ARSHAD HUSSAIN KHAN, J. This common judgment will dispose of. the abovementioned appeals preferred by the appellants against the consolidated judgment dated 27.07.2020, passed by learned Anti-Terrorism Court No.II, Karachi, in Special Case Nos. (i) 572/2018 [emanating from FIR No. 20/2018 under sections 460/395/397, P.P.C. read with Section 7 ATA, 1997], (ii) 382/2018 [From FIR. No.24/2018 under sections 353/324/427/34, P.P.C. read with section 7 ATA, 1997], (iii) 383/2018 [FIR. No.25/2018 under section 23 (I) a SAA], (iv) 384/2018 [FIR No.26/2018 under section 23(i) SAA],
(v) 385/2018 [FIR No.27/2018 under section 23 (i) a SAA] and (vi) 386/2018 [FIR No. 28 of 2018 under section 23 (i) a SAA], whereby the appellants were convicted as under:- "158. In view of my findings on above Points the charge against accused Abdul Bari alias Siddiq son of Wazeer Khan, Younus Gul son of Abdul Rehman, Mohibullah Gandhgheer son of Abdul Majeed and Zaman alias Loine son of Ismail stands proved. The accused Abdul Bari alias Siddique had snatched the Repeater from Ahsan (now deceased) who on resistance was shot by Younus, therefore, both accused Abdul Bari alias Siddiq and Younus alias Gul had endangered the life of Ahsan now deceased. All the accused had common intention, therefore, they are convicted under section 7(b) of Anti-Terrorism Act for 'LIFE IMPRISONMENT'. They are liable to pay Rs.50,000/- to the legal heirs of the deceased.
159. Under section 460, P.P.C. any person causing hurt to any person, every person jointly concerned in committing such lurking house tress pass by night shall be punished with 'LIFE IMPRISONMENT'.
160. They had encounter with police to deter them in discharging their duties and they are awarded Rigorous Imprisonment for Fourteen years under section 353/324/34, P.P.C. read with section 7(1)(ff) and 7(h) of ATA, 1997 and under section 23(i)A SAA, 2013 keeping the unlicensed weapons by each.
All the punishment will run concurrently.
161. All the accused persons had common intention and had trespassed the Lakhani Autoz by night, therefore, they all punished for 'IMPRISONMENT FOR LIFE'. They all are also to pay fine of Rs.50 thousands each. The benefit of Section 382-B is extended to the accused persons.
The case against absconding accused Asadullah Toor son of Mohammad Ibrahim will proceed as and when he is arrested?'
2. Concisely, the facts of FIR No. 20/2018, lodged by Muhammad Siddiq, Assistant Supervisor of Freedom Security (Pvt.) Ltd. are that the security company had posted security guards namely, Ahsan son of Asghar Ali, Irfan Ali son of Shabbir Ahmed and Farhan Ali son of Mehran Dad at Lakhani Auto Plaza, Murad Khan Road, Garden Karachi, and they used to live on the roof- top/terrace of the plaza. On 22.2.2018, at about 5.00 am, the complainant upon receiving information that security guard namely, Ahsan has been injured by fire arm, reached at civil hospital where he found that Ahsan received bullet injury on his head and he was being treated in the emergency ward of Trauma Centre and chowkidar Askari son of Mehmood Khan was also there along with the injured. The complainant, thereafter, reached at Lakhani Plaza and upon enquiry came to know that security guard Ahsan, Chowkidar Ameen were performing their duties inside the main gate of the Auto Plaza, which was closed. Whereas security guards Irfan Ali, Farhan Ali and Askari were sleeping on roof top/terrace, when at about 0410 hours from behind the Fikri Lane/Gali where the gate/shutter of the market was closed, 6/7 person aged between 18 to 25 years, wearing shalwar kameez, had broken the lock of the shutter and from inside of the market came towards main gate where chowkidar Ameen was sleeping on the cot whereas Ahsan was sitting on the chair. The accused persons had come towards them at about 0425 hours, caught hold of Ahsan and snatched his 12 bore Repeater Pump Action No. JKS-1918, a company licensed weapon, however, upon resistance, one of the accused fired at Ahsan on his head and he fell down. The accused persons had taken his Repeater having 04 rounds and escaped from the back door, the camera installed in the market captured the entrance of the accused persons and picture of commission of the incident were also recorded. The case against 6/7 unknown accused persons for injuring the said Ahsan and snatching his Repeater was sought to be registered and action be taken against accused persons.
3. Concise facts of FIR No.24/2018 filed by Inspector Muhammad Habib Qureshi are that on 27.02.2018 while he along with his police party was patrolling in the area when reached at Anklesaria Hospital, received spy information that accused persons involved in the incident of Lakhani Auto Market Garden, where one security guard was injured are present at M.R. Kayani Shaheed Road, near Ranjha Shaheed Chowki with the intention to commit crime. Considering the information to be true, he called another police mobile of ASI Manzoor Ali Abbasi who was also patrolling in the vicinity, which reached at the pointed place, however, on seeing police mobiles coming towards them the accused persons started firing at the police party. The police personnel by exercising their right of defense also shot fires. Three (03) accused persons while making fires escaped from the scene, however, four (04) accused persons were apprehended who disclosed their names as Abdul Bari alias Siddique son of Wazeer Khan, Younis alias Gul son of Abdul Rehman, Mohibullah alias Gandgeer son of Abdul Hameed and Zaman alias Levinai son of Ismail.
Since private persons were not available, the search of the accused persons was made before police officials. During the search, from accused Abdul Bari alias Siddiq, a Repeater 12 Bore Pump Action No.JKS-1918 containing empty and cartridge, one Q-Mobile SP-1000 and Rs.130/- whereas from accused Younis alias Gul, one pistol 30 bore without number Pakistan made black butt having magazine with three bullets, one bullet in chamber, one Mobile with SIM of JAZZ and Rs.180/-, from accused Mohibullah and Gandgeer, a pistol 30 bore without number, black butt, one bullet in chamber 02 in magazine, one mobile phone LG touch system, black colour and Rs.150/-, one card issued by Balochistan Shia Conference, registered at Quetta and from accused Zaman alias Levinai, one pistol 30 bore rubbed number, black colour, one bullet in chamber 03 bullets in magazine, one mobile phone motorola touch system, black colour and Rs.100/- were recovered.
The arrested accused persons disclosed the names of their escaped accomplices as Asadullah and Taur son of Ibrahim, Asadullah and Zar son of unknown and 3rd name and parentage unknown alias Barbat and Mochar. A bag was also found from the footpath where accused persons were standing, which was checked wherein one (1) hammer, three (3) saw blades, one (1)
Plier, one (1) screw driver one (1) rod, two (2) small torches were recovered. Although due to firing of the accused persons none was injured, however, one police mobile No. SPC 537 was damaged. The accused persons could not produce licenses, therefore, they were also booked under Arms Act through separate FIRs. viz. FIR No. 25/2018 was registered against accused Abdul Bari for recovery of Repeater, 12 bore No.JKS-1918, FIR No.26/2018 was filed against Younis for recovery of pistol 30 bore, FIR No.27/2018 is against accused Mohibullah for recovery of pistol 30 bore and FIR No.28/2018 is against accused Zaman for recovery of pistol 30 bore.
4. After investigation the challan was filed and the appellants who had been arrested for the offenses as mentioned above were sent up to face trial.
5. Learned trial court on 23.01.2019 amalgamated the cases and the FIR 20/2018 was made the leading case and on 24.01.2019 learned trial court framed the Charge (Ex. 12) against the appellants to which they pleaded not guilty and claimed trial of the case.
6. At the trial the prosecution had examined in all 14 witnesses and produced certain documents, which had been exhibited and thereafter learned prosecutor had closed the side of prosecution, vide statement dated 10.02.2020 as Ex. 84.
7. Thereafter the statements of appellants were recorded under section 342, Cr.P.C. as Exhs. 85, 86, 87, and 88 respectively wherein they proclaimed their innocence. The appellants neither examined themselves on oath nor produced any witness in support of their defense.
8. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment passed by the trial court and as such the same is not being reproduced here so as to avoid duplication and unnecessary repetition.
9. Learned counsel for the appellants-Younus and Zaman has contended that the trial court while passing the impugned judgment has committed gross and material illegality/irregularity by not appreciating the real facts, evidence available on the record and the law. It is also argued that the appellants in the case of encounter were arrested on 27-2-2018 but the weapons were sent on 1-3- 2018 for FSL; the police did not obtain the CDR of the mobiles recovered from the appellants; the USB was provided to the appellants at the end even otherwise there is no legal value of USB. Further it is nowhere stated who had prepared the USB and sealed it, even the case property was not sealed; no expert who had taken the CCTV footage was examined in the court. The complainant alleged that he was informed on phone by Zonal Manager Rehan Rafiq while the investigation officer did not array him as witness in the case. Insofar as FIR 24 /2018 is concerned, learned counsel argued that that the place of incident is thickly populated area but the I.O. had not bother to verify whether alleged encounter had actually taken place or not; there was no sign of firing at the place of incident except the police mobile was damaged. The FIR No.24/2018 shows that there were 02 mobiles but does not mention the description and/or registration number of the second police mobile. He has further argued that there is nothing available on the record, which could show that from whose firing the police mobile was hit even there is no mention of how many fires were made by each police man. Learned counsel while referring to the evidence of the PWs also submitted that there are material contradictions in the prosecution evidence and the prosecution has miserably failed to prove its case against the appellants beyond the shadow of doubt, therefore, these appeals may be accepted and the appellants may be acquitted from the charge.
10. Learned counsel for the appellant-Abdul Bari while adopting the arguments of learned counsel for appellant-Younus has contended that the impugned convictions recorded and sentences awarded to the appellants through impugned judgment are against the law and facts as well as result of non-reading/misreading of evidence. It is also argued that evidentiary value of the material with regard to implication of the appellant, is a big question mark and finally prayed for acquittal of the appellant. Learned counsel in support of his arguments has relied upon the cases of Ghulam Mustafa v. The State (2009 SCMR 916) and Ishtiaq Ahmed Mirza and 2 others (PLD 2019 SC 675).
11. Learned counsel for the appellant-Mohibullah while adopting the arguments of the learned counsel for the other appellants has contended that the trial court has failed to appreciate the major contradictions of the statements of all the prosecution witnesses, which makes their evidence doubtful. It is contended that the appellants are innocent and have been falsely implicated in this case by the police. All the prosecution witnesses are police officials, as such their evidence cannot be safely relied upon. It is further contended that the weapons were foisted on the appellants and that for any of the above reasons the appellants should be acquitted of the charge by extending to them the benefit of the doubt.
12. On the other hand, learned Additional Prosecutor General Sindh on behalf of the State, after going through the entire evidence of the prosecution witnesses as well as other record of the case has fully supported the impugned judgment. It is contended that the empties recovered from the place of incident have also matched with the pistol recovered from the accused in the encounter.
The appellants are shown in the pictures produced in the evidence available on the record. It is also argued that the 12 bore repeater snatched from the deceased guard- Ahsan, which is also mentioned in the FIR No. 20/2018 along with its number, was recovered from the accused Abdul Bad. He further contended that the medical evidence supports the prosecution case, that the empties recovered from the scene led to a positive FSL report when matched with the above weapons and as such the prosecution had proved its case beyond a reasonable doubt against the appellants and their appeals may be dismissed. In support of his stance, he has placed reliance on the cases of The Stare ANF v. Muhammad Arshad (2017 SCMR 283), Akhtar v. The State (2020 SCMR 2020), Muhammad Ashraf v. The State (2011 SCMR 1046) and Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others (2005 SCMR 427).
13. We have paid our anxious consideration to the arguments of learned counsel for the parties as well as learned Addl. P.G for the State, gone through the record with their able assistance and have considered the relevant law including that cited at the bar.
14. Record reflects that ASI Muhammad Abdullah (Ex. P123) had registered FIR No.20/2018 of PS Nabi Bux on 22.2.2018 at 0830 hours on the statement of Mohammed Siddiq, Assistant Supervisor of Freedom Security (Pvt.) Ltd. In the FIR, it has been stated that on 22.02.2018 at about 0410 hours 6 to 7 persons entered into Lakhani Auto Plaza from the back side by breaking open the shutter of the market where chowkidar Muhammad Amin was sleeping on the cot and security guard Ahsan was sitting on the chair. The accused persons overpowered the security guard Ahsan, snatched his company licensed weapon-12 bore Repeater having No. JKS 1918, and fired upon his head from 30 bore pistol, thereafter they escaped from the scene of crime subsequently the said crime was registered under FIR 20/2018. On 27.02.2018, police inspector Habib Qureshi while he along with his police party was patrolling in the area when reached at Anklesaria Hospital, received spy information that accused persons involved in the incident of Lakhani Auto Market are present at M.R. Kyani Shaheed Road. Considering the information to be true, he called another police mobile and about 0100 hours they reached at the pointed place where the accused persons were present, however, upon seeing the police they started firing at the police party and in retaliation police also fired back upon them and succeeded to apprehend four accused person (present appellants).
During the search, from accused person weapons and other items including a Repeater 12 Bore Pump Action No.JKS-1918 containing empty and cartridge, 30 bore pistols containing bullets in their chambers were recovered. The said incident of encounter was registered under FIR 24/2018 (Ex.P/I7) against all the accused persons/appellants. Besides this, separate FIRs bearing No. 25/2018 (Exh. P/ 18) against accused Abdul Bari, No. 26/2018 (Ex. P/19) against accused Younus, No.27/2018 (Ex. P/20) against Muhibullah, and No.28/2018 (Ex. P/21) against Zaman were also registered for having unlicensed weapons.
15. Record further shows that from all the four accused persons / appellants fire arms were recovered; from accused Abdul Bari a 12 bore Repeater No. 1918 JKS with one live cartridge (Article- A), from Younis a 30 bore pistol 04 (Article-B) from accused Muhibullah a 30 bore pistol (Article-C) and from accused Zaman a 30 bore pistol (Article-D). Besides this, the I.O had also picked 03 empties of SMGs and 05 empties of 30 bore (Article-El from the site of encounter. He had also taken in custody one bag, which was lying on the footpath where the accused persons were standing when it was checked it contained, hammer, screw driver, iron rod, two small torches (Article-F), inspector had prepared the memo of arrest and recovery as Ex.P/14 and his mashirs were ASI Arshad Ali and PC Liaquat. ASI Arshad Ali PW-8 at Ex-P/29 during his deposition had confirmed Ex. P/14 bears his signature and supported the deposition of PW-5 (Inspector Habib Qureshi) in toto on the recovery made from the appellants.
16. Record also reveals that Inspector Akber Hussain (PW-10) at Ex.P/32 was I.O. of the case of an encounter, on 27.02.2018 had gone with the complainant for site inspection; vide entry No.33 and confirmed that Ex. P/22 is the same memo of site inspection prepared by him and bears his signature. He had sent the case property i.e. Repeater, pistols and the empties for FSL on 27.02.2018 vide Ex.P/35 and produced FSL Report dated 14.03.2018 as Ex.P/36. He had also sent the police mobile No.SPC-537 for FSL on 01.03.2018 and had produced report as Ex. P/38. The report shows that 12 bore crime empty marked C/1 was fired from the shotgun No.JKS-1918 and 30 bore empty had matched with the pistol recovered from accused Younis and 02 empties had matched with the pistol recovered from Mohibullah and 02 empties had matched with the pistol recovered from accused Zaman. Record shows that Repeater and 3 pistols recovered from all the four accused were also sent for FSL in order to ascertain whether empty (F.A No.1000/2018) recovered from the crime scene under FIR 20/2018 with the pistol recovered from the crime under FIR 24. The report of FSL (Ex. P/64) confirms that the empty of F.A No. 1000/2018 had matched with the Pistol recovered from the accused Younis. Furthermore, the recovery of 12 bore Repeater from accused Abdul Bari, which was snatched from the security guard Ahsan, clearly shows that he along with other accused persons is also involved in crime at Lakhani Auto Plaza.
17. Record also reflects that I.O. had taken photographs from the footage of CCTV installed at Lakhani Auto Plaza, which were produced as Ex.P/30 to P/41. In the said photographs accused Abdul Bari and Mohibullah can clearly be seen.
18. Record also shows that the security guard-Ahsan, who had received bullet injury on 22.02.2018, subsequently had expired on 08.09.2019, however, there is no post mortem report available on the record, which could show cause of death.
19. Record shows that from all the accused persons firearms were recovered, as deposed by the police officials, which were properly sealed as such there cannot be a remotely apprehension of its replacement nor it is alleged. Police witness and the private witness were cross-examined but no major contradictions have been pointed out to discredit their evidence in order to show false implication of the accused persons in the crime. There was no motive either with the police witness or the colleagues of deceased Ahsan to falsely involve the accused persons in the crime.
20. It is well established law by now that approach of the court while appreciating the evidence should be dynamic and not static and by considering all the attending circumstances of the case and evaluating evidence, if the court was satisfied that accused charged, had committed the crime, it should record conviction, though there might be some technical lapses on the part of the Investigating Agency / Prosecution, provided, the same were not prejudicial to accused in the fair trial. In this regard, reliance can be made upon the cases of Jafar Ali v. The State [1998 SCMR 2669] and Khurshid v. The State [PLD 1996 SC 305].
21. From the evidence available on the record, we find that all the prosecution witnesses have fully corroborated the version of the prosecution. All the witnesses were cross-examined at length but their testimonies could not be shaken. Learned counsel for the appellants during their arguments though have made efforts to bring out material contradiction, however, their efforts yielded no fruit as they have failed to bring out any material contradiction from the record.
22. The upshot of the above discussion is that the prosecution has proved the charge against the appellants beyond shadow of reasonable doubt before the trial court; the evidence on the record has properly been appreciated by the trial court while recording convictions and sentences of the appellants. Thus, the impugned judgment, being well-reasoned, does not call for any interference.
Resultantly, these appeals, being bereft of merits, are accordingly dismissed. The convictions and sentences recorded by trial court, vide impugned judgment dated 27.07.2020, all are maintained in respect of each accused.