Muhammad Shahrukh and another (Appellant) VS The state (Respondent)

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IN THE HIGH COURT OE}INDH, CIBCUI.T EQIJ.JTIIABKANA

Criminal Appeal No.D- 21 of 2015 Cr. Appeal No.D-:41 of 2015 I Criminal AppealD- 24 of 2020 Criminal ConJ. Case No.D- 03 of 2015

Present:

Mr.]ustice Mohammad Karim Khan Agha -J Mr. ]ustice Zulfiqar Ali Sangi -I

Appellants: Muhammad Shahrukh, Faisal Mehmood @ Nafziayati, Syed Tahir Naveed Shah @ Polka and Syed Mohammad Ali Rizvi @ Ali, through Mr.Muhammad Imran Shamsi, Advocate in Cr.Appeal No.2l of 2015.

Appellants: Faisal Mehmood @ Moota and S.M. Kamran @ Zeeshan through Mr. Aamir Mansoob Qureshi, advocate in Cr.Appeals No.D-4L of 2015 and Cr.Appeal No.D-24 of 2020.

Resporrdent The State through Mr. Ali Anwar Kaudhro, Addl. t P.G.

Date of hearing : 24.02.2021,.

Date of judgment : 04.03.2021..

IUDG MENT

Muhammad Karim Khan Agha, I,- By this common judgment, we intend to dispose of these three Criminal Appeals and the confirmation case arising out of same judgment, of which Cr. Appeal No.D -21, of 2015 has been filed by appellants Muhammad Shahrukh, Faisal Mehmood @ Nafziayati, Syed Tahir Naveed Shah @ Polka and Sved Mohammad Ali Rizvi @ Ali, Y Cr"Appeal No.D-41. of ?-015 has been filed by Faisal ltdehmood @ Mota and Cr.Appeal No.D-24 of 2020 has been filed by appellant S.M Kamran @ Zeeshan, against impugned judgment dated 01.03.201,4 passed by learned ]udge, Anti Terrorism, Kashmore @ Kandhkot, in New Special Case No.B1 of 2013 (Old No.32 of 2011) arising out of Crime No.08 of 2011 of Police Station Super Market, Karachi, registered for an offence under Sections 302, L49 PPC, whereby appellants Shahrukh, Faisal Mehmood @ Nafziayati, Syed Tahir a

2 l?rL Naveed Shah @ Polka and Syed Mohammad Ali Rizvi @ Ali have been convicted for offence under Sections 302, 149 PPC read with Section 7(a) of Anti-terrorism Act, 1997 and sentenced to suffer imprisonment for life and I pay fine of Rs.100,000/= each and in case of default in payment of fine they shall suffer S.I for two years more. In case the fine amount is realized, the same shall be paid to the legal heirs of deceased Wali Khan Babar as compensation under Section 544-A Cr.P.C and convicted absconding accused/appellants Faisal Mehmood @ Mota and S.M Kamran alias Zeeshan in their absentia and awarded both of them death sentences as and when they are arrested subject to confirmation by this court. Benefit of Section 382-8 Cr. P.C. is also extended to the accused/appellants Shahrukh, Faisal Mehmood @ Nafziayati, Syed Tahir Naveed Shah @ Polka and Syed Mohammad Ali Rizvi @ Ali. However, under the same impugned judgment co-accused Muhammad Shakeel was acquitted of the charge by being extended the benefit of the doubt. Neither the State nor the complainant has filed any appeal against this acquittal.

2.The prosecution case as unfolded in the FIR are that:

*. "With reference to copy of report No.43 dated 13.01.2011 of the daily diary Police Station Super Market, I the ASI Ghouse Bakhsh, having conducted investigation and recorded statement under Section 154 Cr,P.C of complainant mentioned in column No.2 have come back at Police Station for registration of case. The copy of statement of complainant is as under:

From Mortuary of Abbasi Shaheed Hospital, Karachi.

Dated: 1.3.01 .2011, @ 2345 Hours, FIR No.08/2011,.

Statement under Section L54 Cr.P.C.

Mr. Mohabat Khan Baber S/o AIam Khan Baber aged 30 years caste Baber Pathan R/o house No.B-L94 Block-N street No.L2 North Nazimabad, Karachi, having Phone No.0321-2600214, on enquiry )r stated that I reside at the above mentioned address and I am originally resident of village Girder Baber District Ghorob Baluchistan and I do serve as Engineer in Baluchistan Government. My younger brother named Wali Khan Baber S/o AIam Khan aged 28 years used to do work as reporter in Geo News, today on 13.01.201.1, I was present in my Mohalla where I received information through Geo News Officials that bullet has hit to Wali Khan Baber and he has been

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brought at Abbasi shaheed Hospital in injured condition. I rushed to w ry Abbasi shaheed Hospital where the dead body of my brother wali

I Khan Baber was lying in the Mortuary room oJ Abbasi Shaheed

Hospital and he received five bullets at his forehead,'-neck and check.

to home in On enquiry, I came to know that my brother was coming road from his car No.AEE_613 make suzuki Cultus via s.M. Taufeeq at opposite his office Geo News, at about 0930 hours, when he came Apwa School Super Market Liaquatabad where the unknown accused

person(s) killed him with their firearm weaPons on account of My unknown grudge. I have no doubt or suspicion uPon any one' complaint is against the unknown accused person(s) having caused

serious injury to my brother wari Khan Baber with their firearm against them' weapon and have killed him. Legal action may be taken This much is my statement, heard the same and it is correct' Sd/-(In English) Dated: 13-01-2011

Sd/-(In English) ASI Ghouse Bakhsh Posted at P.S. SuPer Market, Karachi

Dated: 13-01-2011

POLI CE ACTION

I the ASI Ghouse Bakhsh do hereby certify that I being busy in the investigation report of daily rliary reached at Abbasi shaheed of dead Hospital where I prepared. memo regarding examinatiol body and obtained cause of death from MLO Dr' Sajid vide PM

No.34/2011 dated 13-01-2011 and recorded the statement u/s 154 Cr.

P.C of complainant, who aclmitted the same to be correct and signed

thereon and handed-over the dead body to his legal heirs' On was copied in verbatim' returning to police station, the said statement

U/S

From the text of statement nature of offence falls punishable against unknown accused 302/34PPC, therefore, after registering case statement vfas sent to the \* person(s), copy of FIR alongwith original floofabovepolicestationforfurtherinvestigationthrough per pc/r1?67 Rehan. Rernaining copies of FIR shall be distributed as rules Sd/-(In English) ASI Ghouse Bakhsh Posted at P.S. SuPer Market Karachi ) Dated:13 -01.-2011

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3.During inveptigation of above case, accused Shahrukh, Faisal Mehmood @ Nafziayati, Syed Tahir Naveed Shah @ Polka, Syed Mohammad Ali Rizvi @ Ali and Muhammad Shakeel were arrested and sent up to stancl I trial before the Administrative Judge,'' Anti-Terorroism...,Court (Special Courts) High Court of Sindtu Karachi showing co-accused Liaquat AIi, Faisal @ Mota and S.M Kamran @ Zeeshan as absconders. Then the case was transferred to the Court of learned ]udge, Anti-Terrorism Court-II, Karachi who after observing necessary formalities declared the absconding accused as proclaimed offenders and trial rvas proceeded against them in their absence under Section 512 Cr.P.C. Formal charge was framed against accused, to which they pleaded not guilty ancl claimed trial.

4.Thereafter the case was transferred to the Anti-Terrorism Court-III, Karachi, where learned advocate for the complainant and SPP jointly filed application under Section 227 Cr.P.C for amendment in the charge and after issuing notice on such application and hearing both the parties, same was allowed. Amended charge was framed for offence under Section 302,34 ppc t /w Section 7(a) of Anti-Terrorism Act, 1997 against the accused., to which they pleaded not guilty and claimed to be tried. Ultimately the trial was "t- transferred to Anti Terrorism Court Kashmore @ Kandhkot for disposal in accordance rvith law.

5.In order to prove its case, the prosecution examined 14 witnesses, who exhibited numerous documents and other items and thereafter prosecution side was closed. Thereafter, statements of. accused were recorded under Section 342 Cr.PC, in which they denied the allegations and claimed their false irnplication by the Rangers and the police because they belonged. to a particular political party. None of the accused examined themselves on oath and none of the accused called any DW in support of their defense cases.

6.On couclusion of the trial, learned trial court after hearing learnecl counsel for the parties and appraisal of prosecution evidence brougtrt on

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record, convicted and sentenced the appeilants/accused as mentioned earlier in this judgment vide ]udgment dated 13.01.201l" which has lead to these appeals against conviction by the appellants.

7.The facts of the case as well as evidence produced hefore the trial court find an elaborate mention in the judgrrrent dated 13.01 .2A1l passed by

the trial court and, therefore, the same may .,oi be reproduced here so as to avoid duplication and unnecessary repetition.

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8.Learned counsel for the appellants Faisal Mehmood aka Mota and I S.M. Kamaran aka Zeeshan initially submitted that both thu uppellants had been convicted in absentia under the ATA despite not being properly served and as such their cases should be remanded back to the trial court for a de novo trial where they could cross examine the witnesses against them however after the evidence was read out they decided to contest their convictions on merit before this court rather than seek a remand of the case. These appellants contended that the onty piece of evidence against them was a retracted judicial confession which had been made against them by one of their co-accused which was inadmissible under Article 43 of the Qanoon-e- Shahadat Order, 1984 and even other wise even if the confession was admissible they could only be convicted in a capital case if the rekacted judicial confession was corroborated by some independent unimpeachable evidence which was lacking in this case and as such the appellants should be acquitted of the charge and their conJirmation reference answered in the negative. With regard to the other appellants Faisal Mehmood aka Nafsiayat, .f- Syed Tahir Naveed Shah aka Polka and Syed Muhammed Rizvi learned counsel contended that the only evidence against them was a refracted judicial confession by a co-accused and the fact that they had been picked out from an identification parade with assigned roles but the identification parade could not be safely relied upon because it suffered from procedural defects/irregularities and that the alleged eye witness who picked them out at the identification parade did not give evidence as he died before doing so and thus they had no chance to test his evidence by cross examining him and that in the case of appellant Syed Muhammed Rizvi his partial print on the water glass recovered from the alleged car which some of the appellants rode in order to commit the murder was planted and even otherwise inadmissible as there was no proof of safe custody. Appellant Sharukh aka v Mani had retracted his judicial conlession which he claimed had been made under coercion and was therefore not voluntary and thus could not be relied upon and even other wise for the reasons mentioned above his being picked out at the identification parade could not be safely relied upon ; that there was no other evidence against the appellants who were completely innocent having been falsely implicated in the case and as such all these appellants h

who had been sentenced to life imprisoninent,for any of the above reasons ily> should be acquitted of the charge by extending them the benefit of the doubt.

In support of their contentions, they placed reliance on Article 43 eanun-e- Shahadat order, 1984 as well as cases reported as Faqir trllah v Khali l-lJz- I Zaman (1'999 SCMR 2203), Azeem Khan v Mujahid Khan (2016 scMR 275), Muhammad Pervez v The state (2007 scMR 670), Khalid Javed v The State (2003 SCMR 'L419), Mushtaq Masih v The srate (2015 M L D ITZT) and, Hazrat Bilal V The State (2000 p Cr. L g65).

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9' on the other hand learned Addl. Prosecutor General who was also rePresenting the interests of the complainant fully supported the impugned judgment and contended that the confession of the co accused Sharukh aka Mani had been given voluntarily, was truth-ful, fitted in with the prosecution case and could be safely relied upon against both its maker and the co- accused (which included all of the appellants) and that the confession as against the appellants who had been sentenced to life imprisonment had been fully corroborated by them being picked out with specific roles at a lawfully held identification parade by an eye wifness Hyder Ali as confirmed by PW 6 Nasarullah the judicial magistrate and PW L4 Noor Sabir the final

i Io in his evidence who brought the accused before the identification parade, the medcial evidence was corroborated by the confessiory the recovered empties and blood at the scene and as such all the appeals should be dismissed and all the convictions and sentences maintained of the appellants including the confirmation of the death sentence which had been handed down to appellants Faisal Mehmood aka Mota and S.M. Kamaran aka zeeshan In support of his contentions he has placed reliance on Akhtar v' The State {202a SCMR z}z}),Ibrarullah v. The State and another P'Cr'L'J 141), Nawab Khan and others v. The State and Sawal Khan v. Mian Khan and another (1968 P.Cr.L.J 588), wilayat AIi v. The state and another (2004 scMR 4TT) and ]afar AIi v. The state (1998 scMR 2669) .

10' With regard to the complainant this was a capital case and the counsel ,7 for complainant as well as complainant had been serverl many times in the past' In-fact, complainant Mohabat Khan was contacted on Z3..0Z.20p-1 which was the day before the appeals were heard by Reader/Court Associate of this Court Mr. Muhammad Saleh Dasti on his Cell No,0B21 -260021., who informed him that these appeals woulcl proceed today (24.02.2021) and he (complainant Mohabat Khan) informed the Reader that he had full faith and

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f,?q confidence in learned Additional Prosecutor General in arguing his case. In -t' any event, it is not fair to continuously adjourn this matter in absence of complainant and his counsel when they have been duly served and when some of the accused have already been behind bars for eleven years and the I complainant and. his counsel have full notice of this matter. ..'

1L. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellant's counsel, the impugned judgment with their able assistance and have considered the relevant law including that cited at the bar.

12, Before proceeding further, it is worth mentioning that appellants Faisal Mehmood aka Mota and S.M. Kamaran aka Zeeshan would have been within their rights to request that their case be remanded for re trial as they had not been given a chance to cross-examine witnesses, give evidence on oath and call witnesses in their defence since there seems to be evidence to suggest that they were not served in accordance with the law. Learned counsel for these appellants however has not objected to their appeals being decided on merit by this court and has argued his case on merits. We are also of the view that despite the appellants being convicted in absentia this court can decide this appeal on merits rather than remand the same especially as the appellants counsel has given no objection to proceeding to decide the appeal on merits and likewise the learned APG without remanding the same to the trial court. We also consider that such an approach would meet the ends of justice in this case. In this respect reliance is placed on Muhammad Shoaib and others v. The State (2013 MLD '1,469), in which it was held as under:

"We have heard all the learned counsel and perused the impugned judgment. We have also examined Articles I and 10 of the Constitution of Islamic Republic of Pakistan 1973 and the provisions of sections 19(2) and 25 of the Anti-Terrorism Act, 1997 and have also gone through the case law relied upon by the learned Counsel for the appellant, which shows that in case of conviction recorded in { absentia the convict has two options available in law, either (a) to approach the learned Trial Court within the stipulated period with a request to set aside his conviction recorded in absentia, in terms of Section L9(L2) of the Anti-Terrorism Act, L997, by showing that he did not abscond deliberately from the Court during the Trial or (b) to surrender before this Court by filing an appeal under Section 25 of the Anti-Terrorism Act, 1997 with a Prayer to set aside the conviction awarded in absentia and to acquit him on merit or to

remand the matter to the Trial Court for fresh frial by setting aside ^7{ the impugned judgment." (bold added)

13.The prosecution has also submitted that it is -hard to find eye I witnesses who are prepared to come forward in such type'.cases involving terrorism and dangerous organizations and the court should also take this into account in this case. We reject this contention. Prosecutors throughout the world face such difficulties in persuading eye witnesses to come forward so this is not a problem peculiar to Pakistan. It is up to the judicial system including the State by the police to ensure the protection of witnesses. Other methods of protection can also be resorted to such as the Sindh Witness Protection Act, evidence being given by video link and even relocation of witnesses in appropriate cases. The court can only make its decision based on the evidence produced before it which is the duty of the prosecution to produce.

'1,4. Based on our reassessment of the evidence of PW's L Mohabat Khan Babar who is the complainant who registered the FIR which narrated the incident in which Wali Khan Babar (the deceased) was murdered, PW 2 Abdul Jabbar who was a police officer who was a first responder who found the dead body of the deceased in his car with firearm injuries, PW 3 Dr.Azam Khan who narrated the incident in which the deceased was murdered, PW 13 Syed Sajid Ali the MLO, post mortem/ recovery of body at the scene/ recovery of car at scene, recovery of blood from the car at the scene and recovery of 5 empties from the scene which lead to a positive chemical and FSL tests we find that the prosecution has proved beyond a reasonable doubt that Wali Khan Babar (the deceased) was murdered by firearm injuries at about 9.30pm on 13.01 .201L opposite APWA School Near Super Market , main S.M Toufiq Road, Liaquatabad Karachi.

15.The only question left before us therefore is who shot the deceased or otherwise participated in his murder as set out in the charge.

16.After our reassessmeflt of the evidence we find that the prosecution has NOT proved beyond a reasonable doubt the charge against the appellants Faisal Mehmood aka Mota and S.M. Kamaran aka Zeeshan for which they were convicted in absentia for the following reasons:-

(a)The main evidence against thme fwo appellants is the retracted *y judicial confession of their co-accused sharukh aka Mani which is set out below for ease of reference;

I Q. What have you to say?

Answer.

I was p*tt":b-e-d due to jobless that one day Habib Estate Agent took me to Faisal M.ota got me work of Trd Esiat* n op*"ty in Atlah Bux village, froS duy, f started work with work with Faisallhlt Faisal Mota and I started Mota ol_ ,"_Iry Rs.soooT- and on selring Tgrrthly out of each plot cash Rs.L0000/- since I"Iy 2009. n.rring my job on 12.0!.20:ll. Fiisal Mota called'*u nf making phone at his home situated in Gulshan-e-wasim KBR; I "reachea a't about 2:00 p.m there and Zeeshan was already present in his house. Faisal Mota asked me we have to see the hous:

gf one person namely wali Khan and have to receive Rs.14,s0,000/- from him, he has changed his house.

Zeeshan and Faisal Mota took me together at the channel. Faisar showed the picture of wuti Khan office of Jeo mobile and also showed me his car cultus to me in his No.AEE-6L3 and said me when he Ieft from_there you follow him and see his house and will inform me, where I remained waiting about to 4 hours but neither I see wali Khan nor his car seen to"me. At 3about Maghrib time, I made phone call to Faisal Mota and narrated circumstances to him, he asked me to go to entire facts and his home. on next day on L3.01.20rr I--wgnt at my office ellah nux Goth, ,t iu""; i,i,0 Faisal Mota called me at his office room and directed me again to".Mgo + outside the office of Jeo channel, one day before, i *r, asked for doing of that work and stated me that Zeeshan is already present ll:i*l you go there and meet with him. At about from L500 hours I came out from my office lk4|hours to and proceeded towards the office of jeo Channel and I irrived there- at about 1600 hours, Zeeshan's phone carl came to me who where ,.* yoo;"d;;#;:

to come at the going to Habib Bank, when I ieached to him, ry1y uras together-with_Liaquat he in Cultus car. Zeeshan showed me the car of wali Khan Babai where he was standing and said when wali Khan Babar left from there I wilI inform him by making phone calr and I was directed not to move from here, rinless comin-g out you will wait for him there and wali Khan is asked me to follow him upto his home and come back by seeing his house. understood, if he went towards liefence or He got me Clifton, don,t follow and you will go to his home. During this time, lT balance of Rs.100/- in mobile phone, when wali he got loaded Khan Babar comes out from there, and will inform me through phone. TilI about 0280 hours, I waited wali Khan Babar at the outside of ]eo channel, at that time, I saw WaIi Khan Babar sitting in his Car / blaring N'.AEE- 61?: then r phoned to zeeshan and Zeefhan said me to make phone call to Faisal Mota. I arso informed Faisar Mota by making phone caII that Faisal Mota asked from me, on which *ay he is; Is he not goi18 by way of Defence or Clifton? Mobile Phone was fixed inside my helmet, when I reached in the area of Saddar that Babar Wali {han stopped his car near fruit push carts and came towards me, then I told this position to Faisal Lecause who was on line with me he said me to b*y fruit he wilt pay fruits money, then I bought one dozen of orange. WaIi Khan -sat in his vehicle and started to

Lp proceed, so, I again followed him, when Teen Hati's Mazar came that I informed to Faisal Mota, he said this is our tiaquatabad Road, therefore, you follow him upto his home. Hence, r remained going pursue him, when the area of Dakhana Super Market came, again Faisal asked me where you reached, I replied him I am at Dackhana I Super Market and traffic was iu* that Faisal Motay- said me to keep pursue Wali Khan Babar, During this time, towards from my right side hand and from Green Belt side, I saw Zeeshan by going towards the side of Wali Khan Car. Having went near to Car of Wali Khan Babar, made straight 5 to 7 fires at wali Khan Babar, panic spread in public and people hearing the voice of firing gathered there and 617 persons came ahead together with the support of Zeeshan and said to public do your own business and said our enmify with him, almost all persons had weapons, seeing this incident I became embarrassed. I saw each namely Faisal Motta, Liaquat, Faisal Nafsiyati, Ali Naveed, Shakeel, Fahad and two other persons I became very much confused and kept going ahead on my motorcycle, after short while, I made phone call to Faisal Motay. Faisal Motay said me to come near my home, I went in park situated near his house, where all persons had come there; I reached little late because due to fear motorcycle was not being driven by me. When I reached there that Faisal Motay asked all to go their homes and he stopped me. Faisal took me at his house, all things had not to be done but it happened, don't worry and if any matter happened that I will send you Lahore by giving you rupees 20 and 25 thousands, there is no any guilt of you in this matter. But he said rne don't state this incident with anyone, the same will be committed with me as was committed with WaIi Khan Babar, you will be seen -+ in the pool of blood. If I will state this incident with anyone, that same will be done with me and said me go and stay in your home and so also don't state your family. On 2.d day when I contacted on his number, his number was switched off and then I became so feared and I left to Lahore without saying his family members, where I stayed two months with my friend. When my contact took place with Faisal Mota after two months L0 days, he asked me to come at Karachi, at Gulshan Office; when I went there that Naveed, Shakeel and Ghani were already present there. Faisal Mota said to all us to go to Hyderabad, where I send you to Liaquat. I was embarrassed, therefore, Faisal said to take care some days all will be OK, don't worry. He also asked me to sit in gray colour Khyber Car and said me go to Liaquat at Hyderabad alongwith Faisal Nafsiyati, Shakeel, Ali and Naveed. I{hen we started to proceed from there; at about between L330 Hours to 1330 Hours; police arrested us from Gulshan-e-Iqbal",

(b)Article 43 of the Qanun-e-Shahadat Order,1,984 reads as under:

/ " 43, Consideration of proved confession affecting person making it and others jointly under trial for same offence. When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons is proved.

(u)such confession shall be proof against the persons; making iU and

(b)the Court may take into consideration such confession as circumstantial evidence against such other person- h

Explanation. "Offence", as used in this Article, includes abetment of, or attemPt to commit, the offence'"

In this case, we find that Article 43 is applicable and since the appellants t Faisal Mehmood aka Mota and s.M.Kamaran aka Zeeshan.y.r* not being

tried jointly with the other co-accused as they were being tried in absentia

this retracted judicial confession cannot be used against them.

(c)Even otherwise it is well settled by now that a judicial confession made by one co-accused" against another co-accused in a capital case cannot be used to convict the persons named in the confession by the maker without

unimpeachable independent corroborative evidence.

In this respect, reliance is placed on Federation of Pakistan v Muhammed Shafi Muhammedi, Advocat e (1994SCMR 932) which held as under at P.938

Para 10.

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The above judgments are in line with the stream of iudgments of the Superior Coirts of Indo-Pak. The rule of prudence that the testimony of an approver or accomplice is to be corroborated in material particutars by independent evidence has almost hardened into u ,.rl* of law with th; passage of time and because of the invariable insistence of the superior courts to have corroboration. Though in theory section 133 of the late Act provided that the conviction of an accused Person on the basis of uncorroborated evid,ence of an accomplice was not illegal, but in practice this was not acted upon. There r"uy be a few cases in which the above provision of the late Act might have been pressed into service but overwhelming judicial consen-sus has been that conviction on the basis of the sole iestimony of an approvef or accomplice is not safe. (bold added) In this respect, reliance is also placed on the following cases, Arif Nawaz Khan and g others v. The state (pLD lgg1, Federal shariat court Ma1ik v. The state (2008 yLR g25B), Altaf Ashraf v. The state )ehangir (1992 P.cr' L.J 1910) (pLD 2009 Lahore s4g),pir Mazhar-ul-Haq v,The state and Muhammed Ismail v state (2017 SCMR 898).

Faqir ullah v while addressing this Issue under Islamic law in the case of

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para 18, it was held as Khalil_uz_zaman (1ggg scMR 2203), atp.2?13, at under:

,,Para-l-8. The first question is whether the confessional statement of been accepted in the convict was to bi accepted in toto or might have part. The basic principle of Islamic Law is provided in Majellah-al- is a Ahkam-a1-adliyyah, (section 78) that the Bayyitt+-or.evidence proof whose implications may extend to others while the confession

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af is a proof whose implications are lirnited to the one who makes it.

Under this principle the confessional statement of a person can only inculpate himself and no other person can be inculpated merel| because some other person has mide any admission. ffri, principll is based on the well-known incident reported- by almost all he

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compilers of the Ahadith in which the Holy piophet (p.b.u.h) punished a person with Hadd on the confession of the commission of Zina' But in spite of the fact that he had mentioned a particular woman by name with whom he had admitted to have committed zina. the Holy Prophet (p.b.u.h) did not convict the woman on the basis of this confession by the co-accused. He appointed a judicial officer to investigate and to independently fini out whether the woman had committed zina or not. The Holy prophet (p.b.u.h) directed the judicial officer to punish the woman only on her own free u1d independent admission. on the basis of Hadith and several other Ahadith, Muslim Jurists have developed the principle that th* implications of the confession of a person are confined to himself and cannot be extended to some uoay else. It also means that the confession made by a person may be accepted to the extent to which it affects himseli *"y b; rejected to the extent to which it implicates some body "rld else.(bold added)

(d)Thus, even if we .or,rii", the judicial confession as being voluntarily made and truthful and fitting in with the prosecution case and therefore admissible which we will come to Iater in this judgment so far as the appellants Faisal Mehmood aka Mota and S.M. Kamaran -+\ aka Zeeshan are concerned there must be some independent corroboration in order to uphold their convictions.

(u)In this case no mobile phones of the appellants have been recovered let alone any CDR connecting the phones of the confessor with the appellants Faisal Mehmood aka Mota and S.M. Kamaran aka Zeeshan has been collected or exhibited, they were not part of any identification parade, the car allegedly used to transport some of the appellants to the murder scene is not in their names, no DNA or finger print evid.ence has been proved against them.

17 ' In short there is absolutely no evidence to corroborate the judicial confession of accused Sharukh aka Mani in so far as it relates F to the appellants Faisal Mehmood aka Mota and S.M.Kamaran aka Zeeshan. The aspect of the charge concerning appellant Faisal Mehmood aka Mota hiding the murder weapons is not substantiated by any evidence. It does not appear even in the confession and the IO was not able to recover any such weapons ,h

l3 tll,t o 6t despite digging up the area where they were allegedly hidden and as such

this is just a bald unsubstantiated allegation.

18.The requirements of circumstantial evidencri connecting the f appellants to the offence have not been met. In this respect reliance is placed on Fayyaz Ahmed v state (201T scMR 2026), at p.2030, para,s E and 6, which are reproduced as under:

"To believe or rely on circumstantial evidence, the well settled unq deepry entrenched principle is, that it . is imperative for the Prosecution to provide all links in chain an unbroken one, where one end of th" same touches the dead body and the other the neck of the accused. The present case is of such a nature where many links are missing in the chain.

To carry conviction on a capital charge it is essential that courts have to deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon as we have noticed in some cases thus, very minute and narrow examination of the same is necessary to secure the ends of justice and that the Prosecution has to establish the case beyond all reasonable doubts, resting on circumstantial evidence. "Reasonable Doubt" does not mean any doubt but it must be accompanied by such reasons, sufficient io persuade a judicial mind for placing reliance on it. If it is short of such standard, it is better to discard the same so that an innocent + person might not be sent to gallows. To draw an inference of guilt from such evidence, the court has to apply its judiciar mind with deep thought and with extra care and caution and whenever there are one or some indications/ showing the design of the prosecution of manufacturing and prep:uation of a case, the Courts have to show reluctance to believe it unless it is judicially satisfied about the guilt of accused person and the required chain is made out without missing Iink, otherwise at random reliance on such evidence would result in failure of justice.

It may also be kept in mind that sometimes the investigating agency collects circumstantial evidence seems appaiently believable however, if the strict standards of scrutiny are applied there wourd appear many cracks and doubts in the same which are always inherent therein and in that case courts have to discard and disbelieve the same.,, (bold added) f 19 ' The fact that both the appellants were absconders is also irrelevant based on the particular facts and circumstances of the case .In this respect reliance is placed on Muhammed Aslam V State (I1TZSCMR 194).

2A' Thus, based on the above discussion we hereby acquit appellants Faisal Mehmood aka Mota and S.M. Kamaran aka Zeeshan of the Charge, t

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allow their appeals,'set aside the impugned juclgment insofar as it relates to ry them, who shall be released unless wanted in any other custody case. The conIirmation reference in respect of appellants Faisal Mehrnood aka Mota T and S.M. Kamaran aka Zeeshan is answered in the'negative.', :

2L. With regard to appellants Faisal Mehmood aka Nafsiayat, Syed Tahir Naveed Shah aka Polka and Syed Muhammed Rizvi after our reassessment of the evidence we find that the prosecution has NOT proved beyond a reasonable doubt the charge against the aforesaid appellants for which they were convicted for the following reasons:

22.There are two main pieces of evidence against these appellants (i) the retracted judicial confession and (ii) being picked out at an identification parade by Hyder Ali as taking part in the murder and being given particular roles.

23.Turning firstly to the retracted judicial confession. Even if we find this to be admissible (which we will come to later in this judgment) since the aforesaid appellants are co-accused its needs to be corroborated by ind.ependent evidence which in this case mainly rests on the identification parade carried out by PW 6 Nasarullah who was a judicial magistrate and all the aforesaid appellants were identified by Hyder Ali as playing a particular role in the murder.

24.We find that we cannot safely rely on the identification of any of the appellants by Hyder Ali at the identification parade and as such the identification parade results cannot corroborate the retracted judicial confession for the following reasons:

(i)The key issue is not the evidence of the judicial magistrate PW 6 Nasarullah who carried out the identification parade or the IO who allegedly took the appellants and the eye witness to the identification ./ parade but whether we can believe the identification of the eye 7 witness as correctly identifying the appellarrts as being involved in the murder.

(ii)The FIR which was lodged promptly after the incident was against unknown person's.

(iii)No eye witness came forward for over six weeks which was

*Lt2 allegedly following an advert in a newspaper the duy before the accused was arrested and there is no explanation on record why the eye witness waited six weeks before coming forward.

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(iv)The eye-witness who came forward Hyder Ali is-not named in the FIR and there is no evidence that he knew any of the accused before the incident.

(v)The eye-witness Hyder AIi did not give his 5.161 statement Cr.PC statement for at least 6 weeks after the incident. Such delay in recording the 5.161 Cr.PC statement of an eye witness is quite fatal to the prosecution case as his complete evidence could have been concocted along with the police and the complainant who were under pressure to solve this case since the deceased was a member of a popular T.V channel and news paper publication who regularly aired this news story and the lack of progress of the police in finding the murderers of the deceased. In this respect reliance is placed on Noor Mohammed V State (2020 SCMR 1049) which held as under at P.1"052;

+ "Similarly, Mst. Amina Bibi and Mst.lmtiaz Fatima introduced eye-witnesses of the occurrence also made their statements under section 'J.61, Cr.P.C. on 31..12.2018 with the delay of more than one and half year. It is established principle of law that delayed recording of statement of the PtV under section L61-, Cr.P.C. reduces its value to nil. Reliance in this regard is placed upon case titled as "Abdul Khaliq t. The state " (1996 SCMR 155) wherein it has been held as under:-

"---5J1"61,--- Penal Code (XLV of 1860),5.302/34--- Late recording of statement under 5.161, Cr.P.C.---Value--- Late recording of a statement of a Prosecution witness under S. 161, Cr.P.C. reduces its value to nil unless delay is plausibly explained."

Likewise, in the more recent Supreme Court case of Muhammed Asif V State (2017 SCMR 486) it was hetd atP.492, Para l'5, as under; .b "1.5. There is a long line of authorities/precedents of this Court and the High Courts that even one or two days unexplained delay in recording th* statement of eye-witnesses would be fatal and testimony of such witnesses cannot be safely relied upotl". (bold added)

(vi)It was a nighttime incident at 9.30pm in January and therefore would have been dark. No evidence of source of light has been given. h

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/f No evidence has been given to show how far away the alleged eye-

his

witness was from the incident and,thus under these circumstances identification of 4 of the accused must be in doubt, In this respect I reliance is placed on Azhar v State (2017 SCMR 135) and Gulfam V

State (2017 SCMR 1189)

(vii)That in his s.161 Cr.PC statement made six weeks after the incident the eye witness gave no 'hulia' or description of the appellants. Instead he aPParently relied on sketches which he drew

from memory. such sketches were not exhibited at trial and as such of the this further castes doubt on the safeness of his identification appellants. In this respect reliance is placed on ]aved Khan alias at P-529, Para 8;

Bacha v state (2017 SCMR 524)which held as under "8. The complainant (PW-s) had not mentioned any feature: recorded of the assailants either in the FIR or in his statement no benchmark under section 16L Cr.P.C, therefore there was against which to test whether the appellants, who he had identified after over a year of the crime, and who he had of the fleetingly seen, were in iact the actual culprits' Neither two Magistrates had certified that in the identification proceedirTgs the other persons, amongst r1hgl the f appellants **ru placJd, were of simitar age, height, built and colouring' The main obiect of identification proceed-ing1 is to enable a witness to properly identify a person involved in a crime and to exclua* ifr" possibility of i witness simply confirming a tall, faint recollection or impression, that is, of an old, young, short, fat, thin, dark or fair suspect.,, (bold added) natural

(viii)It d.oes not appeal to logic, reason, commonsense and chaotic scene with behavior that in the middte of a brutal murder and was carefully able armed men shouting at night that the eye witness appellants' This to examine and remember fu[y the faces of aforesaid such scenario would conduct is just not believable. Natural conduct in scene' In this have been to flee and keep away from the murder respect reliance is placed on Muhammed Asif V State (2017 SCMR

F.

and the (i*) The eye-witness did not give evidence under oath examine him and test his aforesaid appellants had no chance to cross shattered on cross- evidence. This eye-wifness may have been examination.

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(*) From the evidence it is unclear who this eye witness was. Was he a chance witness? Why was he at lhe scene? Nothing is known about his creditability e.g. profession, job, trade etc. He is a complete unknown I quantity '

(*i) In their evidence all the aforesaid appellants claim that they were shown to the eye witness prior to the identification parade which circumstance cannot be ruled out especially as all the appellants remained in police custody prior to the identification parade.

(xii)The fact that the eye witness came forward a day before the aforesaid appellants were conveniently all arrested whilst all sitting in one car also raises doubts that he was a planted witness under poli.ce pressure. No explanation has been given as to why he took so long to come forward.

(xiii)In trial identification by other witnesses has been deprecated by the superior courts as being unsafe, unreliable and could not be approved. In this respect reliance is placed on Gulfam V State (2017 scMR 118e)

25.The next question is therefore what other corroborative materiafevidence is there against the aforesaid appellants on record?

(i)No weapon was recovered from any of them and as such the FSL report cannot comect them to the offense despite the fact that it was positive.

(ii)No CDR was produced in evidence to link any of thern at the given time of the crirne.

(iii)The positive blood test goes to the death of the deceased and is irrelevant for purposes of connecting the appellants to the crime.

(i") No motive has been asserted by the prosecution for the murder and none has been proved.

r (") None of the recoveries were put to any of the appellants during their 5.342 Cr.PC statements and as such cannot be used to convict them.

("i) Taking the police to the place of wardat is irrelevant as the police already knew the place of wardat which had also been shown on the T.V and written about in newsPaPersT

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(vii)There 'extra judicial confessions before the police during xqf

interrogation are inadmissible in evidence

(viii)That although appellant Syed Muhammed Rizvi's similar finger print was found on a glass allegedly rec.overed from the I vehicle used in the crime we exclude this piece of evidence from consideration. This is because it was not found on the first search of the vehicle and then surprisingly about 3 weeks later whilst the vehicle had been left outside flS Market where all and sundry had access to it the glass and slippers are found in the vehicle. There is no chain of safe custody and any one could have planted the slippers and the water glass in the car. It is just not believable that two such obvious items were missed on the first search of the car which belonged to deceased Laiquat. Even otherwise, the glass and the finger print were not put to the appellant during his 5.342 Cr.PC statement and as such cannot be used to convict him.

26.The requirements of circumstantial evidence connecting the appellants to the offence have not been met. In this respect reliance is placed on the case of Fayyaz Ahmed (Supra) as referred to earlier in this judgment.

27.Thus, there is no other corroborative evidence to link the aforesaid appellants to the offence and as such the aforesaid appellants Faisal Mehmood aka Nafsiayat, Syed Tahir Naveed Shah aka Polka and Syed t Muhamrned Rizvi are all acquitted of the charge, their appeal is allowed, the impugned judgment is set aside insofar as it relates to them and they shall be released unless wanted in any custody case.

28.Turning to appellant Sharukh aka Mani who gave the retracted judicial confession. As discussed earlier it is settled by now that this confession can be used against him if we find it to be voluntary, true and tying into the facts of the case and there are only minor procedural irregularities. In this respect reliance is placed on Azeem Khan V Muiahid Khan (2016 SCMR 274).

29.In the case of Bahadur V State (PLD 1996 SC 336) although it was ,r suggested that a judicial confession alone can be made the basis of conviction the safer course was to look to see if there was any corroborative material available to determine its truthfulness. Reliance in this respect is also placed on Muhammed Ismail V State (2017 SCMR 898).

30.In this case the main procedural clefect is that after making the confession the appellant was handed back to the police and was not ,

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The apperlant also claims in his s.342 Cr'PC +v remanded to judiciar custody.

as in effect he and his family statement that his confession was not voLuntary T day delay in recording the were threatened. There was also an unexplained I where the'appellant has confession which is not signecl by him. In situations to the police if he con{esses not been warned that he will not be handed back con-fession the courts have or if he was handed back to the police after his the voluntariness of the found such situations to be very damaging to on Muhammad confession. In this respect reliance is placed retracted judiciar Ram v' pervez and others v. The State and others (2007 SCMR 670), Gangoo The state (2003 p.cr.L.J 160g) and syed Azeem shah v. The state (PLD 1987 Quetta 96).

judicial confession

31.Thus, we have some doubts about this retracted to convict the appellant sharukh and are of the view that it would be unsafe alone due to the above aka Mani based on his retracted judicial confession corroboration as mentioned earlier defects and it would require independent 336) if any reliance was to be in the case of Bahadur v state (pLD 1996 sc placed on it as regilds the maker' .l

32.what other corroborative material is there against appellant

Sharukh aka Mani?

of the appellants by

(a)we have already held that the identification cannot be relied on for the eye wetness Hyder Ali is unsafe and reasons mentions above especially in the case of the appellant SharukhakaManiwhoserolehegivesaspointingoutthedeceasedto by appellant which is contrary to the rore assigned to himself be shot SharukhakaManiinhisownconression.

(b)AswiththeotherappellantswhowereconvictedforlifetheSame considerationsaPPlyregard'ingcorroborativeevid.ence'Namely; r (,)NoweaPonwasrecoveredfromhimandassuchthe despite theoffense FSL report cannot connect him to the fact that it was Positive'

No CDR was produced in evidence to link him to any

(ii)the crime.

other appellani at the given time of of the deceased

(iii)The positive blood test goes to the death andisirrelevantforpurPosesofconnectingthe aPPellant to the crime', f

,l

sy?

(i") No motive has been asserted by the Prosecution for the murder and none has been proved.

(") None of the recoveries were put to the appellant during I his 5.342 Cr.PC statement and as such cannot be used to convict him.

("i) Taking the police to the place of wardat is irrelevant as the police already knew the place of wardat which had also been shown on the T.V and written about in newsPapers.

(") The requirements of circumstantial evidence connecting the appellant to the offence have not been met. In this respect reliance is placed on the case of Fayyaz Ahmed (Supra) as referred to earlier in this judgment.

33.Thus, there is no other corroborative evidence to link the appellant Sharukh aka Mani to the offence appellant Sharukh aka Mani is acquitted of the charge, his appeal is allowed, the impugned judgment is set aside in so far as it relates to him and he shall be released unless wanted in any custody case.

34, It cannot be lost sight of that in a criminal case the burden lies on the prosecution to prove its case beyond a reasonable doubt. The defence can raise as many defences as it wants and even need not raise any defence except to plead not guilty and d"rry the allegations as unlike in civil cases if a piece of evidence is not challenged in a criminal case it will not be deemed to be an admission. In this respect reliance is placed on Mst. Asia Bibi V State (PLD SC 201e 64).

38.The defence case in essence is that the appellants have been falsely implicated on political grounds and that they were not the ones who shot or planned the murder of the deceased or were present at the time of the murder an,J we find that the prosecution has not been able to Prove of ,y otherwise beyond a reasonable doubt. As in all criminal cases the benefit the doubt goes to the accused and in this case there is a major doubt about the correct id.entification of the appellants at the scene of the murder. In this pen ez v/s. The state (1995 respect reriance is placecl on the case of Tariq SCMR 1345), wherein the Supreme Court has observed as follows:- ,,It is settled law that it is not necessary that there should be many circumstances creating doubts. If there is a single circumstance, which

MUIill

2l *t4(b

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 matter of grace and concession but as a matter of right."

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/ 36. We find in rnany key aspects of the prosecution .*te as discussed in this judgment there are grave and maior douhts especially in terms of the correctness of the identification of the appellants at the scene of the murder which must go to the benefit of the appellants which has lead us to the findings which we have reached in this judgment.

Conclusion.

37.For the reasons discussed in this judgment, all the appeals of the appellants are allowed, the impugned judgment is set aside in respect of all the appellants, all the appellants are acquitted of the charge and shall be released from custody unless wanted in any other custody case. The con1irmation references against appellants Faisal Mehmood aka Mota and S.M. Kamaran aka Zeeshan are answered in the negative.

38.The appeals stand disposed of in the above terms.

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