There is only one clear picture of 3 persons on a motor bike which could have been taken any where and at any time and at any place. The appellant claims that he is not in the picture showing three persons on a motor bike and even if it is this picture alone is insufficient to connect him to the I crime of robbery and murder of the deceased as it only shows ltim on a motor bike witl'r fwo others. Thus, without going everl into the question of admissibility, safe custocly etc these photo's from the CCTV taken from outside Naveed's house are of no assistance to the prosecution in proving the presence of the appellant at the crime scene at the lime of the incident,

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(d)Admittedly the medical evidence supports the eye- witness/ prosecution eviclerlce that the decease,c diecl from firearm injuries. Flowever the medical evidence cannot indicate who actually caused the injuries.

(e)That no recovery of any pistol or robbecl items was made from the accused at the tirne of his arrest.

(0 That the accused was already under arrest in a police encounter case when out of the blue with ltCI evidence against lrirn irr this case he corrfessed to the murcler which carries the death penalty. This does not appeal to logic, reason or commorlsense and is sir:'rply unbelievable. significantly the police clicl not procluce him before a magistrate to record his confession clespite proclucing him bcfore thc rnagish'ate for arl iderrtifiiation paradel rhe a-lleged confession before the police by the appellant which the appellant claims was a result of torture wirilst in police custody is also inadmissible in evidence.

(s)The empty which was recovered from the crime scene was a 9mm one however a 30 bore empty was founcl to match with a pistol which was not recovered from the appellant so this recovered empry does rrot link the appellant to the crime.

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rr on the above discussion, by extending the appellant the benefit doubt, I find that the prosecution has NOT proved its case against the appellant beyond a reasonable doubt for the offences for which he has been convicted and sentenced in the impugned judgment and as such he is acquitted of the charge, the appeal is allowed, the impugned judgment is set aside and the appellant shall be released unless he is wanted in any other custody case.

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