PC MADAD KHAN S/O AMEER ABDULLAH KHAN NIAZI (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COURT OF SINDH AT KARACHI

Present:

Mr. lustice Molnmmad Kotim Khat Agha ML lustice Khadin Hussait Tunio,

SPL. CR. A .T. APPEAL NO.58 OF 2019

Appellant: PC Madad Khan son of Ameer Abdullah Khan Niazi through Nawab Jawad Hussain Larik and Ms.

Farhana Shamim, Advocates.

Respondentl The State through Mr. Abrar AIi Khichi, Additional Prosecutor General, Sindh.

Cornplainant Muhammad Shabbir son of I-lassan Ali through Mr. Ali Gohar Masroo, Advocate

Date of Hearing 09.03.2022

Date of Announcement 16.03.2022

UDG ENT

Mohammad Karim Khan Agha, J. APPellant PC Madad Khan son_oj +IEer Abdullah was charge sheeted to Iace his trial in Special Case No. ,690 of 2015 arising out oI FIR No. 155 of 2015 under section 302/34 PPC y'w section 7 of ATA 1,997 registered at PS Bahadurabad Karachi APpetlant was convicted vide irnpugned judgment dated 12.02 2019 passed by the learned Judge, Anti- Terlorism Court No.l, Karachi wheleby he was awarded sentence for IiIe imprisonment u/s.302(b) PPC and to Pay compensation of Rs 2,00,000/- (Rupees Two Lac) u/s.544-A CI'P.C. to the heirs of the deceased and in default theleof he shall suffer S.l. for one year mole. The appellant /accuserl was aiso convicted and sentenced for offence { s7(a\ ol ATA, 1997 to undergo R.1. for IiIe and to Pay fine of Rs.1,00,000/- (RuPees One Lac) to the heirs oI each deceased and in delault thereof he shall suffer S I for six months more. A1l the sentences were dilected to be run concurently The aPpellant was also extencled lhe benelit of section 382-8 CI.P.C'

2.The brief lacts of the Prosecution case are that on 19052015 at 1700 hours, the comPlainant Muhammad Shabbir son of Hassan Ali lodgetl FIR o{ this case at police station Bahadulabad, wherein he has stated that on t Pgelol ro

17.A5.2015, at about 2130 a.Dr. (night), he received a phone call frour Muhammad Bilal, a friend of his son Muhammad Ali, that Muhammad Ali had become injured in an accident and has been shilted to Jinrah Post Gladuate Medical Centre (JPMC), Karachi, as such, the complainant went to the JPMC and found that his son Mul.rammad Ali and his friend Muhammad Danish had died. He was inlormed by Bilai and Mushtaq that they had gone on thee motorcycles to Dhoraji to eat Golaganda On Motorcycle No.KFC- 6597 maker Speed, Muhammad Ali and Muhammad Danish were riding and at about 2:15 a.m. (ni8ht) at the siSnal of Tipu Sultan Road, a police party with white Car, bearing registration No.SP-051A of PS Bahadurabad, complising HC Nadeem Ahlned, PC Madad Khan, driver HC SarJaraz, with motorcycle ridel police officials namely Sher Khan and Faizan Hussairy signaled them to stop and due to not stopping the motorcycle by deceased Muhammad Ali, PC Madad Khan filed, which caused Muhammad Ali and Muhammad Danisl.r injuries in front of bungalow No 42, Al-Hamra Society and fell down, who were shifted to Jinnah Post Graduate Medical Centre, Karachi through al1rbuiance Ior medica] treatment, but both succumbed to their injuries, hence this FIR.

3.After tllorough investigation the matter was challaned and tl,e appellant was sent uP to face trial. He pleaded not guilty and stated that he was implicated in this case falsely with malafide intention'

4.The prosecution in order to Prove its case examined 10 PWs and exhibited various documents and other items The statement oI accused person was recorcled under Section 342 Cr.PC in which he denied all the on allegations leveled against him. The accused neither examined himsell oath nol produced any DW in suppott oI his defence case

5.After aPPreciating the evidence on record the trial court convicted the appellant and senterced him as set out earlier in this judgment l{ence' the appellant has filed this apPeal against conviction lt is wodh mentioning that time of his co-accused police officials who were alleged to be with him at the the incident and wele also sent uP to stand trial wele acquitted vide the impugned Judgment and neither the State nor the complainant has filed any has filed appeal against the acquittal. Neither the State nor the complainant drv "rpplrcatiott fol enhancement of the apPelldnt's sentence' Page 2 ol 10

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6.The facts oI the casc as \\,e11 as evidence Produced belore the trial coult find an eiaborate mention in the imPugned judgfrent dated 12.02.2019 passed , by the tlial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary rePetition.

7.Learned counsel for the appellant has contended that there was an unexplained clelay of 2 days in lodging the FIR which enabled the complainant and the police to cook up a false case against the aPPellant, that there was no eye witness to the incident; that no PW deposed against the appellanti that the aPPellant's confession before the judicial magistrate was rellacted and it was made alter a delay of 14 days and as such could not be relied upon and thus for any or all of the above teasons the appellant should be acquitted of the charge by extending him the benefit of the doubt Leamed counsel for the complainant Muhammed Shabbir whose son Muhammed AIi was murdered by the apPellant contended that the complainant had forgiven the appellant and as such he had no objection if the aPPellant was acquitted in the case relating to the murder of his son Muhammed Ali'

8.On the other hand learned Additional Prosecutor General Sindh has fully supported the imPugned judgment. In particular he has contended that the delay in lodging the FIII has been explained and as such this delay in lodging the FIR is not fatal to the Prosecution case; that the aPpeilant made a volunta-r-y and truthlul con(ession before a iudicial magistrate which despite being retreated this court can and should rely upon; that a weapon which had

been issued to the apPeliant had been recovered ftom him and that file shots

had been made from the ammunition which was recovered Irom him; that that the there was a positive FSL rePort in respect oI the recovered weaPon' a case of medical evidence supported the Prosecution case; that this was not accidental firing which lead to the loss of two precious lives and that as such a reasonable the pi-osecution had ploved its case against the aPPellant beyond he doubt and the appeal should be dismissed ln suPport of his contention' State and others (2020 placed reliance on the cases of Raza and another v' The 2001 SuPreme Court SCMR 1185), Muhammad Mushtaq v' The State (PLD 107), Majed v. The State (2010 SCMR 55), Ghulam Nabi v' The State (2007

SCMR 808) and Ch. Muhammad Yaqoob and others v' The State and others

(19q2 SCMR 1983).

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9.We l-rave heald the arguments of the learned counsel for dre appellar,t, learned counsel for the comPlainant and leamed Adclitional Prosecutol General Sindh and Sone thlough the entire evidence which has been reacl out by the tearned coulsel for the appellant, and the impugned iudgmert wiih their able assistance and have considered the relevant law including the case law cited at the bar.

10.At lhe very out set we would like to Point out dlat iI we find this to be a case wltch does not fall within the purview of tlle ATA the comPlainant would be hee, iJ so advised, to enter into a comPlomise agreement in accordance with law with the aPPellant in resPect of the rnurder of his sor.t Muhammed AIi if we uphotd the aPPellant's conviction in resPect of his murder but it woultl be for the legal heks of the deceased Muhammed Danesh to decide whether or not they warted to enter into a comPromise agreernent in accordarce witll law with the apPellant in resPect of the murder of Muhammecl Danesh if we uphold the aPpellant's conviction in resPect of Muhammed Danesh's murdet.

11- Based on our reassessment of the evidence of the PW's who reached the scene where the bodies were lying aJter being 6hot the other witnesses includiflg medical evidence and medical rePorts and the recovery of the bike of the deceased at the place of the incident we find that the prosecution has proved beyond a reasonable doubt that Muhammed Ali and Muhamrnetl Danesh (the deceased), were shot ancl injured by firearrr which filearm injuries lead to their death by the time they were tlansPorted to llosPital on 17.05.2015 at 0215 hours at Tipu Sultan Road Bahadurabad Karachi. Tllis fact is not disputed by either party

12.The only question Ieft befole us therefore is who shot and murderecl by fireaun the deceased at tlle said tirne, date and location?

13.AIteI our reassessrnent of the evidence we find that the prosecution has proved beyond a reasonable doubt the charge a8ainst tlle appellant for which he was convicted and sentenced except in respect of the conviction and sentence undel the ATA for the following reasons;

(a)It is hue that the FIR was lodged after a delay of two days. Howevel the complainant was irLformed about the shooting by wl-rich time he went to the JPMC where the bodies were identiJied before being subject to post morteN and then released to him for buriai PEge 4 of 10

purposes and lvas thereafter inJormecl that it was a Police Party who was responsible for the murder of the deceased Under these cilcumstances where an FIR is to be lodged against the Police it is quite understandable tl-lat it took some time for a final decision to be made belore lodging the FIR as genelally it is hard to get an FIR lodged at all in this countly let alone against serving Policemen and as such based on the particular facts and circumstances of this case we do not find the delay in lodging the FIR to be fatal to the Prosecution case With resPect to an expiained delay in lodging the FIR not being fatal to the prosecution case Ieliance is placed on the cases of Muhammad Nadeem alias Deemi v The State (2011 SCMR 872) and Muhammed Mushtaq (Supra).

(b)ln our view the Prosecution's case mainly rests on the judicial iJ*""rlort of the aPPellant under S 164 Cr'PC which is reproduced below for ease of reference;

IN THE COU RTOFV CIVIL IU DGE &

]UD ICIAL M AG ISTRATE EAST

{ CONFESSIO NAL STA TEMENT OF ACCUSED

AD AN 164 Cr.

On 16.06.2015 PL 2'100 Hrs, I roos deputed as PC on the mobile of PS Bahadurabad t'ot patrolling' I utas aLrcnwanad iy drioer Sarlatoz and HC Nadrem and Sler Khot'and faizin Hussnf, u cff rding a molor(ycle' lfl the niSht ctt 0215 lt/s,, zoe wete carnJiflS ott snau checkins 6n the Tipu 5 lt.tn Road in the iSht betuecn 16.06.2015 and 17.06.2015. Dunng lhts lime lTa hn , cnme an a b*c and in{orned us lhat six boys iding lhrce nitorryrl,s nre ,nrryiitg oul snalching al Muskan Roundibout and at thii tiie a filessoge uas also rcceited on t'rrobile roircless. After his toe sat ifi the mobile and ttent totL,ards the roundabottt Befote arrioing al the Muskfin Roundabout as soon as toe stopped at the siS dl' three boys.

',,-'ou ,o^in, on lhree ntoto,cl,lles Wc ltied stoPpinS lhen and als;o cntted" thent hul lhey did not slop itd sped up-\lrc- molorttrclc. I rfade fire in ordct to scare the'tt a d I litcd accidently t*o siots at the lyte of thc t'lototcycle but the suspecls'a hullet alter hittini Ihe ground, iniured both On it n"pot we d7d nol rcalize that they 'oerc hit bll the bullet" . (bold added)

validity-ol iudicial A{tcr a review o[ the relevant law on the legal lhe cdse of Ch' Muhammad -in"Hon'ble SuPreme court in1983) .onJ"rrlon, the teached the rollowins ;;;;" ; stu," (1ee2 scMR conclusion:,

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"Tfu leSal positlo11, Tahich has e rcrged font the dboae rePorts,- ,r",n, ii b" that in order to judge the eaidentiary rtalue of relrncte() cont'ession, the Court is to adaett to the questiot, whether thi same appears to hazte been made ttoluntaily, witho t a y iflducement, ilutess ot coerciofl with the object to stite the truth. If the Court is satis/ied on the aboae aspect, the mere f\ct that there Toere some ittegulariiies in tecotding of a confession, utould not u.tairant distegarding of the same".(bold added) It is settled law that a retracted judicial con{ession can be legally admissible and used against its makel in certain circumstances ln the later case of Muhammad Amin V The State (PLD 2006 SC 219) it was held at P.224 Para 9 as under;

"9. There is no caoil to the plopositiott that conaictio coll.l hqae been awarded ott the basis of rettc'cte't corfession which propositiofl was exarnited it case o/ Mst. Iolliutt Bibi a. The State PLD 1960 6C Qab 373 4s undet:-

"l\e are unable to suppo the PrcPosition of laru laid dotLtn by the leanled lutlges in thk regard. Tfu retraction of a cinfession is a iicumstance which has no bearing rahlioeaer uPofi the q estion uhether in the lirst instance it tads aoluntarily made, anrl on the furthet question rphether it is true The t'act that the flaker of the cotfession Iater does not adhere io it cannot by itself haoe any elfect uron lhc llndtnRs ffn.hPd as lo uhelhcr lhe ronlession n as ololunlarv, onrl'i\ so thelhet i! Nas lrue' for lo wilhdralo ftont o self-artuqtnR slalcnl? l in dirert lace of the t ansequPnc;s of thc-accu'ation' is crplicable t'ully by lhe Ltro)-ittttht ol tlorP consequctt'rs ond need haae no 'connerliin rrhalsoetttr trtlh c lrcr ils uolunlary nnlure' ot the truth of the t'acts stated The leornetl ludges yey oerlectlv rish! n firsf rtecidin2lhese !trc quesfions' and lhe 'oniuri aiirg ti thc aft'irmattue' declarinS thnt .Ih? confession byitself ruas siffcient, taken uith the otlrcr facts ori to suppott Abdul Majid's conviction' The"ircu*itrrrris rctroctiofl of the coflfession was, wholly ifil1\lteial ofice it was foltfid that it w'ts aoluttary as well as ttue "

10.Sitilatly i the case of the State tt' Mixhun alias Gul obserued as unfur:- Hassan PLD 1964 SC 873 this Court has

--At fi( tonletsions the HLgh Courl' it appears aas dultt for tthel.hr ,'onlriout ol it' Jn't thot relracled conlession iudicill or'r^trn ftdirnl' could tegally be lakn inlo 'ron'ii,drrnt,o, ngmntt lhe mal oJ lhose hrmself' 'onfessions ond L)oluntary' and it lhe conf;csrcfis tere lound to bc lrue ,ton'tt"u i,o, no ,,",i al nll lo look lor further lorroAorrtior' It is well-settled that as 484itst the maket himself his confessiofl, iudicial or .ext/4 i,,iiriot. *h"tirr rrttocted or nol rclracted' ca in lqw 'oatitttu forn the sole bosis of his conttiction' if lhc. Court is satisfied and bclieoes that il was ltue and, MAI(TS Page 6 of 10

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l)ohnttary 411i1:.oas lLot obtaifled by tottu''c ot coerciotl or i ducefieflt " (bold added)

(a)wllether the Thus, the court laid down a two pronged test as under ,"iru.,"a 1"ai.iuf confession appears to have been made voluntarily' the *iif.to.,i u"y i,ta"."ment, duress or coercion and (b) was made.a'7ith (b) ofr1u"ii. trit" tn" Notably It was also held that if both (a) and wJre satisfied that"uth even if there were some irregularities in recording of a confession it would not wan'ant disregarding of the same' and the Now when we consider the iudicial conlession of the appellant on.".ord -e find [hat it was made voluntarily with the object in.the FIR to state the huth as per the case of the Prosecution as set out ".,id"r.r."

una trc olihe complainant and other PW's We also find that "uia".t."

,.t"uriu off ,n" ,to."clural safe guards were carried out by the magistrate -of{, g i.^"; .tfit were taken re{lection time was given' he was "inJormed of the consequence oI his conlession and he was sent straiSht procedural to iudicial remand afte; the conJession and if there wele any would not e{fect the ;;i;;;ii.; *"t" onlv very minor in nature and was held in the case toi""i"ti,t"* or truthiulneis of the conJession as was:iltl:l *' ii ni"i""J fsrpr"lrhe fact that the judicial confession as was held in the ntt tf.tJ furt auy oi police remand is also irrelevant the judicial confession was ca"e of Cn"fum N;bi (SuPra) The fact that ,."i" "i,"t 14 days also does not imPactYaqoob's on its 'r'oluntariness and case (5uPra)' iluthfulness as wai held in ch' Muhammad as it has beenmade As such we believe the retracted judicial conJession t.f""i". y with the obiect of t;lling the truthmaterial and l': ttll::',f]*' tt' defects in the lt itl-r the Prosecution case ancl theie are no R-azzak who was the manner in which it was recorded by PW 5 Abdul also fully corroborates the concerned iudicial magistrate His evidence iil;;;t;iZn and that all necessarv procedural sa{e guards were adhered to.

is thele on record to suPPo{ What othe! suPPortive/corroborative material the judicial confession of the aPPellant'

(c)As mentioned earlier the FIR which was lodged within a reasonable of the case names tir:r" bused ot, the particular facts and cilcumstances at the cdme scene with the sPecific role of firing on ,hu pr"rul,, u.a''"ud of the appellant' the deceased which suPPorts the confession FIR as stating that he was going

(d)PW 3 Mushtaq who is named in the other friends on the day oi fo. t"u ut Otlo'ulee with the deceased and the incident in his evidence states that he and some others had tea at Dhoraiee on the day of the arra.,g",l wltn the deceased to go for reached Dhorajee lirst and incident. That he, Amand u"I Ah'"d on his mobile Phone about waitecl for the deceased He was informed Road so he went there and saw the the shooting incident at'I'iPu Sultan be(ore being shifted to JPMC' iu."u""a tylng ott the road and footpath wherebJ he. shot at ir.ti" ."rrot",l'u' the confession of the aPPellant stop when signaled to do so by two motor bike riders who relused to has no enmity or ill will against the ihe police at Tipu Sultan Roa<l He accusedandlrencehadnoneedtogivelalseevidencelegaldingthe PaSe 7 ot lO

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incident. Ilis evidence was not challenged at all during cross examination and thus we believe the same

(e)PW 7 Sallad Hussian was the lirst IO and arrested all 5 accused on

20.05.2015.He seized an SMG each from 4 of the accused three of which

Ieturned all the 30 rounds which were issued to them The SMG issued 4 had to the appellant was also seized with 26 rounds indicating that been Iired. The appellant's SMG Iead to a Positive FSL report This

u,itness had no enmity with the aPPellant 01 any other of the co- accused to falsely implicate him/them in this case He was not dented by PW during cross examination and his evidence is fully corroborated

A

8 AbJul Hammed who was the mashir of the arrest and recovery to the document showing that the SMG and 30 rounds had been issued appellant was also duly exhibited'

(f)That the medical evidence suPPorts the Prosecution case in that one teceived oi th" d".uur"d ,".uived tlvo fire arm injuries whilst the other their wounds one fire ann injury. There was no blackening around being fired which fits in with the appellant's confession of the shots not tallies fiom relatively close range and the three bullet wounds roughly only 26 out with 4 rounds being fired by the aPPeltant leaving him with of the 30 rounds which were issued to him Both the deceased also

Ieceived abrasion tyPe iDjuries which is consistent with them both when they were falling oII from the motorbike which they were riding shot which bike was recovered at the scene' was recovered (g)The deceased were both unarmed and no weapon iio,r.t tf.t"- when they were taken to the hosPital Irom the sPot from that they evel fired where they t.ud been shot and there is no evidence ut uny ti*" at the police which again fits in with the appellant's

confession.

of murdering

(h)That the appellant has admitted his guilt in resPect into a )"."ur"d Vrrhu--ed Ali as he has since attemPted to enter has stated ao-p.orrir" ugr""-ent with the comPlainant whose counsel lr.r oi"n .o,.,rt iftu, the comPlainant had folgiven him and thus had no resPect of the murder of objection to the aPpellant's acquittal in Muhammed Ali.

and even if there lil That ^ all the PW's are consistent in their evidence contradichons in their evidence we consider these i;:

contradictions as minor in nature and not material and certainly notof case/evidence.and the ,tr.it -"a**rn, so as to e((ect the Prosecution reliance is Placect orl tne collviction of the appellar-rt' ln this resPect and Khadim Hussain,v' .ur", of zur. rnuiv state (1995 sCMR 1793) ;; ;" (PLD 2010 suPreme court 669) The evidence of the PW's chain of events from the orovides a believable corroboraled unbroken refusing to stop l"."ur"a t"uuing with friends for tea to the deceased shooting and *nu,l t"ir.tg siinaled by the Police to the aPpellant the apPellant to4 -.,ri"rit ginu iu."ased to the judicial confession of Page 8 of 10

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the supportive medical evidence to the recovery of the SMG issued lo the appellant with 4 rounds less than were issued to a Positive FSL on the weapon.

(j)That the police PW's had no enmity or ill will towards the aPPellant ar-rd had no reason to faisely imPlicate him in this case and in such circumstances it has been held that the evidence of the police PW's can be fully relied upon. h this respect reliance is Placed on Mushtaq Ahmed V The State (2020 SCMR 474).

(k)That it does not apPeal to logic, cornmonsense or reason that a father would let the real murderer of his son get away scott free and falsely implicate an innocent pelson by way of substitution.

(l)The case of the acquitted co-accused is on a different Iooting to the appellant as tl-rey did r-rot make any conJession before a judicial magistrate, even in the aPPellant's confession they are only said to be present and were not attributed any Iiring role which was coffoborated by the Iact that when they returned their SMG's they also returned al) the rounds that had been issued them They also denied their Presence at the scene throughout and as such they were rightly acquitted by the trial court by being extended the benefit of the doubt and no aPPeal has been filed against their acquittai

(m)Undoubtedly it is {or the Prosecution to Prove its case against the accused beyond a reasonable doubt but we have also considered the defence case to see if it at all can caste doubt on or dent the prosecution case. The defence case is one of non presence at the scene however this and delence is comPletely belied by the appellant's judicial confession other suPPortive and corobolative evidence as discussed above Fle did not give evidence on oath or call any DW as an alibi witness to support his defence case. Thus in the face of his judicial confession and other prosecution evidence linking him to the mulder oI the deceased we ciisbelieve his clefence case as an after thought in order to save his skin

14.Thus, based on the above discussion we have no doubt that the prosecution has proved its case against the aPPetlant beyond a leasonable

doubtfortheofferrcelolwhichhehasbeenconvictedandhelebymaintainhis and sentences except with regard to the ATA offences for which convictions he is acquitted for the reasons set out below'

We do not find that this case (alls within the Purview of the ATA as

case of Ghulam deiinecl by a lalger bench of the Supreme Court in the Hussain V State (PLD 2020 SC 61) where in essence Ior their to be an act of to create terror telrorism there had to be an object, intent, purPose and design Page 9 ol 10

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on account of that act. Whether people were lerrorized as d.by product oi the act did not convert the act into one of terolism nor the fact that it may have been of a particularly brutai natute. Based on the particular facts and cilcumstances oI this case it appears that the intent oI the appellant was to stop the deceased who refused to obey his signal to stop their motor bike for checking and instead rode on and as such he became furious and fired upon them with intention to kill for disobeying his order to stop but not with the design, intent or.purpose to cleate terror and as such all offences under the ATA are distrissed especially as it was a night time incident when no member of the public was even around to be teuorised.

16.As such the appellant is convicted only for the offence u/s 302(b) ppC and only sentenced to RI for LiIe and to pay 6qmr.^r.,t.n of RS 200,000 u/s 544-A CI.PC to the legal heirs of each ol ihe deceased and in default thereof to suffer SI for one year more. The appellant shail have the benefit of S.3g2 (B) CI.PC and any r.emissions applicable to him under the law

17.Tl.re appeal is dismissed subject to the modification of convictions and sentences as set out in this judgment.

ll J El( l"3ltt

JUDGE

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