KARACHI: A two-judge bench of the Sindh High Court (SHC) on Monday referred the appeals in a murder case to the chief justice (CJ) for an appropriate order after it handed down a split verdict.

An antiterrorism court (ATC) had sentenced Waqas Masih and Arrey Masih to life imprisonment in July 2019 for killing Nazar Iqbal in Zaman Town area in September 2013.

Both the convicts through their counsel had challenged the trial court order before the SHC and after hearing the two sides and examining the record and proceedings of the case, the appellate bench, comprising Justice Nazar Akbar and Justice Zulfiqar Ahmad Khan, reserved the judgement.

The order was announced on Monday in which Justice Akbar allowed the appeals and set aside the verdict of the trial court while Justice Khan upheld the order and dismissed the appeals.

Subsequently, the matter was referred to the SHC chief justice for an appropriate order.

Justice Akbar observed that while awarding life term to the appellants even after having noticed discrepancies in the evidence of eyewitnesses, the trial court acted illegally and violated the basic principle of criminal jurisprudence that the prosecution has failed to prove its case beyond the shadow of doubt irrespective of weaknesses in plea from defence side.

The prosecution planted four persons as eyewitnesses five days after the incident as the investigation officer (IO) did not record their 161 CrPC statements shortly after the incident and three of them recorded their statements under Section 164 of CrPC before a judicial magistrate after a delay of 26 days while the fourth witness did not turn up to record an identical testimony, he added.

Justice Akbar also noted that even those witnesses had contradicted each other and their statements had been contradicted by the medical evidence available on record.

“The prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, I extended benefit of doubt to the appellants,” he concluded.

On the other hand, Justice Khan observed that the pivotal point before the trial court was whether the deceased was tortured to death and the answer came in affirmative while the following question was whether the evidence beyond reasonable doubt has come against the appellants connecting them with the offence.

The question from the evidence of eyewitnesses having found corroboration with the medical evidence also came in affirmation, he said and added that positive legal evidence could only be thrown aside for the reason that any witness was untrustworthy and in the present case, there was no reason for eyewitness to falsely implicate the appellants in the instant crime and they supported each other’s version independently.

The prosecution maintained that the appellants along with others were holding a protest against a bomb blast at a church in Peshawar and when the victim came out of nearby a mosque in Zaman Town after Asr prayers, they allegedly attacked him with sticks, bats and draggers and killed him.

Published in Dawn, January 5th, 2021