MUHAMMAD NAWAZ S/O MUHAMMAD ZAREEN (Appellant) VS LEARNED ATC NO. VIITH KARACHI & ANOTHER (Respondent)

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CERTIFICATE OF THE HI GH COURT OF SINDH. KARACHI

Spl. Criminal A.T. Jail Appeal NO. 26 of 2021 Conf. Case NO.05 of2021

Muhammad Nawaz

Vs

The State

HIGH COURT OF SINDH

ComDosition of Bench. D.B.

Mr. Justice Muhammad Karim Khan Agha Mr. Justice Zulfiqar Ali 5angi

Date(s) olhearing: 05-09-2022

Decided on : 08-09-2022

Judgment approved for Reporting Yes

CERTIFICATE.

Certified that the judgment */Order is ba^sed upon or enunciatcs a principle oflau, */decides a question of law rvhich is of llrsr irnpression/distinguishes/. Over-rulcs,/ 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)If the 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 rvhich are not to be used should be deleted.

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IN THE IIONOII.AITLE HIGI.I COI]R'I'OF SINDII AT

ffi+ KARAcilr SPL ('rinrinrl Jail Appcrl N,' ?6 'lo:fr

llrcrintender)t Cq!1 tr i,l J qr_l

Muhammatl Nawaz Son of Mulramntad Zareen.

) Muslim, Adult, and prcsentll' conllned in ('crttral l'rison Karar,,hi. .\ ppc lla n t

vEt{st.rs

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1.Learned Anti Terrorism Court No VIIth

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i? at Karachi

2.Th€ State Through the Prosecutor General Sindh, Having its office at Sindh Secretariat, Karachi............ Respondcrrts

('RIMIN;\t,.lAlL ,\ I'PE;\l- A (: .\ N S ItlII F] .I I iI)GE}IIIN'I l)A'I'ED 22 -t 0-2020 PASSI D IIY TltE Llir\ll.r" D SPL J TI])C E AN il- I lttil{otilsN ( o I]IIT N() \'II KAIi,\C]TII fleing aggrieved and clissatislled with the irnpugned .ludgmcnt datcd 12-l-2020 passctl hy Ll'lr\llN l) sl'L .ttrlx;ti .\ Nt.I-Tl){lr. 0ITISM COTIIiT NO VII KARACIII in ('ri rn ina I Case No. 67(vii)/2018 (OLD Caase No A-l l4l2()14)' Flll No. l0l/201,fS8{9, Under scction 30213241353132111931'127 r/rv section 7 ATA. ol'Police Slation Sharafi Gotlr Kalachi, Styletl as "The State V/s Muhamntatl Narvaz and flrirninal (lasc No. 67-A(vii)/2018 (OLl) Caase No A-l l5/2014). l-IR No. 102/2014 9' t.lnder section 23(l) A of Sindh Arnrs .^.cl of l'olite St:rliorl Shaiafi Coth Karachi" nhcrehv imptLgned Jrtdgtnetrl tlatcd: l2-10J020 passed hy I earned spccirrl .lLrd-uc ,1,,11 1611p1i5111 l'rrltrt No VII lras (ronrir:1cd th.' Lrrtde'rsignt'd ir[]Pcllilnt ttttttct sceli,rtr 7(a). 7(b). 71c) 7(d) 7(hr (il'Anti 'l'cnor-isrr,\ct,l()97 tirr scctirrtt 102. 324.153.391. .+:7. t'l'(. atrd lor ofltnccs rr/s l:l( ll la) SAA.20 I:l .rnd scn(cl1cc es ttrrrl,-'r;- i t (t) l'hat the flppellult hlts cottrieted tirt rhc olli:rlce u/s scctlon 7(r0 I of Anti terrorisnr l9()7. li'r cuusing tleath of SII' N4tthrtnnrrd tE Ishaquc as teterlccl irt ,'rllt'lict'1'ltl ol'-irr<lgctletrt utltl scntcncecl ltirn (tr dcath with tlnc 100.00(r'- ('l rvrr l-lc). the accttsr"rtl shtrll hc hangcd l'v ileck till deatlr.

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IN THE ANTI .TERROI(ISM COUII.T NO.VII AT KARACHI

1 No./ ATC-vll/ KHt-.Div / l1f /2020 Karachi, DateLl 23RD day of October 2020 (Special case No: 67(vii)/2018) (Old Case No: A-114l2014) The State Vesus Muhammad Nawaz S/o Muhammad Zareen... ..........Accused FIR No: 70L/201,4 U/ S : 3oZ / 324 / 353 / 393 / 427 PPC r/w Section 7 ATA.

P.S Sharafi Goth, Karachi.

(Speciat case No: 67-A(vii)/2018) (Old Case No: A-115/2O14) The State Versus Muhammad Nawaz S/o Muhammad Zareen Accused FIR No: t02/2O14 U/S: 23 (1) (a) of Sindh Arms Act, 2 013 P.S Sharafi Goth, Karachi.

To,

INV/ARD TO

t .A The worthy Registrar, 6R Atlc

Hon'able High Court of Sindh DAiI: AI (ANACFI Karachi htsn i0lr,i; C

SUBJECT: REFERENCD FOR CONFIRMATION OF

DEATH SENTE NCE UNDER SECTION 374

cR.P.C, R/ W SECTION 30 OF ATA, 1997,

I have the honour to submit that in the above captioned cases, this Court passed the ludgment vide dated 22nd day of October 2020, wherein, the accused person namely Muhammad Nawaz son of Muhammad Zareen, is hereby convicted and sentenced under section 265-H(ii) Cr.P.C as u nder:

The accused namely Muhammad Nawaz son of Muhammad Zareen is hereby convicted and sentenced under

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section 265-H(ii) Cr.P.C. for each of the offence committed by him as under: -.

i)The accused namely Muhammad Nawaz son of Muhammad Zareen is hereb)'convicted for the offence u/s: 7 (a) of Anti-Terrorism Acl, 1997, for causing death of SIP Muhammad Ishaque as referred in earlier part oF Judgment and sentenced him to death with fine of Rs' 200,000/-(Two Lacs), the accused shall be hernged by neck till death.

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IN THE HIGH COURT OF SINDH, KARACHI

Spl. Criminal A.T. Jail Appcal No.26 of 202-1. Conf. Case No.05 of 2021.

Prcsrttt:

:\1r- lustitt: l\4olmnrnntl IQtrittt I(ltnn :lqhrt ,\lr', /rrslir r- Ttrl.liqar rlli Sanyi,

Appellant: Muhammad N.rwaz S/o.

Muhammad Zareen throtrgh l!lr.

S. Sahid Mushtaq, Arlvoc.rtc.

Respondent: The State through 1\{r. Muharnnrad Iqbal Awarr, Additiorral I'rost'cul or Cencral Sirrclh.

Date of hearing: 05.09.2022,

Date of Announcement: 019.09.2022.

IUr)(lMINT

MOHAMMAD KARIM KHAN AGHA, l:- The appellant Muhatlmatl Nawaz S/o. Muhammad Zareen lras preferred the instant jail appcsl against the judgment dated 22.10.2020 passed by Leametl Juclge, Anti- Terrorism Court No.VII, Karachi in Special Case No.67(vii) of 2018 (Old Case No.A-114 of 2014) arising out of Crime No.101 of 201-l U /s. 302/321/353/393/427 PPC Il/n, section 7 ATA "1997 antl Speci.rl Casc No.67-A(vii) of 2018 (Old Case No.A-115) of 2014 arisinli out ol Clirne No.102 of 2074 U /s.23(1)(A) of Sindh Anns Act registerell at P.S. Sharal'i Goth, Karachi wheleby thc appellant was convicte(l antl setttent etl .rs under:-

(i)The accused Mr-rhamrnad Nawaz S/o. Muhaururacl Zareen was convictetl for tht offence t/ s. 7 (a) oi Anti-T'errorisrl Acl, -1997 fol causing dt ath of SIP Muhammati lshaclrre and sentencetl to cleati.r subiect to confirmation by this court with fine of Rs.200,000/- (Two Lacs).

(i0 The accusecl Muhamrnad Nawaz S/o. Muirammarl Zarccn . was also convictetl for tl-re offence u/ s. 3t)2(a) PI'C lor causinEJ death of SIP Muharnmad Isharrue antl sentcncett t0

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death subject to confirmation by this court.

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(iii)The accusecl was also convicted for the offence u/s. 7 (b) oi Anti-Terroristn Act, 1997 for endangering the life oI Bank Staff and sentencecl to R.l. for ten years with fint' o[ Rs.100,000/- (One I-ac). In case of failure to pav'the tirre, thtr accuseLi was orclcrecl to suf fer S.1. for six months.

(i") The accused was also convicted for the offence u/s. 324 PPC for attempting clatl-i-arnd and therebv causing i:rjuries to security guarcl and sentenced to suffer R.l. for ten years with fine of Rs.100,00t1/- (One Lac). In case of failurt' to pav the fine, thc accuser.l was ordeled to suffer S.l, f or sir months,

(r') 'fhe accused was also convicted for the offence u/s. 7 (c) of Anti-Terrorism Acl, 1997 for causing in]uries to the St'ctrlitv Guard Anr.r,ar Sareed sentenced to sulfel Ii.[. ior terr vears with fir.re of Rs.100,000/- (One Lac). In case ()i lailurt'to pav the fine, the accust:tl was ordered to sulfer S.l. fol sir months.

(ri)The accused was also convicted for the offence u/s. 7 (h) o[ Anti-Terrorism Act, 1997 to create a serious risk to the public/ employees of the bank, besitles intirridation of a public servant itr orcler to force hirn not to discharge his lawful dutv ancl sentenced him to suffer R.l. for five years with fine of Rs.50,000/- (Fifty Thousand). In case of failule hr pay the fine, the accuse,.1 was ordered to suffer S.l. fol six rnorrths.

(vii)The accused was also convicted for the offenct' Lt/ s. 393 I'l'(' for attempting to conmit robberv in the Apna lJatrk anrl sentenced to su{t:er R.l. for seven \reafs r,r,ith [irrt: ol Rs.50,000/- (Fifty 'fhousanci). [n case of failr"rre kr pav thr' fine, the accused was orLlered to suffer S.l. for six motrths.

(viii)The accuserl was also convicted for the offence u/ s. 4?7 t'l'l- for causing damage to Apna Bank and sentencecl kr sufl'er R.l. for tu'o vears with fine of Rs.50,000/- (Fiftv Thousantl). In case of failure to pray the fine, the accuserl was ortlerecl to suffer S.l. for six months.

(i*) The accuseci was also convicted for the offence u/s. 23(1Xa) of Sindh Arms Act, 2013 for carrying unlicenseti weapr,n r iz 9 mm pistol and sentencer'l to suffer R.l. fol ten vt'ars n'ith fine of Rs.l00,000/- (One Lac). ln case of failure to Piv th(l fine, the accusctl wtrs orclered to suffer S.l. for six ttrotrtl-ts.

The benefit of Section 382-8 CI.P.C was also extendt'-d to the accused,

2.The brief facts of the case as narratecl in the FIR lodgecl bv complainant P.C. Fayyaz, posted at P.S Sharafi Goth are that on 01.0-1.2014 at about '1626 llours the present accused Muhammacl Nawaz S/ o. Muharnmad Zareen along with cleceased accused Faizan tried to t'nter' Manntuan,t Page 2 oI 11 ^i!

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a Apna Bank situated at Future Curve Moeenabad No.2, District Malir Karacl-ri, with intent to cotnmit robbery along with weapons antl maliL:

firing. The Bank Guard Anwar Saeed and SIp Muhammael Ishaque Abb.rsi sustained bullet injuries. Tlre complainant Muhanrmacl Fayvaz (I,.C) ot P.S. Sharafi Coth, deploved there, made fired upon both the culpr.its. As a result of which, both the c,lprits sustained firearm iniuries a.cl ft,ll d.lr.n. The Manager of Bank Rahatullah Khan informed the police, to r,vhich SII) Rao Tahir with his police party arrived there. SIp Rao Tahir fourrll on thc road in front of gate of the bank two persons were lyirrg injurerl r,r,hereas, Bank Guard and SIP Muhammad lshaque Abbasi were lying injurerl insicle the Bank Gate.Constable Fayvaz was standing pointing weapon upon the culprits. Constable Fayvaz told the SIp that two culprits trierl to enter inside the Bank ancl when stopped by Bank Cuard ancl SIp thev firecl at them, who sustained bullet iniuries. SIp preparet{ memo of arrest of culprit, took the injured to JPMC and got them atlmitted in elr.rergelcv ward. SIP Muhammad Ishatlue Abbasi and Security Guard l\,lulrar.nm.rri Anwar Saeecl were also sent to hospital. The condition of SIp Muharlr.natl Ishaque Abbasi remained oitical and he was taken to Aga Khan Ilosprtal, where he succumbed to his iniuries. He completed formalities as requirc.rl u/s. 774 Cr.P.C. and brought the dead bodv of Multammad lshaque Abbasi at JPMC and obtained the cause of death. He also recorcletl thc statement of PC Fayaz u/s 154 Cr.p.C. which was incorporatecl in FIR as Crime No.101/ 2014 t/ s. 302/ 324/353/393/ 427 ppc. He also registeretl two separate FIRs u/s, 23(1)(a) of Sindh Arms Act being Crirne Nos.102/2014 and 103/2014 against both the accusecl regartling recoverv of weapons.

3.After usual investigation the case was challanecl and the appellant was sent up to face trial. He pleaded not guiltv to the charge ancl claimerl trial.

4.The prosecution in order to prove its case examined 09 pWs anrl exhibited various documents and other items. The statement of,ccusee{ person was recorded under Section 342 Cr.p.C in which he denierl all tht: allegations leveled against hirn. He did not give evir:lence on oath or call any DW in support of his defence case.

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{ 5. After appreciating the evidence on record the trial court convictecl the appellant and sentencetl him as set out earliet in this judgment. Heuce, the appellant has filed this appeal against his conviction.

6.The facts of the case as well as evidence producetl belore the tlial court find an elaborate mention in the impugned iudgment passecl Lrv the trial court and, therefore, the same may not be reproducecl here str as ttr avoicl duplication and unnecessarv repetition.

7.Learned counsel for the appellant has contendetl that he is ilttlocent ancl has been falsely implicated irr this case by the police which n'as the reason why the FIR was elelayecl by 11 lrours so that consultation coulcl take place; that the charge was defective as the accuse(l had no uotice tllat he was facing a charge trntler 5.302 (b) PPC; that there is no cvit'lence against hirn except the sole eye witness whose evidence cannot be safolr' relied upon; that the person saitl to be with the bank manager at the tirnc of the incident was not called to give evidence and thus the prosecution deliberately did not produce vital evidence without explanation; that the medical evidence does not supPort the ocular evidence; that the aPl'ellant is not seen in the CCTV footage; that the pistol was foisted upon thc accused and in fact he was an innocent passer by and thus for anv or all of the above reasons the appellant should be acquitted of the charge bv being extencled the berrefit of the rloubt. ln support of his conteutions he placctl reliance on the cases of Muhammad Sajid alias Chota Bona and others v' The State (2022 P. Cr.Ll 505), Master Juman Buriro v. The State (2022 YLR 299), Shahzaib v. The State (2022 l{LD 950) anc{ Saeedtrllah v. Asfandiyar and another (2077 P.Cr.LJ Note 5).

8.On the other hand, learned Addl. Prosecutor General Sinclh has fully supported the irnpugned judgrnent and has in particular contentled that the sole eye witness has correctly idcntified the appellant as being one l of the persons who firecl on anri murdered the deceased whose evitlence was trust worthy reliable antl confidence inspiring; that the accusedl,r'as arresteci on the spot in irriured couclitioni that when the appellants pistol was m3tched with the empties recovered at the crime sceu(] thev proclrtcctl a positive FSL report antl that since this was a cold bloodied t.nurcier tht:

death sentence should be upheld. [n support of l-ris contentions, he placetl

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reliance on the cases of Dadullah and another v' The Stnte (2015 SCNlI( (1996 SCNIR 1965)' Aijaz 856), Safdar Ali and 2 others v' The State NawazaliasBabav.Thestate(2019P,Cr.LJ1775\,NoorMuhamrnadv. v' The State (2006 SCN1R The State (1999 SCMR 2722), Muhammad Ehsan 604) ancl Maihi v' The Statc 1857), Amrood Khan v' The State (2003 SC]

(1970 SCMR 331).

counsel for the

9.We have heard the arguments of the learned Ceneral anr-l lrave qotrt:

appellant as well as learned Adc{itional Prosecutor read out bv learnecl counsel through the entire evidence which has been with the able assistauct'trf for the appellant, and the impugned iuclgrnent law inclutling the case- learned counsel antl have ctlnsiclered the relevant Iaws cited at the bar

Based on our reassessment of the evidence o{ the PW's espreci:rllv

recoverv of empties antl the medical evidence and other medical reports' attemptecl robberv took blood and bike from outside the bank where the place we find that the prosecution has proved beyond a reasonable elou bt shot antl murtleretl lrl' that PC Muhammed Ishaque (the deceased) was iniuretl bv firearm firearm whilst Bank Guard Anwar saeecl was shot ancl attetnpted robber)' at on 01.04.2014 at about 16.25 hours whilst foilir-rg an APNA Bank main gate future curve, Mueenabad No 2 District N4alir Karachi

11.The only question left before us therefore is whether the appell'rnt by fircarm ar-rel whilst attempting to rob the bank, murt'lered the cieceased and location?

injured bank guard Anwar Saeecl at the said time' date

12.After our reassessment of the evidence we find that the prosecutiolr against the appellant has proved beyond a reasonable doubt the charge keeping in view that each except under the ATA for the following reasons iacts atlLl criminal case must be decided on its own particular circumstances;

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(a)At the outset we do not f incl the charge to be t-lefective he tnrrst defctrtl iLrg" *uf"" it absolutely clear that the appellant attempt U-rlf ugui.ttt tho offt'nce of attempted robber-l'' murder' 'fhe to mrrdI. and possession of an illegal fireartn . the chargc cross bv the clefence Proves that he undcrstood flf* ancl usetl all me'rsures to clefend hirnselt against suclr "*urnlnotion "g"i".i I Page 5 of 11

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charges during cross examination. It cannot [r said that he was taken by surprise in respect of anv of the offences so chargetl arrel that he was prejutliceLl bl, not being put on notice for the trffences against which he had to defend himself .

(b)That the FIR was lodged after a delav of 11 hours. I'lrt: reason for the delay in lodging the FIR was that thc complainant had to secure the site, take the injured to hospital which inch.rr.lctl the accused and his accomplice Faizan who Iater dietl of his urjtrrit's and the deceasecl who diecl aftel l.re was transferretl to the Aga Khan hospital from the ]PMC on the same rlav and thus tl.re complainant's prioritv was to save life. Once this was clone he returned to the PS and recorded his 5.154 Cr.PC statement which later became tl-re FIR. As such we'find the delay in lodging the Irlli to be fully explained.'I'he prosecution has not been benefitcrl bv the delay in lodging the I;[R ancl the appellant has not been prt-jucliccrl as thev were both arrestecl on thc spot in injureci conclition so tht rLr was no time. for the policr-' to crxrk up a false case against thenr. Furthermore, the conrplainant hacl no enmitv with the accrrsetl arr,-l had no reason to falsr:ly ir.nplicate him and as such lve iinel that tht' tlelay in lodging the FIR is not fatal to the lrrosecution case as thc delay has been expl.rirrecl. Irr this respect reliance is Lrlatcd orr Muhammad Nadeern alias Deemi v. The State (2011 SCMI{ li72)

(c)We find that the prosecution's case primarily rests on tht: following witnesses to the attempted robbery; murder of the deceased and injury to the bank guard whose evitlence n,e sh.rll consider in r"letail bekrw;

(i)Eye witness PW 1 Muhammed Fayyaz, He is also the complainant and was one of the police guards placect inside the bank at the time when the incident occurred. According to his tr.idtnce on 01.04.2014 he rvas rleplovctl aL APNA bank witlr an SMG anci 30 roune{s. At.1.15prn thL' deceased camc for checkir.rg on the bank ancl lvas insicit' t[.rc bank. Tu,cr persons came on motor cycle r.r,hich ther, parkerl in front of thc bank. The tw,o persons r-lrerv out \{.eapr)ns which l-rad becn l.riclden in their shalwar antl fireri.rt trank guard Ann,ar Saeed who received bullet injuries .rlons n,itlr the cleceased. Ht fired at the culprits from his SMG u,ho r.vhilc running arval, were hit by his firing and sustainetl bullet injuries. He securetl the weapons irom the injurecl culprits. The manager of the bank PW 2 Rahat inforrneci the police and PW 3 Rao Tahir of PS Sharafi Coth arri.,,ed at thc scene to w,horn he gave the culprits' rveapons which wcre sealed at the spot. He along with PW 3 Rao Tahir movetl the injured deceasetl antl injurecl bank guard to JPMC.

This eye witness was not a chance witness and had no ill u,ill or enmity with the appellant and had no reason to implicatt: him in a false case. His evidence was given in.r natural manner and he was not dented during cross examiuation. [t was a day light incident where the appellant ancl his accomplice were both arrested on the spot in ir-rjuretl condition by firearm as confirmed by PW 6 Jagdash Kurnar

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MLO in his me-dical eviclence and as such we have l1o reasoll to doubt his er,idence and believe the same which we find to be reliable, trust worthv and conlider-rce inspiring. Significantly cluring cross examination of this eve witncss the appellant admits his Presence at the crime scene bt' suggesting that he was hit by firearm whilst sitting outsitle the bank for which he was lulling arounti rt'ithout explanation as he was r"lot even an account holclt-'r ert that bank. Furtherrnore, his counsel contencls that he t{itl tlot knort, his accomplice Faizan who was shot as w'ell at thc cr ime scene and later clied of his iniuries but suggests in cross examinatiorr that the cleceased accusetl hatl a baul< account at the bank. l{ he did not know the cleceaser.l accttst'tl it woultl not make anv sense for him to put this sttggestiorl to the eye witrress as it appears that he is trvirrg to estabiish that Faizan was present as a customer of the bank.rncl not there to rob it. [n an] event this defence is completely beliet{ by the CCTV in the USB which we shall come to later. Thus, for the reasons mentionetl above we find the eviclurce of thr: eyewitness to be reliable, trustworthv .rnt{ cotrlidenct: inspiring anc{ we believe the same and the're is no issue of mistakerr iclentitl,as the appellant was arrested on the sptrt rt irr an iniured coutlition in tlav light hours antl we catt cottvit t on the evitlence of this e1'e rvitness alone though it u'oulcl be of assist.rnce bl wav of caution if there is sotttt' corroborative/ supportive evidence. In this respect rt'lianc.' is placecl on the t-ase oi Muhammad Ehsan v.'I'lre State (2006 SCMR 1857). As also found in the cases oi [iarooq Khan v. The State (2008 SCMR 917), Niaz-ud-Din and another v. The State and another (2011 SCMR 725) anrl Muhammad Ismail vs. The State (2017 SCMR 713). 'l'hat what is of significar-rce is the quality of the e'vidence antl ttot its quantitv and in this case we find the evidence oi this sol.' eye witness to be of good quality ar-rd believe the sarr-re.

(ii)PW 2 Rahatullah Khan. He was the bank manager whose bank was attempted to be robbed. Accoltlirlg to his evidence on 01.04.2014 he was the managcr of AI'jNA llank when at about.l.15pm he hearel filing. Lle sa$' that t'"\,(r persons were trying to enter the bank ar-rd that thc barrks securitv guard (PW 4 Anwar Saeed) ha,"l been hit Lrv filearnr as also the clecease,.1. PW 1 Fayvaz u'ho rvas tleputt'tl f rcrt-u the PS firt.cl at tht'culprits who ran back arrtl fell elon'n tlue to fallen motor bike. Fal,vaz had macle his fires irom outsidr: the bank antl both the culprits fell dort'n ancl sustainetl iniuries. He informed police about the inciclent ancl after 8 kr I 10 minutes police nlobiles and lnspector Rao Tahir arrir,'eti and the injured were moved to hospital.

This witness being the bank manger was not a chancl' witness. He was an inclependcnt witness being thc bar.rl< manager anrl had no reason to make uP a sto$' or falselv implicate thc' accused. He was not dented ciuriug cross examination ancl he gave his evidence iu uaturill nlanller and we believe his evidence which corroborates the eyr:

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witnesses' evidence in all material resPects. The fact that the person rvho he was sitting in his office with at the tinre of tl.re t incident was llot on the witness list or called tu givt evidence we fintl of ncl relevance basetl otr the particular facts and circumstances of the case as he was not iln evt: witness

(iil) PW 4 Anwar Saeed. He is in the iniured bank security guard. Accorc'ling to lris evidence on 01.0'1.2014 he was posted as sccurity guarcl at APNA bank. He was presellt inside the bank when two tlacoits arrived who shot hitn in the abdomen. He confirms the presence of Fayyaz. FIe lell unconscious ancl was told a few days later that the deceasccl who was also inside the bank had expireci antl that the incident r.t'as in the camera of the bank. He was not subicct to cross examination ancl once again we have no reason to disbelieve his evidence with his iniury to the abclotnen berrrg corroborated bv the metiical eviclence which t--vidence corroborates that o{ PW 1 Fayyaz and PW 2 Ilahatullah Khan,

Thus, based on our believing the evidence of thc PW eyewitncss rrhat other supportive/corroborative material is there against the appcllant? It being noted that corroboration is only a rule of caution and not a rttle of law. [n this respect reliance is placed on the case of Muhanrmad Waris v The State (2008 SCMR 784)

(d)That the evitlence of P\{ 3 Rao Tahir who was the c'lutv officer who reachetl the crime scene after the bank lrrtnagt'rs PW 2 Rahatullah's telephorre call from the bank corrobolittes both PW1 Fayyaz, PW 2 Raharullah ancl PW 4 Anwar Saet'tl in all matetial respects. He had no ill will or enmitt' rvith the appellant and hacl no reason to falsely implicate him ir.r this case. He was llot damaged despite a leugtht, cross examination and as such we believe his evidence.

(e)That the medical evidence and medical rePorts as discussed above fullv support the eye-witness/ prosecution evidence. It confirms that the deceased died from a gtrnshot wound. That PIV 4 Anwer Saeed received a gunshot rvountl to his abdornem and that both the accused Faizan (who later died from his iniuries) and the appellant received file arm iniuries on account of the incident.

(f)The USB eviclence of the CCTV fullv supports the prosecution case. Namell, that the aPPellant ancl his co- accused Faizan drr.rv up outsitie the bank on their motor bike, dismounted the same, withdrew' firearms anci trierl ttr enter the bank where thev made fire ancl that tht.1, were chased awav from the entrance by PW 1 Fayyaz's fire shots wllich lead to them falling clown and becoming iniuretl. Tltis totally belies the appellant's clairn of being an innocent passer by

(g)That an unlicensed pistol was recovered from the appellant from his arrest on the spot in an injured conclition., f'age 8 of 1l

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(h)That when the empties recovered at the scene n'ert-' matched with the pistol recovered from the appellant it lear.1 L to a positive FSL report.

(i)That most of the relevant police entries havt' beeu exhibited concerning the robbery, shooting and murult'r which fully support the prosecution's case.

fi) That the police PW's had no enmity or ill will tou'artls the appellant anl1 had no reason to falsely implicate him irr tl.ris case for instanct' by planting a pistol on him ancl irr such circurnstances it h.rs [rt'n lield that the evic]ence of tht'polic.' PW's can be fullv reliccl u;ron and as such u,e rr'lv ott thtr police evidence. Irr this respect reliance is placed ou the casr: of Mushtaq Ahmed V The State (2020 SCMR 474).

(k)That all the PW's are consistent in their evitlelrce ar.r.l even if there are some contradictions in their evidence we consider these cclntradictions as minor in nature' antl not material and certainll,' not of such rnaterialitv so as to cifect the prosecution case and the conviction of tl-re appellant lrr this respect reliance is placed on the cases of Zakir Khan V State (1995 SCMIT 1793) and Khadim Hussain v. The State (PLD 2010 Supreme Court 669).The evidence of the ['W's provides a believable corroborated unbroketr chailr oI ev't'ttts from the time the appellant and his accomplice clrew up to the bank on their motor cvcle (which u'as fecovereLl arrLl {ound to be stolcrr) to chau,ing their weapons to attemptinl1 to rob the barrk to firing on the deceaserl and the batrk gr:.rrtl to being chasetl out bv the shooting of PW 1 Favyaz to the appellant being injureil on thc spot to an unliceusecl firearm being recovc'retl from him to the cleath of the deceasccl ancl positive FSL report.

(l)That the appellant had a lengthy CRO for sirnilar tvpt c it 5cs.

(m)Undoubtedly it is for the prosecution to prove its casc against the accused bevond a reasonable doubt but w'e havc also considered the clefence case to see if it at all can caste doubt on or dent the prosecution case. The llefeuct'case is simply one of false implication bv the police despite admitting his presence at the crime scene. The appellant did not give el'idence on oath and dicl not produce anl' I)W in support of his clefence case or produce anv other evitlencc which coulcl dent the prosecution case. Thus, for tl-re rcarstttrs mentioned above rve disbelieve the defence CcISP .rS nlr a afterthought in the face of a reliable, trust u'orthv arrtl confidence inspiring eye witness and other corroborative /supportive eviclence agairrst the appellant which has not at all dented the pr()secutiorl case.

13.Thus, based on the above cliscussion especialh' in the ftrce of reliable, trustworthy and confidence inspiring eyewitness evideuce ancl

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we have ntr other corroborative/ supportive evidence mentioned above' l. doubt that the prosecution has proved its case against the appellant

beyond a reasonable doubt for the offences fortt'hich he has been

convicted and hereby maintain his convictions in respect of the PPC under offencesonly and make it clear that the appellant is convicted 5.302 (b) PPC and not 5.302 (a) PPC' With regard to the ATA offences he

is acquitted for the reasons set out below'

74.We do not find that this case falls within the purvieu'of the ATA as case of Ghulanr defined by a larger bench of thc'SuPreme Court in the Hussain V State (PLD 2020 SC 61) where in essence for their to be an act and design to create of terrorism there had to be an object, intent, PurPose as a b)' terror on account of such act. Whether people were terrorizetl nor the tact product of the act did not convert the act into one of terrorism that it may have been of a particularly brutal nature Basecl on thc that the intent of particular facts and circumstances of this case it appears when the the appellant was to rob the bank which escalated to murder or clesiSlt-r to guards Put up resistance which had no object, intent' PurPose create terror and as such the appellant is acquitted of all olfences ullc]el'

thO ATA

15.With regartl to sentencing we note that it cannot be conclusivell' at-'complict' proved as to whether it was the aPPellant or his now deceased who fired the fatal shot in respect of the deceased and under thesc grountl circumstances the superior courts have held this to be a sufficient as such for reducing the death sentence to one of lile imprisonment and him to we hereby convict the appellant under S 302 (b) PPC antl sentence Life imprisonment for such offence as opposed to the c-teath sentence the legal hcirs ot along with compensation of ten lacs to be paid to each oi the deceased under S.5il4-A CI.PC.

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1,6. As such the appellant is convictetl under 302 (b) PPC and sentence(l answc'retl in to Life imprisonment with the confirmation reference being negative, however all other convictions and sentences under the Pl'jC the are maintained including fines and compensation' He shall however have

the benefit of 5.382 (B) Cr.PC and any remissiort available to hirn under

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the law now that the appellant has been acquitted of the ATA oifences

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and all his sentences shall run concurrentlv.

77.The appeal is partly allowed in resPect of the ATA offences ancl dismissed in respect of the PPC offences excePt as modiiied above iu terms of sentencing and the confirmation reference is answered in the negative.

18.The appeal is clisposed of along n,ith confirmatiotr reference in tltt' above terms,

JU 1;.,<

f .Ji..

JUDGE

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