HIGH COURT OF SINDH AT KARACHI

Special Anti-Terrorism Acquittal Appeal No.03 of 2007

Present:

Mr. Justice Khadim Hussain M. Shaikh

Mr. Justice Amjad Ali Sahito

Appellant : The State through Advocate General, Sindh

Karachi.

Respondents : (1). Muhammad Ajmal alias Akram Lahori,

(2). Muhammad Azam alias Shareef &

(3). Attaullah alias Qasim.

Date of hearing : 16.02.2018

Date of decision : 20.02.2018

J U D G M E N T

AMJAD ALI SAHITO, J.– Respondents namely Muhammad Ajmal alias Akram Lahori, Muhammad Azam alias Shareef and Attaullah alias Qasim were tried and acquitted through the impugned judgment dated 17.01.2007, by the learned Judge, Anti-Terrorism Court No.V, Karachi, in Special Case No.35 of 2002, arising out of Crime No.87 of 2002, for offence punishable under Sections 302,324,34 PPC read with Section 7 of Anti-Terrorism Act, 1997, registered at Police Station, Rizvia Society, Karachi Central.

2. As per prosecution case, on 25.05.2002, at 2245 hours, complainant Gul Zaman lodged FIR with P.S Rizvia Society Karachi Central, in which he mentioned that since last 22/23 years he is working as employee with Agha Abbas, who is owner of shop i.e. Agha Juice Centre at Nazimabad No.01, Karachi. On the eventful day, he was present at said shop and was cleaning the glasses while Aga Abbas being the owner of said shop was also busy at counter, whereas, the other employees namely Jawad Ali, Irfan, Muhammad Younus and Rafique were also busy in their respective works. At about 08:00 p.m, the firing started inside the shop whereupon he noticed three young persons aged about 26/27 years, wearing Shalwar Kameez, out of them two were having short beard, one was clean shaved, started firing with pistols. Due to such firing, Aga Abbas sustained bullet injury and fell down. The complainant also received a bullet injury in his left hand and another bullet crossed by touching his chest from his left side and thereafter the accused fled away. The employees of Agha Juice Centre, shifted Agha Abbas to Zainul Abideen Hospital, Karachi and then was shifted to Abbasi Shaheed Hospital, Karachi, where he succumbed to the injuries and died while Gul Zaman was shifted to Zainul Abideen Hospital for further treatment. Thereafter, the statement of complainant under Section 154 Cr.PC was recorded by the investigating officer at the Hospital, which was incorporated into FIR book.

3. That after usual investigation, challan was submitted under Section 173 Cr.PC against the accused under above referred sections.

4. The learned Trial Court framed the Charge against the respondents/accused at Ex.4 to which they pleaded not guilty and claimed to be tried.

5. At trial, prosecution examined the following witnesses:-

(i) PW-1 Javed Ali at Ex.8;

(ii) PW-2 Driver Faiz Ahmed at Ex.9;

(iii) PW-3 SIP Abdul Sattar at Ex.10;

(iv) PW-4 ASI Azeemuddin at Ex.11;

(v) PW-5 Ali Asghar Aga at Ex.12;

(vi) PW-6 ASI Muhammad Atique at Ex.13;

(vii) PW-7 Dr. P.Jessarani at Ex.14;

(viii) CW-1 SHO Asim Rehman at Ex.15;

(ix) PW-8 Mrs. Farzana Mushtaq, learned J.M. VIII Central at Ex.16;

(x) PW-9 RMO/Dr. Maqbool Jameel (Zainul Abideen Hospital) at Ex.17;

(xi) PW-10 DSP Aamir Hameed at Ex.18;

(xii) PW-11 Inspector Eijaz Awan at Ex.19;

(xiii) PW Muhammad Munir was given up vide statement at Ex.20;

(xiv) PW-12 Naib Hussain at Ex.21;

(xv) PW-13 Ali Asar Zaidi at Ex.22;

(xvi) PW-14 I.O./Aashiq Ali Hyderi at Ex.24.

6. Statements of the respondents/accused Muhammad Ajmal alias Akram Lahori, Attaullah and Muhammad Azam were recorded under Section 342 Cr.PC at Exh.35 to 37 respectively, in which they denied the prosecution allegations and further stated that they are innocent. Respondent/accused Muhammad Ajmal alias Akram Lahori in his statement produced news clippings of daily newspaper(s) Ummat, Din and Insaaf dated 02.07.2002 and stated that he was already seen by the witnesses, therefore his identification parade has lost its sanctity. However, none of them examined themselves on Oath, nor produced any witness in their defense.

7. The learned Trial Court after hearing the parties counsel and appraisal of the evidence acquitted the respondents as stated above, which has been impugned by the State through instant acquittal appeal.

8. It is revealed from the record that at the time of hearing of this Special Criminal Anti-Terrorism Appeal No.03 of 2007, a report was called on 03.02.2015 in pursuance of the death warrants issued by the Anti-Terrorism Court No-IV, Karachi, in some other cases against respondents Muhammad Azam alias Shareef and Attaullah alias Qasim and the same have already been executed at Central Prison, Karachi. Hence, the proceedings against them stood abated in tagged appeals bearing Special Anti-Terrorism Appeal No.6 of 2007, Confirmation Case No.2 of 2007, Special Anti-Terrorism Appeal No.2 of 2007 and Special Anti-Terrorism Jail Appeal No.7 of 2007, as the same is reflected from the order dated 16.04.2015 passed in said appeals. Since, Special Anti-Terrorism Appeal No.3 of 2007 was filed against the judgment dated 17.01.2007 while appeal of two respondents namely Muhammad Azam alias Shareef and Ataullah alias Qasim were ordered to be abated. Hence, the learned Deputy Prosecutor General, Sindh, pressed the instant acquittal appeal against appellant Muhammad Ajmal alias Akram Lahori son of Muhammad Sharif.

9. Mr. Ali Haider Saleem, learned Deputy Prosecutor General, Sindh contended that the judgment passed by the learned trial Court is perverse and the reasons recorded by learned trial Court are artificial and without appreciating the evidence; that the grounds on which the learned trial Court proceeded to acquit the respondents are not supportable from evidence on record; that respondents have been acquitted on the basis of evidence of prosecution witnesses namely Naib Hussain and Ali Asar Zaidi, whose evidence is confident inspiring and the attitude of both the witnesses is not shaky. He further contended that the respondents have directly been charged and that the discrepancies in the statements of witnesses are not so material on the basis of which respondents could be acquitted. He further contended that the learned trial Court has recorded acquittal of the respondents/accused merely on the basis of minor contradictions in the statements of the prosecution witnesses, which have not been properly appreciated. Therefore, under these circumstances, the respondents/accused are liable to be dealt in accordance with law and lastly prayed for allowing of instant appeal.

10. We have heard the learned Deputy Prosecutor General, Sindh and have gone through the evidence with his assistance as well as the impugned judgment.

11. Learned Deputy Prosecutor General, Sindh agreed that the criteria of interference in judgment against the acquittal is not the same as against the cases involving a conviction. Scope of interference in appeal against acquittal is narrow and limited for the reasons that in an acquittal, the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence that an accused shall be presumed to be innocent until proved guilty. In other words, presumption of innocence is doubled. It is settled principle of law that the Courts are very slow in interfering with such acquittal judgment unless it is shown to be perverse, passed in violation of law, suffering from errors of grave misreading or non-reading of evidence. Such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence, which the accused has earned and attained on account of acquittal. In number of dictums laid down by the Hon’ble Supreme Court of Pakistan, it has categorically been laid down that such judgment should not be interjected unless the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous.

12. We are fully satisfied with appraisal of the evidence adduced by the learned trial Court and we are of the view that while evaluating the evidence, the difference is to be maintained in the appeal from conviction and acquittal appeal and in the latter case, interference is to be made only when there is gross misreading of the evidence resulting in miscarriage of justice.

13. As per prosecution story, the star witnesses of the case are complainant Gul Zaman, PW-01 Javed Ali, PW-12 Naib Hussain and PW-13 Ali Asar Zaidi. PW Gul Zaman who is complainant so also injured witness in this case, but the prosecution has failed to produce the said witness in support of its case, therefore, only three witnesses i.e. PW Javed Ali, PW Naib Hussain and PW Ali Asar Zaidi were remaining for the prosecution to prove its case. It is quite strange that prosecution has produced only one employee namely Javed Ali of Agha Juice Shop, who was present at the time of incident along with other employees who in his examination in chief deposed that he alongwith other employees was present behind the counter and was busy in cleaning the mangoes, heard 2/3 fire shots and deceased Agha Abbas was sitting at the counter, while Gul Zaman was present adjacent to the counter. There is a wall behind the counter, they were present in the portion inside the wall, due to fear, they kept themselves hidden at their place and they heard noise and came at the counter, where they saw that deceased Agha Abbas had received fire injuries, while Gul Zaman had also received fire injury on his body, hence, he has neither identified any of the accused in the Court nor assigned any specific role in the present case. Further, it was stated by him that the injured was shifted to Zain-ul-Abideen hospital, by driver Faiz Ahmed and other people, while PW Javed was also accompanied with them but deceased Agha Abbas succumbed to injuries on way to Abbasi Shaheed Hospital, where DIG Karachi with DSP concerned including other police officials arrived there and SIP Ashiq Ali recorded statements of complainant Gul Zaman and thereafter completed all the formalities. On the very same day, SIP Ashiq Ali visited the place of vardat on the pointation of PW Javed Ali and after completing the formalities by collecting the empties, blood stained earth, broken glasses and then prepared such mashirnama in presence of the mashirs. In his cross examination, he admitted that the police had inspected the place of vardat at 11.00 p.m, on the same day, at that time about 60/70 persons were present at Juice Shop, while the police party was comprising of 20/25 persons, the memo of place of incident was written by SIP Ashiq Ali. Further, the trial Court during cross examination put certain questions in order to clarify the position to which PW Javed Ali replied that “it is correct that at the time of inspection of vardat on my pointation, Irfan, Muhammad Younis and Rafiq were present at the juice shop. It is correct that the police had made enquiry from Irfan, Muhammad Younis and Rafiq Ahmed. It is correct that I alongwith Irfan, Muhammad Younis and Rafiq were asked by police to appear in Court for identification of the accused, but we did not attend the Court, as we had not seen the accused at the time of incident”. Looking to the above evidence, only two persons namely PW Naib Hussain and PW Ali Asar Zaidi were left by the prosecution to prove the case against the respondents. Whereas PW Naib Hussain while adducing his evidence deposed that on the eventful day, he was present at Agha Juice Shop and ordered to take juice, but in the meanwhile, the incident took place and the injured were shifted to hospital in two Suzuki Carries after the firing and he remained at Agha Juice Centre for about 15/20 minutes, after the incident, the police reached there and collected the evidence and directed him to remain present there and at about 11.00 p.m, I.O of the case recorded his statement, thereafter he went away and on 4.7.2002, he identified the accused persons but during course of identification parade he identified all three accused persons but did not disclose their role. In his cross examination, he admitted that where he was sitting, there was road between Agha Juice Centre and even he did not remember whether other shops were closed or not. In cross examination, he admitted that he knew PW Ali Asar as he came twice or thrice in the Court. Further, at the time of firing, he was looking to the shop and remained sitting on the chair after the firing he reached at the shop within time when the owner of the shop was died. In cross examination, he further admitted that in his 164 Cr.PC statement he did not mention regarding Huliya as well as role of accused persons. His statement was recorded after the incident within 15/20 minutes when the police reached there. The prosecution in order to strength its case examined PW Ali Asar who in his evidence deposed that at the time of incident, he was drinking juice and saw three persons alighting from the motorcycle who fired upon owner of Agha Juice and his employees, whereupon both had sustained injuries and were shifted to hospital, meanwhile the police mobile came there and enquired about the incident, thereafter, he and other people informed the police about the incident and the said police official directed them to remain present as I.O will come and record their statements. At about 11.00 p.m, I.O came there and recorded their statements. On 04.07.2002, PW Ali Asar identified the accused in Court. In his cross examination, he stated that oftenly he came at Agha Juice Shop to take juice, he is also labourer and his statement was recorded by S.I Ashiq Ali Hyderi while sitting at footpath, so many shops there were closed, the width of the road in front of Agha shop is about 10 feet. At the time of firing, he had hidden himself under the table, few people fled away from there, the firing continued about one minute, within 10/15 minutes after the incident police reached at the spot. He did not participate in Nimaz-e-Janaza nor had visited Agha Juice Shop after the incident. He further admitted in his cross examination that it is fact that neither he had stated in 161 Cr.PC statement nor in 164 Cr.PC statement that police came at the spot and he informed him regarding the incident and they asked him to sit there as I.O will come and record his statement. He also admitted that it is fact that in identification parade he had not given the role of the accused persons.

14. 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 respondents/accused and from the evidence if it comes to the conclusion that the charges so imputed against the respondents/accused have not been proved beyond reasonable doubt, then the respondents/accused become entitle to their acquittal. The way and manner, PWs Naib Hussain and Ali Asar have revealed the story of the crime that they were not employee at Agha Juice Shop but were chance witnesses 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, 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. PW Naib Hussain was working as labourer and resided at Shadman Town, Karachi while PW Ali Asar was working as stall keeper and resided at Buffer Town, Karachi, whereas the incident is said to have taken place at Agha Juice Centre, Nazimabad No.01, Karachi, and both of the eye-witnesses were not resident of same locality. The reliance in this context 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”.

15. On 04.07.2002, the identification parade of the accused was conducted through PW Naib Hussain and PW Ali Asar. It is pertinent to mention here that both of them 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 upon 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”.

16. On careful perusal of the evidence of above said eye witnesses, it would reveal that none of them has supported to each other on any material aspect of the case and thus their testimony was not only carrying contradictions but was fully pregnant with improbabilities, which has shattered the veracity of their evidence. For the stance, PW Javed Ali who was said to be serving at Juice
Centre in his evidence deposed that the place of incident was shown by him to police in presence of mashirs and at that time eye witnesses namely Irfan, Muhammad Younis and Rafiq were accompanied with him but his version is contradicted by PW Naib Hussain and PW Ali Asar, who deposed that their statements were recorded by the police wherein they did not disclose the presence of PWs Javed Ali, Irfan, Muhammad Younis and Rafiq Ahmed and both of them also made improvements as and when suited to them, they also did not disclose the Huliya as well as the role of accused in their statements recorded under section 164 Cr.PC as well as identification parade before learned Magistrate. This conduct of making such improvements has redundant them absolutely unreliable witnesses, who have no respect for truth and/or capable telling lie and changing their statements as and when suited to them. The reliance in this regard 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”.

17. Thus, the evidence of both the eye-witnesses namely Naib Hussain and Ali Asar Zaidi was rightly disbelieved by the learned trial Court while recording impugned judgment, as their evidence was not confidence inspiring and trustworthy. It is settled principle of law that Courts will be very slow in interfering with an acquittal judgment unless it is shown to be perverse, passed in violation of law, suffering from errors of grave misreading or non-reading of evidence. Such judgments should not be lightly interfered and heavy burden lies upon the prosecution to rebut the presumption of innocence, which the accused has earned and attained on account of acquittal. In view of the dictum laid down by the Hon’ble Supreme Court of Pakistan, such judgment should not be interjected unless the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. We are not inclined to interfere simply for the reason that on the appraisal of evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset except it is palpably perverse, suffering from serious and material factual infirmities. In the case of Muhammad Zafar and another v. Rustam and others (2017 SCMR 1639), the Hon’ble Supreme Court of Pakistan has held that:-

“We have examined the record and the reasons recorded by the learned appellate court for acquittal of respondent No.2 and for not interfering with the acquittal of respondents Nos.3 to 5 are borne out from the record. No misreading of evidence could be pointed out by the learned counsel for the complainant/ appellant and learned Additional Prosecutor General for the State, which would have resulted into grave miscarriage of justice. The learned courts below have given valid and convincing reasons for the acquittal of respondents Nos.2 to 5 which reasons have not been found by us to be arbitrary, capricious or fanciful warranting interference by this Court. Even otherwise this Court is always slow in interfering in the acquittal of accused because it is well settled law that in criminal trial every person is innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption doubles. As a sequel of the above discussion, this appeal is without any merit and the same is hereby dismissed.”

18. In view of above, we are satisfied with the appreciation of evidence evaluated by the learned Judge, Anti-Terrorism Court No.V, Karachi, while passing the impugned judgment dated 17.01.2017, which is based on sound reasons having been assigned by the learned trial Court while recording the acquittal of the accused, hence it does not call for any interference by this Court. Consequently, the instant appeal merits no consideration and is dismissed accordingly.

19. These are the detailed reasons of the short order announced by us vide order dated 20.02.2018, which reads as follows:-

“20.02.2018.

For the reasons to follow, the instant Special Anti-Terrorism Acquittal Appeal filed against the impugned judgment dated 17.01.2007, passed in Special Case No.35 of 2002 to the extent of appellant Muhammad Ajmal @ Akram Lahori, is dismissed and whereas proceedings against respondents Muhammad Azam @ Shareef and Attaullah @ Qasim, stand abated for both of them have already been executed at Central Prison, Karachi on 03.02.2015 in pursuance of the death warrants issued by the Anti-Terrorism Court-IV Karachi in some other cases, and the proceedings against them stood abated in tagged appeals numbers Spl.ATA No.06 of 2007, Confirmation Case No.02 of 2007, Spl. AT Acq. Appeal No.02 of 2007 and Spl.A.T.Jail Appeal No.07 of 2007, due to the above reason, as is reflected from the order dated 16.04.2015, passed in the said appeals.”

J U D G E