NADEEM @ MANGA S/O ABDUL AZIZ & ANOTHER (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COURT OF SINDH AT KARACHI

PRESENT

t' Mr. lustice MohammadKarim Khan Agha Mrs, fttstice Kausar Sultana Hussain

SPL. CR. AT APPEAL NO.47 OF 2018

Appellant Nadeern alias Manga son of Abdul Aziz Through Mr. Khalid Hashmat, Advocate

Respondent: The State through Mr. Abrar AIi Khichi, Additional Prosecutor General, Sindh.

SPL. CR. AT APPEAL NO.48 OF 2018

Appellant Zeeshan @ Mani son of Muhammad Shareef through Mr. Rawas Khan and Ms, Shabana Khan, Advocates

Respoirclcnt The State through Mr. Abrar Ali Khichi, Additional Prosecutor General, Sindh.

Date of Hearing: 26.70.202-l

Date of Announcement 02.-1L.2021

I UDGMENT

Mohammad Kaim Khan Agha, l. We intend to dispose of the above captionec-l two appeals by one commorl judgment' The Appellants Nacieem alias Manga son of Abdui Aziz and Zeeshan son of Muhammad Shareef have preferred these appeals against the impugned judgment ctated 31.01.201.8, passed by the learned Judge, Anti-Terrorism Court No.VII, Karachi in Special Cases No.241 ol 201'5 (Old Special Case No'A- 74/20-15) in Crime No.272 of 201.4 under Sections 302/324/1'1'4/34 PPC r/w Section 7 ATA1997,PS I(orangi Karacl-ri whereby the appellants were convicted {s.265-H (ii) Cr,PC for offence u/s.7(a) of Anti-Terrorism Act, 1,997 r/w Section 302(b)/34 PPC for committing the murder of deceased Karnran Ilussain s/o Abrar Hussain and sentenced them both to suffer

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R.l. for life and to pay fine of Rs.200,000 /- each. In case of non-payment of fine tl,ey shall suffer further S.l. for six months each. If fine recovered, same sl'rall be paid to the legal heirs of deceased Kamran Hussain s/o t- Abrar Hussain. The appellants were also extended the benefit of Section 382 (B) Cr.PC.

2.The brief facts of the case are that on the day of the incident the complainant went to Gulshan-e-lqbal where he received a telephonic call that his brother Karnran Hussain while available at his mobile shop situated on plot No.L-12, Sector 35-C Madina Bakery Korangi No'3 received bullet shot injuries and was taken to Jinnah Hospital. The cornplainant then went to Jinnah Hospital, where he came to know that his brother Kamran Hussain had succumbed to his injuries. According to the complainant his brother was present at his shop when at about 1615 hours two persons in trouser ancl shirt came on motorcycle, fired at his brother, resultantly one passer by Zeeshan s/o Shakir also received ir.rjuries ancl his brother tlied on the way to the hospital. The case therefore was registered against unknown Persons and the investigation was conductetl. [n the rneantime applicants and co-accused were arrested in different cases, wherein they disclosed their complicity in this case, thus the appellants were put to the identification test, during which' PW Aiiaz Ali Khalhoro running fruit cart at the spot identified the accused Ubaid- ur-Il.ehman, Nadeern Iqbal and Zeeshan alias Mani who were the same' arrived at spot and causecl bullet shot injuries to deceased Kamran Hussain and a passer bv Zeeshan s/o Shakir, hence this FIR'

3.After registration of FIR, investigation was entrusted to SIP such Muharnmad Abitl, who visited the place of occurrence and prepared of rrlemo at spot, took photographs and recorded 161 Cr'PC statements and PWs at spot. Thereafter he wrote a letter to the FSL for examination report of report in resPect of empties collected from the spot' He collected in chemical analyzer in respect of blood stained clothes and remained search of the culprits when ou '19'12'201'4 the appellants and other co-

accused were arrested in FIR No.291'/201'4 of PS Korangi for the offence were falling u/s 302/324/353/34 PPC' Oa 20'12'2O"14 atl the accused the producecl before J.M. concernecl for remand' During interrogation

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appellants admitted their complicity in the instant crime. During identificatior-r parade the three appellants were identified by the eye witness Aijaz Ali Kalhqro. After conrpleting legal formalities I.O' submittecl challan before the learned trial court, Karachi.

4.The charge was framed against the accused Persons to which the accusecl persons denied all the ailegations leveled against them' They claimed to be an innoceut and prayecl for trial.

5.The prosecution in order to prove its case examined 11 witnesses and exl-ribited various documents and other items. The statement of the appellants was recordecl uncler section 342 Cr.P.C in which they denied all the prosecution allegations and claimed false implication at the hands of the police. None of the appellants gave evidence under oath or called any witness 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' Hence' the appellants have filed these appeals against their convictions' T.Learrredcounselfortlreappellantshavecontendedthatthe appeliants are completely innocent and have been falsely implicated by the police; that the irlentification of the appellants by the eye witnesses cannot be safely reliecl upon as no hulia of tl're appellants was given by thern at the time when they recorded their s.161 Cr.PC statements and that there were major procedural defects in the subsequent identification paracle which only one of the eye witnesses was subject to and in fact both

the allegec-l eye witnesses were planted r'r'itnesses; that no recovery was

made fromthe appellants at the time of their arrest; that there were

material contraclictions in the prosecution evidence and that for any of the

above reasous the appellants should be acquitted of the charge by

extending them the benefit of the doubt ln support of their contentions

(2018 SCMR

they placed reliance on the cases of Hayatullah v The State 2092), Noor Islam v Ghani ur Rehman (2020 SCMR 310)' Muhammad State (20L7 Ayazv The State (201 SCMR 769), Gulfam and another v The SCN'IR 1189), Muhammad Akram v The State (2009 SCMR 230)' Fazal

Strbhan v The State (2019 SCMR 1027),ln the matter of Cr' Misc' No'183

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of 2O7g in Cr. Appeal No,259l2018 (PLD 2019 SC 488), Zahid Imran v The state (PLD 2006 SC 109), Manzar Ullah v Asghar and 3 others (2018 YLR 1508), Muhammad Ali v The State (PLD z}1,2Stndh 272), Ameer Khan v The State (201.4 P Cr. LJ 989), Rasool Bakhsh v The State (PLD 1970 SC 316), Faisal Aleem v The State (PLD 2010 SC 1080), Shafqat Mehmood v Tlre state (2011 SCMI{ 537) and Muhammad zaman v The state (2014 scMR 749).

8.On the other hand learneci APG appearing on behalf of the state as well as the complainant who had reposed full faith and confidence in him has fully supportetl the impugned judgment' He has contended that the

eye witness evicience was trustworthy, reiiable and conlidence inspiring persons who ancl that they have correctly iclentified the appellants as the mulclerecl the cieceasecl at the iclentification parade and injured one other

bystanclerZeeshan;thattheappellantsaftertheirarresttookthe,policeto tlreplaceoftlrewar.datandconjessedtheirguilttotheoffencebeforethe police; that the medical eviclence also corroborated the prosecution case;

tlratemptiesandbioodstaineclearthwererecoveredfromthescenewhich procluced positive FSL and chemical reports; that there were no material evidence of the contradictions in the evidence of the PW's and as such the prosecution witnesses could be safely relied upon; that it was an act of and the terlorism and that all the convictions and sentences be maintained reliance on the appeals dismissed' In support of his contentions he placed cases of Muhammad Zamanv The State (2007 SCMR 813) and Ghazanfar

Ali @ Pappu v The State (2012 SCMR 215)'

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

10.Basecl on our reassessment of the evidence of the PW's especialiy the post mortem of PW 10 Muhammecl Sidclique MLO who carried out of empties at the deceased, the rnedical rePorts and certificates' recovery

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the scene ancl the recovery of bloocl at the scene we find that the prosecution has pr.oved beyond a reasonable doubt that on 29.11,.201.4 at about 4.15prn Kamran Hussain (the deceased) received firearm injuries fi.om persons at mobile shop plot No.L/12 Sector 35/C which lead to his death (murder).

11.The only question left before us therefore is who seriously injured the deceasecl by firearm which leacl to his death (murder) at the said time, clate anci location?

12.After our reassessment of the evidence we find that the prosecution has NoT proved beyoncl a reasonable doubt the charge against the appellants for which they were convicted Ior the {ollowing reasons;

(a)PW 12!alfer Kl"ran Baloch who was the last IO in the case stated in his evidence as under;

" lt is a fnct thnt except identifcation parade, pointation of place of orrrrrrrne by tlrc nccltsecl and tlrc disclosure by nccused by themselaes no otlrcr tangible eoidence is on record against them."

(b)the pointation of the wardat by the accused after the comn-rission of the crime is of no relevance as the police already knew where the wardat was. In this respect reliance is placed on Hayatullah v. The State (2018 SCMR 2092)

(c)The confessions of the appeilants before the police that they iommitted the murder is inadmissible in evidence. It is note worthy that no effort was macle by the potice to record the confession of the appellants uncler 5.164 ir.PC tefore a judicial magistrate despite them being produced before a judicial - magistrate for an icler-rtificatio-n parade. it also does not appeal to logic' reason or common sense that the accused whilst in custocly in a non capital case woulcl aclmit to their involvement in a capitai case without their being a shred of evidence against them for that offence'

(d)Thus, we find that the entire prosecution case hinges on the .oir".t identification of the appellants at the scene of the murder of the deceased by the two eye witnesses whose evidence we will consider in tleta il below;

(i)Eye witness PW 5 Ali Aijaz I(alhoro' According to his evidenceon29.1l'.20l4hewasintheareaoftheincidentat about 4.15pm selling fruit from his pushcart' He saw three Persons corle on a riotor cycle near his thelha two of whom gol oft the motorcycie and went into the shop of the ieceased and fired on him with pistols which caused his death. Six weeks later he picked out a1l the appellants at an

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identification parade helcl by PW 2 Abdul Razzaque who was a jucliciai magistrate. Although it was a day light incident lve note from his evidence that he apPears to be a chance witness. Furthermore, l-ie did not know any of the appellants prior to the incident and would have only got a fleeting glance at them cluring a dangerous and traumatic incident.

He also states in his cross examination as under;

"l lmd not seen the Ttte(lpons in the hands of tlrc culpits' I lnrl not seen utlpnts ruhen they u'ere fiing' ' " ' ' 'It is correct tlnt I hnd stnted in my statement fu/; 161 Cr.PC) that I cannot help in preparation i7 tt ntrt of the culprits' I utas under prcssure 'anil therefore'I was noi able to desctibe the features of the accused fot pteparation of thc Sketclt"'(bold added) If the eye witness could not PrePare -a sketch of the appellanis on the day of the incident as he was unable to .1es.rib" the features 6f the appellants it begs the questionas to how he could have poisibly correctly identified the appellants at the identification parade which was held 6 weeks later?

witness Even otherwise we find the identification of this eye of the appellants at the identi{ication parade to be of little va1u" as prior to the identification parade a news paper prifitft"i a picture/photograph oj. flt the appellants Ittegealy invoived in ihe murder which could easily have out by be"ri r""., by the eye witness which was also pointed it"," upp"tturlts to the judicial magistrate. during their identiiication parade. It is also notable that the eye witness wasalsocalledtothePSwlreretheappellantswerebeing detained prior to the iclentification parade who had every chance of seeing them before the identification parade' His identification evidence of the appellants is further Khan undermined by the other eye witness PW 8 Faizan the who states during his evidence the following concerning shooting of the deceased which he saw;

" One of the culprits was weaing a black colout mask the ulto resttained me and caused fire shots -to .Zeeshan' remaining one was tuith green nasle .a,nd thitd one was *rrri,ig'namet. Zeeshan luas not residng in the mohalla nltlnugit lrc tuns knotun to me" '@old added)' it If tlre evidence of PW 8 Faizan Khan is to be believed then Jir".tLv contrarlicts the evidence of PW 5 Aijaz Ali Kalhoro was able to as according to PW 5 Aljaz Ali Ka-lhoro he impossible .".ogr-rir" thi appellant' *'hith woultl have been to be a if the appellants lvere wearing masks' We find this with, materialr contradiction which" cannot be over looked

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regard to the sensitive and crucial issue of identification keeping in view the other holes in the evidence of the eye n,itnesi identification evideuce of PW 5 Aijaz Ali Kalhoro as discussed above.

,r PW 5 Aijaz Ali I(alhoro also appears to be a stock police eye witness who gave evidence for the prosecution in a different case for offenses u/s 7(a) and (c) ATA read with Sections 302/324/325/"114/1.09 PPC as eye witness on behalf of the police being ATC case 37/201'4 State V Muhammed ba*ood bef"ore the Judge Anti 'Ierrorism Court Hyderabad whereby the accusecl in that case was acquitted vide ludgment clated 26.04.2018.

With regard to PW 8 Faizan Khan it would have been irnpossibie for him to iclentify the masked assailants which he .1id so in court. Even otherwise identification in court has been deprecated by the Supreme Court' Like PW 5 Aijaz Ali Kalhoro he tlid not knolv any of the appellants prior to the incident and woulcl have or-rly got a fleeting glance at them during a dangerous and traumatic incident'He was not produ"ced before an identification parade without any explanation ancl he did not give his eye w-i-tness 5'161 Cr'PC statement until 5 days afterlhe incident' He too would also have been able to see the photograph of the appellants in the news paPer before he iclentifie<I them in court' He also prori.t"j no sketch or hulia of the appellants which is only natural as according to his evidence the appeliants were rnasked at the time of the incident'

Admittedly, , tl.re eye witnesscs had no enmity with the appellants and we can convict based on the evidence of a u sole eye witness however based on the particular facts ancl circumstances of this case we find that even if the "i",-t eye witnesses were Present at the time of the incident based on the ."usons me.tiioned above they would not have been able to correctly, safely and reliably identify any of the appellants.

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In this lespect reliance is placed on the case of.faved Khan State (2017 SCMR 524) con.erning the necessity for an early before an hulia/ description of an accusec'i by an eye.witness rules identificatlon parade ancl the need to strictly follow the governir-rg ideirtification parades where it was held as under at Ir.528 to 530:

"7. We haue lrcnrd the lenrned counsel and gone through the record. The prosecution case rests on the positizte identificntion prirreaing, ind ttrc Forensic Science Laboratory report which 'states tlnl ilre bullet casing sent to it Qohich utns stated to hnae same pistol bwn picked up front tlrc criirc scene) was fired ftom.the case)' We from Raees Khan in another 'riror,rrrd i,,iri'd, ,r,ot case' Otl ilrrulon proceetl to consider both these nspects of tlrc

rcgarcls the identification ptoceedings anil their context tliere is a long line of precedents stating that identification proceedings 'Enrperor must be carefully conducted, ln Rnmzan p (Atn rczs Sid 149) Perceaal, lC, wtiting for the Judicinl .l' Contrnissioner's Court (the precursor of tlrc High Court of Sindh) heltl that, "The recognition of a dacoit ot other offender by a person utlrc has not preaiously seen him is, I think, a form of 'eaidence, which has always to be taken utith a considerable amount of caution, because mistalces ate alzoays possible in sttch cases" (pnge 149, colunrn 2). ln Alitn tt. State (PLD 1967 SC 307) Cornelius Cl, who hnd deLioered the judgment of tltis Court, taitlt regnrd to tlrc tnattet of identification parades held, that, "Their [iitnesses] opportunities for obseraatign of the culprit were extremelY limited. TheY had nettet seen him before. They had p icked out the assailant at the identification parades, but there is a clear possibility arising out of their statements that they uere assisted to do so bY being shoun the accused person earlier'' (pnge 313E) ln LaI Pnsnnd a. State (PLD 1981 SC 142) Dor ab Patel J, tuho had tlutiirua ilte jidgment of this Court, hekl that, if a u'titness had trot giaen a description of the assailant i-n his stateffient to "Police the and itlentificatiott took place four or fiae months after the murcler it would, "react against the entire prosecution case" (pnge 145C). In a rnore recent iudgnrent of this Court, Imrnn Ashrnf o stnte (2001 SCMR 424), tuhich runs autlnrerl by lftikhar i,4uhammnd Chaudhry l, tltis Court held that' it mttst bi ensureil that the identifying rttitnesses must "not see the accused after the commission of the cime till the iilentification paiade is held immediately after the arrest of the aicused persons as eaily as possible" (page 485P)' B. The Complainant (PW'S) had not mentioned any features of the assailants eithet in the FIR or in his statement iecorded under sectiott L6L Cr'P,C' therefore there utas no benchmark against zohich to test whether the appellants, zaho he had ldentified after ooet a year of the crime, and who he had fteetitigly se'en, wele in fact the actual culprits' Neitlrcr o.f ihe tr,'o Mngistrntes had certified that in the irlentrficatiion proceedings tlrc other persons, nmongst tolrcm tlu nppetinnts roere plncerl, toere of similsr age, leiglrt, built nnd ia'Louring. The nrain object of iilentification proceedings is to enable i tuitness to properly identifu a person inaolaed in a crime and to exclude the possibility of a tttitness simply confirming a faint tecollection or imptession, that is, of an oli, younj, till, short, fat, thin, dark or fair sus-pect' Tlrcre is yet ahothi aspect to the matter of identifcation of tlrc culprits of ihi, ,nrr. The Corrplnittant lnd nntned three other persons who could recogrtize tlrc assailnnts, bttt lrc did not mention Subedar Mehnnod"Ahmntl Khnn (PW-6) as one of theru' Nonetheless Strhedar Mehnnod Ahmad Khnn came fonuard to identtfu the appellants. Significantty, flone of the. .three petsons m'entioned lty- the Complainant participated itt . the iilentification"proceerlings and tttto were no-t eoen produced 't o, ,r',itnrrr", bv the Ptisecution, During the identification

'Magistraies both the appellants proceeilings had informed the who Loele conducting the identification prieedings, 'rornn anil before the identificatiotr, ptoceedings rrrrid, that they had eailier been shown to the witnesses. The Magistrutes recorded this obiection of the appellants in their riports bttt sutptisingly diil not attend to it, uhich can only be categorized as a serious lapse on their part, 'placetl There/ore, for all these reasons reliance cannot be upon tlrc report of the identification proceedings in zuhich the appellants were identified.

g. As regnrtls the irlentificntion of the appellnnts before the trinl court b1i Nnsir ltlehbooi (PW-S), Subedar Meltmood Ahmed Ktnn (PW-6) AND ldress Mulununnd (PW-7) that too zoill not assist the Prosecution becnuse these toitnesses had a number of opportunities to see tluru before tlrcir statements were recorded' ln Stnte tt. Fnrmnn (PLD 1g8i SC 1), the majority judgment of tohich runs nutlwed by Aj rral Minn l, the learneil judge hail held that an itlenti.ficatiott P arade was necessary when the witness only had tl fleetittg glimpse o/ an accused utho u)as a strdflger as comPared to an a ccused uho the witness had preoiously met a number of times (page 25V), The same prtnctp le runs follorued in tlte unanimou s judgment of this Court, deliuere d by Nasir Aslam Zahid l, in the case of Muneer Ahmatl a Stnte (1998 SCMR 752), in wlich case tlu abductee had remained zaith tlrc nbductors for sotne time and on s etteral occasions lud seen their faces. ln the Present tYPe ofc ase the culPrits zoere rcquired to be identified thro ugh proper identification proceeditrgs, hozaeaer, the manner in which the identification Proceedings t'o ere cotdlrcted taise serious doubts (as noted aboae) on the credibility of the Process. The identification of the appellants in court by ey!- uitnesses who had seen the culprits fleetingly once would be incons e quenti aL" (bold added)

The recent suPreme court case of Mian Sohail Ahmed V State (2019 SCMR 956) has also emphasized the care and caution which must be taken by the courts in ensuring that an unknown accused is correctly ldentifiea. h-r fact such extra care and caution in relying on iclentification parac-les is an accepted global-phenomena ir'r *oit criminal jurisdiciions as the possibility of deliberately or rnistakenly picking out a wrong person from an identification 'sen.1lig paratle an.l an innocent man to jail or in this country potentially to the gallows is very much recognized and thus most j'uristtictions (including I'akistan) have put in place mandatory guidelines to greatl/ iimit the chauces of such incorrect identification.

Thus, having found that the eye witnesses would not have been able io .o..""ctly, safely and reliably identify the appellants if seen again the conduct of tn" identification parade becomes in consequential.,

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It is also of significance that the best eye witness Zeshan who was allegedly injured at the scene at the same time when the deceased .a was rnurdered and is named in the FIR and charge as being injured at the scene by firearm dicl not aPPear as a PW despite being listed as a prosecution witness who would have been an extremely important natural eye witr-ress in corroborating the other eye witrresses evidence and in particular that of the correct identification of the appellants and as such the presumption can be clrawn uncler Article 129 (g) Quoon-e-Shahadat Ordinance 1984 that he would uot ltave supported the prosecution case especially in terms of a correct identification of the appellants. The prosecution has tirerefore for reasons best known to itself cleliberately with held the best evidence. In this respect reliance is placed on the cases of Rlaz Ahmed v. The State (2010 SCMR 846) and Shakeel and another v. The State (2019 MLD 1554). Significantly PW 11 Muhammed Abid who was the first IO of the case states in his evidence as under regarding Zeeshan,

"It is a fact that L61 CI.PC statement of saiil Zeeshan tttho sustainid iniury iliil not speaVdisclose the features, strttcture ,rri gii^ptrs of the culprits and also did not disclose that hi can identify the culprits as and when they aPPear ot are brought before him. It is a fact that statement of'Zeeshan recordid by me rezteals that one of the culpits was hazting muffled face and fot the others he also narrated uith masis anil helmets. lt is a fact that saiil Zeeshan disclosed ztocally that he could not identifu any other culprit, lt is a fnit that plnce of occurrence lmd been aisited by nre eariier tohich k ier on toa.s nllegedly pointed out by accused' lt is a fnct thnt t did not recoDer ntty lt;teapon o-r ammunition dunng interrogation anrl inaestigntion of accused on their pointation'" (bold added)

(e)Witlrnoeyewitnessevidenceastothecorrectidentityofthe persons who allegedly committed the murder of the deceased the ineclical eviclence becomes inconsequential as it can only reveal how tl.re deceased ciiecl, rvhat kind of weapon was used and the seat of the injuries. It cannot identify the person who injlicted the injuries.

(f)That as no pistol was recovered from any of the appellants at the iime of their airest and exhibited before the court the FSL report on the empties recovered at the scene cannot link the appellants to the rnurder of the deceased.

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, l0

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as opposecl to concession. In this resPect reliance is placed on the case of Tariq Pervez V/s. The State (1995 SCMR 1345), wherein the Supreme r Court has obset'"'ecl as follolvs:-

"lt is settlerl law that it is not necessarv that there should be nrany circumstances creating doubts. If there is a single circumstance, ra,,hich creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused w'ill be entitled to the benefit not as a matter of grace and concession but as a matter of right."

'14. For tl-re reasons cliscussecl above b,v extending the benef it of the the doubt to the appeltants all three appellants are acquitted of the charge' impugtrecl ludgmerrt ts set asicle, thelr appeals are allowed and all the appellants shall be releasecl unless r'vanted in any other custody case'

15 The appeals stand disposed of in the above terms

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