AHMER S/O GHULAM SIDDIQUE & ANOTHER (Appellant) VS THE STATE (Respondent)

1a

IN THE HIGH COURT OF SINDH, KARACHI

Prcsell:

Mr, Iustice Mohammq., Karirn Kh^fi ASha Mt,lustice Rhadiu Hussai Tuflio

SPL. CR. A,T. APPEAL NO.2O5 OF 2019

Appellants: l)Allmer 3on of Ghutam Siddique.

2)Ranihan son of Raju through Mr. ,an Mohammad Naich, Advo.ate Respondent: The State through Mr. Muham mad Iqbal Awan, Additional Plose.utor Ceneral, Sindh.

SPL. CR, A.T. APPEAL NO.2O6 OF 2019

Appellant: Ahnrer son of Ghulam Siddique. through Mr. Jan Mohammad Naich, Advocate

Ilespondenh The State throirgh Mr. N{ uhammad Iqbal Awnn, Additional Prosecutor General, Sindh.

SPL. CR. A.T. APPEAL NO.2O7 OF 2M9

Appellant: Ranjhan son of Raju through N{r Jan Muhammad Naich, Advo(ate

I{espondent: The State through Mr. Mu hammad Iqbal Awan. Additional Prosecutor General, Sindh.

I

YX

SPL. CR. A.T. APPEAL NO.2O8 OF 2019

Appellants: 1)Allah Wadhayo son of Dost Muhammad 2)Imran @ Toofan son of Chulam Ati thtough Mr. A.llah WaraYo Khan, Advocate

Respondent: The State throuth Mr. Mu ha nrnrad Iqbal Awan, Additional Proseculor General, Sindh.

SPL. CR. A.T. APPEAL NO.2O9 OF 2019

Appellant: Atlah Wadhayo 8on of Dost Muhammad through Mr. Allah warayo Khan, Advocat€

Respondent: The State through tvlt. Muhamma d Iqbal Awan, Additional Prosecutol General, Slndh.

SPL. CR. A.T. APPEAL NO'210 OF 2q19 Appellant: Imran @ Toofan son of Ghulam AIi through Mr. Allah warayo Khan, Advo.ate

Respondent: The State through Mr. lvuhammad Iqbal Awan, Additional Prosecuto! General, Slndh.

Date of Hearing: 27.01..2022

Date of Announ(ement 03.02.2022

IUDGMENT

N,IO KHAN The appellants namely Allalr Wadhayo, Ahmer, lmran @ Toofar and Ranjhan have a$sailed the impugned judgrnent dated 24.07.2019 Passed by the Anti-Terrorism of 2013' Court No.l, Karachi in Special Cas€ Nos A-102 of 2013' A-102-A

g1

A-102-B of 20.13, A-1024 of 2013 and A-102'D of 2013 adsing out of Cfime No.5,14, 546 to 549 of 2013 under s€ction 148/149/302/324/353/7@/14 PPC r/w S€ction 7 of ATA 1997 and under S€ction 23(1)(a) Sindh Arms Act,2013 ledstered at I{i Gulistan-e-Jauhar, Karachi whereby accused Allah Wadhayo son oI Dost Muhammad, Ahmer son of Chulam Siddique' lmran @ Toolan son of Ghulam Ali and Ranjhan son oI Raju were convicted for offence u/s. 302(b) PPC and sentenced to R I' for life on each .ount and to pay comPensation of Rs.1000,000/- (RuPees Ten t-ac) each u/s.5,1,1-A Cr.IrC to the heirs of the deceased and h default thereof they shall suJIer S.I. for one yea! more They were also convicted and sentenced for the offence punishable u/s.7(a) of ATA 1997 to undergo R l' for liJe on each count and to Pay Jine of Rs.10,00,000/- (Rupees Ten Lac) each and in default thereof they shall sulfer S I Ior six monttu more' They

were also convicted and sentenced to undergo R L for ten yea$ and with fine of Rs.1@,000/- (Rupees one l-ac) each for the offence Punishable u/s.(c) of ATA 192 in case of non-payment oI fine they shall suffer S I' fo! 06 months more. All accused nanely Allah Wadhayo son of Dost Muhammad, Almer son of Ghulam Siddique Imran @ Tcofan son of Ghulam Ali and Ranlhan son of Raiulor wele also convicted and (Rupees sentenced to undergo R.I for ten years with fine of R5100'0U),/- One tac) each for the oflence Punishable u/ s'324 PPC and in case of

delault in payment of fine they shall sulfer S I' for 06 monttE more lhey

were also convicteii for the offence punishable u/s 7(h) of ATA 1997 alrd

(Rupees Fiftl' sentenced to R.l. for Iive years and with fine of Rs 50'000,/- Thousaid) each in case of non Payment o( Iine they will suffer S I for three months more. They wele also each convicted for the offerce punishable u/s.353 PPC aJtd sentenced to R L for two years and with fine

oI Rs.20,000/- (RuPees'Iwenty Thousand) in case oI nonPayment oI fine convicted they will suIIer SI. fol two months moi€ They were also each for the olfence punishable u/s 23(1)(a) of Sindh Arms Act' 2013 and (RuPees liit)' sentenced to R.I. for five years and with {ine of Rs 50,000/- Thousand) in case of nonpayment of Iine they will sulfer Sl for three

of Section montlls more. All sentences shall run concurently The benefit 382-8 CI.PC was also extended to them.

lo 2013' the

2.The brief facts oI the Prosecution case are that on 15 08 complainant Sub-lnsPector Noor Mustafa, Postcd at Police station

Culistan-e-Jauhar, Karachi regietererl above FIR9 at police station at 0615 hours' Culi6tan-e-]auhar, Karachi stating therein that ofl 15 08 2013 when he received a he was present at Police Post Hucgain Hazara Village' phone call from S}IO Malik Muhammad Saleem' who inlormed him that along with h'is absconding accused of murder case namely Pariya'l Shah such information' at companions was present at his hous€ On receiving staff reached near 0700 hours, the comPlainant along with sutFordinate the side of SaIari Park' the house of abscondhg accuoed Pariyal Shah from had already The SHO and other Police officiale along with sub'ordinates reached there. In the meantime, from the rooftop of house of accused the police Pariyal Shah, amed culplis started firing over the Police Party' to firing of the culPdts' also fired uPon the culPrits in theit defense Due Hussain became ASI Muharnmad Aslam, ASI Amanultah and PC Azhar the coutse of injured an<l were shitted to ho6Pital fol treatm€nt During SI lO Gulistan-e-lauha! narrated the facts to SDPO Gulshan-eJqbal firing SHO Mubim Muhammad Qasim Ghori thereaJte!, DSP Gulshan-e-Iqbal' with sub- Town, SHO Culshan-e'Iqbal and SHO Bahadulabad atong the Police Party to ordinates also reached at the sPot The DSP dfuected encircle the accused Pelsons fo! their arlest and stePPed forward ln the Culshan-eJqbal and meantimc, due to fuing of the accused Persons' DSP ASI Asif of t5 Gulshan-e-lqbal sustained injuries and fell clown SHO Gulistan-e]aulBr Malik Muhanmad galeem arld SHO Bahadurabad vehicles (APCs)' Hydet Zardi tried to take iniued through Baktar Band seriously iniued The but accused also fited uPon them, who abo became Culshan-e-Iqbal and ASI complainant by taking shelter reached near DSP shifted the Asif and saw that both had dierl on the spot The comPlainant the course of firing' dead bodies and iniured to hosPital Thereafte!, duing The Police further police of different Police stations also reached there coming tolvards thcm' encircled the accuscd, who on seeing police party while making firing' fled away by iumPing over the wall of Safari Park' in apPrehending The complainant with the helP of Police Party succeeded 9 accused persons, who were armed with weaPons The complainant also gPot' The aPPrehended saw that tlEee tefforist were also lying dead at the

1r

accused disclosed thci respective names as 1) Imtiaz son of Imdad Hussain, one lcpeate! 12 bore with lour live bullets were recovereri from his possessio+ 2) Allah Wadhayo son of Dost Muharrunad' one Mouser of 30 bor€ with five live bullets were coveled from his possession, 3) Ahmer son oI Ghulam Siddique, one 30 bore pistol without number loaded rnagazine with foff live bullets wete recoveted from his possessioo 4) lmran son of Ghulam Ali, one 30 bore pistol without number with tfuee live butlets were recovered lrom his possession, 5) Ranihan son of Raiu' Irom his possession one 30 bore Pistol without any round were recovere4 6) Sameeuilah son of Ghulam Hussain, from his possession one 30 bole pistol without number with two live bullets were recovered' 4 Abdul Ghaffar son of Rasool Bux, one 30 bole pistol without numbe! with loaded magazine and one live bullet wete tecovered fuom his PossessioD Mohabat Ali son oi Haider AIi, from his Possession one 30 bote Pistol with

tluee live bullets were recovered and 9) Abdul Malik son of Bhooral Kha& from his possession one pistol of 30 bore without numbe! with one live bullct wele r€(overed. Al[ the recovered weaPona were without licenses' Shah The arested accused disclosed narnes of dead accused as (1) Zamin son of Bachal Shah, from his hand one single barrel shot gun No KC-59533 bullets and from flower colored bag lying on his ehoulder, {urther three were also found. The name of second dead accused was disclosed as bullets was Umeed Ali @ Sobal one Kalashnikov like RiIle with three live lying in his hand. The name of third dead accused was Amir Bux was lying Chachar, one 30 bore Pistot No.31011144 with four live bullets dead in his hand. The arms and ammunition recovered flom arrested and Paiiyal accused were sealed at the spot under memo Wheteas accused Shah along with his 4/5 companions succeeded in escaPing hom place of

incident. The dead accused were shiJted to JPMC fo! Proce€dings Hence the above FIRS

NBWs against the absconding accused namely 1) Pa yal Shah son

of Bachat Shah, 2) Raia Pathan son of not known and 3) Ghuiam Ali Bhangwar son of not knolYn were issued rvhich wele rehrmed unexecuted. A{ter recording the statement of l'O the absconding accused

persons were declared as Proclaimed offenders

O

Z

AJter registration of FlRs, the investigation of all the cases was

iisPected the Place entrusted to lnsPector Muhammad Fareed-u-Din who of Pws of incident and PlePaled memo as well as recorded the statements all the u/s.161 CI.PC. I-eamed ADPP filed statement for arnalgarnating usual five cases, which was allowed by con'c€nt' After comPleting to which investigation charge was framed agaiist the accused Persons they pleaded not Suilty and claimed trial oI their case' 17 PWs and 5, The Prosecution in order to ptove its case examined oI accused exhibited various document8 and other itens The statements they denied all persons were recorded under Section 342 Cr'P C in which false implication at the the allegations l€veled against them and claimed on oath or lead any hands of the police. Thcy did not examine thernselves Dw in supPort of their defcnce case'

the

5.After hearing arSuments of leatned cortsel and aPPreciating and sentenced cvidence on reaord the trial cou't convicted the aPPellants apPellants have filed them as set out earlier in this iudgment Hence' the these apPcals against theit conviction'

before the trial

7.The facts of the case as well as evidence Produced dated cortt find an elabolate mention in the imPugned iudgment the same may not be 24.07.2019 passed by the trial court and, therefore' unne€essaJy rePetition' reproduced here so as to avoid duplication and Learned counsels appearing on behall of aPPellants have

contended that they are completely irmocent of any wrong doing and at the behest oI the have been falsety implicated in this case by the Police given the specific role of range6; that none of the aPPeltants have been police officeri that the firing on and causing the death or iniury of any othels who were aEeste'l memo oI aff€st and recovery is doubdul as five along with the apPeuantc were Let ofJ u,/s 169 Cr'I'C following a rePort that the weaPons were into the incident PrePaled by DIG Khawaja Sultan; was a delay il sending t}le foisted on them by the Police; that thele evidence of the IO all those rc:cove es for FSL rePod; tlut according to the and thus none of who fired on the police had been killed in the encounter death or iniury of any, the appellants had any responsibility tor the

Cz l)

policemen and thus for any or all of the above leasons the aPPellants should be acquitted of the cha!8e by bcint extended the beneit of the

the cascs oI doubt. ln supPort of their contentions they Placed leliance on 148), Raiib v The State Qaddan and othero V The State (2017 SCMR (202fr P Cr. LI'1342\ and Afaq Ahmed v Ihe State (2020

YLR 676)

9.On the other hand leamed Addt Plooecutor General Sindh appearing on bchalf of the State has fully suPPorted the impugned

judgmenl ln particular he ha6 contended that the aPPellants were all on the sPot and weaPons were recover€d ftom each of them; tllat aEe8ted the prosecution evidence is leliable, trust worthy and conlidence insPiring the Plosecution and can be believect; that the medical evidence suPPotts evidence; tllat the lecoveries made at the scene lead to a Positive FSL

report and as such the prosecutiol had proved it8 case beyond a

appeals should be rcasonable doubt agaiist all the aPPellants and there dismissed. [n suPPo of his contention8 he has Placed reliance on the cases of Muhasunad Ashraf v The State (2011 SCMR 1M6)' Muhammad

Ilyas v The state (2011 scMR 460), Muhammad Arif alia Mama v The

(1985 SCMR 1046)'

State (PLD 2003 SC 942), Muha$mad Din v The State v MuhaEEad Manrha v The St.re (2001 SCMR 199)' Aeif and Others The State (2020 SCMR 610), Atta-ur-Rehman v The state (2018

SCMR

372), Hakirn Khaa v The State (2013 r,MR m) and Abdul Raehid v

Muham$ad Naizr (190 SCMR 330)'

10.We have heard tle argumeflts of the leamed counsel for the through the appellants and leamed Addl. Prosecutor General Sindh' Sone entLe evidence which has been read out by the counsel {or the aPPellants'

and the impugned iud8ment with their able assistance and have bar' considered the relevant law including the case law cited at the

11.AJter our reassessnent of the evidence we lind that the Prosecution the appellants has proved beyond a reasonable doubt the charge against for which they were conYicted for the following reasone;

(a)The FIR was lodged with promptitude and left no time for thc police to cook up_a falsc cas€ against the accused The accuse ire all named in the flR with similar roles of firing on the Policc with intention to kill them which lead to the death of two Police

1q

officers on the spot and iniury to thee other police olficers on the sBJt and the evidencc lead by those PW's including the compiainant has not been siSnificantly imProved on {b) That at Ieast eisht police PW'q gavc cvidence that they were -the oresent at the timJ of encounter between the Police and the ili..r..t tt whilst others had heard that the incidcnt was a r€sult of an encountd TtEee of these Police PW's wele iniured bv fire arm at the scene as conJlmed by medical evidence and three of the accused wete killed by the Police at the scene as confirmed by medical eviden e. lt is it well setded by now that the evidencc of a police witness is as reliable as any other witness provided that no enmity exists between them and the accurerl anJ in this case no enmity has becn suggested against onv of the police PW's and as such the pr.rlice had no reason lo falsely impiicate the appcllants in a false case Thus we believe tr." iotlce cvidence which is corroborative in all material rcspirs. In this respea reliance is Placed on the case of Mustaq Ahmed v The site (2m0 SCMR 474). That the encounter accordins lo the prosecution evidence was of a ma;or natule which la"stcd up io 4 hours, reinJorccments were called' 149 empties of ,-ying bo." wag lecovered from the rene along witi human blood as proved by a chemical lePort/ two policemen died on the spot, three policemen were injured on ihe sprjt and three of thc miscreants were killed on th( sPot whicir is an admitted Ptrsition. No defense witness was oroduced from the locality to give e"idence that no encolrnter iook olace. In fact ftom the linc of defense taken by the appellans it thnt it is not denied that an encounter touk "ppeu,s o'ljce but that'Ge appellants were not prescnt at lhe tinre of lhe lncounter with the polrcc and played no Part in it' As such based on the above dirussirjr't we find that the encountcr as

alleoed bv the police has been proven beyond a rcasonable do,."bt on ih" tl^L, dute and location as allcged in the charge

(c)That thc police wikresses whose evidence we have already leved alone with the medicaj evidcnce and Post morlcl)r reports, death"certilicales and MLC'S whi'h all the 'on'obo'ate o*t uridon"" of th" police witnesses all Piove that two hamcd oolicernen died on the spot during the encounter on account of ih. ti."rr. iniuries whi-ch they reccived and that three other named Dolice olficers re(eived tLearm iniu es during the encounlir and gave evidence to that effect and thus 1^'e find that the orosecutioi has proved beyond a reasonable doubt that .luring an cncounter it the tim', Jate ard Pla'e all(8eJ in lhe .hrrsi between the poli(e and miscrednts two policc officers *ere- murdered and three police offi(ert were injured bv the miscreants bv fir€am whilit the mis(rcants attemPled to kill them whilst iarrying out their official duties'

(d)The only question which remains therelore is whethel the aDDellants weie involvcd in the encounler which lead to trvu p'oii""^un being murdered bY firearm and three other

policemen being wounded by fue arm. We find that the prosecution has proved beyond a rcasonable doubt that the ippellans were all ple5ent and took Part in the encountc! with

I

the oolice and that thev all had the ifltention to kill the Policc alorrg with the abscondrng accus€d and were guilty of murJering two policemen and iniuring three Police men with intention to kill them in older to Plevmt them from carrying out their lawful duties and were also caught in Possession with unlicensed Iirearm,s for the following reasons;

(i)That PW 1 Noor Mustafa who was the com?lainant in the iase and was Pleknt as an eye witness throughout the incident at the scene arrested all the aPPellants on the sPot and recovered fire arms from them. His evidence accords with the FIR which was lodged with PlomPtitude and &as not signilica ly improved on. He had no ill will or eruniR with ary oI the aPPellanLs and had no reason to imPlicate them in a false case. His evidence was not dented during a tengthy c.o6s examination aIrd he gave his evidence in a straight forward marurel which we find to be reliable, trust worthy antl confidence insPiring and rMe believe the same' He recognized all the accused as those who he a(ested after the encounter in court.

(ii)That the complainant's evidence is corroboratcd in all materia.l resPe.ts by PW 2 Muhammed Abbas who was another Potice officer who waE Present as an eye witness throughout the incident at the s.ene and was mashir of the aEest- an.l recovery made from the aPPellants' He recognized all the accused in cour{ as being arrested aJter the enco-unter although he mixed up the identification of appellants Ahmei and Ranjha although imPortantly he identilied them all as taking part in the encounter'

(iii)That SrIO PW 9 Malik Muharnmcd Saleem was iniuted by firearm at the scene and his evidence ft ly (oEoborates the prosecution cdse He recoSnized all the aPPellanh' in court as having taken part in the enaounter'

(iv)That specilic weaPons wele lecovered hom each of the appellants it the time of theiJ arest on the sPot'

(v)That these weaPons of each of the ac'used Produced a positive FSL rePort when matched with the emPties iecovered at the scene. The 10 day delay in sending the empties and weaPons for FSL rePoit we -find- to be incoruequential and in this iesPect reliance is Placed on the case of Muhammed Aohraf (SuPra)

(vi)That thcre dre no maior conkadictiolts in the evidcnce oi itre pW's ona lt is well Betlled by now that minor conEadictions which do not effect the matelialitv of the evidence can b€ iSnored. In this resPect leliance is placed on

Cr/

IO

Zakir Khan v State (195 SCMR 1793)

(vii)That all appcllants fucd upon the police Patty. TT f )"""i"i t" *rl',it"r. and whet-hei or not it was onc of their iu["s *ni.ft "u**f the fatal wound to any Poli!9-o{ficer. 9:s i" .u* * ^urder with common intent falling within "LtJ.

;"" ;;"," ot 5.302 (b)/u Prc whi(h baseJ on the cvillcnce the accused were guilty of.

of Atta- ln this rcsard we ale fortilied by the tindinge in the case ;-il;I (supra) where the Supreme court redu'ed the murder as it was a"utf, ,",t*"""" to one of lile impdsonment fol a case of common intent at P.375 as set out below;

"Al, rt lrorrt thal the alleSltlo'ts leoeled ar.h'st.the """;;;;;' ;"; th"i:, co-accused ioe ioint tnd and no. connoh partictttar :#;;;;-;;;:; ;; iicn at*ihuted io one ol the accuse't anv lccuses ,i"*1". i ii, thus, aot clear 4s to @hich i'":;;:;;'.'i;;;";l;; thte pt*e apPettants,'oas otuatt.Y to the tteceased' nt i""ooriibt" Jo, *i"ing che latal iniuri's ',,ir"iirr.irnut r"*i"llv a sentellce of drath ts tlithtuld u'len.rr.ts :; ,;;;;'*';-;;i;;:;; i poinc'n"'tpai *os actuattv ';;;;;;;'; ue rcsTonsibte lot hrtP decidP'l to '",2ir:,!"

ir,lt or not' For all tt.s' reasons irri"" ,"a n err, rl a all' on rhe side of prer'auion '" $old added) beyond !

Iviiil Altloush il is for the Prose( utson to Prove its case whlcn r\ case i"osinabl. d-o"bt r.'e have also examined the defence .J"tif, .i" f"f.. imph'ation bccause the aPPellants werenot "f of the enc'outter as thev had carlrer lreen PrcxeLr -...""tri *ru time ffit.y'il; ;;";; *;-;;; the ;-* None or the appeuants.gave DW was ,.l,i.r-* "r, oitl m disprove Proscruhon case and no JH,;;;,;;;i;i or rr'e aPPellants were arrested from home iiirt" 'l^-"*-*tr io family member !'ranv neiShbor made. cn) aPPetlanls :i-;i;;i;;;i rlre rungJrs auuctins of .the t.orri thei. rroJe.. In tlc face of rellable kust wo hy Prosecuurnl as an after thought The ."ji.*" *" a"*r;ve the deJence case on ote sPot were ;;;-ili fir" of the other atrested accused DIG does not ;;";-tt 169 based uPon a report by the then i'""i"t *,i pr.t*ttorr cJse This report'was not exhibited at tsidl and is not binding on the trial court

(ind that the Prosctution 72- Thut for the reasons disruss€d above we has proved its ca6e beyond a reasonable doubt in resPect of all thc offences for which each of the aPPellants were convicted in the impugned

judgment arld the aPPeals are dismissed

E otl,.l o