KARACHI: The Sindh High Court has set aside the life imprisonment handed down to an alleged gangster by an antiterrorism court in a case pertaining to the murder of a traffic police constable.

An ATC had sentenced Muhammad Jawed Akhtar, said to be linked with criminal gangs operating in Lyari, to life in prison in November 2020 for killing Constable Ehtisham Ahmed in January 2019 in Garden.

The convict, through his counsel, had approached the SHC and filed an appeal against his conviction and after hearing both sides and examining the record, a two-judge bench headed by Justice Mohammad Karim Khan Agha allowed the appeal and overturned the conviction order of the trial court.

The bench in its judgement observed that the prosecution had to prove its case against the accused beyond a reasonable doubt and the benefit of the doubt must go to the accused party “by way of right as opposed to concession”.

SHC rules benefit of doubt must go to accused ‘by way of right as opposed to concession’

It pointed out that the entire case of prosecution was almost exclusively rested on the evidence of a sole eyewitness, who was a rickshaw driver, and as per the prosecution, he did see the appellant killing the constable along with his two accomplices on a motorcycle. The slain constable was also riding a two-wheeler, according to the eyewitness.

However, the bench questioned the presence of the eyewitness at the crime scene when the incident took place and stated that the same was doubtful.

It observed that the witness could not have been able to correctly and safely identify the appellant while there was hardly any cogent corroborative evidence to support his testimony.

The judgement further said that the eyewitness in the cross-examination before the trial court admitted that there was less light as the incident took place early in the morning.

About the identification parade of the appellant before the magistrate, the bench observed that his formal arrest in the particular case was made three weeks after his arrest in other cases and he was in police custody and could easily have been shown to the eyewitness before the line-up.

It said the appellant had also complained to the magistrate that his face was shown to the eyewitness prior to the identification parade.

It further said that police did not produce two co-accused persons before the magistrate for an identification parade without any explanation and later they were acquitted. It prima facie showed that police were acting in a mala fide manner towards the appellant, the verdict said.

“It is true that we can convict based on the evidence of a sole eyewitness however based on the particular facts and circumstances of this case as discussed above we find that even if the eyewitness was present at the time of the incident, which we very much doubt, based on the reasons mentioned above he would not have been able to correctly, safely and reliably identify the appellant and as such we veer on the side of caution in this case especially as there appears to be hardly any cogent corroborative or supportive evidence and find that the eyewitness was not able to correctly identify the appellant as the person who shot and murdered the deceased,” the verdict said.

According to the prosecution, the 23-year-old Ehtisham Ahmed was riding from his home in the Garden area to perform his duty at a traffic post near the mausoleum of Quaid-i-Azam when the accused also riding a motorbike, opened fire on him from behind on Nishtar Road near Abu Ubaida mosque at around 5:15am and rode away. The victim had sustained three bullet wounds and died on the spot, it added.

Published in Dawn, September 4th, 2022