RAHEEL S/O MUHAMMAD RAFIQUE (Appellant) VS THE STATE (Respondent)

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IN THE HIG H COURT OF SINDH, KARACI{I

Present Mr, lustice Molmntmnd Knritn Khnn Aghn A4r.lttstice lrslnd Ali Shah,

SPECIAL CRIMINAL A.T. APPEAL NO. 257 OF 2019

SPECIAL CRIMINAL A.T. APPEAL NO. 258 OF 2019

CONFIRMATION CASE NO.13 OF 2019

Appellant Raheel son of Muhammad Rafique through Mr. Muhammad Farooq, Advocate Respondent The State through Mr. Mohammad Iqbal Awan, Additional Prosecutor General Sindh

Date of Hearing 1.2.08.2021.

Date of Announcement 17.08.2021.

I UDGMENT

MOHAMMAD I(ARIM I(HA N AGHA.I:- The a ppellant Raheel son of N{uhammad Ra{ique has assailed the judgment dated 30.08.2019 passed by Learned Judge, Anti-Terrorism Court No.XII, Karachi in two Speciai Cases being No.110 of 2019 arising out of Crime No.34 of 2014 under section 302/353/324/186/34 PPC r/rv Section 7 of ATA,1997 tegisteted at PS Arambagh, I(arachi and Special Case No.81 of 201,5 arising out of Crime No.110 of 201.4 under Section23(l)-A, SAA of 201.3,P5 Kharadar, Karachi whereby he was convicted u/s 265-H(lI) Cr.PC in Special Cases being No.110 of 20L9 u/s 302(b) PPC r/w Section 7 of ATA, L997 and sentenced. to death as Tazfu subject to conJirmation by this Court. He was also convicted. u/s.265-H(II) Cr.PC u/s.324/34PPC r/w Section 7 ATA 1997 and. sentenced to 10 years R.I. and to pay fine of Rs.50000/-. In case of default of payment of fine, he shall further undergo S.l. for six months. The appellant was further convicted u/s.265-H(11) Cr.P.C, and further sentenced u/s.353 PPC, r/w Section 7 ATA 1997 fot two years R'I' He was also convicted u/s.265-H(lI) Cr.P.C in Special Case No.81 of 2015 and sentenced u/s. 23(i)-A SAA 2013 to 10 years R.I. and to pay fine of Rs.50000/-. In case of default in payment of fine, appeliant shall further undergo six months S.l. A11 sentences were ordered to run concurrentiy and the appellar-rt was given the benefit of 5.382 (b) Cr.PC'

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2.The brief facts of the prosecution case as per FIR No.34 of 20L4 ate that with reference to daily Roznamcha entry of PS Armabagtr, according to SIP Ashfaque Ahmed Ranjha are that he after completion of proceedings u/ s. 174 Cr.P.C. recorded the statement o/s.1-,54 Cr'PC of victim PW ASI Sohail Ahmed at Emergency Ward of Hospital on 19.'10.2074 at about 2230 hours, such statement u/s.154 Cr'PC is reproduced as under:-

"ASI Sohail Ahmed s/o Manzoor Ahmed, I(-13910, R/o House No.PV/124, street No.41, Cattle Colony near Jamiya Masjid, Karimabad, Karachi stated that he is residing at aforesaid place and has service in Karachi police department as ASI posted at IIS Arambagh. On the same day his duty timing is from 1600 hours to 0000 hours, he alongwith PC Noman s/o Fateh Alam Buckle No.23991 left PS for patrolling in the area to curb crime on his private motorcycle No.KEA-9440. During patrolling two motorcycles with unknown numbers i.e. 1,25 motorcycle and 70 motorcycle, upon which two-two Persons in Shalwar Qamees were riding, motorcyclists being suspected were chased by police' In the meantime as they passed through Hamdard Dakhana, police signaled those motorcyclists to stop, but they made firing upon ASI ancl PC at about 1950 hours with intention to commit their murder, in retaliation PC Noman also made firing in self-defence and both respective motorcyclists by making fires succeeded to make their escape their good. Due however to the firing of accused persons both police personnel fell down as PC Norman sustained bullet injury on his head, whereas ASI sustained bullet injury on his left knee'and instantly both went to hospital through Rickshaw and ASI and PC were shifted to Emergencv Ward' PC Noman (the deceased) succumbed to his injuries prior to reaching at Civil Hospital and blood was also oozing from the head of PC' Theieafter, two other persons were also shifted to hosPital in injured conclition who were also injured at DMC Signal' Ali accused persons on two motorcyclists in Shalwar Qamees seemingly as Balouch anil \roung, who can be identified by complainant if come before him' Hence, such FIR was lodged to the above effect and investigation of this case entrusted SIO of PS Arambagh, Karachi".

3.Whereas brief facts of the case as per FIR No.110 ol 201,4 registered at PS Kharadar Karachi are that on 02.04.2014 at about 1505 hours at Fariya Street, near Star Medical Store, Kharadar, Karachi accused Rahee] along with another accused Waqar were arrested and during search of arrested accused Raheel s/o Muhammad Rafique, one pistoi of 9MM No.13001683 of black colour made in China alongwith loaded magazine of four live bullets was recovered by the police. Accused failed to Produce

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valid license of recovered fire arm and ammunition. Hence FIR u/s.23(i)- A SAA of 2013 was registered, to the above effect.

4.After completing a thorough investigation charge was framed against accused Raheel in respect of both FIR's to which he pleaded not guilty and claimed trial of the case.

5.The prosecution in order to prove its case examined 13 PWs and exhibited various documents and other items. The statement of accused was recorded under Section 342 Cr.P.C in which he denied all the allegations leveled against him and claimed false implication by the police. He did not give evidence under oath and did not call any witness in support of his defence case

6.After appreciating the evidence on record the trial court convicted the appellant and sentenced him as set out earlier in this judgment. Hence, the appellant has filed these appeals against his convictions.

7.The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 30.08.2019 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8.Learned counsel for the appellant has contended that the appellant is completely innocent and has been falsely implicated in this case by the police in order to show their efficiency to their high ups; that he was not present at the scene of the incident where one policeman was murdered and another was injured and that he has been wrongly identified by the sole PW eye witness; that his identification parade was defective; that he was arrested from hospital as opposed to on the sfreet as per the police version; that the pistol recovered from him was foisted on him by the police and two injured passers by were not examined by the prosecution and for any of the above reasons by extending him the benefit of the doubt he should be acquitterl of the charge. In support of his contentions he has placed reliance on the cases of Sajid Mumtaz and. others v Basharat and others (2006 SCMR 231), Kanwar Anwaar Ali (PLD 2019 SC 488), Abdul Wahab Afghani alias Khalid alias )ameel v The State (2007 P Cr. L I 860)'

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9.On the other hand learned APG has fully supported the impugned judgment and has contended that the prosecution has proved its case against the appellant beyond a reasonable doubt through a trust worthy and conJidence inspiring eye witness who had correctly identified the appellant as one of the persons who fired on him and the deceased which lead to the murder of the deceased and his injury; that the injuries caused to the deceased and the eye witness are corroborated by the medical evidence; that an unlicensed pistoi was recovered from the appellant upon his arrest which has matched with the empties recovered at the scene of the encounter with the police and the appellant lead to a positive FSL report and as such the appeal should be dismissed.

10.We have heard the arguments of the learned counsel for the appeilants as well as learned APG for the State, gone through the entire evidence which has been read out by learned counsel for the appellant, and the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar.

11.We find that the prosecution has NOT proved its case against the appellant beyond a reasonable doubt in resPect of the charge against him for the following reasons;

a (a) The most important and indeed crucial aspect of this case is whether the prosecution through its evidence has been able to correctly identify the appellant as one of the persons who fired on tl-re deceased and the other injured police officer PW 3 Mohammed Sohail through the evidence of PW 3 Mohammed Sohail who was the only eye witness to the incident keeping in view the fact that the law on identification is very stringent in order to ensure that there is no case of mistaken identify which is quite common in criminal cases.

The Law on identification.

(b)In the case of |aved Khan V State (2017 SCMR 524) concerning the necessity for an early hulia/description of an accused by an eye witness before an identification parade and the need to strictly follow the rules governing identification parades it was held as under at P.528 to 530:

'7. We haae heard the learned counsel and gone through the record. The prosecutiofi case rests on the positit'e identification.

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proceedings and the Forensic Science Laboratory repott uthich states that tIrc bullet cnsing sent to it (tLthich ruas stated to haae been picked up front tlrc crime scene) ruas fired from the same pistol ftuhich was recoaered from Raees Khan in anotlw case). We therefore proceed to consider both these aspects of the case. As regards the identification proceedings and their context there is a long line of precedents stating that identification proceedings must be carefully conducted, In Ramzan a Emperor (AlR L929 Sid 149) Perceaal, lC, tuiting for the Judicial Commissioner's Court (the precursor of the High Court of Sindh) held that, "The recognition of a ilacoit or other offender by a percon zoho has not prez,siously seen him is, I think, a form of eaidence, uhich has alzoays to be taken with a consiiletable amount of caution, because mistakes are alutays possible in such cases" (page 149, column 2). In Alim tt. State (PLD 1-967 SC 307) Cornelius Cl, zoho had deliaered the iudgment of this Court, toith regard to the matter of identification parades held, that, "Their [witnesses] opportunities for obseraation of the culprit were extremely limiteil. They had neaer seen him before. They had picked out the assailant. at the identification parades, but there is a cleat possibility atising out of their statements that they were assisteil to d.o so by being shown the accused person eqrliet" (page 3L3E). ln Lal Pasand zt. State (PLD L981 SC L42) Dorab Patel l, who lad delioered the judgment of tlis Court, held that, if a witness had not giaen a description of the assailant in his statement to the Police and identification took place four ot fiae months after the murder it would, "react against the entite prosecution case" (pnge L45C), In a more recent judgment of this Court, Imran Ashraf u. State (2001 SCMR 424), which was authored by lftikhar Muhamruad Clmudhry l, this Court held that, it must be ensured that the identifuing utitnesses must "not see the accused after the commission of the crime till the identification paraile is held immediately after the arrest of the accused percofls as early as possible" (page 485P).

8.The Complainant (PW-S) hail not mentioneil any features of the assailants either in the EIR or in his statement recorded under section 767, CI.P.C. thetefore there wss no benchmark against which to test whether the appellants, who he had ldentified after ov)er a year of the crime, and utho he had fleetingly seefl, were in fact the actual calprits. Neither of the ttuo Magistrates had certified tlnt in the identification proceedings the other persons, amongst whom the appellants weire pLnced, were of similar age, height, built and c:olouring, The main obiect of identification proceedings is to enable a utitness to propeily iilentifu a person inaolaed in q crime and to exclude the possibility of a witness simply confirming a faint recollection or impression, that is, of an old, young, tall, short, fat, thin, datk or fair suspect. Tlure is yet anotlur aspect to the matter of identification of the culpits of this case. The Complainant had named three other persons utho could recognize the assailants, but he did not mention Subedar Mehmood Ahmad Khan (PW-6) as one of them' Nonetheless.

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Subedar Mehmood Ahmad Khan came foruard to identifu the appellants. Significantly, none of the three percons m'entioneil by" the Complainant participated in the iilentification"proceedings qnil two wete no-t eoen produced o, *[trrrrrc by the Prisecution. Duing the identification 'Magistrales ioth proceedings the appellants hail infotmed the who Taere conducting the iilentification prieedings, and before the identification proceedings 'ro**rnrid, that they had eailier been shown to the witnesses. The Magiitrates rccotded this obiection of the appellants in theit r:epotts but surprisingty ilid not attend to ii,'which can otrly bi categorized as a serious lapse on the-ir part, Therefore, fot all these reaso,ls reliance cannot be 'placeil upon the iepott of the identification proceedings in which the appellants zaere identified.

g. As regards the identification of the appellants befote the trial court bi Nasir Mehboob (PW-S), Subedttr Mehmood Ahmed Khan (PW-6) AND ldress Mulmmmad (PW-7) that too will not assist the Prosecution because these zpitnesses had a number of opportunities to see them before their statements .roere recorded' In itate t,. Farman (PLD Lg8i SC 1'), the majority judgment of uthich ,"th"rrd W Ajmat Mian J, the learned judge had held that an ",rt identification /arade runs necessary ruhen the utitness only had a glimp:se of an accused roho ruas a stranger as compared to 'r, nciuird fleetiig tiln tirc ruitness had preaiously met n number of times (page 25V). The same principle tuas follou'ed.in the unanimous j'uigment of this Court,'deliuired by Nasir Aslam Zahid J' in the "casi of Muneer Ahmad zt Stnte (L998 SCMR 752), in zuhich case the aiductee harl remained toith the abductors for some time and on seaeral occasions lud seen their faces. ln the present type ol case the culprits were rcquired to be identi/ied through prcper identification proceeilings, houteoer, the mqnnet in 'which the iientification proceeilings were conducted raise serious iloubts (as noted aboae) on the credibility of the process. The itlentification of the appellants-in court by eye- 'witnesses who had seen the iutptits fleetingly once would be inconsequential." (bold added)

(.) The recent suPreme court case of Mian Sohail Ahmed V Siate (2019 SCMR OSO; tras also emphasized the care and caution which must be taken by the courts in ensuring that an unknown in accused is correctly identified. In Iact such extra care and caution relying on identification parades is an accepted global phenomena i., moit criminal juriscliclions as the possibiiity of deliberalely. or mistakenly picking out a wrong Person from an identification parade and'sending an innocent man to jail or in this country potentially to the gillows is very much recognized and thus most jurisdictions (inclu"ding Pakistan as noted below) have put in place mandatory guidelineslo greatly limit the chances of such incorrect identification. ,

The conduct of the identification parade.

(d)In the recent case of Kanwar Anwaar AIi (PLD 2019 SC 488) mandatory guidelines were laid down for conducting an identification pararte which flowed from and approved jl" :11'-": case of Muhammed Yaqoob and Another V State (1989 PCI'LJ 2227) whichheld as under in terms of guidelines atP'498;

"3. Before parting with this order we would like to point out that the matter of taklng of different steps in holding of a proper test identification pu.ud" in connection with a criminal case has cleveloped ou", *urry decades and the requirements of such a parade as weli as the safeguards to be ensured during such a parade so as to make it a meaningful exercise and providing material in a criminal case to be considered in a trial have elaborately been cletailed in the landmark judgment passed by a learnecl Division Bench of the Lahore High Court, Lahore in the case of Muhammttd Ya qoob and another a. The state (1989PCr.LJ222n and in the said judgment Mr. Justice Khalil-ur-Rehman Ramady (as his lordship then was a Judge of the Lahore High Co urt, Lahore) had observed as foliows:-

But before we undertake a deeper analysis of the evidentiary value of the test identification proceedings held in the present case' it would be of advantage to ?irst appreciate the object and the value of such an evideice as also to recapitulate the standards required to be met before such like identification parades could be credited with reliance.

17.The evidence offered through identification proceedings is not a substantive piece of evidence bu t is only corroborative of the evidence given by the witnesses at the ftial Muhammad Bashir u. The State (PLD 1958 SC (Pak)1' It has no independent value of its own Mu hamamd Afznl and nn other o. The Sta te']982SCMR 129 and cannot as a rule, form a sufficient basis for conviction though the same may add some weight to the other evidence av ailable on record Sudhindrana tho. The Sfale AIR 1952CaL.423

18.The identification Parades (as they are normallY called) are necessary oniy where the offender was a comPlete stranger to the witnesses lsmail and ano ther o. Tlrc State 1974 SCMR 175' And the whole object of the identification proceedin gs is to find out whether the suspect was or was not the real off end.er Satyn Narnin o. The State AIR 1953 A11. 385 and Kinda. Christle (1914 AC s4s)

19.Such-like identification proceeclings are not the testimony of a witness but the testimonl' of the senses of the witness' It is essentially a test of his power of observation and perceptiory a test of his power to recognize strangers and a test of his memory' These gifts of God may iary f.om man to man' A witness may be honestl independent and truthful but then his memory may be faulty. And then the tricks of memory and its conscious and unconscious activity could also wrap the vision of a man' When mistakes are possible in the recognition of a man known from before, then ihe possibility of iuch mistakes in identifying rl

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strangers is definitely greater. And more so when the witnesses have seen the offender for the first time during the occurrence and that also briefly and not with a calm but in an excited, confused and terrorized state of mind.

20.It was primarily for these reasons that Dorab Patel, J. (as his Lordship then was) cautioned the Courts to beware of the dangers inherent in the identification of strangers and quoting from the Criminal Law Revision Committee Report (1'972), observed in Lal Pasand's casePLD 1981 SC 142that mistaken identifications were:- ",,,,........,,.,by far the greatest cause of actual or possible wrong convictions...,," A similar note of caution was given by Monir in his Evidence Act Pak. Edition, Vol. 1 where the advice is that:- the evidence as to identification ought in each case, to be subjected to a close and careful scrutiny"' What then are the standards required to be satisfied by such an evidence before the same could be accepted by a Court ollaw?

The answer is that the vital factor determinative of the worth and value of identification proceedings is the effectiveness of the precautions taken, before and during the course of such ptoceedings which are designed to eliminate the possibility of unjustif ied convictions.

Although there is no law, which prescribes any such precautions yet the necessary guidelines are available in the form of executive instructions and judicial pronouncements. Some of them are summarized as under

(u)Memories fade and visions get blurred with passage of time. Thus, an identification test, where an unexplained and unreasonably long period has intervened between the occurrence and the identification proceedings, should be viewed with suspicion. Therefore, an identification parade, to inspire confidence, must be held at the earliest possible opportunity after the occurrencei

(b)A test identification, where the possibility of the witness having seen the accused Person after their arrest cannot be ruled out, is worth nothing at all. It is, therefore, imperative to eliminate all such possibilities. It should be ensured that, after their arrest, the suspects are Put to identification tests as early as possible. Such suspects should preferably, not be remanded to police custody in the firstlnstance and should be kept in judicial custody till the identification Proceedings are held. This is to avbid the possibility of overzealous I.Os showing the suspects to the witnesses while they are in police custody' Even when these accused Persons are, of necessity, to be taken to Courts for remand etc. they must be warned to cover their faces if they so choose so that no witness could see them;

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(c)identification parades should never be held at police stations;

(d)the Magistrate, supervising the identification proceedings, must verify the period, if any, for which the accused persons have remained in police custody after their arrest and before the test identification and must incorporate this fact in his report about the proceedings;

(e)in order to guard against the possibility of a witness identifying an aicused Person by chance, the number of persons (dummies) to be intermingled with the accused person should be as much as possible. But then there is also the need to ensure that the number of such persons is not increased to an extent which could have the effect ' of confusing the identifying witness. The superior Courts have, through their wisdom and long experience, prescribed that ordinarily the ratio between the accused persons and the dummies should be 1 to 9 or 10. This ratio must be followed unless there are some special justifiable circumstances warranting a deviation from iU

(f)if there are more accused persons than one who have to be subjected to test identification, then the rule of prudence laid down by the superior Courts is that separate identification parades should ordinarily be held in respect of each accused person;

(g)it must be ensured that before a witness has participated in'the identification proceedings, he is stationed at a place from where he cannot observe the proceedings and that after his participation he is lodged at a place from where it is not possible for him to communicate with those who have yet io take their turn. It also has to be ensured that no one who is witnessing the proceedings, such as the members of the jail sta{f etc. is able to communicate with the identifying witnesses;

(h)the Magistrate conducting the proceedings must take an inielligent interest in the proceedings and not be just a silent specta-tor of the same bearing in mind at all times that the life and liberty of someone depends only upon his vigilance and caution;

(i)the Magistrate is obliged to prepare a list of all the persons (dummies) who from part of the line-up at the purade along with their parentage, occupation and addresses;

O the Magistrate must faith-fully record all the objections and statements, if any, made either by the accused Personsy' t

or by the identifying witnesses before, during or after the proceedings;

(k)where a witness correctly identifies an accused Person, the Magistrate must ask the witness about the connection in which the witness has identified that person i.e. as a friend, as a foe or as a culprit of an offence etc. and then incorporate this statement in his report;

(1)and where a witness identifies a person wrongly, the Magistrate must so record in his report and should also state the number of persons wrongly picked by the witness;

(m)the Magistrate is required to record in his report all the precautions taken by him for a fait conduct of the proceedings; and

(n)the Magistrate has to give a certificate at the end of his report in the form prescribed by CH. H.C of Vol' III of Lahore High Court Rules and Orders.

The measures above listed should, however, not be taken. as exhaustive of the steps which are required to be taken before, during and after the identification proceedings. All these requirements no doubt mandatory but at the same time they are only illustrative of the precautions which the Courts of law demand before some respect can be shown to the evidence offered through the test identification proceedings"(bold added)."

Conclusion on the correct identification of the appellant in the case in hand considering the facts and circumstances of the case and the relevant law on identification;

(e)After having considered the evidence in detail and the Iaw on identification as mentioned above we find that we cannot safely conclude that the appellant has been correctly identified by PW 3 Mohamrned Sohail as one of the persons who fired at the police party which firing leacl to the murder of the deceased and caused injury to PW 3 Mohammed Sohail for the following reasons;

(i)that prior to the incident PW 3 Mohammed Sohail who was the sole eye witness did not know the appellant; he only got a fleeting glance at him from at least 5 meters away in poor light under the stressful circumstances of being under attack and thus an identification parade was necessary which was carried out in accordance with law' (ii) that in his FIR PW 3 Mohammed Sohail who is the complainant in this case and was injured by the firing gu,r" l-,ir FIR with prornptitude on the same day of the incident however it does not provide any meaningful ",

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hulia/description of any of the persons who made fire at him and the deceased except to describe them all as wearing shalwar Qameez, being of young age and looking Baloch from their faces along with the catch all phrase that he could identify them again.

(iii)that the identification parade was held 3 months after the incident and as such the incident would not have been fresh in the eye witnesses mind.

(iv)that the identification parade was conducted 5 days after the arrest of the appellant during which period he was detained in police custody and could have been shown to the eye witness during this period as claimed by the appellant.

(") that Quite astonishingly the appellant was the only one of the dummies at the identification parade with a bandaged leg and crutches and thus this was a clear pointer to the identifier who he was meant to pick out at the identification parade. In this resPect reliance is placed on the case of Abdul Wahab Afghani alias Khalid alias ]ameel (supra) ("i) that no details were taken of any of the dummies.

(vii)that interestingly other private eye witnesses were listed in the prosecutions calendar of witnesses but none of these eye witnesses who may have fortified the complainants identi{ication of the appellant were called as PW's or even to the identification parade and as such an adverse inference may be drawn against them that they woulcl not have supported the prosecution case under Article 129 (g) Qanoon-e-Shahadat Ordinance L984

(f)Since we have come to the conclusion that the sole eye witness's identification of the appellant cannot be safely relied upon the case of the prosecution against the appellant collapses' Other aspects of the case.

(g)that with regard to the recovery of the pistol from the appellant this could have easily been foisted on him by the police as claimed by the appellant especiatly as he was not arrested on the spot and there was no independent mashir, Furthermore, it does not appeal to logic, common sense ancl reason that a person who had shot dead a police men and injured another by firearm or had been involved in the firing at such incident would (i) llave retained the pistol and kept it on his Person for 3 months. Instead he would have disposed of it and (ii) that being such a cold bloodied killer despite having an un-licensed firearm on him he would stop on the police's signal and allow himself to be searched rather than open fire on the police or at least attempt to make his escape good on his motor bike. As such we find the recovery of the pistol from the appellant on his arrest to be doubtful and as such the recovered empties and FSL report to be of no relevance.

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(h)that the appeliant was arrested when he was stopped by the so police 3 *o.,tht after the incident in an uniicensed Arms case that tnce again it does not appeal to iogic, common sense or reason he would then freely ,itttlt to beLg involved in the murder of a policemen which carried the death penalty' This admissiol before ihe police is inadmissible in evidence and if it was true it begs the question as to why the appellant's confession was not recorded b"fore a judicial magistrate. Significantly prior to the appellant's alleged admission beiore the police the police had no su.spect in the *,rid". case and no other evidence to link the appellant to the murder. The appellant was therefore a convenient escape goat

(i)that once again it is suspicious that the appellant's arresting officer did not give any evidence without any reason' () that it is also notable that no entry of the deceased and PW 3 Mohammed Sohail being on pakol was produced; that they were on pakol on a motorbike which was not recovered from the wardat and that they were on patroi with absolutely no means of communication. They did not even have a mobile phone between them let alone a wireless set which tends to caste doubt on the entire prosecution case and in particular the eye witness evidence of P\AL 3 complainant Mohammed Sohail who also states in his evidence that he took the seriously injured deceased and wounded selftohospitalbyrickshawyett.heMLostatesthatthedeceased was broug'ht by police mobiie which based on the particular facts and circumstances of the case is quite a significant contradiction. Significantly, neither the rickshaw driver nor any other iniependent Person who witnessed the incident and sustained injuiies were called to give evidence in support of PW 3 Mohammed Sohail's evidence despite such witnesses being available.

(k)that the appellant's consistent defence was that he was falsely implicated in this case and was not Present 1d th.at he was arrested from hospital where he had been admitted which'is supported by a medical report which stats that he was in hospital urGr iatS.rg fro* u roof. His father had even written letters to the concerned authorities that his son had been implicated in a false case and as such we.need to consider this defence when placed in juxta position with the prosecution case and find that it is worthy of being-given some weight and cannot be ignored out of hand'

12.Thus for the reasons mentioned above and mainly on the basis of the unreliable identification of the appellant as one of the persons who committed the offense we by extending the benefit of the doubt to the appellant set aside the impugned judgment, allow the appeal, acquit him of the charge and answer the conjirmation reference in the negative. The appellant shall be released unless wanted in any other custody case',

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13 'Ihe above appe.rls .lrcl confirtnation reference stand disposed of in the above terms

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IUDGE

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