IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Special Anti-Terrorism Appeal No. 191 of 2015
(Pirzada @ Peer Vs. The State)
Present:
Mr. Justice Ahmed Ali M. Sheikh &
Mr. Justice Muhammad Saleem Jessar
Dated of hearing : 27.10.2016
Date of decision : 27.10.2016
Appellant : Pirzada @ Peer through Mr. Ajab Khan Khattak, Advocate.
Respondent : The State through Mr. Muhammad Iqbal Awan, Assistant Prosecutor General Sindh.
J U D G M E N T
Muhammad Saleem Jessar, J: - Appellant Pirzada alias Peer has assailed his conviction and sentence awarded to him by learned Judge, Anti-Terrorism Court No.5, Karachi in Special Case No.A-157 of 2014, re. State Vs. Pirzada alias Peer, which is outcome of FIR No.83 of 2014, under section 392, 354, 324, 34 PPC read with Section 7 of Anti-Terrorist Act, 1997 (hereinafter referred to as the “Act 1997”), registered with P.S. SITE, Superhighway, Karachi, whereby the Appellant / convict was found guilty of the charge under Section 324, 34 PPC read with Section 6(2)(d) of Act 1997 punishable under Section 7 (1)(b) of Act 1997, hence was convicted and sentenced to undergo R.I. for 10 years and to pay fine of Rs.50,000/- beside compensation of Rs.50,000/- under Section 544-A Cr.P.C. to be paid to injured Mir Muhammad Rind. In case of default whereof the appellant is to undergo S.I. for one year more, however, learned trial Court has extended benefit of Section 382-B Cr.P.C to the appellant.
2. The crux of prosecution case as unfolded in the F.I.R lodged by complainant Umair Siddiqui on 09.04.2014, whereby he had stated that he is salesman in Nestle Dry Milk Company. He (complainant) along with driver Abdul Hameed and guard Atiq had left in a vehicle bearing registration KP-9752; after making supply in Faqeera Goth, Scheme-33, Karachi they were proceedings towards Gulshan-e-Maymar. When at about 1140 hours, they reached at Katcha-Pakka road opposite Areesha Tower Scheme No.33, Karachi, three persons, riding on one motorcycle, came from their behind, who were appearing to be Pathans and were armed with T.T. Pistol, they compelled them to stop their vehicle. Following which on gun point, they robbed cash amount of Rs.5500/- and a mobile phone bearing SIM No.0312-3161165, having IMEA No.011769008117456, from the complainant. Meanwhile, one car duly boarded with police personnel had come from front side. The Police personnel accosted to culprits and asked them to surrender the weapons, but the culprits instead fired upon Police Party boarded in the car aims to commit their Qatl-i-Amd, the Police had also retaliated. Due to exchange of firing, one head constable Mir Muhammad sustained bullet injury on his person at the hands of accused while one of the companions of the accused persons had also sustained firearm injury and consequently, succumbed to injuries. In the meantime other police mobile headed by SIP / SHO Rana Haseeb Ahmed and ASI Mairaj Anwar together with their staff rushed there. The accused after sustaining injury on his person as bullet had become stuck in his pistol also fired at police mobile with help of his other accomplices. The Police party also fired in their defence and during encounter injured dacoit succumbed to his injuries, while rest two culprits succeeded to make their escape good by taking advantage of bushes. The body search of deceased culprit was conducted in presence of the complainant. The Police secured one 30 bore black brown colored pistol with wooden handle having magazine containing five live rounds and one in its chamber, was in right hand of the deceased accused. The alleged robbed amount of R.5500/- being five denomination notes of Rs.500/- and thirty denomination notes of Rs.100/- were recovered. Besides, one mobile phone of Nokia company, allegedly snatched from the complainant was recovered and one copy of misplacing report of NIC in the name of Qayoom Khan was secured. The complainant recognized the articles. The Police recovered six empties of 30 bore from the scene of offence. After making usual formalities, the complainant came at P.S. together with Police party, where he got his case registered in above terms.
3. The Police after registration of FIR started investigation meanwhile arrested the appellant / convict on 21.04.2014 and after completion of legal formalities submitted the charge sheet before the competent Court of law having jurisdiction.
4. After taking cognizance, learned trial Court had framed the charge against appellant under Section 353, 324, 392, 34 PPC read with Section 7 of Act 1997 and 6(2) of Act 1997, to which the appellant pleaded not guilty and claimed to be tried.
5. To prove its case, the prosecution has examined in all nine (09) witnesses i.e. 1. P.W.-1 / ASI Munawar Ali Ex.6 on 28.01.2015, P.W.2 / injured Head Constable Mir Muhammad Rind Ex.7 on 28.01.2015, P.W.-3 / Abdul Qayoom Siyal / Civil Judge & Judicial Magistrate Ex.8 on 03.03.2015, P.W.-4 / P.C. Hassnain Ali Ex.9 on 18.03.2015, P.W.-5 / ASI Amir Memon Ex.10 on 18.03.2015, P.W.-6 / ASI Manzoor Abbasi Ex.11 on 07.04.2015, P.W.-7 / Dr. Sheeraz Ali on 08.05.2015, P.W.-8 / ASIP Meraj Anwar Ex.15 on 08.05.2015, P.W.-9 / Inspector Peer Bux Chandio Ex.17 on 01.07.2015 and thereafter prosecution had closed its side of evidence vide statement of SPP Exhibit No.18. The statement of accused was recorded in terms of Section 342 Cr.P.C, whereby the appellant denied allegations and stated that he was arrested by the Rangers on 23.01.2013 along with his real brother and two mohalla people. Such C.P.No.D-534 of 2013 was filed by one Misbah before this Court and is still pending. Per his statement, all above four are still missing and such FIR was also lodged against one Colonel Pervez. He stated further that right from his illegal arrest by the Rangers for about a year, they handed over him to Police and the Police also kept him in confinement for five months and were forcing him to withdraw from the case against the Rangers and after about five months, he was involved in present case. He, however, not examined himself on oath nor led any defense evidence.
6. Learned trial Court, after hearing to the DDP for the State and learned defense counsel for the appellant had convicted and sentenced the appellant in the above terms.
7. Mr. Ajab Khan Khattak, learned counsel for the appellant submitted that appellant is not nominated in the FIR and he has no nexus with the alleged commission of the crime. He further submitted that appellant was taken away by the Rangers much prior to the occurrence of instant incident and according to him; in fact no such incident had taken place. He further submitted that per the averments of the FIR, there were three eyewitnesses, i.e. the complainant, P.W. / Driver Abdul Hameed and guard Ateeq. He further contended that none amongst the above witnesses of the crime was examined by the learned trial Court, even the identification parade held before the Magistrate, was not conducted in their presence and identification parade was conducted only in presence of the I.O. who arrested the appellant and the injured H.C Mir Muhammad. He further advanced that the evidence of P.W. injured Mir Muhammad is not inspiring confidence as he himself was not aware where he was shifted for his medical treatment and his evidence has totally been belied by the evidence of Medicolegal Officer viz. Dr. Sheraz Ali. He further submitted that the alleged robbed amount viz. Rs.5500/- and mobile phone were allegedly recovered from the packet of deceased co-accused Abdul Qayoom. He further submitted that appellant was arrested on 21.04.2014, whereas he was subjected to identification parade on 26.04.2014 and during the intervening period, he remained in custody of the Police, therefore, such identification parade carried no weight in the eye of law. He further submitted that nothing incriminating including alleged offensive weapon have ever been shown to have been recovered from the possession of appellant or has been produced by appellant himself, which may connect him with the commission of alleged offence. In support of his arguments, he has relied upon the following case law: -
1. 2006 SCMR 302.
2. 2011 SCMR 537
3. PLD 2008 Kar 487
4. 2011 SCMR 769.
5. 1997 SCMR 617.
8. On the other hand Mr. Muhammad Iqbal Awan, learned Assistant Prosecutor General Sindh though supported the impugned judgment, but could not controvert the factual discrepancies available on record as pointed out by learned counsel for the appellant.
9. We have heard arguments and scanned the record as well as evidence adduced by the prosecution anxiously.
10. While perusing the evidence with the valuable assistance of learned counsel for the parties, we have found that entire episode of prosecution case rests upon following set (s) of evidences:-
(i) The ocular version based upon the evidence of the complainant Umair Siddiqui, his driver Abdul Hameed and guard Atique and injured P.W. HC Mir Muhammad Rind.
(ii) Medical evidence based upon the statement of injured PW HC Mir Muhammad corroborated by the evidence of Medico legal officer / Dr. Sheeraz Ali.
(iii) Identification parade held before learned Civil Judge/ Judicial Magistrate in presence of injured PW Mir Muhammad.
11. The peculiar facts, peeping through the record of the case, made us to say first that there can be no denial to the well-established principle of law that where the ocular / direct evidence fails, it would never be safe to award conviction because all other piece (s) of evidence, except ocular (direct) evidence are normally of status of ‘corroborative’ which are meant to shoulder the ocular account. In law, corroborative evidence means evidence of someone else other than the eye-witness whose evidence is needed to be corroborated. According to the Black’s Law Dictionary, 9th Edition, corroborating evidence has been defined as follows:-
‘Evidence that differs from but strengthens or confirms what other evidence shows (needing support)
The corroborative pieces of evidence alone cannot hold conviction because it (corroborative evidence) should but if nothing is there to support / shoulder then purpose of support (corroborative evidence) fails. The reliance can safely be made to the case of, reported as 2008 SCMR 336 wherein it is held that:
“Conviction cannot be based on any other type of evidence, howsoever convincing it may be unless direct or substantive evidence is available. Even guilt of accused cannot be based merely on high probabilities that may be inferred from evidence in a particular case.”
Reverting to the merits of the case, let’s take the ocular account first. Before penetrating into record, it is necessary to remind that it was not a case of an attack / assault upon police party but it (prosecution’s case) was that of an attempt of robbery during which injuries were caused which did allowed appearance of police at subsequent stage resulting into encounter, therefore, star witnesses of the incident were indeed private persons which list may include the police official (s) too but shall not stand in same footrace. The one who is stopped and attempted to be robbed shall always be in a better position to identify from the one who only had opportunity of seeing the one under firing or running away.
There can be no denial to the legal position that since the burden is always upon prosecution to prove its case which requires it (prosecution) to bring its best witnesses into witness box and any failure, without a legal justification, would result in hitting the prosecution itself as otherwise is explained by Article 129(g) of Qanun-e-Shahadat Order, 1984.
In the instant matter, it is a matter of fact that the star witnesses of the alleged offence viz. Complainant Umair Siddiqui, his driver Abdul Hameed and guard Atique were never produced by the prosecution during investigation process i.e ‘at time of identification parade’ nor were examined during trial even. This means that name (s) of these witnesses, as star witnesses, remained on chest of prosecution from very beginning i.e lodgment of FIR till the prosecution closed its side which, in law, is of no legal value because it is the name of a ‘person’ which dresses him into a ‘witness’ but claim (words) to have seen or heard the offence. Such claims turns into ‘evidence’ only when the witness steps into witness box and his claim is tested by ‘cross examination’. This shall stand clear from a direct reference to Article 2(c) (i) of Qanun-e-Shahadat Order, 1984 which defines ‘evidence’ as:
(c) “evidence” includes:---
(i) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; and
The prosecution, at no material times, placed any legal justification for not bringing these witnesses into witness box hence failure thereof must have been taken as is permissible by Article 129(g) of Order particularly when the prosecution never parted with status of these witnesses as ‘star witnesses’. Needless to add that permissible presumption is that with-holding evidence would be taken as that if that evidence would have been produced it (evidence) would not have supported the one legally required to produce. The benefit whereof however was not given by the learned trial Court Judge while holding the scale of ‘criminal administration of justice’ which, no doubt, revolves round the ‘benefit of doubt’ which legally allows an accused to enjoy presumption of innocent despite claim of prosecution to hold best evidences to be produced at time of trial.
12. Be as it may, since prosecution also claimed PW HC Mir Muhammad Rind to have received injuries during incident hence his evidence was led as ‘eye-witness’. It needs no much debate that ‘mere injuries on a prosecution witness, at the most, could only be indicative of his presence at the spot but are not affirmative proof of his credibility and truthfulness. (2007 SCMR 670). Non-production of evidence of private star witnesses had made it obligatory to appreciate the evidence of this witness with more caution and care. To respond properly, it would be advantageous to refer the examination-in-chief of this witness which is:
“on 09.04.2014 I was posted at P.S. Super highway Industrial Area. On that day, I alonwith ASI Amir Memon, ASI Muhammad Ibrahim Khoso, ASI Qurban Kalwar and PC Hasnain went from P.S. at 11.00 a.m. in connection with investigation of crime No.77/2014 U/s 395 PPC. At about 11.40 a.m we reached at Arisha Tower, while we were going on katcha pakka road we saw one Suzuki man was being robbed by three persons and one person was shouting to save. We then alighted from our vehicle and asked the culprits to drop the weapon but the culprits started firing upon us. We retaliated and in exchange of firing I received one bullet injury which hit on my chest. I fell down. ASI Amir Memon took me at Agha Khan Hospital. Thereafter I came to know that in that firing one culprit was expired. I remained in the hospital. The present accused was amongst those three persons and ran away from there. My statement was recorded in Hospital.
The above would show that this witness nowhere claimed to have seen the culprits under firing, being made from either side, rather claimed to have fallen down on receipt of bullet injury. It is also not claim of the witness or prosecution even that culprits, including appellant, were already known to them. Therefore, words of this witness, lasting his examination-in-chief, while fingering at appellant as one of the culprit was never safe to believe the appellant as one of the culprits. This is so, because this witness even had not participated in the identification parade though legal presumption to his extent was to presume his presence at the spot at least. Such failure on part of prosecution was also not appreciated properly by learned trial court particularly witness did not specify the period he remained in hospital. It be kept in mind that identification parade was conducted on 26.04.2014 while date of incident is ’09.4.2014’ (i.e claim of receipt of injury) hence there came nothing on record to legally justify non-participation of this witness in identification parade. The case remained pending before the learned trial court hence this witness had every opportunity to have seen the appellant during such trial as during trial no such precautions are observed which the law requires to be kept till production of an unknown arrested accused of a crime to identification parade therefore, general principle of law is that such identification has been held to be unsafe. Honourable Supreme Court of Pakistan in its Judgment in the case of Haider Ali v. State (2016 SCMR 1554) has held that:
‘In that context we have noticed the alleged victim had appeared as PW3 and before recording of her statement the petitioners and their co-accused had repeatedly appeared before the trial court not only at the time of obtaining of their remands but also at the time of distribution of copies of the statements of PW 1 and PW2. It is, thus, quite evident that the alleged victim had many opportunities to see the petitioners and their co-accused before they were statedly identified by her at the time of making of her statement before the trial court as PW3. Apart from that identification of an accused person before the trial court during the trial has generally been held by this Court to be unsafe and a reference in this ….
Be that as it may, it needs to be reiterated that where private witnesses though available with prosecution are not produced or do not support then evidence of police official alone is normally not safe to sustain conviction. Further, the words of happening of robbery; encounter with culprits and receipt of injury does not absolve the prosecution from its mandatory obligation which requires the prosecution not only to prove happening of an offence but ‘happening thereof by the one, sent as accused’ which the prosecution never established beyond shadow of doubts.
13. Be as it may, let’s examine the evidence of said witness with reference to medical evidence. In order to filter the truth behind the screen, it will be essential to reproduce the examination in chief statement / deposition of Medico Legal Officer / Dr. Sheeraz Ali (examiner of said injured) which goes to say as under:-
Examination-in-chief.
To Mr. Nooruallah Makhdoom, DDPP for the State.
On 23.10.2014 I was posted at Abbasi Shaheed Hospital as M.L.O. On the same day at about 2.0 P.M. injured Meer Muhammad son of Moton Khan, aged 45 years was brought with police letter from Super Highway with history of fire arm on 09.04.2014. The condition was conscious and oriented. Initially he was admitted in Agha Khan Hospital and brought the summery of discharge on the basis and finding I write the M.L. and noted following injuries:-
1. Healed scar present over interior chest wound.
2. Healed scar over right posterior lateral chest exist wound. During injury a development subcontinents emphycseiun with associated phemothorix chest tube incubation on the basis of summery and X-ray the final injury declared as Jara-e-Jaifa. The kind of weapon is fire arm.
I issued ML No.9884, attested copy of the same is produced as Ex.14/A. It is same and bears my signature”
Perusal of deposition of MLO/ Dr.Sheeraz Ali reveals that the injured PW Mir Muhammad had appeared before him on 23.10.2014 in healed and oriented condition but with claim to have sustained injury on 09.04.2014. Since, it was specific claim of prosecution that the injury on person of said witness was inflicted during incident therefore, it was obligatory upon the prosecution to have produced some material to substantiate that said injured did receive injury on same date which could have been established by producing material of treatment of said injured, provided to him on his reaching to hospital i.e on 09.4.2014. The witness though claimed to have remained admitted in Agha Khan hospital on 09.04.2014 but no admission slip or name of Doctor, provided first aid treatment to him, was produced nor was examined before trial court even his name has not been mentioned in the challan sheet as witness. Such non-production again shall result in presuming against such claim of the prosecution within meaning of Article 129(g) of Order which even hits at the very root of claim of such witness i.e to have received the injury during alleged incident, claimed to have happened on specific date i.e 09.4.2014.
14. Further, as per prosecution claim, the police party, including injured P.W HC Mir Muhammad Rind, had left P.S for investigation of crime No.77/2014 but not a single document either FIR of that crime or entry of their departure was placed on record so as to substantiate such claim at least. Thus, it now can safely be concluded that evidence of this witness even was not confidence inspiring hence had increased the dent in prosecution case, already caused because of failure of non-production of star witnesses of incident. Further, perusal of depositions of PW Hasnain Ali and ASI Amir Memon shows that both have even not supported the claim of injured P.W Mir Muhammad regarding leaving police station for investigation of Crime No.77/2014 and manner in which they reached at spot.
15. It is also worth to add here that mere heinousness or gruesome nature of crime should not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused. Reliance can be made to the case of Azeem Khan v. Mujahid Khan (2016 SCMR 274) wherein it is held that:
“32. It is also a well embedded principle of law and justice that no one should be construed into a crime on the basis of presumption in the absence of strong evidence of unimpeachable character and legally admissible one. Similarly mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to Judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused person being indefeasible and inalienable right of an accused. In getting influence from the nature of the crime and other extraneous consideration might lead the Judges to a patently wrong conclusion. In that event the justice would be casualty.
16. From above case, it prima facie insisted that mere heinous or gruesome nature of crime in, no way, should influence the Court (s) in favour of the prosecution nor should result in relaxing prosecution from its mandatory duty to prove the charge through unimpeachable evidence which too beyond shadow of doubt, which, the so for discussion, permits us to say that prosecution didn’t, therefore, it can safely be concluded that failure of prosecution to establish its case through direct evidence (ocular one) was / is sufficient to extend the benefit of the doubt because in law the accused is not required to prove the case of prosecution as false but has to show reasonable doubts because the burden remains on prosecution as was held in the case of Abdul Majeed v. The State (2011 SCMR 941) as:
7. The basic principle of criminal law is that it is the burden of the prosecution to prove its case against the accused beyond reasonable doubt. This burden remains throughout and does not shift to the accused, who is only burdened to prove a defence plea, if he takes one. “
Therefore, examination of other pieces of evidence would not change the legal position which insists that for giving a benefit of doubt it is not necessary that there should be many circumstances, creating doubt but a single reasonable doubt is sufficient for acquittal of accused. Reference can well be made to the case, reported as 2009 SCMR 230 wherein it is held that:
For giving benefit of doubt of a doubt it is not necessary that there should be many circumstances, creating doubts. Single circumstance, creating reasonable doubt in a prudent in mind about the guilt of accused makes him entitled to its benefit not as a matter of grace and concession but as a matter of right.
17. In consequence of what has been discussed above, it can safely be concluded that prosecution miserably failed to prove its case against the appellant hence the impugned judgment dated 26.08.2015 is not based upon sound footings, therefore, is not sustainable. Consequently the appeal filed by appellant Pirzada @ Peer is allowed. The impugned Judgment dated 26.08.2015 \is hereby set-aside. The above are the reasons for our short order dated 27.10.2016, which reads as under:-
““For the reasons to be recorded later on, instant appeal stands allowed. Consequently, sentence awarded to the appellant through impugned Judgment dated 26.08.2015 is set-aside and is acquitted of the charge. Let appellant be released forthwith if not required in any other case”
Appeal allowed.
JUDGE
JUDGE
Dated: ______________