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