THE HIGH COURT OF SINDH, AT KARACHI

Special Criminal Anti-Terrorism Appeal No.69 of 2020

Special Criminal Anti-Terrorism Appeal No.70 of 2020

Special Criminal Anti-Terrorism Appeal No.73 of 2020

Special Criminal Anti-Terrorism Appeal No.74 of 2020

Special Criminal Anti-Terrorism Appeal No.75 of 2020

Present: Mr. Justice Abdul Maalik Gaddi

Justice Mrs. Kausar Sultana Hussain

Appellant (in Spl. Cr. : Karim son of Rafique, through

A.T. Appeals No.69 & 70 Mr. Qaim Ali Memon, Advocate.

of 2020)

Appellants (in Spl. Cr. : (i) Sher Ali son of Abdul Shakoor,

A.T. Appeal No.73 of (ii) Muhammad Ismail son of Abdul

2020) Ghafoor, through Mr. Ali Gohar

Masroof, Advocate.

Appellant (in Spl. Cr. : Sher Ali son of Abdul Shakoor, through

A.T. Appeal No.74 of Mr. Ali Gohar Masroof, Advocate.

2020)

Appellant (in Spl. Cr. : Muhammad Ismail son of Abdul

A.T. Appeal No.75 of Ghafoor, through Mr. Ali Gohar

2020) Masroof, Advocate.

Respondent : The State, through Mr. Abrar Ali

Khichi, Additional Prosecutor General,

Sindh.

Date of hearing : 08.07.2020

Date of Judgment : 08.07.2020

JUDGMENT

Abdul Maalik Gaddi, J.– By this common judgment, we intend to dispose of the captioned appeals, as these appeals are related to same incident, as well as arising out of common judgment dated 03.03.2020, passed by the learned Presiding Officer of trial Court.

2. By means of these appeals, the appellants have challenged the judgment dated 03.03.2020, passed by the Anti-Terrorism Court No.I, Karachi, in Special Cases No.301, 301-A, 301-B, and 301-C of 2019, emanating from Crimes No.107, 108, 109, 110 of 2019, registered at police station Kalri, Karachi, under Section 392/353/324/427/34 PPC, read with Section 7 of Anti-Terrorism Act, 1997 and Sections 23(i)(a) of Sindh Arms Act, 2013, whereby the learned Presiding Officer of trial Court after full dressed trial, convicted and sentenced the appellants as stated in point No.4, paragraph No.26 of the impugned judgment. For the sake of convenience, it would be appropriate to reproduce the said point of the impugned judgment, which reads as under:-

“POINT NO.4.

26. In view of my findings on points No.1, 2 and 3, the prosecution has proved its charges against accused Sher Ali son of Abdul Shakoor, Muhammad Ismail son of Abdul Ghafoor and Karim son of Rafiq, beyond any shadow of doubt. I therefore, convict them u/s 265-H(2) Cr.P.C and sentence them R.I for five years each with fine of Rs.20,000/- each for the offence punishable u/s 392 PPC, in case of non-payment of fine, they shall suffer S.I for three months more. I also convict and sentence them R.I for five years each with fine of Rs.20,000/- each for the offence punishable under section 7(i) of Anti-Terrorism Act, 1997, in case of non-payment of fine, they shall suffer S.I for 6 months more. I also convict and sentence them R.I for ten years each with fine of Rs.20,000/- (Rupees Twenty Thousand only) each for the offence punishable u/s 7(b) of Anti-Terrorism Act, 1997, in case of non-payment of fine, they shall suffer S.I for three months more. I also convict and sentence them R.I for ten years each with fine of Rs.20,000/- (Rupees Twenty Thousand only) each for the offence punishable u/s 324 PPC, in case of non-payment of fine, they shall suffer S.I for three months more. I also convict and sentence them R.I for five years each with fine of Rs.20,000/- (Rupees Twenty Thousand only) each for the offence punishable u/s 7(h) of Anti-Terrorism Act, 1997, in case of non-payment of fine, they shall suffer S.I for three months more. I also convict and sentence them R.I for two years each with fine of Rs.10,000/- (Rupees Ten Thousand only) each for the offence punishable u/s 353 PPC, in case of non-payment of fine, they shall suffer S.I for two months more. I also convict and sentence them R.I for five years each with fine of Rs.20,000/- (Rupees Twenty Thousand only) each for the offence punishable under section 23(1)(a) of Sindh Arms, 2013, in case of non-payment of fine, they shall suffer S.I for three months more. All sentences shall run concurrently. The benefit of section 382-B Cr.P.C is also extended to them. Accused present in custody, are remanded back to serve out the sentences.”

3. The brief facts of the prosecution case are that on 24.04.2019 at about 0200 hours, complainant Pervaiz Rafiq son of Muhammad Rafiq lodged the FIR No.107/2019, u/s 392/353/324/34 PPC read with Section 7 of A.T.A, 1997 at police station Kalri, wherein it is alleged that he was going to his house while adopting service road of Tyre Market, in the meantime, at about 0045 hours, three culprits came out from inside the street and by force of weapon they snatched his purse and used mobile phone Nokia and went away towards Tyre Market. The complainant was standing there. In the meantime, police mobile came there from the side of crown plaza and he stopped said police mobile and he narrated the facts to one police official, who disclosed his name as HC Javed Iqbal, who took the complainant and police officials in the police mobile and proceeded behind the Tyre Market and near Darvesh Hotel, complainant pointed out the accused persons to the police that they had robbed his belongings. On seeing police party, accused started firing upon them with intention to commit their Qatl-e-Amd and police also fired in their defence. However, police succeeded in apprehending the accused persons. On inquiry, accused disclosed their names as Sher Ali son of Abdul Shakoor, Muhammad Ismail son of Abdul Ghafoor and Karim son of Rafiq. On personal search of accused Sher Al, one repeater with two cartridges, robbed mobile phone of complainant, purse containing Rs.600/- and CNIC of the complainant were recovered from his possession. On personal search of accused Muhammad Ismail, one repeater with two cartridges were recovered from his possession and on personal search of accused Karim, one 30 bore pistol with three live bullets were recovered. Police also recovered two empty cartridges, three empties of 30 bore pistol and 8 empties of SMG from place of incident. Accused failed to produce licenses of their respective weapons, as such, they were arrested under memo of arrest and recovery on the spot after sealing the case property viz. two repeaters, one 30 bore pistol, bullets, empties, cash etc. The accused and case property were brought at police station, hence, present FIR as well as FIRs being Crimes No.108, 109 and 110 of 2019 under Section 23(1)(a) of Sindh Arms Act, 2013 were also registered by HC Javed Iqbal.

4. On perusal of record, it reveals that these cases were amalgamated by the trial Court under Section 21-M of A.T.A., 1997 as such, a joint charge was framed against the accused persons on 12.06.2019 at Ex.4, to which they pleaded not guilty and claimed their trial vide their pleas recorded at Ex.4/A to Ex.4/C respectively.

5. At trial in order to prove the accusation against the appellants, prosecution had examined the following witnesses:-

(i) PW-1 Pervaiz Rafiq at Ex.5, who produced memo of arrest and recovery and FIR being Crime No.107 of 2019 at Ex.5/A and Ex.5/B respectively;

(ii) PW-2 HC Javed Iqbal at Ex.6, who produced roznamcha entry No.36 dated 23.04.2019, three FIRs being Crime No.108 of 2019 to Crime No.110 of 2019, under Section 23(1)(a) of Sindh Arms Act, 2013, memo of inspection of place of incident and sketch at Ex.6/A to Ex.6/F respectively;

(iii) PW-3 SIP Rasheed-ur-Rehman at Ex.7, who produced roznamcha entry No.47 dated 24.04.2019 at Ex.7/A;

(iv) PW-4 Inspector Ansar Mehmood at Ex.8, who produced roznamcha entries No.51 and 52, both dated 24.04.2019, photograph of damaged police mobile, letter for referring two repeaters, one 30 bore pistol, bullets as well as empties for report to the FSL, report of FSL, letters for obtaining criminal record of accused persons as well as criminal record of accused persons, roznamcha entry No.56 dated 25.04.2019, letter to the FSL for referring police mobile for report and its report at Ex.8/A to Ex.8/O respectively.

These witnesses were cross examined by the Counsel for the appellants at length and thereafter learned APG for the State closed the prosecution side vide statement at Ex.9.

6. Statements of accused namely (1) Sher Ali, (2) Muhammad Ismail and (3) Karim were recorded under Section 342, Cr.P.C. at Ex.10 to Ex.12 respectively, wherein they denied prosecution allegations leveled by the prosecution and have stated that they are innocent and have been falsely implicated in the present cases. Nothing were recovered from their possession and the alleged recoveries of weapons and robbed articles were foisted against them. They further stated that they have taken away by the police from their respective houses and have falsely been implicated due to non-payment of illegal gratification. The accused, however, did not opt to depose on oath under Section 340(2), Cr.P.C., however, they have examined defence witnesses namely, Mst. Hajyani Tasleema as DW-1 at Ex.13, Muhammad Yousuf as DW-2 at Ex.14 and Attaullah as DW-3 at Ex.15 in their defence to disprove the allegations leveled against them.

7. M/s. Ali Gohar Masroof and Qaim Ali Memon, learned Counsel for the appellants contended that appellants are innocent and have been falsely implicated in these cases with malafide intentions and ulterior motives by the police; that neither appellants were arrested from alleged place of incident nor anything was recovered from their possession; that alleged recoveries of robbed articles, two repeaters and one 30 bore pistol have been foisted upon them by the police; that appellants were not arrested from alleged place of incident, but they were arrested by the police from their respective houses one day prior to the incident and later on, they were implicated in the present cases due to non-payment of illegal gratification; that there are major contradictions in the evidence of prosecution witnesses, which makes the cases of prosecution highly doubtful; the police has also not produced Call Data Record whereby presence of the appellants or even presence of the police can be proved; that the trial Court has not considered the statements of illaqa people who had deposed on oath inspite of this, trial Court has not mentioned any reason for not believing their evidence; that the trial Court has failed to consider all the relevant evidence which are going in favor of the appellants, thus, the judgment passed by the trial Court is bad in the eyes of law and there are illegalities and irregularities in the impugned; hence, prayed for allowing these appeals.

8. In contra, Mr. Abrar Ali Khichi, Additional Prosecutor General, Sindh while supporting the impugned judgment submits that the prosecution has fully established its case against the appellants beyond reasonable doubt by producing consistent/convincing and reliable evidence and the impugned conviction and sentenced awarded to the appellants is the result of proper appreciation of evidence brought on record, which needs no interference. Lastly, he prayed that these appeals may be dismissed.

9. We have given our anxious thoughts to the contentions raised at the bar and have also gone through the case papers so made available before us.

10. The prosecution to substantiate the charge has examined the complainant Pervaiz Rafique, HC Javed Iqbal, SIP Rashid-ur-Rehman and Inspector Ansar Mehmood. They have supported the prosecution, the complainant Pervaiz Rafique in his evidence before the trial Court has narrated the incident in detail and also identified all the appellants to be the same culprits. The complainant has also supported the recovery of robbed articles i.e. used Nokia Mobile Phone, purse containing Rs.600/-, CNIC and also recovered the weapons allegedly used in the encounter from the possession of appellants. The complainant was cross-examined at length, however, learned defence counsel have failed to extract any material favourable to the appellants, who were apprehended soon after the incident and encounter near the place of incident. The evidence of complainant is corroborated by the members of patrolling police party, who chased the culprits and apprehended them on the pointation of complainant, near the place of incident, so also made recovery as shown in F.I.R. They were also cross-examined but nothing has come on record to cause even slight doubt in prosecution case. The appellants have failed to place on record any documentary evidence, which suggests that the appellants have any inimical terms with the complainant party. On the other hand, it has come on record that the appellants had remained indulged in number of criminal cases and this fact is evident from the C.R.O (criminal past history) already available on record.

11. The appellants in their statements under section 342, Cr.P.C. have denied the prosecution allegations and stated that they have been implicated by the complainant Pervaiz Rafique at the instance of police and they have been picked up by the law enforcement agencies from their respective houses one day prior to the incident, but in this regard and as observe above, no documentary evidence is available on record, however, defence witnesses, who have been produced in evidence by the appellants are their near relatives, therefore, their evidence cannot be termed as gospel truth.

12. During the course of arguments, we have specifically asked the question from learned Counsel for the appellants that appellants Sher Ali and Ismail have criminal record as already furnished by the prosecution to rebut this fact, but they have no satisfactory answer with them.

13. As observed above that learned Additional Prosecutor General, Sindh has placed on record the C.R.O (criminal past history) of the appellants Sher Ali and Ismail showing that these appellants were remained indulge in such like of cases. We have also noticed that now-a-days the situation of street crime in city is alarming and increasing day by day, the victims are avoiding to come forward and give evidence against the culprits involved in street crimes, but in instant case at hand, complainant Pervaiz Rafique himself is the victim of street crime and at his instance, the appellants were arrested at spot and looted recovered articles were also effected from them, prima facie, shows their involvement in these cases, which are serious and heinous in nature. It is high time that due to street crime, the peoples at large feeling themselves as insecure, therefore, these type of activities are to be curbed with iron hands.

14. From the facts and discussion hereinabove, the prosecution evidence is inspiring confidence and credible and the prosecution witnesses are trustworthy. The police officials are good witnesses as any other, their evidence cannot be discarded unless any material is brought on record to indicate that they are biased or prejudiced for some extraneous reasons, such reasons the defence counsel have failed to point out. The learned Presiding Officer of trial Court has dealt with all these aspects of the matter quite comprehensively in light of all the relevant laws dealing with the matter and now before us, the appellants were unable to demonstrate that the impugned judgment by any means suffers from any illegality or miscomprehension or non-appreciation of evidence by way of documents available on record. The appellants have been convicted and sentenced by the learned Presiding Officer of trial Court on the grounds as stated supra and the appellants have not been able to satisfy this Court on either of the grounds as mentioned in the memo of appeals to interfere in the impugned judgment.

15. In view of the above, the instant Special Criminal Anti-Terrorism Appeals being bereft of merit, are dismissed along with listed applications.

16. The instant appeals were dismissed by us through short order dated 08.07.2020 and these are the detailed reasons thereof.

JUDGE

Faizan A. Rathore/PA*