KHADIM HUSSAIN TUNIO, J By this common judgment, we intend to dispose of captioned criminal anti-terrorism jail appeals filed by the appellants Abdullah, Fayyaz and Yaseen whereby they have challenged the judgment dated 05.11.2020 (impugned judgment) passed by the learned Judge Anti-Terrorism Court-VIII, Karachi in Special Case No. 142/2020 (New Special Case No. 12/2020), culminated from FIR No. 287/2020 for the offence punishable under sections 353/324/186/34, P.P.C. read with section 7, Anti-Terrorism Act (ATA), 1997, Special Case No. 142-A/2020 (New Case No. 12- A/2020), culminated from FIR No. 288/2020 for the offence punishable under section 23(1)(a), Sindh Arms Act, registered at P.S. Korangi, Karachi and Special Case No. 142-B/2020 (New No. 12-B/2020), outcome of FIR No. 289/2020 for the offence punishable under section 23(i)(a), Sindh Arms Act, registered at P.S. Korangi Karachi. Through impugned judgment appellants have been convicted and sentenced as follows:- "Accused Abdullah, Fayyaz and Yaseen are convicted for offences under sections 353/324/34, P.P.C. and are guilty of offences under section 6(2) punishable under section 7(1)(h) of Anti-Terrorism Act, 1997 and sentenced to suffer R.I. for five years and fine of Rs.50,000/- each in case of default they shall serve six month more. Accused Fayyaz is also convicted under section 23(1)(a) Sindh Arms Act and sentenced to suffer R.I. for five years and to pay fine of Rs.50,000/- in case of default he shall serve six months more. Accused Yaseen is also convicted under section 23(1)(a) and sentenced to suffer R.I. for five years and pay fine of Rs.50,000/- in case of default he shall serve six months more. Accused persons are extended benefit of section 382-B, Cr.P.C.".
2. Brief facts of the prosecution case are that on 09.05.2020, ASI Ayaz Ali Soomro along with his subordinate staff was on patrol when at about 2055 hours, they reached Sector A/35 Zaman Town adjacent to P.S. Anti-Narcotics Korangi No. 3 and spotted two motorcycles, two riders on Each, heading towards them. The motorcycles were being chased by four policemen on two motorcycles of P.S. Awami Colony. Complainant signalled the motorcyclists to stop, but on seeing the police party, the assailants made firing upon them. In retaliation, police party also made firing at the accused. One of the accused received firearm injury at his left shoulder, thereafter police succeeded to apprehend him and two other accused whereas the fourth accused succeeded to escape on the motorcycle. On inquiry, the apprehended accused disclosed their names as Fayyaz son of Saeed, Yaseen son of Abdul Latif and Abdullah son of Muhammad Abbas. They also disclosed the name of the accused who succeeded to flee as Faizan son of Luqman. Thereafter, on Fayyaz's personal search, police secured a .30 bore pistol without number, loaded magazine with one live round in the chamber, a Nokia and a VGO-TEL mobile phone, a wallet having cash amount of Rs.6,000/-, two CNICs in the name of Arsalan Zaffar and Iqra Kanwal and two ATM Cards of Bank Al-Habib as well. They also secured motorcycle bearing No. KJR-7019 from the spot. From appellant Yaseen, police secured a .30 bore pistol without number, two live rounds with one live round loaded in the chamber, two mobile phones of Techno and Oppo company. From appellant Abdullah, a wallet having cash amount of Rs.200/-, a coloured copy of CNIC of one Salman son of Rehmat Ali, two ATM Cards of Bank Al-Habib and Bank Alfalah along with other visiting cards were recovered.
On inquiry regarding licence of the recovered pistols, they failed to produce the same and disclosed that the pistols were unlicensed. Thereafter, complainant arrested the accused, prepared memo of arrest and recovery in presence of mashirs and brought them at police station where present FIRs were registered.
3. After conducing usual investigation, a challan was submitted before the trial Court. After compliance of section 265-C, Cr.P.C. a formal charge was framed against the accused to which they pleaded not guilty and claimed to be tried. In order to prove its case prosecution examined as many as seven witnesses namely PW-1 ASI Ayaz Ali, PW-2 PC Irfan, PW3 PC M. Alamgir, PW-4 Arsalan Zafar, PW-5 Dr. Shehzad Ali, PW-6 P.I. Zulfiqar Ali Channa and PW-7 P.C. Saeed Zaman. They produced numerous documents and other items through their evidence which were duly exhibited.
Statements of accused under section 342, Cr.P.C. were recorded in which they denied the prosecution allegations in their totality and pleaded their innocence. They further stated that the alleged recovery had been foisted upon them by the police, but they did not examine themselves on oath nor examined any witnesses in their defence except acquitted co-accused Muhammad Faizan who had examined himself on oath.
4. Learned trial Court, after hearing the learned counsel for the parties and considering the evidence brought on record, convicted and sentenced the appellants as stated in the supra para, hence these appeals.
5. Learned counsel for the appellants has argued that the appellants have been acquitted in the case of robbery where they were alleged to have robbed PW Alamgir; that the place of incident is situated in a thickly populated area, yet none from public have been cited as witness; that none from police party received injury in the alleged encounter; that the motorcycle has not been produced in Court at trial; that the PWs have disclosed different number of the police mobile; that police mobile was not produced in Court at the time of recording of evidence of the prosecution witnesses; that appellant Abdullah was empty handed at the time of commission of alleged incident; that description of the weapons are not disclosed in the memo, FIR and 161, Cr.P.C.
Statements of PWs; that entry in the Register No. 19 has not been produced to establish safe custody of the weapons; that in-charge of malkhana has not been examined either. In support of his contentions, he has cited the case law reported in 1995 SCMR 1345 (Tariq Pervaiz v. The State) and 2018 PCr.LJ 1042 (Asmatullah and others v. The State).
6. Conversely, learned Additional Prosecutor General has supported the impugned judgment while submitting that the appellants were arrested on the spot; that the appellant Fayyaz has received firearm injury during the alleged encounter; that the ocular account has been fully supported by the medical evidence; that four empties have been secured from place of incident; that no enmity andis alleged or proved against the police party; that accused are also involved in similar types of cases. In support of his contentions, he has referred the case law reported in 2017 SCMR 1845 (Muhammad Tufail v. The State) and 2020 SCMR 610 (Asif and another v. The State).
7. We have heard learned counsel for the appellants and gone through the material available on the record with their able assistance.
8. It is the prosecution's case that an encounter took place on 08.05.2020 between the police and 4 assailants on two motorcycles. During the encounter, appellant Fayyaz received a firearm injury on his left shoulder whereas the police mobile also got hit by a bullet. Per medical records of the injury of appellant Fayyaz, it was caused by a firearm and no blackening was reported around the wound. During the encounter, police also managed to apprehend in all three assailants out of the four; the three being the present appellants; Fayyaz and Yaseen from whom a .30 bore pistol each was recovered and Abdullah who was empty handed. Since the nature of allegations against appellants Fayyaz and Yaseen and those against appellant Abdullah are different, we will be discussing their cases separately.
9. A perusal of record shows that the allegations levelled against the appellant Abdullah are collective; that being that the four assailants attacked upon the police party that had come to stop them. Only general allegations surfaced after a perusal of the testimonies of the witnesses as well and nothing was brought on record to establish a solid role played by the appellant Abdullah in the commission of the offence. It is also a matter of record that Abdullah was empty handed when he was apprehended and prosecution miserably failed to prove that he had any connection whatsoever with the other assailants who had attacked upon the police party. It is rather surprising, therefore, to see that despite there being no evidence against him, he was convicted by the learned trial Court. After perusing the impugned judgment, we observed that the reasoning adopted by the learned trial Court mainly revolved around the other two appellants Fayyaz and Yaseen, not Abdullah. At this juncture, it would be pertinent to note that it is an axiomatic principle of law that mere presence of an accused person at the place of incident can never be sufficient to establish that said accused shared common intention in the commission of an offence unless evidence is brought on record to prove so. In this respect, reliance is respectfully placed on the case of Hassan v. The State (1969 SCMR 454), wherein the Hon'ble apex Court has been pleased to observe that:- "It appears from the observations of the High Court that the High Court was still thinking of the charge of rioting and that mere presence or being a member of the unlawful assembly was sufficient to warrant a conviction. The Sessions Judge had applied section 34 to the case and in order to support a conviction under that section mere presence would not be sufficient, but there must be proof of some overt act on the part of each accused done in furtherance of the common intention. Here the evidence is clear that the appellant was empty handed and he did not assault Suleman, as was stated by P.W.3. Neither of the Courts has considered the case of this appellant separately or the evidence against him. He went to the place empty handed and there is no evidence that he assaulted anybody or that in the circumstances he could have intended to cause a grievous hurt to anybody. Judged by the standard applied by both the High Court and the Sessions Judge to the case of the three acquitted persons, the case of the appellant stands on a much more favourable ground and we see no justification for upholding his conviction. The appeal is, therefore, allowed and the conviction and sentence on the appellant are set aside and he is acquitted."
(emphasis supplied)
10. For these reasons and in the wake of serious doubts in the prosecution case .regarding appellant Abdullah, we see no legal justification in upholding the conviction and sentence awarded to him. The rule of benefit of doubt, which is described, as golden rule cannot be ignored while dispensing justice in accordance with law as held by the Honourable Supreme Court of Pakistan in the case reported as Ayub Masih v. The State (PLD 2002 SC 1048).
11. Now coming to the case of appellants Fayyaz and Yaseen, the allegations against them on the face of the record are that they had actively participated in the attack on the police party of Police Station Korangi and Awami Colony. They were arrested on the spot and police recovered a .30 bore pistol each from their possession. The complainant had also recovered a total of 4 empties of the same bore as the pistols recovered from the appellants Fayyaz and Yaseen; .30 bore. In the absence of a solid ocular account entailing a specific role for each assailant, the only pieces of evidence available are circumstantial evidence. When considering circumstantial evidence, it is important to ensure that the circumstances of the case make an unbroken chain of events which on one end leads to the body of the crime and the other to the neck of the culprit. In this respect, reliance is placed on the case reported as Hashim Qasim and another v. The State (2017 SCMR 986). The first incriminating piece of evidence available against the appellants Fayyaz and Yaseen is the recovery of the weapons itself. When the FIRs are put in juxtaposition with the FSL report available at Ex. 20/I, it is noted that the relevant weapons recovered from the appellants had rubbed numbers. This fact finds mention in the FIR, the memo of recovery and in the FSL report, which to an extent suggests that the weapons originally recovered from the appellants were the same later on received by the Forensics Lab. In the description of the articles received, the pistols found mention at Serial Nos. 1 and 2 "1. One .30 bore pistol rubbed number with magazine marked/signed and two .30 bore live cartridges as exhibits marked as "A" recovered from accused Fayyaz;
2. One .30 bore pistol rubbed number with magazine marked/signed and three .30 bore live cartridges as exhibits marked as "B" recovered from accused Yaseen". The recovered case property was sealed on the spot and this fact too was reaffirmed by the FSL Examiner who notes under General remarks in his report that the parcels received were in sealed condition. In this respect, reliance is placed on the case of Zahid and another v. The State (2020 SCMR 590). The FSL examiner noted with regard to the recovered empties and pistols as follows:- "i. The above mentioned Pistols are in working condition at the time of examination. ii. Two .30 bore crime empties marked as 'C1 and C2' were 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. Two .30 bore crime empties marked as 'C3 and C4' were fired from the above mentioned .30 bore pistol marked as 'B' in question, in view of the fact that major points i.e. striker pin marks and breech face marks are similar."
This fact proves that the appellants Fayyaz and Yaseen had in fact shot their .30 bore pistols at the place of incident. As such, the elements of section 353, P.P.C. are satisfied along with section 23(1)
(a) of the Sindh Arms Act, 2013. As far as the conviction and sentence under section 324, P.P.C. is concerned, it is noted that to prove the same, it is necessary that an attempt at the life of any individual is made. The presence of injury is not required, however intention to commit murder and then attempting the act is necessary. The complainant ASI Ayaz Ali in his cross-examination has admitted that "It is correct to suggest that when I have stopped the accused persons they instead of stopping have started aerial firing." It hardly appears rational to believe that someone looking to commit another person's murder would fire aerially rather than shooting directly at them. As such, section 324, P.P.C. is not applicable in the present circumstances. Learned counsel for the appellants brought forth various contradictions in the evidence of the prosecution witnesses such as contradiction in the registration number of the police mobile which we rightly considered.
However, it is noted that such contradictions either relate to minor procedural aspects of the case or other minor details that would otherwise be inconsequential to the prosecution case. PW-1 ASI Ayaz Ali, in his examination-in-chief deposed that "The injured accused disclosed his name to be Fayyaz, he sustained bullet shot on the left arm. I took body search of the accused and recovered .30 bore pistol, without number, load magazine and I bullet, from his possession. From another accused Yasin, I recovered one .30 bore pistol with magazine with two bullets, one in chamber. I secured four empties of .30 bore pistol from the scene of offence. I also secured five empties of SMG from the scene of offence". In this respect, PW-2 PC Muhammad Irfan deposed in his examination-in-chief that "ASI Ayaz took body search of the accused persons, from accused Fayyaz police recovered .30 bore pistol, one round chamber, load magazine, without number.
From accused Yasin we recovered .30 bore pistol, without number, one round live, and two round chamber. We also secured 4 empties of .30 bore pistol and 5 empties of SMG from the site of offence". PW-3 PC Muhammad Alamgir deposed in his examination-in-chief that "ASI Ayaz took body search of the accused persons, from accused Fayaz police recovered .30 bore pistol, one round chamber, one load magazine, without number. From accused Yasin we recovered .30 bore pistol, without number, one round live, and two round chamber. We also secured 4 empties of .30 bore pistol and 5 empties of SMG." Evidence of all the P.Ws is consistent on all material particulars of the case. Although there are minor contradictions in the evidence of the PWs, the same are not material and certainly not of such materiality so as to affect the prosecution case. The defence Counsel could not point out any material discrepancy in the evidence of the eye-witnesses besides the few minor ones like the registration number of the police mobile which appears, to us, as a typographical error and finds proper mention in the letter sent to the FSL examiner.
12. However, as far as the conviction of the appellants Fayyaz and Yaseen under section 7 of the Anti-Terrorism Act is concerned, suffice it to say that the same cannot sustain. The applicability of section 6 of the Anti-Terrorism Act, punishable under section 7 of the Act has been a long standing controversy before the Courts. The recognized principle now is that all acts mentioned under subsection (2) of section 6 of the ATA, if committed with design/motive to intimidate the government, public or a segment of the society, or alternatively evidence has been collected by the prosecution to suggest that the aforesaid aim is either achieved or otherwise appears as a by- product of the said terrorist activities are to be dealt with under the Anti-Terrorism Act. The Hon'ble apex Court, in the case of Ghulam Hussain and others v. The State and others (PLD 2020 SC 61) has been pleased to observe that:- For what has been discussed above it is concluded and declared that for an action or threat of action to be accepted as terrorism within the meanings of section 6 of the Anti-Terrorism Act, 1997 the action must fall in subsection (2) of section 6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection
(I) of section 6 of that Act or the use or threat of such action must be to achieve any of the purposes mentioned in clause (c) of subsection (1) of section 6 of that Act. It is clarified that any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clauses (b) or (c) of subsection (1) of section 6 of the said Act. It is further clarified that the actions specified in subsection (2) of section 6 of that Act do not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta.
(emphasis supplied)
13. Nothing was brought on record to suggest that the appellants Fayyaz and Yaseen possessed the intention, design or purpose to cause terror to any part of the society. The above principles were again reiterated in the case of Ali Gohar and others v. Pervez m and others (PLD 2020 SC 427) and Muhammad Farhan alias Irfan v. The State (2021 SCMR 488). Having been guided amply by the above judgment to understand the characteristics of an action to be labelled as terrorism, this Court is left with no doubt that alleged offence cannot be equated with terrorism.
14. For what has been discussed above, we find that the prosecution has failed to discharge its burden against the appellant Abdullah beyond reasonable shadow of doubt, but has proven its case against the appellants Fayyaz and Yaseen under section 353, P.P.C. and section 23(1)(a) of the Sindh Arms Act. As a result, conviction and sentence awarded to the appellant Abdullah through the impugned judgment are hereby set aside and he is acquitted of the charges. He is ordered to be released forthwith if not required in any other custody case. The conviction and sentence awarded to the appellants Fayyaz and Yaseen under section 324, P.P.C. and under section 7 of the Anti-Terrorism Act are also set aside, however their conviction under section 353, P.P.C. and under section 23(1)(a) of the Sindh Arms Act are maintained with modification to the sentence awarded to the appellants Fayyaz and Yaseen which is converted to one already undergone by them including the fine amount. They be released forthwith if not required in any other custody case.
15. Instant Special Criminal Anti-Terrorism Jail appeals stand disposed of in the above terms.