MUHAMMAD ARIF S/O ANEES AHMED (Appellant) VS THE STATE (Respondent)

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CE RTIFI CATE OF T}M HIG H COURT O F SINDFI.

I(ARACHI

Spl Criminal Anti'Terrorism Jail Appeal NO' 15 of 2021 Muhammad Arif

Vs

The State

HIGH COT-TRT OF SINDH

Be D

Mr. Justice Muhammad Karim Khan Agha Mr. Justice Zulfiqar Ali Sangi

Date(s) of hearing: \5-08-1022

Decided on : t7-08-2022

Judgment approved for RePorting Yes w1 CERTI rt CATE.

*/Order is based trpon or enurciatcs a principle ol' l:rrr Certified that the judgment ;/;;;tG ;;ion If la* which is of first impressioddistinguishes/. over-rules reverseVexplains a previous decision'

* Strike out whichever is not applicable

nction is to be talicn' NOTE: - (i) TIns slip is only to bc used u'hen sonrc

(ii)Ifthe slip is used, the Reader must attach it to the top olthe tirst

Page ofthe 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 delcted'

?HE HTGH COURT OF STNDH

Crl. Jail Appeat No . l; of 2O2t o \'r-a'-nad Arif s/o Arees Ahmed, ' ' .:: -.s. adults, presently : ..- j-r:d in Central Prison, i. ,l.r-ection Facility Karachi .........Appellant in person Versus .......Respondcnt

Speacial Case NO.662 / 2Atg New Sp1. 1,1o.194/2019

FIR N6. 37I /2019

SectiDns. 353,/324 ppc.

R/w Sec. ? ATA, 1997, PS. rarnsheC Quarter:s, t.',, i.,

iPPEAL UNDER SECTT ON 25 OF THE ANT ] _ TERR oRrsM ACT, Lggl READ

WITH SECTION 4IO CR. P. C.

r:.. .urrble i! rr,

Being aggrieved and dis-satisfied rvith impugned judgement clated se,J b1 Mr. Rashid Mustafa Solangi, Leamed Judge Anti_Te,orism Court_XVI, Karachi. rn cial cases numbers mentioned above re: stale vs. Muhammad Arif son of Muhanrmad it heing outcome of FIR numbers mentioned above, poiice Stations Jarnshed errarrers.

rchi. r.urder sections as rrentioned abor.c.

Whercbl convicting and scniencing the Appeilart/ accused and a\ardiug Itim:

01.Under section 321 PpC, he has been convicted und sentencetl to sty'/?r simltle ,::!::t:!I*, t": f t.0) .ve.ars. and f^ne of Rs.50.000/- . in cuse of delttutt o/.paymeni o[./inc.' he \nutt Jarther sulucr imprisonment for (06) nonths.

02.Under section 353 PPC, they hos been cttnyictetl and sentancecl to sulJbr /itr 1l)2) tcurs. attd Jine of Rs.10,000/- , in case of defoulr ol'payment o;fJine, he sha .finhitr sull."', i,xp,i.sonment for (03) nonths.

tt' ( hder .ye ction 7(b) of ATA, 1997. hc hu.s heen cont,ictetl rrntl .sentencecl k, .ttr -: :ttnnent for (10) 1'eurs. andfine ofR; t0.000i- in crtse of,leloult o/ 1ttr.t,ment ot lin. lt,, rlher stffir imprixtnnrcnt.for (00 nt,)nths L'nder section 7(l)(h) of ATA, 1997 , he has lrcen L:orn,icterl and scntenc ld to .,;rt/fitr . *-.nt ,nent for (05) yaars, andfne ofRs.l0.000/-. i11 2q.js sf i:fQuh ol p(4,ment o/ line. he 8;-tlx: r s uffe r i mpri s o nmenl for (0(t) tnonths i-'wler section 23 (i) A, Sindh,4rnts.!ct 201J. he hove bce n conyic'tetl uru. vnlt,nt cJ 'fu iraprisonnent .for (07) years, und fine of Rs.5 0,00Ut-, in ca.se of tlc/ath ol p:o,tnrnt dt :holl.fiuther sufibr imprisonment Jbr (03) m property ofaccused as d<,lined in scction 02@)(o) ttJ AT,4, 1997 uru o!.:t) li,bit tt) as provided untlcr seclirt 7(2) o/ .47,1. 1997 F=-,e5r of secrion 382(b) r-' r.P.C was (,xtended and it rvis oldercd tllal xll rhc ,:,i. -a{aurrentlv

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IN THE HI GH COURT OF SINDH KARACHI

Spl. Criminal A'T. Jail Appeal No'15 of 2021' Prcsent:

Mr. lustice Mohammad Kartm Khan Agln Mr. lustice Zulfiqar Ali Sntrgi'

Appellant: Muhammad Arif S/"' Atrces Ahmed through l\'Ir. Muh'rn.rnrad Asad Ashfaq, Advocate'

Respondent: The State through Mr' Ali Haider Saleern, Additional Prosecutol General Sindh.

Date ,rf hearing: 15.08.2022.

17 .\'t8 .2022.

Date of Announcement:

luIGMENT Aril S'/tr }IOH I(ARIM I(HAN A CHA,'I: - Thc ap1.'cllant N'luhatnmatl against the juclgn-rcnt elatetl Anees AhlrLecl has preferlec1 the instant aPpeal Lr:orism Court No XVI' Karaciri rn 07.77.2020 passed by Le.lrncd ludge, Antr-'le No 194 of 2019) arising out r'i Special Case No.662 of 2019 (Nerv Specia! Case scction 7 A'l A 1997 ancl Spccial Crime No.378 ol 2079 tt/s 353/324 PPC li/rv Case No.662-A of 2019 (New Special C'rse No'195 of 2019) arising out of Ctimc' No.379 of 2079 tt/s.23(1XA) of Sintlh Arms Act' 2013 registerecl at P'S Jamsht'cl lvas crxvictecl allLi st'ntetlcccl 'ls Quarters, Kalachi whereby the appellant uncler:-

was cor-tvicteel {or the (') The accused Muhammaci S/o Anees Ahtned oii""." "Zt. 324 PPC aud sentcnced to untlergo sir-uprle in t:ase t'l for 10 years rtitl.r line of Rs 50'0007'-and imDrisonment ilffi;'il it" irtl r't" u'as ordered to serve sl for six .ro.ths nore.

(ii)The accused was also convieted for the offtnce u/s 353 PPC ancl w'ith firre ;;;,;;.i to unclergo sirrple imprisonnent for 02 years ii.or. r'i lailure to pay the fine' he was orclered "i'iit:il,obo/-r"d to ierve SI for tluee mouths more' t

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(ii') The accused was also convicted for the offence u/s 7(b) of ATA 7997 and, sentenced to undergo simple imprisonment for 10 l'ears with fine of Rs.50,000/- and in case of failure to pav the fine' l.re r't'as

ordered to serve SI for six months more'

7(1)(h) ot Al '\

(iu)The accusecl rvas also convittcrI ior the offencc u/s f-or l0 '' t'ars 7997 and, sentenced to unclergo sitnple itrrprisonment to with fine of Rs.30,000/- antl incase of faih'rle Iiav the fine' lrt' r't'as ordered to serve SI for three months more' The accused was also convictecl for the offence u/s 23(l)(A)

SAA

(u)2013 and sentencecl hirn to unclergo simple imprisorunent for sevc'n and in casc of failure to pav thc finc' years with fine of Rs.50,000/- ire rvas orclerecl to sen'e SI for three (03) rnonths more' The propertv of .rccuscd as clefint'c1 ''1 soction 02(p)(a) oI ATA 1997 ("i) untler scction 7(21 ol ."u, olro o..1"r".1 to be folfeitecl as proviclecl

ATA1997.

the accuse(l' The bene(it of Section 382-8 was also extendeci to The brief facts of the prosecution case as per F'l R bdged bv compl'rinanl

1^'h le hc \ ''1s t)r'l ASI Hakinr AIi are that on 28'10'2019 at 'rbout 221() hours p.11161ling along witlt staff reached 'ri :ttmmit Bank nc:r P'rrda Park' Ni'\ lrrrr.r'rh

Roa.l. Karachi aucl saw a Persoll conling out ol A'1'N'1 booth in susl.ricious the Police Part)' condition ancl when he called hirn to stop, the person on seeing the susPect leceivetl started firing, the police also fued in retaliation, resultantly who discltrsccl his bullet injury on his stomach aucl was arresteti Lr)' tlre police one person also c'ttttt' name as Muhammad Arll s/ o Anees Ahrned lvleanwhile anci statet{ thilt thc out from ATM bootll clisclosed l-ris name as Asfantl Ali him arrcl accorclinglv the accused on the force of pistol snatched Rs T000/-' Irom crirne' FIRs were registered against the accusecl for the above the accusetl was sent 3, After usual investigation the case rvas challanecl and up to face trial. He plead not guilty and claimed kial 07 witnesses anel ,1. The Prosecution in order to Prove its case examined statefitent of accusecl was exhibited various documents ancl other items The the allegations leveleel recorded under section 342 Ct.P.C in which he llenied against him and claimecl false implication' F1e clid not examine hifirse]f on oath

ancl did not catl any DW in support of his defence casc

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5.Alter hearing tl-re parties arrr"I appreciating thc eviclence on I ecorLl and hearing both sides the trial court convicted the appellant and sentencell l1in1 .rs stated above. hence, the appellant has filecl this appeal against conviction'

6.The facts of the case as well as evitlence produced before the trial court fintl an elaborate mention in the impugned iudgment dated 07 .72.2020 passetl bv tl-re trial court and, therefore, the safite lnay not be reproducecl here so as to avoit] cluplication and unnccessary rePetition

7.Learned counsel lor the appellant has cot.rteucler-l that lhert' is Iro inclependent evidence that the appellant firecl on the police; that the plivatc lvitnesses are planted witnesses and cannot be rt'liecl upon; that the ocul.rt' evidence is contradicted by the medical evidence; that tl"rero arc matcri'rl conh.adictions in the prosecution evidence which makes it um'eliable; that thcl(' is a delay in lodging the FIR wirich lear,l to it L,cing concoctc.l bv the police in collusion with the independent PW's; that there was a delav in sending tlrt: empties for FSL which made the FSL lep.rort unrelial.rle and that the USB footage was inadrnissible, that the pistol was foisted on him and that no c'ncountt'r: took pl.rce urith the police and that for all or anv of the .tL]ovc. reasolts tht' appellarrt siroulll be acquitter.l of the charge L-rv being extendecl the benefit of the douLrt. hr support of his contentions he relied upon the following cases Shahzaib v The Slate (2022 MLD 950), Asaddullah v The State (2022 P Cr'L J 774), Muhan.rrnad Zakir v The Sfate (2022 MLD 204), Asfandyar and another v Kamran aud another (2016 SCMR 2084), Tariq v The State (2018 \LR 2246), Shahzada I(han v The State (2020 YLR 1048), Muhammad AIi v The State (2021 P Cr' L J 373)' Muhammad Younis alias Bona v The State (2022 YLR 924), Mst' Sughra Begum vQaiserPervez(2015SCMR1142),MuhammadAlivTheState(2017SCltlli 146E),NaveedAsgharvTlreState(PLD]021SC600)arr.lSikandarAliLashari v The State (2016 YLR 62).

8.On the other hand learned APG fully supported the impugnetl judgmtrrt ancl prayed for the dismissal of the appeal especiallv keeping ill view thc lact

tl-rat the appellant was arrested on tlle sPot in injuretl coudition bv reliable policc

eye witnesses; that the indcpendent el'e lvitnesses also supportecl tht' i prosecutiorr case; that oral er,;.rlence oveLrodc metlical eviclencc ii Lhele lvas solnr discrepancy between the same; that the Pistol rvas recovered from the accuscel when he was arrested on the spot which lead to a positive FSL repott rt'herr matcheri with the emPties lecovered at the scene; however when confrorrted br'

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purview oI the ATA tllis court he conceded that this case dicl not fall within the of Asif and others v In support of his contentions he placecl reliance on the cases The State (2020 SCMR 610), Ghulam Abbas v The State

(2022 SCN'IR 1102)'

Ashraf v The Muhammad Ii.yas v The State (1011 SCMR 460) al]d Muhammad State (2011 SCMR 1046).

We have heard the arguments of the learnetl counsel for the appellarrt as

which has bectr well as leamed APG and have gone through tl-Ie entire eviderrce reac{ out by learned counsel for the appellant, and the impugnecl judgnrent with the relevarrt larv the able assistance of learne<l counsel antl have considered ir,ciuding the case-lart's cited a1lhg lrr;'

10.After our teassessment of the eviclence rve fintl that the prosecution has the appellant for u'hich he proved beyond a reasonable cloubt the charge against was convicted except in respect of the ATA oflences for the following lt'asotts on its own palticular keeping in view that each crirninal case must be ''{ecided facts and cilcumstances;

thc

(a)That the FIR rl,'as loclged u'itl: plorlptitude wl.tlch gave police no time to cook up alalse case against the appellant'

(b)That according to indepenclent witness P!\r 3 Asfatrcl Ali on 2230 from an ATN4 )S'.1O.ZOfS he ,rasitithdruwing cash at apProx ATM booth oi r,r*-i, t r"t when a robberlcarne behinti him in the ,.ra t y poi.tti"g a Pistol at his back forced him to withdraw a

fr.tt',u, RSSOOO l,-, udditio,-, to tl're RS2000 r'r'{rich he hati alrea'lr witlrdraw.nanclrobbeclthesamefrornlrimalongwitlrl''15116l]ile fi'otn pi""" .fi* robber oldere.l him to remain in the ATNI boothbootlr iryhich he heard firing after.the robber left llc caue out of the li'in1; in 'rn *t l-,u su* the poli." r.nobile and the t oL.rtret /accused t'rken to "ru i.rirlect conditlorl *itl-, u pistol in his hantl who was thell hospital for treatment.

(c)Although it is only o{ corroborative value the CCTV footagc *i.i"h *uJr".ou"re.1 irom the bank showecl what happened in the the evideuce ATM booth at the given time which fully corroborates Asfand Ali .? fw a Asfancl Ai being robbed by' the accust:c1 P!\t3 w'ill towards thc fr"i"g u" inde':endent wilness haci no eruniq' 61 ill anci hacl no reason Lo implicate him in this false,case lIL ^fpifr", *ur ,-,ot clented on cross e*an-rinaiion and thr: r'noney whichphonc vr'.rs stolen from him by the accusetl along r"ith his mobile on his arrest containing his SIM was recovered from the accuseci along with his Pistol' n'ith ar

(cl)That the appellant was caught recl handed.on the.spot

T

Ali irrili.""t"a.piJ'tirl and the itemJstolen from PW 3 Asfantl after' between the police ancl the accused after he lelt the ur', ATM "rl.or.ri", booth having robbed the accusecl' u

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(e)That the a-r..rest and recoveli' r"as uade on tirc sPot by.the polict' i'llose evi.l"r',ce fully corrol-rolates each tlther in all matelial respects as well as the prosecution case. lt is well settled by nou' thai the evidence of a police r'r'itness is as reliable as anv other witness providecl that no enmity exists betr'veen them antl the accused ind in this case r-ro suggestion of enmitv has been made against any PW. They had no reason to falsely implicate the alpellant by fot example foisting the recovered pistol on him Thus *" 'r"ti"t a the police eviclence anLl relv upon the satne which is ci:. , ,.rborative in i:l- :raterial respecl' Rt'liance in thirr l'cspcct is pl"rcec{ on the case of Mushtaq Ahnrccl V The State (20?0 SCMR

(f)That PW 6 Rehan who ownetl a ttcarbv car show Loom ancl rt'as on his way home was also an intiepenrlent lvitness who u'itnessetl the encounter between the police and the accused lt was nevcr suggestec'l that he was a chance r'l'itness and r-licl not live and u'orl< irr iire u.ea. He had no eumitv <rr ill will towards the accusecl ant{ had no reason to implicate the accused in a false case He uras not denterl dl.u ing his eviclenct' .,nd his eviclencc fully corroboratcs the police elicience of the accnsecl being shot 'L'', the ptllice alttr an encounter with the policc antl wc believc ane{ rell' upron his evidence.

( g) It is true that accolc{ing to the oculat cvitlence the accust:cl was It-t in the stomach and it is suggested tl.lat the accused lvas shot iu the back bv the meclical evidence of PW 2 Dr'Ali Raza rt'ho was thu N'ILO. However it is w'ell settlecl bv norv that ocular evidence takes prececlence over medical evidence ln this respect reliance,is placetl on the cases of Muhammed Riaz (PLD 2005 SC 484) and Shafqat Ali (PLD 2005 SC 288).In 311v svrr,t in cases of so callcd fake polict' encounters ti.rc police usualiv shcrot the accust:ti in the leg antl never in the stomach or back '[he fact that there vn'as no blackeniug around the wound. also suPports the Prosecution eviclence th'rt tlrc police filing was made from rnole that 3 feet ancl that this t'as "r genuine encounter.

(h)Although it is true that no Policeman -or police mobile-was hit cluring thJencounter it came in evidence that bullet tnarks u'ere J.r u wall and the shutter of one shop close to the occurrence oI ""u., the,rlcounter.

(i)A mere two day clclav in sencling tirc en.rpties/ Pistol to l'SL is of no great significance as was helcl in thc' case of Muhammed Ashraf (Supra).

report with tlLe O The recovered pistol produceel a positive FSL Jmpties which were recovered at the scene when they were sent for FSL report.

(k)The bike recovered at the scene which the appellant was dding at the timc of his arrest was found to be stolcn.

(1)The appellant has a CRO for similar type cases and as sttch appears to be a habitual offender.

(m)That all the PW's ale consistent in their evidence and even if ihur" ,tu some contradictions in their evidence we consider these

and not material and certainly conEadictions as minor in nature the Prosecution case an''1 the not of such materiality sJas to eff"ct placed on the conviction of the appellant' in this respect-r{"i::^: (1995 scMR 17?]l' i"d Khadim cases of Zal<i; I(han v iL'" Cotrrl o('9) The eviclenr:t' Hussain v. rhe State (PLD l' 1'' iupt"*" unbroken chai:r ot ;;;"1* P*;t provides u t'"ti"''tt-'t" corrobomtt"l events from the police i*'ittg ot pahol to the roblrerv of P\{ 3 ATM to the accused entering into Asfand Ali by ttre accusecl at tire he robbed PW 3 Asfand Ali after an encounter with tfre poiice after to escaPe to the accusecl being shot he left the ATM booth i;-;;;;

tire accused being aLt'ested on bv the police during the Lncounter to rvhilst in iil"":iI"i,iil;J"t"rt.-riti"n with an unlicensed fireartn possession of the robbeci articles' (r) Uncloubtedly:.i is for the prosectrtiou tn p:oI" its have alstl case against

the accused beyontr a r"aio'-to'o1'' l1oubt but u'c ii it at all can c'rste cloubt on c'r consiclered the defence case to see case is . one oI falsc cient the prosecution case The defence diti not givc evidence on oath i*pil*iilti"i^plitlt"' fttu "pp"tlant ancl r"1id r-rot call any DW in in orcier to refute tit" p'o'"tt'titl case the accusecl d.e s ;;il ;i l'tis "us"' r'i i.tit s :az Cr"PC state'rent simply savs evclv ,roi'ut deny his Plesence at the scene ancl "r', against him i' fut""' t-f" also clicl uot claim anv enrtitl' allegatiorl for us to disbelievc thcir with anl' lvitness or p'otiJu unu reason tlefencc case in the tacc o[ evidence and thus *u tti'b"li"'u the reliable. trust worthr' conficlencc inspiring Prosccutiott 'rnc[ ev ir.-l eltce .

the convictions and sentenccs are

11.As such the appeal is elisrnissed anc{ uncler the ATA for which tht' mailtained except in resPect of the offences a case of terrorism which lell within the appellant is acquitted as this r'r'as not Supreme Court in the case of Ghulanr clefinition of terrorism as set out by the (''i in essencc for there to bc 'rr1 'rct .,.rssain V State l 'LD 2020 SC 61) "'here mtent, purposc a.cr clesigrr to crcat. h',,()r' or'l terrorism there had to be an object, ot of the act committed. Based o. the particular facts and circun*tances account thal he it aPpears that the appellant's intent was to commit robberv and this case

opened fire on the police only in order to make his escape goocl'

and the appellant stands conlictcd

12.As $uch the aPPeal is partly allowe'l and setttenced as undci:

sirnple imprisonmenl ior I \'e'rr's (a\ tJ / s.324PPC and sentencer'l ttr utrdergo (irre to serlc sl [t''r rn pry the with fine of Rs.50,000/-ana i"..r" .i?rtrr," r six tnonths more sirnple itnprisorrment for 02 vears (b) U/s.353 PPC and sentenced to undergo to selvc sl o"f frilur" to pay the line.

with fine of Rs.10,000/- ,;;1;;."

for tl'.ice months more'

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(c)U/s 23(I)(A) SAA 1013 ancl sentenct''i to unriergo sirl.tpJc imprisotrtnetrt ' ' f* ,u.r"r,'yeuts with fine o{ Rs.50,000/- and in case of failure to Pav the fine. to serve SI Ior tfu'ee (03) ntonths tnore'

All the sentences shall run concurrentlv The benefit of Section 3tll-ll is also extended to the appellant and any applicable remissions unclcr thtl 1aw now that the appeliant has been acquittetl of any offence falling under the ATA.

13.The appeai is disposecl of ir, the above terms rn.

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