THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Acquittal Appeal No.22 of 2010

 

                        Present:         

                                            Mr. Justice Naimatullah Phulpoto

                                            Mr. Justice Mohammad Karim Khan Agha

 

Appellant:                             The State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh. 

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Respondent:                          Kamran alias Kami son of Muhammad Yousuf and Muhammad Farhan alias Goal alias Shani son of Faqir Muhammad through Mr. Abdul Razzak, Advocate

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Date of hearing:                    19.10.2018

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Date of announcement:       29.10.2018

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J U D G M E N T

 

NAIMATULLAH PHULPOTO, J.- Kamran alias Kami and Muhammad Farhan alias Goal alias Shani, appellants, were tried by learned Judge, Anti-Terrorism Court-I, Karachi in Special Cases Nos.43/2006 and 23/2009. Vide judgment dated 27.03.2010, respondents/accused were acquitted of the charges in the cases. Hence, the State has filed instant Criminal Acquittal Appeal against the respondents/accused.

 

2.                  According to the case of prosecution, on 19.09.2006 at 0300 hours, complainant Muhammad Jameel lodged FIR at P.S. Saudabad, in which he stated that he was employee of PTCL and was residing in House No.PS-14/10, Malir Extension Colony, Karachi; his elder brother Muhammad Wakeel was residing along with his family in House No.H-95/5, Nishtar Square, Malir Colony, Karachi, working as police constable and posted at P.S. Khokhrapar, where he was performing intelligence duty. It is alleged that on 18.09.2006 at 2045 hours, he along with his friend Syed Zahid son of Haseeb Ali Zaidi were murdered by unknown culprits. Both dead bodies were referred to Jinnah Hospital by police for postmortem examination. Complainant on receipt of such information, along with Muhammad Ali son of Muhammad Israfeel rushed to Jinnah Hospital, where he saw the dead bodies of his brother Muhammad Wakeel and Syed Zahid lying in mortuary. SIP Rawail Khan Khattak prepared inquest report under section 174 Cr.PC. After postmortem, dead bodies were handed over to him for funeral purpose. Complainant further disclosed that unknown culprit without any reason had made firing upon his brother Muhammad Wakeel and his friend Syed Zahid with firearms at/near Shadiana Hall, Main Mufti Naeemi Road, Malir Colony, Karachi. FIR of the incident was lodged on 19.09.2006 vide Crime No.95/2006 at P.S. Saudabad, Karachi under sections 302/34, PPC read with section 7(a) of the Anti-Terrorism Act, 1997.

3.                  Investigation of the case was entrusted to Incharge Investigation Inspector Shaukat Ali, who inspected the place of incident on the pointation of complainant and secured empty shells, blood stained earth and mobile phone and took into possession motorcycle of deceased and prepared such memo, IO recorded 161, Cr.PC statements of the PWs. IO got prepared sketches of accused through eyewitness from CPLC Malir and started search of accused. Due to illness of IO, investigation of the case was entrusted to SIP Abdul Rauf. During investigation, IO came to know that accused Muhammad Kamran alias Kami son of Muhammad Yousuf and Muhammad Farhan alias Goal alias Shani son of Faqir Muhammad have been arrested by CID Napier Police in Crime No.190, 2006, under sections 353, 324, 34, PPC and Crimes Nos.191 and 192 of 2006 under section 13(d) of the Pakistan Arms Ordinance, 1965; during interrogation, they admitted commission of offence of other police stations of Karachi so also offence of this case. On such information, on 20.10.2006, IO went to PS CID Napier and after interrogation, he arrested both the accused in this case and in 2 other Crimes No.88, under section 302/34, PPC read with section 7 of the Anti-Terrorism Act, 1997 and Crime No.62/2006 under sections 302, 34, PPC read with section 7 of the Anti-Terrorism Act, 1997, of the same police station. IO obtained police custody remand of accused. However, during interrogation, on 26.10.2006 both accused admitted the commission of offence of Crime No.110/2006 under section 302/34, PPC and pointed out the place of incident. They further disclosed that weapons and motorcycle used in this crime have been recovered by CID police at the time of their arrest, in Crime No.190/2006. IO obtained photo fingerprints of both the accused. On 02.11.2006, IO produced both the accused before the Judicial Magistrate for identification parade, where witnesses identified both the accused. Thereafter, both accused were remanded to jail custody. On 07.11.2006 empty shells, which were secured from the place of incident and sent to FSL, for examination and blood stained clothes of both the deceased were sent to chemical examiner for examination and report. On completion of investigation, IO submitted challan against both the accused under the above referred sections.

4.                  Trial court framed charge against both the accused under the above referred sections at Ex.4. Both accused pleaded not guilty and claimed to be tried.

5.                  At trial, prosecution examined PW-1 complainant Muhammad Jameel at Ex.7, PW-2 HC Khalid Riaz at Ex.8, PW-3, Muhammad Slalahuddin at Ex.9, PW-4 SIP Abdul Sattar at Ex.10, PW-5, SIP Sajjad Khan at Ex.11, PW-6 SIP Shaukat Ali at Ex.12, PW-7, Mr. Maqbool Ahmed Memon, Civil Judge & Judicial Magistrate at Ex.13, PD-8 Dr. Abdul Razzak at Ex.14, PW-9 Dr. Pardeep Kumar, PW-10 Arif Khan at Ex.16, PW-11 Muhammad Hussain at Ex.17, PW-12 Abdul Rauf at Ex.19. Thereafter, prosecution side was closed vide statement dated 13.01.2010 at Ex.20.

6.                  Trial court recorded statement of accused under section 342, Cr.PC at Ex.21 and Ex.22, in which accused claimed false implication in this case and denied the prosecution allegations. Both accused declined to give statement on oath. They also did not lead any evidence in disproof of prosecution allegations.

7.                  Trial court after hearing the learned counsel for the parties and assessment of the evidence available on record, vide judgment dated 27.03.2010, recorded acquittal of the accused/respondents, hence this acquittal appeal is filed by State.

8.                  Mr. Muhammad Iqbal Awan, learned D.P.G. argued that trial court has failed to appreciate the evidence of eyewitnesses Arif Khan and Muhammad Hussain, who have fully supported the case of the prosecution and identified the accused in identification parade; that trial court had failed to appreciate the fact that respondents are habitual offenders, several cases are pending against them and respondent No.1 Kamran alias Kami is a previous convict; that respondents voluntarily led the police party to place of incident in presence of witnesses and weapon recovered from the accused matched with the empty shells secured from the place of incident. Lastly, argued that prosecution witnesses had no enmity with the respondents/accused to falsely implicate them in a murder case and prayed for converting the acquittal, to conviction.

 

9.                  Mr. Abdul Razzak, learned counsel for the respondents, argued that evidence of both the eyewitnesses was not reliable as they were involved in criminal cases; there are major contradictions in their evidence as observed by the trial court. He further argued that learned trial court has rightly rejected the evidence of eye-witnesses Abdul Rauf and Muhammad Hussain as both witnesses could not explain their presence at the place of occurrence. He prayed for dismissal of the acquittal appeal.

10.              After hearing learned counsel for the parties, we have carefully gone through the entire evidence and impugned judgment, particularly the reasons recorded by trial court for acquittal. It appears that trial court has acquitted the Respondents/accused, vide judgment dated 14.11.2012, mainly for the following reasons:

 

“I have gone through the evidence led by the prosecution on record and also considered the arguments of learned SPP for the State and defence counsel. There are major discrepancies and contradictions in the evidence of prosecution witnesses. The credibility of two important/star witnesses examined by the prosecution namely Arif Khan and Muhammad Hussain and they are eyewitnesses of alleged incident is highly doubtful and untrustworthy, at the time of identification parade accused made complaint to learned Magistrate that they had been shown to the witnesses at police station prior to the identification parade, but learned Judicial Magistrate did not verify this version from the witnesses. According to prosecution version they were present at the place of incident at the time of incident but their version in their statements is contradictory to each other and they have not given specific roles of accused in their evidence, even their presence at the spot is highly doubtful. Material discrepancies appear in the statements of prosecution witnesses as they have contradicted each other on material particulars of the case. It has been also observed that eyewitnesses Arif Khan was Ex-police official, he was posted at P.S. Saudabad and he was involved in a murder case registered at P.S. Saudabad so also in other criminal cases and he was also terminated from his police service and he denied that he did not know the mother of accused Kamran, but on production of his photograph snapped with mother of accused Kamran, he admitted above facts during his cross-examination, he also admitted in his cross-examination that he did not see witness Muhammad Hussain at the alleged place of incident on 18.09.2006, therefore, he has lost the credibility of his evidence, while other eyewitnesses Muhammad Hussain who was also having criminal record and such FIR No.153/2009 under section 5-A Gambling Act also registered at P.S. Khokhrapar against him, but he denied the same facts in his cross-examination, but when certified copies of the above FIR and other relevant documents were produced by learned defence counsel, he admitted the same, as such he has lost the credibility of his evidence. Law requires that prosecution is duty bound to prove its case beyond any reasonable doubt, and if any single and slightest doubt is created, benefit of the same must go to the accused and it is sufficient to discredit prosecution story. Despite presence of the independent persons of the vicinity at vardat at the relevant time, no one was examined as witness in the case to support the case of the prosecution on the factum of incident. All such circumstances have rendered the case of prosecution as doubtful. Proof of guilt of an accused cannot be based upon probabilities how highsoever the same may be. Finding of guilt in each criminal case should be based upon unimpeachable evidence on record. Prosecution must affirmatively prove the circumstances under which the act was committed. Such burden never shifts to defence. In failure of discharge of such burden by the prosecution, the golden rule of benefit of doubt to the accused comes into play.          Conviction must be based on impeachable evidence and certainty of guilt   and any doubt arising in the prosecution case must be resolved in favour       of the accused. Contradiction made by prosecution witnesses in the identification parade, is evidence of the fact that neither they were present     at the place of incident nor they had seen the incident and they appear to have been setup by the prosecution to act as eyewitness. Identification test is a very weak piece of evidence and any doubtful circumstance may wholly damage its evidentiary value. Eyewitness account of incident furnished by prosecution witnesses being interested, discrepant, unreliable, inconsistent, untrustworthy, inspired no confidence. Evidence adduced by prosecution has never been subjected to legal scrutiny, prosecution, in circumstances, has failed to bring home guilt to accused beyond reasonable doubt. The evidence of identification parade is not the sole criteria to prove the case against unknown assailants. It is well settled that prosecution has to prove charge against them if the identity of accused is sufficiently proved by other convincing evidence i.e. direct or circumstantial evidence. Recovery is a corroborative piece of evidence which by itself is not sufficient to convict accused.it is also held in 2005 YLR 128 that when an accused is charged with an offence, entire onus has to be discharged by prosecution and it is obligatory that offence should be proved beyond any reasonable doubt. It is also held in PLD 2008 Lahore 268 that numerous infirmities are not necessary, only one infirmity impeaches the credibility of the witness making the entire statement doubtful. It is also held in 2007 YLR 723 that doubt however slight it might be is to be given to accused. After reliance on the above citations and there are major contradictions found in the statements of prosecution witnesses, the prosecution has miserably failed to establish the charge against both the accused. Therefore, this point is decided as not proved.”

 

11.              In the present case, PWs Arif Khan and Muhammad Hussain claimed to be the eye witnesses of the incident. They failed to establish their presence at place of incident and their evidence suffered from multiple discrepancies. PW-10 Arif Khan has deposed that on 18.09.2006 at about 08:00 or 08:30 p.m. he was returning from Jinnah Square, Mufti Naeemi Road and saw two persons coming from Urdu Nagar side and fired upon deceased persons who were going on motorcycle. PW Muhammad Hussain has also deposed that on 18.09.2006 at 08:30 p.m. after purchase of gold articles, he was returning back and when reached at Mufti Naeemi Road, two motorcycles appeared, two persons on each motorcycle. Suddenly, persons sitting on a motorcycle fired upon two persons, sitting on another motorcycle, who sustained injuries and fell down and he witnessed the incident. People of the area gathered at the time of incident. Due to fear he went to his house. PW Arif in his cross-examination was confronted to the fact that he was serving in Police Department and he was dismissed from service. He further admitted about his photograph with the mother of accused Kamran, which reflected that he knew accused Kamran before the incident. It is the matter of record that it was nighttime incident, source of light has not been disclosed. Trial court, for valid and sound reasons, has rejected the ocular evidence. Identification parade of the accused was also defective for the reason that accused had raised plea that PWs/eyewitnesses had seen them at police station before identification parade. Contention of the leaned D.P.G. that identification parade before the trial court was sufficient but we are unable to agree with his contention for the reason that in the peculiar circumstances of the case, PWs had several opportunities to see the accused persons. As such, identification before trial court was unsafe as held by the Honourable Supreme Court in the case of  JAVED KHAN alias BACHA and another versus The STATE (2017 SCMR 524). Relevant portion is reproduced as under:-

 

“9.         As regards the identification of the appellants before the trial court by Nasir Mehboob (PW-5), Subedar Mehmood Ahmed Khan (PW-6) and Idrees Muhammad (PW-7) that too will not assist the Prosecution because these witnesses had a number of opportunities to see them before their statements were recorded. In State v Farman (PLD 1985 SC 1), the majority judgment of which was authored by Ajmal Mian J, the learned judge had held that an identification parade was necessary when the witness only had a fleeting glimpse of an accused who was a stranger as compared to an accused who the witness had previously met a number of times (page 25V). The same principle was followed in the unanimous judgment of this Court, delivered by Nasir Aslam Zahid J, in the case of Muneer Ahmad v State (1998 SCMR 752), in which case the abductee had remained with the abductors for some time and on several occasions had seen their faces. In the present type of case the culprits were required to be identified through proper identification proceedings, however, the manner in which the identification proceedings were conducted raise serious doubts (as noted above) on the credibility of the process. The identification of the appellants in court by eye-witnesses who had seen the culprits fleetingly once would be inconsequential.

 

12.              In the case of the State versus Government Sindh through Advocate General Sindh, Karachi versus Sobharo (1993 SCMR 585) Honourable Supreme Court has laid down the principle that in the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal. Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice. Relevant portion is reproduced as under:-

 

“14.   We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice. Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed.”

 

13.              In the present case, prosecution failed to prove its case against the respondents beyond any reasonable doubt. Judgment of trial court is well reasoned. Findings of acquittal can only be upset if the same are found to be perverse, arbitrary, foolish or based on misreading or non-appraisal of the evidence.

 

14.              For what has been discussed above, we are of the considered view that impugned judgment dated 27.03.2010 is based upon valid and sound reasons and is entirely in consonance with the law laid down by the Honourable Supreme Court of Pakistan. Neither, there is any misreading, nor non-reading of material evidence or misconstruction of facts and law. Resultantly, the appeal is without merit and the same is dismissed.       

 

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Gulsher/PS