2024 CCJ 4
Other citations: 2024 PCrLJ 33
[Sindh High Court]
Before Muhammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ
Muhammad Ishaque alias Bobi alias Hussain—Appellant
versus
The State—Respondent
Special Criminal A.T. Appeal No. 10 of 2021 and Conf. Case No. 4 of 2021, decided on 12th September, 2022.
HEADNOTE
Penal Code (XLV of 1860) —
— S. 302, 324 & 34 — Anti-Terrorism Act (XXVII of 1997), S. 7 — Qatl-i-amd, attempt to commit qatl-i-amd, common intention — Act of terrorism — Appreciation of evidence — Benefit of doubt — Acquittal in triple murder case due to unreliable eye-witness testimony — Scope — Accused along with another was alleged to have murdered three persons — The prosecution’s case relied heavily on the testimony of a single eyewitness to the incident — According to his account, while he was watering flowers at a shrine, two individuals approached him and entered a room where the shrine’s caretaker was seated — Later, these individuals returned and began firing at the caretaker, causing his death — Witness, employed as a gardener at the shrine, was not a chance witness and was known to the caretaker’s family — His presence at the crime scene was documented promptly in the First Information Report (FIR), lending credibility to his account — However, there were discrepancies regarding the timing of his statement under section 161, CrPC — Different police officers provided conflicting testimonies regarding when his statement was recorded — The first officer claimed it was done promptly, while others suggested it was either delayed or not recorded at all initially — Additionally, the subsequent statement made by witness two years later lacked detailed descriptions of the perpetrators — He only mentioned the possibility of recognizing them if seen again — Furthermore, during cross-examination, he admitted that his initial statement did not specify whether he saw the accused individuals while they were firing — Given these inconsistencies and the fleeting nature of witness’s observation during the chaotic incident, there are doubts regarding the reliability of his identification of the accused — As such accused was acquitted of the charge. [Para. No. 12]
Hashmat Khalid for Appellant.
Muhammad Iqbal Awan, Additional Prosecutor General Sindh for the State.
Date of hearing: 12th September, 2022.
JUDGMENT
Muhammad Karim Khan Agha, J:—The appellant Muhammad Ishaque alias Bobi alias Hussain son of Muhammad Ibrahim has preferred the instant appeal against the judgment dated 14.01.2021 passed by Learned Judge, Anti-Terrorism Court No. XVI, Karachi in Old Special Case No.2614 of 2016 (New Special Case No.214 of 2019) arising out of Crime No.336 of 2014 under sections 302/324/34, P.P.C read with section 7, ATA 1997 registered at P.S. Zaman Town, Karachi whereby the appellant was convicted and sentenced as under:-
(a) The accused Muhammad Ishaque alias Bobi alias Hussain son of Muhammad Ibrahim was convicted for the offence under section 302, read with 34, P.P.C. for causing death of the deceased Syed Zahid Hussain Shah, Muhammad Nawaz and Muhammad Younus and sentenced to death on each count subject to confirmation by this court.
(b) The accused was also convicted for the offence under section 7(a) of Anti-Terrorism Act, 1997 for causing death of the deceased Syed Zahid Hussain Shah, Muhammad Nawaz and Muhammad Younus and sentenced to death on each count subject to confirmation by this court with fine of Rs.200,000/- (Two Lacs).
(c) The accused was also convicted for the offence under section 7(1)(h) of Anti-Terrorism Act, 1997 for committing act of terrorism and sentenced to undergo R.I. for 10 years with fine of Rs.50,000/- (Fifty Thousand).
(d) The accused was also directed to pay an amount of Rs.200,000/- (Two Lac) to the legal heirs of deceased Syed Zahid Hussain Shah, Muhammad Nawaz and Muhammad Younus as compensation as provided under section 544-A, Cr.P.C. and in default of such payment the accused was ordered to suffer S.I. for six months.
The property of the accused was directed to be forfeited as required under section 7(2) of Anti-Terrorism Act, 1997.
All the sentences wire directed to be run concurrently and the benefit of section 382-B, Cr.P.C. was also extended to the accused.
2. The brief facts of the prosecution case are that complainant Syed Zahid Hussain lodged FIR that his father Syed Zakir Hussain was working in Dargah Nazar Ali Shah, Nasir Jump, Korangi, Karachi for last 30/35 years. On 23.08.2014 one Amir Hussain aged about 12/13 years came to his house and reported that at about 1330 hours two young boys came at Dargah Nazar and after inquiry and meeting with Syed Zakir Hussain left there and came again after about 16 minutes opened fire upon Syed Zakir Hussain, his friend Muhammad Nawaz and Muhammad Younus alias Lahore who as a result thereof succumbed to their whilst the accused also, fired upon Amir Hussain but he remained safe. Accordingly he rushed to the Dargah but his father along with others were shifted to Jinnah Hospital. Accordingly the FIR was lodged against unknown persons.
3. After registration of the case, the investigation was assigned to Inspector Raja Muhammad Shahbaz of PS Model Colony, Karachi, who after usual investigation filed the report under “A Class”. Later on accused Muhammad Ishaque alias Bobi was arrested in other cases and during interrogation the accused made disclosure that he had made firing upon the deceased Syed Zakir Hussain and Muhammad Nawaz, accordingly after collection of evidence the I.O. submitted Challan against the accused for disposal according to law.
4. The accused plead not guilty to the charge and claimed trial. The prosecution in order to prove its case examined 14 witnesses and exhibited various documents and other items. The statement of accused was recorded under section 342, Cr.P.C. in which he denied all the allegations levelled against him and claimed false implication by the police.
5. After hearing the parties and appreciating the evidence on record the trial court convicted the appellant and sentenced him as stated earlier in this judgment and hence, the appellant has filed this appeal against his convictions and sentences.
6. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.
7. Learned counsel for the appellant has contended that the appellant is completely innocent and has been falsely implicated in this case by the police, that the sole eye-witnesses evidence cannot be safely relied upon and even the appellant’s identification parade was legally defective and in short there is no other evidence against the appellant and as such the appellant should be acquitted by being extended the benefit of the doubt, in support of his contentions he has placed reliance on the cases of Shafqat Mehmood and others v. The State (2011 SCMR 537), Gulfam and another v. The State (2017 SCMR 1189), Muhammad Akram v. The State (2009 SCMR 230), Noor Islam v. Ghani-ur-Rehman and another (2020 SCMR 310), Patoo and another v. The State (2012 MLD 58) Torig Pervez v. The State (1995 SCMR 1345), Ashiq Hussain v. The State (1993 SCMR 417) and Hafiz Muhammad Arshad v. The State (PLD 2007 Lahore 324).
8. On the other hand learned APG appearing on behalf of the State has fully supported the impugned judgment and contended that the appeal is without merit and should be dismissed with the confirmation reference being answered in the affirmative. In particular he has contended that the FIR was lodged with promptitude which gave no chance for the prosecution to cook up a false case against the appellant; that the eye-witnesses evidence was reliable, trust worthy and confidence inspiring especially in terms of the correct identification of the appellant who carried out the murders who the eye-witness had picked out at an identification parade and his evidence was fully corroborated by the medical evidence. In support of his contentions he placed reliance on the cases of Noor Ahmed and others v. The State (PLD 2005 Karachi 177), Niaz-ud-Din and another v. The State and another (2011 SCMR 725), Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872), Muhammad Akram Rahi and others v. The State and others (2011 SCMR 877), The State/ANF v. Muhammad Arshad (2017 SCMR 283), Solat Ali Khan v. The State (2002 SCMR 820), Ghazanfar Ali alias Pappu and another v. The State (2012 SCMR 215), Ghulam Abbas v. The State (2022 SCMR 1102), Muhammad Zaman v. The State (2007 SCMR 813) and Muhammad Waris v. The State (2008 SCMR 784).
9. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellant’s counsel, and the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar.
10. At the outset based on the prosecution evidence, especially the medical evidence, the blood and empties recovered at the crime scene we find that the prosecution has proved beyond a reasonable doubt that on 23.08.2014 at about 1315 to 1330 hours Syed Zakir Hussian Shah, Muhammed Nawaz and Muhammed Younis (collectively referred to as the deceased) were all shot and murdered by firearm at Mazar/Shrine Nazar Shah Baba at Nasir Jump Road, Korangi Karachi.
11. The only question left before us therefore is whether the appellant was one of the persons who shot and murdered the deceased at the said time, date and location?
12. After our reassessment of the evidence we find that the prosecution has NOT proved beyond a reasonable doubt the charge against the appellant for which he was convicted keeping in view that each criminal case is based on its own particular facts, circumstances and evidence for the following reasons:
(a) The prosecution’s case rests exclusively on the evidence of the sole eye-witness to the incident and his ability to correctly identify the appellant who allegedly came to the shrine along with another and fired on and caused the murder of the deceased whose evidence we shall consider in detail below;
(i) Eye-witness PW 10 Amir Hussain. According to his evidence on 23.08.2014 he was watering the flowers at the shrine when two persons met him who he informed the Gadinasheen was sitting inside the room. Both the persons went inside the room and came out and left. After a while the two persons returned and started firing at the Gadinasheen and also fired over him to harass him where upon he escaped from the shrine. He later returned to the shrine and saw that the deceased had received firearm injuries and had died. He gave the information to the family members of the Gadinasheen who came and shifted the dead bodies to hospital.
The eye-witness does not appear to be a chance witness as he was working as a gardener at the shrine and also knew the family members of the Gadinasheen and his presence at the crime scene is also mentioned in the FIR which was lodged with promptitude and he had no reason to falsely implicate the appellant.
The timing of his section 161 eye-witness Cr.P.C. statement appears to be in some doubt. The first responder Muhammed Arif PW.8 states in his evidence that the eye-witness approached him at the crime scene and told him that he had seen the incident but he did not record his statement. The first IO PW.15.
Muhammed Naseem Farooqui apparently recorded the section 161, Cr.P.C. statement of the eye-witness a day after the incident and then sent him off to the CTD to draw up sketches of the accused. The second IO PW.14 Jaffar Khan Baloch in his evidence however stated that there was no eye-witness in the police file handed over to him and that there was no statement of eye-witness Amir in the file. He also did not get the sketches of the accused drawn by the eye-witness as according to him he was searching for the eye-witness Amir and that he disposed of the case in “A” class and there was no mention of any eye-witness in his report. The third IO PW 12 Muhammed Khan Qureshi who took up the investigation two years after the incident came to know of eye-witness Amir and tracked him down who then recorded his section 161, Cr.P.C. statement where he stated that he could recognize the accused if he saw them again. Whether the eye-witness gave his section 161, Cr.P.C. statement the next day or two years later what is of significance is that he gave no hulia of the accused. He only said two years later that he could recognize them if he saw them again. Admittedly it was a day time incident but the eye-witness would only have got a fleeting glance of the accused especially during the chaotic firing at the deceased and himself which lead him to flee the incident and he had never seen either of the accused before that day. Even he concedes during cross-examination that in his section 161, Cr.P.C. statement (whenever it was given), that it does not mention whether or not he saw the accused whilst firing on the deceased. Under these circumstances in order to ensure a safe and reliable identification of the accused an identification parade was a requirement.
We find however based on the particular facts and circumstances of the case the correct identification of the appellant by the eye-witness cannot be safely relied upon for the following reasons even if he was present at the time of p the incident; (i) even if the eye-witness gave his section 161 Cr.P.C. statement a day after the incident which appears doubtful he gave no hulia of the accused and thus he had no bench mark in which to correctly identify the appellant at an identification parade. The importance of an early hulia for a correct identification before an identification parade has been emphasized by the Supreme Court in the case of Javed Khan v. State (2017 SCMR 524); (ii) that the eye-witness according to his evidence drew sketches of the accused one day after the incident through the police which would be exceedingly compelling to lead to a correct identification of the accused at a later identification parade however according to the evidence of the last IO PW 12 Muhammed Khan Quershi the sketches drawn by the eye-witness did not match the accused in police custody; (iii) the eye-witness in his own evidence states that the accused was shown to him in police custody before the identification parade as was claimed by the appellant in his section 342, Cr.P.C. statement which makes the identification parade of no significance.
(b) With no eye-witness evidence to the identity who carried out the attack the medical evidence becomes inconsequential as it can only reveal what kind of weapon/device was used and the seat of the injuries of the dead and injured. It cannot identify the person who inflicted the injuries.
(c) It is notable that the appellant confessed to the offence whilst in police custody however he was not produced before a magistrate to record his confession under section 164, Cr.P.C despite being produced before a magistrate for an identification parade and thus we place no reliance on his confession allegedly made before the police.
(d) No evidence was produced to establish as to how and why the appellant came to be arrested in this FIR when at that time there was no evidence against him.
(e) It does not appeal to logic, reason or commonsense that the appellant would confess to such a serious crime as the present one which carried the death penalty whilst in police custody when there was no evidence against him at the time of his arrest.
(f) No recovery was made from the appellant such as a pistol, and hence the empties recovered at the crime scene cannot be linked to him.
13. For the reasons discussed above by extending the benefit of the doubt to the appellant he is acquitted of the charge, the impugned judgment is set aside, his appeal is allowed, the confirmation reference is answered in the negative and the appellant shall be released unless wanted in any other custody case.
14. The appeal and confirmation reference stand disposed of in the above terms.
Appeal allowed