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Petitioner: Syed Riffat Hussain and others VS Respondent: The State
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Khadim Hussain Tunio Title: Syed Riffat Hussain and others vs The State Case No.: Criminal A.T. Appeals Nos. 96, 97 and Confirmation Case No. 3 of 2018 Date of Judgment:2019-08-27 Reported As: 2020 P Cr. L J 1486 Result: Appeals allowed
JUDGMENT
JUDGMENT KHADIM HUSSAIN TUNIO, J.---By this common judgment, we intend to dispose of the above captioned appeals arising from the same judgment dated 21.03.2018, passed by the Anti-T errorism Court No.XVII, Karachi, whereby the appellants were convicted and sentenced as follows:- "Accused persons namely 1) Syed Furqan alias Babaji son of Syed Hamid Hussain, 2) Faisal Mehmood son of Muhammad Ibraheem, Syed Buturab Ali alias Irfan son of Syed Murtaza Kamal Under section 302(b)/34, P. P.C. Each and sentenced to death as (Tazir). Accused be hanged with the neck till their death with directions to pay Rs. 1,00,000/- each to the heirs of the deceased by way of compensation under section 544-A, Cr .P.C. and in default of payment thereof. Undergo S.I for six months. Under section 7(a) of Anti-T errorism Act, 1997 each and sentenced to Death to each accused with fine of Rs. 1,00,000/-each and in case of default of payment thereof, further undergo S.I for six months. Under section 7(c) of Anti-T errorism Act, 1997 read with section 324, P.P.C. each and sentenced them R.I for 10 years and to pay fine of Rs. 50,000/- each and in default of payment thereof. Further undergo S.I for one month. Accused Azhar Hussain son of alias Faraz son of Noshad Hussain and accused Riffat Hussain Jaffari son of Shakir Abbas. Under section 7(a) of Anti-T errorism Act, 1997 read with section 302/34, P.P.C. for each and sentenced them to suffer Imprisonment for life, with directions to pay fine of Rs.1,00,000/- each and in default of payment thereof, further undergo S.I for six months. I also order for forfeiture of moveable and immoveable properties of accused persons to the extent of Rs. 1,00,000/-each." 2. Precisely , facts of the prosecution case are that A.S.I. Muhammad Feroz, on receipt of information regarding one injured namely Muhammad Saad and a dead body of one Muhammad Faisal, proceeded to Abbasi Shaheed
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Hospital. When seeking approval to recor d statement of injured, the same was refused due to the condition of the injured. However , A.S.I Feroz inspected the dead body , held inquest in the presence of P.W Majid and Azhar . After completion of the formalities, the dead body was handed over to the relatives whereas P.W Majid was asked to lodge the FIR but after his refusal A.S.I Feroz returned to the police station. Then, on 28th of February 2014 at 8:35 a.m. A.S.I Feroz came to the Abbasi Shaheed Hospital where he was informed that the injured Saad was shifted to Agha Khan Hospital for better treatment. Thereafter , A.S.I Feroz reached at Agha Khan Hospital and recorded the statement of injured under section 154, Cr.P.C at 1000 hours who disclosed that while they were returning from Asr prayers in Suzuki Cultus (No. ATZ-419), near Ghareebabad Under Bypass at P.S.O. Petrol Pump, unknown motorcycle riders came at 0930 to 0945 hours and shot at them, injuring him and killing Muhammad Faisal. Subsequently , the statement was incorporated as FIR No. 34 of 2014. 3. On completion of investigation and receipt of challan, a charge was framed by the Court to which the accused pleaded not guilty and claimed to be tried. After recording of evidence of P.W.1 Saad Mohsin and P.W.2 Majid Umer , the charge was amended by the trial Court as names of the absconding accused Syed Abbas Raza Zaidi and Raza had not been disclosed in the charge. 4. In order to substantiate its claims against the accused at trial, the prosecution examined as many as 11 witnesses, exhibited multiple documents and items. Thereafter , vide statement, side of the prosecution was closed. 5. Statements of appellants were recorded under section 342, Cr.P.C. in which they denied the allegations levelled against them and claimed to be falsely implicated. However , they neither examined themselves on oath nor produced any evidence to back up their defence. 6. After conclusion of the proceedings, Anti-T errorism Court No.XVII, Karachi while finding the appellants guilty convicted and sentence them as supra . 7. Learned counsel for the appellants mainly contended that the impugned judgment is not sustainable under the law; that there is no evidence available on record to connect the appellants with the commission of offence; that the author of the J.I.T report was not examined by the prosecution; that the crime was unwitnessed and the complainant himself stated that he could not identify any of the accused at the scene; that the appellants' confessions before the police were inadmissible and no confession was recorded before the magistrate; that the identification parade, being defective, cannot be relied upon; that there is a delay in the lodging of FIR and that the injured has not supported the prosecution case. The counsel, therefore, for the above reasons prays for the acquittal of the appellants while giving them benefit of the doubt. In support of the contentions, the counsel has relied upon the case law reported as PLD 2018 SC 178 and PLD 2019 SC 481 . 8. Conversely , the Deputy Prosecutor General has argued that the appella nts were identified during the identification parade by P.W Ahmed Ali which in itself was not defective; that the appellants had confessed to the crime in front of the police; that all the P.Ws fully supported the prosecution case; that appellants admitted their guilt before J.I.T and the same has been produced in evidence during trial; that there is no enmity between the parties; that the F.S.L report is in positive; that after framing the amended charge, the trial Court did not recall and re- examine the P.Ws-1 and 2 namely Saad Mohsin and Majid Umer respectively , committed illegality which is not curable under the law . Therefore, he prays that the case may be remanded back to the trial Court. 9. We have given due consideration to the arguments advanced by learned counsel for appellants, considered the contentions of learned D.P .G for the State and examined the material available on record. 10. Before proceeding into the merits of the case, it is noted that the facts as well as evidence produced before the trial Court find an elaborate mention in the impugned judgment and the same will not be reproduced herein for the sake of brevity and avoiding repetition. 11. It is an undisputed fact, after the perusal of evidence, that on 27.02.2014 the injured and deceased were fired upon and received multiple injuries, who were transferred to Abbasi Shaheed Hospital where Muhammad Faisal had been declared dead and complainant Saad was under treatment. As far as the delay in the lodging of FIR is concerned, the same is reasonably explained by the prosecution. The delay , therefore, is not fatal to the prosecution. A perusal of record shows that the crime was unwitnessed and the complainant, who was also one of the victims of the shooting, failed to identify any of the shooters in the heat of the moment. Moreover , even the
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appellants have not been identified by the injured P.W Saad Mohsin, who in his examination-in-chief deposed that "I had not seen any person while making upon firing upon us" and further deposed that "I cannot say about the identity of the accused as I had not seen the accused ". Besides the complainant-victim himself, no one had witnessed the alleged incident, thereby making the crime unwitnessed. As far as the confessions of the appellants before the police are concerned, same do not have any evidentiary value and are inadmissible under the law . 12. In our view, the crucial point involved is whether the identification parade, wherein the appellants were identified to be shooters, is one that can be safely relied on so as to uphold the convictions awarded to the appellants. It is a matter of record that the complainant had not disclosed any description of the culprits in his statement nor was any present in the FIR. The appellants were not known to the victim previously or to any other witnesses for that matter . Since no distinguishing features were available at the time of identification parade, it would make it highly doubtful that the appellants were correctly picked out of the dummies as it leaves the ident ifier with a chance to falsely net out anyone from the crowd. Therefore the contention that the appellants were picked out of the dummies because the police believed them to be the suspec ts or had to satisfy ulterior motives cann ot be ruled out. It had been held by the Hon'ble apex Court in the case of Javed Khan v. The State (2017 SCMR 524) while narrating the importance of availability of a description by an eye-witness that:- "7. We have heard the learned counsel and gone through the record. The prosecution case rests on the positive identification proceedings and the Forensic Science Laboratory report which states that the bullet casing sent to it (which was stated to have been picked up from the crime scene) was fired from the same pistol (which was recovered from Raees Khan in another case). We therefore proceed to consider both these aspects of the case. As regards the identification proceedings and their context there is a long line of precedents stating that identification proceedings must be carefully conducted. In Ramzan v Emperor (AIR 1929 Sindh 149) Perceval, JC, writing for the Judicial Commissioner's Court (the precursor of the High Court of Sindh) held that, "The recognition of a dacoit or other offender by a person who has not previously seen him is, I think, a form of evidence, which has always to be taken with a considerable amount of caution, because mistakes are always possible in such cases" (page 149, column 2). In Alim v. State (PLD 1967 SC 307) Cornelius CJ, who had delivered the judgment of this Court, with regard to the matter of identification parades held, that, "Their [witnesses] opportunities for observation of the culprit were extremely limited. They had never seen him before. They had picked out the assailant at the identification parade, but there is a clear possibility arising out of their statements that they were assisted to do so by being shown the accused person earlier" (page 313E). In Lal Pasand v. State (PLD 1981 SC 142) Dorab Patel J, who had delivered the judgment of this Court, held that, if a witness had not given a description of the assailant in his statement to the Police and identification took place four or five months after the murder it would, "react against the entire prosecution case" (page 145C). In a more recent judgment of this Court, Imran Ashraf v. State (2001 SCMR 424), which was authored by Iftikhar Muhammad Chaudhry J, this Court held that, it must be ensured that the identifying witnesses must "not see the accused after the commission of the crime till the identification parade is held immediately after the arrest of the accused persons as early as possible" (page 485P). 8. The Complainant (PW-5) had not mentioned any features of the assailants either in the FIR or in his statement recorded under section 161, Cr.P.C. therefore there was no benchmark against which to test whether the appellants, who he had identified after over a year of the crime, and who he had fleetingly seen, were in fact the actual culprits. Neither of the two Magistrates had certified that in the identification proceedings the other persons, amongst whom the appellants were placed, were of similar age, height, built and colouring. The main object of identification proceedings is to enable a witness to properly identify a person involved in a crime and to exclude the possibility of a witness simply confirming a faint recollection or impression, that is, of an old, young, tall, short, fat, thin, dark or fair suspect. There is yet another aspect to the matter of identification of the culprits of this case. The Complainant had named three other persons who could recognize the assailants, but he did not mention Subedar Mehmood Ahmad Khan (PW-6) as one of them. Nonetheless Subedar Mehmood Ahmad Khan came forward to identify the appellants. Significantly , none of the three persons mentioned by the Complainant participated in the identification proceedings and two were not even produced as witnesses by the Prosecution. During the identification proceedings both the appellants had informed the Magistrates who were conducting the identification
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proceedings, and before the identification proceedings commenced, that they had earlier been shown to the witnesses. The Magistrates recorded this objection of the appellants in their reports but surprisingly did not attend to it, which can only be categorized as a serious lapse on their part. Therefore , for all these reasons reliance cannot be placed upon the report of the identification proceedings in which the appellants were identified. 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 accuse d 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." Similar view had been taken by the Hon'ble apex Court in the case of Mian Sohail Ahmed v. The State (2019 SCMR 956 ). 13. As far as how the identification parade of the appellants is concerned which has been held after 20 days of their arrest and 2 and a half months after commission of the incident through P.W Ahmed Ali, who's name had not been disclosed during investigation proceedings by any of the witnesses, but has been introduced at the time of conducting the identification parade before the magistrate. Even otherwise, he has not been examined by the prosecution and has been given up. The presumption would be that if he would have been examined, he would not have supported the prosecution case. Furthermore, the memo of identification test does not contain the name of the complainant, witness, mashir and C.N.I.C numbers and addresses of the dummies, neither in memo of identification parade nor in the list of dummies. Therefore, it is our firm belief that the same was not carried out while following the guidelines as jotted down in the case law reported as Kanwar Anwaar Ali (PLD 2019 SC 488) which are reproduced as follows for the sake of convenience:- "3. Before parting with this order ye would like to point out that the matter of taking of different steps in holding of a proper test identification parade in connection with a criminal case has developed over many decades and the requirements of such a parade as well as the safeguards to be ensured during such a parade so as to make it a meaningful exercise and providing material in a criminal case to be considered in a trial have elaborately been detailed in the landmark judgment passed by a learned Division Bench of the Lahore High Court, Lahore in the case of Muhammad Yaqoob and anothe r v. The State (1989 PCr.LJ 2227) and in the said judgment Mr. Justice Khalil-ur -Rehman Ramday (as his lordship then was a Judge of the Lahore High Court, Lahore) had observed as follows:' 23. Although there is no law, which presc ribes any such precautions yet the necessary guidelines are available in the form of executive instructions and judicial pronouncements. Some of them are summarised as under:- (a) Memories fade and visions get blurred with passage of time. Thus, an identifica tion test, where an unexplained and unreasonably long period has interv ened between the occurrence and the identification proceedings, should be viewed with suspicion. Therefore, an identification parade, to inspire confidence, must be held at the earliest possible opportunity after the occurrence; (b) a test identification, where the possibility of the witness having seen the accused persons after their arrest cannot be ruled out, is worth nothing at all. It is, therefore, imperative to eliminate all such possibilities. It should be ensured that, after their arrest, the suspects are put to identification tests as early as possible. Such suspects should preferably , not be remanded to police custody in the first instance and should be kept in judicial custody till the identification proceedings are held. This is to avoid the possibility of overzealous I. Os. showing the suspects to the witnesses while they are in police custody. Even when these accused persons are, of necessity , to be taken to
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Courts for remand etc. they must be warned to cover their faces if they so choos e so that no witness could see them; (c) identification parades should never be held at police stations;" 4. It may also be observed that during a test identification parade the requirement regarding specifying by a witness the role of an individual accused person in commission of an offence had also been identified and emphasized by this Court in the cases of Ismail and another v. The State (1974 SCMR 175), Khadim Hussain v. The State (1985 SCMR 721), Ghulam Rasul and 3 others v. The State (1988 SCMR 557), Asghar Ali alias Sabah and others v. The State and others (1992 SCMR 2088 ), State/Government of Sindh through Advocate-General, Sindh, Karachi v. Sobharo (1993 SCMR 585), Mehmood Ahmad and 3 others v. The State and another (1995 SCMR 127), Siraj-ul-Haq and another v. The State (2008 SCMR 302), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Muhammad Afzal alias Abdullah and another v. State and others (2009 SCMR 436), Shafqat Mehmood and others v. The State (2011 SCMR 537), Sabir Ali alias Fauji v. The State (2011 SCMR 563), Muhammad Fayyaz v. The State (2012 SCMR 522), Azhar Mehmood and others v. The State (2017 SCMR 135), Hakeem and others v. The State (2017 SCMR 1546 ) and Kamal Din alias Kamala v. The State (2018 SCMR 577 ). 5. Identification of many accused perso ns in one line in one go during a test identification parade has also repeatedly been held by this Court to be improper and it has been clarified by this Court on a number of occasions that every accused person is to be put to a separate test identification parade and a reference in this respect may be made to the cases of Lal Pasand v. The State (PLD 1981 SC 142), Imran Ashraf and 7 others v. The State (2001 SCMR 424), Ziaullah alias Jay v. The State (2008 SCMR 1210 ), Bacha Zeb v. The State (2010 SCMR 1189), Shafqat Mehmood and others v. The State (2011 SCMR 537), Gulfam and another v. The State (2017 SCMR 1189), Hakeem and others v. The State (2017 SCMR 1546 ) and Kamal Din alias Kamala v. The State (2018 SCMR 577 )." 14. Conclusively , it is held that the identification parade, suffering from irregularities and illegalities, cannot be safely relied upon to uphold the conviction and sentence so awarded to the appellants by the trial Court. 15. Coming to the J.I.T report, the Hon'ble apex Court has been pleased to opine in case titled Province of Punjab through Secretary Punjab Public Prosecution Department and another v. Muhammad Rafiq and others (PLD 2018 SC 178) that the said report is an opinion of the members of the J.I.T, and it can be considered, at the most, as a report under section 173, Cr.P.C. It is well-settled by now that report under section 173, Cr.P.C. is inadmissible in evidence as laid down by this Court in case of Saeed Muhammad Shah and another v. The State (1993 SCMR 550 )." 16. So far the contention of learned D.P.G that the learned trial Court has commit ted irregularities by not recalling and re-examining the P.Ws 1 and 2 namely Saad Mohsin and Majid Umer respectively after framing of the amended charge, therefore prayed that the matter may be remanded to the trial Court by setting aside the impugned judgment is concerned, it has been held in case of Abdul Ghaf far v. The State and another (2006 SCMR 56 ) that:- '6. Moreover , if it is taken to be an irregul arity by not recalling, re-summoning or examining the witnesses after the alteration of the charge 537, of the nature as in the instant case, then it is curable under section 537, Cr.P.C. and the conviction and sentence passed against the petitioner cannot be reversed and moreso when the objection was not raised at the trial and even, later on, during the hearing of appeal which negate the occasion of any failure of justice in view of the explanation to section 537, Cr .P.C. which reads as under:-- 'Explanation .-- In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings." 17. The law developed in our country is based on the maxim that it is better that ten guilty persons are acquitted rather than one innocent person is convicted, reference in this regard may respectfully be placed on the case law titled The State v. Mushtaq Ahmad (PLD 1973 SC 418) and Khalid Mehmood v. The State (2011 SCMR 664). While parting, we feel compelled to also add that the term 'justice' shall not stand satisfied unless at the end of the
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day 'truth is not found' because justice is not meant to follow the dotted line(s) of prosecution or defence but is the name of 'finding the truth' . Courts can neither swipe off a tear falling from the eye of a victim nor it can bring a single moment of liberty back for which an accused otherwise was entitled. The Court is hoped and believed to hold the scale of justice strongly without being influenced with sorrow of a victim or heinousness of an allegation. No doubt, conviction is one of the two scales of Criminal Administration of Justice , but it shall never over-weigh the scale of acquittal unless all reasons of law and judicial logic deny the acquittal because the whole structure of Criminal Administration of Justice revolves around the golden principle of benefit of doubt and the principle of benefit of doubt only fulfils its meaning when the principle laid down in Mushtaq Ahmad's (supra) is followed. 18. For what has been discussed above, the prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt. Therefore, the above captioned appeals are allowed, the conviction and sentence awarded to the appellants is set aside and they are acquitted of the charge while extending benefit of doubt to them. They be released forthwith if not required in any other custody case. The reference made by the trial Court for confirmation of death sentences is answered in the negative. Sd/- Mohammed Karim Khan Agha, J Sd/- Khadim Hussain Tunio, J MOHAMMED KARIM KHAN AGHA, J.---I have had the privilege to go through the judgment authored by my learned brother and am in complete agreement with the same and hence I have signed it. I would however like to add a separate note to emphasize the issue concerning the remand of the case back to the trial court which has been ably dealt with in the judgment and which was greatly insisted upon by learned DPG. 2. The background to the DPG seeking remand of the case to the trial court for re-recording the evidence of PW's 1 and 2 is that after the framing of the charge the evidence of PW's 1 and 2 was completed. The charge was re framed as an amended charge after one of the absconding accused joined the trial but the evidence of PW's 1 and 2 was not re-recorded before either the earlier absconding accused nor his counsel who had now joined the trial and thus he had no opportunity to cross -examine these witnesses whose evidence was relied upon by the trial court in the impugned judgment which convicted all the appellants. 3. In a capital case such as this if a witnesses evidence is not recorded in the presence of the…
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