IN THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals No.213 of 2016

Special Criminal Anti-Terrorism Appeals No.214 of 2016

Special Criminal Anti-Terrorism Appeals No.215 of 2016

Special Criminal Anti-Terrorism Appeals No.216 of 2016

Confirmation Case No.05 of 2016

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Appellants: Muhammad Umar and Muhammad Fazil alias Rana through Mr. Raja Mir Muhammad, Advocate

Respondent: The State through Mr. Farman Ali Kanasro, Additional Prosecutor General Sindh

Date of hearing: 08.05.2019

Date of announcement: 16.05.2019

J U D G M E N T

NAIM ATULLAH PHULPOTO, J.- Muhammad Umar and Muhammad Fazil alias Rana, appellants, were tried by Ms. Khalida Yaseen, Judge, Anti-Terrorism Court-II, Karachi (Special Cases Nos.B-103, 104, 105 and 106 of 2012), who had allegedly murdered PCs Muhammad Arif and Muhammad Khan. On the conclusion of trial, vide judgment dated 10.08.2016, appellants were convicted under Section 302, PPC and under section 7(a) of the Anti-Terrorism Act, 1997 and sentenced to death on two counts. Appellants were ordered to pay fine of Rs.100,000/- each to be paid to the legal heirs of deceased PCs Muhammad Arif and Muhammad Khan. Appellant Muhammad Umar was convicted under section 13(d) of the Arms Ordinance, 1965 and sentenced to 7 years R.I. He was also convicted for snatching SMG 12780 and sentenced to 7 years R.I. Appellant Muhammad Fazil was also convicted under section 13(d) of the Arms Ordinance, 1965 for 7 years R.I. All the moveable and immovable properties of the appellants were ordered to be forfeited to the Government. Trial court made reference to this Court for confirmation of the death sentence.

2. Brief facts of the prosecution case as disclosed in the FIR are that on 17.05.2012 at 2330 hours ASI Tariq Javed of Police Station Mochko along with his subordinate staff, namely, PCs Muhammad Khan and Muhammad Arif (now deceased) left police station in Police Mobile for patrolling and snap checking. Police Party started checking at Katcha Road, near Maddressah Ansaria Graveyard, Muhammad Khan Colony, Ittehad Town, Karachi at 2330 hours. It is alleged that three young persons appeared on two motorcycles they looked like Pathans from their physical appearance. ASI signaled them to stop but they did not stop motorcycles and made straight fire shots from their pistols at the police party with intention to kill. As a result of firing, complainant stated that he fell down in a ditch/gutter and accused fired upon PCs Muhammad Khan and Muhammad Arif, who sustained firearm injuries. It is further stated that accused took away SMG bearing No.12780 allotted to PC Muhammad Arif. Such information was communicated by ASI Tariq Javed immediately to the police station. Ambulance was arranged but both the injured police constables succumbed to the injuries at the spot. SHO arrived at scene of offence. Dead bodies of PCs Muhammad Arif and Muhammad Khan were dispatched to the Civil Hospital for postmortem examination and report. It is alleged that in the incident, one passerby, namely, Lal Muhammad son of Hakeem Shah had also sustained firearm injuries, the relatives of Lal Muhammad took him to the Civil Hospital for medical treatment. It is alleged that accused persons made their escape good from the place of incident. ASI Tariq Javed of PS Mochko lodged an FIR No.147/2012 under sections 353, 324, 302, 392, 397, 34 PPC at P.S. Mochko on 18.05.2012 at 0210 hours.

3. Chaudhry Manzoor Hussain (PW-13) received a copy of FIR No.147/2012, registered at P.S. Mochko under sections 353, 324, 302, 392, 397, 34 PPC for investigation. IO had also received memo of examination of the dead bodies of PCs Muhammad Khan and Muhammad Arif. Investigation officer collected postmortem examination reports of the deceased PCs and he handed over the dead bodies to the legal heirs of the deceased persons. Investigation officer had also received empties collected from the place of crime by ASI Tariq Javed. Investigation officer inspected place of wardat and prepared such mashirnama in presence of mashirs. IO sent 10 empties and clothes of the deceased persons to the experts for reports. During investigation, accused Muhammad Umar was arrested by SI Muhammad Ashraf on 23.05.2012 and one unlicensed 30 bore pistol was recovered from each accused Muhammad Umar and Muhammad Fazil and FIR bearing Crime No.154/2012 was registered against accused Muhammad Umar and an FIR No.155/2012 was registered against accused Muhammad Fazil alias Rana. During interrogation, accused Muhammad Umar produced official SMG bearing No.12780 with double magazine and 60 rounds and FIR No.156/2012 under section 13(e) of the Arms Ordinance, 1965 was registered against him. Investigation officer produced both the accused before Judicial Magistrate on 28.05.2012. ASI Tariq Javed (PW-1) identified both accused in the identification parade. On the conclusion of investigation, challan was submitted against the accused Muhammad Umar and Muhammad Fazil under sections 353, 324, 302, 392, 397, 34, PPC read with section 7 of the Anti-Terrorism Act, 1997 and 13(d) and 13(e) of the Arms Ordinance, 1965. Trial court held joint trial of cases under section 21-M of the Anti-Terrorism Act, 1997.

4. Trial court framed charge against accused Muhammad Umar and Muhammad Fazil. Both the accused pleaded not guilty and claimed to be tried.

5. At trial, prosecution examined PW-1 ASI Tariq Javed at Ex.P/1, PW-2 Ghazanzada of P.S. Mochko at Ex.P/6, PW-3 ASI Muhammad Yousuf at Ex.P/17, PW-4 ASI Nazar Abbas at Ex.P/18, PW-5 ASI Muhammad Sabir at Ex.P/19, PW-6 Muhammad Yousuf at Ex.P/22, PW-7 PC Sajid Ali at Ex.P/26, PW-8 Muhammad Ashraf at Ex.P/29, PW-9 Dr. Dilip Kumar at Ex.P/33, PW-10 ASI Ayaz Ahmed at Ex.P/39, PW-11 Muhammad Afzal at Ex.P/41, PW-12 ASI Hadi Bux at Ex.P/47, PW-13, Ch. Manzoor Hussain at Ex.P/50. Thereafter, prosecution side was closed vide statement at Ex.P/73.

6. Statements of accused were recorded under section 342, Cr.PC at Ex.P/74 and Ex.P/75. Both the accused claimed false implication in this case and denied the prosecution allegations. Accused examined themselves on Oath in disproof of prosecution allegations.

7. It will not be out of place to mention that on the conclusion of first trial, vide judgment dated 21.02.2014, accused were convicted under section 302, PPC read with section 7(a) of the Anti-Terrorism Act, 1997 and sentenced to death on two counts and trial Court made reference to this Court for confirmation of death sentence. Appellants being aggrieved preferred Appeal No.12 of 2014. Appeal was allowed by this Court and impugned judgment dated 21.02.2014 passed by the trial court was set aside and case was remanded back to the trial court for recording the statements of accused under section 342, Cr.PC afresh after putting all the incriminating pieces of evidence to the accused. Trial court recorded the statements of accused under 342, Cr.PC afresh at Ex.P/74 and Ex.P/75.

8. Learned Judge, Anti-Terrorism Court-II, Karachi, in second round after hearing the learned counsel for the parties and assessment of evidence available on record, vide judgment dated 10.08.2016, convicted and sentenced both the appellants to death on two counts as mentioned above and made reference to this Court for confirmation of death sentence. By this single judgment, we intend to decide the aforesaid appeals as well as the confirmation reference No.5/2016 as the same arise out of the same judgment and require the same appreciation of evidence.

9. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 10.08.2016 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

10. Heard learned counsel for the appellants as well as learned Additional Prosecutor General Sindh and perused the evidence minutely.

11. Record reflects that ASI Tariq Javed (PW-1) has deposed that on 17.05.2012, he along with PCs Muhammad Arif and Muhammad Khan was busy in patrolling duty. At about 2330 hours, two motorcycles appeared from Raja Tanveer Colony Road. Three persons appeared on said two motorcycles. From their appearance, they looked like Pathans, police signaled them to stop but they started straight firing upon the police, he ran to the street (gali) to save life and fell in a ditch and he received injuries at his right thumb, right eye and right hand. ASI reported the matter to the police while taking the mobile from one passerby. In the incident PCs Muhammad Arif and Muhammad Khan sustained serious injuries and he saw that SMG of Muhammad Arif was also missing. Both PCs died at spot. Eyewitness Tariq Javed has claimed that he had identified both the accused before Judicial Magistrate on 28.05.2012 in the identification parade. He replied in cross-examination that he had not mentioned about Roznamcha Entry No.35 in FIR. Eyewitness further admitted that it was darkness at the place of occurrence and had not given the features of three accused persons in his FIR.

12. Mr. Muhammad Afzal, Judicial Magistrate (PW-11) has deposed that on 25.05.2012, IO submitted application before him for holding the identification parade of two accused, namely, Muhammad Fazil alias Rana and Muhammad Umar through eyewitness ASI Tariq Javed in Crime No.147/2012 under Sections 353, 324, 302, 392, 397, 34, PPC of P.S. Mochko and he held identification parade on 28.05.2012 in which ASI Tariq Javed identified both the accused. In the cross-examination, Judicial Magistrate deliberately avoided to reply that accused were produced before him for police custody remand on 24.05.2012 and 28.05.2012

13. Investigation officer has conducted investigation of the case as mentioned above. Unnatural death of PCs Muhammad Arif and Muhammad Khan by means of fire arms is not disputed by defence counsel. Other evidence was formal in nature.

14. The question for consideration before this Court is whether this evidence as to identification parade is worthy of credence. ASI Tariq Javed (PW-1) in his first information report stated that three persons appeared on the motorcycle at night time. He could not give the description of any of them as night was dark. It is difficult for us to believe that he could identify accused after 11 days, in identification parade. If he had given some description howsoever slight of some or all of the culprits his evidence as to subsequent identification might have carried some weight but as he gave no description whatsoever and stated on the other hand that three persons appeared to be like Pathans. Moreover, ASI has deposed that he had received injuries on various parts of the body when he fell into the ditch but there is no medical corroboration to his version. We have no hesitation to hold that his testimony as to identification could not be relied upon. Reliance is placed upon the disctum laid down in the cases of Moula Dad and Others v. Emperor (AIR 1925 Lahore 426), State/Government of Sindh through Advocate General Sindh, Karachi vs. Sobharo (1993 SCMR 585), Sabir Ali alias Fauji v. The State (2011 SCMR 563) and Mansoor Ahmad alias Shahzad alias Sheeri and others v. The State (2012 YLR 2481) and Zahid Hussain v. Ajeeb and others (2019 SBLR FSC 1).

15. As to the identification parade, it is observed that investigation officer submitted application to the Judicial Magistrate 25.05.2012 but he did not hold the identification parade on same day and held it on 28.05.2012. In the meanwhile, police custody remand of the accused was granted by the Judicial Magistrate on 24.05.2012 and 28.05.2012 and thus the police had every chance of showing the accused to ASI Tariq Javed (PW-1) prior to the identification parade. Record reflects that ASI Tariq Javed was posted at the same police station where the appellants were arrested at police station, before holding of identification parade. Learned Additional Prosecutor General Sindh has also conceded that identification parade was not conducted in accordance with law.

16. We have carefully perused the evidence of the Judicial Magistrate and found that identification parade was defective for the reasons that (a) Judicial Magistrate did not ask the accused as to how long they had been in police custody; (b) Judicial Magistrate failed to know the CNIC numbers, occupation and addresses of the dummies; (c) Judicial Magistrate failed to hold identification parade on 25.05.2019 when application was submitted before him by the investigation officer and adjourned to 28.05.2012 without any legal justification. Thus, keeping all these factors in view, we are of the firm opinion that identification parade of the accused held without features of culprits in FIR could not be safely relied upon and the trial court failed to appreciate the evidence in accordance with the settled principles of law. PW-1 ASI Tariq Javed had jumped into ditch, it was night time, identification of accused, if any, was for a moment. Even identification of the accused before the trial court was not safe to maintain the conviction of the appellants. Prosecution failed to examine independent injured witness Lal Muhammad son of Hakeem Shah, who was passerby at the time of incident. Investigation officer has admitted that said Lal Muhammad was admitted in the hospital, non-examination of such material witness would be fatal to the case of the prosecution.

17. It is settled law that identification parade, to inspire confidence, must be held at the earliest possible opportunity after the occurrence, since memories fade and visions get blurred with the passage of time. Thus, an identification test, where an unexplained and unreasonably long period has intervened between occurrence and identification proceedings, should be viewed with suspicion. Moreover, it is imperative to ensure that, after their arrest, the suspects are put to identification tests as early as possible and such suspects should preferably, not be remanded to police custody in the first instance and should be kept in judicial custody till the identification proceedings are held. This will avoid the possibility of overzealous investigation officers showing the suspects to the witnesses while they are in police custody. Even when these accused persons are, of necessity, to be taken to Courts for remand etc. they must be warned to cover their faces so that no witness could see them. Identification parades should never be held at police stations and the Magistrate, supervising the identification proceedings, must verify the period, for which the accused persons have remained in police custody after their arrest and before the test identification and must incorporate this fact in his report. In order to guard against the possibility of a witness identifying an accused person by chance, the number of dummies to be intermingled with the accused persons should be as much as possible but there is also the need to ensure that the number of such persons is not increased to an extent which could have the effect of confusing the identifying witness. Ratio between the accused persons and the dummies should be 1 to 9 or 10. It also must be ensured that before a witness has participated in the identification proceedings, he is stationed at a place from where he cannot observe the proceedings and that after his participation he is lodged at a place from where it is not possible for him to communicate with those who have yet to take their turn. It should also be ensured that no one who is witnessing the proceedings, such as the members of the jail staff etc., is able to communicate with the identifying witnesses. The Magistrate conducting the proceedings must take an intelligent interest in the proceedings and not be just a silent spectator of the same bearing in mind at all times that the life and liberty of someone depends only upon his vigilance and caution. The Magistrate is obliged to prepare a list of all the persons (dummies) who form part of the line-up at the parade along with their parentage, occupation and addresses. The Magistrate must faithfully record all the objections and statements, if any, made either by the accused persons or by the identifying witnesses before, during or after the proceedings and where a witness correctly identifies an accused person, the Magistrate must ask the witness about the connection in which the witness has identified that person i.e. as a friend, as a foe or as a culprit of an offence etc. and then incorporate this statement in his report and if a witness identifies a person wrongly, the Magistrate must so record in his report and should also state the number of persons wrongly picked up by the witness. The Magistrate is also required to record in his report all the precautions taken by him for a fair conduct of the proceedings and should also issue certificate at the end of his report. Such guidelines have elaborately been mentioned in the order of the Honourable Supreme Court dated 22.02.2019, passed in Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No.259 of 2018.

18. There are several circumstances/infirmities in the prosecution case as highlighted above. It is settled law that it is not necessary that there should many circumstances creating doubts. If there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. Reliance is placed upon the case of TARIQ PERVAIZ vs. The STATE (1995 SCMR 1345). Identification evidence has been eloquently and elaborately discussed in the judgment dated 20.02.2019 passed by the Honourable Supreme Court in the case of Mian Sohail Ahmed and Others Vs. The State (Criminal Appeals Nos.306-L, 307-L and 308-L of 2012).

19. Prosecution case is fraught with doubts. It would be unsafe to maintain the conviction in this case. Consequently, by extending the benefit of doubt to appellants Muhammad Umar and Muhammad Fazil alias Rana, Special Criminal Anti-Terrorism Appeals Nos.213, 214, 214 and 216 of 2016 are Allowed. Appellants are acquitted of the charge. They shall be released forthwith if not required in any other case. Murder Reference No.05/2016 is answered in Negative and death sentence recorded by the trial Court to appellants Muhammad Umar and Muhammad Fazil alias Rana is Not Confirmed.

J U D G E

J U D G E

Gulsher/PS