TAHIR HUSSAIN MINHAS @ SAIN S/O KHADIM HUSSAIN (Appellant) VS THE STATE (Respondent)

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CERTIFI CATE OF THE HIG H COURT OF SINDH KARACLII

Spl. Criminal Anti-Terrorism Jail Appeal NO. 06 of 2021 Spl. Criminal Anti-Terrorism Jail Appeal NO. 07 of 2021 Tahir Hussain @ Saeen & another

Vs

The State

HIGH COUR T OF SINDH

Com sit iotl 0 Bench. D.B.

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

Date(s) ofhearing: 24-08-2022

Decided on : 29-08-2022

Judgment approved for Reporting Yes

CERTIFICATE

c91ified that the judgment */order is based upon or enunciates a principle oflaw */decides a question of law which is of first impression/distinguishes/. over-rules/ reverses/explains a previous decision.

* Strike out whichever is not applicable.

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

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

(iii)Reader must ask the Judge writing the Judgment whether the Judgment is approved for reporting.

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

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N THE HIGH COURT OF SINDH AT KARACHI

Special Anti Terrorism Court Through ,ll l:i lail Appeal No-----Q&---- --of 202t

Itssein Minhas @ Sain ,

Hussain, Muslim Adult, R/o

confined at Central prison, Karach'--__________ApplicanV Accused

VERSUS

f,[e -fnti Terrorism Cor.rrt, Karachi.

I

Respondent

FIR No. 59612013

uls 302t324t34PPC, R/W Section 7 ATA, 1997

P.S. Shahra-e-Faisal, Karachi

ICATION LTNDER SECTIO N 25 OF THE ANT I TERRORISM

.{CT 1997 AGAINST J UDGMENT D ATED l9-12-2020

t aggrieved and dissatisfied with the judgment, dated l9-12-2020. E"c b'.'the Learned VIIIth Tenorism Cour1, inside Central Jail, Karachi, l*, Special Case No. 2l12020.

$f.O Copy of Judgment Datcd l9-l2-2020, is attached herervith ancl "r.{nnexure,,p", f* [* O, rhe Applicant/ Accused Tahir Hussain Minhas@ Sain, Son ol. iG Hussain has been convicted ancl sentenced as under:

Ur:der Section 7(i)(a)of ATA 1997, R/w Section 302/324/34 p.p.C . He is liable to pay fine ofRs. 500,000/- each and in case of'delault ro

aL

IN THE HIGH COURT OF SINDH AT KARACHI

Special Anti Terrorism Court Through

Jai I Appea I No-- -- ---o--? - - - - - of 202| Aziz@ Tun Tun,

B

Aziz Shaikh, Muslim Adult, R/o

..-o.--A:-4f --h-(-ox-2,-Ailk8o,*.e.!g,!,a.*s2u,' lv confined at Central Prison, Karachi-----------Applicant/ Petitioner

VERST]S

th Anti Terrorism Court, Karachi.

FIR No. 59612013

uls 3021324134 PPC, R/W Section 7 ATA, 1997

P.S. Shahra-e-Faisal, Karachi

ATION ER SECTION 25 O F THE ANTI TERRORISM

A,CT.I997. AGAINST JLIDGMENT DATED I9-I2-2020.

ffi red and dissatisfied with the judgment, dated l9-12-2020' fre Leamed VIIIth Terrorism Courl, inside Central Jail, Karachi' I Case No. 2112020.

, ofJudgment Dated l9-12-2020, is attached herewith and Atrnerure ttP".

.lpplicant/ Petitioner Saad Aziz @ Tun Tun, Son ol Aziz convicted and sentenced as under:

7(i)(a)of ATA 1997, tuw Section 3021324134 P P'C ' ,, $S..,io" r to oav fine ofRs. 500.000/- each and in case oldefault to

U^ '<IJJ-' s)

IN THE HIGH COURT OF SINDH, I(ARACHI

Prcsent:

Mr. ltrsticc Moltarnmad Ksrin Khan Agha Mr. lustice Zulfiqar Ali Sangi,

Spl. Criminal A.T lail Appeal No.06 of 2021.

Appellant: Tahir Hussain Minhas @ Sain S/o.

I(hadim Hussain through l\'Ir.

Iftikhar Ahmed Shah, Advocate.

Respondent: The State throrrgl.r Mr. Muhatnmad Iqbal Awan, Additiorral Prosectttor Ge neral Sindh.

Spl. Criminal A.T Jail Appeal No.07 of 2021.

Appell.rut: Saad Aziz @ Tin Tin S/o. Azi'z Shaikh throttgh Mr. Iftikhar Ahmed Shah, Advocate.

Respondent: Tl.re State throtrgh Mr. Mtrhammad Iqbal Awan, Additional Prosectttor General Sindh.

Date of hearing: 24.08.7022.

Date of Annotrncement 29.08.2022.

IUDGil,IENT

I\{OHAMMAD I(ARIM I(HAN AGHA, l:- Thc a ppellants Tahir Hussairr Minhas alias Sain S/o. Khadirn Hussain and Saad Aziz alias Tin Tin S/o. Aziz Shaikh have preferred these appeals against the judgment datecl "19.'12.2020 passed by Lealned lucige, Anti-Terrorism Court No.VIII, Karachi in New Special Case No.21 of 2020 arising out of Crirne No.596 of 20'13 U / s. 302, 324,34 PPC R/w. section 7 of AT A 1997 registeletl at P.S.

Shahrah-e-Faisal, Karachi whereby the appellants Tahir Hussain Minhas alias Sain S/o. Khactim Hussain aucl Saacl Azi.z alias Tin Tin S/o Aziz Shaikh wele convicted and sentenced to life irnprisonment along with fine of Rs.500,000/- to each appellant. In case of default in payment of fine they would further undergo implisonment for 03 years more.

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2.The brief facts of the prosecution case as per F.I.R. lodged by the complainant Rahat Bashir S/o. Bashir Ahmed vide his statement u/s. 154 Cr.PC are that on 05.09.2013 l.re received information thr.ough phone that his brother Captain Nadeem Ahmed aged 46 years, has received fireatm injury and l-re has been taken to PNS Shifa. He irnrnediately proceecled to the hospital ancl en route to the hospital, he again received a phone call that his brother has been shifted to Aga Khan Hospital. He reached to Agha Khan Hospital Emer.gency War.d, where he come to know that his brother succumbed to his injuries arrd had died and his deacl body was shifted to the Jinnah Hospital for postmortem. After postmortem arrci funeral proceedings, he came to P.S. for tegal proceedings against the culprits. On inquiry, he came to kuow that his brother Captain Nadeem Ahn-red along with his wife in car bearing No.W-8799 Make Margalla Ilecl colour', was going to his office at PNS Johar from his l-rorne at about 0800 ant, when he reached at Karsaz Roacl near Bridge, some unknown person/persons firecl with deaclll, wg1p611s upon his brother.and his sister. in law, and as a result his brother expired ancl sister in law Dr.. Tr.a1,6gg g.1 injured and was under treahnent at PNS Shifa. Ilis claim is agait.rst unknown person/per.sons ra,ho fir.ec{ upon his brother and sister in law with firearm weapon. On his disclosure in his statement u/s 154 Cr.pC, FIR was lodged at the police station.

3.Tl're investigatiou of the instant crime was entrusted to SIp Farooq Azanl he also continued search of the accused persons, but he did not succeed and subrnitted final report in "A Class" of the absconc.lihg accused persons. On 29.06.201,5, he caure to know that accusecl per.sons arrestecl in CTD Civil Lines and have adrnitted their involvement in the present crime of PS Shahr.ah-e-Faisal. On such information, SIP Faroocl Azam proceeded there and interrogated the accused persons. Accuseci persons admitted their involvement in the present crime, as such Sli) Farooq Azam arrested the accused persons in the instant cl.ime ancl obtained police custody remand from the Court. Since the deceased was Naval Officer, I/O addeLl section 7 ATA in the instant crin-re. The investigation of the crime was etltrusted to PI Hayatullah. PI Flayatulllh obtained remand of the accusecl persons from ATC Court-l alcl ,

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intelrogated the accused persons. During interrogation, the accusecl persons admitted that on 04.09.2013, they proceeded along with their companion Umar alias faved and spotted one Naval Officer along with one English Lady at about 0g:00 am near Nationar Stadium KDA scheme No.1, and shot fires upon them in their car, as a result, Naval Officer.died and one lady wiro was accompanied with him got injurecl. The accusecl pelsons during the interrogation, offered to point out the place of incir,jent on which PI/SIO visitecl there ancl preparecl memo of site inspection ar_rti site sketch of the place of incident and he also produced the eye witness befole Magistrate for iclentification parade ancl producecl its cop1,.

Thereafter, I/O completed irrvestigation of the case and sent the iinal report to Administrative Judge ATCs for approval. The case was approved and transferred to ATC for trial of the accused persons according to law.

4.The accused plead not guilty to the charge and claimed trial. The prosecution i, order to prove its case examined 13 witnesses a.cl exhibited various documents and other items. The statements of accusecl weLe recorded under Section 242 Cr.p.C in which they deniecl all the allegations leveled against them.

5.After hear.ing the parties and appreciating the eviclence on recorcl the trial court convictecl the appellants and sentencecl them as statecl earlier in this judgment and hence, the appellants have filed these appeals agat'Ist their convictions and sentences.

6.The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned iudgment datecl 79.12.2020 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary tepetition.

7.Learned counsel for the appellants has contendecl that the appellants are completely irurocent and have been falsely irnplicated ir_r this case by the police in orcler to show their efficiency; that the sole eye witnesses evidence cannot be safely reliecl upon as he is a put up witness and even the appellant's identification parade was legally defectiVe; that

)e injured eye witness Dr.Tr withou t anv exprana tion; ,ra t no medica, i:1:^i'- ll"' Dr'Tracy's ",,0".." tt t""o"tt of""::'"0 trrat tl-re verricre ir.r *r.,r., iltiuries was produced; the victim was driving was immediate possession; not taken i.to ,nr appe,ants ar.rd that ror be acquirted of the ",,;.".::,:H:J,J:Xl, :::.:::;:j[ charge by being extended suppor.t of his contentions ,r-." 0".";; ;;; ffi;^ he has placed reliance on the cases Sughra Begum and anoth ", ;r;.

1142), Mst. Rukhsana SCMR 596), Muhammad ,;J "::";::::';;TT; :,;::i:I; Irshad v. Allah Ditta and others (2017 SCMR 142), Muhammad Shafqar v. The Srate

(1970 SCMR 713),

Tufail v' The state (2012 Muhammacl scMR 1845), Gurfam and another v. The state

(2017 SCMR 1189),

Kanrat Din alias I(amala v. The State (2018 SCMR 577), Muhammad yarneen alias Raja v. The State and others (2009 SCMR 84) and Javed I(han alias B and another v' The state (2017scMR 524r. "tna and another

8.On the other hand on berralf of trre state has fuuy supported ,.," ,'::::: i*,appearing ,;t:ffi:.:::,:";ff::jT appear is without,,*,, reLed ou evidence of

the eye witness whose identification evidence appellants is correct of the ancl is trust wort}r-Y conficlence inspiring safely reried upon and can be wrricrr ,, su pp orr or rris con ten tio"" ;'l],;;::'."::::l ::iff::: ;ff :: : din and another v. The Stal Ehsan v. rhe stare State (2002 SCMR (1006 scMJ#[fH^#;t].:::ffi:

9.We have heard the ar-Suments of the learned counsel for the parties' gone tfuough the entire t'''"nt" which has been reacl appeflants, counser, out by the ur.,o impugrred judgment assistance and have with their abre considt :red the relevant law including the case law cited at the bar.

10.At the outset based o:

^., J"::;:'j:'I:"jJHff::il,#::::: or trre car at the scene has proved beyond a reasonable doubt that on 24.09.2073at about 0g00

houls at Karsaz Main Road near bridge opposite national stadium l(arachi Y Dr. Nadeem Ahmed was shot by firear-m whilst sitting in car bearing registration No.W-8799 along with his wife and that Dr.Nadeem Ahmetl (the deceased) died on account of his firearm injuries at the said time, date and location.

11.The only question left before us therefore is who shot arrtl murdered the deceasecl and injured his wife at the said time," date an.1 location?

7?. After our reassessment of the evidence we find that the prosecutior.t has NOT proved beyond a reasonable doubt the charge against the appellants for which they l.rave been convicted keeping in view that each criminal case is based on its own particular facts, circumstances anrl evidence for the following reasons;

(a)Although there was a delay of about 19 hours in lodging the FIR we do not consider this fatal to the prosecution case b"ased on the particular facts ancl circumstances of this case as such delay has been explained by the complainant who lodged the FIR after the luneral of the deceased. What is of significance however that is the FIR is against unknown persons witiout any description of those pelsons being given in the FiR.

(b)ln our view the prosecution,s case rests almost exclusively orr the evidence of the sole eye witness to the incident and his abiliiy to correctly identify the appellants who allegeclly came on a motor bike and fired on the deceased and his vs'ife whose evidence we shall consider. in detail below;

(i)Eye witness PW 11. Mansoor Ahmed. According to his evidence on 04.03.2013 he was coming from Dhoraji lo bring his mechanic when he saw a red col6ured car stopped at

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traffic signal. He then saw two accused arrive on a motor bike and fire on the car. The women was injured and the husband died on the spot and were taken to hlspital and he went to his shop. On 07.04.2013 he informed the police that he was an eye witness to the incident anci in 2015 he picked out the appellants at an identification parade as the persons who committed the crime. According to his evidence he was about 25 to 30 feet from the incident when it occurrecl in dav Iight.

At the outset we find this witness to be a chance witness as he had no reason to be present at the time of the incident. ln this respect reliance is placed on the cases of Strghra Begum (Supra), Ms Rukhsana Begum (Supra) and i,Iuhamr"necl Irshad (Supra) which castes cloubt on his evidence.

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Furthennore, in his t states that he witnessect rncident on on.* ,rT]1."T-" .he ttre

r:ltn::i1,,,'Jm[i:'{:f ci'"^l'is li:.,'ji*::::u;:t*l:

s 161 cr,Pc er statement L ;il';;:^t;:t,.0:-r?r.l;'-;.;:, Derore the incident.

i^r'ihtess stateme"iJ,C.,.

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(,cr says that he oave ;:ffii lt15 syf examination ;;;.;':Jt -'-"er,the. incident duiing his cross contradictoiy to his "ria"n.u i,.-.. .t,i"i',"' l.-,t_ " ^":eletely *ll"-h." witnessed and gave il;;;;'J-J.l:jl tle inci.rerrt that lhe p"i[" ,.r"ir-.1:T"::.q: PC statemenr. It is notaule vu. ,lr" disposed of in "A" "y" -i,;"5."ij :::-'l"iallv crass jl;lr;:jylii:',##:n41.il'!:":"ffi ;m; a put,p incident anti that t;itr he is ""ar.."iirrr,"irl,1,i"1t'."' "" According to his evidr j[:1:;

:hi:,;#dii: ll i:,.i!)#,".|' :ff : i: ;:; I ;llllru*inil.ffi j:i','f ;l::i',iiJi::,i:i1;

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and comriitteJ irr" i.# *L:"'::d came on .oto. .y.r" .oped in, ,nlil'ri*.ijn',::-"'"t the police seem to have

;il""..l[:*";;r;;"r*;18,;T:"S"y]::;l;:,*,;l; He would havs 61ly s61 fleeting glance of ne_ was driving the incidenr as rry ,.ia r,1 t"' know the accused before and tlt'"t ;'" frorn 'd"':;::^:jl ,ll'il,i': j:i,l;1*jt?i*,:.fi #":i:u;:::l;:TlI ,1::[.T,ix"#']#;;ffi ,'::1[TTH','I.1"15:?'::: The identificari j"^',' was he rl 2 yea rs "n".,r.," 1.., specific ;ffi:",:'j,^,,,]:.r..out::u.r.

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roles t.*-r".'l'il,3lled the accused wirtr sav ,h^,,! "r 'trD uross exanrination he has this t., oen tilica i,iii' t t,i t i' )i..r nt city rion p ar a de,,, i t i, * )*1.,' ii' s^yfe,st ;,;:^:::.,:,, .i*:t ,ouri 1o, ,ai",inrr,i",."i,r,,o. i;,';";:,,::;,;:,,;r::::,::,i:,!i"i;!ii;;il,i,;:;,;:ii, ,i1i"1",:.:::,,:yii",{.,'i,,i'",,1!X!!irJi:H,:::::thatthe ties jn with u,u vIH:.^.Ijl,.n r \- state,rents ,..*"JjJ"L;- j::l,ll,.:,i",, \roIIIr Ill tilelr 5.342 that the ey^ ,..,,--"-".".

tdentified the accused on the direction" or tnu potiJu. ""trtess

Wfr:trf#3':i"'iffi :rl!,,Wiilii

:t:i:is rfuin;{:ffi was i,*l:i, :,,T :.::nr,:,:

also a joint identification

parade and took place 16 <lays after the arrest of the accused which clelay has not been explained and also gave the police ample time and opportunity to show the eye witness to the accusecl who were in police custody.ln this respect reliance is placed on the cases of Gulfam (Supra), I(amal Din (Supra) and I(anwar Anwaar AIi, Special fudicial Magistrate: in the matter of Criminal Miscellaneous Application No.183 of 2079 in Criminal appeal No.259 of 2018 (PLD 2019 Supleme Court 488)

It is tlue that we can convict based on the evidence of a sole eye witness however based on tl-re particular facts aud circumstances of this case as discussed above we find that even if the eye witness was present at the time of the incident , which we very much doubt, based on the reasons mentioned above he would not have been able to correctly, safely anJ reliably iclentify the appellants and as such we veel on tl-re side of caution in this case especially as there appears to be hardly any cogent corroborative or supportive eviclence and find that the eye witness was not able to corlectly identify the appellants.

In this respect reliance is placed on the case of Javed l(han V State (2017 SCMR 524) concerning the necessity for an earlv hulia/ description of an accused by an eye witness in his 5.161 Cr.PC statement before an identification parade ancl the need to strictly follow the rules governing identification parades where it was held as under at P.528 to 530:

"7. We hnpe lrcnrd tlrc lennretl corotsel nntl gone througlt tlrc record. Tlrc prosecution case rests on tlrc positiue identifctttiotr proceedings and tlrc Forensic Science Laboratory report tolriclt states tlnt the Lnilet casing sent to it (tthich ruas stfitetl to l10tv been picked up from tlrc crinte scene) uas fired from tlrc sante pistol (tohich tuas recoaered Raees Khan in nnother case). We front therefore proceed to consider both tlese aspects of the case. As regards the identification proceedings afld theit context there is,a long line of precedents stating that identification proceedings must be carefulty conducteil. In Rintzan t, Emperor (AIR 1929 Sid 149) Perceaal, lC, writing t'or the Judictnl Co_mmissioner's Court (tlte precursol of the High Court of Sindh) heLd that, 'The recognition of a dacoit or oilrer olfeniter by a person zoho has not preoiortsly seen him is, I thintc, a form of eaiilence, zohich has always to be talcen utith a consirlerable amo,unt o/ caution, because mistakes are always possible in such cases" (page 14g, coluntn 2). In Alinr u. St;b'eLD rc67 SC 307) Cornelins Cl, roho lnrt deliaered the judgment of this Court, uitlt regard to tle mntter of identiJication parades heh!, thnt, "Their fwitnesses] opportunities fotr obseroation of the cttlprit were extremely limited. They lud neoer seen hirrt before. They had picked out the assailant at the identi/ication parades, but tlrcre is a cleat possibility arising out of their staterfients that they were assisted to rto so by being slrcwn the accused person earlier', (pnge 313E). ln Lit Pasnnd u. Stnte (PLD 1981 SC 142) Dornb Pntel l, rolto lmd

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drli.uered tln judgnrent of this Court, held that, if a witness hatl f not giu.en a rlescriptiitr of the assailant i,r' tir' rlril',,ir,,, ,o lltc Police and iclentilicaiion took place four or fiue rttorttlts after the ,nurder it *o"ta, ":r[ori"Lgr'r*/'iii")rr,* prose,cution case,, (page 14SC). In o ,"ilri Lou.rt, Inrnn Astrnf t'. Stnte (2001 ^rr,SCUn iu-,tx),,r,,t'oJ tt,,, ,liiii ,|,',ti,ii,.i, ,,,,,, ayttnred lftikhnr ituhantmad_Ch^,an y inir'alii'n')li,*,, _by it mu-st be ensured that the iitentifuini I s.e.e tlrc_ accused after Lirr-"ir', "rr, identification paiatte is he7 thc "o*rniiiioi ,f tn"-rrir;"^,riri tit tn, inmeaioteiy rri"r, tlte occttsed persons as enrly "ji"r,iii ' ,7 ns possibte,,"(pige agsp)i'

8.Conplainont (pW_5) had rrot metttioned atnl features of"Tlre the assailartls either irr the FIR ir" iir"{iri),,rr, recorded under section 161, ", Cr.p.C. ttr"r4or"'-iir"irTo" ,ro benchmark agdinst which to test ruhetielr rnr*ripltil*r, zoho lrc had identified aftet ?:?,.!:;:;ii;;;i'ir',;,il"li,"l!,",,:flii,,;{::::,,,,i,!,i;,i,i! tl,o Mng.istrntes )i,,j,,,i!^-i!^,,,:

tu.(,u,U4u.uon nia urt,yiri ii,,i",'!i' ,,o proceedutgs tlp ollter prrro,rr, i*ongrl trholt lltt ts u'cre pl nced, u,c re ol si mi lamir, tt ppe t tn.n

cotot.tring. The main objcct t,riiti,i,'ii',iti,' of itlantfirrr'ir,, p))"iraiir'i ,,"r,t ,, tuitrress to property identi[y i!:.!r: and to exctude crrtrre ttte n prr{o,r-,)-*'trli',,, n iossibiiiiy irf iiii)"r, confinning a faint recolleciion ,'i^pty o, i,,ipri"rio,,, iinr'ir","uf n,, old, yottng, tall, short, ", .fnt, thirr, rlark L, po ,*'fi)ri .,',.'.'

9.As regards the irlent i.licntion of the appellants before lhe trinl court by Nasir Meh boob (PW-S), Subednr Mehnr ood Alutrcd Khnn (PW-6) and ldress Mtt hannrutd (pW-7) ttnt too tpill assist tlrc Prosecution becnu rutt se tluse zoitnesses hnd a nuntber opportunities o.[ to see theut hefo re tlrcir statements State |t. Fn tpere recordetl Lrt ll (PLD 1985 S C 1), the runjorit y judgntent of uliclt toas authored by Ajmal Minn J, tlrc le nnrcd j urlge Ind an identification parade roas hetd that ,lecessary zohet the witn a.ss only had a flee tittg glimpse of att accused who utas a stranget as com pared. to an a ccused utho the witness preaiously tttet a nuntbcr hacl ,f titnes (page 2SV). The sarn Pn nciple uns follotLted in the ttnnntntous jtt tlgment of this del iaered b! Nnsir AsLanr Court, Zah id l, in tle case of Mtneer State ('1998 SCMR 752 Alnnrul u ), in uhich case the nbductee had rennined roitlt the abdtrctors for sonte tine and. on setteral occasions hnd seett their fnces. In the present type ol case the culprits required to be identified toere thro proceeditgs, ho weaer, the ugh proper identification maflfler in which the identification proceedings zoere co.tl dttcted raise serious doubts (as no teel abooe) ot th e credibi lity of the process. The identifi cation of the appellants zuitnesses zu ho had scen itt court by eye- tlrc ur Iprits fleeti ngly once t ncons e quenti zoouli be a1,,, (bold adcl ec-l)

That .(c) !1 Tlacy the car witlr who was an injured eye witness the deceased was. one of the wrro was srrot ir.r best and mo"st 'oil.or"., important eye_witnesses but despite being on ti,u .ut".,au".

wrtnesses she was not called r io,., ciropped as a wirness without to" give evidence;i;, il) eftect expla.ation ancl as such trre inference

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can be drawn under Article 129 (g) Qanoon-e-shahdat Ordinance that she would have not supported the prosecution case.ln this respect reliance is placed on the case of Mohammed Shafqat (Supra). Even otherwise no medical evidence was producecl at trial to show that she was even injured during the attack.

(d)With no eye witness evidence to identily who carried out the attack the medical evidence becomes inconsequential as it can oltly reveal what kind of weapon/device was used and the seat of the injuries of the dead and injured. It cannot identily the person who jrrflicted the injuries.

(e)It is notable that the appellants confessed to the offence whilst in police custody however they were not producecl before a magistrate to record their confessions under 5.164 Cr.PC despite being produced before a magistrate for an identification parade arrcl thus we place no reliance on their confessions allegeclly nrade before the police.

(f)It cloes not appeal to logic, teason or comrnonsense that the appellants would conJess to such a serious crime as the present one which carried the death penalty whilst in police custody wherr there was no evidence against them at the time of theit arrest in tltis case.

(g)That no pistol was recovered from either of the accused who were already in police custody in another case.

(h)That no empty was recovered from the spot and it is even quite surprising to find that a sikka was found in the car when according to the medical evidence the firing was from more than 6 feet keeping in view that the car was not immediately taken into custody and as such the sikka could even have been planted. In any event the recovery of the sikka cannot tell us the identity of the person who fired on the deceased

(i)The appellants taking the police to the place of wardat is irrelevant as the police already knew where the place of wardat was.

O We have also examined the defence case which is one of false implication which when placed in iuxtaposition with the prosecution evidence discussed above cannot be cornpletely ignored out of harld.

13, 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 yfs. The State (1995 SCMR 1345), wherein the Supreme Court has observed as follows:-

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"lt is settled lazo that it is not necessary tl.Lnt there sl.totrld. be nnny cit'cumstances creating doubts. If tfure is a single ciratmstance, tpltich creates reasonable doubt in a prudent miniabout the guilt of tlrc accused, then the accused uill be entitled to the benefit iot as n mntter of grace and concession but as a matter of right.,,

14.For the reasons discussed above by extending the benefit of the doubt to the appellants they are acquitted of the charge, tlie impugned judgment is set aside, their appeals are allowed and the appellants shall be releaseci unless wanted in any other custody case.

15.Tl-re appeals and stand disposed of in the above terms, J E;;,if,,,rftt

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