KARACHI: The Sindh High Court (SHC) on Friday set aside the death sentence of two appellants, said to be associated with the outlawed Lashkar-i-Jhangvi, in a case pertaining to a grenade attack on an Imambargah.
The SHC observed that the sole eyewitness of the case did not able to safely and reliably identify the appellants during an identification parade.
An antiterrorism court (ATC) had sentenced Mohammad Ishaq alias Bobby and Mohammad Asim alias Capri to death in December 2020 for hurling a grenade/cracker at an Imambargah in Nazimabad in October 2016 that left a child dead and 30 other persons wounded.
The prosecution said that both the appellants were affiliated with the banned LJ. Now defunct military courts as well as the ATCs had convicted them in a number of cases, including the murder of qawwali maestro Amjad Sabri.
The convicts, through their counsel, filed appeals against the judgement of the trial court before the SHC.
After hearing both sides and examining the record and proceedings of the case, a division bench headed by Justice Mohammad Karim Khan Agha allowed the appeals and acquitted them.
The bench in its judgement observed that the sole eyewitness, Syed Shamim Raza, also the caretaker of Imambargah and complainant in the case, was a natural witness, but he was not able to correctly identify the appellants.
The eyewitness did not see the appellants before and only get a fleeing glimpse of them and he did not give any appearance of the appellants in his initial statement recorded by police and such a statement greatly undermined his ability to pick out any accused with accuracy at an identification parade, it added.
The bench also noted that he apparently made sketches of the accused, not immediately after the incident, but shortly before the identification parade, which raised doubt as to whether the accused persons were shown to him before the parade.
It further noted that the incident was taken place at 8pm in October and it would have been quite dark and therefore extremely difficult for the witness to accurately identify both appellants.
The bench observed that there appeared to be hardly any cogent corroborative or supportive evidence and it found that the eyewitness was not able to correctly identify either of the appellants.
While referring to a judgment of the apex court, the bench said that care and caution must be taken by courts in ensuring that an unknown accused was correctly identified, adding that in fact, extra care in relying on identification parades was an accepted global phenomena.
“Thus, having found that the sole eyewitness would not have been able to correctly, safely and reliably identify the appellants, the conduct of the identification parade becomes inconsequential,” it added.
About admission of appellants before police, the bench said police did not produce them before a magistrate to record their confession under Section 164 of the criminal procedure code as there was no legal weight in admission before police.
It further noted that as per complainant, Salman and Afzal were also eyewitnesses and they were also called in court for the identification parade, but Fazal did not give evidence as prosecution witness while Salman was listed as prosecution witness, but was given up by the prosecution, which led to the inference that he would not have supported the prosecution case in terms of identification of appellants.
Published in Dawn, May 21st, 2022