IN THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Acquittal Appeal No.09.2010

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Rasheed Ahmed Soomro

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

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

Date of hearing: 10.09.2018

Date of announcement: 26.09.2018

J U D G M E N T

NAIMATULLAH PHULPOTO, J.-- Respondents/accused Muhammad Kamran alias Kami s/o Muhammad Yosuf and Muhammad Farhan alias Goal alias Shani son of Faqir Muhammad were tried by learned Judge, Anti-Terrorism Court-I, Karachi, in Special Case No.39 of 2006. On the conclusion of the trial, vide judgment dated 13.02.2010, respondents /accused were acquitted of the charge in the above case, hence the State through Prosecutor General Sindh has filed instant Special Criminal Anti-Terrorism Acquittal Appeal.

2. Brief facts leading to the filing of the appeal are that on 23.06.2006, SIP Mehmood Khan recorded 154, Cr.PC statement of complainant Muhammad Sabir son of Mohabat Khan, wherein he disclosed that he was the head constable in police department and on 23.06.2006 when he was sitting at PCO shop situated at Natha Khan village, where he came to know that his relative SIP Nadeem Bangash had received injuries and he took the injured to Jinnah Hospital in taxi. Complainant further came to know that SIP had gone to Jinnah Hospital from P.S. Al-Falah for some work and while he was returning, at about 1630 hours, when he reached at Colony Gate, Shahrah-e-Faisal Bridge towards Malir side downwards, some unknown persons/culprits riding motorcycle started firing upon him (now deceased) with firearm weapons with intention to kill him, subsequently it is alleged that they ran away. On this statement of complainant, FIR bearing No.87/2006 was lodged at P.S. Airport, Karachi under section 324/34, PPC.

3. After usual investigation, challan was submitted against the respondents/accused under sections 302, 324, 34, read with section 7(a)&(c) of Anti-Terrorism Act, 1997.

4. Trial court framed charge against respondents/accused Kamran alias Kami and Muhammad Farhan alais Goal alias Shani, to which both the accused did not plead guilty and claimed to be tried.

5. At trial, prosecution examined twelve witnesses. Thereafter, prosecution side was closed.

6. Learned trial Court, after hearing the learned counsel for the parties and assessment of evidence available on the record, vide judgment dated 13.02.2010.

8. Mr. Muhammad Iqbal Awan, learned Deputy Prosecutor General Sindh, argued that incident took place on 23.06.2006 at 04:30 p.m. at Colony Gate, Shahrah-e-Faisal Bridge, Karachi; sole witness of incident was Sibt-e-Abbas, he was passerby, who witnessed the incident that both the accused/respondents riding motorcycle, armed with pistols, fired upon SIP Nadeem Bangash, who received fire arm injuries and the accused persons/respondents succeeded to run away. Learned D.P.G. argued that both the accused/respondents were arrested on 20.10.2006, in some other case and four T.T. pistols, used in the commission of instant offence, were recovered from them; identification parade of the accused was held on 04.11.2006, in which PW identified by the accused and stated that both the accused while riding the motorcycle fired upon SIP Nadeem Bangash. Trial court on the conclusion of trial wrongly acquitted the accused. Mr. Awan, D.P.G. submitted that acquittal was perverse and the same may be converted to conviction.

9. Mr. Abdul Razzak, appearing on behalf of respondents submits that trial Court has already disbelieved the evidence of Syed Sibt-e-Abbas; findings of the trial court are neither perverse and nor capricious. It is further argued that FSL report reflects that four T.T. pistols were sent to the expert for examination and report, whereas according to the case of the prosecution there were only two accused persons. He further argued that there was delay of 14 days in holding the identification parade, such delay has not been explained by the prosecution. He further argued that there was delay in submission of final report for managing the prosecution case. In support of his contention Mr. Abdul Razzak, advocate for respondents, relied upon the case of Ajay Bharwani and another vs. Haji Muhammad and others (2018 SCMR 298).

10. We have carefully heard the learned counsel for the parties and perused the entire evidence.

11. We have examined the judgment of trial court. Respondents/accused have been acquitted mainly for the following reasons:

“I have gone through the evidence led by the prosecution on the record and also considered the arguments of learned SPP for the State and defence counsel. There are major discrepancies in the evidence of witnesses. The star witness of the prosecution case is PW Sibt-e-Abbas who according to prosecution story is eyewitness of the crime and was present at place of incident at the time of incident and he had taken the inured to JPMC along with complainant and he had pointed out the place of incident to IO SIP Mumtaz Hussain, but his name did not appear in 154, Cr.PC statement of complainant and sketch of place of vardat was not prepared on his pointation even though the prosecution has shown his presence at there, but neither he was made mashir of inquest report nor memo of inspection of dead body, which shows his presence at the place of vardat at the relevant time highly doubtful. The whole case is based on the evidence of eyewitness PW Sibt-e-Abbas, who did not disclose the role of each accused before this court and he neither proved his identity before Judicial Magistrate nor produced copy of his NIC. Admittedly, SIP Mumtaz Hussain and ASI Muhammad Tayyab acted as mashirs of the memo of identification parade and they were present when alleged identification parade took place before Judicial Magistrate, which shows that the identification parade through eyewitness Sibt-e-Abbas was not fair and free and it was in presence of SIP Mumtaz Hussain, who also conducted the investigation in this case as first IO. The Judicial Magistrate permitted the first IO of the case SIP Mumtaz Hussain and ASI Muhammad Tayyab to be present at the time of identification parade and he has also committed illegality in conducting the identification parade by allowing police officials at the time of identification parade who were the witness of this case. It has been proved that both the police officials have signed the memo of identification parade before Judicial Magistrate and identification parade has no weight in the eyes of law. The IO of the case SIP Sadiq Javed has given false statement before this Court and stated that he did not know that SIP Mumtaz Hussain and ASI Muhammad Tayyab were present in the court before Judicial Magistrate at the time of identification parade. It is held in NLR 2008 Cr. 104 (SC) that identification parade would be false and not reliable, when it is witnessed by police officials in a case where police itself was complainant and accused remained in custody of that very police for about or more than twenty days. It is also held in 2003 YLR 166 that identification test is a very weak piece of evidence and any doubtful circumstance may wholly damage its evidentiary value. It is held in PLD 2005 Peshawar 204 that requirement of law is that prosecution should be duty bound to prove its case beyond any reasonable doubt and if any single and lightest doubt was created, benefit of same must go to accused and same would be sufficient to discredit prosecutor story and would entitle accused to acquittal. It is held in 2005 YLR 2279 that unless the accused is proved guilty on the basis of reliable or true evidence, benefit of every reasonable doubt under all systems of criminal justice has to go to him. It is also held in 2007 YLR 723 that doubt however slight it might be is to be given to accused. It is held in PLD 1996 SC 1 that general principle is that prosecution is to prove the case against the accused beyond doubt and such burden does not shift from prosecution even if accused takes up any particular plea and fails in it. 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. After reliance on above citations and there are major contradictions found in the statements of prosecution witnesses, the prosecution has miserably failed to establish the charge against the accused. Therefore, this point is decided as not proved.”

12. In our view, trial court has assigned sound reasons for disbelieving the evidence of eye witness, namely, Syed Sibt-e-Abbas and other prosecution witnesses. It is the matter of record that PW Syed Sibt-e-Abbas was a chance witness, his presence at the place of incident was doubtful for the reason that he had not taken the deceased to the hospital but deceased was taken to the hospital by some other persons. This fact is evident from the perusal of inquest report produced at Ex-11/A. Identification parade was held after a delay of 14 days, such delay has not been explained. It is unbelievable that accused were carrying the pistols used in the commission of offence for six months so that they could be arrested with crime weapons. Trial court has examined all pieces of evidence deeply and has assigned sound reasons while recording the acquittal. Trial court has rightly mentioned in the judgment that there are number of discrepancies in the prosecution case; the prosecution case is doubtful and its benefit shall go in favour of accused. Prosecution miserably failed to prove its case against accused.

13. In the case of 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.”

14. For what has been discussed above, we are of the considered view that impugned judgment dated 13.02.2010 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 misreading, nor non-reading of material evidence or misconstruction of facts and law. Resultantly, the appeal is without merit and the same is dismissed.

J U D G E

Gulsher/PS