1. MUHAMMAD SALEEM JESSAR, J.---By this single judgment, we propose to dispose of above-noted four appeals, as all of them have arisen out of one and the same incident, besides the factual as well as legal aspects in all the cases are almost the same.
2. Through instant Appeals the appellants have challenged the common Judgment dated 30.9.2019, handed down by Judge, Anti-Terrorism Court No.1, Karachi in Special Cases Nos.366, 366-A, 366-B and 366-C all of 2019, whereby he convicted all three accused/appellants and sentenced each of them to suffer R.I. for ten (10) ears and to pay fine of Rs.50,000/- (Rupees Fifty Thousands only) each for the offence punishable under section 7(b) of Anti-Terrorism Act, 1997. He also convicted the accused/ appellants and sentenced each of them to undergo R.I. for ten (10) years and to pay fine of. Rs.50,000/- (Rupees Fifty Thousands only) each for the offence punishable under section 324, P.P.C. and in case of non-payment of fine, each of the accused/appellants to suffer S.I. for six months more. He also convicted all the accused/appellants for the offence punishable under section 7(h) of Anti-Terrorism Act, 1997 and sentenced each of them to undergo R.I. for five (5) years and to pay fine of Rs.30,000/- (Rupees Thirty. Thousands only) each and in case of non- payment of fine, each of them to suffer S.I. for three months more. He also convicted all the accused I appellants for offence punishable under section 353, P.P.C. and sentenced each of them to suffer R.I. for one year and to pay fine of Rs.10,000/- (Rupees Ten Thousands only) each and in case of non-payment of fine each of them to undergo S.I. for one month more. He also convicted all the accused/appellants for the offence punishable under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced each of them to undergo R.I. for five (05) years and to pay fine of Rs.30,000/- (Rupees Thirty Thousands only) each and in case of non-payment of fine each of them to undergo S.I. for three months more. All the sentences were ordered to run concurrently. However, all the accused/ appellants were extended the benefit of Section 382-B, Cr.P.C.
3. Concisely, the facts of the prosecution case are; that on 12.05.2019 complainant ASI Sarfaraz Aluned registered above said FIRs at Police Station Sukhan, Karachi, stating therein that he along with his subordinate staff was on patrolling duty. During patrolling at about 0010 hours, when they reached at Soda Factory Curve, near Sawera Flour Mill, Bhains Colony, Landhi, Karachi, they saw six suspects while coming on two motorcycles from Rerhi Goth side. The police party signaled them to stop, but they started firing upon police party with intention to commit their murder and police also fired in their defence. After seven minutes firing stopped and accused tried to run away on their motorcycles and three of them fled away on one motorcycle while taking shelter of darkness, whereas police succeeded in apprehending three accused persons, out of whom two were injured.
4. On inquiry they disclosed their names 1) Syed Alam son of Qutub Syed, 2) Atiq son of Abdul Rehman and 3) Muhammad Farhan son of Muhammad lqbal. Complainant recovered one .30 bore pistol rubbed number with three bullets, Rs.900/-, one mobile phone Nokia 230 and one original CNIC from the possession of accused Syed Alam, one .30 bore pistol with two live bullets, Rs.1,000/- and one G Five mobile phone were recovered from accused Atiq son of Abdul Rehman and from the possession of accused Muhammad Farhan son of Muhammad lqbal, one .30 bore pistol rubbed number with four live bullets, Rs.1100 and one Q mobile phone were recovered. Accused disclosed names of their companions who had made their escape good, as Sarzameen Pathan, Adil and Siddique. The motorcycle bearing Registration No.KHI-2547, Super Star of arrested accused was also taken into custody. Accused failed to produce documents of the motorcycle as well as licenses of their respective pistols, as such they were arrested on the spot under memo of arrest and recovery of case property. Accused Syed Alain and Atiq were brought at Jinnah Post Graduate Medical Centre, Karachi, where they were examined by the concerned Medico Legal Officer, and issued such Medico Legal Certificate. Then accused and case property were brought at Police Station Sukhan, where present FIRs were registered.
5. After registration of the FIRs, investigation of all four cases was entrusted to Inspector Ali Muhammad Talani, who inspected place of incident. recovered six empty bullets of .30 bore pistol, eight empty bullets of 9mm pistol, prepared such memo and sketch on the spot as well as recorded statements of witnesses under Section 161, Cr.P.C. He referred the pistols, bullets and empties under his letter to the FSL for examination and report. After completing usual investigation, he submitted charge sheets in the court of law.
6. Learned APG for the State filed application under Section 21-M ATA, 1997, vide Ex.02 for amalgamating all four cases, which was allowed by consent.
7. A formal charge Ex.04 was framed against all three accused to which they pleaded not guilty and claimed to be tried vide their Pleas Ex.04/A to Ex.04/C respectively.
8. In order to prove its case, prosecution examined in all four witnesses. PW-01 ASI Sarfaraz Ahmed was at Ex.05, who produced Roznamcha Entry No.34, dated: 11.05.2019, memo of arrest and recovery, letter addressed to MLO Jinnah Post Graduate Medical Centre, Karachi for medical treatment of accused Syed Alam and Atiq, Roznamcha entry No.50 dated: 12.05.2019, four FIRs, Roznamcha entries Nos.51, 52 and 53 dated 12.05.2019 and memo of inspection of place of incident as Ex.051A to Ex.05/L respectively, PW-2. PC Usman Ali Khan was examined at Ex.06, while P.W. 3, Dr. Ejaz Ahmed MLO JPMC, Karachi was examined at Ex.07, who produced two medico legal certificates and two final reports of accused Syed Alam and Atiq as Ex.07/A to Ex.07/D respectively. Finally prosecution examined P.W.
4. Inspector Ali Muhammad Talani, I.O. of the case, at Ex.08, who produced Roznamcha entry No.04, dated 12.05.2019, sketch of place of incident, Roznamcha entry No.9, dated 12.05.2019, letters for referring pistols, bullets and empties to the FSL for report and report of FSL as Ex.08/A to Ex.08/E respectively. Thereafter, learned APG, closed side of prosecution vide his Statement Ex.09.
9. Statements of accused Syed Alam son of Qutub Syed Atiq-u-Rehmar son of Abdul Rehman and Muhammad Farhan son of Muhammad Iqbal were recorded under Section 342, Cr.P.C. vide Ex.10 to Ex.12 respectively, wherein they denied the allegations levelled by the prosecution and stated that they ate innocent and have falsely been implicated in the present cases by the complainant due to non-payment of illegal gratification. According to them, nothing was recovered from their possession and the alleged pistols and bullets have been foisted upon them. They further stated that they were not arrested from alleged place of incident, but they were taken away by the police from their respective houses prior to incident and later on they were booked in the present cases falsely. They have further stated that all the prosecution witnesses are police officials and interested, as such, they have falsely implicated them at the instance of their high ups to show their efficiency. All three accused however, did not opt to be examined on oath under Section 340(2), Cr.P.C. nor produce any witness in their defence to disprove prosecution allegations.
10. We have heard learned counsel for the appellants as well as learned D.P.G. appearing for the State and perused the material available on record.
11. Learned counsel for the appellants, submitted that the accused are innocent and have been falsely implicated by the police as they could not grease their palm. They further submitted that, in fact, the accused were taken from their respective house even prior to the date of alleged incident and then were falsely involved in the instant cases: According to them, there is no private witness/ mashir and all the witnesses and mashir are police officials, therefore, there is violation of the provisions of Section 103, Cr.P.C. They further contended that there are material contradictions in the statements of prosecution witnesses, hence doubts have been created in the prosecution case benefit whereof must be extended to the accused. They argued that it is a case of ineffective firing and no police official had sustained any injury, even no bullet allegedly fired by the accused hit the police mobile. They further contended that the provisions of Anti-Terrorism Act, 1997 are not attracted in the instant case as no terror, panic and insecurity was spread amongst the public due to alleged incident. They relied upon the case-law reported in 2006 SCMR 1605, 2012 SCMR 428, 1995 SCMR 599, 1995 SCMR 1345, PLD 2006 Karachi 698, 2011 SCMR 1127, 2015 SCMR 1142, 2016 SCMR 274, PLD 2008 SC 1, 2017 MLD 539, 2017 MLD 1097 and 2017 PCr.LJ 605.
12. Conversely, Learned Deputy Prosecutor General fully supported the impugned judgment and opposed the instant Appeals. According to him. prosecution has proved its case against the accused beyond shadow of reasonable doubt. He submitted that minor contradictions in the evidence are ignored and the same cannot be made the basis for acquittal of the accused. He prayed for dismissal of the appeals and maintaining the impugned judgment.
13. From perusal of the evidence of prosecution witnesses, it seems that all the witnesses have corroborated each other on all material aspects of the case. Complainant ASI 'Sarfaraz Ahmed in the FIR stated that during patrolling at about 0010 hours, when they reached near the place of incident, they saw six suspects while coming on two motorcycles, who despite the signal to stop being given by police party did not stop, rather they started firing upon police party and in retaliation police also fired upon the culprits. Thereafter accused tried to flee away on their motorcycles, but three accused viz. present appellants riding on one. motorcycle were captured, while other three riding on another motorcycle succeeded in fleeing away. Accused were brought at Jinnah Post Graduate Medical Centre, Karachi, where accused Syed Alam and Atiq were examined and treated by MLO. Then accused and case property were brought at Police Station Sukhan, where present FIRs were registered.
14. P.W. PC Usman Ali Khan, who was accompanying the complainant while patrolling the area and who had acted as mashir, in his evidence also stated almost similar facts and he fully corroborated the version of the complainant.
15. The version of the complainant is also supported by the circumstantial evidence, medical evidence as well as recovery of the firearm weapons from the possession of accused persons. The complainant has also produced roznamcha entry No.34 which shows that the complainant along with his subordinates left the police station on 11.05.2019 at 2015 hours (8.15 p.m.). As per FIR the distance between the police station and place of alleged incident / recovery is about 5 kilometers.
16. Neither complainant nor other witnesses accompanying the complainant have deposed that either they had prior spy information about the accused persons passing through the alleged place of incident, having firearm weapons, nor they claimed that after leaving the police station, they straight, away proceeded towards place of incident. Obviously, after patrolling different areas, they reached the place of incident which was situated at a distance of about 4/5 kilometers from the police station, where the alleged incident took place, which process certainly would have taken considerable time. In this view of the matter, even the timing shown in the roznamcha entry No.34 and that shown in C the mashirnamas prepared at the spot are matching with each other.
17. Complainant has also produced roznamcha entries showing their departure from the police station as well as their coming back to the police station along with accused persons as well as case property.
18. The prosecution case is further supported / corroborated by the recovery of firearm weapons from the accused. Learned counsel for the appellant has attacked this piece of evidence on the ground of violation of the provisions of Section 103, Cr.P.C. contending that both mashirs are police officials and no independent person of the locality was associated as mashir of alleged arrest and recovery. In this connection, it may be observed that the place of arrest of the accused and the recovery of pistols from their possession was a katcha road leading towards Rehri village which is an unpopulated area. Although Sawera Flour Mill was allegedly situated there but it has been explained by prosecution witnesses that said flour mill was not in working condition, therefore nobody could be available inside the said mill. Furthermore, the time of alleged arrest and recovery was also odd hours of the night i.e. 0010 hours and it cannot he expected that private persons would be available in such unpopulated area. particularly at such odd hours of the night. Besides, no question was suggested to the complainant and P.W. PC Usman Ali Khan as to whether the place of incident was a populated area or that any private person was available there at the time of alleged arrest and recovery or for that matter whether the complainant made any efforts to associate any private person to act as mashir of arrest and recovery or not? However, P.W. P.C.
19. Usman Ali Khan in reply to question in respect of presence of independent persons at the time of inspection of place of incident on the next day by the I.O., replied. "There was no any person from locality at place of incident at the time of inspecting place of incident. We also did not find any Chowkidar outside gate of flour mill." In this view of the matter, the plea taken on behalf of the appellant with regard to violation of Section 103, Cr.P.C. is of no help to him/them.
20. Besides, alleged recovery of pistols from the accused persons is also corroborated by FSL report. It would be advantageous to reproduce hereunder the relevant portion from the said report:
02. ARTICLES RECEIVED:
1. One .30 bore pistol rubbed number with magazine marked/ signed and three .30 bore live cartridges as exhibits marked as "A" recovered from accused Syed Alam.
2. One .30 bore pistol rubbed number with magazine marked/ signed and two .30 bore live cartridges as exhibits marked as "B" recovered from accused Atiq.
3. One .30 bore pistol rubbed number with magazine marked/ signed and four .30 bore live cartridges as exhibits Marked as "D" recovered from accused Farhan.
4. Six .30 bore crime empties marked as "Cl to C6 ".
5. Eight 9mm bore crime empties marked as " C7 to C14" "
21. 03: QUESTIONS: Whether weapon is in working condition or not?
22. Whether recovered empties were fired from recovered weapon or not?
23. Equipment used for examination: 05: OPINION: The examination of the case has led to the opinion that: i. The above mentioned pistol marked as "A, B, and D" are in working condition at the time of examination. ii. One .30 bore crime empty marked as " C1 " was 'fired' from the above mentioned .30 bore pistol rubbed number marked as " A " in question, in view of the fact that major points i.e striker pin marks, and breech face marks are 'Similar'. iii. One .30 bore crime empty marked as " C2 " was 'fired' from the above mentioned .30 bore pistol rubbed number marked as " D " in question, in view of the fact that major points i.e. striker pin marks, and breech face marks are 'Similar'. iv. One .30 bore crime empty marked as " C3 " was 'fired' from the above mentioned .30 bore pistol rubbed number marked as " D " in question, in view of the fact that major points i.e. striker pin marks, and breech face marks are 'Similar'. v. Three .30 bore crime empties marked as " C4, C5 and C6" were 'not fired' from the above mentioned three .30 bore pistols marked as " A, B and D " in question, in view of the fact that major. points i.e striker pin marks, and breech face marks are 'Dissimilar'. vi. Eight 9mm bore crime empties marked as "C7 to C14" are 'fired' empties of 9mm bore fire arm/ weapon.
24. From above-quoted report it transpires; firstly, that all three pistols allegedly recovered from the accused/ appellants were in working condition and secondly, that six empties of .30 bore pistol allegedly secured from the spot matched with two pistols allegedly recovered from the possession of accused Syed Alam and Muhammad Farhan respectively. Such report fully corroborates the prosecution story set up in the FIR as well as in the evidence of prosecution witnesses, inasmuch; it has come in evidence that two motorcycles were intercepted by the police party and on each motorcycle three culprits were riding. Three culprits riding on one motorcycle succeeded in fleeing away while three accused / appellants riding on another motorcycle were apprehended and from each of them one .30 bore pistol was recovered. Now, it is obvious that only two accused sitting on the rear side of the driver would be able to fire upon the police party and the third culprit who was driving motorcycle would and could not be in a position to open fire. This is exactly apparent from the FSL report, i.e. the empties allegedly secured from the spot matched with only two pistols and not the third one which most probably would have been in possession of the third accused, who would have been driving the motorcycle.
25. So far as clause (v) of the OPINION of Ballistic Expert, which says that empties marked as " C4, CS and C6 " were 'not fired' from the above mentioned three .30 bore pistols marked as " A,B and D " in question, in view of the fact that major points i.e. striker pin marks, and breech face marks are 'Dissimilar', is concerned, suffice it to say that prosecution case is that the accused persons riding on both the motorcycles opened fire upon the police party, therefore, it is clear that three empties marked "C4, C5 and C5" would have been fired from the .30 bore pistols allegedly possessed by the accused who succeed in making their escape good and could not be apprehended by the police.
26. Likewise, the empties "C7 to C14" were allegedly fired from 9mm weapons which were carried by the members of the police party. Thus, it is clear that FSL report fully corroborates the prosecution story and recovery of .30 bore pistol from each of the accused / appellants.
27. Now, adverting to the medical evidence in respect of injuries allegedly sustained by the two accused during the encounter with police party, it seems that it also corroborate the prosecution version It has been stated in the FIR, so also it has come in the evidence that after their arrest, all three accused were taken Jinnah Post Graduate Medical Centre, Karachi out of whom accused Syed Alam and Atiq sustained injuries on their respective legs and after medical treatment and issuance of medical certificate by MLO,. the accused were brought at the police station where F.I.R. was lodged by the complainant. This is also corroborated by the medical evidence which shows that accused Atiq and Syed Alam had sustained one injury each on their right leg. The MLO. Dr. Ejaz Ahmed in his cross-examination stated that both accused had sustained injury from their back side and that the injury seemed to be fresh. This air supports the prosecution story.
28. Perusal of record shows that all the three accused were arrested at the spot during encounter and case property viz. three .30 bore pistols with live bullets were recovered from their respective possession. Though in these cases witnesses are police officials, but no plausible reason is given by the defence counsel to discredit their testimony, especially when their evidence inspires confidence as no material contradiction has been pointed out by the defence counsel to create the doubt and more particularly, as stated above, when there was no independent / private person available at the time and place of alleged incident.
29. So far as the plea taken by the accused in their statements under section 342, Cr.P.C. that they were arrested from their respective houses and booked falsely in these cases, it may be observed that in support of such assertion neither they have examined any witness in their defence nor produced any document, and even they have not examined themselves on oath as provided under Section 340(2), Cr. P.C. and nor have they produced any witness in their defence. Although a suggestion was put by the counsel for accused Syed Alam to the complainant ASI Sarfaraz Ahmed and mashir PC Usman Ali Khan that accused Syed Alam was arrested along with his friend Waris, who was released after obtaining bribe and that accused Syed Alam was falsely implicated in these cases as he could not fulfill the demand of the police; however, said suggestion was denied by these witnesses, moreover, said Waris has also not been produced as a defence witness to support the version of accused. Besides the accused have also not succeeded to prove any enmity with the police officials.
30. In view of above, it can safely be held that the prosecution has succeeded in proving its case so far as the allegations in respect of offences alleged against the accused persons except the offences punishable under the Anti-Terrorism Act, 1997.
31. So far as the offences under sections 7(b) and 7(h) of Anti-Terrorism Act, 1997 are concerned, it is now well settled that mandatory ingredients for attracting the provisions of Anti-Terrorism Act, 1997 are that at the time of alleged offence the accused would have acted in such a manner which had created terror, panic and / or sense of insecurity amongst the general public. In this connection reference may be made to the case of Province of Punjab through Secretary, Punjab Public Prosecution Department v. Muhammad Rafique reported in PLD 2018 SC 178 wherein it was held that where the action of the accused resulted in striking terror or creating fear, panic and sense of insecurity among the people in a particular area, it amounted to terror within the ambit of section 6 of the Anti-Terrorism Act, 1997. It was further held that Courts are required to see whether terrorist act was such that it would have the tendency to create the sense of fear or insecurity in the minds of the general public as well as psychological impact created in the mind of the society. Courts could form their opinion after going through the facts, circumstances and material so collected by the police. It was further held that Courts while deciding the question of attraction of the provisions of Anti- Terrorism Act, 1997, had to see the manner in which the incident had taken place including the time and place and should also take note of whether the act created terror or insecurity in the general public.
32. In another case of Muhabat Ali and another v. The State reported in 2007 SCMR 142, it was held that in order to determine as to whether offence would fall within the ambit of section 6 of the Anti-Terrorism Act, 1997 it would be essential to' have a glance over the allegations made in the FIR, record of the case and surrounding circumstances; it was also necessary to examine that ingredients of alleged offence had any nexus with the object of the case as contemplated under sections 6, 7 and 8' of the Anti-Terrorism Act and whether a particular act was an act of terrorism or not, the motivation, the object, design or purpose behind such act was to be seen and it was also to be seen as to whether such act had created a sense of fear and insecurity in public or any section of public or community or in any sect. Now examining the instant case in light of aforesaid guidelines provided by the Apex Court, it seems that, as stated above, the place of alleged incident was a katcha road leading towards Rehri village which is an unpopulated area. It has also come in evidence that Sawera Flour Mill which was situated near the place of alleged incident was not in working condition therefore nobody could be available inside the said mill. Apart from this, the time of the alleged incident was also odd hours of the night i.e. 0010 hours and as per own admission of the complainant and mashir Usman Ali Khan, no private person was available at the place of alleged incident that is why police officials were associated as mashirs of arrest and recovery P.W. P.C. Usman Ali Khan admitted in clear terms, "There was no any person from locality at place of incident at the time of inspecting place of incident. We also did not find any Chowkidar outside gate of flour mill." It may be added that place of alleged incident was inspected by the I.O. of the case at morning time when neither any private person was available nor even was there any chowkidar at the gate of said flour mill, then what about at the odd hours of night when the alleged incident took place.
33. In view of above, it can safely be held that alleged incident was not committed in a manner which could be said to have the tendency of creating terror, sense of fear or insecurity in the minds of the general public as well as psychological impact created in the mind of the society, thus the prosecution has not succeeded in proving commission of alleged offences under Sections 7(b) and 7(h) of the Anti-Terrorism Act, 1997 by the accused/appellants.
34. Now, while adverting to the quantum of sentence, it seems that the punishment for the offence under section 324, P.P.C. is the imprisonment 'for either description for a term which may extend to ten years, and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall, in addition to the imprisonment and fine, be liable to the punishment provided for the hurt caused, whereas the punishment for the offence under Section 23(1) of Sindh Arms Act, 2013, is the imprisonment for a term which may extend to fourteen years and also to pay fine.
35. In the instant case, we find certain mitigating circumstances which warrant reduction of sentences awarded by the trial court for the aforesaid offences. For instance; there is admittedly ineffective firing and none of the members of police party has / have sustained any injury, even no fire shot hit the police vehicle; besides while in running position on a motorcycle it is very difficult to fire upon police officials, who admittedly were inside the police mobile at the time when the accused started firing, so that it could hit on any vital part of their body which may cause their death which is the main ingredient of section 324, P.P.C.; moreover, it has not been explained as to which of the accused was driving the motorcycle because it was nearly, impossible for the accused who was driving the motorcycle to have fired upon the police, party and even from the perusal of FSL report it is clear that the empties secured from the place of incident matched only two pistols and not three, meaning thereby that only two accused who were sitting on the rear side of the driver had opened fire upon the police party; according to complainant and P.W. Usman Ali Khan, at the time when the injured accused were being taken to hospital blood was not oozing from their injuries, whereas according to MLO when he examined the injuries of the injured accused blood was oozing from the injuries; it has been admitted by P.W./ mashir Usman Ali Khan, It is correct to suggest that it is mentioned in my statement that on our arrival at P.S. the ASI prepared memo of arrest and recovery. "and lastly that the clothes of the injured accused were not secured/ sealed by the MLO and/or the police.
36. In view of above, the impugned judgment of conviction and sentence is modified as under: The conviction and sentences awarded to the accused / appellants under Sections 7(b) and 7(h) of Anti-Terrorism Act, 1997 read with section 324, P.P.C. are hereby set aside. The accused/ appellants are convicted for the offence punishable under Section 23(1)(a) of Sindh Arms Act, 2013 and each of them is sentenced to undergo R.I. for two (02) years and to pay fine of Rs.15,000/- (Rupees Fifteen Thousands only) each and in case of non-payment of fine each of them to undergo S.I. for one month more. The conviction and sentence awarded by the trial Court to the accused / appellants for offence punishable under section 353, P.P.C. are maintained. The order of the trial Court with regard to running all the sentences concurrently, so also in respect of extending benefit of Section 382-B, Cr.P.C. to the accused would remain intact.