How prosecution ‘failed’ to prove Rao Anwar’s guilt in Naqeebullah murder case

Benefit of doubt, CDR data landed in favour of the prime suspect

Shamil Ahmed

Updated 24 Jan, 2023

Pakistan

“Courts cannot be blamed if the executive/police fail in their duty,” ATC judge Solangi wrote in the judgment. Photo via Facebook

An anti-terrorism court (ATC) acquitted the prime suspect former police officer Rao Anwar in the Naqeebullah murder case as three findings – out of the total seven – were not proved and one related to his direct involvement was “disproved”.

“I am of the considered view that the prosecution since has failed to bring home guilt of the accused beyond any reasonable doubt,” said the judgment order authored by ATC judge Rashid Mustafa Solangi.

The 43-page document said that it is not necessary that there should be many circumstances creating doubt for giving the benefit of the doubt to an accused. “One single circumstance leading towards the real doubt is sufficient to acquit the accused in the custody.”

The court also acquitted 17 others along with Anwar. It ordered for issuing of perpetual warrants against seven absconding accused.

You can see the timeline of the case here.

Seven points before the court?

S.No.	Points	Findings
1	Whether Naqeebullah, Muhammad Ishaque, Nazar Jan, and Muhammad Sabir were killed on 13.01.2018 in declared fake police encounter followed by registration of police FIRs which were disposed of in B-Class?	In affirmative
2	Whether on 3rd or 4th of January 2018 deceased Naseebullah along with his two friends namely Muhammad Qasim and Hazrat Ali were abducted from Agha Gulsher Hotel, Chapel Garden, Abu-ul-Hassan Isfahani road, Karachi?	Not proved
3	Whether the deceased Naqeebullah, Hazrat Ali and Muhammad Qasim were after their abduction detained at police post Abbas Town and were tortured thereafter Hazrat Ali @ Muhammad Qasim were released while deceased Naqeebullah was handed over to accused Rao Anwar by co-accused Ali Akbar and others?	Not proved
4	Whether present accused on 13.01.2018 directly participated in the incident of firing at the deceased and having killed Naseebullah, Muhammad Ishaque, Nazar Jan and Muhammad Sabir?	Disproved
5	Whether present accused have added or abated the killing of four persons namely Naqeebullah, Muhammad Ishaque, Nazar Jan and Muhammad Sabir	Not proved
6	Whether the present accused have the weapon and explosive purportedly recovered from the above named deceased persons to pretend the false encounter to be genuine encounter i.e. FIR No.120/2018.	As under
7	What should the judgment be?	The accused are acquitted

The judgment, which was announced on Monday, quoted a line from an older case that the “mistake of Qazi (judge) in releasing a criminal was better than his mistake in punishing an innocent”.

“Courts cannot be blamed if the executive/police fail in their duty,” ATC judge Solangi wrote, adding that evidence collected by executive or police must be evaluated according to the laws and rules and judicial standards.

“Government has to ensure that cogent evidence to support prosecution is collected and presented in the court. Since the sufficient evidence in terms of reliability, cohesion, trustworthiness has not been collected nor produced regarding happening of incident of abduction of abductees Hazrat Ali, Muhammad Qasim and deceased Naqeebullah, no sufficient reliable evidence beyond reasonable shadow of doubts regarding participation of the present accused in the fake police encounter and their sharing of common intention with absconding accused is produced, the right of benefit of doubt cannot be withheld even in high profile cases like this one.”

The judgment discussed a host of failures on the part of the prosecution. This failure eventually benefitted Rao Anwar and other policemen.

Summary of prosecution failures

Unexplained long delay in registering the FIR
No role assigned to the accused during identification parade
No description of accused undergone through identification parade found in FIR nor in statement of witnesses regarding their feature, complexion, exact height, age etc.
Dishonest improvement made to bring the version in line with prosecution case
Date of incident whether to be 3rd, 4th and/or 5th January is not sure to the witnesses including abductee prosecution witness Muhammad Qasim and prosecution witness Hazrat Ali
Belated statement of prosecution witnesses
No independent witness and natural witness produced from Agha Sher Hotel regarding the incident of abduction
No call data record (CDR) of cell number of deceased Naqeebullah and abductee was produced despite cell phone per FIR of deceased Naqeebullah was switched off
Material contradiction found regarding release of abductee in terms of date and place
No CDR of police party accused that are alleged to have abducted the prosecution witnesses was produced
No tracker record of police mobile vehicles despite installed collected
No witness has identified any accused with the role of his presence at Sachal police post when they went for release of deceased Naqeebullah except accused Akbar
The abductees have not stated the role of any accused nor identified any accused to be present during their three day detention at police post
None of the present accused is alleged any direct role in the incident of murder
CDR of present accused is not proved in accordance with law
CD containing press conference without examining the maker and news person is inadmissible
Even otherwise CDR of accused Rao Anwar shows his arrival at crime scene after the incident was over Prosecution witness Shahzadah Jahangir (ex-police) has supported the version of accused Rao Anwar that he reached after the incident
The first police ie party prosecution witness ASI Saleem Ahmed Khan author of inquest report and memo of dead body so also prosecution witness ASI Mumtaz Ali who accompanied PW-16 immediately at crime scene have not deposed about the presence of any present accused but absconding accused
Prosecution witness Sharoon Khan, who is a “chance” eye witness, and prosecution eye witness Humayoon, businessman and a “chance” eye witness, said to be eyewitnesses are chance witnesses without having established their presence
Evasive identification of accused by PWs during trial
No evidence of pre-planned meeting, planning and conspiracy to prove the common intention of the present accused with absconding accused “lead this court to inescapable conclusion”