SALEEM DEVDA S/O ALAM JAN (Appellant) VS THE STATE (Respondent)

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THE HIGH COURT OF SINDI{ AT KA RACHI

Spl. Crl. Anti-Terrorism lail Appeal No.155 of 2017.

Present:

Mn lustice Moharnmad Kdrim Kl!! A3llJl )lr. ustic( Ztl rur -4li \ttt

Appellant Saleem Devcla S/o. Alam jan Masood through Mr. Muhamnrad Farooq, Arll,trc.rtc

Resp()nrleltt/ State Through Mr. Ali llaicler Saleenr, Depn11 Prosecutor (leneral.

Date of hearing: 22.04.2020.

Date of Juclgment: 05.05.2020.

JUDCMEN'T

MOHAMMAD KAI(IM I(HAN AGH A, I:- Accused S,rl(,crl Devda S/o. Alam Jan Masood was tried by learned Judge, Anti-Ierrorisnr + Court No.X, Karac}ri in Special Case No. A-ttO/2012 arisirrg out oI Crinrt, No.306/2011 U/s.?86/302/34 PPC r/w Section 7 of ATA, 1997 regisrcrett at P.S. Mobina Town. Karachi vicle juclgrnent dated 24.01J.2016 ttrt' appellant was convicted U/s.302 PPC r/w section 6(2)(a)/7 (1) ot n IA, 1997 and was sentenced to undergo ll.l. for Life with tine of lts.50,00()/-.

In default in payment of fine he was orcltred to suffer furthcr S.l. lor 0{, months. Benefit of section 382-ts Cr.P,C. was extencled to the accuse,cl.

2.Being aggrieved and dissatisfied by the juctgment passeel by learned Judge, Anti-Terrorism Court No.X, Karachi, tht' aiores.rirl a;.'1.rL,.il has been preferred by the appellant against his conviction.

3.The brief facts of the plosecution case in a nutshell are that ()r.l 14.08.2011, ASI Azatlar Hussain recortlecl statement u/s 15.1 Cr.P.C. of tht, complainant Munawwar Ali wherein he stated that on 08.()8.2011 he akrrrg with deceased Umail Hassan @ Zain, Mansoor, one Asinr lmam ancl a chilcl aged about 6/7 years were sitting outside their shop. At ab()ut 6:00 / 06:75 pm three armetl Lrersons came there on two motorcvcles anri made firing upon them ancl as a result of such firing rleceaseti Mansorrr and Zain sustained fire arm injuries who later on succumbttl kr the injuries and tliecl, The complainant furthc.r stated in his complaint th.rt

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prior to this incident a few culprits usecl to come at his shop antl demantlett/ received the extortion amount lrom them. Hc' furthcr state d that the culprits were known to them ancl their namt's u,ert Salt't'nr Devda, Yar Muhammad ancl Azmat. In the light of the complairratrt's statement, FIR was lodged against the culprits.

4.After completion of the Investigatior.r by tl.re l.O. formal ch.irge against the accused Saleem Devda was franred to which he plca,.ierl rrol guilty and claimed trial of the case.

5.In order to prove its case, the prosecution examinecl 10 witnesses and exhibited numerous clocuments antl other items and thcrL'af tL'!' th(. side of the prosecution was closed. The statement of the .rccuse.cl u'.rs recorded u/ s. 342 Cr.P.C. wherein lre de nied all the alle,gatior.rs lt'r,e letl against him and clairned false implication on the basis of prolitical rivalrr'. He dicl not examine hirnsell on oath rx call an-v- witness in su1-rport ol lri', defense case.

6.Learned Judge, Anti-Terrorism Court No.X, Karachi, after l.rtarirrll the learned counsel for th(. parties ancl assessment o[ evirlt:nce availablr' on record, vide the impugned judgment dated 24.08.2016, convicterl ancl sentenced the appellant as stated above, hence this appeal has lrterr lilcd by the appellant against his conviction.

7.The facts of the case as well as evidence produceel before tlrr. tlial court find an elaborate mention in the judgment dated 24.08.2016 p.rsscJ by the concerned trial court and, therefore, the samr. mav rrot lrt. reproduced here so as to avoicl duplication and unnecessary repetitiorr.

8.Learned counsel for the appellant has contentled that there was i () day unexplained delay in recording the FIR which lead to the complainant cooking up a false case against hirn, that eye witness PW Asinr lntartr cannot be relied upon as he gave his 5.161 statement manv days after thr' event, that both the eye witnesses are completely unreliable, tl.rat no pistol was recovered from the appellant, there was a clelay in senlling thc empties to the FSL, that there was no safe custocly of the same, tlr;rt no evidence of any prior extortion clemanrls or pitvt.tl!.ltts h.rvt' [rr,..n

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furnished and thus for any of the above reasons he shoulel be acr.luittecl rrf the charge by exterrciing hirn the benefit of tlre tloubt. ln support ol his contentions he l.ras placeti reliance on Abdul Ghaffar V The State (21)tlrr SCMR 56), Zeeshan @ Shani V The State (2012 SCMR {2tt), Shewaiz

I

Rasool alias Shabi V The State (2019 SCMIT 14;18), Sabir Hussain V The State (2014 SCMR 794) ancl Notice to Police Constable Khizar Hayat (PLD 20't9 {.527).

9.On the other hand, learnecl Deputy Prosecutor General, n,ho is also acting on behalf of the complainant, has fullv supported the irtrpug,rrl,ll judgment. He has contended that two eye witnesses have itlentifietl tl.rc appellant as having fired at the two deceased who are reliable, trustworthy and confidence inspiring, that it was a elay liglrt incitlt'nt arrr.l both of the eye witnesses knew the appellarrt n,ho hael ,,it rnarrtlt,ti extortion money from them in the past and that their cvitlt'nct, is corroborated by the medical evidence antl as sucl.r we can coltvict the appellant based on thisgeviclence and as such since tlte prostcution haLl + proveci its case beyond a reasonable doubt against the appellant tlrc appeal shoulc{ be dismissecl. In support of his contcntiorrs ht' lr.rs }rlatr.tl reliance on Mubasher V The State (PLD 2015 Lahore 426), Muhammad Ehasan V The State (2006 SCMR 1857), Dadullah and another V The State (2015 SCMR 856), drrct Niaz Ud Din V The State (2011 SCMR 725).

10.We have hearcl the arguments of the learned counsel for the pi11.1i1,1,, gone through the entire evidence which has been read out by the learrrrcr.l counsel for the appellant, the impugned jutlgment with their ablc assistance and have considered the relevant law irrclucling that citetl at tlrt, bar.

11.]rr our vierv aiter our reasscssnrent of tht, c,r,ir.lcnce bascti on tltc er,'iclerrct' of the. I'\\/ rr,jtnesscs, PIV N{1.(), post nt()rt€,ln rr,p()t.t \uril t)llr('f tnedical cvidt'nce, lO's tviclctrcr antl prrsrtir,e cht,nrical anrl I15l r.t 1.ror ts rve ale s;rtisfitcl that the prost,cution h.rs prolt,d bc,",onrl a lcason,tlrir cloubt that on or .tbout 0u.0tt.20l l at lE. l5 hoLrrs ;rt shoir No.111 Li:nt,rn Tcrracc, Kanrrarr l(c,ol [hlace, IUetltrvillr' Ill, t]lrrck I (Jrrlsh.rn t,-1.1[r.ri Karachi Umair Flussain atrel Nlansool r\li n,erc nturclcrcti Lrv p,,,rs.,rrs I.r lt., firecl at tlrtrn and causecl tht:ir tfuath through [ire.rrnr injur.it's

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"12. In our view therefore the only issue befbre us is whethe.r the appellant was one of the persons who murclereci the ttvo Llece.rs0rl itt tlrc aforesaid shop on 08.08.2011 at about 18.15 hours.

13.After our reassessment of the eviclence we finc'l that the prosecution has not been able to prove beyond a reasonable doubt that the appgll.1pl1 murdered either of the two deceased at the aforesaid shop on 08.0tt.2()11 at about 18.15 hours bv causing them firearm irrjuries for tlrt, foIlon,irr1,, reasons;

(a)The prosecution case rests primarilv on the eviclence of 2 t,r,c witnesses namely the complainant PW 2 Munaw,ar Ali and PW 4 Asim Imam who accorcling to their eviclencc rvt,r!' brrtlr present at the shop when the appellant came along with his accomplices ancl firecl at anel tnurderetl the two deceast,rl rvitlt firearms. The incielent was in bro.rd dav light antl thc r.r.., witnesses rvere close to the inci(lent and Lroth knr:rt tlrl appellant (hence an identification parade was not essrnti.rl) arrtl as such ordinarily the correctness of the iderrtification coulti rrot be doubted provided that we found such c.ye witness evidence to be reliable, trust w,orthv anrl conficlencr-' inspilirrg howevt,r -l. we do not find their evidence to be without doubt for the following reasons;

(i)lt is trite law that an FIR must be lo.lgetl with promptiturlo in ortier to give it reliabilitv arrcl credibility unltss such elclav can be explainecl. It is regarcletl as the c()ntL,rskrnc ol tlrt, prosecution case r.r,l.ticlr gets tlit. bail rolling in.r crirnirral case, In this respect reliance is placed on Khalid Javed V State (2003 SCMR 1419). In this case thc. incidt nt took l.rlat'(' on 08.08.2011 antl yet thc- S.154 staternL-nt ot tlrt, conrplainant PW 2 Munawar Ali u,ho was also an eyc \^.itness fo th(, inciclent n,as loclged on 14.08.2011 i.c after a delay of 6 days despite him knon,irrg the culprits. Ihis long tlel.rv has g,rrrt completely unexplained. During his cross cx;rrnin.rtion rltis PW has statecJ in his eviriencc as unrlt,r;

"lt is correct to suggest tlurt the delny o.l'Lodging f'lll is tntt explnined in nry stiteruent........1t is rcrre(t to suggest tlut ruhen Sl Zttlfqar nskcd nte to record nty 5.154 ('r,/)('ol 08.08.2011 I replied to hitl thnt I u,ill be.tbl? to record my statenrent after consult.ttion uith mq rldtrs" (bold acided).

The two key points to note hcrL'are that (a) the c()mFl.Il'tdIr clid not approach the police to record his S.15{ Cr.I,C statement but rather the police approached him and (b) lrc couLl onll' recorcl his stat!.lnent after consultation with his elders.

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Sigr-rificantll', it was nrlt neccssar)' that thc 5.15{ Cr.l'( statement be macle by the cor.npl;rinant. It coultl havt'ht,r,rr made by an), one of the I')lV eye witncssss arrtl cr.t,n tht, police could hai,t registcreri the Fll{ for instance SI Ztrl[it1ar as referred to above. In this respect reliance is placeel orr Muhammad Younis V Muhammad Khan (1999 Yl.R ?l15) For example, PW 4 eye witncss Asim lrlanr rvlro ,,vas also present at tl.re shop at the time of the rnurders ()r'an\/ ()n(' else present in the shop at the time of thc' murtlers 0r anv one else acquainted with the basics facts of thc' case,. Iht, basic concept behincl Iodging an FIR promptly is to ensult, tllat there is no time for consultation and c()nc()ction betrvt,t,n the complainant and the police and any other thirtl frartv rvho might want to fix a person in a faise casc.. lrr rlri' .a-s(, tlrc co tplsina t actuallq admits delaying lodging tha Fll?. for 6 days as he wants to cotrsult toith his elders uthich is completely contranl to the concept behind lodging an flll ptor ptly. In the contL.xt of this casc w,here.rtirnittt.cllv thlir appears to be some ill w'ill betn een the' accust r,l anrl tlrt, complainant's sitle as they hatl accusetl hinr antl others oI demaneling extoltion money before antl the accuserl has claimed that he has been fixed in this case on account of political rivalry it was essential that the' FIIt !\as loclgeti without delay. Such unexplained delay in this a(lrnitt(,(1 backgrouncl gave the chance to the compl.rinant to conslrlt + lvith his elclers anel the police in ()rder t() fix thc nccus(,cl in ,r false case ancl the accused was also prejudicecl by this cfulal in lodging the IrlR and consultation before thc I'lli u,rs lodged by the cornplainant, It has been heltl that a tlclar ol one hour in lodgil.rg an FIR may be fatal to thc pr()s('cuti()rl case based on the particular facts ancl circumstanct's oI tht' case. ln this lespect reliarrce is placetl on Zeeshan @ Shani I State (2012 SCMR 428). 'I'hus, in our vierv thc tielav in lodging the [ilR has not been atlequatelv cxplairrt'rl which is near fatal to the prosecution case ancl castes se.vere tioubts on the prosecution case. In this respL.ct in the casc of Farnran Ahmed V Muhammed Inayat (2007 SCMR 1825) it was hclLl as under in respect of a 17 hour clelay in loclging thc lrllt in the presence of e1,e'witnesses at Para 6 P.1828 as unrier:

"Wt lnte consiicn:d tlrc vrbruissiorrs nnde by letrned L'orrrtscl li'r tlrc ptrlies nnd pentsed tlrc recttrd. It ts ad titt((l .lltcl tlnl rtttilttt! took plrrce on 30.6,1993 nt 7-15 n. t. it,irr't-r'rts i:lii nrts 5r,1 registered on n rpritten contltloint on nt 12-10 tr.rtt. llr place of oLcurrettr'r' ts nl a drctnuct' r.tl- 70 nilL's .frotrt lltt pLtli,,' skrtiort. 1'ltt'FI/l rlrrs krrigcrl by llu'tot)lltlriitttnl illrr \ ,u\ttloitltir ,-. drlrry ol lT ltours rL,itltottl ()flit inS tlt siirl rltlrrtl itrsltrlt' rt! lltt fact tlmt nmplninmt hru| stlfetl in tlw t'riltrtr .outll itl lltttl llrcre wns tu)o (!Je- jit esst's nl the sltot nnd ortt'rt.l llttttt tttlirttrrl the police be.fore filing n ruritten con4tlnint by the conplninrnl.lT hours delay in FIR prouides su/ficient time for cleliberstiotr anil consultatiofl uhen cornplaifiant lns giretr ttL, cxplanatiot for deloy in lodging the FIR, It ls enough timt for complainant to fabricate the stont, there.forr, possibility cqrrnot be ruled out qua false itnplicntion of tlrc rcspondut, It is also a settled lazu that delarl of17 hours in making Flll

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not elplained lends to in.ference that tlt? occurlence t?t.ts unulitnesse.l. lt is also a settletl lau tltat unexplained tlrltrl ifl rcgistr.ttiltt o/ FUI speciallV uthcn the ltlqcc of orturr(tt't, is fit dista ce of 70 miles from the police stdtio,t tltkl tlt?r( tttere t?oo other eq?-tLlitn?sses prese t it th? spol rtlon! u,illt the complainant, therefore, suth situntion itulicates tlttt lltt eye-ulitnesses u,ere procured and indut-ed to bc 11t- Toit esses, there.fore, finding of tlrc letrued High Cotrrt tfurl neitlrcr tltc cortrplainant n(rr the eye-u'ittess.,s t/,.l,rc prrsltl at the spot, lle do not find t V i firntity or illrgality itt lltt finding reconled br1 the lt,orunl Higlt Court it pdri.7 ol tltr intp ugne d j u d gntel l " (Lrnlti acltletl)

(ii)With regard to the evidence of el t' ry11,t"tt l)l\' 4 Asinr lnraru we also have severe cloubts about the reliability of his eve witness evielence. In his cross examination he states as ulrcler in his evidence;

"l do not knoru ru141 nty stnte pnt u/s-161 Cr.P(l ruts recoriul 26 days late by the IO.l 1ns net,er co ln(led ht1 tlrc lO hr:.fort rr:utnlirrg nry statenrcnt" (bold added)

The two ke), points to note lr€'re are that (a) fhis tyc witnt'sst's statement uncler S.161 Cr'.I'C was recorticcl 26 days after thc incident ancl (b) He did not go to the police for rccorelinl', Itis { 5.161 Cr.PC statement rather the lO hacl to conre t() Ilinl.

It is completely urrexplainecl as to lvhy he dicl not register thc' FIR as according to hin.r he was present at the shop r'vhen tht, incident occurrecl, whv he failecl to go to the policr-. to rcixrrt thL, incident ancl wh1, it took 26 days for him to recorrl his S.Ii,l Cr.PC statemerrt which in our view keeping in view thc admission by the complainant that he went to consult with his elders before lodging the FIR which may have also includecl consultation with this eye witness who very belatedly canrc forward we find that lve canno[ safely rell,on tht tvitlt,rrct,t,l this eye witness. lt has been held tlrat a r.lelay' in an c\,'c rt'itr.rcss recording his S.l6 t Cr.l)C stattnre nt alter'.lli houls lr.rs [rt'r.'rr l,rt.rl to the evidenct of that !.y('witrless unless a gooci t'xplanatiorr s giverr. [n this case rro explanation is given for this 26 day delay. The inJerence is that the eye witnesses nere busv cookiug u1, a false case against tl.re accusetl. [n this rL,spect relianct, is placr.i on Muhammed Asif V State (2017 SCN'IR 486) antl Farman Ahmed (Supra)

This eye witness.rlso claims to have. knort,rr tht'appt,ll.1111 1 1'1 ,,' the inquest report which lre signer"i soon after the incir,lt'nt at tlrc hospital it is statecl in column 8, " tlnt unknou'tt uct uw ptrsotts canrc o fitotor cycb nn,l Jtred on rlt'tatsetl." Furthelrrort', ht' ,rlso claims to be unrelatetl to deceased Umair alias Zain .rr.rd specifically clenies that he is his real cousin vet tht'cleacl bocll'ol Umair alias Zain is handed over to him ancl the receipt rear"ls, "i receircd dead body ctf detetsel 7,ntn u'ln is uty rcrl r()//5/ri."/\\ hospitals usually llancl over elearl borlics k) the r('latiYes ol llrr' c-leceasecl why woulcl the hospital hanti over the borly to [)!\/ ]

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Asim lmarn unless Zain n,as his cttusin? l-hus, othcr asP('i.ts (]l this PW's evir"lence do not appear to ring true esl,eciallv tht'f.rt t that he identiiied ll.re appellant as one oi tht' pt-rsorts u ho litt'Ll on the two deceaseul 26 days after the incident in his 5.16l statement yet less than 24 hours after the incident according to him unknown persons fired on the deceased.

(b)Having ttisbelieverl the eye witrlesses we finr.l no other cviclencr.' to support the prosecution case against the appellant. Iior' example,

(i)No pistol was recoverecl from him which makes thc recovery of empties ancl posi tivr: FSL rcp()t't inconsequential-

(ii)There is no evicler.tct' tl.rat the cr'rmpliant or anv ttttc frotrt his party ever paid extortion nloncy to thc op,pcllorrl apart from balcl allegations as tlre cornplainant p.rrt\ never macle any complaint to the police or anv otht'r person about such demancls anci payments or prtxluceel any other type of eviclence in respect of this allegation.

(iii)Circumstantial eviclence linking the appellant to the offense is almost entircly lackinl; ancl wiil ccrtainll trt:t meet thc guiclelines w,hich u,ould enahlt a cotrvictrLrrr 5 basecl on circumstantial evidence in the abscnce of clirt'ct ocular evidence. In tl.ris respect reliance is ;.rl.rcer.l ort Wazir Muhammad and another v, The State (20t)5 SCMR 277) and Azeem Khan and another v. Mulahid Khan and others (2016 SCMR 274),

14.Thus, since we are of the vieu' that the eviclence <r[ the er r.' witnesses cannot be safely relied upon and we have disbelievetl thc s.rnrc for the reasons mentionecl above and we lravc' founc] no trtlrr.'r corroborative evidence or circumstantial evitlence to lirrk the aPpellant t0 the offense so charged but rather doubts in the prosecution case thus [)\] extending the benefit of the cloubt to the appellant ra,e hereby allow the appeal, acquit him of the charge and he shall be release'cl uuless hr' is wanted in any other custody casc.

15.The' appeal is disposecl of in tlre ahove terms Y-'t I tLi,Lr, t e, J'u_ c, I Il ) t a o -