MUHAMMAD SAJID @ CHOTA BONA (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COURT OF SINDH KARACHI

Present:

)- Mt. lustice Mohammad Kaim Khan Agha f ustice Mrs. Kausar Sultana Hussain' Sp l. Criminal ATA No.1 82 of2020. Spl. Cri minal ATA No.1,83 o f2020. Confirma tion Cas e No.07 of 2020.

Appellant Muhammad Sajid @ Chota Bona S/o. Muhammad Yameen through Mr' Mohammad Mahmood Sultan Khan Yousifi, Advocate.

Complainant Muhammad Wasim Khan tfuough Mr' Khawaja Naveed Ahmed, Advocate'

State Through Mr. Muhammad Iqbal Awan' Additi,onal Prosecutor General'

Date of Hearing 17.1,1,.2021

Date of Judgment 24.11.,2021.

T UDGM ENT

Muhammad MOHAMM ADK ARIM KHAN AGHA, I:- The A ppellant was convicted in the Court Sajid @ Chota Bona S/o. Muhammad Yameen Cases No.238/201'9 of Anti-Terrorism Court No.XVI, Karachi in Special (New Spl. Case No.191 /201'9) in Crime No'469/2012 u/s' 302/34 PPC in Special Case r/w section 7 ATAlggT I$lamshed Quarters' Karachi and Crime No'34/2019 u/s' No.1784 of 2019 (New Special Case No'09/2019) Bahadurabad' Karachi vide 23(1)(a) of Sindh Arms Act registered at P'S' was convicted under ]udgment dated 31.10.2020; whereby the appellant under Section 302 r / w 34 section 265-H(2) Cr.P.C. and sentenced to death 7(a) of ATA'1997 with fine PPC and also sentenced to death under Section He was also of Rs.200,000/- subject to confirmation by this court' AT A' "1997 with fine of sentenced R.I. for 10 years under Section 7(1)(h)of b

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Rs.50,000/-. He was also convicted for the offence under section 23(I)(A) of sAA, 2013 and sentenced to R.I. for seven years with fine of Rs.50,000/- ) and in default thereof, he shall suffer SI for tfuee months more' However' he was directed to Pay an amount of Rs'200,000/- to the legal heirs of deceased Muhammad Shamim as compensation, as provided under Section 544-A Cr.P.C. and in default thereof, he shall further undergo

SI

for six months. All the sentences were directed to be run concurrently. However, the benefit of Section 382-8 Cr'P'C' was extended to the

appellant.

2.The brief facts of the prosecution case are that on 1'9.1,0.2012 Society Scheme Muhammad Wasim Khan resident of H'No'B-39' Rizwan No.33, University Road, Karachi lodged FIR that he is a Government in'forrnation servant, On 16.10.2012 when he was at his home he received and was that his brother Muhammad Shamim received firearm injuries and learnt that shifted to Aga Khan Hospital. He rushed,to the hospital in the office of his some boy of urdu speaking wearing pant shirt entered to injuries and brother and fired upon him, resultantly he succumbed where his died. His dead body was then shifted' to Jinnah Hospital reported that the postmortem was conducted vide PM-g87/12' He also they were fleeing' mohallah people had seen the accused Person when person and after Accordingly, FIR was lodged against unknown accused Later on' accused usual investigation the case was filed as " A" class' FIR No'52/2019 under Muhammad Sajid @ Chota Bona was arrested in who during Section 4/5 Explosive Substance Act at PS ]amshed Quarter Muhammad Shamim interrogation admitted to the murder of deceased was reopened' with the help of his accomplices, accordingly case and the

3.After further investigation the matter was challaned not guilty and claimed to appellant was sent up to face hial' He pleaded be tried

16 witnesses

4.The prosecution in order to prove its case examined The statement of the and exhibited various documents and other items' a-

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appellant was recorded under Section 342 CI.P.C in which he denied all the prosecution allegations and claimed false implication at the hands of , the police on account of political victimization. The appellant did not give evidence on oath and did not call any witness in support of his defence.

5.After appreciating the evidence on record the trial court convicted and sentenced the appellant as set out earlier in this judgment' Hence' the appellant has filed this appeal against his convictions'

6.The facts of the case as well as evidence produced before the trial court

find an elaborate mention in the impugned judgment passed by the kial avoid court and, therefore, the same may not be reproduced here so as to duplication and unnecessary repetition.

7.Learned counsel for the appellant has contended that the appellant police on is completely innocent and has been falsely implicated by the account of political victimization; that there has been an unexplained delayinlodgingtheFlRwhichleadtoconsultationwiththecomplainant of cooking up a false story in league with the police; that the identification upon as no the appellant by the two eye witnesses cannot be safely relied they recorded hulia of the appellant was given by them at the time when defects their s.161 Cr.PC statements and that there were major procedural in the subsequent identification parade where the appellant was picked parade could not out by the eye witnesses and as such the identification the appellant and be safely relied upon; that no recovery was made from conJession that the pistol was foisted on him; that the appellant's alleged for any of the above before the police is inadmissible in evidence and that by extending him reasons the appellant should be acquitted of the charge the benefit of the doubt

have fully

8.On the other hand learned APG and the complainant have contended that supported the impugned judgment and in particular eye witnesses at an the appellant was correctly identified by two natural unlicensed pistol was identification parade with a specific role; that an matched empties recovered from the appellant on his arrest which

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recovered at the scene; that the medical evidence corroborates/supports the eye witness evidence, that blood and empties were found at the scene ) of the offence; that there are no contradictions in the prosecution evidence which can be safely relied upon; that the appellant confessed his guilt during interrogation by the police and that all the convictions and sentences be maintained and the appeal be dismissed' g. We have heard the arguments of the learned counbel for the appellant as well as learned APG and the complainant' gone through the entire evidence which has been read out by learned counsel for the of appellant along with the impugned judgment with the able assistance the parties and have considered the relevant law' l0.BasedonourreassessmentoftheevidenceofthePW,s,especially of the medical evidence, the medical reports and certificates, recovery emptiesatthesceneandtherecoveryofbloodatthescenewefindthat the prosecution has proved beyond a reasonable doubt that onL6'1'0'2012

at about 5pm duly armed Persons entered the office of the Director the room Education School Jamshed Road No'3 Karachi and then entered and made of director education Muhammed Shamin Khan (the deceased) injuries later that straight fires on him which lead to his death by firearm day at the Aga Khan University hospital'

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

12.Afterourreassessmentoftheevidencewefindthattheprosecution against the has NOT proved beyond a reasonable doubt the charge reasons;

appellant for which he was convicted for the following

I

of

(u)In our view the prosecution's c.ase rests on the evidence the two *itu""' to th" murder of the deceased whose "y" evidence we shall consider in detail helow;

his evidence

(i)Eye witness PW 11 Afsar Ali' According to education office on on 16.10'2012 whilst he was at the t

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Jamshed Roaci at about 5pm two armed Persons came who trought peon Muhammed Jameel and guard Muhammed Shahid by force of weapons inside the waiting room where i he was titti.tg. A third armed Person directly entered the room of the deceased and mafle four to five fires' At the time of firing two guests were sitting with the deceased namely advocat-e Khalil Quershi and another friend' After the accused departed they entered the deceased's office and helped to iake him to hospital where he died about 30 minutes after his arrival. He was the driver of the deceased and we find him to be a natural witness being at his ppce of work with the deceased. His presence is also corroborated by eye witness PW 9 Shahnawaz' lt was also a day light incident, he was not damaged during cross examination' he had no enmity with the appellant and we therefore believe his narration of the incident.

What is however in issue is whether he was able to who correctly identify the appellant as one o-f the persons fired trpon the- deceaied' His 5'161 Cr'PC eye witness statement was recorded 6 days after the incident and he did not give any hulia or any kind of description of the appeiiant in his statement. He gave no^ sketch of the appellant. It is well settled by now that 5'161 Cr'PC eye witness statements must be given very shortly after the incident and reasons given for any prolonged delay and -tf,e must girre a hulia of accused or else they lose their eviden"tiary value as in this case' He did not know the appellant tefo.u the incident and only got a fleeting giance He at him during a very traumatic and frightening incident' fi.tua out tie appellant Irom an identification parade 7 y".r, .ft"t the incident after which time the appellant had ateaay been shown on the TV and in the newsPaPers as the mr-irderer which facts were exhibited at trial and as such we cannot rule out the eye witness not seeing ol tTd-tlq

PW 10

about the appellant before the identification parade' carried Muhammed Ali who was the judicial magistrate who states out the identification parade also in his evidence as

under;

"Accused was prooided opportunill of raising obiectio-n to uthich accused stated that he has been in police custody from about 72 ilays. Accused futther stat-e!.that di/feren'-l:opb. ]. hail seen him at P.S ani had asked him that is he killer of he ruqs Shamim Khsn' Accused further stated that on 16'02'2072 ljtama and he iitsiia, of Karachi for'preparati?1 'f. !:!!iq returnedio Knrachi on 24il' or 25th March 20L2'" claimed to have Thus, at the very outset the appellant- had b""rl'rho*rl to people as the kilier of the deceased whilst he

*u, ir, police custoi y fot 72 days' Interestingiy' he also stuck,

to his alibi of being out oI Karachi during the murder for religious reasons iri nis S.SaZ Cr.PC statement which facts carmot be simPlY brushed aside.

r It has also come in evidence that the appellant was a very small man being under 5 feet tall and that even PW 16 Muhammed Farieduddin the final IO in the murder case stated in his evidence that,

"The accused Present in court is of small heigh!' t! i3 I.t is almost true that the accused is less than 5 feet of height, tie thst height of the accused is not normally found in public."

judicial Significantty PW 10 Muhammed Ali who was the *igitttut" Jho carried out the identification parade states in his evidence that,

"lt is true that proper desciption of dummies such as age' not mentioned height, pnytiq"r, complexion nnd fe'atur.es/hulia ate and type of in the memo. The memo is silent iegarding color' style clothes of dummies and accused'"

as under The eye witness in his evidence also states parade;

r"ga.dirrg the composition of the identification and "In the dummies there was dffirent height' complexiontoith pant-shirts different clothes i.e some in shala'iuar Kameez and with aifi:"ir, ioxt-to*i ,r,ith shaae, ssas Toith beards and some c[ion shaoen ruere standing'"

Significantly neither of the eye witnesses stated in their ir?i *it,"r, Cr.PC statement the unique feature that "y" have stood out to the killer was extremely small which must them at the time'The iact as admitted by the IO that such smallmenarenotavailableinthegeneralpublicandtheof the magistrate having no record of the aPpearaflce to the dummjes according "notand drrirr,l", including height similar at all leads to the the eye witness were stoodout from the irres.upaUtu conclusion that the appellant parade and could have ott ir**ies at the identilication ", uurify described to the ey; witness before the i""n coincidence that the iJuniifi.ution parade' It appears to be no parlde did not ( *uglrtrut" who carried o't tnu identification was obliged to in tffi-.".*as of the dummies which ahe fair and reliable accordance with law to ensure identification Parade.

factors we find that Thus, taking into account all the above *"-.1""* Jafely rely on the identificationtheof appellant eye witness as, Pw 11 Afsar Ali as correctly identifying

one of the persons who was Present when the deceased was murdered.

(ii)Eye witness PW 1'2 Shahnawaz' According to his on 16.10.2012 he was sitting in the PA room "uid".r.u attached to the office of the deceased when two accused entered bringing one guard Muhammed Shahid and peon Jameel at the force of weaPons. The third accused went directly into the office of the deceased and he heard 4 to 5 fires. The third accused came' out of the office and the other twoaccusedleftwithhim.Hehelpedshiftthedeceasedwith PW 11 Afsar Ai to Aga Khan Hospital where after 30 minutes he was declared dead. He also states in his evidence that advocate Khalil Quershi and another unknown Person were sitting with the deceased at the time when he was shot' Once again he was a natural witness but as with PW 11" a,fser lti the same considerations apply to this eye witness. Thus, although we believe that the eye witness was present at the scene ,.td hut accurately narrated the events for the same reasons given above for eye witness PW 11 Afser Ali we find tliat we cannot safely rely on the identi.fication of eye witness PW 12 Shanawaz as correctly identifying the appellant as one of the Persons who was p."r".ri wf,en the deceased was murdered' In this resPect reliance is placed on the case of Javed Khan V ir^t" lzotz SCMR 524) conceqning the necessity for an early an hulia/description of an accused by an eye-witness'before rules identiflcation parade and the need to strictly foliow the under goru.r,ing identification parades where it was held as at P.528 to 530:

-7. We haae heard the learned counsel and gone through the record. The ptoseottion case rests on the positiae identification piirrraing, and the Forensic Science Laboratory tepor.t uthich 'states thit the btillet cnsing sent to it kuhich ruas stated to hmte the same pistol been oicked up from the ciine scene) was fred ftom qnother case)' we i*niln r*t'iirieredftom Rsees Khan in proceed to consider both these. aspects the case' As tn"u|oo ,of their context ,igiat'the identification proceedings and identification ;;;;; it a tong lini of preceients stating that In Rantzan u oroceeilinss inust b'e carefully conducted' for the ludictal L*iri"', iiio 1s2s sid 149)'Perieaal, lC' w.ntingCoutt -( of Sindh) Commissioner's C-outt (the precursor of thz High olfendet by a- held that, "The recognition of a dacoit ot .othet Derson who has not preaiousty seen him is' I think' o {?'*.o/ i",i'r*, *o-irl, ior'rt*oys io be taken with a considerable o*rrnt'o| becsuie mistakes are always P?1tiblt^i-2 p' State (PLD 1967 ,i"h ,*it' "aution, (page 149, column 2)' In Alim of tlis, SC 307) Coriellus Cl, toho had deliaered the iudgment

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Court, utith regard to the matter of identification parades held' that, )'Their [iitnesses] oppottunities for obseraation of the culprit were extremely limi.ted. They had neaet sem him Y b"iore. They hqd picked' out the assailant at the iientification paradei, but there is a clear possibility aising out if their siatements that they we-r.e assisteil to ilo so by beini shown the accuseil persoi earlie"' qay 3L3E)' In Lal Pasind o. State (PLD Lgti1" SC L42) Dorab Patel l, utho had drli**d th, l"dgment of this Court, helil that, if a witness had not giaen a'deiciption of the assailant in his statement to thefro\ce anit identificaiion took place /our ot firy months aftet the muriler it would, "react qgainst the entire recent iudgment of this /r'osecution case" (page 145C).ln a more Voturrt, Imran ashrif"a' state (2001 scMR 424), uhich ,utas i"il,orra by lftikhar ihuhammod Chaudhry J, this Court held that' it must bi insureA that the identifuing raitnesses must "not see the accused after the commission of the crime till the identification paiade is held immediately aftet the arest of the aicuseil persons a:s eatly as possible" (page 485P)'

8.The Complainant (PW-|) hail not mentioned any features of the assailants either itr the FIR or in his statement iecorited uniler section 161, Cr.P'C' therefore therc was no iiirt*ort against which to test uhether the appellants'- *io nt hail"identified after oaer & year of the crime' and i,ho he had fleetingly se'en, were in /act the^actual culpits' iiiitir, ,f in" uil" Magrstrates had certified that in the amongst whom the '^pprtirirt vroceedings ilw oth" Persons' height' identification rurlrc plrcedi toere of simillr rye' -built 1nd [olour:i"g. The main object of iilentification proceedings is to inaolaed in a enable a witness to properly identi/y a Person ona tu exclude ine possiUiiity of s tpitness simply "i*, a faint recolleciion ot impression' that is' of an ":iiir*i"S oli, younl, till, short, fat, thin, datk or fair susPect "' ' 9. As regar ds the identifcation of the appellants before the d Ahmed trial court bY Na sir Mehboob (PW-S), Subedar Mehmoo Khan (PW-6) AN D ldress Muhamma d (PW-7) that too will not assist the Prosecution because these tui tnesses had a number of to see them before their statements were recorded, ln opp ortunities :1), the mal ority judgment of tohich State a arnla fl (PLD L985 SC autho redby Ajmal Mian l, the learne d juitge had held that utas an identifi cation patade was necessary when the witnessa only had a fleeting glimPse of an accu sed who was had stranger as compated to an a ccused who the witness pteatous ly met s number of times (page 25V). The same of this Court, pnnciple uas fo lloued in the unanimous 1 udgment se of Muneer Ahmad a delirtered by Nasir Aslam Zahid l, in tlrc ca abductee had remained State (1998 SCMR 752), in which case the had seen with the abductors for some time and on seoe ral occasions case the culPrits werc their fa ces. In the Plesent tYPe "f rcquireil to be identified thto ugh proper identifi cation

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proceedifiSq howeaet, the maflner in uthich the 'iitentificalion proceeilings were conducted taise serious iloubis (as not'ed aboael on the creilibility of the Process' r The iitentification of the appellants in -court by eye- witnesses who hail se'en the cuiprits fleetingly once woulil be inconsequential." (bold added)

The recent suPreme court case of Mian Sohail Ahmed V State (20L9 SCMR OSO; tras also emphasized the care and caution which must be taken by the courts in ensuring that an unknown accusediscorrectlyidentified.Infactsuchextracareandcautionin relying on identifilation parades is an accepted global phenomena ir, molt criminal jurisdiciions as the possibility of deliberately. or mistakenly picking out a wrong Person from an id'entification parade and'sendlig an innoceni man to jail or in this country potentially to the ga'llows is very much recognized and'thus most jurisdictions (inchiding Pakistan) have put in place mandatory guidelines t; greatly limit the chances of such incorrect identification.

at The prosecution case against the appellant therefore collapses this itage as there is io safe and reliable identification of the appellait as being one of the murderers of the deceased' .Even otherwise;

above

(b)According to the evidence of the eye witnesses discussed t-t "y" witnlsses who were actually sitting in the room with the Khalil deceaied when the killer entered and shot him' namely' have been able to Quershi advocate and one other and who would glve the best evidence of the murder despite being readily traceable iere not produced as prosecution witnesses and as such the the prosecution has intentionally and deliberately not produced best evidence at trial against the appellant which we find has damaged its case.

(c)With no eye witness evidence to the murder the medical evidence becomes inconsequential as it can only reveal how the d.eceased died, what kind of weaPon was used and the seat of the injuries. It cannot identify the person who inflicted the injuries' whilst in

(d)It is notable that the appellant confessed.to the offence inadmissible in pil"" .rrtody. Confessions before the police areconfession' Even evidence and thus we place no reliance on such that other wise, it does not appeal to logic, reason or commonsense case who there was a person behind bars ln an unlicensed weaPons to an offence no evidence against in a murder case would confess was which carried the death penalty' The appellant's conJession appellant being also not recorded before a maglstrate despite the taken before a magistrate for an identification parade',

(e)We have exheme doubts that an unlicensed pistol was recovered from the accused at the time of his arrest in a separate case years later. It does not appeal to logic, commonsense or reason that a person who had committed a brutal murder would keep the murd"i weapon for nearly 7 years. He would have disposed of the- weapon. As io the empties *Li.h were recovered from the scene of the incident in2012 there is no evi'dence where they were kept in safe custody until 2019 when the pistol was allegedly recovered from the appellant and as such the fact that they match with the pistol we gir" .to weight to. The whole- prosecution evidence regarding tJ arrest and recovery of the pistol from the appellant-we fifd to U"e tigruy doubtful und *" cannot rule out the possibility that the pistol was foisted on the appellant'

13, That the prosecution must prove its case against the accused go to the beyond a reasonable doubt and that the benefit of doubt must resPect reliance accused by way of right as opposed to concession' In this is placed on the case of Tariq Perve z Y/s' The State (1995 SCMR wherein the Supreme Court has observed as follows:- "lt is settled law that it is not necessary that there should be many circumstances creating doubts' If there is a single circumsta.nce', the guilt of tohich *eates rrororotb doubt in a prudent mind about the accused, then the accused toill be entitled to the benefit not as a matter of grace and concession but as a matter of nght'" 1,4. For the reasons discussed above by extending the benefit of the doubt to the appellant he is acquitted of the charge' the impugned judgment is set aside, his appeal is allowed and the conJirmation reference unless wanted is answered in the negative. The appellant shall be released in any other custody case'

15.The appeals and conJirmation reference stand disposed of in the above terms.

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