THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Jail Appeal No.43 of 2013

Special Criminal Anti-Terrorism Appeal No.29 of 2013

Special Criminal Anti-Terrorism Appeal No.35 of 2013

Confirmation Case No.02 of 2013

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Appellants: Atif Khan S/o Abdul Majeed in Spl. A.T.J.A. No.43/2013 through Mr. Abdul Razzak, Advocate.

Syed Rizwan Ahmed S/o Jaleel Mian in Spl. Cr. ATA No.35/2013 through Mr. Khan Zaman Khattak, Advocate

Abdul Asif S/o Abdul Zahoor in Spl. Cr. ATA No.29/2013 through Mr. Shaukat Hayyat, Advocate.

Respondent: The State through Mr. Farman Ali Kanasiro, Additional Prosecutor General Sindh and Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh

Date of hearing: 19.02.2019

Date of announcement: 25.02.2019

J U D G M E N T

NAIMATULLAH PHULPOTO, J.- Atif Khan appellant in Special Criminal Anti-Terrorism Jail Appeal No.43/2013, Syed Rizwan Ahmed appellant in Special Criminal Anti-Terrorism Appeal No.35/2013 and Abdul Asif appellant in Special Criminal Anti-Terrorism Appeal No.29/2013, allegedly abducted Qazi Munibul Haq (now deceased) on 10.10.2005 from Karachi for the purpose of extracting ransom, whereafter the dead body of alleged abductee/deceased had been found on 11.10.2005 in the graveyard of Tando Ghulam Hussain, Latifabad Hyderabad. With regard to the recovery of dead body of unknown person FIR No.87/2005 was registered at P.S. “B” Section, Latifabad, Hyderabad under Section 302, PPC on behalf of the state on 12.10.2005. FIR No.216/2005 was lodged by Qazi Mashoodul Haq at P.S. Surjani Town on 23.10.2005 under sections 365-A, 302, 34, PPC. After usual investigation, challan was submitted against the above named accused persons under sections 365-A, 302, 34, PPC read with section 7(a) and (e) of the Anti-Terrorism Act, 1997.

2. The prosecution case, shorn of unnecessary details, may be stated thus, that complainant Qazi Mashoodul Haq lodged report on 23.10.2005, stating therein that on 10.10.2005 his son Qazi Munibul Haq proceeded to Ali Garh University but did not return home. Complainant searched for his missing son and received information that his son was last seen along with appellant Atif proceeding towards Highway, Karachi. It is further alleged that on 13.10.2005 complainant received information on cell phone that his son has been abducted by unknown persons, who had demanded Rs.1,000,000/- as ransom otherwise threatened to the complainant that he would receive the dead body of his son. Complainant could not make arrangement of such huge ransom amount. A news was published in newspaper showing the dead body of son of complainant. Complainant’s relative Muhammad Mazhar Iqbal went to police station “B” Section Latifabad Hyderabad for verification. He had seen the photograph of the deceased at police station then proceeded to mortuary of Hyderabad where he identified the dead body of complainant’s son, who had injuries on his head and neck. The report was lodged under suspicion against appellant Atif and others for abduction of complainant’s son, demanding ransom money consequent thereof he was done to death. The investigation was conducted by incharge AVCC, after usual investigation, challan was submitted against the accused under sections 365-A, 302, 34 PPC read with section 7(a) and (e) of the Anti-Terrorism Act, 1997.

3. Trial court framed charge against the accused on 19.01.2006 under the above referred sections. Accused pleaded not guilty and claimed to be tried. Prosecution examined 14 prosecution witnesses. Thereafter, prosecution side was closed.

4. Statements of accused were recorded under sections 342, Cr.PC at Ex.63 to 65. Accused denied the prosecution allegations and claimed false implication in this case.

5. Learned Judge, Anti-Terrorism Court-V, Karachi, after hearing the parties, convicted the appellants under Section 7(a) and (e) of the Anti-Terrorism Act, 1997 read with sections 365-A, 302, 34, PPC and sentenced to death on two counts vide judgment dated 18.04.2006. Trial court made Reference to this Court for confirmation of death sentence under Section 374, Cr.PC.

6. Appellants challenged their conviction and sentence before this Court in Appeals Nos.10, 11 and 12 of 2006, which were heard by a learned Division Bench of this Court along with Confirmation Case No.04/2006 and vide Judgment dated 11.06.2009, the learned Division Bench of this Court allowed Appeals Nos.10, 11 and 12 of 2006, set aside the conviction and sentence recorded by the trial court and remanded the case back to the trial court to proceed with the trial from the stage of framing of charge and record the prosecution evidence afresh. Consequent thereupon, Confirmation Reference No.4/2006 was answered in negative.

7. Trial court framed amended charge on 20.07.2012 under the above referred sections. Accused pleaded not guilty and claimed to be tried.

8. During trial prosecution examined 14 witnesses to prove its case, PW-1 Qazi Mashoodul Haq at Ex.P/1, PW-2 Muhammad Mazhar Iqbal at Ex.P/6, PW-3 Khawaja Muhammad Jawed at Ex.P/10, PW-4 SIP Nasir Nawaz at Ex.P/12, PW-5, Faisal Sagheer Siddiqui at Ex.P/20, PW-6 Adnan Ali at Ex.P/21, PW-7 Naeem Akhtar at Ex.P/22, PW-8 PC Farid Ahmed at Ex.P/23, PW-9 Dr. Abdul Waheed at Ex.P/27, PW-10 Abdul Jabbar at Ex.P/29, PW-11 Mehmood Hussain at Ex.P/29, PW-12 Bahram Khan at Ex.P/32, PW-13 SIP Muhammad Ramzan at Ex.P/33 and PW-14 SIP Tahir Naseer at Ex.P-34. Thereafter prosecution side was closed at Ex.54.

9. In the statements of accused recorded under Section 342, Cr.PC at Ex.55 to 57, appellants denied and controverted all the allegations leveled against them by the prosecution and professed their innocence. Appellants, however, opted not to make statement on oath under Section 340(2), Cr.PC and did not produce any evidence in their defence.

10. Trial court after hearing the learned counsel for the parties and assessment of evidence, convicted the appellants under sections 7(a) and (e) of the Anti-Terrorism Act, 1997 read with sections 365-A, 302, 34, PPC and sentenced to death on two counts. Trial court made Reference No.2/2013 to this Court for confirmation of death sentence.

11. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the Judgment dated 20.07.2013 passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

12. Learned counsel for the appellants argued that there was inordinate delay in lodging of FIR, without plausible explanation; that PW-3 Khawaja Muhammad Jawed was the chance witness, he was residing at Karachi and he could not explain his presence in the graveyard at night time at Latifabad, Hyderabad at the time of incident. It is further argued that this is the case of capital charge the testimony of the chance witness requires independent corroboration, which is not available in this case. It is submitted that it was night time incident, according to prosecution evidence accused was identified on bulb light but no bulb was recovered by the investigation officer during investigation. It is further argued that evidence of PW-3 was not believable as he had made no efforts to call the persons of the vicinity to save the life of the deceased who was lying seriously injured at that time. It is further contended that no ransom was paid for the release of alleged abductee/deceased. It is argued that the complainant had received calls from the appellants demanding ransom for release of his son but call data did not and could not disclose the contents of conversation which had taken place during the making of those calls. It is contended that recovery of churri was meaningless in absence of any disclosure statement. As regards to the identification parade, it is argued that it was jointly conducted by a Magistrate and practice of conducting of a joint identification parade of multiple accused persons in one go has not been approved by the superior Courts. Mr. Khan Zaman appearing on behalf of appellant Syed Rizwan Ahmed has adopted the arguments advanced by Mr. Abdul Razzak, counsel for appellant Atif Khan.

In support of such contentions, reliance is placed on the following cases:

1. 2017 SCMR 1189 (Gulfam and another versus The State)

2. PLD 2018 SC 813 (Muhammad Abid vs. The State & another

3. 2015 SCMR 1142 (Mst. Sughrra Begum & other Vs. Qaiser Pervez & Others

4. 2008 SCMR 707 (Ali Sher and others vs. The State)

5. 2010 SCMR 1604 (Mst. Askar Jan & Others vs. Muhammad Daud & Others)

6. 2016 SCMR 274 (Azeem Khan & other vs. Mujahid Khan & others)

7. 1993 SCMR 2229 (Bhimappa Jinnappa Naganur vs. State of Karnataka)

13. Mr. Farman Ali Kanasiro, learned Additional Prosecutor General Sindh, argued that PW-3 had witnessed the incident and he has fully implicated the appellants in the commission of offence. He has further argued that appellants made calls to the father of the deceased for ransom and call data has been produced before the trial Court. Learned Additional P.G. submitted that PW-6 had deposed that appellant Asif made calls to him for credit of Rs.30/- in Cell No.0345-2208958 belonging to the deceased. Lastly, learned Additional P.G. Sindh argued that churri was produced by appellant Atif Khan from graveyard and report of chemical examiner was positive. Learned APG has supported the case of prosecution and prayed for dismissal of appeals. In support of his contentions, he relied upon the following cases:

1. PLD 2007 SC 71 (Ghulam Hussain Soomro vs. The State)

2. 2013 SCMR 1314 (Hamid Mahmood Vs. The State)

3. 2009 SCMR 1440 (Nazir Shahzad Vs. State)

4. 1999 SCMR 2758 (Rafaqat Ali Vs. The State)

5. 2011 SCMR 1046 (Said Muhammad Vs. The State)

6. 2010 SCMR 1752 (Muhammad Ashraf Vs. The State)

7. 1982 SCMR 531 (Nizamuddin vs. The State)

8. 1999 MLD 514 (Hasanullah Vs. The State)

14. We have carefully heard the learned counsel for the parties and scanned the entire evidence.

15. It is admitted at all hands that the alleged murder had taken place in the graveyard at Latifabad Hyderabad on 11.10.2005 at night time. PW-3 Khawaja Muhammad Jawed who claimed to be the eyewitness of the incident deposed that he had seen appellants Rizwan and Atif on the bulb light that they were hitting the big stones to the deceased and condition of injured was serious. If it was so, it was the duty of the eyewitness to have reported the matter immediately to the police or to the shopkeepers or he was supposed to shift injured to hospital but it was not done by him. PW-3 Khawaja Muhammad Jawed made no efforts to save the life of seriously injured person. We are unable to believe ocular account furnished by PW-3 for the reason that he was resident of Karachi. No proof of purchase of glass bangles has been furnished by him. There is no convincing explanation that he was present in the graveyard at Latifabad, Hyderabad at the time of incident. A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt.

16. Ocular account in the cases of kidnapping for ransom/Qatl-i-Amd plays a decisive and vital role and once its intrinsic worth is accepted and believed then the rest of the evidence, both circumstantial and corroboratory in nature, would be required as a matter of caution. To the contrary, once the ocular account is disbelieved then no other evidence, even of a high degree and value, would be sufficient for recording conviction on a capital charge therefore, probative value of the ocular evidence has to be seen in the light of the facts and circumstances of the case. Apart from that, according to PW-3 he witnessed the incident on the bulb light as it was night time. IO had deposed that there was no bulb in the graveyard. We are clear in our minds that PW-3 Khawaja Muhammad Jawed had not witnessed the incident for the reasons that he failed to provide sufficient explanation appealing to a prudent mind for his presence on the crime spot when occurrence of the murder took-place. Moreover, ocular account is belied by medical evidence. PW-3 had stated that two accused persons committed murder by hitting stones to the deceased. According to doctor, who conducted postmortem examination of the deceased, cause of death was hemorrhage and shock due to injuries caused by sharp edged weapon. During the investigation, appellants Rizwan and Atif led the police to the graveyard, the place of incident, where appellant Atif produced churri from the bushes. It is very shocking that the trial court had not properly appreciated the ocular evidence and relied upon it without application of independent mind. The authenticity and correctness of the evidence of PW-3 has thus, been found by us to be quite doubtful.

17. As regards to identification parade, incident took place on 10.10.2005, accused were arrested on 25.10.2015, identification parade was held on 29.10.2005, through PW-3 Khawaja Muhammad Jawed. Identification parade memo produced before the trial court at Ex.29 reflects that it was joint identification parade of two accused persons, namely, Rizwan and Atif in one go. Holding of joint identification parade of multiple accused persons in one go has been disapproved by the Honourable Supreme Court, in the case of GULFAM and another Vs. The STATE (2017 SCMR 1189). It is held as under:

“5.         The prosecution had maintained that the present appellants had correctly been identified by the above mentioned eye-witnesses during a test identification parade conducted and supervised by a Magistrate but we note that the parade so conducted and held was a joint parade in which both the present appellants had been made to stand along with many other dummies. Holding of a joint identification parade of multiple accused persons in one go has been disapproved by this Court in many a judgment and a reference in this respect may be made to the cases of Lal Pasand v. The State (PLD 1981 SC 142), Ziaullah alias Jaji v. The State (2008 SCMR 1210), Bacha Zeb v. The State (2010 SCMR 1189) and Shafqat Mehmood and others v. The State (2011 SCMR 537).”

Moreover, identification parade was conducted and supervised by Mr. Farid Anwar Qazi, Civil Judge & Judicial Magistrate, Karachi West. He has not been examined by the prosecution at trial.

18. Even identification of the appellants before the trial court during trial could not be relied upon for conviction because before such identification before the trial court, witness Khawaja Muhammad Jawed had many opportunities to see the appellants at different stages of this case. As already we have held that medical evidence produced by the prosecution was also deficient in many ways. Dead body of unknown person was brought by SIP Bahram Khan of PS Latifabad, Hyderabad in the Shah Latif Bhittai Government Hospital on 12.10.2005 at 12:30 p.m. and postmortem examination was conducted after about 12 hours. Delay in conducting postmortem has not been explained by the prosecution. According to the opinion of the medical officer, death was caused due to cutting of throat and large vessels by sharp edged weapon, resulted in hemorrhage and shock whereas according to the eyewitness by means of stones injuries were caused to the deceased by two persons. Ocular evidence is contradictory to medical evidence. Recovery of churri on the pointation of appellants in the graveyard would not be sufficient to connect the appellants in the commission of offence for the reason that churri was produced by accused Atif Khan on 25.10.2005 at 1515 hours, but it was sent to the chemical examiner on 24.11.2005. It is admitted by learned Additional P.G. that there is no statement of accused or information given to the police by accused during investigation which is an essential requirement of Article 40 of the Qanun-e-Shahadat Order, 1984. Prosecution in order to apply Article 40 of the Qanun-e-Shahadat Order, 1984 must establish that information given by accused Atif led to the discovery of some facts deposed by him and the recovery must be of some fact which the police had not previously learnt from any other source and that the knowledge of the fact was first derived from the information given by the accused as held in the case of Mst. ASKAR JAN and others vs. MUHAMMAD DAUD and others (2010 SCMR 1604). We have no hesitation to hold that recovery of churri cannot be described as a discovery under Article 40 of the Qanun-e-Shahadat Order, 1984. Apart from that, there was no evidence that churri was kept in safe custody at Malkhana for about one month. IO has stated that he was on casual leave. Delay in dispatch to expert has not been explained. Safe custody of the churri at Malkhana and safe transmission to the chemical examiner have not been established at trial.

19. The cell phone call data collected and produced before the trial court is of no help to the prosecution for the reason that numerous calls have been made indicating continuous interaction between the two cell phones. It is the matter of record that unknown caller made calls on the cell number of the complainant from the cell number of his son. No competent witness was produced at trial, who produced the call data at Ex.14. Moreover, original call data has also not been produced. No voice record transcript has been brought on record. As regards to audio cassette, no voice expert has been examined by the prosecution to prove its case. Similarly, from which area caller made calls has also not been shown in the call data. Above all, the most crucial aspect that cell phone was owned by the deceased from which calls were made when it was recovered from the accused was not sealed. Mashir of recovery was PW-2 Muhammad Mazhar Iqbal, relative of the deceased. In this view of the matter, this piece of evidence is absolutely inconclusive and of no benefit to the prosecution nor it connects the accused with the crime in any manner. Reliance is placed upon the case of AZEEM KHAN versus MUJAHID KHAN (2016 SCMR 274), it is held as under:-

“22.       The cell phone call data collected is of no help to the prosecution for the reasons that numerous calls have been made indicating continuous interaction between the two cell phones, contrary to the evidence given by Muhammad Wali (PW-3), who has stated at the trial that the unknown caller made calls on his cell phone four times. No competent witness was produced at the trial, who provided the call data, Ex.P-1 to Ex.P-5. No voice record transcript has been brought on record. Similarly from which area the caller made the calls, is also not shown in it. Above all, the most crucial and conclusive proof that the cell phone was owned by the accused and SIM allotted was in his name is also missing. In th is view of the matter, this piece of evidence is absolutely inconclusive and of no benefit to the prosecution nor it connects the accused with the crime in any manner.”

20. We have carefully examined the evidence of PWs 5 and 6 with regard to the credit of Rs.30/- given by them to appellant Asif but no evidence through modern device to that extent is produced before the trial court. Even at trial, PWs 5 replied that “I cannot produce the record to prove that I had transferred Rs.30/- to the said cell number of Asif”. PWs 5 and 6 had also failed to provide some convincing explanation, on which understanding credit of Rs.30/- was given to accused by them. Therefore, this piece of evidence is also insufficient to connect the accused in the commission of offence.

21. In these circumstances and after an independent evaluation of the evidence available on record, we have no matter of doubt in our minds that prosecution has been unable to prove its case against the appellants beyond any reasonable doubt. Needless to mention that while giving the benefit of doubt to accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance if place upon the case of MUHAMMAD MANSHA vs. The STATE (2018 SCMR 772). Relevant portion is reproduced as under:

“4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).”

22. For what has been discussed above, a conclusion is unavoidable that prosecution has failed to prove its case against the appellants beyond reasonable doubt. These appeals are, therefore, allowed, the convictions and sentences of the appellants are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case. Confirmation Reference No.02/2013 made by the trial Court is answered in negative.

J U D G E

J U D G E

Gulsher/PS