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Petitioner: Syed Muhammad Tehseen and another VS Respondent: The State and another
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Zulfiqar Ali Sangi Title: Syed Muhammad Tehseen and another vs The State and another Case No.:Special Criminal Anti-Terrorism Appeal No. 5 of 2007, Special Criminal
JUDGMENT
Reported As: 2021 P Cr. L J 612 Result: Order accordingly Judgment JUDGMENT MOHAMMED KARIM KHAN AGHA, J.---Appellant Syed Muhammad Tahseen son of Muhammad Naseeruddin and Mst. Maroof alias Mali Rukhy wife of Naad Ali Shah alias Ali Muhammad have preferred these appeals against the impugned judgment dated 22.03.2007 passed by the learned Judge Anti-T errorism Court No.III, Karachi in Special Case No.18 of 2005, FIR No.285 of 2005 under sections 353/ 324/302/427/34, P.P.C. read with sections 3/5, Explosive Substances Act and sections 6 and 7 of A.T.A., 1997 registered as P.S. Gulshan-e-Iqbal, Karachi whereby the appellant Syed Muhammad Tahseen was convicted and sentenced to death under section 302(b) read with 34, P.P.C. and read with 7(a) of the Anti-T errorism Act, 1997 subject to confirmation by this court. Accused Syed Muhammad Tahseen was also convicted and sentenced to Rigorous Imprisonment for 10 years under section 3 of the Explosive Substances Act, 1908 read with 427, P.P.C. The accused was further sentenced to suffer R.I. for 07 years and fine of Rs.10,000/- under section 13-D of the Arms Act. In case of default in payment of fine he was ordered to suffer R.I. for one year more whereas accused Muhammad Altaf alias Mufti son of Ghulam Sarwar was acquitted and ordered to be released forthwith if not required in any other case. Hence criminal Anti-T errorism Acquittal Appeal No.18/2007 has been filed by Appellant Mst. Maroof alias Mahrukh. 2. The brief facts of the prosecution case as per FIR are that on 30.05.2005 at about 2100 hours the complainant Zafar Hussain Lodged FIR through his 154, Cr.P.C. statement stating therein that he resides at A/309/2, Civic View Apartment Block-13/ D Gulshan-e-Iqbal, Karachi and is trustee of Imambargah Madinatul ilim since the last 25 years. On 30.5.2005 at about 7:40 p.m. he along with other namazies was offering his Maghribain prayer when suddenly firing started at the main gate of mosque/Imambargah. Due to that all the namazies broke their namaz and started scattering when just after a few seconds there was a heavy bomb blast in the courtyard of the said
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mosque thereafter the firing at the main gate was also stopped. He then rushed out-side the gate and saw that body searchers namely Raza Hiader and Azam were lying on the earth duly injured. Whereas one police HC was also lying in a pool of blood across the road in front of the main gate who was killed by the firing of terrorists and was promptly shifted to hospital along with other injured people. When he came back in the courtyard of Imambargah a lot of people had already gathered there. On enquity he came to know that two terrorists forcibly entered into the Imam bargah from the main gate and when they reached in the courtyard the bomb was exploded. One of the terrorist had affixed the bomb to his body , hence due to explosion the suicide bomber was killed and parts of his body viz neck etc. were scattered in the courtyard. There were pellet marks on all the three sides of the wall of Imam bargah due to said explosion, and glasses of doors were broken and glasses of windows towards western side were also broken into pieces which explosion had caused injuries to Muhammad Ali and Fida Hussain and following other namazies namely Muhammad Ashraf, Ghufran Hyder , Ghazi, Rizwan Shah, Saleem Amir, Adnan, Amir Raza, Raja Nayyar Abbas , Abbas Hyder , Akhter Hussain, Syed Saghar Hussain, Iraqi Hussain, Muhammad Ali, Sajjad Hussain, Owais, Muhammad Shakeel, Muhammad Bilal, S. M. Hyder Naqvi, Shifaat Ali and a child namely Faheem also received severe injuries who were sent to hospital for their treatment. In the meantime Bomb Disposal Escort as well as other police officials reached the spot and they collected different things including the neck and other parts of the body of the suicide bomber which they took away along with them. He then came at the main gate and saw that one terrorist was killed by the police in encounter while the other accused received injuries who was apprehended by SHO Irfan Zaman along with a pistol duly loade d with a magazine with two live bullets and an empty magazine. Whereas six live bullets duly loaded in magazine were also recovered from the pocket of the other unknown terrorist who was killed during the encounter with the police. Both the terrorists were seen firing at the gate by body searchers as well as other people. He claimed and lodged report against three unknown persons for causing injuries to both the body searchers as well as other injured persons by firing and to kill the police HC deputed at the gate of.Imam bargah/Masjid Madinatul Ilim so also providing cover and helping in making bomb blast whereby 30/32 namazies of the said Imambargah received injuries and property was damaged. 3. Subsequent to the registration of this case under section 7, A.T.A., 1997 read with sections 353/324/302/427/34, P.P.C. and 3/5, Explosive Substances Act, another FIR bearing No.286/2005 was also registered against the accused Syed Muhammad Tahseen under section 13(d) of Arms Ordinance, 1965. 4. After usual investigation the challan against both the accused persons, was submitted before the Administrative Judge for ATCs (Special Courts) who assigned the same to the Anti-T errorism Court No.III, Karachi for trial according to law. Charge was framed against the accused which was later amended to which they plead not guilty and claimed trial. 5. In order to prove its case the prosecution examined 28 PW's who exhibited various documents and other items in support of the prosecution case where after the prosecution closed its side. The appellant/accused recorded his statement under section 342, Cr.P.C. whereby he claimed that he was a passer by at the time of the incident who had been injured by the bomb blast and had been falsely implicated in the case by the police. He did not examine himself on oath and did not call any witnesses in support of his defense case. 6. Learned Judge, Anti-T errorism Court-XX, Karachi, after hearing the learned counsel for the parties and assessment of evidence available on record, vide the impugned judgment dated 22.03.2007, convicted and sentenced the appellant as stated above, hence this appeal has been filed by the appellant against his conviction. 7. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment, therefore, the same are not reproduced here so as to avoid duplication and unnecessary repetition. 8. Learned counsel for the appellant has contended that the none of the eye-witne sses are named in the FIR; that none of the so called eye-witnesses was actually present at the scene of the incident; that they are put up witnesses; in the alternative they are chance witnesses who cannot be believed especially as their behavior does not appeal to natural human conduct as some of them did not even go to help the injured; that there was a delay in recording the section 161 statements of the eye-witnesses and as such their evidence can be ignored; that there is no reliable identification of the appellant; that the identification parade was defective; that under the ATA the I0 was
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not authorised to carry out the investigation as he was a Sub-Inspector as opposed to an Inspector; that although the appellant was present at the scene he was simply a passer by who was injured by the blast and has been falsely implicated in this case by the police in order to show their efficiency to their high ups; that there is neither any direct or circumstantial evidence against him; that the co-accused has been acquitted on identical evidence and he was therefore also entitled to be acquitted and thus for any one of the above reasons he be acquitted by being extended the benefit of the doubt. In support of his contentions he has placed reliance on Muhammad Zaman v. The State (2014 SCMR 749), Akhtar Ali v. The State (2008 SCMR 6), Tariq Pervez v. The State (1995 SCMR 1345 ), Muhammad Saleem v. The State (2010 SCMR 374), Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142), Muhammad Ali v. The State (2015 SCMR 137), Mir Muhammad alias Miro v. The State (2009 SCMR 1188), Umar Farooque v. The State (2006 SCMR 1605 ), Muzaf far Ali v. The State (PLD 1964 (W. P) Lahore 32), Farman Ahmed v. Muhammad Inayat (2007 SCMR 1825 ), Imran Ashraf and 7 others v. The State (2001 SCMR 424), Gul Hassan v. The State (2008 MLD 668), Muhammad Ishaque v. Farman Shah (PLD 1964 (W.P) Peshawar 58), Sohail Abbas and others v. Kashif and others (PLD 2001 Supreme Court 546), Shafqat Mehmood and others v. The State (2011 SCMR 537), Sabir Ali alias Fauji v. The State (2011 SCMR 563), Sabir Ali v. The State (2011 SCMR 629), Muhammad Ayaz v. The State (2011 SCMR 769), Hamid Nadeem v. The State (2011 SCMR 1233 ), Maula Bux and others v. Chief Administrator of Auqaf, Lahore (2011 SCMR 207), Malik Muhammad Iqbal v. The State (2005 PCr.LJ 768), Atta Muhammad v. The State (1968 PCr.LJ 962), Wahab Ali v. The State (2010 PCr.LJ 157), Bukhshu v. The State (2009 PCr .LJ 405) and Muhammad Uzair v . The State (2005 YLR 1533 ). 9. On the other hand learned Deputy Prosecutor General has contended that the prosecution has proved its case against the accused beyond a reasonable doubt and that the impugned judgment does not require interference and that the appeal should be dismissed and the death sentence maintained. He has submitted that that the accused was arrested on the spot in an injured condition with a pistol in his hand outside the mosque; that the eye- witnesses are reliable and saw him in the mosque along with the suicide bomber and that the medical evidence fully supports the prosecution case. In support of his contentions he has placed reliance on Dadullah v. The State (2015 SCMR 856), Rafaqat Ali v. The State (2016 SCMR 1766 ), Niaz-ud-Din v. The State (2011 SCMR 725), Muhammad Ashraf v. The State (2011 SCMR 1046 ), Abdul Haq v. The State (2015 SCMR 1326 ), Manjeet Singh v. The State (PLD 2006 SC 30), Muhammad Zaman v. The State (2007 SCMR 813), Aijaz Nawaz alias Baba v. The State (2019 PCr.LJ 1775) and Rehman Ali alias Baba v. The State (2002 YLR 3860 ). Learned counsel for the Complainant adopted the arguments of the DPG. 10. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellant and the impugned judgment with their able assistance and have considered the relevant law including that cited at the bar . 11. Before proceeding further we have noted from the record that the charge was framed on 02.08.2006 and after the prosecution had lead most of its evide nce the charge was amended on 20.12.2006 with the consent of the both the prosecution and defense counsel. Thereafter no witness was re-examined. It appears that the charge was amended to add one specific paragraph which aimed to fully bring the case within the ambit of the ATA. 12. It is apparent that the intent behind the amended charge was to show that the offenses fell squarely within the ATA. In our view such amendment was not necessary as the original charge made it clear that the offenses concerned were also under the ATA. No new accused was added to the trial and all the evidence had been recorded in front of both the accused who cross-examined the witnesses and conducted their defenses cases based on this case falling under the ATA. Thus, in our view no prejudice has been caused to the accused by amending the charge which the accused through their defense counsel consented to before the trial court and made no application to recall any PW. Before commencing these proceedings we categorically asked counsel for the accused, the DPG and the complainant whether the above situation warranted the case to be remanded as a matter of law and all of them confirmed that it did not and even otherwise learned counsel for the appellant specifically stated that the appellant had not been prejudiced at trial and that he wanted the appeal to be decided on merits and the case not to be remanded since the appellant had already been in custody for a very long time.
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Thus, based on the above discussion we find that no prejudice has been caused to the appellant by amending the charge after most of the prosecution evidence had been recorded and these PW's were not recalled to give their evidence after the framing of the amended charge and such this is not a case of remand and we will decide the same on merits. 13. In our view after our reassessment of the evidence based on the evidence of the PW's including the PW MLO's, inquest reports under section 174, Cr.P.C., the fact that many PW's suffered injuries caused by pellets which are commonly used in suicide bomber attacks as they are often placed in the suicid e vest along with ball barring in order to cause maximum injuries to casualties and damage to property , recoveries of empties and pellets at the scene, blast damage, BDU report, and other evidence on record we are satisfied that the prosecution has proved beyond a reasonable doubt that on 30.05.2005 at about 7.40 p.m. an unknown suicide bomber along with his armed accomplices started, firing on the main gate of masjid/Imam bargah Madinatul-Ilim and entered the same and as a result of the firing and detonating the suicide bomb at least 3 people were killed (HC Raja Irshad, Muhammed Ali and Fida Hussain) and at least 20 others were injured and a large amount of damage was also caused to property . This position is not disputed by the appellant. 14. The only issue therefore, in our view, left before us is whether the appellant was one of the persons who forced his way into the masjid whilst firing at the guards of the masj id and others inside the mosque along with the suicide bomber who blew himself up in the court yard of the masjid and thereby through common intention caused the death of at least three people in and outside the masjid and injured over 20 others in the masjid. 15. In our view after our reassessment of the evidence we find that the prosecution has proved its case against the appellant beyond a reasonable doubt for the following reasons; (a) That the FIR has been lodged prompt ly within one and a half hours of the incident by PW 1 Zafar Hussain who was the trustee of the masjid for about 25 years and was present at the time of the blast. It covers all material aspects of the prosecution case including the names of some of the injured who he would know as he had been attending the masjid for the last 25 years and importantly states that one terrorist had been captured in injured condition within the court yard of the mosque. He does not nominate any person in the FIR which is against 3 unknown accused persons. This is logica l as he would not know the names of the persons who carried out the attack. Since the FIR has been lodged promptly we are of the view that there has been no chance of any concoction especially as there are so many PW's to the incident. The fact that the accused are not nominated also shows that he had no intention of falsely implicating any particular person in the case. Significantly , he has stated about the presence of the injured terrorist who was captured at the scene of the incident by SHO Irfan Zaman. It is true that he has not named the eye-witnesses in the FIR but we do not consider this as being of great significance as at the time he would not have known who the eye-witnesses were although one of them did turn out to be one of the injured named in the FIR being key eye-witness PW 1 1 Syed Muhammad Zaidi. (b) With regard to the offenses charged in our view the case will mainly turn on whether we find the evidence of the PW eye-witnesses to be reliable, trustworthy and confidence inspiring especially in terms of their identification of the accused as being one of the perso n's who carried out the attack on the mosque as opposed to being an innocent passer by who was inadvertently caught up in the blast which is the defense case. Thus, we will need to assess the evidence of each eye-witness very carefully keeping in view the prevailing chaotic circumstances which took place during the attack by firearm and then subsequent bomb blast which injured many people at the masjid. Before turning to the individual evidence of each eye-witness however we would like to address the identification parade. From the evidence it has come on record that this was a joint identification parade and as such no reliance can be placed on it. In this respect reliance is placed on Kamal Din v . State (2018 SCMR 577 ). Even otherwise we have also noted a number of procedural defects in the identification parade such as there being about 20 dummies, that the dummies were not all alike and in particular that the accused was the only person who had a face injury amongst the other dummies and as such any identification of the accused at the identification parade in our view cannot be safely relied upon. In this respect we place reliance on Kanwar Anwar Ali (PLD 2019 SC 488) .
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The question then arises as to whether we can convict on the basis of an eye-witness who did not know the accused before the incident and had not seen him for a particularly long time without the holding of an identification parade: In our view we can based on the particular facts and circumstances of this case where the accused was arrested on the spot and as such the question of mistaken identity does not arise. In this respect reliance is placed on Rafaqat Ali (Supra) and Dadullah (Supra) Turning to the evidence of each eye-witness vis-a-vis the identification of the accused and his role in the offense . 1. Eye-witness PW 4 Muhammad Irfan Zaman . He was SHO PS Gulshan-e-lqbal (Gulshan) who reached the scene shortly after the incident. In his evidence he states that saw an unconscious person who was bleeding from different parts of the body who also had a pistol of 30 bore in his hand who was also accompanying deceased accused (terrorist). He took the pistol which had 2 live bullets in its magazine and found an empty magazine on him whilst taking his personal search. He states in his evidence that he came to know that the injured accused who was arrested from the spot was named Tehseen who he identified in court. His section 161 statement was recorded on the next day which is less than 24 hours after the incident as he, reached the place of incident at about 8 p.m. and as such there was no delay in recording his section 161 statement. In his memo of arrest and recovery dated 30-05-05 at 8.05 p.m. he has specifically noted that he saw one killed terrorist lying on the ground and near to him one injured terrorist in semi conscio us condition holding in his hand one TT pistol .30 bore black with 2 live bullets and one empty magazine who was unable to disclose his name. Hulia of the accused was also given in the memo which matched that of the accused . The accused was arrested, his pistol and bullets seized and sealed on the spot and the accused was sent for medical treatment through police mobile and a case under section 13 (D) of the Arms Ordinance was lodged against him. This PW eye-witness has no enmity or ill against the accused and had no reason to falsely implicate him in this case. He was not dented despite lengthy cross-examination and in our view he has correctly identified the accused who he arrested in an injured condition on the spot with a firearm . We consider him to be a reliable, trustworthy and confidence inspiring witness and we have no reason to doubt his evidence especially regarding the arrest of the accused on the spot with a weapon in his hand which in our view clearly indicates that he was a.person who was involved in the attack on the masjid and was not an innocent passer by. His finding of the accused in an injured condition with a pistol in his hand is also corroborated by PW 1 Zaffar Hussain who is the complainant in this case and who once again is an independent person who had no ill will or enmity with the accused and no reason to falsely implicate him in this case. Both PW 1 Zaffar Hussain who was a trustee of the masjid and PW 4 Muhammed Irfan Zaman who is SHO PS Gulshan are natural witnesses and not chance witnesses. We can convict the accused based on this evidence provided it is corroborated by some supportive evidence. In this respect reliance is placed on Ehsan v. The State (2006 SCMR 1857 ) although notably in the case of Muhammad Afzal and 2 others v. The State (2003 SCMR 1678 ) it was held that corroboration was not a mandatory requirement of eye-witnesses evidence but was only required by way of abundant caution and was only required if the eye-witness evidence was doubtful or lacking in veracity . In this case we do not find the eye- witnesses identification of the accused being found in an injured condition on the spot holding a pistol as being doubtful or lacking in veracity but instead to be entirely believable. In the case of Niazuddin (Supra) it was even held that we could convict on the basis of the evidence of a single eye-witness in a murder case if we considered his evidence to be reliable and of a good quality . Again this legal position is entirely logical as under the law a person can be convicted in a capital case based on circumstantial evidence alone without their being any direct evidence against him. Thus, based on the evidence of this witness we find that the accused was not a passer by but a person who played an active part in the attack on the masjid. Interestingly , it is suggested in cross-exam ination to this PW that the appellant was not arrested at the spot but was arrested later on which contradicts the appellant's own case as set out in his sectio n 342, Cr.P.C. statement that he was present at the spot but he was an innocent passer by who got inadvertently hit by the blast rather than one of the perpetrators of the crime.
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2. Eye-witness PW 8 Liaquat Ali. He was a PC of Gulshan who on the day of the incident was on guard duty at the Masjid with HC Raja Arshad who was killed during the attack on the mosque and PC Toufeeq. In his evidence he states that he shot one of the persons who was firing at the mosque and thereafter another person duly injured also came from the inside of the mosque and fell down on the road who he caught hold of and then his superiors came. He corroborates PW 4 Muhammed Irfan Zaman that the injured accused was arrested, the pistol and magazine was recovered from him and that he was then sent to hospital for treatme nt. He recorded his section 161 statement on the same day . He identified the accused in court as being the same person. The same considerations apply to him as PW 4 Muhammad Irfan Zaman is terms of the injured accused being arrested in an injured condition outside the masjid with a pistol in his hand and importantly he also states that this accused came from inside the mosque in an injured connection . In or view the evidence of this PW again disproves the defense case that the accused was an innocent passer by as he was seen coming injured from inside the mosque after the blast. It is also interesting that no one else who was outside the mosque as the accused claimed to be as he was a passer by was injured by the blast. This again supports the prosecution case that the accused was not an innocent passer by but was inside the mosque at the time of the blast which caused him blast injuries as confirmed by his medical report. In noting this we stress that we are fully cognizant of the fact that it is not for the accused to prove his innocence but for the prosecution to prove the charge against him beyond a reasonable doubt and disproving the defense case will not discharge that burden as the prosecution will have to prove its own case beyond a reasonable doubt through reliable, trustworthy and cogent evidence. 3. Eye-witness PW 9 Syed Safdar Abbas Rizvi . Had gone to the masjid to offer his prayers. He was inside the mosque when he saw the person who was the suicide bomber come into the courtyard of the mosque with a man with a pistol behind him. They were raising anti shia slogans . He saw the suicide bomber blow himself up and also saw that the person behind the suicid e bomber with a pistol was injured by pellets from the blast who then ran outside the mosque holding his face in an injured condition. He went outside the mosque gate and saw the injured person who had a pistol who was behind the suicide bomber laying injured outside the mosque. He recognized the accused in court as the person who he saw behind…
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