SHER ZAMAN @ DORA S/O MEER ZAMAN (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COU RT OF SINDH, KARACHI

Prcsent:

Mr. lustice Mohammad Kaim Khhn Agha Mr. lnstice Zulfiqar Ali Sangi,

Spl. Crirninal A.T Jail Appeal No.98 of 2027. Spl. Criminal A.T Jail Appeal No.99 of 2027.

Appellarrt: Sher Zaman S/o. Meer Zaman through Mr. Moula Bux Bhtrtto, Advocate.

Respondent: The State through Mr. Muhammad Iqbal Awan, Additional Prosecutor General Sindh.

Date of hearing: 02.77.2022.

Date of Announcement: 07.1t.2022.

IU DGMENT

MOHAMMAD KARIM KHAN AGHA, l:- l'he a ppellant Shet Zam.ru S/o. Meer Zaman has Preferred these appeals against the iudgment dater.l 12.07.2021 passed by Learned Judge, Anti-Terlorism Cpurt No.XX, Karachi in Special Cases No.406 of 2019 and 406-A oI 2019 arising out of Crime No.94 of 2019 U/s. 353/ 324/ 302/186/ 34 PPC R/w. section 7 of ATA 1997 and Crime No.95 of 2019 U/s.23(i)(A) of Sindh Arms Act registered at P.S. Quaidabad, Karachi whereby the appellant Sher Zaman S/o. Meer Zaman was convicted and sentenced as under:- 1 The appellant was convicted for offence under section 302/34 PPC and sentenced to suffer R.l. for life imprisonment antl fine of Rs.50,000/ -. In case of default in paymellt of fine tlre appellant ',r,as ordered to suffer S.l. for 06 months and also folfeiture of l'ris plopelty as required u/s.7(2) of ATA 1997-

2.The appellant was convicted for offence under section 7(h) of ATA r/w section 353 PPC and seutencetl to suffer Ii l. for two vears with fine of Rs.20,000/-. In case of default in Pavtlletrt ol fine the appellant rvas ordercd to suffer S.I. for 03 months' n! hntannd^tit Page I of 10

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3.The appellant was conl,icted for offence under sectiou Z(i)(b) oI ATA r/w section 324 PPC and sentenced to suffer R.l for five years with fine of Rs.20,000/-. In case of default in payrnent of fine the appellant was ordered to suffer S.I' for 06 molrths.

4.The appellant was convicted for offence under section 23(i)(a) of Sindh Arms Act and sentencecl to suffer R.l. for 05 years with fine of Rs.20,000/-. In case of default in payment of fine the appellant was ordered to suffer S.l. for 03 months.

All the sentences were ordered to run concurrently. The benefit of section 382-B Cr.P.C. was also extended to the appellant.

2.The facts of the prosecution case are that on 05.04,2019 ASI Ahmecl Yar was busy in patrolling around the area along with his subortlinate staff in official police mobile. During patrolling they leceivetl sp-Y information regarding Presence of two suspicious Persons near t'Vakeel Hotel Bilal Colony who were armed with weapons whereupon complainant called PC Attaullah, PC Mohammad Tahir Khan, PC Faizan and PC Samiullah on two Private motorbikes and sent them at the pointecl place. In the meanwhile accused Persons after seeing police officials started straight firing on the police party with intention to commit Qatl-e-Amd. In retaliation police officials also made some fire shots to accused persons. During encounter PC Attaullah, PC Mohammad Tahir and one passerby child namely Sajjad Ali received fire arm injuries whereas the complainant managed to apptehend one accused person in injured condition on the spot who otl enquiry disclosed his name to be Sher Zaman alias Dora S/ o. Meer Zarnan wher eas other co-accusetl manag;ed to make his escape good from the spot while rnaking fit'e sliots whose name was disclosed by the accused to lre Murad alias Taachi. Upon the personal search of the accused ASI secured one 30 bole pistol bearirrg No.310688541 along with loaded magazine containing 02 rounds in it and one round in chamber from his right hand, one emPty magazine from hrs pocket and Rs.300/- from his possession. During exchange of firing the accused had also received fire arm injuries. Thereafter, the injured police constables and the passerby child were shifted to JPMC through ambulance for their treatment. Thereafter ASI Ahrned Yar securell 11 empties of 30mm and one empty of 9mm bore from the place of incir"leut.

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The police came to know that tl-re passerby iniured child Saiiad Ali diecl on account of the firearm injuries which he received. Therefore, the police arrested accusecl person in the above crimes and brought l'rim at the police station, where the present FIRs wele registered against him.

3.After completion of investigation I.O. submitted charge sheet against the appellant to which he pleaded not guilty and claimed trial-

4.The prosecution in order to Prove its case examined 9 witnesses and exhibited various documents and other items. The staternent of accused was recorded under Section 342 Cr.P.C in which he cienied the allegations leveled against him and claimed false implication by the police. The appellant however did not examine himself on oath and tlit{ not call any DW's in support of his defence case.

5.After hearing the Parties and aPpreciating the evidence on lecortl, the trial court convicted the appellant and sentenced hirn as set out earlier in this judgment; hence, the appellant has filed this appeal against his conviction.

6.The facts of the case as well as evidence proc'luced before the tlial court find an elaborate mention in the impugned iudgment passed by the trial court and, thelefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

7.Learned counsel for the appellant has contended that the appellant is innocent and has been falsely implicated in this case by the police in order to show there efficiency; that the eye witnesses were not Present at the time of the incident and as such there evidence should be ignored as they are planted witnesses; that the medical evidence does not suPPort tlle prosecution case; that there are maior colltraLlictions in the plosecution evidence which rerrders it unreliable; that no independent mashir was associated with the case; that the Pristol was foisted on tl're appellanU that there was a delay in sending tl're pistol and empties for FSL and that for any or all of the above reasons the appellant should be acquitted of the charge by being extended the benefit of the doubt. In support of his contentions, he placed reliance on the cases of Naveed Asghar v The State (PLD 2021SC 600), Tariq Pervez v The State (1995 SCMR 1345), Shamoon , Mttntumn Atil Page 3 of 10

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alias Shamma v The State (1995 SCMR 7377) and Wazir Muhammad v The State (1992 SCMR 1134).

B. On the other hand learned Additional Prosecutor General Sinr'llr has contended that the evidence of the eye witnesses is reliable, trust worthy and confidcnce inspiring and is to be believed; that emPties recovered at the spot were matched with the pistol which was recovered from the accused when he was arrested on the spot which leatl to a positive FSL report; that the rnedical evidence corroborates/ supports the prosecution case and as such the impugned iudgment should be uphelcl and the appeal be dismissed. In support of his contentions, he placeri reliance on the cases of Noor Muhammad v The State (2010 SCMR 97), Muhammad Mansha v The State (2001 SCMR 199), Mureed v The State (PLD 2002 Karachi 530), Sajid Mehmood v The State (2022 SCMR 1882), Mawas Khan v The State (PLD 2004 SC 330), Muhammad Ilyas v The State (2011 SCMR 460), Rooh Ullah v The State (2022 SCMR 888) arrcl Muhammad Din v The State (1985 SCMR 1046).

9.We have heard the arguments of the learned counsel for the appellant and learnerl Additional Prosecutor General Sindh ancl gone through the entire evidence which has been read out by the learned counsel for the appellant, and the impugned judgment with their able assistance and have considered the relevant law inclucling the case law cited at the bar.

10.Based on our reassessment of the evidence of the PW's especially the medical evidence and other medical reports, recovery of empties antl blood at the crime scene we find that the prosecution has proved beyond a reasonable doubt that the child Saiiad (the deceased) was shot ancl seriously injured by firearm on 04.05,2019 at about 2115 houls at Ililal Coloney near Wakeel Flotel Lantlhi Karachi and died as a result of his firearm injuries shortly after reaching hospital and at the same riate, time and location PC Muhammed Tahir Khan and PC Attaullah (the otl"rer injured) were also injured by firearm following an encounter with miscreants t Page 4 of 10

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11.The only question left before us therefore is whether it was the appellant who seriously infured the deceased which infuries lead to his cleath and injuries to the other injured by firearm at the said time, date and location?

't2. At the verv outset we do not fincl that this case falls withirr the purview of the ATA as defined by a larger bcnch of the Suprenie Court iu the case of Ghulatn Hussain v. State (PLD 2020 SC 61) whele in essence for their to be an act of terrorism there had to be an object, intent, purPose and design to create terror on account of such act. Whether people were terrorized as a by product of the act did not convert the act into one of terrorism nor the fact that it rnay have been of a particularly brutal nature. Based on the particular facts and circumstances of this case it appears that tl"re intent of the appellant was to avoid his arrest by the police and as sucl-t he opened fire on the police with the sole purpose of evading his an'est at the hands of the police keeping in view that 9 FIR's were outstanding against him and he was wanted for many serious offences wllich firing had no obiect, ir1terlt, purpose or design to create terror and as such tirc appellant is acquittcd of any offence under the ATA.

13.After our reassessment of the evidence we find that tl'te prosccution has proved beyond a reasonable doubt the charge against the appellant in respect of all the PPC offences so charged and the offence under the SAA and not lor any offence under the ATA keeping in view that each crirninal case must be decided on its own particular facts and circumstances for tl-re following reasons;

(u)That the FIR was lodged with relative promptitude after only three hours of the incident and this slight delay was caused because the complainant had to arrange taking the injured to hospital which was a priority as at least two of the iniured had received life threatening iniuries and it was necessary to prioritize them in order to attempt to save their lives and recording the memo of arrest and recovery on the spot took some time as such he had no time to consult with anyone in order to cook up a false case against the accused who in anv event had been arrested on tlre spot and is narned in the FIR as his rnind woulcl have been in turmoil following the incident and at that point in time l-ris main couce::n would have been the condition of the seriously injured rather than putting together a false narrative in order to implicate the accused., M hnturnd Page S of lO ^nl

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Thus, we find that there has been hardly any delay in lodging the FIR and even such slight clelay has been fully explained, This slight delay has neither lead to any benefit to the prosecution nor causer'l any prejudice to the accused and as such we find this slight delav irr lodging the FIR based on the particular facts and circumstances oi the case not to be fatal to the prosecution case. In this respect leliance is placed on the case of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872)

(b)We find that the plosecution's case primarily rests on the evidence of the eye witnesses to the murdel of the deceased anti iniulies to the other iujured antl whether we believe their evitleuce whose evidence we shall consider in tletail below;

(i)Eye witness F[{r 3 Muhammed Tahir. Accorcling to his evidence the duty officer sent him, PC Faizan, PC Attuallah and PC Sarniullah to report to PW 1 Ahrned Yar rvho is the complainant in this case at star ground. They were informetl by PW 1 Ahmed Yal that he had receiverl infonnation that 2 suspects equipped with deadly weapons weie ptesent at Bilal Coloney near Wakeel hotel and told thern to go with the informer to the pointed place and he would follow tlrern. At about 9.15pm when they reached the pointed place as shown by the informant they found two suspects armell with pistols who fired at the police party with intention to take their lives when they tried to apprehend them. ()n account of the firing he receive,"l three bullet injuries. Orte on his wlist, one on his right hand and one on his belll'. FIe also saw his colleague PC Attalluah receive a fire shot on his chest and one passer by child receive a fire shot to his head, The police returneL{ fire which lead to one of the rniscreants being iniurecl bl, fire shot. Meantirne I'\{ 1 Ahrnetl Ya r rcached the place of irrcident arrtl apprr.'hentlerl tlte lccttstrri whilst his co-accused escaped. He was shifted to hospital. The iniured accused was also shifted to hospital.

This eye witness was not a chance witness as he was a police rnen on duty sent to arrest suspects. He was injurer,l at tlrt: scene as supported bv the medical evidence. He had no enmity or ill will to falsely implicate the accused in this case who in any event was arrested on the sPot by another police men. He was not dented despite a length cross examination. He gave his 5.161 Cr.PC statement a few days after the incident despite lris iniuries which was not materiallv imploved on during his evidence. We have no l eason tL) disbelieve his evidcnce which we find to be reliable, tnrst worthy and confidence inspiring and as such we believe the same and place reliance on it. It is well settled. by now tllat the evidence oI police officers can be safely relied upon provided that they have no enmitv or ill will towarr.ls the accused. In this respect reliance is placed on the case of Mushtaq Ahmed V The State (2020 SCMR.l74).Since the accused was arrested on the spot there was no need for any Page 6 of lO

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identification parade.

(ii)Eye witness PW 4 Attaullah. He was also injured at the scene of the incident by firearm during the encounter with the miscreants as is corroborated/ supported by the medical evidence. His evidence corroborates PW 3 Muhammet'l Tahir's evidence in all material respects and as such the same considerations apply to him as to PW 3 Muhamrned Tahir which has been discussed above.

(iii)Eye witness PW 7 Akhtar. According to his evitlence he was drinking tea at the Wakeel hotel on 05.04.2019 when he recognized 4 police officers who he had seen ou pah'ol before come to the l-rotel. He saw the police officers palk there bikes and when they approached the two suspects the suspects opened fire on the police men. On account oi the fire two police men and one child were iniured. The polic.' also returnetl fire. He saw a police tnobile arrive anci a policernan apprehend an injured sr.rspect whilst the otl'rer suspect escaped. I{e gave evidence that he could iclentifv the accused if he saw him again and identified the accused in court.

This eye witness was not a chance witness as he lived in the area and was drinking tea at a local tea shop. He was an independent witness. I{e was not dentepl on cross examination and he gave his 5.161 Cr.PC statement a few days after the incident. We note that this witness was an accused in a narcotics case registered at the same PS as the policernen involved in the incident and since he gave n<, hulia of the accused he would be unlikely to be able to correctly identify him especially as it was a night time incident and he did not know the accused from before. Thus, we only give a little weiglht to the evidence of this witness so far as the irrcident is concerned antl none in respect of the identify of the accused r.vhich is of no relevance arlv\^Iav because as rnentiouetl earlier the accuserl was artesler.l ou the spot.

We can convict on the evidence of a sole eye witnerss providetl that we find his evidence to be rbliable, trust worthy and confidence inspiring however in this case we have 3 eye witnesses. It however would be of assistance by way of abundant caution if there is some corroborative/ supportive evidence. In this respect reliance is placed on tlie case of Muhammad Ehsan v. The State (2006 SCMR 1857). As also found in the cases of Farooq Khan v. The State (2008 SCMR 917), Niaz-ud-Din and another v' The State and another (2011 SCMR 725) and. Muhammad Ismail vs. The State (2017 SCMR 713). That what is of significance is the quality of the evidence and not its quantity and in this case rt'e find the evidence of at least two of the eye witnesses to be oI very good quality and one of only very average qualitr,- Page 7 of lO

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but r.rone tl.re less lrelieve even his cviclence althtrui;h giving it lesser r,t eight than the two police [Ien eve witrlesess Thus, based on our believing the evidence of the PW eyewitness what othet supportive/corroborative material is there against the appellant? It being noted that corroboration is only a rule of caution and not a rule of law. In this respect reliance is placed on the case of Muhammad Waris v The State (2008 SCMR 784)

(c)PW 1 Ahmed Yar who is the complainant of the case a Part from him not being present at the time when the accused opened fire on the police and during the encounter corroborates the evidence of the eye witnesses in all material respects. He also made the arrest of the accused on the spot in an iniured condition which is corroborated/ supported by the medical evidence in relation to the accused and the arrest and recovery memo aud recovered an unlicensed firearm from him. It is true that he did not send tlre accused to hospital at the same time as he sent the other iniureri but about an hour later on but this was because the other injurecl hacl Iife threatcning injuries whilst the accused's injuries rvere on nou vital parts of his body and he was busv completing tlle other Lcgal formalities. The injuries to the accused wer:e to his buttock antl thigh hence the reason why he could not escape.

(d)PW 2 Mohammed Rehman also corroborates PW 1 Ahmecl Yar in all rnaterial respects being the mashir of the memo of arrest auel recovery and the eye witnesses apart from his absence at the time of the encounter.

(e)That it has not been proven through evidence that any particular police PW's had any enmity or ill will towat'ds the appellant ancl had no reason to falsely implicate him in this case for instance by foisting a pistol on him and in such circumstances it has beerr helcl that the evidence of the police PW's can be fully relietl upou ancl as such we lelv on the police evidence. hr this respect reliance is placed on the case of Mushtaq Ahmed V The State (2020 SCMR

(f)That nearlv all required police memo's and entries have beeu exhibitecl which fully support the evidence of the Plt's.rrrrl the prosecution case.

(g)That the medical evidence and medical rePorts as discussetl above fully support the eye-witness/ prosecution evidence. It confirms that the deceased died from a fireartn iniury to tl-re head, that PW 3 Tahir received firearm injuries to his wrist, hand and belly and that PW 4 Attaullah received a firearm iniury to his chest and that the accused received a firearm injury to hid buttock and thigh. There was no blackening around any of the wounds which fits in with the eye witness evidence that the encounter took place from about 20 paces from the police party and the accused ancl his co-accused.,

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(h)That the accused was arrested on the sPot in an injurecl condition as proven by the evidence of the police PW's mentior-red above and the medical evidence and an unlicensed pistol u,as recovered from I'rim on his auest on the sPot.

(i)That the empties rvhich wcrc recovered at the scene leaci to a positive FSL when they were matched r.r'ith the pistol which was recovered from the accused on his arrest on the spot.

() That all the PW's are consistent in their evidence aud even ii there are some contradictions in their evidence we consit-ler these conhadictions as minor in nature and not material and certainlv not of such materiality so as to effect the prosecution case aud the conviction of the appellant. In this respect reliance is placed on the cases of Zakir Khan V State (1995 SCMR 1793) and Khadim Hussain v. The State (PLD 2010 Supreme Court 669).The evitience of the PW's provides a believable corroborated unbrokerr chain of events from the time the complainant received the spy inforrnation about the whereabouts of the suspects to the cornplainant calling for police reinIorcements to the police reinfolcements being firetl upon and injured with a child by stander being injured and killer"l when the police went to arrest the suspects udro openecl fire orr the police on sight to the police returuing fire to the arrest of tltc accused on the spot in injured corrclitiot.r from rn'hotl an rrnIiit'nscel pistol was recovered to a positive FSL report in respect of thc recovered pistol and ernpties recovered at the crime scene.

(k)The fact that 5.103 Cr.PC was not complied with based on the particular facts and circumstances of this case and the other available evidence on record we do not give much significance to as it has now vir'tually been judicially recognized that in such type of criminal cases now a days due to general apathy in the public arrrl feal of reprisals independent people are not willing to act as mashirs and unnecessarily embroil themselves in the legal process which may have repercussions on both them and their family. In this respect reliance is placed on the cases of Salah-uddin v. The State (2010 SCMR 1962) and Ibrarullah v. State (2021 SCMR 128)

(l)That the prosecution exhibited 9 FIR's ir-r respect of heinous offences in which the accused in the instant case is a nominated accusecl and hence the reason why the accused fired bn the police when they camc to arrest him. This also indicates that the accuseLl is a hal.litua] offentler antl lrarc]enetl clinrinal which also qocs against hirn

(m)Undoubtedly it is for the prosecution to Prove its case against the accused bevond a reasonable doubt but we lrave also considered the defence case to see if it at all can caste doubt on or dent the prosecution case. The defence case is simply one of false implication by the police. The accused did not give evidence on oath. According to him he was arrested from a bus stop but he dicl not produce any DW to support his case as such we disbelieve the 't defence case as an afterthought in the face of reliable, trust \^'ol th,\'_ M Mnd Page 9 of to ^n/

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and confidence inspiring eye witness and other corroborative /supportive evidence against the appellant which has not at all dented the prosecution case. As per the song of the well known punk/rock group the clash in the 1970's ancl 1980's it was a case of " l fought the lau but the laru ruon" .

74.Thus, based on the above discussion especially in tl-re face of reliable, trustworthl, and confidence inspiring eyewitness evidence trncl other corroborative/ supportive evirlence mentioned above, we have no doubt that the prosecution has proved its case against the appellant beyond a reasonable doubt for the offences for which he has been convicted and hereby maintain his corrvictions and sentences except in respect of the ATA offences for which he is acquitted.

15.The appeals are dismissed except as modified above.

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