ABID ALI S/O AHMED (Appellant) VS THE STATE (Respondent)

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CERTIFICATE OF T HEC OURT IN REGARD TO REPORTING

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HIGH COURT OF SINDH

Composition of Bench: 5*-/D. B.

Mr. Justice Mohammad Karim Khan Agha, rvk J*r,ti "- 7*lf V- Al: S^*1l Date(s) of Hearingi t?. - t\-tl

Decide on: 2L- tl -20f9

(a)Judgment approved for reporting Yes ,* )

CERTIFICATE

Certified that the judgment*/order is based upon or enunciates a principle of law */ decides a question of law which rs of first impression / distinguishes / over- rules / reverses / explains a previous decision.

* Strike out whichever is not applicable

NOTE (i) This slip is only to be used when some action is to be taken.

(ii)lf the slip is used, the Reader must attach it to the top of the first page of the judgment.

(iii)Reader must ask the Judge writing the Judgment whether the Judgment is approved for reporting.

(iv ) Those directions which are not to be used should be deleted.

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IN THE HONOURABLE HIGII COURT OF aaqT

SINDH , AT KARACHI

9p:_cr:i.nirrg 1 -AT4 4ppCq! _ / 201-9.

ABID AIJI

S/O. AITMED

Muslim. adu1t, Resident ot Karachj.,, At presently confined in j son, Ka ra c h i........................... 9:"!I.1* Pr | {c ! / c'11' . ....... AppErrr,Ar{,r t'tdl"" /' o( : l:,y:

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THE STATE RESPONDEMT

FIR NO. 131 / 2015

u / s,392 / 324/ 3s3 / 34 ppc P. S. shahrah-e Noo! Jehan, Karachi.

SPECIAL CRIMINAL APPEAL UNDER

SECTION 25 ATA, 1997

Being aggrieved and di.ssatisfj-ed with rhe fmpugned,rudgment dated: 20-03_2019, announced and passed by the XVI]TE Anti terroriso Court, io Sp1 . CaBe No. 38 / 20L6, thereby convicred the accused for offense under secEion 392 PPC to undergo R. I . for five years with fine of Rs.20,OoO,/_ in default of payment of fine he shal1 suffer S.f. for one monLh more, Under SecEion 7 (h) of Anti-Terrorism Act., 1997 R/w. section 353 / 324 ppc fo undergo R.I. for five years with fine of Rs.20,000/- in case of defaulE of payment thereof, sha11 uodergo S.I. for one month more Corld orl page.... .2

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IN THE HONOURABLE HIGH COURT OF

STNDH, AT KARACHf )ott8 qp]__q!ni "at 4T.4_AI)!EC !

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ABID ALI

S/O. AEMED

MusIim, adu1t, Resident of Karachi, At presently confined in I entral prison, Karachi........ APPELLAN'I' y:*_i. t- q.i+ i4,"n,-;i::; ;;)),,i,t F.tt,^(( u VpnSUs

THE STATE RESPONDENT

. FrR No. t32 / 2ot6 u,/s.23 (i) A sAA.

P. S. Shahrah-e -NoorJehan, Xarachi.

SP ECIAIJ CRIMTNAL APPEAL IJNDER

SECTION 25 ATA, 1997

Being aggrieved and dissariEfied with the ImpugnedJudgment dated: 2O_03-2019, announced and pasaed by the XVIfTU Anti Terrorism Court, SpL, Case No, 38-A / 20L6, thereby convicred Ehe accused for offense under section 23 (i)A SAA 2013 to undergo R.f. for 05_years and to pay fine of Rs.1O,oO0/ 1n Case of defaulE of payment of fine he shalI undergo s.f . for one rnonth more, a1l, sent.ences shalt run concurrently and accused shaIl be entiLled Lo benefit U/s. 382-B Cr.p.C. Hence it is most respectfully prayed on behalf of ihe abovenamed Appellant rhat this Honourable Courl may graciously ConEd on page.... .2

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IN THE HIGH COURT OF SINDH AT I(ARACHI

Speciat Crl. AntiTcrrorism APpeal No.149 of 2019 Spccial Cri. AntiTerrorism Appeal No.150 of 2019 Present:

Mt. lusticc Ltohafimad Kurin Khlrtt Ayh/r Mt. lustiLt Zullialrt Ali sd,,\,t.

Appttlant: Abid AIi son of Ahmed through \,lrs. Khadija Kul5oom, Advocate.

F()r'Statel l hrough Nlr. Ivluhamrnad klbal A!a'an, Deput\ Prosecutor Gencral.

Date of hearing: 18.r 1.201e

Date oI anlouncemeiI 2{,.11 2lll 9

IUDGMENT

Mohammad Karim Khan Agha, J.- Appetlant Abid Ali son of Ahmed has prcfered these appeals against the irnpugned judgment dated 20.03.2019 passed by the learned )udgp Anti-Terrorisrn Court No.XVII, Karachi in Spcrcial Case No.38 of 2016, F.l.R. No.13l of 2016 u/s 392/324/3t3/U I'rc r/w section 7 ol ATA. [997 and another Spe.inl Case No.38-A of 2016, II.R. No.132 of 2016 u,/s.23(l)-A Sindh Arms Act, 2013 both registercd at P.S. Shahra-e-Noor Jaharr, Karachi r,r.herebv the appellant has becn convicted and sentenct,d as underi Under Scction 392 Prc to undergo R.l. tor five vears with finc oI Rs.20,0110/- and in dcfault of payment of line hc shall sufler S.l. lor one month more.

Under Section 7(h) of Anti-Terrorism Act, 1997 r/w. S{:.tion 353/32,1 Prc to undergo R.l. for five l'eaN Ir'ith fine ()l Rs.20,000/- in case of default of payment thereof, shall undergo S.l. for one Dronth moie.

Under Section 23(1) (a) oI Sindh Arnrs Act, 2013 to undergo R.l for live vears and to pav fine oi Rs.10,000/-. ln (ase o[ dcfault oI payment of [ine he shali undergo S.l. ftrr one month more All thc scntrnccs sh.rll run con(.urrenllv arrrl ;crur:rl slrall l,e cntitle(l to Ln,n.fit u,/s 381-li C-r I, C.

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2- The brief facts of the case as per roznamcha entry No.25 dated 22.06.2016 oI PS Shahra-e-Noor Jchan are that ASI Rasool tsux along with his subordinate sL?ff namely I,tC Dilshad Hussain, PC ZaIar Siddiqi rcturned lo f5 along with arrested injured accuscd Abirl Ali sorr ol Ahmed and taking the Rickshaw irom near Aniunan Complex tslcrck-f, North NaziDabad, Karachi alolg with 5.154 Cr.P.C. statement of the complainant lvluharnmad Shahroz s/o Muhammad wherein he has statcd that he is residhg in House No.A/i)2, Block-l in Norlh Nazimabad, Karachi a.long with his parcnLs and student of Matli. when on 22.06,2016 at about 2210 hours hc ancl his ldends Saad s/o Mohiuddirl and Faizan Illahi s/o Amjad lllahi procceclecl tol,!'ards their houses afrer offcring Namaz Taraveeh frorn Masjid lsra. Suddenly, a rickshar-r, had come in front oI them irr rvhich tfuee people ra'cre ridi|rg alcrng with rlriver, u,ho were dressed in shalB,ar antl Qameez, two persons from them one oI rvhose form and shapc seemed to be I,athan and the other one was an Urdu ianguage spcaker, havc snatched tfuee mobile phones from them and attempted to elicape in the same rickshau, towards Anjuman Compl.x Block-J. Simultaneously, police patrolling partv headed by ASI Rasool Bux rcacherl there and the complainant narrated the h4tole storl,. Whereupon police party took the complainant in the policc mobile and chased the ricksl'ulv at somc distarce, but the culprits on seeing the poli(e nrobile started liring upon them with intention to kill them. In ordr,r to overawe the accuscd, police had also fired in their sell dcfensc with the result the rickshar ' tumed over. One of the accuscd had rcceived a bullet injury and fell down from the rickshaw while his two accompli.es lelt the rickshavv and cscaped from the spot by taking aclvantage of darkness. The police arested the injured accused and got rccovered three mobiles antl onc unlicensed pistol of 30 bore loacled with one bullet in chamber ancl two in magazine from his possession. The ASI demandcd the liccnse of the pistol but the accused failecl ttr produce any valid license. Ihe arrestcd accused disclosetl hjs name as Abid Ali s/o Ahmcd and his exaped ctr- accused as Rashid and Bilal. The ASI prepared the nrcmo of.rrrcst and ret-ovcry and recorded the statement of the complainant at the spoL then he took the injured accused to Abbasi Shaheed flospital along with his lcfter to MLO for prr,rviding medical treatment lrom where the ASI returned to IrS along with ML Cel tificate No.4515./2016 and the sfatement u/s. 154 Cr.I'.C. of thc Complainant Muhammacl Shahroz was

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incorporated in the I;lR book by ASI llasool Bur as crime No.l3l/2016 u/ s.392/353/324/3a PPC at I{.; Shahra-e-Noor Jahan, Karachi and so also he lodged separate FIR N<r.132/2016 u,/s 23(1)(a) of Sindh Arms Act, 2013 on b€half of the Statc.

3.As per orders of SSfi lnvestigation West-ll the Invcstigation of boih crimes vyere being conducted by Slo/In5pecio! Sycd Zulqarnain of PS Nazimabad $,ho visited the place of inciclent along with complainant dnd PC Sufyan where he prepared such menro of inspection in presence of both 1a'itnesses. The I.O recorded S.161 Cr.P.C. statements of the witnesses and so also obtained the criminal record of the accus€d and sent lhc(.ns!' propert),to FSL (or opinion and rcport and so also produced the accusc(l before competent court for remand and aftcr completing the investigation produccd the challan in which two accusecl Rashid ancl Bilal \a,ere shown as abscondcrt whereas accused Muhammad AbiLl i.,.as shown as arrested 'fherealtcr the absconder accused Rashid and Bilal were declared proclaimecl offentlers and proclamation under section 87,rnd 88 Cr.P.C were issued against them.

4.The charge was framed against the accused to rvhich he pleailcd not guilty and .laimed his trial-

5.ln order to provc its case the prosecution exanlined 3 PIV's rvho exhibited various documents and other items in support of lhe prosecution case where after the plose(ution ckised its side. The appellant/accused recorded his statement under S.32 Cr.PC whcreby he claimed false implication in the case. He did not give cvidence on Oath or call any r,itness in support of his defense aase.

6.Learnecl Judge, Anti-Terrorism Court-Xvll, Karachi, aftcr hearing the learned counsel for the parties ard assessment of evidence availalrlc on record, vide the impugned iudgment datcd 20.03.2019, convicLed an sentence(i the appellant as stated above, hcnce this appeal has been filed by the a.cused against his aioresaid convictiois.

7.The iacts ol the case as well as evidence produced befole thc trial court Iind an elaborate mention in the impugned judgment, therefore, the same are not reproduced here so as to avoid duplication and unnecessary

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reDetition.

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8.Learned counsel for thc appellant has contcnded that the appellant is completely inrocent and has bet"n falsely inrplicated in rhis casej that the allcgetl encounter with the police was fake as no injurv had been caused to the police pady; that the othcr witnesses whose phones had also becn snatchcd had not been cxamined as PW's; thnt there had beer a violation oJ 5.10.1 Cr.frc; that the pistol hacl becn foisted on thc appell.lnt by the policc antl that as such for any of the above rcasons thc appellant $.as entitlecl to be acquitted oi the charge bast'd on tl.rr' benefit ot the, doubt. Learned counsel for thc appellant did not rely on any authorit! in support of hcr case.

9.On the other hand learned DPC has contentlecl that the appellant was arrested from thc spot; that the firearm was lecovcre(l from hinr, thal the FSL was positive and tl1at the appellant had a lengthy CttO for similar types of cases and that the prosecution had provecl its case beyond a reasonable doubt and as such the appeal shoulcl be dismissed. ln support of his i:ontentions he placetl reliance on Muhammed Tufail V State (21)l7 SCMR 1845) and Hakim Khan V State (2013 SCMR 7n)

10.We have heard the arguments of the lcarned counsel for the pariics, gone through thc entire evidence wl'rich has been read out by thc appellant and the impugned judgment with their able assistance and have considered the relevant law including that cited at the bar.

11.For the reasons set out below w,e ha.r,e Iound that the prosecution has provctl its casc against thc appellant beyond a reasonable doubt;

(a)That there rras no delav in lodging the FIR's which meanr rhdt there was no time for conc<xtin1; a lalse casc aflairuit the appellant.

(b)That the complainant PW 1 She.oze Khan from whom thc mobile phonc was snatched from and who was an e,ye witness to the cxchange of firc betwcen the policc party ancl the appellant an(l his co-accused was an indepcndent witncss who had no enmitv with thc appellant or any leasoi to falsely inplicate thc apl)ellant and his evidence in our view is reliable, trust horthy anLl conlidcnce inspiring.

(c)That the appellant was arrested at the spot and as such his identity is not in issue especially as he rcccived a bullct wr)und during the encounter and was taken to hospital which issucd arr MLC to this effect.

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(d)That the complainant PW l Sheroze Khan's snatched mobile phone along r,\'ith t!a'o other rnobile phones which had been snatched from his fricnds rvere rcrovered from the accuseci on the spot alo11g with the accused pistol.

(e)lllat the complainant Pw I Sheroze Khan's evidenrc is (orroborate(l in all material rcspects by the policc PW's co|rcrning [hc encounter, arrest of the appe]lant and recovery ol ihc appeliant's pistol irlld his mobilc phone along \^,ith tlvo othcr snatched mobile phones which bclonged to his iriends.

(t lhat the recovcred empties were sealed (ln lhe spot and were matched with the recovered pistol through the positive FSL report.

(B)That all rclevant police ennies had been made.

(h)The fact that no police officer was injurcd nor the police mobilc damaged rloes not automaticallv lead to thc conclusion that no policc encounter took place especially as it appears that cach side only dischalgccl 2 rorrnds each lvhilst the .hase was t.lking i)l.rce betB,een thc Rickshaw and thc police rrobile and even othcrlvise the appellant sustainecl a firearm injurv as Per MLC whLch haii no blackening surroundinCi it \^,hich indicates that it was not a close range sllot.nd was probably caused during the chase

(i)The fact that thc I{ickshar,r' r.., hich rvas used in the crirne \.r'as nc)t produced before the trial court has becn explained by thc fact ihal it had been relurned to lts orvner.

0)That it lvas a night time incidcnt and hcncc no member of the public was either present,let alone prepare(I, to be an indcpendent musher lo such an inciclcnt.

12.This is a case of a serious street cdme where fircarms were used t,) prevent the police in discharliing their Iawful duties \4'hich are regrettablY on thc fise in Karachi and as such a deterrent sentence is necessary in order Lo discourage the same and since \4'e havc found that thc prosecution has proved its case bcyond a lealonable doubt against the appellant we find no leason to interfcre with the convictions or sentences in the impugned judgment save that as we have not found this to bc a case which attracts the provisions of the ATA the sections undcr the ATA are rcmoved from the (onvictions horvever the sentences in their entirety arc up hel.l so that the convictions and sentences are now as under with the appeal being dismissed apart flom the slight variation mentioned bell!|,|,:

Under S€rtion 392 Prc to undergo R.l. fo! fivc years vv'ith fine of Rs.2Q000/- anti in default of payment oI fine he shall sulfer 5.1. for onc month more.

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Untier Section 353/12,1 PPC to undergo Il.l. for five years with fine of lts.20,000/- in case of default of pavment thc,reol, shall undcrgo S.l. for one month nrore.

Untler Section 23(1)(a) of Sindh Arms Act, 2013 to undergo R.l. Ior five years and to pay tine of Rs.10,000/-. ln case of dcfault of pavmcnt of fine he shall undergo S.l. for one month n.rorc.

All the sentenccs shall run concurrenllv and accused shall bt, entitled to benefit u/s.382-8 Cr.l,.C.

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