THE HIGH COURT OF SINDH AT
KARACHI
Special Criminal
Anti-Terrorism Acquittal Appeal No.22 of 2010
Present:
Mr. Justice Naimatullah Phulpoto
Mr. Justice Mohammad Karim
Khan Agha
Appellant:
The State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor
General Sindh.
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Respondent:
Kamran alias Kami son of Muhammad Yousuf and Muhammad Farhan alias
Goal alias Shani son of Faqir
Muhammad through Mr. Abdul Razzak, Advocate
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Date of hearing:
19.10.2018
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Date of announcement: 29.10.2018
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J U D G M E N T
NAIMATULLAH
PHULPOTO, J.-
Kamran alias Kami and Muhammad Farhan alias Goal alias Shani,
appellants, were tried by learned Judge, Anti-Terrorism Court-I, Karachi in
Special Cases Nos.43/2006 and 23/2009. Vide judgment dated 27.03.2010, respondents/accused were acquitted of the charges in
the cases. Hence, the State has filed instant Criminal Acquittal Appeal against
the respondents/accused.
2.
According to the
case of prosecution, on 19.09.2006 at 0300 hours, complainant Muhammad Jameel lodged FIR at P.S. Saudabad,
in which he stated that he was employee of PTCL and was residing in House
No.PS-14/10, Malir Extension Colony, Karachi; his
elder brother Muhammad Wakeel was residing along with
his family in House No.H-95/5, Nishtar Square, Malir Colony, Karachi, working as police constable and
posted at P.S. Khokhrapar, where he was performing
intelligence duty. It is alleged that on 18.09.2006 at 2045 hours, he along
with his friend Syed Zahid son of Haseeb
Ali Zaidi were murdered by unknown culprits. Both
dead bodies were referred to Jinnah Hospital by police for postmortem
examination. Complainant on receipt of such information, along with Muhammad
Ali son of Muhammad Israfeel rushed to Jinnah
Hospital, where he saw the dead bodies of his brother Muhammad Wakeel and Syed Zahid lying in
mortuary. SIP Rawail Khan Khattak
prepared inquest report under section 174 Cr.PC.
After postmortem, dead bodies were handed over to him for funeral purpose. Complainant
further disclosed that unknown culprit without any reason had made firing upon
his brother Muhammad Wakeel and his friend Syed Zahid with firearms at/near Shadiana
Hall, Main Mufti Naeemi Road, Malir
Colony, Karachi. FIR of the incident was lodged on 19.09.2006
vide Crime No.95/2006 at P.S. Saudabad, Karachi under
sections 302/34, PPC read with section 7(a) of the Anti-Terrorism Act, 1997.
3.
Investigation of
the case was entrusted to Incharge Investigation
Inspector Shaukat Ali, who inspected the place of
incident on the pointation of complainant and secured
empty shells, blood stained earth and mobile phone and took into possession
motorcycle of deceased and prepared such memo, IO recorded 161, Cr.PC statements of the PWs. IO got prepared sketches of
accused through eyewitness from CPLC Malir and
started search of accused. Due to illness of IO, investigation of the case was
entrusted to SIP Abdul Rauf. During investigation, IO
came to know that accused Muhammad Kamran alias Kami son of Muhammad Yousuf and Muhammad Farhan alias
Goal alias Shani son of Faqir
Muhammad have been arrested by CID Napier Police in Crime No.190, 2006, under
sections 353, 324, 34, PPC and Crimes Nos.191 and 192 of 2006 under section
13(d) of the Pakistan Arms Ordinance, 1965; during interrogation, they admitted
commission of offence of other police stations of Karachi so also offence of
this case. On such information, on 20.10.2006, IO went to PS CID Napier and
after interrogation, he arrested both the accused in this case and in 2 other
Crimes No.88, under section 302/34, PPC read with section 7 of the
Anti-Terrorism Act, 1997 and Crime No.62/2006 under sections 302, 34, PPC read
with section 7 of the Anti-Terrorism Act, 1997, of the same police station. IO
obtained police custody remand of accused. However, during interrogation, on
26.10.2006 both accused admitted the commission of offence of Crime No.110/2006
under section 302/34, PPC and pointed out the place of incident. They further disclosed
that weapons and motorcycle used in this crime have been recovered by CID
police at the time of their arrest, in Crime No.190/2006. IO obtained photo
fingerprints of both the accused. On 02.11.2006, IO produced both the accused
before the Judicial Magistrate for identification parade, where witnesses
identified both the accused. Thereafter, both accused were remanded to jail
custody. On 07.11.2006 empty shells, which were secured from the place of
incident and sent to FSL, for examination and blood stained clothes of both the
deceased were sent to chemical examiner for examination and report. On
completion of investigation, IO submitted challan
against both the accused under the above referred sections.
4.
Trial court framed charge against both the
accused under the above referred sections at Ex.4. Both accused pleaded not
guilty and claimed to be tried.
5.
At trial, prosecution examined PW-1 complainant Muhammad Jameel at Ex.7, PW-2 HC Khalid Riaz
at Ex.8, PW-3, Muhammad Slalahuddin at Ex.9, PW-4 SIP
Abdul Sattar at Ex.10, PW-5, SIP Sajjad
Khan at Ex.11, PW-6 SIP Shaukat Ali at Ex.12, PW-7,
Mr. Maqbool Ahmed Memon,
Civil Judge & Judicial Magistrate at Ex.13, PD-8 Dr. Abdul Razzak at Ex.14, PW-9 Dr. Pardeep
Kumar, PW-10 Arif Khan at Ex.16, PW-11 Muhammad Hussain at Ex.17, PW-12 Abdul Rauf
at Ex.19. Thereafter, prosecution
side was closed vide statement dated 13.01.2010 at Ex.20.
6.
Trial court
recorded statement
of accused under section 342, Cr.PC at Ex.21 and
Ex.22, in which accused claimed false implication in this case and denied the
prosecution allegations. Both accused declined to give statement on oath. They
also did not lead any evidence in disproof of prosecution allegations.
7.
Trial court after hearing the learned counsel for the parties and
assessment of the evidence available on record, vide judgment dated 27.03.2010,
recorded acquittal of the
accused/respondents, hence this acquittal appeal is filed by State.
8.
Mr. Muhammad Iqbal Awan, learned D.P.G. argued
that trial court has failed to appreciate the evidence of eyewitnesses Arif Khan and Muhammad Hussain,
who have fully supported the case of the prosecution and identified the accused
in identification parade; that trial court had failed to appreciate the fact
that respondents are habitual offenders, several cases are pending against them
and respondent No.1 Kamran alias Kami is a previous convict; that respondents
voluntarily led the police party to place of incident in presence of witnesses
and weapon recovered from the accused matched with the empty shells secured
from the place of incident. Lastly, argued that prosecution witnesses had no
enmity with the respondents/accused to falsely implicate them in a murder case and
prayed for converting the acquittal, to conviction.
9.
Mr. Abdul Razzak, learned counsel for the respondents, argued that evidence
of both the eyewitnesses was not
reliable as they were involved in criminal cases; there are major
contradictions in their evidence as observed by the trial court. He further
argued that learned trial court has rightly rejected the evidence of
eye-witnesses Abdul Rauf and Muhammad Hussain as both witnesses could not explain their presence
at the place of occurrence. He prayed for dismissal of the acquittal appeal.
10.
After hearing learned counsel for the parties, we have carefully gone
through the entire evidence and impugned judgment, particularly the reasons
recorded by trial court for acquittal. It appears that trial court has
acquitted the Respondents/accused, vide judgment dated
14.11.2012, mainly for the following reasons:
“I have
gone through the evidence led by the prosecution on record and also considered
the arguments of learned SPP for the State and defence
counsel. There are major discrepancies and contradictions in the evidence of
prosecution witnesses. The credibility of two important/star witnesses examined
by the prosecution namely Arif Khan and Muhammad Hussain and they are eyewitnesses of alleged incident is
highly doubtful and untrustworthy, at the time of identification parade accused
made complaint to learned Magistrate that they had been shown to the witnesses
at police station prior to the identification parade, but learned Judicial
Magistrate did not verify this version from the witnesses. According to
prosecution version they were present at the place of incident at the time of
incident but their version in their statements is contradictory to each other
and they have not given specific roles of accused in their evidence, even their
presence at the spot is highly doubtful. Material discrepancies appear in the
statements of prosecution witnesses as they have contradicted each other on
material particulars of the case. It has been also observed that eyewitnesses Arif Khan was Ex-police official, he was posted at P.S. Saudabad and he was involved in a murder case registered at
P.S. Saudabad so also in other criminal cases and he
was also terminated from his police service and he denied that he did not know
the mother of accused Kamran, but on production of his photograph snapped with
mother of accused Kamran, he admitted above facts during his cross-examination,
he also admitted in his cross-examination that he did not see witness Muhammad Hussain at the alleged place of incident on 18.09.2006,
therefore, he has lost the credibility of his evidence, while other
eyewitnesses Muhammad Hussain who was also having
criminal record and such FIR No.153/2009 under section 5-A Gambling Act also
registered at P.S. Khokhrapar against him, but he
denied the same facts in his cross-examination, but when certified copies of
the above FIR and other relevant documents were produced by learned defence counsel, he admitted the same, as such he has lost
the credibility of his evidence. Law requires that prosecution is duty bound to
prove its case beyond any reasonable doubt, and if any single and slightest
doubt is created, benefit of the same must go to the accused and it is
sufficient to discredit prosecution story. Despite
presence of the independent persons of the vicinity at vardat
at the relevant time, no one was examined as witness in the case to support the
case of the prosecution on the factum of incident. All such circumstances have
rendered the case of prosecution as doubtful. Proof of guilt of an accused
cannot be based upon probabilities how highsoever the
same may be. Finding of guilt in each criminal case should be based upon
unimpeachable evidence on record. Prosecution must affirmatively prove the
circumstances under which the act was committed. Such burden never shifts to defence. In failure of discharge of such burden by the
prosecution, the golden rule of benefit of doubt to the accused comes into
play. Conviction must be based
on impeachable evidence and certainty of guilt and any doubt arising in the prosecution case
must be resolved in favour of the accused. Contradiction made by
prosecution witnesses in the identification parade, is evidence of the fact
that neither they were present at the place of incident nor they had seen
the incident and they appear to have been setup by the prosecution to act as
eyewitness. Identification test is a very weak piece of evidence and any
doubtful circumstance may wholly damage its evidentiary value. Eyewitness
account of incident furnished by prosecution witnesses being interested,
discrepant, unreliable, inconsistent, untrustworthy, inspired no confidence.
Evidence adduced by prosecution has never been subjected to legal scrutiny,
prosecution, in circumstances, has failed to bring home guilt to accused beyond
reasonable doubt. The evidence of identification parade is not the sole
criteria to prove the case against unknown assailants. It is well settled that
prosecution has to prove charge against them if the identity of accused is sufficiently
proved by other convincing evidence i.e. direct or circumstantial evidence.
Recovery is a corroborative piece of evidence which by itself is not sufficient
to convict accused.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. It is also held in 2007 YLR 723 that doubt
however slight it might be is to be given to accused. After reliance on the
above citations and there are major contradictions found in the statements of
prosecution witnesses, the prosecution has miserably failed to establish the
charge against both the accused. Therefore, this point is decided as not
proved.”
11.
In the present
case, PWs Arif Khan and Muhammad Hussain
claimed to be the eye witnesses of the incident. They failed to establish their
presence at place of incident and their evidence suffered from multiple discrepancies.
PW-10 Arif Khan has deposed that on 18.09.2006 at
about 08:00 or 08:30 p.m. he was returning from Jinnah Square, Mufti Naeemi Road and saw two persons coming from Urdu Nagar side
and fired upon deceased persons who were going on motorcycle. PW Muhammad Hussain has also deposed that on 18.09.2006 at 08:30 p.m.
after purchase of gold articles, he was returning back and when reached at
Mufti Naeemi Road, two motorcycles appeared,
two persons on each motorcycle. Suddenly, persons sitting on a motorcycle fired
upon two persons, sitting on another motorcycle, who sustained
injuries and fell down and he witnessed the incident. People of the area
gathered at the time of incident. Due to fear he went to his house. PW Arif in his cross-examination was confronted to the fact that
he was serving in Police Department and he was dismissed from service. He further
admitted about his photograph with the mother of accused Kamran, which
reflected that he knew accused Kamran before the incident. It is the matter of
record that it was nighttime incident, source of light
has not been disclosed. Trial court, for valid and sound reasons, has rejected
the ocular evidence. Identification parade of the accused was also defective
for the reason that accused had raised plea that PWs/eyewitnesses had seen them
at police station before identification parade. Contention of the leaned D.P.G.
that identification parade before the trial court was sufficient but we are
unable to agree with his contention for the reason that in the peculiar
circumstances of the case, PWs had several opportunities to see the accused
persons. As such, identification before trial court was unsafe as held by the Honourable Supreme Court in the case of JAVED KHAN alias BACHA and another versus The
STATE (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. “
12.
In the case of the 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.”
13.
In the present
case, prosecution failed to prove its case against the respondents beyond any
reasonable doubt. Judgment of trial court is well reasoned. Findings of
acquittal can only be upset if the same are found to be perverse, arbitrary, foolish or based on misreading or non-appraisal of the
evidence.
14.
For what has been
discussed above, we are of the considered view that impugned judgment dated 27.03.2010
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 any 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
J U D G E
Gulsher/PS