MUHAMMAD REHAN S/O ABDUL RAFIQUE (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COURT O F SINDH, KARACHI

Present:

Mr.lustice Mohamnail Karim Khan Agha fttstice Mrs. Kausar Stltana Hussabt

Special Criminal Anti-Terrorism APPeals No.M & 05 of 2019 Appellant in both Appeals Muhammad Rehan S/o Abdul Rafique through Mr. Mallag Assa Dashti, Advocate

The State Through Mr. Muhammad Iqbal Awan, Additional Prosecutor General, Sindh

Criminat Revision Application No.35 of 2019

Appellant State Through Mr. Muhammad Iqbal Awaru Additional Prosecutor General Sindh .

a Respondent: Muhammad Rehan S/o Abdul Rafique through Mr. Mallag Assa Dashti, Advocate

Date of Hearing: 23.77.2027

Date of ]udgment 30.11.202-l

I UDGMENT

MOHAMMAD KARIM KHAN AGHA, F The Appellant Muhammad Rehan has filed these appeals whereby he was convicted in the Court of Anti-Terrorism Court No.VIII, Karachi in Special Cases No.AJ-200/2015 (New Special Case No.283l2015) in FIR No.124l2015 u/ s' 302/324/353/34PPC R/w Section 7 ATA,1997 and Special Case No'A]- 223/2015 (New Special Case No'293/201'5) in FIR No'130/2015 u/s'23 (7) (a) Sindh Arms Act, 2013 registered at P.S' Super Market, Karachi vide

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]udgment dated12.12.2018 and was sentenced to suffer life imprisonment for the offence punishable { s.7(i)(a) of ATA, 1997 R/w Section 302 PPC with fine of Rs.500,000/- and in case of non-payment, he shall suffer imprisonment for 03 years more, He was also convictedu/s.353 PPC and sentenced R.I. for 02 years. He was also convicted u/s. 23 (1) (a) Sindh t,

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Arms Act, 2013 and sentenced to R.L for 10 years with fine of Rs.200,000/- and in case of non-payment, he shall suffer imprisonment for 01 year more. All sentences were ordered to run concurrently. However, he was also given the benefit of section 382-B Cr.P.C. On the other hand the state has also filed Criminal Revision Application No'36 of 2019 for the enhancement of the sentence of the appellant awarded to him in the above said judgment from life imprisonment to the death penalty' 2, The brief facts of the prosecution case are that on 23.08'2015 while

patrolling PC Atif Raza (complainant) and PC Maqsood Khan (deceased) reached at SM Toufeeq road near Narang Cinema Liaquatabad Karachi at about 0115 hours when they tried to stoP the motorcycle riders due to suspicion of having committed crimes. Instead of stopping however' the accused sitting behind the driver started firing upon them with intention to commit their murder, as a result of which, PC Maqsood Khan received fire shot injury. PC Ati{ Raza also fired in retaliation. Both the accused fell down from the motorcycle. One of the accused called his companion and ,,Rehan! Standup and run,,' The accused left their motorcycle said by No.MAX-3123 maker Pak Hero of black colour at the spot and escaped foot in the street of Narang Cinema' The complainant saw that PC Maqsood Khan was lying on the ground unconscious and was profusely about the bleeding. The complainant informed duty officer SIP Ghous Bux incident. In the meanwhile slP Ghous Bux with an Ambulance reached at the spot and injured PC Maqsood Khan was brought to Aga Khan Hospital,Karachiwherehesuccumbedtohisinjuriesanddied'Hisdead The body was then shifted to Abbasi Shaheed Hospital for postmortem' complainantfurtherstatedthathecanidentifytheaccusedPersonsifseen was recorded by again. Such statement of complainant u/s' 154 Cr'P'C' SlPGhousBuxatAbbasiShaheedHospital,whichwasincorporatedin book at P.S. Super Market, Karachi being Crime No'124/2015 U / s.302/ 324/ 353 / 34 PPC.

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3.On 01.09.2015 ASI Aslam Khan appeared at P.S. and produced accused Muhammad Rehan before sHo shaoib Qureshi and informed him that he is involved in the commission of murder of PC Maqsood Khan, therefore, he was arrested in the present offence under a memo prepared in presence of mashirs' On 09.09.20L5 accused Muhammad Rehan voluntarily led the police party to Shama Paper Cutting and Binding Factory situated at Gujjar Nala Liaquatabad, Karachi and produced a 30 bore pistol with magazine containing one live bullet which was used in the commission of offence. Such FIR was registered at P.S' Super Market bearing Crime No.130/2015.

4.After usual investigation the matter was challaned and the appellant was sent up to face trial, He pleaded not guilty and claimed trial.

, 5. The prosecution in order to prove its case examined 13 wibresses and exhibited various documents and other items. The statement of accused was recorded under Section 34l2Cr.P.C in which he denied all the prosecution allegations and claimed false implication. The accused declined to give statement on oath under section 3a0(2) Cr.P.C in disproof of the prosecution allegations and did not produce any witness in support of his case.

6.After appreciating the evidence on record the trial court convicted and sentenced the appellant as set out earlier in this judgment' Hence' the appellant has filed this appeal against his conviction and the state had filed a criminal Revision application for enhancement of sentence.

7.The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary rePetition.

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8.Learned counsel for the appellant has contended that the appellant is completely innocent and has been falsely implicated in this case by the 1 police; that the sole eyewitness was not able to correctly identify the appellant as it was a night time incident and as such his identification of the appellant before the identification parade carurot be safely relied upon; that the pistol was foisted on the appellan! that the police had caused wounds to the accused at the IIS and he was not shot during any encounter with the police; that there are major contradictions in the evidence of the PW's and as such their evidence cannot be safely relied upon; that the co-accused who had been assigned a similar role as the appellant, had been acquitted by the trial court and as such the appellant was equally entitled to the same relief and thus for any of the above reasorui the appellant should be acquitted of the charge by extending him the benefit of the doubt. In support of his contentions he has placed reliance on the cases of an unrePorted judgment (Muhammad Umar and t.

Muhammad Fazil aliae Rana v. The state) bearing special criminal Anti- Terrorism Appeals No.213 to 276 of 2016 (Confirmation case No'05 of 2016) dated 76.05.2019, Mian sohail Ahmed and others v. The state and others (2019 SCMR 956), Mehmood Ahmad and 3 others v. The state and another (1995 SCMR 727), laved,Khan alias Bacha and anothet v' The state (2017 SCMR 524), Ihsan ullah and others v. The state and others (2021P Cr.L! 1.470), Liaqat Ali and others v. The state and others (2021' SCMR rt55), Tariq Pewezv. The State (1995 SCMR 1345), Syed Mehroz MehdiZaidiv.TheState(2o2oPCnL|1.609),IrfanaliasShaniv.The state and another (2020 YLR 372), Khalil Ahmed and another v. The state and another (2021,P Cr.Ll1,424) and Imran v. The state through vllth Anti-Terrorism court inside central Prison, at Karachi (2021' P Cr.L] 1384).

g. On the other hand learned Additional Prosecutor General appearing on behalf of the State has fully supported the impugned judgment. He has contended that the sole eyewitness has correctly identified the appellant as the person who fired upon and murdered the 4 MuhammadAif

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deceased police officer whose evidence was reliable, trustworthy and confidence inspiring and should be believed; that the appellant was Y wounded by the eyewitness at the time of the encounter between the appellant and the police as evidenced by his MLC reporU that the appellant on his pointation took the police to the pistol which was the murder weapon when compared with the pistol emPty recovered at the scene lead to a positive FSL report and as such the prosecution had proved its case beyond a reasonable doubt and the appeal should be dismissed. He did however under instructions not press the State's criminal revision application for enhancement of sentence. In support of his contentions, he placed reliance on the cases of Muhammad Yaqoob v' The State (2021 SCMR 1387), Muhammad Zaman v' The State (2007 SCMR 813) and Muhammad Ehsan v. The State (2006 SCMR 1854'

10.We have heard the arguments of the learned counsel for the i appellant as well as learned Additional Prosecutor General and have gone through the entire evidence which has been read out by counsel for the appellant, and the impugned judgment with the able assistance of leamed counsel and have considered the relevant law including the case-laws cited at the bar.

11'BasedonourreassessmentoftheevidenceofthePW,s,especially

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PW L eyewitness Atif Raza, the other prosecution witnesses especially 5 Dr. Shireen Chand (MLO) and other medical rePorts including the post

mortem reportof the deceased, recovery of empties at the scene which its lead to a positive FSL report, we find that the prosecution has proved case beyond a reasonable doubt that PC Maqsood Khan (the deceased) at was shot and murdered by firearm at about 0115 hours on 23'08'2015 main Toufiq Road, near Narang cinema, Liaquatabad Karachi while he 'r- wasdischarginghislawfulofficialduties.Thefactthatnobloodwas recovered from the scene, we find as inconsequential as it has come in

evidence that the deceased was wearing a bullet proof jacket which,

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absorbed his blood. In this respect reliance is placed on the case of Abdul Majeed v. The State (2008 SCMR 1228).

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12.The only question left before us therefore is who murdered the deceased by firearm at the said time, date and location?

13.After our reassessment of the evidence we find that the prosecution has proved beyond a reasonable doubt the charge against the appellant for which he was convicted for the following reasons keeping in view that each criminal case must be decided on its own Particular facts and circumstances;

(u)That the FIR was lodged witJl promptitude which gave the complainant no time to cook up a false case against the appellant with other police officials especially as the complainant had no enmity wittrthe appellant and had no reason to implicate him in a false case.

^ (b) In our view the prosecution's case primarily rest-s on theeye *it r"r, to the murder and his correct identification of the appellant whose evidence we shall consider in detail below;

(i)Eye witness PWl PC Atif Raza' He was-the complainant' Xccording to his evidence he was on patrol on a motor bike with the deceased when they signaled two suspected The motor bike stopped and Persons on a motor bike to stop' ih" p"rron sitting on the rear seat took out his pistol and fired at them which shot hit the deceased who was sitting behind him on the motor bike and who then fell to the ground. In retaliation he fired from his official SMG at the iccused Persons, Both the accused person's fell down and he heard one of he accused persons say, "Rehan stand up and run," which is also the name of the appellant' The accused ran way leaving their motor bike' He came to the injured Uaqsood and s-aw that he had been shot in his neck' He called for assistance and the injured was taken to Aga Khan Hospital where he was declared dead'

')t The eye witness lodged the FIR with promptitude where he specificatly narrates-that one of the accused stated' "Rehan tLr,a "p and move". He has made no material improvements in his evidence from his FIR which was lod^gedonbehaUoftheState.Hewasnotachancewitnessas he ias a unilormed police officer on patrol it 9: "lul Ytr the deceased or, u *ito, bike performing "o--- his official duties., j

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He was not related to the appellant and had no ill will or enmity with the appellant in order to implicate him in a false iryu believe that he was Present at the scene during the v "ur".

incident. The only issue before us is whether he was correctly able to identify the appellant as the person- who shot and murdered the deceased keeping in view that it was a night time incident' In his own evidence he states as under;

"It is incorrect to say that there was darkness at the place of incident, Voluntarily says, there wete street light anil f,nPle light."@old added)

The fact that light was available at the scene of the incident is also corroboraied by FIV 4 Mohammed faffer who was one of the police first responders at the scene who stated in his evidence as under;

"lt is incotrect to suggest that thete was no light at the place of inciitent. Voluntaily says sffeet lights uete there. Houeoer some times the street lights were off 'When I reacheil at the place of the incident street lights wete I on,"@old added)

As such sufficient light was available for the eye witness to identily the appellant and his co-accused who both had unmufhed faces and who he would have got a good look at as he was closed to them when they stopped their motor bike and made firing and specifically stated in his evidence that he could recognize them if he saw them again' In the case of Muhammed Yaqoob (Supra) the Supreme Court has recently held as under with respect to night time incidents at

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" Presence of electric lights at the m-osque presented ampb- opportunity fot the identification of assailants' each named in'the cimi report. Daikness by itself does tnt prooide immunity to an offender if the witnesses-othetwise succeed to capnie/ascertu\n his i'dentity through aoailable meanq conspicuously mentioned in the crime report" ' The eye witness picked out the appellant at an identity parade only two weeks alter the incident and within one r ieek of the appellant's arrest with a specific role' The slight delay in the' identification parade is - not of much the case .o*.qr..." and in this respect ryfiange is.placed onparade of Muhammad Zaman (Supra)'The identification in our view was also carried but in accordance with law and the factum of the eyewitness picking out the appellant at tl'.e- Muhammad Aif

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identification parade with the specific role of shooting the deceased is corroborated by PW 8 Zaheer Ahmed who was the ]udicial Magistrate who carried out the identification Y parade along with his memo of identification who was honest enough in his evidence to record complaints made by the appellant at the time of the identification parade.

We find that the eyewitness gave his evidence in a straight forward and natural manner and was not dented during cross examirultion and was even honest enough to admit that he did not know if his fire had hit the appellant.

Thus, for the reasons mentioned above we find the evidence of the eyewitness to be reliable, trustworthy and confidence inspiring and we believe the same especially with regard to the corrtct identification of the appellant as the Person who shot and murdered the deceased and can convict on this evidence provided that there is some corroborative,/ supportive evidence. Lr this respect reliance is placed o1 tl" caie of Muhammad Ehsan v. The State (2006 SCMR 1854' As also found in the cases of Farooq Khan v' The State (2008 SCMR 917) and Niaz-ud-Din and another v' The State and , anothet (2011 SCMR 725). That what is of significance is the quality of the evidence and not its quantity and in this case we find the evidence of this sole eyewitness to be of good quality.

Thus, based on our believing the evidence of the PW eyewitness what other supportiv{corroborative material is there against the appellant?

(c)That the medical evidence and medical reports as discussed above fully support the eye-witness/ prosecution evidence' It confirms that the deceased was brought to the hospital suffering from one firearm injury to the neck. The fact that there was no blackening around the wound also supports the prosecution case that the fiiing was from about 5 to 6 feet after the motor bike which the appellant was riding had been signaled to stop.

(d)That the appellant took the police to the secret place where he had hidden the pistol which was the murder weaPon which only he could have known about and for which he did not have a Iicense.

(e)That the pistol empty recovered at the wardat straight after the incident when matched with the pistol recovered by the appellant on his pointation lead to a positive FSL report.

(f)That all the PW,s are consistent in their evidence and even if there are some contradictions in their evidence we consider these contradictions as minor in nature and not material and certainly Muhammad Aif

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not of such materiality so as to effect the prosecution case and the conviction of the appellant. In this respect reliance is placed on the cases of Zakir Khan V State (1995 SCMR 1793) arrd Khadim Y Hussain v. The State (PLD 2010 Supreme Court 669).The evidence of the PW's provides a believable corroborated unbroken chain of events from PW 1 Atif Raza asking the accused to stop their motor bike to the appellant firing at the deceased to PW 1 Atif Khan returning firJ io the death of the deceased to the arrest of the appellani to the recovery of the pistol on the pointation of the appellant to the positive FSL report'

(g)That the police PW's had no enmity or ill-will towards the appellant and had no reason to falsely implicate him in this case for example by making up his arrest or foisting the pistol on him-1n! in such circumstances it has been held that the evidence of the PWs can be fully relied upon. In this respect reliance is placed on the case of fUustrtaq Ahmed V The State (2020 SCMR 474)'

(h)That the motor bike of the accused that they were riding at the iime of the incident was seized on the spot by the police as the accused fell off the motor bike at the scene of the incident and left it behind whilst they escaped on foot.

(i)We have considered the fact that the appellant's co-accused was acquitted in this case despite him positively being picked out at the identilication parade by the eye witness as the driver of the motor bike howeve. *e .or,rid"r that his case is on a different footing to that of the appellant. This is because the appellant was given the specific .ot" t? shooting and murdering tle deceased whereas the acquitted co-accused *ho *ut only the driver of the motor bike ,to fire on any one and might not have shared the intention of ^uld" the appellant to murder the deceased. No pistol was also recovered from him on his arrest or later. The acquittal of the co-accused most likely led to the appellant being handed down by the trial-court the less& senter,." oi life impriionment as opposed to the death penalty for the murder of the deceased which is the usual sentence iu u'conviction of murder where there are no mitigating circumstances recognized by the law.

(l)With regard to the alleged firearm injury to the appellant at the time of the encounter with the police we have ruled this evidence out of consideration u, ,,o qr.rtion was put to the appellant on this ). aspect of the case at the time of recording his s.342 Cr.PC statement which is well settled by now to be a mandatory requirement of the law.

(k)Undoubtedly it is for the prosecution to Prove its case against th" u..rr"d blyond a reaionable doubt but we have also considered the dlfence case to see if it at all can caste doubt on or Muhammad Aif

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dent the prosecution case. The defence case is simply one of false implication by the police on refusal to pay a bribe however not a shred of evidence has come on record to support this defence. The Y appellant had also claimed that he was attending a wedding at the time of the incident but no person who also attended that wedding was produced as a DW and no family memkr even c.une forward to support any part of his defense case. The fact that the appellant claims that he was shot by the police whilst in custody is not borne out by any medical report and even otherwise it would be skange for the police to shoot the accused whilst in custody at all let alone in the buttock. The appellant did not give evidence on oath or call any DW in support of his defense case. Thus, for the reasons mentioned above we disbelieve the defense case as an afterthought in the face of a reliable, trust worthy and confidence inspiring eye witness and other corroborative /supportive evidence against the appellant which has not at all dented the prosecution case.

't4. Thus, based on the above discussion especially in the face of reliable, trustworthy and conJidence irupiring eyewitness evidence and other corroborative/supportive evidence mentioned above, we have no . doubt that the prosecution has proved its case against the appellant beyond a reasonable doubt for the offence for which he has been convicted and hereby maintain his conviction and sentences.

15.As such the appeal is dismissed, the conviction and sentences are maintained. The Criminal Revision application is also deposed of as not pressed.

76.The appeal and criminal revision application stand disposed of in the above terms.

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