SIKANDAR KHAN S/O KAMIL JAN (Appellant) VS THE STATE (Respondent)

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CERTIFICATE OF THE HIGH COURT OF SINDH KARACHI

Sp c riminal Anti-Terrorism Appeal NO. 146 ol 2021 Sp c riminal Anti-Terrorism Appeal NO. 147 of 2021

I

Sikandar Khan

Vs

The State & another

HIGH COURI OF SINDH

Composition of Bench D.B.

Mr, Justi€e Muhammad Karim Khan Agha Mr. Justice Zulfiqar Ali Sangi t Date(s) of hearing: 01-09-2022

Decided on : 06-09-2022

Judgment approved for Reporting )'es

CERTIFICATE.

Certified that the judgment +/Order is based upon or enunciates a principle of lau, */decides a question of law which is 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 sorne action is to be taken,

(ii)Ifthe slip is used, the Reader must attach it to the top ofthe first 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 deleted.

I i D oi}- r"i? ENTE -AV ..P.ql"//

lic!rrtrar (Judl.)

jLr 11

IN THE HIGH COURT OF SINDH AT KARACHI

(Constitutional Ext',:a Ordinary JLrrisdiotion) \\L of Special Anti Ten'ori::n' Alrpeal No' 2021 Sikandar Khan Son ol Kamil Jan.

Muslim, adult, Resident ol Karachi Presently confined in Central Jail, Karachi . Appellant Vlr.ltSlJS

t. The State

2.IVth Anti Terrol'islu (lourt Karachi Division ...Respondents

FIR No. 6812020 UiS:384/385/34 PPC R/W Section '7 AT A 199'l P.S: PIB ColonY, Karachi

APPEA[, TI NDEii Silr"i! i)l"t 25 0F TIIIi ANTI 'tEIlir'-.ii,li S iri A.C]' 1997

The Appellant being aggrit:ved and dissatisfied by the Judgment dated: 09-0!l-2021 in respect of Special Case No'

I

I 14712020, FIR No' 68t202-0, U/S:384/385/34 PPC l R./W Section 7 A-tA 1997' P.S: PIB Colony, Karachi' the

Learned Trial Cotlr J\'' {"ti Terrorism Court Karachi' lihereby he h:ld 16';"'1'.'':'i i r'-: S!liitndar Khan Son of 'tir-;;''r5;d Jan ivlr.:iranrnra:i :r.tliitl, i'rrl' tiie chl'rged oft'erlce U/S 5'386/34 PPC. RIY/ liection 6 (2) (K) punishable Section 7 (1) (h) cf ATA l997, he is convicted and t .:-.,J

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I

R':SENTE

i.ai-.l-lJJ. .. a)3 !..Y' .. a;dt

lJty Fe!i!tra, (Judl,,

IN'I'HE HIGH COTIRT OF SINDH AT KARACHI

( Constitutional Extra Ordinary Jurisdiction) Special Anti Terrorism Appeal No)$ of 2021 Sikandar Khan Son of Kamil Jan, \tuslim. adult, Resident of Karachi Presently confined in Central Jail, Karachi Appellant

VERSUS

l. The State

l. IVth Anti Terrorism Court Karachi Division ..........Respondents

FIR No. 8412020

U/S :3 84/3 85 13861324 134

PPC

R/W Section 7 ATA 1997 P.S: PIB Colony, Karachi

APPEAL U NDER SECTION 25 OF THE ANTI

TERRORT!;M ACI__l997

The Appellant being aggrieved and dissatisfied by the Judgment dated: 09-08-2021 in respect of Special Case No. l-18i2020. FIR No. 84t2020, U/S:3ti4/38513861324134 PPC I RW Section 7 ATA 1997, P.S: PIB Colony, Karachi ' the Learned Trial Court IV Anti Terlorism Court Karachi, ..:h.reby he had convicted the Accuserl Sikandar Khan Son of Kamil Jan Muhammad found guiltl' for the charged offence f S 384138s1386t324134 PPC, zuw Section 6 (2) (k) gtnishable Under Section 7 (l) (h) of ATA 1997, he is

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61.,-k ^ J-.^^.-^f .t C-l-i ;. .^g\I\

IN THE HIGH COURT OF SIND H,K

ARACHI

I l) rtsttt l:

l'lr. lustice t\tohamnad Karim Kharr AuhLt ,\lr. luslira Zulfiqor Ali Sangi SPL. CRIMINAT_ A.'r. AppEAL NO.14(r OF 2021.

SPL. CRIMINAL A.'I. APPEAL

NO.147 OF 2021.

Appellant:

Sikandar I(han son of Katnil Through Syed N.:dcenr-tr l-ll J.rn a 11, Advocate.

Respondent:

The State through Mr. Ali Haider Saleem, Adcliti ona I l,rosc,ctrtor General Sindh.

Complainant: I rr I'r:rs o n Date of Hearing:

Date of Judgment:

I

IUD GMENT

MOHA MMAD Kr\ItIN,I - Thc' aupr.llant Sikand.rl Kh.rrr s/o Kamil lan was h.ied before the Court of Anti-Terrorism Court No.lV, Karachi in speciar Case No.l47 of 2020 under FIR No.68/2020 t.r trr. offence punishable u/s 384/3g5/34 ppC r/w Secti.n 7 ATA, 1997 a'tt Special Case No.148 of 2020 uneler FIR No.84/2020 for the olfence punislrable u/s 3Ba/385/386/321/z4-ppc and 3/4 Exprosive substnrce Act read with section 7 Af \, :[l97 botl.r registereci at pS pIB Cololrr., Karachi and vide judgme.nt datert 09.0g.2021 he was convicterl ancl sentenced to suffer R.i. for five years with fine of Rs.10,000/- and in case of nolt-payment oi fine, he. sl.rall further suffer two nronlhs more imprisonrnent. All sentencr,s were orcier-ecl to r.un coltc u rr.c nt1\,. The appellant was also extt,r.rclt,el thc, benefit of Section 3g2-B Cr.Ir.C.

2.The brief facts of the prosecution case as per FIR No.68 of 2020 are that on 20.02.2020 complainarlt Dr. Sirai Uddin lodged this FIR statinll therein that he is a cloctor and runs his clinic at House No, 4-199, Muhallah Sirai Clinic, Welfare Colonv, purani Sabzi Mandi, Karachi. ()n 14.02.20i0 at about 08:15 pm two persons boarcied on one motorcJr.lL, came at his clinic, atljacent to Taj Meclical store ancr hantrecr .r,er arr

envelope to his nepher.t'anrl asketl him to ha.cl over the strme to thtr l cornplainant. The envelope containing a chit, througlr which extortion money was demandecl on the pretext of so-cared Kh,afat Ul-Musrimc-e.

Abu Ibrahim ul Quresh Al Hashrni and complainant was asketl to contact on nurrber 009378028686r witrr the trrreat of dire consequences if rre tairc-rr to pav the extortion moner,. On 7g.02.2020 at about 0g:15 prn. tr./o pel:sons boardecl on 125-motorcycle canre at the Clinic and one person callte;lt tlte medical store and sl-rot fjre a:rr,l slipped away on the motor.cvcle. Th:.er:

empties of 9mm were securecl from the place of incident, complainant called on 15 (Matlaclgar), police reached on the spot. .fhereatter. complainant came to police station and lodgecl the FIR against tl1(, extortionists and statetl that he anil his nephew could iclentifl, thern iI tlrev would come in front of thcrn.

3.In continuation of the above incitient another FIR No.g4 of 202t) was also lodged by the complainant Dr. Siraj I Udclin stating the.rein that ,.rrr 27.02.2020 at about 20:45 h.urs four.persons boarr.lecl on two l.notor.cl.cles came at the Clinic of complainant and hit the bottle teemecl with explosive material on the wall of tlie Clinic an<i shot fires with pistol anLl fled o1r their motorcycles. Hence the saicl FIR was lociged for taking legal action against the culprits.

4.After completion of fornral investigation report under , A, Class was submitted before the concernerl Court. Thereafter during investil;atiorr appellant/ accused Sikandar Khan was arrested on the poirltatiorl ()i complainant's nephew antl during interrogation cliscloscti his involvement in the offence. The challan was submitterl before the lear.rrerl trial court where the appellarrt pleadecl not guilty to the charge.

5.The prosecution in ortler to prove its case examinecl 06 witnesses and exhibitecl various clocumerrts anc-[ other ite,ns. The statement ol accused was recortled urrticr Section -r42 Cr.p.C in which he clenicr..l tht- allegations leveled against him and claimed false implication Lrv the police. However, the appellant did not [Jive evidence on oath nor. prorluct:

arrv DWs in support of his rlt,ience.

6.After hearing the parties iirrcl apprreciating tl^,e evirlerrce orr recor.cl.

the trial court convicted the appelant and sentenced him as set out r.arrier.

l2

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in this judgment; hence, the appellant has filer.l this appeal .rgainst lr is I cortvictior-r

7.The facts of the case as well as evidence produceti before the trral court find an elaborate 0e 08 202r passed by ,r" ,"::::;";:.I J:,il":;i:"':":i:i::: not be reproduced here so as to avoid duplication ancl unllecessar\, repetitiot.l.

8.Learned counsel for the appellant has contencled tl.rat the appellir6l is completely innocent; tha arowed the cclmprainan, ,j ::T ; with the police; that it was a case "lj:::"': [il: ::',:,]":::l of mistaken iclentity antl as such for.rnl or all the above reasons the appellant should be actluitterl ot tlre clrar.ge t,r extending him the benefit of the cloubt. In support of his contentions, lrt:

placed reliance on the case of Uzamee v The State (2019 p + Cr. L I Nott,

9.O. the other ha.cl, Adtlitional prosecutor Generai Si.clh l.ras ftrli' supported the impugned juclgrnent and in particular has contenLleLl tha r the eviclence of eve witness Shamsudciir_r,s eviclence in respect (lf tlt(, bhatta demand, shots firecl at the, clinic and later shots antl fire bonrb thrown at the clinic can be saiely rerietl upon ancl that has corr.ccil' icle.tified the appella,t w^o ^e uave hi.r the bhatta note u,_,.t ,i.".i .^ n,l.t threw a fire bomb at the clinic; that the pistol which was recover.erl lrom the appellant when he was arrestecl on the spot produced a positive IrSL report when matched with the empties recovered at the crime scene ir,rr as such the appeal be disrnissecl. In support of his conter.rtions, hc. plaqsd reliance on the cases of Niaz Uddin v The State (2011 SCN4R 725) ar.rrl Mubasher v The State (pLD 2015 Lahore 426).

10.We have heard the arguments oI the leamed counsel for. tlrt: appellant as we, as rearnetl Acrcriti.rral prosecutor Generar sintlrr wh.

was also representing the interest of the complainant and gone through the e.tire evicrence whicrr has been reacr out by the learned counser for.trrt:

appellant, and the impugned juclgrnent n ith their able assistance antl have considered the relevant law inclucling the case law citer.l at the bar.,

P

11.After our reassessl.nel o'the evitlence u'e find has provecr beyond that the I a .u.,"olt Prosecuti..

doubt the charge agai.st for the forowing reasons the appeilar-rt uu,noo'" * in view that each criminal case decicled on its own tnust be ru.,,.r,u,'' facts and circumstances;

(u)That the bhatta complainant .;il;;1:T^t'ut was demanded o, 14.02.2020 bur the non complianc" ,rr" with the same. As ii'"a lodging the rirst FrR "i-i.l"'ll,Y o" r.'i' *.:'::'i 'i;;.^i,l,J:::il :: ]l,il] rnre,at io ;; ;;il:,;::illil,:.::

in Iodging th" FIR he now otttr as snch we do considereti thc br,arr.r llot cnnsider tr'..t"1,,r1

ffi*f*tililfi$-ffi-*s[ tl" ".J.pr"i.r"i;r- .i,:i:t |liclt.to<'k Place after drr[ft6,1.attack orr ,,*".,"ri f"rr"..'*ijiX1' ., :]'i"i rican ttv rrre Fr R's no rntention of farseiv inclicaie ;;t il.'.,#il;riill::i wanted to ,",* i^,l ,,i-''l":fil tins anlbody lf the ri,.r,lo11ca appellant cornplai:rarrt Ir.r.l in the first il^*;;I;:lj",:tre he coulti nar rarer a*ack on his cri.ic ,rrim,aireste<r ;; ;r," ;;r,,F,,;;ii:H ,lill:

,t" ioagr.,g;;',il#jl;:,i.'1'^."r1 causcd serious ttamage .rntr rcatr r.

(b)We fintl that the prc eye wirness ," ii""rrijrlltiluIi,n's case primarilv resrs on the srrlL, particular ntr'.".*"',ill.:',:'":.n' and firing on the ciinic .r,tt irr who gave ,-,,n-' ii" of the appellant as rhe i#i.'tlrrcation persrryr evi.reice *;h, ;;ui:: ilili:li ;l#retr ;i on trrc crin i.,"rr,,,.1

(i)Eye wirness pW comptainant. o..o.,i llil:lddin' ile is the nephew or tt.rc u]. his evidence persons came to ,il'-g u, t+,oz.zo:o tu",, *r.ro- urigii"i'onn'i-ll'"9"u' store b.v Inotorbir<e <ure of hirn an envelope a.d hun,l rot(l rrir)r h, """;;h;:r';i:'I",Y" envelope to tt.,," .,rr.,.,11^tll" complainant I{e har.relecl o'er t6r:

was rnade. which an. exror.ti(),r (rcn,.rr(r ,rnfi?l]li:.ll]

bike again .rn..ull-,-#11,,:::' i:*":' b.1v4s,i on rn(\rt)r #{il-;,'t.:,,:,,,iffi #}'H":,ffi bottie of explosives store and nl.ol ,,n"i l1t',:* " ll* orr th.

L.'ow tr,ut iio'#;:'Ji-o""1,.:.again escaping. FIe carn(' r() ,:,1["#::X[:ilJ'#:,,1,H1.^.."*:;^,::ffi ,;:.J ffi arrested nrs pointation *r,"n }'i -11t" .who store an..rthe appellant ., ,^1"*'"J'ii,.i ;:i ::"1:::.the trori r whu,r .r r, The eye witness was not the medical ti,n't"',"* a r as l.i'I"::"'1't"ss he wot'ke..i itr ;iT?,iffi:,,"::lrh;".,,,,r.Jifi I'.#tJ:,ii:;l,,',"u.'ll; rt atrd had no t.eason to fat.r,lv

j

implicate him in this case and it is well settled by nor.v that under such circunrstances the evidence I be safelv relied upo:.r.

oi.,r.i *it,_,.r""r; .on

The eye witness sa r,r, the appellant on 3separate occasions;

firstly when he hanr.lecl o"u. to f_,i_ if.r" contair_ring1 the extortion demand in clay ";;-";;p"face r. light t" ;il:i;;;. r.ace;

secondry ra,'rren tlre appelrant u-," and madc fire on the clinic insi.je whilst ""nt".ua "ii,ric\^,as ancl thirdry *'hen the appelant "r; the ;il;, preserlt .r-.

clinic when thc eye witness _", pr"r"r,i. 'All ,,-,i-rlr" bomber-r tl.rt:

these inciclerrts happened u.ithin a-short ,trn" p"'.toa-of even stated in the FIR that he il";,. anrl it w,as could iclentifv the culpr.its if ht: saw them. FIe was not damagecl at all on..,r...,*o,r.rinotir.,,, and in respect of the arrest If th" u..u.".i he _as present when the appellant ,.vas arrested on t i. poi,ltution bv thtr police again corning to ttre ctinic ." zs.0zi0l0'i';,r";r,,*.

he.last saw thr. appellant o,_,a ur r,r.n *J;; il;;i,"';;_, witness has ctrrrectly identifietl tn* hulia of him being given and ^ppofi"nt .l*l'pi;"',;,, la""tifi.li.. par.arle being held as the ,,,"rn, ioit that the ". clinic with an unlicense.l *"rpon "pp"il;;;;;rrestect at the rho*, tnuini, *or..r.,ri,.,g to the clinic to follow rp.rn his extortion .lernan.l yet again and based. o.r the particular facts and .i.c,r*sian.u, nt th" case we do not corrsider that in this case ar.rv hulia or identification paracle were necessary.

We fincl the evirlence of this witness to be reliablt, tnrst worthy and corrfidence inspiring una ir"lluu" thc, sarnt ,l respect of the.correcii.tentity ot the appelapr i.,ffi1? Hot a good look at three rimes over a ptr.iort ol XJ:::.li!

rJ uays trom close range ancl was arrested on the spot ()n the way to the clinic with an unlicensetl weapon and \.1,e cnn convict solell, based on his evidence, fn tf_,il ."rp".t reliance is placed on the cases of Muhammad Ehsan J. The State (2006 SCMR 1g57). As also found i" ,t"-.rr", of Farooq Khan v. rhe state (2008 SCMR 914, ;{i;;_;d-Din anct another v. The Stare and another Muhammad Ismait vs. The State lZOif S-Vn 725) antl what is of significance is the quality liOrz s-fvn 713). That ti if," and not its quantity and in this .u"" *" finj the ""i.i""." this sole eye witness to be of goocl quality ancl "uiJ",l.Iof beliet,e the. same especially in terms of the iorrect identification accused who he had seen three times oI thc.

over u ,f,o.i p".io.t.

Thus, based on our believing the evidence of.the pW eyewitness especially in terms of hinr. correctly identifying the appellant what other supportive/corroborative material is tflere against the appellant? being noted that .or.ot orotlo,.,- i"-o"iu caution and_It not a rule of lau,. In this respect reliu^I"'i, u.rf" nf the case of Muhammad Waris u ff," ptn."A u,r StatJ SCfrAn iS+;

IZOOS

(c)That the evidence of the cornplainant fully corroborates th.tt of the.eye witness in terms of the bhatta demand antl attacks cxr the clinic. He was the owner of the clinic ;J i; il'.,o'',,, *,,, n.

f

enmity with the appellant ancl had no reason to implicate hirn irr a false case and as such we believe his evidence. It

(d)That the appellant was arrestetj on the spot by the police ancl an unlicensed pistol was recovered from him.

(e)when this pistol was matcrred with the empties recoverecl at tr.rc crirne scene it protlucecl a positive FSL report.

(f)That the police piV,s hatl no enmitv or ill will towartls thc appellant and had no reasor.r to falsely implicate htm in this crlsc tor.

instance bv foisting a pistol on him and in such circumstar.)ces it has beer-r held that the evic.lence of the police pW,s can tre fully relierl upon and as such rve rely on tlre police evidence. ln this respect reliance is placed on Mushtaq Ahmed V The State (2020

SCMR

(g)That all the PW's are consistent in their evidence antl evcrr if there are some contradictions in their evir-lerrce we consicler thesc contradictions as minor in rrature and not material and certainlv not of such materiality so as to effect the pl.osecution case an,-.I thc conviction of the appsll2nl. ln this respect reliance is placecl on thc cases of Zakir Khan V State (1995 SCMR 1793) anct Khadinr H-":."r1 v. The State (pLD 2010 Supreme Court 666).The eviclt: ncc of the PW's provides a belit,r,able ctrroborate.l unbroke. chain of events from. the.appellant giving pW 2 Shamsudclin the envekrpt:

containing the bhatta demautl to give to the complainant to the norr payment of the bhatta rlemand leacling to the attack orr the sltrp [1, firearm and then by firr,arm antl expi"osive device to the apPellant being arrested on the spot while coming to dernand pavrnent of tht, bhatta on tl.re pointatior.r oi pW 2 sh-amsuddin to the appellant having an unlicensed firearm on his person at the time, of his arrrst rr,hicl.r when matched rvith empties recoverecl at the crime scent, procluced a positive FSl. report.

(l-r) The fact that tl-re appe[ant hacl a CRo with 3 serious cri,rirral cases against him a.tl had bee. cretained in a detention ce.tr.e il) KPI( for about 5 years indicated that he was involvecl in terorist organizations on behalf of whom he was rnaking the bhatta demand.

(i)Undoubtedly it is for the prosecution to prove its case agtunst 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 simplv one of fatse implication by the policc. Tht appellant ditl not give evidence o:r oath-and did not ptotluco anv DW in support of h]s tlefence case or.

produce any other evidence tr.hich coulj dent the prosecution case.

Thus, for the reasons nrentiorreci above we clisbeiieve the ciefense case..as an afterthought in tht, face of a reliable, trust wor.thy antl conJidence inspiring e].e witness ancl other corrobor.,ttivt: /.supportive evirlence' against the appellant which hirs not at denteli the prosecu tit-rn c.rse. "rll

12.The case was tried under the ATA. Based on the acts and conduct of the accused and FIR and facts ancl cilcumstances of the case we finrl t that the case falls within the purview of the ATA in that the appellant made a demand for bhatta; when this was not paid he ancj his accorr.rplices firerl in the clinic which was planned, rJesigned and had tl-re inter.rtion of terrorizing the compiainant into paying the bhatta demand; when he vet again failed to do so the same tactics were employed except this time with explosive device iu addition to firing in orcler to tenorize him into making payment.

13.Thus, we find that the prosecution has proved its case against the appellant beyond a reasonablc cioubt for the offences for which he has bee. convicted and herebl, maintain his convictions and sente.ces in tlr.

impugned judgment and dismiss the appeals.

14.The appeals are disposetl oI in the above terms

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