THE
HIGH COURT OF SINDH AT KARACHI
Special Criminal
Anti-Terrorism Appeal No. 28 of 2022
Confirmation Case
No.01 of 2022
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Shamsuddin Abbasi
Appellant : Fazal Saeed @ Kabari through M/s Qadir Khan and
Israr Ahmed Abro advocates
Respondent : The State through Mr. Muhammad Iqbal Awan Addl. P.G
Complainant : Present in person
Date of Hearings :
06.02.2023, 14.02.2023
& 23.02.2023
Date of judgment : 03.03.2023
JUDGMENT
NAIMATULLAH PHULPOTO, J.-This
Appeal is directed against the judgment dated 18.01.2022 passed by learned
Judge, ATC-II, Karachi, whereby appellant Fazal Saeed @ Kabari was convicted
under section 302(b) PPC as Tazir and sentenced to death. Appellant was also
convicted under section 7(a) of ATA 1997 and sentenced to death. However, death
sentence was subject to confirmation by this Court.
2. Brief
facts leading to the filing of the appeal are that on 01.01.2011, SIP Muhammad
Sharif Niazi of PS Jackson, received information from Jinnah Hospital Karachi
that one Muneer Shah in injured condition was brought in the hospital, later
on, he succumbed to the injuries. SIP recorded entry No. 57 in the Roznamcha at
about 2040 hours at police station and proceeded to Jinnah Hospital, where he
inspected the dead body and completed formalities. SIP recorded statement of
the complainant Tufail Shah, brother of the deceased. On the same date at 2145
hours, information was incorporated in 154 Cr.P.C book. FIR was lodged vide
Crime No. 02/2011 at 2300 hours. Complainant alleged therein that he resides in
katchi abadi, new Haji camp, Karachi and is a rickshaw driver. On 01.01.2011 at
1935 hours, he was present at his home, one neighbourer informed him that
someone had caused fire arm injury to his brother Muneer Shah at the beach and
he was lying injured at sea. On such information, he proceeded to the pointed
place and saw his brother lying in injured condition. It is further alleged
that mohallah people and police of Artillery Maidan had also arrived at the
place of incident/sea. Police constable in injured condition was shifted to
Jinnah Hospital for treatment. It is alleged by the complainant that his
brother Muneer Shah made statement/disclosed before him that he has been
injured by accused Kabari by means of fire arm.
3. After
registration of the FIR against the appellant, investigation was carried out by
SIP Saeed of PS Jackson, who inspected place of wardat shown to him by the
complainant and prepared mashirnama of the place of incident. Thereafter, further
investigation was entrusted to Inspector Muhammad Farooq, who recorded
statements of witnesses u/s 161 Cr.P.C and made efforts for the arrest of the
accused, but he could not succeed and submitted final report u/s 512 Cr.P.C
against appellant/accused under section 302, PPC read with section 7 of the
Anti-Terrorism Act, 1997. However, appellant was arrested from Dangar Jail of
District Bunnair of KPK on 10.04.2019, as he was confined in jail in some other
case.
4. Trial
Court framed Charge against appellant under the above referred Sections, to
which he pleaded not guilty and claimed to be tried.
5. At
the trial, prosecution examined 12 witnesses. Thereafter, prosecution side was
closed.
6. Trial
Court recorded statement of appellant under Section 342 Cr.P.C at Ex.P/50, in
which he denied the prosecution allegations and claimed his false implication
in this case. Appellant neither examined himself on oath u/s 340(2) Cr.P.C in
disproof of the prosecution allegations nor led any evidence in his defence.
7. Trial Court after hearing the learned counsel for the parties
and assessment of the evidence, convicted and sentenced the appellant to death as
stated above and made reference to this Court for conformation of death
sentence or otherwise. Hence, the appellant has filed instant appeal against his
conviction and sentence recorded by the trial Court. By this judgment, we
intend to decide appeal as well as reference made by trial Court.
8. Learned
advocate for the appellant contended that incident was unwitnessed; that
incident was firstly narrated to the complainant by a boy on 01.01.2011 at 7:30
p.m., said boy has not been examined by the prosecution; that complainant went
to the place of incident and found his brother lying injured; Mohalla people and
police had also gathered there, but no person from Mohallah or police had been
examined by the prosecution; that dying declaration of the deceased before complainant
was unreliable as appellant had received fire arm injury at chest and was
unconscious, went on ventilator in the hospital; that PW Rehmatullah who
claimed to be eye witness of the incident was chance witness; that he has not
disclosed with what personal work he had gone to Hijrat colony at 7:00 p.m;
that he had also not disclosed the name of friend with whom he met; that P.W
Rehmatullah heard fire arm report and saw one boy having pistol running away in
front of him, no effort was made by him to rescue the life of the deceased. It
is further submitted that conduct of P.W Rehmatullah was highly doubtful; that
161 Cr.P.C statement of PW Rehmatullah was recorded after 13 days of the
registration of the FIR, which created doubtful. It is argued that PW
Rehmatullah in his 161 Cr.P.C statement has not given the description of the
appellant and after arrest of the appellant identification parade through P.W
Rehmatullah was also not held. Learned advocate for the appellant argued that
complainant has improved his case at trial and admitted in cross-examination
that he had not mentioned in his statement recorded u/s 154 Cr.P.C that one day
prior to the incident, appellant Kabari went to his house and asked him that
his deceased brother was objecting on his selling narcotics/heroin. Lastly, it
is submitted that several infirmities in the case of prosecution have created
serious dent in the prosecution case and prayed for acquittal of the appellant
in the case. In support of his contentions, reliance is placed upon the cases
reported in Mst.
Zarsheda Vs. Nobat Khan (PLD 2022 SC 21), Mst. Zahida Bibi vs. The State (PLD 2006 S.C 255) and Tariq Pervaiz v. the State (1995 SCMR
1345).
9. Learned
Addl. P.G assisted by complainant argued that deceased before his death in
injured condition had disclosed name of the appellant for commission of
offence; that appellant had motive for commission of the murder of deceased;
that ocular evidence furnished by PW Rehmatullah supported by medical evidence
has proved prosecution case against the appellant; that appellant absconded
away after commission of the offence and prayed for dismissal of the appeal.
10. We
have carefully heard learned counsel for the parties and re-examined the entire
evidence minutely.
11. We
have come to the conclusion that the prosecution has NOT proved its’ case beyond reasonable doubt against the appellant for
the reasons that there are multiple infirmities in the prosecution case. Complainant
is the brother of the deceased, he has deposed that he was present at his home
on 01.01.2011 at 7:35 p.m. a boy came in his house and narrated him that his
brother Muneer Shah was lying injured at beach/sea. Complainant proceeded to
the pointed place along with Bilal. Police of Artillery Maidan and Mohalla
people had also gathered there. Complainant has deposed that he found his
brother lying injured and he made statement/dying declaration before him that
firearm injury has been caused to him by one Kabari. Thereafter, complainant
along with Bilal took the injured (now deceased) to the hospital where injured
succumbed to the injuries. We have several reasons to disbelieve the evidence
of the complainant for the reasons that deceased had received firearm injury
from his back, it was about 7:30 p.m., the source of light has not come on
record. Doctor has deposed that deceased had received injury from his backside
at chest and when injured was brought in hospital, he was unable to record his
statement and went on ventilator and succumbed to the injuries. Nature of the
injury which deceased received clearly shows that he was unable to make statement/dying
declaration before the complainant. Firearm injuries to deceased did not
necessarily amount that whatever deceased spoke before death was a gospel
truth. It is settled position of law that dying declaration without test of
cross-examination is always treated as weak type of evidence and its’
credibility depends upon the authenticity of the record and the circumstances
in which such statement was made by the deceased. In the circumstances of the present
case we are of the considered view that dying declaration could not be treated
as admissible piece of evidence and conviction on the basis of such evidence on
capital charge was not legal as held in the case of Mst. Zahida Bibi vs. The State
(PLD 2006 S.C 255). Incident was narrated to the complainant by a boy
firstly then the complainant left home to the beach with one Bilal where police
party and Mohalla people had already gathered but none of them have been
examined by the prosecution at trial to support version of the complainant. As
such material evidence has been withheld by the prosecution in this case. The inference which could be drawn of their
non-examination under Article 129(g) of the Qanun-e-Shahadat Order, 1984, would
be that they might not have supported the case of prosecution as held by
Hon’ble Supreme Court in the case of Mst. Zarsheda Vs. Nobat
Khan (PLD 2022 SC 21). Complainant
in cross-examination has admitted that he had not stated in the FIR that
appellant came to his home one day prior to the lodging of the FIR and
complained against the deceased, as to why he was arresting the appellant in
the narcotics case. No record regarding involvement of the appellant in
narcotics cases has been produced before the trial court. Deceased was
constable, not investigation officer of any case. On the other hand,
complainant has made improvement which has been admitted by him that appellant
came in his house one day before the incident and apprehended his arrest at the
hands of the deceased.
12. The
prosecution has heavily relied upon was the evidence of PW-02 Rehmatullah.
Admittedly, he was not eye witness of the incident, which had occurred on
01.01.2011 at 7:30 p.m, it was night time, source of light has not come on
record. PW Rehmatullah had only seen a young boy armed with weapon running away
in the street. As to how, he came to know that appellant after commission of
some offence was running away. Prosecution could not explain this circumstance.
P.W Rehmatullah has deposed that so many people had gathered there and he went home
due to fear. As prosecution relies upon evidence of this witness, it is
therefore, very essential and pertinent to re-produce his examination-in-chief,
the same is as under:
“On
01.01.2011, I was going for my personal work towards Hijrat colony at about
6:00 p.m. After meeting my friend I was coming back it was about 7 or 7:30 p.m.
as I reached Gali No. 25, Sultanabad near sea, when I heard the sound of
firing. I saw one young boy having pistol in his hand ran in front of me. The
gali was very narrow I kept on a side and that person ran away. When I reached
near the sea and saw one boy wrenched in blood was lying. He had received
bullet injury. Many people had assembled and because of fear I came back home.
I came to know that the injured person was a police constable namely Muneem
Shah. On 13.01.20211 it was announced that the person had succumbed to his
injuries. I had attended the funeral of the deceased when it was announced in
the masjid. On 14.01.2011, I had gone to the PS Jackson and I met SI Farooq
whom I had given my statement. The witness has pointed out towards the accused
present in Court to be the same person who ran before me and had fired at the
Muneem Shah.”
There are so many discrepancies and
inherent infirmities in the evidence of P.W-Rehmatullah, which render his
evidence to be unreliable for the reasons that he has not explained/established
his presence in the street at the relevant time; he made no efforts to catch
hold the appellant or to rescue the deceased. Surprisingly, incident was not
narrated by him to the complainant immediately, statement of P.W Rehmatullah
was recorded after delay of 13 days of registration of F.I.R. No plausible explanation to such delay has been
furnished by the prosecution. Therefore, the evidence of the said witness on
account of delay in recording of his 161 Cr.P.C statement could hardly be
relied upon to sustain conviction. It is a settled law that late recording of 161, Cr.P.C statement of a
prosecution witness reduces its’ value to nil unless there is plausible
explanation for such delay. Reliance is placed upon the case of Abdul Khaliq vs. the
State (1996 SCMR 1553). Even in the statement u/s 161 Cr.P.C description/hulia
of the appellant has not been mentioned. It is matter of record that appellant
was arrested after 07 years, but he was not put to
identification parade through P.W Rehmatullah and identification
of appellant before trial court is unsafe to maintain conviction as held in
the case of Javed Khan alias Bacha and
another vs. The State and another (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.”
13. Appellant in his statement recorded under section 342
Cr.P.C before the trial court has raised plea that he is not Kabari but he is
Fazal Saeed and resides at KPK and he has been falsely implicated by one
Sultan, who deals with narcotics at Karachi. In the final report submitted by
the I.O before the trial court, which is available in paper book at page No.285,
there is mention of one Sultan but I.O
failed to interrogate him, trial court had also failed to examine the
defense plea deeply. Mere absconsion of appellant is not conclusive proof of
guilt, value of absconsion, therefore depends on the facts of each as held in
the case of Muhammad Tasaweer vs. Hafiz Zulkarnain and 2 others (PLD 2009 S.C 53).
14. Appellant
has been sentenced to death. In order to bring home the guilt against the
appellant it was necessary for the prosecution to prove its case through
reliable, unimpeachable and confidence inspiring evidence beyond any reasonable
doubt. The harder punishment stricter the standard of proof but in the present
case, there are multiple infirmities as mentioned above.
15. Even otherwise, it is well settled that
for the purposes of extending the benefit of doubt to an accused, it is not
necessary that there be multiple infirmities in the prosecution case or several
circumstances creating doubt. A single or slightest doubt, if found reasonable,
in the prosecution case would be sufficient to entitle the accused to its
benefit, not as a matter of grace and concession but as a matter of right.
Reliance in this regard may be placed on an unreported judgment dated
13.12.2022 of the Hon’ble Supreme court passed in the case of Ahmed Ali and another vs. The State
(Criminal Appeal No. 48 of 2021) and the cases reported as Tajamal
Hussain v. the State (2022 SCMR 1567), Sajjad Hussain v. the State (2022 SCMR
1540), Abdul Ghafoor v. the State (2022 SCMR 1527 SC), Kashif Ali v. the State
(2022 SCMR 1515), Muhammad Ashraf v. the State (2022 SCMR 1328), Khalid Mehmood
v. the State (2022 SCMR 1148), Muhammad Sami Ullah v. the State (2022 SCMR
998), Bashir Muhammad Khan v. the State (2022 SCMR 986), The State v. Ahmed
Omer Sheikh (2021 SCMR 873), Najaf Ali Shah v. the State (2021 SCMR 736),
Muhammad Imran v. the State (2020 SCMR 857), Abdul Jabbar v. the State (2019
SCMR 129), Mst. Asia Bibi v. the State (2019 PLD 64 SC), Hashim Qasim v. the
State (2017 SCMR 986), Muhammad Mansha v. the State (2018 SCMR 772), Muhammad
Zaman v. the State (2014 SCMR 749 SC), Khalid Mehmood v. the State (2011 SCMR
664), Muhammad Akram v. the State (2009 SCMR 230), Faheem Ahmed Farooqui v. the
State (2008 SCMR 1572), Ghulam Qadir v. the State (2008 SCMR 1221) and Tariq
Pervaiz v. the State (1995 SCMR 1345).
16. For
what has been discussed above, we find that prosecution has failed to prove
its’ case against the appellant beyond any reasonable doubt to sustain
conviction. Consequently, while extending benefit of doubt, this appeal is allowed and impugned judgment is set aside, appellant is acquitted of the charges, for
which he was charged, tried and convicted by learned trial Court and he be released forthwith, if not required to be detained in
any other custody case. Confirmation Reference is answered in NEGATIVE.
JUDGE
JUDGE