REFERENCE MADD BY THE SPL JUDGE, ATC-II KARACHI (Appellant) VS BASHIR AHMED S/O9 KARIM BUX (Respondent)

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IN THE HIGH COURT O F SINDH AT KARACHI

Present:

Mr. lustice Mohammad l(arim Khan Agha hIr. lttstice lrshad Ali Shalt

SPECIAL CRIMINAL ATJ APPEAL NO'95 OF

SPECIAL CRIMINAL ATJ APPEAL NO'109 OF

CONFIRMATION CASE NO.46 OF 2019

Appella nts 1 At.,tlul N'la1eecl t(! Bohra S/o Rehmat Ali' conf tned in Centr.rl Pr tson, Karachi through Nlr. Iftrkhar Ahr-ned Shah, Advocate

2.Bashrr Ahmed S/o. Karim Bux, conJined in Central Prison. Karachi through Mr Muharnmad Faroor'1, Acl"'ocate'

Resporrdent/State The State thror'rgh Mr Ali Haieler Saleeur' Actlrtronal Plosecutor General Sindh'

Date of heartug. 15.09.2021,

Date of Juclgrnent 23.09.2021

IU D GMENT

NTOHAMMA D KARIM K HAN A GHA.I,- A ppellants Abdul Maleed @ Bux were trred by Bohra S/o. Rehmat Ali ancl Bashu Ahmecl S/o' Karim Juclgc Anti-Terrorrsm Court No Ii, Karachi for offence under sections 1997 regrstered at PS 302/37b-11,364-A/34 PPC R/w Sectron 7 of ATA' Joharabacl, l(ar.achiAfterfutlclresser.ltrialvtelejuclgmentdatecl 13,03.201e (the impuguecl' ltrtlgment) appellants Bashir Ahmecl was

punishecl ou tlrree couttts as untler, -PPC Alishba lunlh1lle "untler sectlor.r 364-4 of PPC for krclnapprng It,itl.r tleath, untler scctron 376(2) of for raprng Alishba punish.rble rn'ith death and under section 302 (b) PPC for and committing Qatrl-e-Arnacl punrsh'rble r'vith death and qisas thrs Court and awardetl cleath penalty sublect to couftrmation by appellant Ab.lui Ma;eetl alias Bohra yl: h'd common intentton wtth accusecl hacl kicinap-'1-'ec1 deceased Ahshba and raped he1 y.as of Alishba convictecl untler section iO+-e of PPC for kidnapping punishable to uuclergo R I for hfe He \^Ias also convictecl alrcl punished uncler sectlon 7(e) of ATA rvith life rmpr isonment f or it uncler ii.l,'loppr-t15 Ahshb.r to comlrrit Zrn'r arrcl nlso cot-tvicted scctron 7(i) oi ATA w'ith life imprisorrrnent for having common 'fhe benefit of section 382-8 iutention of Qatrl-e-Amacl of Ahshba Cr'.P C rvas also gtven to apprell'rnt Abdul Maicetl",

I 2. The brief facts of the case according to FIR No.261 /201J' lodgedby oue Muhammad Nazeer, who is complainant. at PS Joharabad on 1,4.1,2.2011, are that at about 1800 hours are that he lives in House No.314, Block-15, F.B. Area, Karachi loharabad. On 1,2.^12.201,"1 he was in his house when he received information at 5:00 pm that l'ris niece Alishba aged about six years at about 05:00 pm had gone out of the house to play at Ecligah ground but had not returned home. Since she had not returned the whole family was worried and Lried to find out her whereabouts but without succcss. The children of the Mohailah told him that she had gone for a catnel ricle anc'l on 1,4.1,2.2011 tire family of Jamal Mirza who had come to his house inJormed hirn that two camel people hacl taken one chilcl or-r the carnel hence his case is against those accused persons whose name and residence were unkttown and requested that action be taken against them for kidnapping his niece.

3.After completion of the fortnal proceedings charge was framed on 16.04.20L3 to which the accusecl pleaded not guilty ancl claimed trial of the

CASE

1.In orr-ler to prove its case the prosecution examined 12 witnesses and exhibiteci llumerous documents and other items. The aPpellants Save their statements unc'ler 5.342 Cr.PC in which they deniecl the allegations against them clairning that the complainant party had falsely implicatetl thetn irr this case concerning appellant Bashir's painting business.

5.After appreciating the eviclence on record the learned trial court convicted and sentencec-l the appellants as mentionecl earlier in this judgment hence the appellants l-rave filecl tl-rese appeals against there convictions.

6.Learnecl counsels for both the appellants have contended that the appellants are completely innocent and have been falsely implicated in this case on account of a clispute over paint \t'orks by the complainant and the police; that this is a case of no eviclence; that there are no eye witnesses; no last seen evidence; that the recoveries have been foisted and belong to the wife of the murclered child; that the only evidence against the appellants is theil retracted extra judicial confessions before the police-

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r which are inadrnissible in evidence ancl their alleged taking of the police to the scene of the murder where the recoveries wcre made and that for any of the above reasons the appellants should be acquitted by extending them the benefit of the cloubt. In support of their contentions they have placed reliance on the cases of Hayatullah v. The State (2018 SCMR 2092), Muhammad Usman v. The State (2020 P, Crl.LJ 799), Muhammad Ibrahim v. Ahmed Ali and others (2010 SCMR 637), Gul Muhammad and another v. the State through Prosecutor General Balochistan (2021 SCMR 381), foygun Bibi v. The State (PLD 1960 Suprerne Court (Pak.)

313)and Faqirullah v I(halil-uz-Zaman and others (1999 SCMR 2203).

7.On tl-re other hand learnecl APG appearing on behalf of the State who was also representing the complainant has fully suPPorted the impugned juc-lgment. He has contended that the retracted extra judiciai confessions made by the appellants to the police are admissible in law and can be used against them as those are corroborated by other pieces of evidence which in this case are the recoveries of the murderecl girls chapal, chaddar, the poker used to poke out her eyes and the recovery of her dead body which were recovered on the pointation of the appellants after their extra judicial confessions and the medical evidence which supports their extra judicial confessions and the chernical report which found sperm on the recovered clothes of the clead girl an<1 as such the prosecutioll had provecl its case beyond a reasonable doubt against both the appellants whose convictions and sentences be maintained and the appeals dismissed. In supporl of his contentions he placed reliance on the cases of Muhammad Amjad v The State (PLD 2008 Lahore 32), Shaukat Ali v The State (PLD 2019 g: 577), Naztr Shehzad v The State (2009 SCMR 1440) and Fazal Akbar v The State (2013 P Cr.LJ 369).

8.We have heard the arguments of the learned counsel for the appellant as well as learrred APG who was also acting for the complainant, gone through the entire evidence which has been read out by learned counsel for the appellants along with the impugned judgment , who have ably assisted us anc-l have considered the t'elevant law including the case law cited at the bar.

f g. At the very outset lve note that this is a particularly heinous crime and then where a young innocent girl has been abducted , raped' strangled hacl irer botly mutilatecl by having her eyes burnt out by a poker before by the being clumped in a nalla. \{e horvever as judges cannot be swaved to reassess the heinousness of tl-re crime and ou1 emotions Our role is only whether eviclence bcfore us and to',vithout emotion obiectively determine beyond a the prosecution has provecl its case against the appellants case of Naveed reasonable cloubt. In this rcspect leliance is placetl on thc as under at Para 10;

Asghar and two others v. The State (PLD 2021 SC 600) which hetd "10. The ruthless and ghastly murder of five persons is a crime of heinous nature; but the frightful nature of crime should not blur the eyes of justice' allowing emotions triggered by the horrifying nature of the offence to p?luage the accused' Cases are to be alone decided on ih"'b"]t of evidence and evidence and not on the basis of sentiments and emotions' Gruesome, heinous or brutal nature of the offence may be relevant at the stage of ,awarding suitable punishment after conviction; but it is totally irrelevant at the stage of appraising or reaPPraising the evidence availaile on iecord to determine guilt of the accused person, as possibility of an innocent involved in cases of Person having L"en *rottgly such nature cfnnot be ruled out' Au accused person is presumed to be il-rnocent tiu the time he is proven g,r-ilty bevotttl reasonable cloubt' and this presumption of his innocent continues until the prosecution succeeds in proving the charge against him beyond reasonable cloubt o; the basii of legally admissible' conficlence inspiring, trustrvorthy and - reliable eviclence. No mattei how heinous the crime' the constitutional Euarantee of fair trial under Article 10A cannot be"taken away from the accused' It is' therefore, duty of the court to assess the probative value (weighti of euery piece of evidence available onrecordiiu..o.du.."withthesettledprinciplesof appreciation of evidence' in a dispassionate' systematic and structure manner without being (bold influenced Uy tf'" nature of the allegations"' added)

Based on our reassessment of the evidence of the PW's' especially

rePorts including PW 5 Dr. Hassau's meclical evidence and meclical was kidnapped' chernical reports we find that Alishba (the deceased) in a nulla betweeu raped and murdcrecl and had her dead body dumped was initially kidnaPped 1.2.12.20L1 ancl 14.12.201,1 ancl that the deceasecl n

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f whilst being given a camel ride from an Eidgar ground near Goharabad Kalachi

11.The only question left before us therefore is whether the prosecution has proved beyond a reasonable doubt that it was the appellar-rts who kidnapped, raped and murdered the deceased by strangulation at appellant Bashirs house and then dumped her dead body during the aforesaid period from the aforesaid place in a nalla.

72.After our reassessment of the evidence we find that the prosecution has NOT proved beyond a reasonable doubt the charge against the appellants for which they were convicted for the following reasons;

(u)There is no eye witness to the kidnapping, rape, murder or dumping of the dead body of the deceased by the appellants.

(b)There is no last seen evidence to connect the appellants with the cleceasecl. Accorcting to PW 4 Nimra the deceased was last seen on a camel which u,as being lead by some one else other than the appellants whose identity remains uuknown. This is corroborated by PW 6 Asma Jamal and PtN 7 Jalnal ll- Mirza n'ho was her husband who stated in cross examirration that,' I cannot identity any body neither the carnel person nor the person running along with the camel". At best it appears that appellant Bashir may only have paid for the camel ride.

(.) There was no evidence that the appellants had anything to do with camels. It has come in eviclence that the appellant Bashir was a painter by profession. Appellant Majeed was not even seen with Bashir at the time when he paid for the cleceased's camel ride which might have even been an act of kindness on appellant Bashir's behalf as the deceased had no money whereby PW 4 Nimra who was liding on the camel with the deceased paid for the ride herself.

(.1) That the prosecution case rnainly revolves around the retracted extra judicial confessions made by the appellants before the police. It is well settled by now that a confession rnade before a police officer is inadmissible in evidence. In this respect reliance is placed on the case of Hayatullah (Supra). Interestingly, the police matle application for the juclicial magistrate to record the appellant's confessions but this was not done. The Supreme Court authority relied upon by the prosecution concerns a retracted judicial confession and thus is not applicable to this case which concerned a retracted confession before the police. In the case of Gul Muhamnred (Supra) it was held by the Supreme Court as under at P.386;'L

"It is adnritted fact that there is no direct evidence available on the record which connects the involvement of the petitioners in the occurrence alleged against them even otherwise the learned trial court has relied upon the extra jtrdicial confession which was recorded by the Investigating Officer in the presence of PW-03 Shabir Ahmad 995/C. lt is strange enough that the extra judicial confession recorded in the presence of police personnel when they were under arrest and at the time of making statement they were also in handcuffs. This practice of recording extra judicial confession by the police officials in presence of police officers is nullity in the eye of law and no credence can be extended to this piece of evidence' As far as the recovery of certain articles belonging to the deceasecl are concerned, it is sufficient to mention that recovery of all those articles are result of conjecture and surmises and without any legal backing hence, do not advance tire case of the plosecution especially when all those piece of eviclence were denied bv the accused while making tl-reir statement uncler section 342, Cr.P .C" . (bold added) (") That although semen was found on some of the clothes of the deceasecl no DNA report lvas exhibited so as to link the semen to either of the appellants in connection with the rape of the deceased. The best that can be said is that the deceased -t' was raped but by whom remains unProven. In this respect reliance is placecl on the case of Muhammed Usman (Supra)

(f)Even if it was believecl tfuough the evidence of P\N 2 Muhammed Akram (who allegedly lived above the appellant Bashir) that Bashir lived below him as no rental agreement was produced it cloes not appeal to logic, reason or co[tmon sense that whilst the deceased was screaming during the rape ancl then having her eyes gauged out by a poker nobody heard anything especially as many other tenants lived in the building. No blood was recovered from the place oI the.rape and murder which puts the place of the incident in some doubt.

(g)With regard to the recoveries of the chapal and chaddar found at appellant Bashir's aPartment there is no evidence that these belonged to the deceased and even other wise when the deceased's body was movecl from appellant Bashir's house it does not appeal to reason, logic or common sense that he would have left these belongings of the c'leceased at his llouse where they could be readily found. He would have disposed of them when he allegedly disposed of the body. Even if it is accepted that the tecoveries were tnade on the pointation of the appellants which they later denied these recoveries alone woulcl not be sufficient to convict the appellants without overwhelming other admissible prosecution evidence wl-rich was available in the authorities cited by the APG but which was not available in this case as discussed above, ,

t{a

0, The body of the deceased was found in a nulla about 8 KM's from the appellant Bashir's house and the body (which was complete rather than being chopped up) according to the prosecution was taken frorn his house to such location by motor bike. Again it does not appeal to reason, logic or commonsellse that a dead body would be transported for 8 I(M's on a motor bike without being noticed.

13.It is a golden principle of criminal jurisprudence 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 V/s. The State (1995 SCMR 1345), wherein the Supreme Court has observed as follows:-

"It is settlecl law that it is not necessary that there should be many circumstances creating cloubts. If there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a mattel of grace and concession but as I a matter of right."

1'4. For the reasons discussed above by extending the benefit of the doubt both the 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 both the appellants shall be released forthwith unless wanted in any other custocly case.

15.The appeals ancl reference stand disposed of accordingly E)) l"'1,

JUDGE

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Muhannad Aril 7

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