UBAID @ K-2 S/O KHURSHEED & ANOTHER (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COURT OF SINDH, KARACHI

Present:

Mr. lustice Mohammad Karim Khan Agha Mn lustice lrshad Ali Shah,

SPECIAL CRIMINAL A.T. APPEAL NO. 75 OF 2018

Appellants 1. Ubaid @ K-2 son of Khursheed

2.Nadir Shah son of Munwar Shah through M/s. Rri Ali Wahid Kunwar and Nadeem Ahmed Azar, Ad voca tes Respor-rdent The State through Mr. Mohammad Iqbai Awan, Ac-lditional Prosecutor General Sindh and ChaudharY Mehmood Anwar, SPeciai Public Prosecutor, Pakistan Rangers.

Date of Hearing 05.L0.202't

Date of Announcement 1,1.1.0,2021.

IUDGMENT

Mohammad Karim I(han AghaJ- The appellants Ubaid @ K-2 son of Khursheed and Nadir Shah son of Munwar Shah have assaiied the irnpugned judgment dated 28.02.2018 passed by Learned Judge, Anti- Terrorism Court No.WI, Karachi in Special Case No'395(vii) of 2015 ar ising out of Crime No.53 of 2000 under section 302/ 34 PPC r / w section 7 of ATA, 1997 registered at PS Soldier Bazar, Karachi whereby the appellants were convicted under Section 265-H (ii) Cr.PC for offence u/s. 7 (a) ATA,7997 r/w Section 302(b)/34 PPC for committing murder of deceased sIP Nisar Ahmecl and slP Muhammad Rehan and sentencecl them to each suffer R.l. for life and to pay fine of Rs.2,00,000/- (Two Lacs) each to the legal heirs o{ the deceased as compensation. In case of non- payment of fine they shall suffer further S.l. for six months each. Benefit of Section 382(b) Cr.PC was extended to the appellants.

2.The brief facts of the prosecution case as Per FIR is that on 25.03.2000 Muharnmacl Imran son of Zaheer-ud-Din recorded his s.154 Cr.PC statement averring therein that his brother slP Muhammad Rehan and his friend sIP Nisar Ahmecl posted at Police Lines Ceutral, left their

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house at about 0945 hours to appear before DIG Crimes, Karachi, when they reached at M.A. Jinnah Road Opposite Bundu Khan Hotel at about 10:15 a.m. they were fired upon allegedly by terrorists of MQM (Altaf Group). It was further averred that his brother SIP Muhammad Rehan and SIP Nisar Ahmed along with SHO Sarwar Commando and SHO Nasir-ul- Llassan had played an important and active role for arresting terrorists of MQM (Altaf Group) therefore, few days prior to the incident, deceased brother of complainant was being threatened of dire consequences by Asif Dhoon, Shahid Rameez,, Javeel Akhtar Sidcliqui, Faheem Kankatta, Ubaid alias K-2, Nadir Shah, Aamir alis Sheru and Jawed Shah Puri, therefore, FII( was r.egisterecl for the offence under section 302/ 34 PPC r / w section 7 ATA. Investigation was entrustecl to Inspector Muhammad Saleem SHO, PS Solclier Bazar, who visited the place of occurrence, recorded 161 Cr'PC statements of PWs and prepared sketch of place of occurrence' He concluctecl S. 174 Cr.PC proceedings of deceased police officers, inspected their deaci bodies, obtained cause of cleath certificates. He tried to search the culprits, but could not succeed and on expiry of stipulated period' submittecl final report in 'A' class.

3.On 04.04.2015 DSP Rahim Strah of Jamshed Quarters, received an entry that an accused Ubaicl alias K-2 was arrested by Azizbad W' requirecl in several offences pertaining to different police stations' confinecl at the lockup of IrS Gulberg. He was directed to interrogate the saicl accused ancl carry on investigation against him in the instant FIR. He along with his subordinate staff, arrived at PS Gulberg, interrogated the accusetl anci during interrogation accusecl Ubaid alias K-2, disclosed that he along with Naclir shah and other assailants, causecl fire shots at sIP Nisar Ahmed ancl slP Muhammad Rehan within the local limits of PS solclier Bazar while armecl with deaclly weaPons. Thereafter, he arrivecl at PS Paposh Nagar, collectecl custocly of Naclir Shah, interrogatetl him/ who also clur.ing interrogation admittecl his complicity in the commission of instant offence. Both the accused became ready to point out the place of occurrence, and thereby was inspected on the pointation of both accused, where DSP Rahirn Shah re-arrested both the accused under memo' Tl-rereafter, he recocled 161 Cr.PC statements of PWs, produced the accused before concerned court afrd obtaine,l police custody remand. He

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was transferred and investigation was handed over to Inspector Gul Falaz

4.After cielegation of investigation, Inspector Faraz Gul Abbasi, approached the concernecl Court of J.M. and moved an application sought permission to produce witnesses, his application was entertained with tlirections to produce the witnesses on 13.04.2015. On the said date, he proclucecl the witnesses before the Court of J.M. and requested for identification palac.le, which was held, wherein both the accused were ic-lentified by P.w. Manthar Ali. He collected FSL and Biochemical report. After completion of all necessary formalities, he submitted report under Section 173 Cr.PC in the Court of law, showing accused Asif Dhoon, Javecl Shah, Aamir, Shahicl Afroz, Faheem I(ankata and |aved Akhtar in

column 2. Thereafter charge was framecl against the appellants whereby they plead not guilty and claimed trial

5.The prosecution in order to prove its case examined 12 witnesses ancl exhibited various documents and other items. The statement of both tlre appellants was recorded under section 342 C\.P.C in which they denied all the prosecution allegations and claimed false implication at the hancls of the police on account of political victimization. Neither of the appellants gave evidence under oath or called any witness in support of l-ris defence.

6.After appreciating the eviclence on record the trial court convicted anil sentenced the appellants as set out earlier in this judgment Hence' the appellants have filed these appeals against their convictions'

7.Learned counsel for the appellants has contended that the appellants are completely innocent and have been falsely implicated by the police on account of political victimization; that the identification of the appellants by the sole eye witness cannot be safely relied upon as no hulia of the appellants was given by him at the time when he recorded his 5.161 Cr.PC statement anc'l that there were major procedural defects in the subsequent identification parade where the appellants were picked out by the eye witness and as such the iclentification parade could not be safely relied upon; that no recovery was macle from the appellants; that the appellants' alleged confessions before the police are inadmissible in

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evidence an.l that for any of the above reasons the appellants should be acquitted by extending them the benefit of the doubt' In support of his contentions he has placecl reliance on the cases of Sajian Solangi v' The a State (2019 rcMIt 872), Hayatullah v. The State (2018 SCMR 2092)' Abdul Sattar v' The State (PLD 1.976 Supreme Court 404), Fazal Hussain alias Faqeera and others v' The State (2020 P Cr. LJ 311), Taj Bahadur alias Taji and another v' The State (1997 }lLD 1072), I(unwar Anwar Ali, Special Iudicial Magistrate: In the matter of Criminal Miscellaneous Application No.183 of 2079 in Criminal Appeal No.259 of 2018 decided on 22nd February, 2019, Toot )an v' The State (2020 YLR 1099), Riaz Ahmed v. The State (2010 SCMR 846), Muhammad Umair alias Bhutto v. The State (2018 MLD 1196), |alal Hassan v' Ameer Hamza Awan and 2 others (2019 MLD 1170), Muhammad Ali v' The State and 3 others (2015 P. Cr.1448), Ali Sher and others v' The State (2008 SCMR 707) and Khurram |alali v. The State (2017 P CI'LJ Note 19)' I 8. On the other hand learned Special Prosecutor Rangers and learned APG appearing on behalf of the State have fully suPPorted the impugned juclgment. J'hey have contended that the eye witness evidence was trustworthy, reliable and confirlence inspiring and that he has correctly at the iclentifiecl the appeliants as the Persons who murdered the deceased the identification paracle; that the medical evidence corroborates/ suPPorts of eye witness eviclence, that blood and empties were found at the scene the offence; that there are no contradictions in the prosecution evidence which can be safely relied upon; that the appellants both conJessed their guilt cluling interrogation by tl-re police; that the appellants af ter their of confessions took the police to the place of the wardaU that it was an act ancl the terrorism and that all the convictions and sentences be maintained reliance on appeals clismissed. In support of their contentions they piacecl the cases of Atta-ur-Rehman and another v' The State (2018 SCMR Muhammad Zamanv The State (2007 SCMR 813)' Niaz-ud-Din v The

(2006 SCMR 1857)

State (2001 SCMR 725), Muhammad Ehsan v The State ancl Solat Ali l(han v The State (2002 SCMR 820)'

We have heard the arguments of the learned counsel for g. the

as well as learned Special Prosecutor Rangers and APG' gone appellants

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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 and have considered the relevant law including the case Iaw

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cited at the bar,

10.Basecl on our reassessment of the evidence of the PW's, especially the medical evidence, the medical rePorts and certificates, recovery of ernpties at the scene, the recovery of blood at the scene and the bullet holes in the bike which the deceasecl were riding at the time they were sl-rot we find that the prosecution has proved beyond a reasonable doubt that on 25.03.2000 at about 10.15arn SIP's Muhammed Rehan and Nisar Ahmed (the deceasecl) were shot by firearm whilst ricling a motor bike ncal Buncloo Khan Hotel M.A.Jinnah Road Karachi whereby they were seriousiy injured and later died on account of the serious firearm injuries which they sustained on the same day at Civil Hospital Karachi.

11.Tl-re only question teft before us therefore is who seriously injured t the tleceased by firearm which lead to their cleaths (murder) at the said time, date ancl location?

12.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 tl.rey were convictecl for the following reasons;

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

(i)Eye witness PW 10 Manthar' According to his evidence on 25.03.2000 at about 10.15 to 10'30am he saw two police men passing ahead of him on a bike who were being chased by a SuzukiHi-roof which dashed with the bike of the police men.He saw 5 to 6 culprits armed with sophisticated weapons alight from the Suzuki Hi roof who made indiscriminat" fit. o.t the police rlen who had fallen off their bike having clashecl with the Suzuki Hi-roof which culprits then flecl the scene of the offence. Inspector Saleem from PS Solclier Bazzar arrived at the scene of the incident who recorded his 5.161 Cr.PC statement on the same day On "13.04.20'15 he iclentified both the appellants with a specific role at an iclentification parade held by PW 3 Muhammecl Sulemerr who was a judicial magistrate.

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According to his evidence he was a scraP shop keeper who happenecl to be in the area pushing his scrap cart when the inci.lent took p1ace. He however could not name his shop and its location or even his residential addresses during the last 15 years with any precision. Furthermore, he is not named in the FIR as an eye witness. As such it appears that he hacl no genuine reason to be in the vicinity and appears to be a chance witness.

Even if he was Present at the scene at the time of the inciclent altl-rough it was a daylight incident there is no mention in his eviclenie how far away he was from the incident, he has not given any hulia ir-r his 5.161 Cr.PC Statement of either of the ippetlanis, he did not know the appellants prior to the inciclent ancl it aPpears that he would have only got a fleeting glance of them during a chaotic and frightening incident whereby he would be looking to take cover from the indiscriminate firing. Significantly the police men narne<1 Muharnmed Saleem who allegedly recorded his S 161 Cr.PC staternent was not even named in the calendar of witnesses let alone gave evidence of this fact and aPPears to have been the first IO or at least a first responder' Interestingly when the rePort was originally f iled in " A" class in ZObi pW 10 eye witness Manthar was not named as a t witness. PW 11 Gul Faraz who reopened the case and was the last IO's evidence as to how he traced out PW 10 eye witness Manthar is also not confidence inspiring and tends to contradict PW 10 Manthar's evidence that he had been living outside Karachi for the last two years This all tends to suggist that PW 10 eye witness Manthar might have been a prri"r"rp witness. Taking all the above into account and the iact tirat he itlentifiecl the appellants at an identification parade 15 years after the incident we find that we cannot safely rely on him as having correctly- identilying the upp"ilurltt lvho fired at the deceased who later died on aiiou.,t of their wouncls' The FIR although registered promptly based on hearsay evidence only contains a list of p".rorl. including the appeilants who , had allegedlv ihreatened the complainant's deceased brother against which no folmal compliant was made which at best rnade the appellants susPects.

Admittedly, the eye witness had no enmity with the appellants but it appears that the police did as accordiug to the prosecutiot .ut" the cleceased had carried out operations against the appellants' political organization which had also targeted the police on account of such operatlons anc'l thriatenect the <leceased on account of his involvement in such police operations.

It is true that we can convict based on the evidence of a sole eye witness however based on the particular facts and circumstances of this case as discussed above we find that,

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even if the eye witness was present at the time of the incrder-rt basecl ou the reasons mentioned above he would not have been able to correctly, safely and reiiably identify either of the appellants after a lapse of over 15 years since he allegedly witnessed the incident.

In this respect reliance is placed on 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 iclentification parade and the need to strictly follow the rules governing iclentification parades wl-rere it was held as under at P.528 to 530:

'7. We lntrc lunrd tlrc learned counsel nnd gone througlt the recorcl. Tlrc prosecution cnse rests on the posititte identifcation proceerlings nnd the Forensic Science Lnboratory report ruhiclt 'stntes tlnl ilrc btillet cnsing sent to it (tohich runs stnted to lmpe been pickerl tLp front the crirne scene) tons fired from the same pistol ftttltich runs ricoaered from Rnees Khnn in another cnse)' We thereJore proceed to consider both tlrcse aspects of the case' As regards the identification proceedings and theit context tiere is a long line of precedents stating that identification proceeilirtgs 'Ertperor tnust be carefully conducted' ln Ramzan tt (Atn rcZg Sid 149) Perceoal, lC, unting for the ludicial I Coinnrissioner's Court (tlrc precursor of ttrc Higlt Court of Sindh) helrl tlnt, "The recognition of a dacoit or othet offeniler by a persofl tuho has noi preoiouslg seen him is, I think, a fornt of 'eaidence, which has alcoays to be taleen toith a considerable arrount of caution, because mistalces are akoays possible in such casis" (page 149, cohmn 2). tn Alint tt' Stnte (PLD 1967 SC 307) Corneliius CJ, rolto had delioeted the judgment of tltrs Court, tpith regnrd to the rnttter o.f identiftcntion pnrndes held, thnt, "Their [iitnesses] opportunities for obseruation of the culprit ruere extremelY limited, They had neuer seen him before. The17 had Pi cked out the assailant at the identification parudes, b ut there is a clear possibility arising out of their statements that they were assisted to do so bY being shoutn the accused perco?t earlier" (pnse 373E). In Lnl Pnsnnd t,, Sttrte (PLD 1981 SC 142) Dorab Patel l, u,ho ltnd rlelittered tlrc jt.tdgnuttt of tltis Court, held that, if a uitness had not giaen a description of the assailant in his statement to the I'olice and identification took place four or fiae months after the murder it uould, "react against the entire prosecution case" (pnge 145C). ln n tnore recent judgment of tltis Court, Itrrnn Ashrnf tt. Stnte (2001 SCMR 424), ruliclt runs autlrcrecl by lftiktmr Muhnmrund Chnttdhry l, thrs Court lrcld tlmt, it must be ensured tlmt the identifying witnesses must "not see tlrc accused after the commission of the crime till the identification paiade is held immediately a/ter the anest of the accused persons as early as possible" (page 485P)'

8.The Complainant (PW's) had not mentioned any features of the assailants either in the FIR ot in his statement recorded under section 16L, Cr.P,C. thercfore there utas no q

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benchmarlc against uhich to test whethet the appellants, who he had identifietl after outer a year of the crime, and u;lro he had fteetingty seen, u)ere in fact the actual culprits' Neitlrcr of the truo Magistrntes ttad certified tlut in tlw identificntion proceedings ihe otlrcr pelsons, aruongst ruhom the. appelinnts toe:re plncerl, toere of similar nge, lrcight, built and ciolouring. The main obiect of identification proceedings is to enable i witness to propetly identifu a percon inttolaed in a crime and to exclude the possibility of a witness simply confirming a faint recollection or impression, that is, of an olrl, young, tall, short, fat, thin, dark or fair suspect "' ' g. As regnrds the identification of the appellnnts before the trinl court by Nasir Mehboob (PW-s), Subedar Mehmood Ahmed Khnn (PW-6) AND ldress Muhammnd (PW-7) that too ruill not assist tlrc Prosecution becnuse tlrc se roitnesses had a number of opporttmities to see them before their statements were recorded. ln Stnte p. Farruan (PLD 1985 SC 1), the nmjority judgment of ruhiclr runs nutlnred by Ajmal Minn l, the learned iudge had held that an identificatio n parade was flecessary tphen the witness only had a fleetitrg glimPse of an accused tt;ho loas a stranger as compared to an a ccused tpho the witness had preoiottsLr1 met a number of times (page 25V). The same s judgment of this Court, P rinciple wns follorued in the unnninrou de liaered by Nnsir Aslnm Znhid J, in tlu cnse of Muneer Alunnd u t State (1998 SCMR 752), in ruhich cnse the abductee had rentnined toith the nbdtrctors for some time and on se oernl occasions had seen their fnces. In the Present tYPe of cas e the culPrits were required to be identifieil thro ugh proper identification proceedings, hou)eaer, the man er in zahich the identification proceedings tu ere conducted raise setious doubts (as noted aboue) on the credibility of the Process. The identification of the appellants in court by eye' ruihresses rttho had seen the culprits fleetingly once would be inc o ns e quenti al." (bold aclded)

The recent suPreme court case of Mian Sohail Ahmed V State (2019 SCMR 956) has also emphasized tire care and caution which must be taken by the courts in ensuring that an unknown accused is correctly itlentified. In fact such extra care and caution in relying on identification parades is an accepted giobal phenomena in moit criminal jurisdictions as the possibility of deliberately or -sendingout a wrong Person mistakenly picking from an identification par ade anc{ atl innocent man to jail or in this country potentially to the gallows is very much recognized and thus most jurisdictions (including Pakistan) have put in place mandatory guidelines to geatly lirnit the chances of such incorrect identification.

Thus, having found that the sole eye witness would not have been able to-correctly, safely and reliably identify the appellants after a lapse of 15 years the conduct of the identification parade becomes in consequential.

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(b)With no eye witness evidence to the murders 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 the injuries'

(c)It is notable that the appellants confessed to the offence whilst in police custody. Confessions before the police are inadmissible in eviclence and thus we place no reliance on such confessions' Even other wise, it does not appeal to logic, reason or commonsense that a person behincl bars who there was hardly any evidence against would confess to an offence which carried the death penalty The appellant's confessions were also not recorded before a magistrate clespite the appellants being taken before a magistrate for an identification parade.

(d)The appellants taking the police to the place of wardat.is irrelevant as tt',e police already knew where the place of wardat was.

(e)No weapon was recovered from either of the appellants as such the recovery of any empties at the crime scene and any FSL report is irrelevant and cloes not connect the appellar"rts to the commission of the offence.

13.That the prosecutior-r must prove its case against the accused beyoncl a reasonable doubt and that the benefit of doubt must go to the accused by way of right as opposecl to concession. In this respect reliance is placecl on the case of Tariq Pervez V/s. The State (1995 SCMR 1345), wherein the Supreme Court has observecl as follows:- "lt is settled lnzo tlut it is not necessary thnt there should be many circwnstnnces creating doubts. lf there is n single circumstsnce, tuhich crentes ,rotonable rloubt in a prudent mind about the guilt of the nccused, then the accused tuill be entitled to the benefit not as tt rnatter of grace and concession but as t matter of nght'" 14, For the reasons cliscussed above by extending the benefit of the doubt to the appellants they are both acquitted of the charge, the impugnec'l judgment is set aside, their appeals are allowed and both of the appellants shall be released unless wanted in any other custody case

15.The appeals stand disposed of in the above terms l- IU E,,f tof zr

JUDGE