HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No.06 of 2010

Present: Mr. Justice Khadim Hussain M. Shaikh

Mr. Justice Amjad Ali Sahito

Appellants : (01). Kamran alias Kami alias Kamoo

son of Muhammad Yousif.

(02). Farhan Ahmed alias Chhota

son of Zaheer Ahmed Hashmi.

Through Mr.Abdul Razzak, Advocate.

State : Through Mr.Ali Haider Saleem,

Deputy Prosecutor General, Sindh.

Dates of hearing : 22.02.2018, 28.02.2018 & 01.03.2018.

Date of Judgment : 01.03.2018.

J U D G M E N T

Amjad Ali Sahito, J.– Appellants, Kamran alias Kami alias Kamoo son of Muhammad Yousaf and Farhan Ahmed alias Chhotta son of Zaheer Ahmed Hashmi were tried by the learned Judge, Anti-Terrorism Court No.I, Karachi, in Special Cases No.34 of 2006 and 22 of 2009, arising out of Crime No.230 of 2006, for an offence under Sections 302/34 PPC read with Section 7(a) ATA-1997, registered at Police Station, Quaidabad, Karachi, and Crime No.639 of 2006 for an offence punishable under Section 13-D Arms Ordinance, registered at Police Station Shahrah-e-Faisal, Karachi. Through single judgment dated 29.01.2010, the both the appellants were awarded death sentence for the aforesaid offences, with fine of rupees Two Lacs each out of which 50% shall be paid to the bereaved family as required under Section 544-A Cr.PC, and in default of payment of fine, it was further ordered that both the appellants shall suffer R.I. for 02 years each. They should be hanged by neck till they are dead. Furthermore, appellant Farhan Ahmed alias Chhota Hashmi was also convicted for an offence punishable under Section 13-D Arms Ordinance, 1965, and awarded 05 years Imprisonment and fine of Rs.5,000/-, in default of payment of fine, it was further ordered that appellant Farhan Ahmed alias Chhota Hashmi shall further suffer six (6) months more. However, the benefit of Section 382-B Cr.PC was also extended to both the appellants.

2. The brief facts leading to disposal of the instant appeal are that on 29.06.2006, at about 1420 hours, ASI Muhammad Sulleman Abbasi of Investigation Branch of Police Station, Quaidabad, informed through telephone that ASI Manzoor Hussain of investigation branch of Police Station, Quaidabad, has received fire-arm at the hands of some unknown culprits at UBL Bank, Dawood Chali road, while he was coming having official uniform on a private motorcycle and was lying there in injured condition, therefore some official may be sent there for proceedings. On receipt of such information, SIP Ameer Badshah of operation branch of Police Station, Quaidabad, conveyed such information to SIP Rana Muhammad Munir, ASI Muhammad Hafeez Tanoli and other officials, whereupon, they reached at the place of incident and took the injured in official mobile, who had received bullet injury on back of his head and was crossed through and through, he succumbed the injury on the way, whose dead body was taken to Jinnah Hospital, Karachi, vide M.L.No.5137/06 and proceeding under Section 174 Cr.PC. was completed by SIP Ameer Badshah of Police Station, Quaidabad, of operation branch, who also inspected dead body of the deceased and in presence of witness SIP Rana Muhammad Munir and ASI Muhammad Sulleman Abbasi prepared memo of inspection of dead body and thereafter obtained such certificate of cause of death from Dr.Farhat Abbas as per PM No.446 and sealed the bloodstained uniform and also recorded 154 Cr.PC statement of complainant Nazar Hussain son of Ghulam Rasool, who was real brother of the deceased. The complainant disclosed in his statement under Section 154 Cr.PC that he was residing at house No.2012/A, Sector 17, Street No.2, Landhi, Quaidabad, Karachi, along with his family, while his deceased brother Manzoor Hussain(deceased) was performing his duty as ASI at Police Station, Quaidabad. On 29.06.2006, the complainant was on his duty at Chief Minister’s House, where wife of the deceased informed him that his brother had received bullet injury and had been taken to Jinnah Hospital Karachi and complainant was asked to reach there immediately. On such information, the complainant rushed to Jinnah Hospital, Karachi, where the dead body of his deceased brother was lying. The complainant on query was informed that his brother (deceased) had gone from Police Station Quaidabad to CCPO office and at about 02:00 p.m, on the way to Police Station some unknown culprits fired at him with intention to kill him at main road opposite UBL Bank Haddi Mill Landhi Industrial Area, Karachi. After completion of usual formalities, the dead body of the deceased was handed over to the complainant.

3. During course of investigation, SIP Madad Ali conducted investigation and recorded the statements of PWs under Section 161 Cr.PC and on completion of all the formalities, submitted the final report under Section 173 Cr.PC against the appellants before the competent Court of law.

4. On 03.04.2009, the charge Ex.4 was framed under Section 6 sub-section 2(a), 7(a) of Anti-Terrorism Act, 1997 read with Section 302/34 PPC against both the appellants/accused and Section 13-D of Arms Ordinance, 1965 against the appellant Farhan Ahmed @ Chhota, by the learned trial Court, to which accused pleaded not guilty and claimed to be tried.

5. At the trial, in order to establish accusation against the
appellants/accused, the prosecution examined 14 witnesses including two Court witnesses. Therefore, it is better and appropriate to reproduce the basic facts and operative part of the evidence of the following witnesses:-

(i) PW-1 ASI Nazar Hussain at Ex.7, who produced statement under Section 154 Cr.PC and receipt of superdignama of dead body at Ex.7/A and Ex.7/B;

(ii) PW-2 SIP Muhammad Munir at Ex.8, who deposed that on 29.06.2006, “I was posted as SIP in investigation branch at police station Quaidabad and received message from ASI Suleman Abbasi that near Haddi Mills, Landhi Industrial Area, some unknown persons have fired bullets on a person on head and he is lying injured there. On such information, I, ASI Hafeez Muhammad Tanoli along with other police officials proceeded to the place of vardat, where I saw that ASI Mazoor Hussain had received bullet injury on his head which was crossed through and through, and he was lying injured at the place of incident. We put injured in police mobile and took him to Jinnah Hospital while on the way, injured expired. Inspector Ameer Badshah prepared inquest report of dead body of ASI Manzoor as Ex.8/A, memo of inspection of dead body at Ex.8/B. thereafter, I along with ASI Suleman Abbasi and other police officials proceeded to place of vardat, they prepared memo of place of vardat at Ex.8/C. There on the spot one used bullet was recovered and blood stained earth was collected which was sealed. One motorcycle of deceased was taken. In cross examination, learned counsel produced photocopy of sketch duly signed by the I.O. which was kept on record at Ex.8/D”

(iii) PW-3 Abdul Jabbar Khan Yousufzai at Ex.9, who produced memo of pointation of place of incident and arrest of accused Kamran at Ex.9/A;

(iv) PW-4 Ali Sardar Yousuf Zai at Ex.10, who produced memo of pointation of place of incident shown by accused Farhan Ahmed at Ex.10/A;

(v) PW-5 ASI Muhammad Suleman Abbasi at Ex.11, who deposed that on 29.06.2006, “I was posted as ASI at Police Station Quaidabad. At about 02.10 p.m, a person whose name I do not remember came at police station and informed that a dead body of police officer is lying in front of UBL Bank. We proceeded and found that ASI Manzoor Ahmed of police station Quaidabad had sustained injuries. I informed at police station Quaidabad and from PS Quaidabad ASI Hafiz Tanoli, SIP Rana Munir Ahmed and other police officials came there. We put the injured in our mobile and took him on Jinnah Hospital but be died on the way. SIP Madad Ali was investigation officer of this crime, I took him to place of incident at 1815 hours, where on reaching I.O found one used bullet and picked blood stained earth from the place of incident and prepared such memo”.

(vi) PW-6 HC Muhammad Ishaque at Ex.12, who deposed that on 29.10.2006, “I was posted as HC at police station Quaidabad. SIP Madad Ali took me to P.S Shahrah-e-Faisal, there SIP Sajjad was sitting, who disclosed that they have arrested accused Kamran and Farhan and they have admitted about the offence committed in the jurisdiction of P.S Quaidabad. SIP Madad Ali took out the accused persons from the lockup in presence of SIP Sajjad Ali and accused Farhan admitted about the Crime No.230/2006. SIP Madad Ali arrested the accused and prepared memo of arrest, which I produce at Ex.12/A”.

(vii) PW-7 SIP Sajjad Ali at Ex.13, who deposed that on 28.10.2006, I was posted as SIP in investigation branch at P.S Shahrah-e-Faisal. On that day, accused Kamran was in police custody in Crime No.363/2006. On same day, I along with other police officials went for search of co-accused Muhammad Farhan with accused Kamran in mobile. He pointed out a person towards Mujahid Colony Bus Stop and disclosed that he is a co-accused Farhan. I along with other police party apprehended accused Farhan. I took personal search of accused in presence of SIP Muhammad Aslam and HC Ali Asghar recovered 30 bore pistol bearing No.BBP-1892 along with 3 live bullets. I prepared memo of search and arrest of accused Farhan Ahmed @ Chhota, which I produce at Ex.13/A.

(viii) PW-8 SIP Ameer Badshah at Ex.14 who deposed that on 29.06.2006, “I was posted as SIP at PS as duty officer. I received information on telephone through ASI Suleman Abbasi, Investigation Branch of P.S Quaidabad that ASI Manzoor had been hit with bullet by somebody and he is lying in front of UBL near Haddi Mill. I went to place of incident, where I came to know that person injured had been taken to Jinnah Hospital. I proceeded to Jinnah Hospital in emergency ward, there I came to know that injured had expired and on pointation of ASI Suleman, I prepared memo of inspection of dead body, inquest report which is already exhibited as Ex.8/A and Ex.8/A. I collected postmortem report and handed over the dead body to the brother of deceased Nazar Hussain. I recorded 154 Cr.PC statement of Nazar Hussain which is already exhibited at Ex.7/A and then lodged the FIR produced as Ex.14/B. I handed over FIR, 154 Cr.PC statement and other documents to the in-charge of investigation branch for further examination to SIP Madad Ali who recorded the statement u/s.161 Cr.PC. In cross examination, he admitted that I did not see used bullet at the place of incident when I reached there”.

(ix) PW-9 Mrs. Zahida Parveen Civil Judge & Judicial Magistrate-I at Malir at Ex.15, who produced request letter of I.O., notice to witness under Section 160 Cr.PC, notice to accused, memo of identification parade and copies of CNIC of witness Muhammad Younus at Ex.15/A to Ex.15/D respectively. In cross examination, the learned Magistrate admitted that it is correct that according to memo, the witness has not given the role of the accused in the crime;

(x) PW-10 Muhammad Younus at Ex.16 whose name does not find in the FIR during investigation by the prosecution as the sole eye witness deposed that on 29.06.2006, “it was 02:00 p.m, I parked my fruit Rehra near Masjid Qureshia. One police official was coming from Daud Chowrangi and reached near Haddi Mill and at same time, a scooter was coming in fast speed and reached near speed breaker when that bike reached near police official and accused person after firing went away straight, the police official after receiving bullet injury fell down near masjid, so many people gathered there including me. After sometime, police vehicle came there and put injured in the vehicle and at 05.45 p.m one police mobile came there and they inquired from shopkeeper about the incident and they also contacted me, I disclosed them the facts of incident which I saw. On 30.06.2006, I was called by police officer to identify the photographs of suspects which I could not identify. On 03.10.2006, I received notice from police for identification of suspected and identified accused persons in Court. (witness pointed out accused Kamran who was plying the motorcycle and another accused Farhan fired on police official). In cross examination, the witness admitted that it is correct that there are fruit thellas at Daud Chowrangi and Gulberg; that traffic police chowkis at the distance of about 15 paces from Haddi Mills; that trucks are available in all time in front of Falcon Cement Factory; that traffic is flowing all the time in road and not offered Zuhr prayer in the Madina Masjid; that on the day of incident I saw several riders from the road. I cannot give the Hulia of that rider; that I cannot say that the motorcycle who was chasing the first motorcycle that on left side or right side; that it is correct that I stated in my 161 Cr.PC statement that accused fired on deceased on the back side of the skull after putting the pistol thereon; that I.O. came at the place of incident 2-3 times till 5.00 p.m; that I did not disclose to police that I am eye witness of the incident till 5.00 p.m; that police did not record my statement on 30.06.2006. I do not know the names of shopkeeper or any person of that area. However, from perusal of Ex.15/D, alleged eye witness Muhammad Younus did not disclose the role of the appellants in identification parade conducted by the learned Ist Judicial Magistrate at Malir”.

(xi) PW-11 SIP Muhammad Aslam at Ex.17, who deposed that on 28.10.2006, “I was posted as SIP at P.S Shahrah-e-Faisal. On that day, at about 04.30 p.m. SIP Sajjad informed that he had to arrest accused involved in murder case. I accompanied with him to P.S Saudabad where accused Kamran was already in custody. SIP Sajjad took the custody from lockup. We were searching the co-accused. At about 08.30 p.m, we reached at bus stop Mujahid Colony, Dalmiya Road, accused Kamran pointed out one person to be co-accused of this crime. We apprehended that person and on personal search, one 30 bore pistol with 03 live bullets were recovered. He produced memo of arrest of accused Farhan Ahmed @ Chhota and recovery of ammunition at Ex.17/A. Accused Farhan and case property present in Court are same”.

(xii) PW-12 SIP Adnan Khan at Ex.18, who deposed that on 28.10.2006, I received investigation of Crime No.639/2006 under Section 13-D of Arms Ordinance. I received copy of FIR and 154 Cr.PC statement, which I produce as Ex.18/A and Ex.18/B;

(xiii) PW ASI Muhammad Hafeez Tanoli, Waqar Ahmed and Muhammad Iqbal were given up through statement filed by the learned S.P.P. at Ex.19;

(xiv) PW-13 Dr. Syed Farhat Abbas, MLO JPMC, Karachi at Ex.20, who deposed that on 29.06.2006, I was posted as MLO JPMC Karachi. On that day dead body of ASI Manzoor Hussain son of Ghulam Rasool aged about 41 years was brought by ASI Loung Khan of P.S Quaidabad. I informed P.S Quaidabad by police control H.C. Sohail vide entry No.33, then body was shifted to mortuary for conduction of autopsy. I started post-mortem at 04.00 p.m and ended at 04.50 p.m. Rigor mortis were developed. PML were not fixed. Surface wounds and injuries:

1. Lacerated penetrating wound 0.5 c.m x 0.5 c.m x margin inverted on the occipital region of the skull and wound of exit is 1 c.m x 0.5 c.m on the left face lateral to the nose, margin everted.

General Particulars:

Head: On reflecting the scalp fracture of the occipital left temporal left maxillary bone noted, brain matter found damaged.

Cause of death:

Cardio Respiratory Failure due to acute head injury, resulting from firearm weapon.

I produced ML No.5137/2006, postmortem No.446/2006, death certificate, request letter of I.O for giving cause of death at Ex.20/A to Ex.20/D respectively. In cross examination, he admitted that blackening and charring come when the injuries caused with firearms within distance of 03 feet. It is correct that blackening will come when injuries caused from near distance. It is correct that injury shown in the postmortem is not contact shot. It is correct that injury caused in this case is from the distance of more than 03 feet. It is correct that injuries caused neither on left side nor on right side but back side of head;

(xv) PW-14 I.O. SIP Madad Ali at Ex.21, who deposed that 29.06.2006, I was posted as SIP at P.S Quaidabad. I received FIR No.230/06 registered under section 302/34 PPC alongwith other papers for investigation. I proceeded for inspection of place of vardat and reached at about 1815 hours and on pointation of ASI Sulleman prepared the memo of vardat, recovered one used blood and collected blood stained earth from the place of incident, so also prepared sketch of vardat and got snapped photographs of place of incident. I enquired from public, one person who was standing on Rehri disclosed his name as Muhammad Younis and narrated facts of the incident that he saw the accused person, they fired upon ASI Manzoor near speed breaker and he can identify them and recorded his 161 Cr.PC statement. On 10.07.2006, I deposited cloth of deceased and blood stained earth in the office of chemical examiner. During the investigation, I came to know that accused Kamran alias Kami and Farhan alias Goal has been arrested by CID police and they have admitted about the murder of police official and ranger official. On 22.10.2006, accused were in police custody of P.S Saudabad. Accused were in police custody in Crime No.62/2006, u/s.302/34 PPC, 88/2006, u/s.392, 34 PPC, 302/34 PPC registered at different police stations. I got the custody of both the accused and interrogated Farhan alias Goal, he denied the allegation but accused Kamran alias Kami admitted that on 29.06.2006, he alongwith Farhan Ahmed Hashmi committed murder of ASI Manzoor. Accused Kamran alias Kami had shown the place of incident. On 22.10.2006, he was sent to lockup of P.S Saudabad. On 24.10.2006, accused Kamran provided address of co-accused Farhan Hashmi. I received information from ASI Sulleman Abbasi of P.S Quaidabad that ASI Sajjad of P.S Shahrah-e-Faisal informed that accused Farhan Ahmed Hashmi had been arrested in Crime No.639/06, u/s 13-D, 363/02 of PS Shahra-e-Faisal. I interrogated accused Farhan Ahmed, he admitted that he has committed murder of ASI Manzoor. I produce entry No.27 dated 29.06.2006, letter circulated about the incident, letter addressed to DSP Landhi Town, sketches of accused, letter addressed to incharge chemical examiner report, entry No.4 dated 22.10.2006, entry No.5 dated 22.10.2006, entry No.6 dated 22.10.2006, entry No.6 dated 23.10.2006, entry No.4 dated 24.10.2006, entry No.5 dated 24.10.2006, entry No.10 dated 29.10.2006, entry No.11 dated 29.10.2006, entry No.6 dated 29.10.2006, entry No.7 dated 29.10.2006, entry No.12 dated 29.10.2006, entry No.20 dated 29.10.2006, letter of Registrar of Anti-Terrorism Courts High Court of High Court of Sindh addressed to police Surgeon, letter regarding permission of FSL report addressed to SSP Investigation Zone-II, Karachi, age certificate of accused Farhan Ahmed, letter regarding obtaining FSL report, FSL report, letter addressed to SSP Investigation Zone-II regarding obtaining record of NIC of accused Farhan Ahmed, letter addressed to Director NADRA Malir Office at Ex.21/A to Ex.21/AC respectively. In cross examination, he admitted that I met first time with SIP Ameer Badshah, ASI Sulleman, Raja Muneer and ASI Hafeez Tanoli at PS Quaidabad at 1745 hours. All the above officers disclosed before me that they have visited the place of incident. Nobody from police officials produced used bullet before me at 1745 hours. I myself prepared sketch. I did not see any eye witness standing in photograph alongwith Rehri. When I recorded the statement of PW Muhammad Younis about 10/12 persons were present at that time. It is correct that PW Muhammad Younis has not stated in his statement about the height, color of the clothes and complexion of the accused. When I first time met with SIP Raja Muneer, SIP Ameer Badshah, SIP Hafeez Tanoli and ASI Sulleman Abbasi, they did not disclose to me that PW Muhammad Younis met with them at the place of incident and claimed to be eye witness of the incident. I came to know on 20.10.2006 that accused were in the custody of CID police. It is correct that on 31.10.2006, other I.Os had also come for identification parade of accused in their cases.

(xvi) CW-1 Dr. Hamid Ali Parhiyar Police Surgeon at Ex.22, who produced photocopy of X-Ray report at Ex.22/A;

(xvii) CW-2 Dr. Bashir Ahmed Ex-Police Surgeon at Ex.23, who produced photocopy of letter of Registrar Anti-Terrorism Courts, High Court of Sindh, Karachi regarding determination of age of accused Farhan Ahmed at Ex.23/A.

6. These witnesses were cross examined by the counsel for appellants. Thereafter, learned Special Public Prosecutor for the State closed the prosecution side vide Statement at Ex.24.

7. Statements of the appellants were recorded under Section 342 Cr.PC at Ex.25 and Ex.26 respectively, in which they denied the prosecution allegations and stated that they are innocent and lastly prayed for justice. However, the appellants did not examine themselves on Oath nor examined any witness in their defence. Thereafter, the counsel for appellants closed its’ side vide statement at Ex.27.

8. The learned Trial Court, after hearing the learned counsel for the parties, convicted and sentenced the appellants as stated above, which has been impugned by the appellants through this appeal.

9. Mr. Abdul Razzak, learned counsel for the appellants has inter-alias, contended that PW Muhammad Younus is setup witness of the prosecution, his presence at the spot is highly doubtful; that the alleged eye-witness did not disclose the role of the appellants during identification parade, as such, identification parade has no value in the eye of law; that the empty bullet has been manipulated by the police for FSL report and sent the same with unexplained delay of about four months; that the FSL report has no evidentiary value, as the empty recovered from the place of incident was sent to FSL after recovery of weapon; that the identification parade has no evidentiary value in the eye of law as the accused were already in custody of CID police and were shown to PW Muhammad Younis before identification parade. He lastly argued that the prosecution has failed to prove the case against the appellants; thus, according to him under the above mentioned facts and circumstances, the appellants are entitled for their acquittal. In support of his contention, learned counsel has relied upon the case law (1) Mst.Sughra Begum and another v. Qaiser Pervaiz and another reported as 2015 SCMR 1142; (2) Ali Sher and others v. The State reported as 2008 SCMR 707; (3) Imran Ashraf and 7 others v. The State reported as 2001 SCMR 424; (4) Mst. Daulan v. Sardara and 5 others reported as 1995 SCMR 177; (5) Dr. Khalid Moin and others v. The State reported as 2006 P.Cr.L.J. 639; (6) Muhammad Inayat v. The State reported as 1998 SCMR 1854; (7) Wahab Ali and another v. The State reported as 2010 P.Cr.L.J. 157; (8) Shafqat Mehmood and others v. The State reported as 2011 SCMR 537; (9) Muhammad Rafique v. The State reported as 2014 SCMR 1698; and (10) Mst. Askar Jan and others v. Muhammad Daud and others reported as 2010 SCMR 1604.

10. Conversely, Mr. Ali Haider Saleem, learned Deputy Prosecutor General, Sindh, for the State while supporting the impugned judgment, has argued that the prosecution has proved its case against the appellants beyond any shadow of doubt. He has further argued that PW Muhammad Younus had correctly identified both the appellants in an identification parade held before the learned Judicial Magistrate; that PW SIP Sajjad Ali on the pointation of arrested appellant Muhammad Kamran apprehended the appellant Farhan Ahmed and recovered 30 bore pistol along with magazine loaded with 3 live bullets; that PW/I.O./SIP Madad Ali inspected the place of incident and secured empty bullet and sent to FSL along with recovered T.T. pistol for FSL report, which was received in positive. Lastly, he has contended that the learned trial Court has rightly convicted and sentenced the appellants in accordance with law. In support of his contention, he relied upon the case law (1) Shaikh Muhammad Amjad v. The State reported as PLD 2003 SC 704; (2) Arab Gul v. Mir Shah Baz and another reported as 2004 P.Cr.L.J 1138; (3) Zakir Khan and others v. The State reported as 1995 SCMR 1793; and (4) Muhammad Amin v. The State reported as PLD 2006 SC 219.

11. Needles to mention here that the prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence for conviction of the appellants and from the evidence if it comes to the conclusion that the charges so imputed against the accused have not been proved beyond reasonable doubt, then the accused becomes entitle to his acquittal. In the instant case, we have scanned the prosecution evidence in depth. The way and manner, Muhammad Younis(PW-10) has painted the picture of the crime speaks a lot that he was not at all the witness of the crime. A chance witness, who claims that he was present at the crime spot on the fateful time, albeit, his presence there was sheer chance as in the ordinary course of business, the place of residence and normal course of events, he was not supported to be present on the spot but the place where he resides, carries-on business are run day today basis, it is in this context that the testimony of chance witness ordinary is not accepted unless justifiable reasons are shown to establish his presence at the crime scene of the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided that some convincing explanation appealing to the prudent mind for his presence on the crime spot, when the occurrence took place otherwise, his testimony would fall within the category of suspected evidence and cannot be accepted without pinch of salt. The evidence of Muhammad Younis(PW-10) is concerned, it is evident from his evidence that he is original resident of Landhi No.05 Karachi, and at the distance of 02/03 kilometers, he has business of selling fruit on day to day basis, in such situation, his presence on the eventful day at the venue of occurrence creates doubt, the investigation officer prepared sketch(Exh.08-D) and snapped the photographs wherein the presence of said eye witness is not mentioned, nor Rehra has been shown in the sketch or photographs. The sketch also does not show speed breaker. Moreover, the witnesses namely SIP Muhammad Muneer(PW-02), ASI Muhammad Sulleman Abbasi(PW-05), SIP Sajjad Ali(PW-07) and SIP Ameer Badshah(PW-08) after receiving the information visited the place of incident which was also subsequently inspected by the Investigation Officer accompanying SIP Muhammad Muneer and other staff but none of them disclosed that the incident was witnessed by Muhammad Younis(PW-10). The reliance is placed upon the case of Muhammad Ali vs. the State(2017 SCMR-1468), the Hon’ble Supreme Court of Pakistan has held that;-

“3. Both the said related eye witnesses were also chance witnesses as both of them lived about three miles away from the scene of the crime”.

In the case of Mst.Anwar Begum vs. Akhtar Hussain alias Kaka (2017 SCMR-1710), the Hon’ble Supreme Court of Pakistan has held that;-

“5. It is well settled by now that in order to maintain conviction of a convict on capital charge on the basis of testimony of chance witnesses the court has to be a guard and corroboration is to be sought for relying upon any such evidence. But no corroboration is available in this case as per contention of FIR”.

12. PW-14 SIP/I.O Madad Ali in his evidence has deposed that on 22.10.2006 he came to know about the arrest of appellant Kamran alias Kami in the custody of CID police, who during his interrogation allegedly admitted that he committed murder of ASI Manzoor, but the investigation officer was bound to produce the said accused before the concerned Magistrate for conducting his identification parade at the earliest, which he failed. On 28.10.2006 PW-07 SIP Sajjad Ali arrested appellant Farhan on the pointation of appellant Kamran alias Kami and then SIP/SIO Madad Ali on 29.10.2006 had shown the arrest of both the accused in the present case and then got conducted their identification parade through Muhammad Younis(PW-10) on 31.20.2006. It is pertinent to mention here that Muhammad Younis(PW-10) did not disclose the role of any of the accused in the identification parade before the concerned Magistrate. In this context, it is well settled principle of law that when no role has been assigned by the witness, then such identification parade has lost its evidentiary value in the eye of law. The reliance is placed on the case of Mehmood Ahmed and 03 others vs. the State and another(1995 SCMR-127), wherein the Hon’ble Supreme Court of Pakistan has held that;-

“8. It is quite clear from the entire evidence relating to identification parade that the accused named were not identified by their role in the crime. They were merely picked up and the role attributed to them was not stated by the witness. In such circumstances the settled law is that identification could not be relied upon and was no evidentiary value”.

13. At this juncture, we would like to refer autopsy report of deceased and statement of medical officer who conducted postmortem on the dead body of deceased ASI Manzoor, which does not reveal any charring or blackening mark on the wound on the dead body of the deceased. Similarly, the last worn clothes of the deceased were taken into possession by the I.O who did not disclose about any burning or blackening marks on said clothes. In Modi’s Medical Jurisprudence and Toxicology (21^st Edition) at page 354, it has been held that “Blackening is found, if a firearm like shot-gun is discharged from a distance of not more than 03 feet. The reliance to this context is placed upon the case of Muhammad Zaman vs. the State(2014 SCMR-749). Here, Muhammad Younis (PW-10) in his evidence has deposed that “it is correct that I have stated in my 161 Cr.PC statement that accused fired on the deceased on the back side of skull after putting the pistol there”, but Dr.Syed Farhat Abbas (PW-13) in his evidence has deposed that blackening and charring come when the injuries caused with fire-arm within the distance of three feet and injury shown in the postmortem report is not contact shot. He further deposed that “it is correct that injury shown in the postmortem report is not contact shot and injury caused in this case is from the distance of more than three feet”. This inconsistency of ocular account with medical evidence further negates the presence of Muhammad Yousif(PW-10) on the spot.

14. PW-10 Muhammad Younis before the learned trial Court has made malafide and dishonest improvements by ascribing in his deposition. This conduct of making such improvements has redundant him absolutely unreliable witness, who has no respect for truth and/or capable telling lie and changing his statement as and when it suited him. The reliance is placed upon case of Sardar Bibi and others vs. Muneer Ahmed and others (2017 SCMR-344), wherein the Hon’ble Supreme Court of Pakistan has held that;-

“2. So the improvements and omissions were made by the witnesses in order to bring the case of prosecution in line with the medical evidence. Such dishonest and deliberate improvement and omission made them unreliable and they are not trustworthy witnesses. It is held in the case of Amir Zaman v. Mahboob and others (1985 SCMR-685) that testimony of witnesses containing material improvements are not believable and trustworthy”.

15. So far as recovery of one empty of 30 bore as allegedly secured from the place of occurrence by Madad Ali SIP/I.O. Even if it be presumed that the said crime empty was in fact available at the spot and recovered by the investigation officer, it is misfortune that the said crime empty was retained in the police station for about four months which was taken by SIP Madad Ali himself along with T.T pistol to the Forensic Science Laboratory, Karachi. No explanation in this regard has been offered as to why said crime empty was not dispatched immediately to the Forensic Science Laboratory, Karachi soon after its recovery, when SIP Madad Ali himself had gone to the office of chemical examiner Karachi on 10.07.2006 carrying the blood stained earth and clothes of deceased and delivered them in the office chemical examiner. Such an unexplained delay cannot offer any corroboration to the ocular testimony, which has destroyed the evidentiary value of said piece of evidence. The reliance is placed on case of Muhammad Irshad vs. Allah Ditta and others(2017 SCMR-142), wherein the Hon’ble Supreme Court of Pakistan has held that;-

“2. The alleged recovery of weapon from the custody of respondent No.1 was legally inconsequential because admittedly the crime empties had been sent to the Forensic Science Laboratory after arrest of respondent No.1 and after recovery of the weapon from his custody”.

16. The case law relied upon by learned state counsel is distinguishable with the facts and circumstances of the case in hand.

17. In view of what has been discussed above, we are of the considered view that the prosecution has miserably failed to prove the presence of eye-witness Muhammad Younis (PW-10) at the scene of occurrence whose presence is also not supported by the other witnesses; the ocular account of the said eye-witness is conflicting with medical evidence and he has not disclosed the role of appellants during course of identification parade before the learned Magistrate having also made improvements in his evidence as and when suited to him. All these factors pointed towards the real possibility that the murder in issue has remained un-witnessed, in such situation, we are of the humble view that the prosecution has miserably failed to bring home the guilt of the appellants beyond reasonable doubt. According to golden principle of law, a single doubt would be enough for acquittal of the accused. The rule of benefit of doubt is essentially a rule of prudence which cannot be ignored while dispensing the justice in accordance with law. The reliance is placed on the case of Muhammad Akram vs. the State (2009 SCMR-230) wherein the Hon’ble Supreme Court of Pakistan has held that;-

“The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Parvez v. The State 1995 SCMR-1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as matter of right”.

18. The learned trial Court has not evaluated the evidence in its true perspective and thus reached to an erroneous conclusion by holding the appellants guilty of the offence. Consequently, the instant appeal is allowed. The conviction and sentence awarded to both the appellants are set-aside and they are acquitted of the charges by extending them benefit of doubt.

19. These are the detail reasons of short order dated 01.03.2018, announced by us, which reads as under;-

Heard arguments. For the reasons to follow, the appeal is allowed. The conviction and sentence awarded to appellants Kamran son of Muhammad Yousuf and Farhan Ahmed son of Zaheer Ahmed Hashmi vide impugned judgment dated 29.01.2010, passed by learned Anti-Terrorism Court-I, Karachi Division, in Special Case No.34 of 2006, re-State versus Kamran alias Kami alias Kamoo and another, emanating from FIR No.230 of 2006, for offence under section 7 (a) ATA of 1997 read with section 302/34 PPC, registered at Police Station, Quaidabad, Karachi, and the conviction and sentence awarded to appellant Farhan Ahmed son of Zaheer Ahmed for offence under section 13-D of Arms Ordinance, 1965 in Crime No.639 of 2006, registered at Police Station Shahrah-e-Faisal Karachi, are set aside and the appellants are acquitted of the charge. They are directed to be released forthwith in the instant case, if their custody is not required in any other case. The subject confirmation reference is answered in negative.

J U D G E