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Petitioner: Nazeer Ahmed S/o Sardar Muhammad VS Respondent: The State
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Zulfiqar Ali Sangi Title: Nazeer Ahmed S/o Sardar Muhammad vs The State Case No.:Special Criminal Anti-Terrorism Appeal No.155 of 2021 Special Criminal
JUDGMENT
Reported As: 2022 SHC 364 Result: Appeal Disposed of Judgment JUDGMENT ZULFIQAR ALI SANGI, J. Being aggrieved and dissatisfied with the common judgment dated 18.09.2021 passed by learned Judge, Anti-Terrorism Court No.II, Karachi in Special Case No.361/2019 arising out of FIR No.203/2019 for the offences punishable U/S 302/324/34 PPC r/w Section 7 ATA, 1997 registered at PS Darakshan, Karachi and Special Case No.361-A/2019 arising out of FIR No.40/2019 for the offences punishable U/s 23(i)A of Sindh Arms Act, 2013 registered at PS Sahil, Karachi; whereby the appellant was convicted U/s 302 PPC punishable U/s 6(2) punishable U/s 7 clause (a) of ATA and sentenced to hang by neck till death on two counts subject to confirmation by this Court. The appellant was also fined Rs.10,00,000/- each to be paid to the legal heirs of PC Khalid and Ramzan. The appellant was also convicted U/s 324 PPC for causing three firearm injuries to Saeed and sentenced to imprisonment for 7 years and fine of Rs.100,000/- to be paid to the injured Saeed. The appellant was also convicted U/s 23(1)A SAA for possession of unlicensed 9 mm pistol and sentenced to RI for 7 years and fine of Rs.50,000/-. However, the benefit of Section 382-B Cr.P.C. was extended to the appellant by the trial court. 2. Brief facts of the case mentioned in the charge sheet are that FIR bearing No.203/2019 U/s 302/324/34 PPC r/w Section 7 ATA, 1997 of Police Station Darakhshan had been lodged on 07.04.2019 by ASI Mujahid Iqbal of Police Station Darakhshan and it has been mentioned by the complainant that on 07.04.2019, he along with police officials namely HC Qaiser Manzoor, HC Naeemullah, PC Ghulam Qadir and Driver Kosar Abbas in Mobile-II bearing No.SPD-963 were patrolling in the area when they had reached at Bara Bukhari, DHA in the morning at about 03:00 to 03:15 a.m. when they heard sound of heavy firing, as such, they went towards the place where from
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the sound of firing was heard and saw that near one white colour Vigo No.KV-0857 one young person having small beard wearing shalwar qameez was identified in the light of mobile and street light was firing and he went to nearby standing car bearing No.BAS-637 Suzuki Cultus dark blue colour and that young person sat in that Cultus car in which 3/4 persons were already sitting, who were armed with heavy weapons, and they escaped towards Chota Bukhari in the said car. The complainant ASI Mujahid Iqbal saw that one PC Khalid Mehmood, on intelligence duty of PS Darakhshan in civilian clothes, was found severely injured being hit with firearm bullet and at a distance of 10 to 15 paces one motorcycle without number black colour was also lying on the ground. Two persons who had also sustained firearm injuries were also lying at a little distance in injured condition and near them a motorcycle bearing Registration No.KKR-0456 Maker Super Power was lying. The said ASI immediately informed Police Station Darakshan and cordoned-off the area. The incident was seen by the police officials in the mobile, the driver of mobile and other persons also. Chippa ambulances were called and injured were sent to the Jinnah Hospital and the relevant proceedings were conducted on the spot. Memo was prepared, live rounds and other articles were taken in possession from the spot. Superior officers were informed accordingly. Intelligence officials of Darakhshan Police Station HC Abdul Rauf, PC Muhammad Afzal, Driver PC Azam Khan reached at the spot. ASI Amjad Parvez, Duty Officer, went to the Jinnah Hospital where PC Khalid Mehmood, Muhammad Ramzan son of Allah Ditta had succumbed to firearm injuries and died. The third injured namely Saeed Ahmed son of Allah Bachaya was treated in Emergency Ward. The FIR was lodged with respect to Vigo bearing No.KV-0857 white colour in which a young person with small beard having fair complexions wearing shalwar qameez was firing escaped in Suzuki Cultus car bearing Reg. No.BAS-637 of dark blue colour in which 3/4 persons were sitting, said person had killed innocent people spread terrorism by firing on account of which PC Khalid Mehmood of PS Darakhshan and Muhammad Ramzan son of Allah Ditta were killed, and Saeed son of Allah Bachaya was injured. The act of the accused falls u/s 302/324/34 PPC r/w Section 7 of ATA, 1997, prima facie, case was made out and the said FIR had been lodged and the investigation was entrusted to the Investigating Officer Inspector Muhammad Aijaz Awan. 3. After completing the usual investigation, charge against the appellant was framed on 25.10.2019, to which he pleaded not guilty and claimed to be tried. 4. The prosecution in order to prove its case examined 16 Prosecution 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 allegations leveled against him. After appreciating the evidence on record, the learned trial Court convicted the appellant as mentioned above; hence, the appellant has filed these appeals against his convictions. 5. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 18.09.2021 passed by the learned trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition. 6. Learned counsel for the appellant have contended that the appellant is innocent and has falsely been implicated in this case; that the prosecution has miserably failed to prove the charges against the appellant; that the learned trial Court while pronouncing the judgment did not assess the evidence properly; that the identification parade of the appellant was conducted after a delay of about 07 days for which no explanation was provided; that the alleged Vigo bearing No.0857 is not registered in the name of appellant, in fact, the same is in the name of one Nafas Khan, who was also not examined; that no CCTV footages were obtained from the scene by the police to corroborate its version; that no private witness was examined from the scene who might have heard the gunshot firing. They lastly pray for the acquittal of the appellant. They have placed reliance on Basharat Ali vs. Muhammad Safdar and another (2017 SCMR 1601), Zaheer Sadiq vs.
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Muhammad Ijaz and others (2017 SCMR 2007), Abdul Jabbar alias Jabbari vs. The State (2017 SCMR 1155), Kamal Din alias Kamala vs. The State (2018 SCMR 577), Nawab Siraj Ali and others vs. The State through P.G. Sindh and A.G. Sindh (2020 SCMR 119), Muhammad Ashraf vs. The State (2020 SCMR 1841), Muhammad Imran vs. The State (2020 SCMR 857), Naveed Asghar and 2 others vs. The State (PLD 2021 SC 600), Gul Zarin and other vs. Kamal-ud-Din and others (2022 SCMR 1085), Khalid Mehmood alias Khaloo vs. The State (2022 SCMR 1148) and Rafaqat Ali vs. The State (2022 SCMR 1107). 7. On the other hand, learned Addl. P.G. Sindh has fully supported the impugned judgment on the basis of evidence produced by the prosecution before the trial Court. 8. We have heard the learned counsel for the appellant in both the appeals as well as learned Addl. P.G. Sindh and perused the material available on record with their able assistance. 9. The ruthless and ghastly murder of two persons and receiving three firearm injuries by one person is a crime of heinous nature; but the frightful nature of crime should not blur the eyes of justice, allowing emotions triggered by the horrifying nature of the offence to prejudge the accused. The rule is that the cases are to be decided on the basis of evidence and evidence alone and not on the basis of sentiments and emotions. The gruesome, heinous or brutal nature of the offence may be relevant at the stage of awarding suitable punishment after conviction; but it is totally irrelevant at the stage of appraising or reappraising the evidence available on record to determine guilt of the accused person, as possibility of an innocent person having been wrongly involved in cases of such nature cannot be ruled out. An accused person is presumed to be innocent till the time he is proven guilty beyond reasonable doubt, and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond reasonable doubt on the basis of legally admissible, confidence inspiring, trustworthy and reliable. No matter how heinous the crime, the constitutional guarantee of fair trial under Article 10A cannot be taken away from the accused. It is, therefore, duty of the court to assess the probative value (weight) of every piece of evidence available on record in accordance with the settled principles of appreciation of evidence, in a dispassionate, systematic and structured manner without being influenced by the nature of the allegations. Any tendency to strain or stretch or haphazardly appreciate evidence to reach a desired or popular decision in a case must be scrupulously avoided or else highly deleterious results seriously affecting proper administration of criminal justice will follow as has been held by the Supreme Court of Pakistan in the case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600). It is well settled by now that the prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case of Wazir Mohammad v. The State (1992 SCMR 1134), it was held by Supreme Court of Pakistan that "In the criminal trial it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution." The Supreme Court in another case of Shamoon alias Shamma v. The State (1995 SCMR 1377) held that "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case. Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise." 10. Turning to the case in hand the prosecution to prove the ocular evidence has examined PW2 ASI Mujahid Iqbal the complainant, PW3 HC Qaiser Manzoor, PW4 Saeed Ahmed (injured) and PW10
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Muhammad Akeel all claiming to be the eyewitness of the incident. The PW2 and PW3 are the police officials who have given their evidence almost on same line that on the night of incident they were on patrolling duty in the police mobile-11 and on reaching Bara Bukhari at 03:15 a.m. heard severe sounds of firing where they rushed and saw that one young boy having white cloths and little beard while standing close to Vigo having No.KV-0857 was firing. They also saw one Cultus car No. BAS-637 in which 3/4 persons having weapons were sitting and on seeing police party the boy who was making firing sat in the Cultus car and they all went towards Chota Bukhari. They also saw that one police constable namely Khalid Mehmood of their police station was lying near the foot path in injured condition and the motorcycle of Unique Company was available close to him. They also saw at some distance two persons were lying injured and another motorbike was lying there. Those injured were Ramzan and Saeed. The area was cordoned off by them and information was passed to the high-ups'. HC Abdul Rauf, PC Afzal and PC Azam Khan who were on intelligence duty also came there. PW2 the complainant recovered 12 empties and two live bullets of 9mm pistol from place of wardat and on search of Vigo recovered one license of firearm in the name of Nazeer Ahmed (appellant), documents of the vehicle and other articles, one mobile phone near the Vigo was also taken by the complainant in a broken condition, complainant also took the blood soil from there. He called chipa ambulance which shifted the injured persons to the Jinnah hospital. Complainant sealed the recovered articles and prepared the memo which was signed by the HC Qaisar and HC Naeemullah. Both the police witnesses were cross-examined and on reassessm ent of their evidence we find that they had not reached at the place of incident when the incident took place and were not witnesses to the incident nor the incident took place in the manner as narrated by them. Both the witnesses have deposed that the incident was seen on the street lights and on the light of headlights of the police mobile. The PW2 stated that only one ambulance of chippa came there and all the three injured were shifted alongwith the police officials on the one and the same ambulance. PW3 stated against such and deposed that 2 to 3 ambulances had come and all the injured were sent separately in the ambulances. Further presence of the police officials at the relevant time at the place of wardat is doubtful from the fact that the complainant stated in his cross-examination that "I see the register I have brought today and entry No. 40 says that at about 3.35 a.m. call was received by 15 and the caller was Mumtaz. Vol. says I had reached at 3:15 a.m. and this call was made at 3:35 a.m." Whereas PW8 ASI Ajmal Parvez deposed that on the relevant time he was posted at PS Darakhshan where he received call from Mumtaz at 15 in respect of the incident at 3:35 a.m. and kept such entry No.40, he further deposed that immediately ASI Mujahid Iqbal (complainant) was called from PS and other high-ups were also informed. Again the complainant during his cross-examination has denied about receiving the call from PS and stated that "I had not received any call from PS. I reached at the place of incident at hearing the firing." The PW2 complainant during his examination-in-chief deposed that after the recovery from place of incident he came at police station kept entry No. 42 and then registered the FIR of the incident. The complainant during cross-examination stated that "I had reached the PS at about 4:45 a.m. When I came at PS I had entered my arrival and by that very arrival entry I had lodged the FIR." From perusal of the FIR it reflects that it was registered on 07.04.2019 at 04:30 hours which too creates very serious doubt about the happening of incident at the relevant time. Even from the evidence of complainant and the other witnesses it has come on record that only one accused fired while standing at one place and he had not changed the position while making firing upon the deceased and the injured person and there is no allegation against any other person of firing which too is not believable as the medical evidence is not supporting this version of prosecution case. The doctor Shahzad PW12 during his cross- examination has stated that the injured had received 03 injuries from different directions.
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11. After the evidence of above two police officials (eyewitnesses) we now considered the evidence of two private and independent witnesses' one of them received firearm injuries in the incident. PW4 Saeed Ahmed who received firearm injuries has deposed that while taking food he and Ramzan (deceased) were going in Gali No.25 on motorbike when one person stopped them on which Ramzan was confused and motorbike fell. The person who stopped them fired upon Ramzan and he tried to escape and fires were also made upon him to which he received three fire shots on his person. He deposed that a person who fired upon them was in Cultus car, he was sent to Jinnah hospital for treatment. PW4 in clear words deposed that the person sitting in the court is not the accused who had fired. He had not identified the appellant as an accused of the incident and the APG for the state has requested the court to declare him as hostile and then he was cross- examined by the APG and denied all the suggestions made to him. Another independent eye witness is PW10 Muhammad Akeel who deposed that at the time of incident he was going to Chota Bukhari from Misri Shah and saw a boy was firing and after firing boy went away. As per his evidence he was taken to police station on the same day and later on was called for identification parade of accused before the Magistrate where he told the court that he could identify the accused and he had identified the accused at that time but he did not see that person whom he identified in the court. He was also declared hostile and during cross-examination conducted by the APG he had stated that "it is incorrect to suggest that because I am under pressure therefore I am not identifying that accused in this court." Though at the stage of investigation the PW10 appeared before the Magistrate for identification of accused and identified him, however the value of such identification parade will be discussed separately. From the reassessment of evidence of these allegedly two independent witnesses it established that they are not supporting the case of prosecution against the present appellant and their evidence cannot be safely relied upon. 12. The incident took place in the night hours and the accused was not known to any of the prosecution witness. The only source as per the evidence of complainant in respect of identity of the accused is that a copy of license which was recovered from the Vigo in the name of accused Nazeer Ahmed and his photograph was affixed on it. The other source of identification was a street light and the head light of police mobile on the basis of which an identification parade before the Magistrate was also held through PW Akeel Ahmed who subsequently denied the identification of present accused during recording his evidence. To the extent of mentioning the description (hulia) of accused in the FIR the complainant admitted during cross-examination and stated that "It is correct to suggest that I have given the description of accused that he is young and wearing white clothes and have little beard and I see the license which was recovered from Vigo also gives the same description." We have also scanned the entire material/evidence and not found any mentioning of the street lights at the place of incident nor even the vehicle (police mobile) was examined by the investigation officer during the investigation and the same was also not produced before the trial court to prove that the witnesses actually saw the accused on the headlights of the vehicle. The apex courts have held such source of identification as doubtful and non-production of such source also cut the roots of the prosecution case. Hon'ble Supreme Court of Pakistan in the case of Sardar Bibi and others v. Munir Ahmed and other (2017 SCMR 344) has held as under:- ".....The source of light i.e. bulbs etc. was not taken into possession during investigation to establish that the witnesses who were allegedly at the distance of more than 100 feet could identify the assailants. So the identification of the assailants was also doubtful in such circumstances of the case." Hon'ble Supreme Court of Pakistan in another case of Khalil v. The State (2017 SCMR 960) has held as under:- {{URDU TEXT}}
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Coming to the identification parade conducted by the learned Magistrate through PW10 Muhammad Akeel. PW Muhammad Akeel at the time of recording his evidence has not identified the present appellant to be a same person who was identified by him at the time of identification parade as such in our view such identification of the accused has no such legal value to maintain conviction of accused in a case of capital punishment without any other corroboration. Further, though it is alleged by the prosecution that the complainant has also identified the accused at the time of incident but at the time of identification parade the accused was not identified through the complainant though he was present outside of the court alongwith PW Muhammad Akeel as has been deposed by the PW9 Abdul Raqeeb (Magistrate) in his evidence. Learned Magistrate also stated during cross-examination that he has not noted down the identification parade on the Performa which was provided by the High Court. The Magistrate also admitted that the identification parade memo which he produced in the court does not bear the seal of the court. Learned Magistrate also admitted that identification parade does not bear the signature of witness neither the signature of accused nor the signature of the dummies. After the test identification parade, the court must verify the credibility of the eye-witness by assessing the evidence on the basis of the factors or estimator variables which we discussed above. The identification of an accused, therefore, becomes a two-step process. First, the suspect undergoes a test identification parade and second, the credibility of the eye-witness is assessed by weighing the evidence in the light of the estimator variables. Applying the "estimator variables" to the instant case we have already discussed above that it was night time incident, the source of identification was street lights and the headlights of police mobile which have not been proved by the prosecution and that the evidence of PW10 Muhammad Akeel who has not identified the appellant during the trial. Based on the above "estimator variables," possibility of misidentification cannot be ruled out, thereby making it unsafe to place reliance on the identification evidence. From perusal of the Identification Parade which was conducted by the Magistrate it is fraught with several infirmities diminishing its probative and evidentiary value. Brief descriptions of the accused as mentioned by the complainant in the FIR are missing. Identification Parade can only commence, once suspects matching the description in the crime report or in the statements of the witnesses under section 161, Cr.P.C. Matching the description in the first information report is the starting point towards identification of the unknown accused. It is, therefore, uncertain how the appellant was lined-up for the identification parade without the Magistrate first matching the description given by the complainant. Selection of the suspects, without any correlation with description of the accused in the first information report, raises doubts and makes the identification proceedings unsafe and doubtful. This is just a shade apart from cases where there is no description of the accused in the FIR, the effect being the same, casting doubts on the credibility of the test identification parade. Reliance can be placed on the cases of State/Government of Sindh v. Sobharo (1993 SCMR 585), Muhammad Afzal alias Abdullah v. State (2009 SCMR 436), Sabir Ali alias Foji v. State (2011 SCMR 563) and Muhammad Abdul Hafeez v. State of A.P. (AIR 1983 SC 367). Mian Sohail Ahmed and others v. The State and others (2019 SCMR 956). Identification of an accused person by eye- witnesses before the trial court during a trial is generally considered to be quite unsafe because before such identification before the trial court during the trial the eye-witnesses get many opportunities to see the accused persons appearing before the court in connection with their remand, distribution of copies of statement of prosecution witnesses recorded under section 161, Cr.P.C., framing of the charge and recording of statements of other prosecution witnesses. Even in such identification before the trial court during the trial it is imperative that a witness must point towards a particular accused person present before the trial court and must also specify the role allegedly played by him in the incident in issue. The unsafe nature of identification of an accused person before the trial court during the trial has already been discussed by the Honourable
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Supreme Court of Pakistan in the cases of Asghar Ali alias Sabah and others v. The State and others (1992 SCMR 2088), Muhammad Afzal alias Abdullah and another v. The State and others (2009 SCMR 436), Nazir Ahmad v. Muhammad Iqbal (2011 SCMR 527), Shafqat Mehmood and others v. The State (2011 SCMR 537), Ghulam Shabbir Ahmed and another v. The State (2011 SCMR 683), Azhar Mehmood and others v. The State (2017 SCMR 135) and recently in the case of Kanwar Anwaar Ali (PLD 2019 SC 488). Thus based on the particular facts and the circumstances of the present case we hold the identification parade as unreliable and not free from the doubts…
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