The Sindh High Court has set aside the life term of a man handed down by an antiterrorism court in a sectarian killing case.Syed Mushtaq Hussain Shah alias Shah Jee was sentenced to life imprisonment in March last year for killing Syed Athar Hussain, the caretaker of two imambargahs, and wounding his younger brother, Syed Mazhar Hussain, near National Highway within the remit of the Shah Latif Town police station in December 2012.However, the trial court had acquitted co-accused Waqas by extending him the benefit of doubt. The prosecution said that an assailant was also killed since another brother of deceased, Syed Rizwan Hussain, who was a policeman, had returned fire.
The convict, through his lawyer, had filed an appeal before the SHC 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 exonerated the appellant.The bench in its judgement observed that the case of prosecution was mainly rested on the evidence of two brothers, who were travelling with their slain brother at the time of incident and one of them had also sustained injuries.
However, it noted that two police officers, who were posted at a nearby picket and first responders at the crime scene, had deposed before the trial court that it was dark when the incident occurred since there was no source of light.
The SHC also observed that during the brief chaotic shootout, the eyewitnesses would only have got a glimpse of the appellant and the acquitted co-accused under stressful circumstances.
It said that both the eyewitnesses did not give any detail about the appearance of the assailants in the FIR; though one of the eyewitnesses was a policeman and he knew the importance of the attackers’ appearance. The judgement further noted that an identification parade was held after an inordinate delay in which both the brothers had picked out the appellant who later claimed that his face was shown to the witnesses before the parade.
The court also observed that even if the eyewitnesses were present at crime scene at the time of incident, they would not have been able to safely identify the appellant due to darkness and there appeared to be no other cogent corroborative evidence in the case.It noted that an employee of the complainant was the best eyewitness/independent witness for prosecution, but he was given up without any explanation.“Significantly, the evidence against the acquitted co-accused Waqas was the same as the evidence against the appellant but Waqas was acquitted and the appellant was convicted on the same set of evidence,” it added.The bench set aside the conviction and acquitted the appellant by extending him the benefit of the doubt.
