[Sindh]
Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ
ABDUL WASAY JOKHIO and another---Appellants
Versus
The STATE---Respondent
Special Criminal Anti-Terrorism Appeals Nos. 159, 172 of 2021 and Confirmation Case No. 9 of 2021, decided on 26th September, 2022.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---First Information Report lodged with promptitude within two hours of the occurrence---Effect---Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured---In the present case, the FIR was lodged with promptitude and the accused was named in the FIR---If there was any slight delay in lodging the FIR i.e. after two hours this was because two police man had been shot and needed to be taken to hospital as an emergency---One of whom expired and as such the slight delay in lodging the FIR had been fully explained and as such that slight delay was not fatal to the prosecution case---Accused was named in the FIR as he was being transported from the Police Station to Court by Police Officers, two of whom he shot---Thus, it was known who the accused were and there was no time to cook up a false case against them especially as the third Police Officer who accompanied them, was accused of negligence in their escape and confirmed that this was what actually happened---Furthermore, the complainant had no enmity with the accused and had no reason to falsely implicate him and that slight delay in lodging the FIR had not benefited the prosecution or prejudiced the accused---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.
Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---Ocular account supported by evidence of eye-witness---Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured--- Prosecution case primarily rested on the sole eye-witness to the murder of the deceased and his correct identification of the accused as the person who shot and murdered the deceased---Eye-witness was accompanying the accused, and the deceased in private car who were all policemen taking the accused for remand to the Court---Eye-witness knew who accused was as he was accompanying him on remand---Moreover, it was day light and eye-witness was sitting close to accused in the car for at least three hours when the incident took place---As such, based on the particular facts and circumstances of the case no identification parade was required---Eye-witness gave his evidence in a natural manner, and was named as present in the FIR, and was seriously injured during the incident which was supported by the medical evidence---Said witness had no enmity or ill will with the accused and had no reason to involve him in a false case---Said witness was not a chance witness and was not even cross-examined on any aspect of his evidence which could be assumed to be admitted---Thus, the evidence of said witness was found to be reliable, trustworthy and confidence-inspiring---Although, co-accused was not charged with murder but only negligence, he, in his S. 342, Cr.P.C statement fully corroborated the eye-witness about the happening of the incident in his presence---Likewise whilst giving evidence under Oath---Therefore court could rely on his S.342, Cr.P.C state-ment and his evidence under oath as being corroborative/ supportive of the eye-witness evidence--- Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.
Imran alias Dully and another v. The State and others 2015 SCMR 155; Tariq Mehmood v. The State and others 2019 SCMR 1170; Mawas Khan v. The State and another PLD 2004 SC 330; Amir Khan v. The State 2000 SCMR 1885; Muhammad Mansha v. The State 2001 SCMR 199; Muhammad Younas and another v. The State and others 1990 SCMR 1272; Nazimuddin v. The State 2010 SCMR 1752; Rafaqat Ali and others v. The State 2016 SCMR 1766; Wahid v. The State PLD 2002 SC 62; Amrood Khan v. The State 2003 SCJ 604; Muhammad Ilyas and others v. The State 2011 SCMR 460 and Zulfiqar Ahmad and another v. The State 2011 SCMR 492 ref.
Ijaz Ahmed v. The State and others 2022 SCMR 1577; Dr. Javaid Akhtar v. The State PLD 2007 SC 249; Muhammad Ehsan v. The State 2006 SCMR 1857; Farooq Khan v. The State 2008 SCMR 917; Niaz-ud-Din and another v. The State and another 2011 SCMR 725; Muhammad Ismail v. The State 2017 SCMR 713 and Muhammad Waris v. The State 2008 SCMR 784 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---Recovery of car used during the occurrence---Forensics Report--- Reliance---Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured---Car which was recovered by the police was the car which was driven by the accused/Police Official and belonged to him and had bullet holes and human blood in it as corroborated by Forensic Science Laboratory Report and a chemical report ---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---Correct identification of accused---Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured---Record showed that the police witnesses travelled to Province of Punjab where they arrested accused in the present case who was already in custody in another case and a case which concerned an illegal fire arm---If accused was not recognized or known by the police in the present case why did the police travel all the way to Punjab to arrest him whereby they had to cross numerous administrative and bureaucratic hurdles which further supported the prosecution case that accused was correctly identified---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---Recovery of pistol from accused and empties from the spot---Reliance---Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured---No doubt that the pistol which was recovered from the accused by the police in Punjab was the pistol which was owned by and belonged to the accused/Police Official which when sent for Forensic Science Laboratory with the empties recovered at the scene of the crime matched---This directly linked the accused to the commission of the crime---Empties were also not foisted as they were sent soon after the crime before the pistol was recovered for Forensic Science Laboratory and sent again with the pistol for Forensic Science Laboratory once it was recovered which on both occasions led to positive reports---Furthermore, mere delay in sending the pistol for Forensic Science Laboratory in the absence of evidence of tampering would not offset a positive Forensic Science Laboratory Report--- Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.
Muhammad Ashraf v. The State 2011 SCMR 1046 rel.
(f) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---Police witnesses evidence of---Reliance---Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured---Record showed that the police witnesses had no enmity or ill will towards the accused and had no reason to falsely implicate him in the present case---In such circumstances, the evidence of the police witnesses could be fully relied upon---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.
Mushtaq Ahmed v. The State 2020 SCMR 474 rel.
(g) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---Minor contra-dictions---Inconsequential--- Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured---Record showed that all the witnesses were consistent in their evidence and even if there were some contradictions in their evidence, same were minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the accused---Evidence of the witnesses provided a believable corroborated unbroken chain of events from the accused being driven in the car of accused/Police Official for a remand hearing accompanied by the deceased and the eye-witness, to the accused acquiring a pistol and shooting the deceased and the eye-witness and escaping, to the accused being arrested in the Punjab in a different case, to the recovery of his pistol to a positive Forensic Science Laboratory Report with the empties recovered at the crime scene---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.
Zakir Khan v. State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel.
(h) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---Accused as a habitual offender---Effect---Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured---Record showed that the accused was already under arrest in a similar type of case in the Province of Punjab and was implicated in many cases in Province of Sindh and in one case had even been handed down a life sentence by the Trial Court which was maintained by the High Court, which indicated that he had a propensity to commit such like crimes and was a habitual offender---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.
(i) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---Defence plea not proved by accused---Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured---Defence case was simply one of false implication by the police based on the fact that the accused was in jail in Punjab at the time of the offence as per his S.342, Cr.P.C statement and that the crime was committed by the deceased co-accused---However, having taken such defence it was incumbent on accused to produce at least some evidence in support of the same which he failed to do---Accused did not give evidence on oath and did not produce any defence witness in support of his defence case or produced any other evidence which could dent the prosecution case---Thus, Court disbelieved the defense case as an afterthought in the face of reliable, trust worthy and confidence inspiring eye-witness and other corroborative/ supportive evidence against the accused which had not at all dented the prosecution case--- Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.
Anwar Shamim v. State 2010 SCMR 1791 rel.
(j) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---Act of terrorism not made out---Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured---Based on the particular facts and circumstances of the present case, it appeared that the intent of the accused was to escape from police custody and in achieving that object he murdered one policemen who was guarding him and seriously wounded another which had no object, intent, purpose or design to create terror which was rather to escape from police custody and as such the accused was acquitted of all offences under the Anti-Terrorism Act---However, his appeal against conviction for other offences was dismissed.
Ghulam Hussain v. State PLD 2020 SC 61 rel.
Nadir Khan Burdi for Appellant (in Special Criminal Anti-Terrorism Appeal No. 159 of 2021).
Muhammad Iqbal Awan, Additional Prosecutor General Sindh for the State (in Special Criminal Anti-Terrorism Appeal No. 159 of 2021)..
Iftikhar Ahmed Shah for Appellant (in Special Criminal Anti-Terrorism Appeal No. 172 and Confirmation Case No. 9 of 2021).
Muhammad Iqbal Awan, Additional Prosecutor General Sindh for the State (in Special Criminal Anti-Terrorism Appeal No. 172 and Confirmation Case No. 9 of 2021).
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