MUHAMMAD DANISH REHMANI (Appellant) VS THE STATE (Respondent)

t' r J*; e-,i)-c^LR raL rtJ"iJJ--r 3q

CERTIFICATE OF THE HIGH COURT OF SINDFI KARACHI

Spl Criminal Anti-Terrorism Appeal NO. 189 of 2021 Spl Criminal Anti-Terrorism Appeal NO. 190 of 2021 Confirmation Case No. 11 of 2021

Mul.rarnmad Danish Rehmani

Vs

The State

HIGH COUR'| OF SINDH

ComDosilion of Bench. D. R.

Mr. Justice Muhammad Karim Khan Agha Mr. Justice Zulfiqar Ali Sangi

Date(s) of hearing: 17-08-2022

Decided on : 22-08-2022

Judgment approved for Reporling Yes p&

CERTIFICATE.

Certitled that the judgment */Order is based upon or enunciates a principle of la* */decides a question of law which is of first impression/distinguishes/. Over-rules/ 1svs15s5/explains a previotts decision.

* Strike out whichever is not applicable.

NOTE: - (i) This slip is only to be used when some action is to be takerl.

(ii)If the slip is used, the Reader must attach it to the top ofthe tirst page of the judgment.

(iii)Reader must ask the Judge wtiting the Judgment u'hethcr the Judgment is approved for reporting.

(iv)Those directions which are not to be used should be deleted.

T "','fTb' .a AA.I ID oi{ o Oopur, Rertst r 1,ftrat.f -t

srd (

IN THE HIGH COURT OF SINDH AT KARACHI

Speciat Anti Terorism ooo.u, nlf , rol

Muhammad Danish Rehmani S/o Muhammad Arif Rehmani Presently confined in Central prison at Karachi APPELLANT

VERSUS

The State -----______RESpONDENT

FIR No. 86 12013 Uls 302/l19l109/34 R/w 7 ATA.

I'].S. Gulbahar, Karachi.

CRIMINAL AP PEAL U/S 25 OF ANTI TERRORIS M ACT 1997.

Being aggrieved and dissatisfied with the Judgment dated 27-lI-2021, passed by the learned Anti Terrorism t Court II at Karachi, in Special Case No. B-491/2014 yide FIR # 86/2013, U/s 302fit9t109/34 R/w 7 ATA 1997 of p.S. Gulbahar, Karachi, thereby passed an impugned judgment awarded death sentence to the appellant / accused.

. The appellant prefers this appeal before this Hon'ble Court on the following considering facts & grounds i. imongst others. The certified copy of impugned judgment, fIR, Challan, Charge and prosecution Evidenc" lonu*"d crewith and marked as ,tnnexure ,A, B, C, D & E - l( ,,

7l

l>RESr n-9 /\iir I.-.Hs,-./.Dy'.. j'

DePrry qo 9lstrer I udtj

IN THE HIGH COURT OF SINDH AT KARACHI

Special Anti Terrorism epp"ut No\ t 6r zoz t Muhammad Danish Rehmani S/o Muhammad Arif Rehmani Presently confined in Central prison at Karachi

APPELLANT

VERSUS

The State

RESPONDENT

FIR No. 238 / 2Ot4 uA 23(i)-A SAA 2013 P.S. Nazimabad, Karachi.

f C RIMIN A LAP PEAL lt /s250 ANTI T E RRORI MA cT 1997

I

t Being aggrieved and dissatisfied with the Judgment

II

dated 27-ll-202r, passed by the learned t Anti Terrorism i Court II at Karachi, in Special Case No. B-492/2014 yide

I

I

FIF. # 238/20 14, U/s 23(i)_A SAA 2Ol3 of p.S. Nazimabad, lo) Karachi, thereby passed an impugned judgment awarded 07

Y

i I year of imprisonment of jail with fine Rs.50,000/_ on failure of payment of fine to suffer simple imprisonment 03 months to the appellant / accused.

. The appellant prefer.s this appeal before this Hon,ble ' Court on the following considering facts & grounds amongst others. The copy of impugned Judgment,

FIR,

Challan, Charge and prosecution Evidence annexed herewith and marked as annexure,A, B, C, D & ,.

E

THII ANTI-TEITROITISM COUIIT NO. II, I(AII.ACHI

No. A'i'C-ll/K-Divl qo( D02l Karachi Dated: 27.1 I.2021

SPL. CASE NO. B-49V2014

The State ,

Muhammad Danish Rehmanr V,.r"rrl/r',.,,,1 & ^.,|ff lilli,*;- -ACCUSED.

U/S: 30711 e/-toe/34 lY'v 7 AT lt,7997 I'.S: Gul lJahar.

SPI-. CASI: NO. B-49U2O74 lllr,rl r.'it ii, a7

l hc State. Bi C:"t- r -- Muhammad Danish Rehmani s/o tu.rl/asmmad Arif Rehmatfl1,e1,..,oC(,U|lE-h). ?.-t

I

FIR No. 238/2014

U/S:23 I ) A. S.A.A

P.S: Nazimabad -l'o,

'Ihe Registrar, I Honourable High Court of Sindh, Karachi.

I STII]JIiC T: RE,i'EIIENC E Ti}..I,T.]R S tlCTiON 37,1 CR.P.C. In- SPECIAL I CASE No. B-49U20t1 l,'t Ii \o. 86/20I3 L/S. 302/t t9l109 t34 PPC. It/W' SEC]'ION 7 OF ATA 1997 OIT P.S. GTiLI]A I t,,\ t{. I KARACHI ANI) SPE(]IA I- CASE NO. B- .192 /2 0l {. t,'t Il 1 NO.238/2014, triS. 2-1 (l)(A) ot, slNt)H ,\ ITPIS A( ',r, 20 t.1. P.S. \/\ZlllAu.\t). KA R.\( llt. s t.\'r [\' []t{st s t),\\ tst I R.t.t t I \TA\I S/O .,r\l{II.REII NI,\NI. T:Nt) ER SI|C'II()N 25(2) oF A.T.A. 1997.

Special Case No. B-491/2014, FIR No. 86/2013. Lr/S.

-102/l l9/109/3,1 PPC, R/W Section 7 of ATA 1997 of p.S. Gulbahar. Karachi and Special Case No. B-192t2()11, FIR No.238/2014, t.l/S. 23 (t)(r\) of Sin<ih Arms Act,20l-1, P.S. Nazimabnd, Karrchi have becn decided on 27.11.2021 and the accused Danish Rehmani S/o Arif Rehmani is sentenced and convicted tl^ 302(b) PPC to death sentence to be hanged.bt- neck tilt death.

'fhe accused Danish Ilehmani S/o Arif l{ehmani is atso scnlenced,rnd conlicted t]ls 7 (a) ()f Anti'I'errorisnr Act, 1997 to be hanged bl nerk ti!l death sertenca.lbr comntitting act of terrorism and causing deirth of Zain ui Ahidcen, however for conlirmation bv the Hon'ble lligh ('ourt ol. Sindh. Kararhi.

The R&P of the aforesaid hvo special cases are sent herewith in vierv of Section 374 Cr.I'C and Section 25(2) of ATA 1997 tbr conlirmation of death sentence or otherwise.

Kindly acknolvledge the receipt of the same.

t-=.-. Encl: R&P of above Special Cases.

t i" /, ti" "f 4

I

t (l\Is. NUZI{AT r\ RA /rLVI) .tti D(;ta AN'Il-'l llRRORISNI COtrlll' NO: ll

KAITACHI

J:,

3v.''

IN THE HIGH COURT OF SINDH, I(ARACFII

Spl. Criminal A.T. Appeal No.1tt9 of 2021.

Spl. Crinrinal A.T. Appeal No.l90 of 2021.

Conf. Case No.1l of 2021.

Presett:

Mr. lustice Nlolnnmrad Karim Khan A,ghu Mr. lustice Zulfiqar Ali Satgi,

Appellant: Muhammad Danish Rehmani S/o.

Muhammad Arif llehmatri through Mr. lJassa Il SnLrir, Advocate.

I{esponderrt: The State through Mr. Mtrhanrnratl lqbal Awan, Aclditional I'rosectttot General Sindh assisted [y I{.rrra I(halid, Special I'rosecttt tt t Rangers.

Date of hearing: 77.08.2022.

Date of Announcement: 22.08.2022.

TUDGMENT

MOHAI\TN{AD I(ARINI I(HAN A CllA. I:-'lhc a irpellar-rt Mtrh.r rnr rr.rrI Danish Rehmani S/ o. Muhammad Arif Ilehmani has preferretl tl-rcsc appeals against the judgment datecl 27.11,.2021 passed bv Leametl Jutlgc' Anti-Terrorism Court No.lI, Karachi in Special Case No.B-491 of 2011 arising crut of Crime No.86 of 2013 LI/s. 302, "119 ancl 34 PPC I{/w secliorr 7 A'f A 1.997 registered at PS Gul Bahar, Kar achi anrl Special Case No.ll-'192 of 2014 arising out of Crime No.238 of 2019 U /s.23(1XA) of Sinclh Arms Act registeretl at P.S. Nazimatracl, Karachi whereby the appellant Muharnmac{ Danish Rehrnani was convictecl ancl sentencetl to ricath (subject to confirmatiou by this court) U/s.302(tr) PPC as wcll as U/s. 7(a) of Anti-Terrorism Act, 1997. 'Ihe appellant was also cot-lvictctl ,rtrrl sentenced for Rigolous Imprisontnent of 07 years with fine of lts.50,000/ - U/s. 23(1)(A) of Sinrih Arms Act,2073.7

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2.The brief facts of the prosecution case as per F.l.[i. No.tt6/2()l'' Iodgecl on 18.05.2013 at about 2100 lrorrrs on the basts of statctncrrt Ll/s 154 Cr.PC of Complainant Khalid S/ o. Muhammacl Riaz brothel ol deceased Zain-ul-Abicleen are that on 17.05.2013 he was present at I-louse No.4-456, Block-D, North Nazimabad, Karachi when he leceivetl inforrnation at about 1215 arn in the nip;ht that his vounger brother Zairr- ul-Abicleerr alias Abicl Ilyas S/o. Shaikh Muhammad Ilvas agecl abotrt 4l' to 50 1't-.ars, hatl got tlown from his office at l-lanifia lJe;rvctr rrt'at'l.rtlti'r Masjitl Nazimabad No.2, Opp. Al-Farooq grount{ to sit i:.1 lris Car No.ADU-223, Make I-londa City Silver Colour for going to his lkrt-tst' No.1-A-9/3, Nazimabad, Karachi when at about cluarter to t'levt'tr orr 16.05.2013, he was fired upon by firearm which lead to his c{eath lh., people of the locality took him to Abbasi Shaheeti Flospital whcre hr'' u'as stopped and was giver-r tlre information that law and orcler situation has tlevelopetl, ancl the office bearers of Jamat-e-Islami had taken tht' clt'rt.l bociv to Jinnah Flospital antl as such he shoultl stav at the lltrust' lot preparation of the buria! of his btother who rn'as flx-tJ(l Nazint. U('- ltt Liaquatabad 'Iown, coordinator of City Nazitn, Naimatullah, antl \'vits L()- Worker of Jarnat-eJslarni; after 'Qul', he hacl come to thc Police Statiorr and lodged tl're FIR against unknowll person for killing his hrothcr Special Case No.B-492 of 2014 having FIR No.23tt/2014 was amalganralctl Case No.B-491/2014 having FIR No.86/2013 was treatetl as a urairt leading case anci the appellant was convicted and sentencecl through a consolidated judgrnent as mentioned earlier in this iudgment.

3.After completion of investigahon I.O submittetl chargt' shct't against the accused Person on 04.02.2015 to whiclr he pleatleil rlot gtriltt' anci claimed trial.

4.'fhe prosecution in orcler to Prove its casc' exatnincll 14 wittrt'ssc* I and exhibited various documents and other iteltrs. The statell.lt'tlt ()l accusetl was recorded under Section 342 Cr'.P.C in which he derriec{ all tht allegations leveletl against hin aucl clairned false irnplication.

5.After hearing the parties and appreciating the evitlenct' on rt'tttrtl the trial court convictetl the appellant anti sentenced hinr as statcr-l cat lit't

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in this iudgn-rent and hence, the appellant has filed these app-reit I .rllairrst his corrviction atld seutences.

6.The facts of the case as well as evidence prorlucerl t-refot'c- the trial court find an elaborate rnention in the impugneci judgmeut r"iatetl 27.1'1.2027 passed by the trial court and, therefore, the same nlav n()l b(' reproducec{ here so as to avoid duplication ancl unnecessary repetitiorl.

7.Learnecl counsel for the appellant has contendecl that the appellant is completely innocent ancl has been falsely implicated in this case bt, tlrt. police; that the sole eye witnesses evidence cannot be safely reliecl Lrl,orr ancl even the appellant's identification parade u,as legally eielectivc; th.rt key witnesses Naclvi antl Waji who were with the rleceascr.l at the tinrt'rrl his cleath were not examinetl; that the vehicle in rvhich the victinr wit:, r.lriving was not taken into possession anci thtrs it canllot Lre asct rtlirrt.rI rvhether anv bullet stluck it; that the pistol was foisted on the aprPgll.11rl [i, the peli59; that no attempt rvas nratle to track rlown an1,of the co-tlccLrst,ri and that for an1, or all of the above reasons the accused shoultl [.,t, acquitteci of the charge by being extended the benefit of the tloubt. ln support of his contentions he has placed reliance on the case of Maqbool alias Booli v Shaukat Ali (2011 Yl-R 1207).

8.On the other hanrl learnetl APG appearing on behali of th(,St.rr(, assisted by special prosecutor rangers has fully supportetl the impugncti judgment and contended that the appeal is without merit ancl shoulc{ bt, dismissed with the confirmatior"r reference being answereci iu tht affirmative.

9.We have heard the arguments of the learned counsel for the parties, gone tluough the entire evitlence which has been read out lrv tht, appellant's counsel, ancl the in-rpugnetl iuclgment with their' .rlrlt. assistance and have considered the relevant law including the case lau citerl at the bar.

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10.At the outset based on the prosecution et,iclence, espoci,rllv recover)/ of empties at the scene and medical evirlence we find that tht prosecutior-r has provecl beyond a reasonable cloubt that on 16.05.2011.rt about 2345 hours Zainul Abideen (the deceased) was shot and nrur.rlcrerl by firearm whilst sitting in his car on the wav home to his house at No.l t

-t !r A-9/3 Nazimabacl Karachi, ln fact this is an admittecl positiott t )' lc'altre.l counsel on behalf of the appellant ancl as such is not in dispute

11.The only question left before us therefore is ra'l-ro shot ancl murdered the deceased at the said time, date antl location?

'12. After our reassessment of the eviclence'wc finti that the prosecutiotr has NOT provetl bevond a rcasonable cloubt the charge agailrst thi appellant for which he was convicted keeping in view that each crirniu.tl case is based on its own particular facts, circutnstances ancl evidencc.

(a)Although there was a delay of over a day in lotlgirlg thc [;lli rvt' do not consider this fatal to the Prosecution case bascel otl tht' particular facts anc'l circunmtances oI this cast: as such elt:lav ha' been explaiued by tl"re complainant who lodgecl the FIR a{ter the iuneral of the cleceased. What is of significance however is that tht' FIR is against unknown persons without any descriptiou of thost' Irers()ns bein8 given in the FIR.

1L.r) Irr our vieu'the Lrrosecution's case [ests almost c'xclusivclt' orl the evirlerrce of the sole ey,e witness to the incictent.rn!l his.1lrilih' k) correctly iclentiiy the appellarrt who allegeellv cal1le t)rl a trtt[ot'[rik,.' along with others and fired on the r{eceasetl wltost' evielc'trt t' tr t' shall consider in tletail below;

(i)Eye witness PW 12. Muharnmed Faisal. Accorclirrg to his evidence on 16.05.2013 whilst he was going through lrartxrtl ground he hearcl the souncl of firing. LIe lvas afraitl antl hiti himself in a gali. I{e saw four boys going on two tu()t()r cycles while iiring. Tl-rat on 19.05.2013 whilst using the satnt' route he saw a rush of people ancl police interrogatinl; them I-Ie voluntarily becalne a witness and gave his statemctrt t() the police who took his address ancl telephotre nutrrtrtr'. Irt 2014 IO Abdul Rel]rnan contacted him and on 11.07.2()14 ht pickecl out the accusecl at an iclentification paradc hclel trr a iuciicial raagistrate without assigning him any rolc in his evidence.

According to the evidence oI this witness he was workinli irr Nazimabatl at a i)rinting Press at the tilne of the incitlt'rrt [rtri at the time of giving evidence he gave his occupation as.r rickshaw driver which tends to caste doubt on what tht' actual job of the witness was and whether in fact he u'as.r chance or planted u,ihress. According to his evielence ht' witnessecl the incident from a gali at 11.45pm at uight ra'lren it was dark. There is no eviclence on recorcl tltat therc u'ls any source of light at that time and it is unclear horn' lat away he was from the firing whiclr wor.rlcl ottlr- have ll()llt'()ll for a brief moment antl under chaotic circumstances. Unt{t't such circumstances it is r"loubtful that even if tht'willrt'ss u'lr' present he woulcl have been able to correctly itletltilr' tht' appellar-rt of whom he would have onl1' got a fleetirrg glanc.'2

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ou seeing him for the first time

Accortling to his er.icleuce hc gave his statelrlcltt to the policc 3 clavs after the incic{ent alorrg with his rrar.ne anrl at{tircss howevel he ra,as not contacter-l bv the iilst 10 tlesPitc hinr being a really important witness who originally submittcrl his report in "A" class without arry mention of thc t'v| witness which again raises doubt that he was even present ,rt the time of the incident.

It is true that the e),e witness recognizecl thc appcllilll 11111, year and 2 months after the incident before an itlentification parade when called by the new IO Abdul Rehman rvlr,, some how miraculously came across his rletails cltspitt'tht' eve witness not evelt being rnentionetl in his supple rncut.trr challon ciatecl 08.09.2014.'fhe eye witness harl not givt'n.tuv hulia of the appellant to anv olte prior to the icltntilic.rtion paracle. The appellant was irr policc custodv until tht, identificatirrn parade and claims that he was sholr. u to tht' eye witness bv the police prior to the identificatir)n l)ar.trl(' ancl even in his evidence the eye witness states that, "I had identified the accused six years back and now I cnnnot nrentorize who I had identified and tlrerefore today (in court) I will not lre able to identify the acctrsed who I identified before the magistrate". It is also relevant that th(, identification paracle was carried out olle lnontll after. tht, alleger'l arrcst of the accusecl by the police anti r.ro explanation has been given for such clelav and throurllrorrl this time the appellant lt-.mained in polrcr' ctrstor.l\' lvlrr, coulcl L're shown to an1, potential eyc witness pl'i()r' tr) .ur\ iderrtifica tior.r praratle.

It is true that we can convict based on the evirlence of a solt, eye witness however baserl on the particular facts a nrl circumstances of this case as discusserl above we [ir.rrl that even if the eye witness was pr.eseltt at tht tir.no ol thr incident, which we very mueh doubt, base,.l on thr reasonr mentioned above he would not lrave been able to cor.rectl1., safely and reliably identify ttre appellant and as suclr r.r,t, veer on the side of caution in this case especiallv as tlrer.t' apPears to be hardly any cogent corroborative or supp()rti\,(, evidence antl find that the eye witness was not ;rblc trr correctly identify the appellant.

In this respect reliance is placed on the case of Javed Khan V State (2017 SCMR 524) concerning the necessitv f()r nn e.rrl\ hulia/ description of an accuser-i by an eye witncss iu his S.161 Cr.PC statement before an iclerrtification paratlr'anti the neetl to strictly follow the rules governing iclentificatron parades where it was heltl as under at P.52tl to 530:

"7. We hntte laard the lenrned counsel nnd gone lltrttrlJt tltt record. Tlre proseuttiott cnse resls on llrc postlit,e irlcnlrlttrtltol proceedings nnd the Forensic Scienc? Lnborntonl rcport utlutlt stites tlnt the bullet casing sent to it (ruhich runs stated lo ltrn,r, becn picked up front tlrc cime scene) ruas.firerl.from tfu srnnc pistol t

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(tuliclt tuas recouert:d .fron llnces Khrrlt irt nrtotlur orst) [\r' tlere.fore proceed to consider botlt these nspects of //tr' r'nsc As regards tlrc iilefiificatiotr proceedings antl thcir contexl tiere is a long line of pteceilents stating that identification proceeilittgs 'Entperor must be carefully cotrducted' lrt Rnttt:n.tt t' (Alll 1g2g Sid'149) Pcrceul. lC, a'rrtittg for tlu' lttdir trtl Conmnssionar's Court (thc prrcursor of tlrr: Iligh Cottrl of ltrtrlltt helrl tlmt, "The recognition of a dacoit or othar offender bq a person znho has not preuiouslq seen hhn is, I think' a.fotnt of 'eaidence, uthich lns 51!7says to be taken utith a c<trrsiderablr amouttt of caution, because mistakes are alu'als pttssiblr in '149, cohunn 2). In Alitt t'. Slntu (l)l'l) l()t'" such cascs" (pngc SC 307) Contelitrs Cl' roln hnd delit'ered lhe ltrlSnrcttl il lltt'' Court, rpith regnrd to the mnlter o.f idanti.ficnlton ltnrurlts lt''l'l that, "Their lrpitnesses] opportunities /or obsenratitttt o.l' tltt ctrlpit uere extremely limitett. Tlry had nez'cr seur hinr beforc. They had pickett out thc nssailanl al llrt identi.fication parades, but therc is a clcat possiltility arisitr'; out of their statemcnts that theV were assisted to io so lttl being shozun the accused persot earlier" (pnge 3-13t') ltt ltl '142) Dornb Pntrl l, itlto lrtr'l Pasind t,. Stnte (PLD 1981 SC delit'ercd the iurlgncnt of tlis Cortt, held that, il a utitness Itrrrl trot giuen a description of the assailant in his stat?m()tt to tlrc i'olice ancl idcnti|icatiott toole placa lour or fiue tnrmlhs after the nutrder it toould, "rcact against llrr: r:nlirt proseaiion case" (page 145C). ln a nnre ract'ltl ludgtnatrl ol lltr Court, lnu'ttn Ashrnf t. Stnte (200't SCMR 424). rtlticlt rnr' mttlnred hy l.ftikhnr Muhnnmnd Chnudltry J, this Courl ln'hl lltrtl, it must he ersured that the itlefiifilirrg tuitttcsses utst "ttol sce tlrc accused after tlrc commission o/ thc crimt till tlu' iclentification paradc is helil inrmciliately after thc .trr(st ol the accused persons as earlq as possible" (7rgc 4851't 8, The Complainant (PW'S) had not mentiotred atq featrrres in the FIR or in his stntcllt?,l| of the assailattts either-161, recortleil undcr scctiotr Ct.P,C. therefore tlrcrt tltts tttt benchmark against ushiclr to test zulrctlrcr thc appellotrls, zoho he hail iitentified after ouer a year of the crimc, nrd who he had fleetinghl seen, utete ht fact tha actrutl cttlprits' Neither o.l' the truo Magtstratcs hnd t:erttficd tlnl in llt' identi.fication proccedings tha othr ltersons, a rcfi1sl u'lttttn lltr nppeltants roere placcd, uere o.f sinrilnr nge, leiglrt, Itrtrll ttrrl colonring. The mait object of iilentiJication ptoceedings i.s trt enablc a uitrrcss to propetly identify fi Person inttoluad itt 't crime and to exclude the possibilitrl of a u'itness sinrpltl confinting a faint recollection or impression, that is, o.f ott old, young, tall, short, lat, thin, darlc or fair suspect ,...

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9.As regards the identifcntion o.f tlte appellants ba.forc lln' tial court by Nasir Mehboob (PW-S), Subedr Melmtoorl Altttr''l Khnn (PW-5) and ldress Mrthanmnrl (PW-7) tlml lut tlill tnt tssist tlrc Prosccution becnusc these ?{'itfl?sses 1x1l I 1111tltr ol opportunities to see thent be.fora their staterucnts utre rtcorrtt'rl. ltt Stnte r. Ftrnmn (PLD 1985 SC 1), the nmjoritv iltdgnttrt ol ulttlt tpas dutlnretl by Ajmnt Mian l, the learned iudge had lrcld llutt an identification parade u)as nccessnnl u'hcn tlrc u'itncss onlq had a flecting glimpsc of an acarsed Toho ttJtts tt a?

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f"t stranger as compared to an accused uho tlrc ruitnoss hatl preztiortslq met a number of tines (pagc 25V). I lu, srnttL a principle runs follou,ed in tlrc unrtnintous jndgnrnt o.f tlt$ (:ourt, delipered hy Nasir Aslnnt Zahid l, in llrc cnse o.f Mnntr Alunnrl t' Stnte ('1998 SCMR 752), itt tpltich cnse tfu nhfuLctee lnd rcmarntl uith tlrc nbductors.for sorue tinrc and on sererd occasrons luul stttt their Jitces. ln the present type of case the culprits totrr rcquired to bc identificil thrortgh proyer irlentifictl io rt proceedings, ltotoeztcr, thc ,nanfier in u'hich tht identification proccedings zoere contlucted raise serious doubts (as noted abooe) on the credibilitv o/ the process. The identification ol the appellants in court bu euc- tuitflesses uho ltad seen the culprits fleetifiglV once u'ortld ltt inconsequentiaL " (txrld added)

The Supreme Court case of Mian Sohail Ahmed V State (2019 SCMR 956) has also emphasizecl the care anri cautrLrn which must be taken by the courts in ensuring that .t!'l unknown accusecl is correctly iclentifietl. [:r fact such extr.r care and caution in relving on it{er.rtification p;rratlrs is.rrr accePted global phenomena in most crilnrnal jurisrlictions ,r. the possibility of deliberately or mistakenly pickirrg ou t a wrong pel'son from arr identification parade antl seneliug arr innocent man to iail or in this country potentiallv k) the gallorvs is very much recognized and thus most jurisclictions (inclur.ling Pakistan) have put in place mandatorv guitlelines to greatly lirnit the chances of sucl'r incorrect identification.

Thus, having found that the sole eye witness wotrld not have been able to correctly, safely and reliably identify the.lppellanr the conduct of the iderrtification parade bcconres irr consequential.

(c)With no eye witness evidence to the identit), who carrieti out tht attack the rnedical evidence becomes inconsecluential as it carr onlr reveal what kind of weapon/device was used anrl the se.rt Lrf tlrL, iniuries of the deatl ancl injurecl. It carulot identify the persou wlrt, inflicted the injuries.

(cl)It is notable that the appellant confessed to the offerrce whilst in police custody however he was not produced before a magistratc t() record his confession under 5.164 Cr.PC clespite being prorlucctl before a magistrate for an identification parade ancl thus u,t. pl.rr l no reliance on his confession allegedlv rnade before the police.

(e)lt tloes not appeal to logic, reason or comlnonsellsc that tlt., I appellant would confess to such a serious crime as the prescnt orrc which carried the death penalty whilst in police custorlv whon there was no evidence against him at the tirne of his arrest.

(f)ln fact it appears from the evidence on recortl that the appellarJt was arrested by the rangers after he returned to Karachi at Kal i,. hi international airport w hich leatl to his relative rllovlng a/p"titi,'n before the Sindh Hig h Coult about hi se duction anti illtr;ia I tletention. Thercaftet it appears that it as revealed that tht' accusecl was kept in rangers custody un S.11 (EE) A-1'A tre[()rr L

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being handed over to the police based on the findir-rgs in a Jl'l report which allegedty implicated the accused in this case. The JI'l report was not exhibited at trial and in anv event its eviclerrtiarv value is only equivalent to that of a 5.173 Cr.PC rePort. There is no evidence a part from the police witllesses that the accused was evor held in Central prison Karachi ancl released from the santt'and tltett inmeLliately arrester{ by the police. No prisorr entry or r-leparturt' entrv by the so callecl arrcsting police was cver exhibitt'tl .lt tliaL Even one of the arresting police witnesses PW 8 Rt:han u'as cleclared hostile on this asPect of the case. lt appears that thc accused was handed over to the police b), the raugers r.r'ht, implicated him in this case l-rasecl on the JIT report which was Il()t exhibitecl and thereafter the evidence against him begarr to miraculously flow such as the uewly found eve witucss, t ht' recovery of the pistol on the pointation of the accuscrl whrch is denied by him and dicl not even produce a Positive ISI- repolt when matched with the empties found at the scene. Convetrictrtll, the police tlid not even take tl're statements of Waji ancl Natlvi wlro were with the accused at the tirne of the shooting ancl were verr vital witnesses both of whonr they were aware of. In short n't' lirrrl that the whole prosecution story is full of holes and r'loes rrot 11111' true. Even PW 13 Iahir Islam who was one of the mashirs tli lh. recovered pistol's evidence appears t<l be wholly unreliablc antl tht' aspect of the pistol being foistecl on the accused by the p1rli1-1 cannot be rulerl out

(g)The appellarrt taking the police to the plact' of tvartl.rt r' irrelevant as the police already knew where the place rrt w.l I rl.t ( was.

(h)We have also examined tlre defence case which is one of falst' implicatiol which when placed in juxtaposition with tl-rt prosecution evidence tliscussed above cannot be com[,lotclr ignoretl out of hantl especially as the accuserl hacl no CI{O.

13.That the prosecution must prove its case against thc .rccus('(l beyond a reasonable doubt and that the benefit of doubt must go to tht' accused by way of right as opposeti to concession. In this respect roliancr is placed on the case of Tariq Pervez V/s. The State (1995 SCMI{ 1345). wherein the Supreme Court has observed as follows:- "lt is settlerl law thnt it is not necessanl tlnt lhere should be nntttl circuntstanccs creating douhts. l.f there is n single ciratmstnnca, toltich creates reasonable doubt in n prudent ndnd ahout the guilt ol tlre ncursed, tlvn tle accused u,ill be entitled to tlrc beneftt not rc n mntter o.f grace nnd. concession hut ns n nmtter of right."

1,4- For the reasons discusse<I above by extencling the benetit ol tlrt' cloubt to the appellant he is acquitted of the charge, the impulinctl judgment is set aside, his appeal is allowed, the confirmation referencc is

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arxwered in the negative and the appellant shall be releaser,l unless wanteci in any other custody case.

15.The appeal and confirmation reference stancl disposed of irr tlrc above terms.

JU 2z I ,:7 LL

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