IN THE HIGH COURT OF SINDH, KARACHI
Before:
Mr. Justice Mohammad Karim Khan Agha
Mr. JusticeZulfiqar Ali Sangi
Special Criminal Anti-Terrorism Jail Appeal No.107 of 2019
Appellant : Ghulam Shabbir @ PapiS/o Parvez
Through Mr. Habib-ur-RehmanJiskani, Advocate
Respondent : The State
Through Mr. Muhammad Iqbal Awan
Deputy Prosecutor General, Sindh
Date of Hearing : 01-11-2019
Date of Judgment : 11-11-2019
J U D G M E N T
ZULFIQAR ALI SANGI---J., Appellant filed the instant Criminal Appeal on being aggrieved and dissatisfied with the judgment dated 21.02.2019 passed by learned Judge, Anti-Terrorism Court No.XX, Karachi in (1)Special Case No.35/2019 and (2) Special Case No.35-A/2019 under FIR No.403/2018 for the offence U/s 392/353/324/34 PPC r/w section 7 of ATA, 1997 and FIR No.404/2018 for the offence u/s 23(i)A, Sindh Arms Act, 2013 registered at PS Tipu Sultan, Karachi; whereby the appellantwas convictedand sentenced as under:-
a) Convictedu/s 392/34 PPCand sentenced to undergo R.I. for (05) years and fine of Rs.20,000/-In case of defaultof payment, he shall further undergo S.I. for (03) months.
b) Convicted u/s 7(h) of ATA, 1997 r/w 353 PPC and sentenced to undergo R.I. for (02) years and fine of Rs.20,000/-. In case of default of payment, he shall further undergo S.I. for (03) months.
c) Convicted u/s 7(i)(b) ATA, 1997 r/w section 324 PPC and sentenced to undergo R.I. for (05) years and fine of Rs.20,000/-. In case of default of payment, he shall further undergo S.I. for (06) months.
d) Convicted u/s 23(i)A of Sindh Arms Act, 2013 and sentenced to suffer R.I. for (05) years and fine of Rs.20,000/-.In case of default of payment, he shall further undergo S.I. for (03) months.
However, all the sentences were ordered to run concurrently. The benefit of section 382-B Cr.P.C. was also extended to the appellant.
2. Brief facts of the prosecution case are that on 18.12.2018, ASI Munawar Ali was busy in patrolling around the area alongwith his subordinate staff in official police mobile. During patrolling at about 2330 hours when they reached Pulia near Noor Masjid, Block-6, PECHS, Karachi, they saw one motorcycle on which three persons were available and were snatching some valuables things from one personon gunpoint. After seeing police mobile accused persons started straight firing on the police party with intention to commit Qatl-e-Amd. In retaliation police officials had also made some fire shots to accused persons. During encounter two accused persons managed to escape towards railway track by leaving behind their motorcycle, whereas ASI Munawar Ali succeededin apprehending one accused person on the spot. Upon his personal search, ASI Munawar Ali secured one 30 bore pistol without number alongwith loaded magazine containing 02 rounds in magazine and one round in chamber from his right hand. The apprehended person disclosed his name as Ghulam Shabbir @ Papi S/o Pervez and also disclosed the names of his accomplices as Nazim @ Bakri S/o unknown and Faizan @ Faiz S/o unknown. During this period, the victim who had also come there and introduced himself as Irfan Hayat informed to ASI Munawar Ali that the said apprehended motorcyclist had snatched his Q-Mobile and wallet containing of Rs.150/- and other documents earlier, thereafter ASI Munawar Ali conducted the personal search of apprehended accused in presence of complainantIrfan Hayat as well as other police officials and secured one Q-Mobile and purse containing Rs.150/- and some other documents. Complainant Irfan Hayat identified his purse and Q-Mobile. From his further personal search ASI also secured one Nokia Mobile, thereafter ASI Munawar Ali secured empties from the place of incident and also seized the motorcycle bearing Registration No.KBZ-8016 under section 550 Cr.P.C. The police arrested accused person in the above crimes and brought him at police station, where the present FIRs were registered against him.
3. After completion of investigation of these cases, I.O. submitted his report u/s 173 Cr.P.C. against the present accused. Both Special Cases were amalgamated u/s 21-M of ATA, 1997 on 19.01.2019, Special Case No.403/2019 was treated as leading case. A charge was framed against the accused to which he pleaded not guilty and claimed his trial.
4. In order to prove these cases, prosecution examined (PW-1) Private Complainant Irfan Hayat at Ex.5, who produced memo of arrest and recovery at Ex.5/A, FIR No.403/2018 at Ex.5/B, Qaimi report at Ex.5/C, memo of site inspection at Ex.5/D and sketch of place of incident at Ex.5/E. (PW-2) ASI Munawar Ali examined at Ex.6, who produced roznamcha entry No.45 at Ex.6/A, FIR No.404/2018 at Ex.6/B and qaimi report at Ex.6/C. (PW-3) Inspector Syed Zafar Ahmed at Ex.7, who produced roznamcha entry Nos. 28 & 35 at Ex.7/A & Ex.7/B, letters to Incharge CRO (Photo Finger) at Ex.7/C & Ex.7/D, attested photocopy of CRO of the accused at Ex.7/E, letter to AIGP Forensic Division Sindh Karachi at Ex.7/F, report of FSL at Ex.7/G and photocopy of Koth Register entry at Ex.7/h. Thereafter, learned APG for the State closed the side of prosecution.
5. Statement of accused Ghulam Shabbir S/o Pervez was recorded u/s 342(1) Cr.P.C. at Ex.9, wherein he stated that he is innocent and prayed for justice.
6. The learned trial Court, after hearing the parties and on assessment of the evidence, convicted and sentenced the appellant vide judgment dated 21.02.2019, which is impugned before this Court by way of filing the instant Appeal.
7. Learned counsel for the appellant contended that appellant was involve by police in false case; that fake encounter has been showed by the police; that private complainant was managed by the police; that pistol has been foisted upon appellant by the police and same was not recovered from the possession of appellant; that no one received injury from either side during encounter which proved that it was a fake encounter; that no other private person was made as mashir except complainant; thatFSL report was managed by police; that there are major contradictions in the evidence of prosecution witnesses. He further submitted that prosecution is duty bound to prove its case beyond reasonable shadow of doubt and the present case is not free from doubts.Lastly he prayed that appellant may be acquitted by extending him benefit of doubt.
8. Learned Deputy Prosecutor General contended that appellant is very dangerous and hardened criminal having previous criminal history; that all the prosecution witnesses deposed against the appellant including private person; that this incident was not only of encounter but at first instant appellant along with others committed robbery from complainant ( private person ) and then on arrival of police made straight fire upon police party with intention to commit their murder; that appellant was arrested at spot and robbed articles so also weapon was recovered from his possession; that empties recovered from place of incident and pistol recovered from appellant was sent to fire arm examination unit, such report is against the appellant; that no material contradictions are available in the evidence of prosecution witnesses; that prosecution has proved its case beyond any reasonable doubt.Lastly he contended that trial court has rightly convicted the appellant and prayed that appeal of the appellant may be dismissed.
9. We have heard learned counsel of the parties and perused the material available on the record.
10. Record reflects that complainant namely Irfan Hayat who was independent person having no ill-will against the appellant, appeared before the trial court and deposed that, on 18-12-2018 he was going to Ansari Food, for buying burger, he was intercepted by three persons who were on motor cycle. They snatched Q-Mobile having Sim of Zong and wallet containing Rs: 150/= on gunpoint. He further deposed that meanwhile police party came at spot on seeing police culprits started firing upon them to which also police party replied. During encounter two persons made their escape good leaving their motorcycle, while police arrested one of them at spot who on inquiry disclosed his name to be the present appellant. During search, police recovered 30 bore pistol containing total 03 live bullets and on further search, recovered one Q-mobile andpurse, which was snatched from him ( Complainant ) and one Nokia mobile belonging to accused which were sealed at spot. Accused also disclosed names of escapees as Nazim and Faizan. He deposed that police seized the motorcycle and different empties from place of incident, ASI Munwar prepared such memo of arrest and recovery at spot, thereafter they came at police station where his FIR was registered by ASI Munwar. He deposed that on 19-12-2018 he was called by Inspector Syed Zafar and he went with him at place of arrest and recovery, after visiting the same prepared memo and obtained his signature. He saw the case property and accused in Court and identified them to be the same, he was cross examined at length by the defense counsel but he remained unscathed.
11. The prosecution also examined ASI Munawar Ali who deposed that on 18-12-2018 he was posted as ASI at PS Tipu Sultan, he alongwith other of his staff were on patrol duty when they reached at nearby Masjid-e-Noor when they saw at about 11-30 pm that three persons on motorcycle were snatching some things from one person on gunpoint. On seeing police party they started firing upon police party, during exchange of firing two persons escaped leaving their motorcycle, while one was arrested at spot and one 30 bore pistol along with 3 live bullets were recovered from him. On further search police recovered one Q-mobile and purse having Rs. 150/= which was snatched by accused and was identified by private person to be his property. One mobile of Nokia belonging to accused was also recovered. He further deposed that he collected different empties which were fired by police and accused and recovered property was sealed by him at spot and that the accused disclosed the names of escapees as Nazim and Faizan. He prepared memo of arrest and recovery at spot and brought the accused and property at police station where he registered the FIR NO:403 of 2018 on verbatim of complainant Irfan Hayat and he also registered a separate FIR No: 404/2018 for recovery of unlicensed pistol.He deposed that he then handed over the FIRs, recovered articles and arrested accused to Syed Zafar Hussain Shah for investigation. He on 19-12-2019 went with investigation officer who visited the place of arrest and recovery and prepared such memo and sketch and recorded his statement U/S 161 Cr.P.C, this witness also produced certain documents to prove the case of prosecution. ASI Munawar was cross examined by the defense counsel but his evidence was not shaken.
12. The most important witness of the prosecution was investigation officer; he deposed that on 19-12-2018 he was at P.S Tipu Sultan, when he received the FIRs No: 403 & 404 of 2018 for offence U/S 392, 353, 324 and 34 P.P.C and23 (i) A Sindh Arms Act, for investigation, he checked the custody of accused and recovered property, called the complainant and other witnesses, proceeded towards place of incident along with witnesses, inspected the same and prepared the memo and sketch of the wardat. He recorded statements of witnesses U/S 161 Cr.P.Caccordingly and called in charge photo finger for conducting photo finger through CRMS. He sent recovered pistol and bullets to FSL for examination, collected the reports, he also produced certain documents including FSL report in support of his evidence. This witness was cross-examined by the defense counsel but his evidence remained unshaken.
13. We have carefully examined the evidence of prosecution witnesses including the cross-examination conducted on behalf of the appellant. We do not find any dent in their evidence though they were cross-examined at some length. The defense taken by the appellant that police arrested him on 16-12-2018 from near the FTC building, when he refused to hand over to them pigeons as a bribe which led to them fixing him in this false case is completely unbelievable. Such plea also has no force for the reasons that, no application or petition was filed against police officials that they arrested and detained the appellant from 16-12-2018 to 18-12-2018, nor a single Question/ suggestion was put from Irfan Hayat who is private person and from investigation officer who is responsible police officer about arrest on 16-12-2018.No ill-will or mala fide are also suggested against the complainant and other witnesses.
14. We have also noticed that investigation officer collected CRO of appellant as he was previously involved in the criminal cases.Such record was produced by the investigation officer before the trial court and was not denied by the appellant at trial stage nor before this court. The history of criminal record as produced by the investigation officer before the trial court in his evidence is as under:-
1. FIR No: 392/2008 U/S 380,457 of P.S Saddar Karachi.
2. FIR No: 71/2013 U/S 23(i) A, Sindh Arms Act of P.S Saddar.
3. FIR No: 362/2013 U/S 353,324 of P.S Saddar Karachi.
4. FIR No: 162/2014 of P.S Bridge, Karachi.
15. It is well settled principal of law that Police officials are as good as private witnesses and their testimony could not be discarded merely for the reason that they are police officials, unless the defense would succeed in giving dent to the statements of prosecution police witnesses and prove their mala fide or ill-will against accused. It is matter of record that no suggestion against the police officials of enmity or ill-will was made during cross-examination nor any application or petition against them was filed before any forum. The defense taken on behalf of appellant that he was arrested by the police because he refused to hand over pigeon as bribe as mentioned earlier is not believable. In the presence of above criminal record and in absence of any application against police officials. Furthermore, no enmity has been suggested from private person/victim of the incident, who has no ill-will against appellant and was independent and had no reason to falsely implicate the accused in this case.
16. Based on the above discussion, we do not find any merit in the instant appeal, therefore, the impugned judgment dated 21.02.2019 is upheld and the convictions and sentences awarded by the trial Court to the appellant are hereby maintained and the appeal is dismissed.
JUDGE
JUDGE