REFERENCE MADE BY THE JUDGE ATC-IV, KARACHI (Appellant) VS ABDUL AZIZ ANSARI S/O ABDUL NAZEER ANSARI (Respondent)

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IN THE HIGH COURT OF SINDH AT KARACHI

Present NIr. lustice Mo hamnmd Karim l(han Arha Mr. Iustice Irshad Ali Shah

SPL, CRIMINAL A,T. APPE AL NO.102 AF 2019

CONF. CASE NO,O4 OF 2019

Appellants 1 Abdul Anz Ansart son of Abdul Naseer Ansari

2.Azhar Ah @ Uncle son of Ab,lul Rehman both through Mr. Raj Ali Wahid Kunwar, Advocate.

For State Mr. Ali Haider Saleem, Acldl. Prosecutor General Sindh.

SPL. CRIMINAL A.T APPEAL NO 103 0F 2019

Appellants 1. Abdul Aziz Ansari son of Abdul Naseer Ansari

2.Azhar Ah @ Uncle son of Abdul Rehman both through Mr. Raj Ali Wahid Kunwar, Aclvocate.

For State Mr. Ah Flaider Saleem, Addl. Prosecutor General Sindh.

SP L. CRIMINAL A.T APPEAL NO 1.04 0F 201.9

Appellant Azhar Ali @ Uncle son of Abdul Rehman through Mr. Raj Ali Wahid Kunwar, Advocate For State Mr. AIi Haider Saleem, Addl' Prosecutor General Sindh,

SPL. CRIMINAL A.T, APPEAL N 0.105 0F 2019

F Appellant Abdui Aziz Ansari son of Abdul Naseer Ansari through Mr. Ral Ali Wahid Kunwar, Advocate' For State Mr- Ah Haider Saleem, Add1. Prosecutor General Sindh, /a

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SPL. CRIMINAL A.T. IAIL APPEAL NO.27 OF 2O2O

Appellant Noor Muhammad @ Bangali son of Mian Muhammad Jaisum through Mr. Raj Ali Wahid Kunrvar, Advocate.

For State: Mr. Ali Haider Saleem, Addl. Prosecutor General Sindh.

Date of hearing: 14.09.2021.

Date of announcement 2't.09.202t

IILDGMENT

Mohammad Karim Khan Agha, ).- Appellants Abdul Aziz Ansari son of Abdul Naseer Ansari, Azhar Ali @ Uncle son of Abdul Rehman and Noor Muhammad @ Bangali S/o. Mian Muhammad Jaisum have preferred these Special Criminal Anti-Terrorism Appeals against the judgment dated 03.04.2019 passed by the learned judge Anti-Terrorism Court No.lV, Karachi in Special Case Nos.84 oI 2010, F.I.R. No.726 of 2010 u/s. 302/392/ 427/L09/34 PPC read with section 7 of ATA 1997 registered at P.S. Ferozabad, District Jamshed Town. Special Case Nos.85 of 2010, F.I.R.

No.179 of 2010 u/s.353/32a/427/34 PPC registered at P.S. CID Sindh Karachi, Special Case Nos.86 of 2010, F.LR. No.180 ot 20L0 u,/s. 13-D Pakistan Arms Ordinance registered at P.S. CID Sindh, Karachi and Special Case Nos.87 of 2010, F.l.R. No.181 of 201.0 u/ s.13-D Pakistan Arms Ordinance registered at P.S. CID Sindh, Karachi whereby the appellants have been convicted and sentenced as under:-

a) "Accused Abdul Aziz found guilty for the charge with the offence of rnurder of Muhammad Ishaq Meo, Assistant Superintendent of Jail (Prison) is convicted u/s.302(b)-PPC and sentenced to death subject to confirmation by this court and to pay a sum of Rs.1,00,000/- (Rupees One Lac) as compensation u/s. 544-Cr.PC to the legal heirs of the deceased, which shall be ( recovered by nay of arrear of land revenue and in default of payment / recovery thereof undergo simple imprisonment of six months.

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,3f <l---- I charge of the b) Accused Abdul Aziz is also foun'l guilty for the u/s 7(1)(a)-of offence u/s. 6(1)(b) oi-efe Dgz aid convicted by AT A 1'997, and sentenced to death subject to confirmation (Rupees Fifty this court and to puy u 'u* of RsSO'OOO/- Thousand) ur.o*p"#'ion u/s 544-Cr'PC to the iegal heirs of of arrear of land the deceased, which siall be recovered by way thereof undergo revenue and in default of payment f recovery simple imprisonment o{ six months'

302-PPC

c) The death sentence is given on-two counts i'e' Section and Section 7(1)(a) of AT A, 1997' charge of the d) Accused Azhar Ali @ Uncle found guilty for the or offence of tt / s.302(b) / iOs I 3/-ppc iwarded-imprisonment'f as Thousands) life anrl to pay a rrl* oiR' so,o00/- (Rupees Fifw compensation ,rZr.s+i-Ct-pc'to the'legal heirs tf the deceased' land revenue and which shall b" ,".o'*J'iy *uy of ar"rear of in default of puy*"nt7 thereof undergo simple imprisonment of six months' "tto"'y e) Accused Azhar AIi @ Uncle also foundoIguiltv u/s 6(1)(b) of ATA 1gg7, una .onJittJ u/s 7(1)(a) arR 1997' for life (Rupees Fifty imprisonment and to ;", ' *t":f Rs50'000/- as fine and'in'tu" of clefault oI payment of fine' he Thousand) shall further suffer for six months simple imprisonment'

or the charge of f) Accused Noor Muhammad found guilty superintendent,of f rnurder of Muhammal trrruq Meo, Assistant for Jail (Prison) i''- to""iti"a u/ s'302(b)/709/34-PPC 'i*priJorl*".,t for life and pay a su1 (Rupees Rs'50'000/- 9f. to the legal Fifty Thousandt) ';;;;;"i*"ti"" u/s'544-Cr'PCway of arrear by heirs of the deceased, -hi.h shall be recovered recovery thereof of land revenue u.rJ i., d"furrlt of payment / months' undergo simple imprisonment of six

g) Accused Noor Muhammad also found guilty 7997' u/s 1f u/s 7(1)(a) t l'o lor life -6(tJ(b), ATA 1'gg7, ur'ta "-t*'ittua ;; ;', u *rn oi'(t's0i000/- (Rupees Fifty imprisonment ""d Thousancl) us fi"e a"d'itt"a'e of default of payment of fine' he shallfurthersufferforsixmonthssimpleimprisonment. for the charge of h) Accused Abdul Aziz Ansari also found.guiltvand sentenced to the offence u/ s 3IL-PPC' he is convicted suffer R.I. fo,,"'* iO4 years and fine of Rs10'000/- and in case of default of p"filrt"i of fine' he shail further suffer for six months simPle imPrisonment' Ali also found guilty for

i)Accused Abdul Aziz Ansari and Azhar t/s 427-PPC' and they are the charge of the oiLnce punishable r( convicted ,""tu"t"J tt suffer R I' for two (02) years each' ^.d

(2)Abdul Aziz j) Accused (1) Azhar Ali @ Uncle and accused u/s 353/34'PPC' Ansari found g"iliy'; tht thutg" of offence j

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r/w Section 7(h) of ATA, L997 they are convicted and sentenced to suffer R.l. for five years and fine of Rs.10000/ - (Ten thousand rupees) each, in case of default in payment of the fine, they shall further suffer simple imprisonment for six months more' k) Accused (1) Azhar Ali @ Uncle and accused (2) Abdul Aziz Ansari found guilty of the charge of offence u/s 324/34-PPC r/w Section Zltr; of ef e, 1'997 they are convicted and sentenced to suffer R.l. for five years and fine of Rs.10,000/- (Ten thousand rupees) each, in case of default in payment of the fine, they shall further suffer simple imprisonment for six months more'

1)Accused Abdul Aziz Ansari also found guilty of the charge of offence punishable u/s 13(d) of Arms Ordinance is convicted and senie.,ced to suffer R.l. for seven (07) years and fine of Rs.25000/- (Rupees Twenty Five Thousand) in case of default in payment of the fine, he shall further suffel simple imprisonment for six months more.

m) Accused Azhar Ali @ Uncle also found guilty of the charge of offence punishable u/s 13(<1) of Arms Ordinance is convicted and seniencecl to suffer R.I. for seven (0Q years and fine of Rs.25000/- (Rupees Twenty Five Thousand) in case of default in simpie imprisonment Payment of the fine, he shall further suffer for six months more.

All the sentences were to run concurrently. The benefit of Section 382-8 Cr.P.C was extended to the accused (1) Azhar Ali @ Uncle ancl accusecl (2) Abdul Aziz Ansari (3) Noor Muhammad @ Bangali. "

2.Tlre brief facts of the prosecution case as per FIR No'726/2010' under Section gO2/ 427 / 10g/34 PPC r/ w Section 7 of AT A 1'997 registered at PS Ferozabad (SIU) Karachi are that the cornplainant is Head Constable in Police DePartment, his elder brother Muhamrrrad Ishaque Meo son of Chahat Khan aged about 38 years was Assistant superintendent in Central Prison, Karachi. On 14.06.2010 the complainant received telephonic message at about 1930 hours, that his brother Muhammad Ishaque Meo was going in his Car No.Z-8966, white colour, Margala, and when he reached at Shaheed-e-Millat Road, near Memon Masjicl, near Medicare Signal, on one unknown number motorcycle two young boys' wearing pants shirt, fired from their weapons on brother of the complainant' who ( became injured and had been taken to Liaquat National Hospital' On sucir information the complainant immediately reacl'red at Liaquat National Hospital, he saw that his brother had received three bullet injuries on stomach, right arm and right side of the back and was seriously

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injuled and later succumbed to his injuries, as such the said FIR was lodgect against the unknown culprits. The accused Azhar AIi and Abdul Azizwere arrested in FIR No.179 /20201 on17.07.2010.

3.In nutshell, the facts of the prosecution case as narrated in FIR No.179/2010 are that on 77.07.2010, complainant SIP Muhammad Shoaib Qureshi of PS AEC/CID Sindh, Karachi, along with his subordinate staff was busy in patrolling duty in Sovernment mobiles in search of target killers within Karachi, l-re received spy irLformation about presence of armecl accused persons opposite Darakhshan Society, Railway Track, for the purpose of target killing, on such information he reached along with his subordinates at the pointed place at about 01:30 hours, on seeing three accused persons on railway track police Party stoPPed mobiles for arresting accused persons. The accused Persons when saw police party startecl firing upon them with intention to kill them and 02 bullets hit on bocly of police mobile No.SP-5988, in retaliation police party also made aerial firing then encircled and arrested two accused Persons with their weapons namely (1) Azhar Ali @ Uncle S/o' Abdul Rehman and (2) Abdul Aziz S/ o. Abdul Naseer, whereas accused Noor Khan while making firing made his escape good, his name was disclosed by arrested accusetl persons. Personal body search of accused Persons was made by SIP Shoaib Qureshi in presence of mashirs, and he recovered from right hand of accused Azhar @ Uncle one unlicensed pistol of 30 bore without number, loaded magazine with 02 live rounds and one live round in chamber, one mobile phone cash of Rs.210/- and 03 SIMs, and from the right hand of accusecl Abdul Aziz one unlicensed pistol of 30 bore loaded magazine with 03 live rounds and one round in chamber and from his pocket one mobile phone of Nokia 1112 with SIM, Cash o{ Rs.80/-' Police party securecl 06 empties o{ 30 bore form the place of incident' After completing legal formalities ttuee FIRs (1) bearing No.179/2010 u/s 3s3/324/427/34-PPC, (2)FIR No.1B0/2010 and (3) FIR No.1B1l2010 u/s 13-D of Arms Ordinance, were registered at P.S CID, Sindh against accused persons on the basis oI statement { s 154 Cr.P.C. ll

4.After usual investigation the appellants were challoned by the police. The charge was framed against the accused Persons to which the ,1Lltlt Prosecufor

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accused persons denied all the allegations leveled against them' They

claimed to be an innocent and prayed {or trial

5.The prosecution in order to prove its case examined 17 witnesses and exhibitecl various documents and other items' The statement of the appellants was recorded under Section 342 Cr 'P 'C in which they denied all the prosecution allegations and claimed false implication at the hands of the police on account of political victimization' None of the appellants gave evidence under oath' Two of the appellants however called DW's in

support of their defence case'

6.After appreciating the evidence on record the trial court convicted and sentenced the appellants as set out earlier in this judgment whilst their co-accused Syecl Mehmood aka Guddu was acquitted by being extentled the benefit of the doubt whose case both legally and factually he was was on a completely different footing to that <;f the appellants as in jail ancl was not Present at the scene of the murder or police encounter and no weapon was recovered from him' The State did not file an appeal

against his acquittal. Hence, the appellants have filed these aPPeals against tl"reir convictions.

7.Learned counsel for the appellants has contended that the by appellants are completely innocent and have been falsely implicated of the police on account of poiitical victimization; that the identification as no the appellants by the sole eye witness cannot be safely relied uPon l-rulia of the appeltants was given by him at the time when he recorded his defects in the 5.161 Cr'.PC statement and that there were major procedural picked out by subsequent identification parade where the appeltants were the eye witness; that the encounter case was false as it was a case of of the ineffective firing and that the so called recovered pistols from two FSL report was appellants had been foisted on them by the police and the should be managed and that for any of the above reasons the appellants of his acquitted by extending them the benefit of the doubt' In support contentions he has placed reliance on the cases of Hayatullah v' The State (2018 SCMR 2092), Muhammad Umair alias Bhutto State (2018 MLD 1196), Jalal Hassan v' Ameer lJantza Awan and 2 .,qdl Prosecrrfor

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others (2019 MLD 1170), Mst. Sughra Begum and another v' Qaiser Pervez and others (2015 SCMR i 142), Khurram Jalali v' The State (2017 P. Cr.LJ l9), Kauwar Anwaar Ali, Special 4 Judicial Magistrate: In the matter of Criminal Miscellaneous Application No. 183 of 2Ol9 of Criminal Appeal No'259 of 2Ol8' clecided on 22nd February, 2019, Toor Jan v. The State (2020 YLR 1099), Riaz Ahmed v. The State (2010 SCMR 846), Shakeel and another v. The State (2019 MLD 1554), Hayatullah v' The State (2018 SCMR 2092) and Taj Bahadur alias Tajl and another v. The State (1997 MLD IO72).

8.On the other hand learned APG appearing on behalf of the State who was also representing tl're complainant has fully supported the impugned judgment. He has contended that the eye witness' evidence was trustworthy, reliable and confidence inspiring and that he has correctly identified the appellants as the Persons who murdered the deceased at the identification parade; that two of the appellants were caught red handed during a police encounter with unlicensed pistols and after there arrest they confessecl before the police that they have murdered the deceased; that the appcllants took the police to the wardat; that the medical evidence has corroborated the ocular evidence; that there was a positive FSL report from the pistols which were recovered from two of the appellants when the emPties recovered at the scene of the murder ar-rd police encounter were matchecl; that there were no material contradictions in tl-re evidence of the PW's and as such the evidence of the prosecution witnesses couid be safely relied upon; that it was an act of terrorism and that all the convictions and senter-lces be maintained and the appeals dismissed. In support of his contentions he placed reliance on the cases of Bashir Ahmed v. The State (2004 P.Cr.LJ 1326), Muhammad Zaman v' The State (2007 SCMR 813), Niaz-ud'Din and another v' The State and another (2011 SCMR 725), Sikandar v. The State and another (2006 SCMR 1756), Jan Mohammad alias |anoo v. The State (2016 YLR 2359)' MuhanrmadEhsanv.TheState(2006SCMR1857)andNazarHussain and another v. The State (PLD 2010 Supreme Court 1021)'

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9.We have heard the arguments of the learned counsel for the appellant as well as learned APG who was also acting for the complainant, gone through the entire evidence which has been read out r by learned counsel for the appellants along with the impugned judgment who have ably assisted us and have considered the relevant law including the case law cited at the bar.

10.Based on our reassessment of the eviclence of the PW's, especially PW eye witness Muhammed Javed, the other PW's, PW L5 Dr. Afzal, the n-redical reports and certificates, recovery of empties at the scene, the recovery of bioocl at the scene and tire bullet holes in the car which the deceased was driving when he was shot we find that the prosecution has proved beyond a reasonable doubt that on 14.06.2010 at about 1930 hours Muharnmed Ishaque Meo (the deceased) was shot by firearm whilst c{riving car with registration No.Z-8966 near Pahari Wali Memon Masjid, Shaheed-e- Millat Road Karachi whereby he was seriously injured and later died on account of the serious firearm injuries which he sustained on the same day at Liaquat National Hospital Karachi.

11.The oniy question left before us therefore is who seriously injured the deceased by firearm which lead to his death (murder) at the said time, ciate and location?

12.After our reassessment of the evidence we fincl that the prosecution has NOT proved beyond a reasonable doubt the charge against the appellants for which tl-rey wete convicted for the following reasons;

(u)In our view the prosecution's case rests on the evidence of the sole eye witness to the murder of the deceased whose evidence we shall consider in detail below;

(i)Eye witness PW 9 Muhammed ]aved. According to his evidence on 14.06.2010 after offering Magrib prayer when he came out of the Maslid he heard fire reports and saw three persons on two motorcycles one of who made firing on a car and then they robbed his (the car driver's) mobile phone and wallet before fleeing away. The person in the car came out in an injured condition and he was shifted to hosPital. On 21.07.2070 he picked out appellants (Azhar Ali and Abdul Aziz) with specific roles at an iclentification parade before the juclicial magistlate. On 28.09.2010 he again picked out appellant Noor Muharnmed with a specific role.

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tql to his evidence he was Khalid's driver but Khalid According"examined was not ancl nor was the location of Khalid's house or office disclosecl and the eye witness appears to be a roving taxi driver. Ordinarily he rnight be seen as a natural ,< witneis however on the next day his 5.161 Cr'PC statement was recorded at the wardat by PW 14 DSP Aijaz Hussain which begs the question what he as a driver was doing at the wardat u.-day afiet the incident which in our view tilts the baiance in iavour of him not being a natural witness especially as the eye witness contradicts the police evidence by stating that he gave his 5.161 Cr'PC statement at the PS' He appears to be a Put uP witness.

Furthermore, in his evidence he states that there was light/darkness but things were visible No iight bulb was seized flom the wardat.

Although his eye witness 5.161 Cr'PC statement was taken the nex"t clay he gave no huiia or description of any of the appellants in the iame. No description of the appellants aiso upp"utt in the FIR who are stated to be unknown Persons' fi" t an eye witness is also not named in the FIR' In his "i.tg evidencJ he aiso states that he never tolcl the police that he coulcl make a sketch of the accused with is in contradiction witir tl-re police evidence which states that he and Atif (another eye lvitness who was not examined) made sketches of tne uppettants which were not exhibited at trial' He dicl not knoiv the appeilants Prior to the incident and only got a fleeting glurr." oi them from a distance of over 20 paces with indiffele"nt light at best ancl during a chaotic and life threatening incident.

Admittedly, the eve witness had no enmity with the appellants and we can convict based on the evidence of a facts and ,oi" witness however based on the particular "y" circurnstances of this case we find that even if the eye witness was prE:sent at the time of the incident based on the reasons meniioned above he wouid not have been able to correctly, safely and reliably identify the appellants' In this respect reliance is placecl on ti-re case of.Javed Khan V State (2017 SCMR 524) concerning the necessity for an early eye wilness before an hulia/ description of an accused by an identification paracle and the need to strictly follow the rules governing identification parades where it was held as under at P.528 ro 530:

"7. We lmae heard the lenrned counsel and gone through the record. The prosecution case rests on tlw posititte idcntifcation proceedings and tlrc Forensic Science Laboratory report uthich 'states thi the bullet casing sent to it (tohich ruas stated to haue same pistol ie",n prck d up fronr the crilne scene) roas fred from.the 'recoaerrrl (tuhich tons t'rom Raees Khan in anothcr case) ' We b I rosecla toa

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therefore proceed to consider botlt these aspects of the case ' As regards the iclentification proceedings and th-eir context there is a long line of precedents stating that identification proceetlittgs 'Entperor must be carefulllt conducted' ln Ramzan tt lAtn rczS Sid 149) Perceunl, lC, ruriting for the ludicial Commissioner's Cottrt (the precursor of the High Court of Sindh) hetd that, "The recognition of a dacoit or other offender by a person zuho has noi preaiously seen him is, I think, a form of 'eoidence, uhich has alznays to be taken zoith a considerable amount of caution, because mistakes are always possible in such casis" (page 149, column 2). ln Alim tt' State (PLD 1967 SC 307) Cornelius Cl, zoho had delittered tle judgment of this Court, tuith regnrtl to the mntter of identifcation parades held, tlmt, "Thefu [iitnessesl opportunities fot obseroation of the culprit were extrcn ely timited' They had neztet seen him before. They had picked out the assailant at the iientification parades, but there is a clear possibility arising out of theb siatements that they uere assisted to ilo so by being shown the accused petson earlier" (pnge 313E)' ln Lnl Pnsird o. Stnte (PLD 1gB1 SC 142) Dorab Patel l, tuho had ,luli.n rtt tlu iudgment of this Court, hekl that, if a utitness had not giaen a desctiption of the assailant in his statement to "Police the anil iitentification took place four or fizte months after the tnurder it toould, "react against the entire prosecution case" (page 145C). ln a more recent iudgment of tllis Court, lnran Ashraf tt. Stnte (2001 SCMR 424), tLhiclt uns nuthoretl by lftiktnr ivluhantnnd Chaudhry J, this Court luld that' it must bi ensured that the identifuing ttsitnesses must "trot see the accused aftet the commission of the cime till the irlentification paiade is helil inmediately a/ter the anest of the aicused persons as early as possible" (page 485P)' B. The Complainant (PW'l) had not mentioned any features of the assailants either in the FIR ot in his statefient iecordeil under section 161, CI.P.C. therefore there uas no benchmark against zohich to test ztthether the appellants,- uho he had ldentified after ooer a year of the cfime, and zuho he had fleetingly seien, were in fact the actual culpits' Neitlur of il. nr'-o Magistrates had certified that in the identificntion proceedings ihe other Person6, oryo'9.t| rulnm the appelinnts toeire plncedl toere of similar nge, lrcight, built nnd clolo,rring. The main object of identification ptoceedings is to enable i witness to prope y identifu a Person inttoloed in a crime anil to excluile the possibility of a witness simply confirming a faint recollection or impression, that is, of an oli, yorn!, till, short, fat, thin, dark or fair su2pecL There is yet nnothi nspect to tlrc natter of identificntion of the culprits of ihi, ,ntr. The Complninant had named tltee other persons tttho could recognize the assailants, but lrc did not mention Subedar Mehmood-Ahmad Khan (PW-6) as one of them' Nonetheless Subednr Melrmood Ahmad Khan came fonoard to identtfu the nppellants. Significantly, ,to e of the. -three persons m'entioned by" tirc Complainant participated in the ictentification- proceedifigs afid t"wo were not e7)en Produced.

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as witnesses by the Prosecution. During the identification { proceedings both the appellants hail informed the Magistrates uslto u)ere conducting the identification proceedings, anil before the identification proceedings commenced, that they lnd earlier been shoutn to the witnesses. The Magistrates recorded this objection of the appellants in their reports but surprisingly did not attend to it, tuhich can only be categorized as a serious lapse on their part. Therefore, for all these reasons reliance cannot be placed upon the report of the identification proceedings in which the appellants uere iilentified.

9.As regards the identification of the appellants before tlrc trinl court by Nasir Mehboob (PW-S), Subedar Mehmood Ahmed Khnn (PW-6) AND ldress Muhammad (PW-7) that too toill not nssist tlu Prosecution because these ruitnesses had a number of opporttmities to see tlrcm before tlrcir statements utere recorded. ln Stnte o. Fnrman (PLD 1985 SC 1), the majority judgment of zuhich runs authored by Almal Mian l, the learned judge had helil that an iilentification parade xoas fiecessary when the witness only had a fleeting glimpse of an accused who usas a stranger as compared to an accused toho the u;itness had preztiously met a number of times (page 25V). The sante principle ruas folloued in the unanimous judgment of this Court, deliaered by Nnsir Aslam Zahid l, in tlrc case of Muneer Altmad o State (1998 SCMR 752), in ruhiclt case the abductee had remained toith tlu abductors for some time and on seaeral occasions lnd seen their faces. In tIrc present type of case the culprits utere required to be identifieil through pro?er iilentification proceedings, howeoer, the manfler in which the iilentification proceedings tuere conducted raise serious doubts (as noted abooe) on the credibility of the process. The identification of the appellants in court by erle- witnesses zoho had seen the culprits fleetingly once would be inconsequential." (bold added)

The recent supreme court case of Mian Sohail Ahmed V State (2019 SCMR 956) has also emphzrsized the care and caution which must be taken by the courts in ensuring that an unknown accused is correctly identified. In fact such extra care and caution in relying on identification parades is an accepted global phenomena in most criminal jurisdictions as the possibility of deliberately 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 gallows is very much recognizecl and thus most jurisdictions (including Pakistan as noted below) have put in place mandatory guidelines to greatly limit the chances of such incorrect identification.

Thus, having {ound that the sole eye witness would not have been able to correctly, safely and reliably identify the appellants if seen again the conduct of the identification parade becomes in consequential. It is however important to note that the appellants lt 4<Ja, &ose" Q toi

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claimed that they were shown to the police prior to the identification parade which took place a month aJter the incident and with an unexplained delay of 9 days after there arrest during which period two out of the three appellants were kept in police custody.

It is also of significance that two other natural eye witnesses who were on the prosecution witness list were dropped who would have been extremely important natural eye witnesses in corroborating the sole eye witnesses evidence and in particular that of the correct identification of the appellants. Namely Atif and Shajjad and as such the presumption can be drawn under Article 1.29 (g) Quoon-e-Shahadat Ordinance 1.984 that they would not have supported the prosecution case especially in terms of a correct identification. The prosecution has therefore for reasons best know to itself deliberately with held the best evidence. In this respect reliance is placed on the cases of Riaz Ahmed (Supra) and Shakeel (Supra)

(b)With no eye witness evidence to the murder the medical evidence becomes inconsequential as it can only reveal how the deceased died, what kind of weapon was used and the seat of the injuries. It cannot identify the person who inflicted tl-re injulies.

(c)After the arrest of Azhar Ali and Abdul Aziz following the alleged police encounter no wallet or mobile phone of the deceased or the eye witness was found on the appellant's and thus there was no evidence to link them to the murder on their arrest apart from the recovered pistols which later matched with a positive FSL for the encounter and the murder. This however begs the question as to why the appellants would keep the pistols after the murder which would incriminate them. Logic, corrunonsense and reason clictates that they would have disposed of such pistols. In fact the evidence reveals that the encounter in effect was one o{ ineffective firing where no one. was injured which tends to suggest that no such encounter took place and the pistols might have been foisted on the appellants. No recovery was made from appellant Noor Muhammed who was not arrested at the time of the encounter and who apparently rnade his escape good.

(d)It is also significant that the police in their evidence admit that they had no idea who had committed the murder of the deceased until appellants Azhar Ali and Abdul Aziz admitted whilst in police custody for the encounter and arms case that they had murdered the deceased. Likewise appellant Noor Muhammed whilst in jail custody in another case. Not only are such confessions before the police inadmissible in evidence but it does not appeal to logic, comrnonsense and reason that a person booked in an encounter and arms case would out of the blue confess to murder when there was no evidence against him for that offence which carries the capital penalty. Interestingly no effort was made to get the confessing appellants 5.164 Cr.PC statements recorded before a judicial magistrate despite the appellants being produced before a.

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l4t t arq judicial magistrate for an identification parade.

(e ) The fact that the appellants could lead the police to the wardat -< is irrelevant as the police already knew where the wardat was.ln this respect reliance is placecl on the case of Hayatullah (Supra)

(f)Since their co-accused Guddu has already been acquitted whose alleged role was to order the appellants to murder the deceased because he had been treating him bad.ly while in jail the motive for such murder has also disappeared along with Guddu's acquittal.

(g)If the appellants were target killers as alleged by the prosecution it does rrot appeal to logic, reason or common sense for them to hang around robbing the victirn and or by standers after the murder which would greaten their chances of being caught on the sPot or identified in connection with the murder. This aspect also does not fit in with the prosecution case theory of the murder i.e it being a target killing.

13.It is a golden principle o( criminal jurisprudence that the prosecution must prove its case against the accused beyond a reasonable cloubt and that the benefit of doubt must go to the accused by way of right I as opposed to concession. In this respect reliance is placed on the case of Tariq Pervez V/s. The State (1995 SCMR 1345), wherein the Supreme Court has observecl as follows:-

"It is settled lan, that it is not necessary that there should be rnany circumstances creating doubts. If there is a single circumstance, which creates reasonable cloubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

14, For the reasons discussed above by extending the benefit of the doubt to tl-re appellants all three appellants are acquitted of the charge, the impugned judgment is set aside, their appeals are allowed the confirmation reference is answered in the negative and all the appellants shall be released unless wanted in any other custody case.

15.The appeals stand c-lisposed of in the above terms.

L n/ JU E o1 7-ll

JUDGE

l3

P"o" ecQto.r