THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals No. 257, 258 & 259 of 2018

Before:

Mr. Justice Mohammad Karim Khan Agha

Mr. Justice Irshad Ali Shah

Appellants: Muhammad Yousuf son of Noorul Haque through Mr. Nadeem-ul-Haque advocate

Ahmed-uddin @ Salman son of Samaruddin through Mr. Kashif Ali advocate

Respondent: The State through Mr. Muhammad Iqbal Awan Additional Prosecutor General Sindh

Date of hearing: 31.08.2021

Date of announcement: 02.09.2021

J U D G M E N T

IRSHAD ALI SHAH, J- The appellants by preferring three separate appeals have impugned judgment dated 11^th September 2018, passed by learned Judge, Anti-Terrorism Court No.VII, Karachi, whereby they have been convicted and sentenced as under:

“I hereby convict them u/s: 265-H(ii) Cr.P.C for offence u/s 7(a) of Anti-Terrorism Act, 1997 r/w section 302(b)-34 PPC for committing the murder of deceased Syed Muhammad Kazim and Ms. Neha Fatima and sentenced them to suffer R.I for life and to pay fine of Rs.200,000/- (Two Lacs) each. In case of non-payment of fine they shall suffer further S.I for six months each. Fine if recovered shall equally be paid to the legal heirs of deceased. I also hereby convict both the accused for offence under Section 7(b) of ATA, 1997, causing injuries to Mst. Naeema Qazim, Rida Fatima and Baby Zainab to suffer R.I for ten (10) years and fine of Rs.10,000/- each. I also hereby convict the accused Muhammad Yousif alias Qasim S/o Noor-ul-Haq for the offence under Section 23(1)(a) Sindh Arms Act, 2013 to suffer R.I for seven years and to pay fine amount of Rs.10,000/-. In case of default he shall suffer S.I for six months.”

2. Benefit of section 382(b) Cr.P.C, however was extended to the appellants.

3. It is the case of the prosecution that the appellants with rest of the culprits resorted to indiscriminate firing at the place of incident, whereby Syed Muhammad Qazim and Mst. Neha Fatima died on receipt of fire shots while P.Ws Mst. Naeema Qazim, Mst. Rida Fatima and Baby Zainab Fatima sustained fire shot injuries those were also aimed to take their lives for that the present case was registered.

4. The appellants denied the charge and the prosecution to prove it examined complainant Fahad Qazim and his witnesses and then closed its side.

5. The appellants in their statements recorded under Section 342 Cr.P.C, denied the prosecution’s allegations by pleading innocence. They however, did not examine anyone in their defense or themselves on oath in terms of Section 340(2) Cr.P.C.

6. On conclusion of the trial, the appellants were convicted and sentenced by learned trial Court as is detailed above.

7. It is contended by the learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the police; that the FIR of the incident has been lodged with delay of about five days; that 161 Cr.P.C statements of the P.Ws are recorded with considerable delay even to FIR; that there is no identification parade of the appellants and no FSL report with regard to examination of the pistol allegedly secured from appellant Muhammad Yousif has been produced on record. By contending so, they sought for acquittal of the appellants. In support of their contentions, they relied upon cases of Muhammad Afzal alias Abdullah and others vs. The State and others (2009 SCMR 436), Sabir Ali alias Fauji vs. The State (2011 SCMR 563), Habibullah vs. Ghulam Sarwar and another (2011 P.Cr.L.J 1490), Mst. Rukhsana Begum and others vs. Sajjad and others (2017 SCMR 596) and Muhammad Mansha vs. The State (2018 SCMR 772).

8. Learned Addl. P.G for the state by supporting the impugned judgment prayed for dismissal of the instant appeals by contending that the prosecution has been able to prove its case against them beyond shadow of doubt by bringing on record the cogent and reliable evidence.

9. We have considered the above arguments and perused the record.

10. Admittedly, the complainant is not an eye witness of the incident and FIR of the incident is lodged with delay of about five days, such delay having not been explained plausibly could not be overlooked and very FIR as per SIO SIP Tariq Khalid once was disposed of under ‘A’ class. Be that as it may, the FIR of the incident so lodged by the complainant is not containing the names and descriptions of the appellants. No identification parade of the appellants has been arranged even after their arrest through complainant party, which was essential in the case like present, when the eye witnesses did not know the appellants and only got fleeting glance at them. Such omission on the part of police could not be ignored. Even otherwise, it was a night time incident and as per P.W Syed Muhammad Asad at the time of incident the electricity went off. In that situation, the identity of the appellants on the part of complainant party was somewhat hard and we find that same cannot be safely relied upon. Even otherwise, P.W Mst. Nida Fatima being one of the adult injured witness of the incident has not been examined by the prosecution, for no obvious reason. The inference which could be drawn of her non-examination under Article 129 of the Qanun-e-Shahadat Order, 1984 would be that she was not going to support the case of prosecution. On arrest, as per I.O SIP Tariq Khalid the appellants pleaded their guilt before him. The confession allegedly made by the appellants before the police as per Article 38 of Qanun-e-Shahadat Order, 1984 could not be used as evidence against them to base conviction. On arrest from appellant Muhammad Yousif, it is said by the I.O SIP Tariq Khalid that a pistol of 9 mm bore was recovered on his pointation however was with considerable delay to arrest of appellant Muhammad Yousif. No FSL report even otherwise with regard to examination of such pistol being similar with the empties secured from the place of incident has been brought on record such omission on part of prosecution could not be lost sight of. In these circumstances, it could be concluded safely that the involvement of the appellants in this case the prosecution has not been able to prove beyond shadow of doubt especially in terms of their correct identification.

11. In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it was observed by the Hon’ble Court that;

“Delay of two hours in lodging the FIR
in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate”.

12. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble Court that;

“----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.P.C. Reduces its value to nil unless delay is plausibly explained.”

13. In case of Tarique Pervaiz vs. The State (1995 SCMR 1345), it observed by Hon’ble Apex Court that;

“For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt- if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.”

14. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellants by way of impugned judgment are set aside, consequently, the appellants are acquitted of the offences for which they have been charged, tried and convicted by the learned trial Court, they shall be released forthwith in present case, if they are not required to be detained in any custody case.

15. The instant appeals are disposed of accordingly.

JUDGE

JUDGE