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Petitioner: ARBAB ALI and another VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Salahuddin Panhwar, Shahnawaz Tariq Title: ARBAB ALI and another vs The STATE Case No.: Cr. Spl, A,T.A. No.D-66 of 2005 Date of Judgment:2015-04-29 Reported As: 2016 P Cr. L J 1 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' SALAHUDDIN PANHWAR, J.---Through captioned appeal, appellants have assailed judgment dated 27th April 2005 thereby they were convicted under section 393, P.P.C. Read with section 6(2)(d) of the Anti-Terrorism Amendment Ordinance, 2001 and sentenced to suffer under section 7(b) of the Anti-Terrorism (Amendment) Ordinance, 2001 R.I for a term of (5) Five years with fine of Rs.50,000/- each. Both the accused named above were also found guilty under section 302, P.P.C. Read with section 6(2)(a) of the Anti-Terrorism (Amendment) Ordinance, 2001 and thereby they are punished under section 7(a) of the same Ordinance and sentenced for Life Imprisonment and also with fine of Rs.1,00,000/- to be paid to the legal heirs of the deceased. In default of payment of fine R.I. For one year more each to suffer. Benefit of section 382-B, Cr.P.C. Was extended. 2. Precisely, relevant facts are that all the accused persons armed with pistol had made attempt to commit robbery of the motor cycle belonging to Muhammad Ajmal son of Muhammad Sharif Arain who was going along with his companion P.W. Ghulam Razzak to Sanjar Chang, due to resistance the accused persons caused pistol shot injuries to Muhammad Ajmal Arain who after sustaining fire arm injuries expired. The accused persons thereafter, run away along with their associate Nazir Ahmed who was injured at their hands during the course of firing. It is also the case of the prosecution that accused persons had committed robbery of Rs.2000/- from the possession of complainant Ghulam Razzak. Accused persons while committing this offence had created sense of terror, insecurity amongst the people of the locality; Accused were subsequently arrested during the course of investigation and then they were challaned. 3. To substantiate the charge, prosecution examined following witnesses:
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' PW-1 Dr. Athar Arain as Exh.11. He produced post-mortem report of deceased Muhammad Ajmal as Exh. 11-B. P.W-2 ASI Muhammad Nadeem Arain as Exh.12. He produced FIR of this case as Exh.12-A. P.W.3 Muhammad Saleem as Exh.13 (mashir for the recovery of the crime weapon). He also produced Mashirnama of recoveries as Exh.14. PW-5 Complainant Ghulam Razzak as Exh.15. P.W-6 Muhammad Afzal Arain as Exh.16. P.W-7 Niaz Muhammad SIP/ITO as Exh. 18. He produced mashirnama for the arrest of accused Karim Bux. PW-8 Abdul Rasheed as Exh.19. He produced photo copy of the recovery of the pistol as Ex.19-B and photo copy of the identification memo as Exh. 19-A. P.W-9 Muhammad Jahangir Civil Judge and Judicial Magistrate Digri as Exh.21. He produced the identification memo as Exh.21-C regarding accused Arbab Ali and regarding accused Nazir Ahmed as Exh.21-F. 164, Cr.P.C. Of P.Ws Shoukat Ali Exh. 21-G and Afzal as Exh.21-H, identification memo, regarding accused Karim Bux as Exh.21-K. P.W.-10 Maqsood Alam as Exh.22. He produced mashir for the dead body of Muhammad Ajmal Arain as Exh.22-A; inquest report as Exh.22-B and lash chakash form as Exh.22-C, mashirnama of the cloths of deceased Ajmal as Exh.22-D, mashirnama for the place of occurrence as Exh.22-E, mashirnama for securing of the motor cycle of the deceased Muhammad Ajmal as Exh.22-F, Mashirnama for the arrest of accused Nazir who was injured condition as Exh.22-G, mashirnama for the clothes of the injured Nazir as Exh.22-H, mashirnama for the arrest of accused Arbab Ali as Exh.22-I, mashirnama for the arrest of accused Shoukat as Exh.22-J. PWHussain Khan, Tapedar as Exh.24. He produced map of the place of occurrence as Exh.24-B along with letter of the Mukhtiarkar as Exh-24-A. PW-11 SIP/ITO Muhammad Akram I.O. As Exh.25. He produced receipt of the dead body of deceased Ajmal as Exh.25-A. He also produced mashirnama for the recovery of the crime weapon secured from the possession of accused Arbab Ali, in the shape of photo stat copy as Exh.25-B. He produced chemical analyzer report as Exh.25-C, ballistic expert report as Exh.25-D. Learned Addl. SPP closed the prosecution side vide his statement as Exh.26. 4. The statement of accused persons Karim Bux and Arbab Ali were recorded under section 342, Cr.P.C. As Exhs.27 to 28 respectively wherein they denied all allegations against them. They neither examined themselves on oath nor led any defence in dis-proving of the allegation of the prosecution though chance was given to them. 5. At the outset, learned counsel for the appellants raised issue of jurisdiction. Per learned counsel allegedly deceased was murdered during robbery, therefore, in view of case of Ishaq Ali v. The State [2013 PCr.L.J 1808] decided by the Divisional Bench of this Court; matter falls within the scope of personal gain and in identical case it was observed that such type of offence lacks the ingredients of terrorism as provided under Section 6 of Anti-Terrorism Act, 1997. It is further pleaded that except PW Abdul Razzak remaining two witnesses of ocular account are chance witnesses and thus witnesses have failed to prove their presence cogently, hence cannot be relied upon. Photocopy of mushirnama was produced which cannot be relied upon under Qanun-e-Shahadat Order, 1984; ocular account is based on identification parade but it is matter of record that such identification parade does not fulfill the requirements of Article 22 of Qanun-e-Shahadat Order, 1984 and Criminal Circulars, as description of dummies and their parentage was not furnished, moreover accused persons were in handcuffs, specific role was not assigned; the alleged crime weapons were recovered from open area, as allegedly owned by Karim Bux was not sealed nor sent to FSL hence recovery is doubtful. There are material contradictions in ocular account; witnesses have improved their statements hence they cannot be turned as trustworthy witnesses. In support of his contentions he has relied upon the decisions in the following cases: (1) Ishaq All v. The State [2013 PCr.LJ 1808] (2) Bashir Ahmed v. Muhammad Siddiqui and others [PLD 2009 Supreme Court 11]. (3) Muhammad Saleem v. The State and others [2002 PCr.LJ 216]. (4) Ch. Bashir Ahmad v. Naveed lqbal and 7 others [PLD 2001 Supreme Court 5211.
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(5) Ahmed Jan v. Nasurllah and others [2012 SCMR ,59]. (6) Tartq Mahmood v. The State [2008 SCMR 1631]. (7) Sultan ,Muhantmad alias Bacha Khan v.The State [2008 SCMR io30, (8) Mohabbat Alliand another v. The State and another [2007 SCMR 142]. (9) Umer Farooque and 2 others v. Judge, Anti-Terrorism Court, Mirpurkhas and another [2014 PCr.LJ 1052]. (10) Ahmed Shah and another v. The State [2003 YLR 1977]. (11) Hazoor Bux and another v. The State [PLD 2012 Sindh 469]. (12) Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik and others [PLO 2007 Supreme Court 571]. (13) Murad All v. The State [2007 SCMR 146]. 6. Conversely, learned A.P.G. With the assistance of complainant's counsel argued that original mushirnama was produced in 13-D case which was offshoot of this case; identification parade is mere formality, even identification in Court is permissible under the law hence trial Court has rightly convicted the appellants. In support of his contentions he has relied upon Muhammad Ehsan v. State [2006 SCMR 1857] and Naik lviuhammad alias Naika v. State [2007 SCMR 1639]. 7. Since the question of maintainability and applicability of the sections 6 & 7 of the Act have been insisted strongly by the learned counsel for the appellants , therefore, we feel it proper in all fairness to examine this aspect first. Since on this point, the case of Mirza Shoukat Baig v. Shahid Jamali (PLD 2005 SC 530) is the leading case thus it would Be just and proper to first see what guidelines were sketched for determination of application of the sections 6 and 7 of the Act. 8. At this juncture, it is also material to refer the facts/allegations of the case of Shaukat Baig (supra) as the learned counsel for the appellants in this case have put much stress that since alleged offence in the instant appeal was one of 'personal gain' hence sections 6 and 7 of the Act were never applicable. To have a reference of the allegations/facts of Shaukat Baig case, the relevant paras of the Judgment (supra), being material, is referred hereunder:- "3. It is also contended that in an open Bazar at about 9.15 a.m in the thickly populated area on a thoroughfare, nine persons armed with fire-arm weapons, made indiscriminate firing, committed murder of four persons and also committed dacoity in the tune of rupees two crores ................." (underlining has been supplied for emphasis) ' From above, it appears that the ultimate intention, prima facie, was one of 'dacoity'. The para-4 of the above judgment to make view clear is referred hereunder:- '4. Raja Muhammad Arif,................ that the alleged offence was not preplanned one to create terror which is sine qua non for invocation of the provisions as contained in section 6 of the Act. The learned counsel has laid much emphasis on the words 'designed to' as used in section 6(1)(b) of the Act which according to learned counsel means deliberate and intentional act to create terror and according to learned Advocate Supreme Court no evidence worth the name has come on record inferring that the alleged offence was committed knowingly and with deliberate intention to create a sense of fear or insecurity in the society. (Underlining is provided for emphasis) ' The above portion makes it clear that questions, in said Judgment, were application of sections 6 and 7 of the Act, keeping in view the facts/pleas i.e.:- (i) offender was not pre-planned which was claimed to be sine qua non for application of section(s) 6 & 7 of the Act; (ii) the offence was claimed to be not committed with any deliberate intention to create a sense of fear or insecurity; (iii) no evidence came on record (in said case 20 witnesses were examined when this issue was raised) to establish that offence was committed with an intention to create a sense of fear or insecurity;
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9. It is pertinent to mention that 'offences', referred in section 6(1)(a) to (c) and subsection (2)(a) to (h), (j) to (p) have been defined by the legislatures themselves hence all such offences, falling within such four-corners, shall need no debate or scholarly work for holding them (offences) to be triable by the Special Court. We are clear in holding so, within guide-lines, provided by the Honourable Supreme Court in said judgment while out-lining the scope of 'interpretation' as:- 12. Where the language of the section is clear; the preamble cannot control its provisions. It will not qualify enactment which in itself is clear an unambiguous. The preamble cannot either restrict or extend the enacting part, when the language and the object and scope of the Act are not open to doubt. In short the general rule is that the express provision of an enactment, if it is clear and unambiguous, cannot be curtailed or extended with the aid of the preamble, but when the object or meaning of certain provision is not clear then it is perfectly legitimate to have recourse to the preamble to explain it. The preamble of the statute has been said to be a good means of finding out its meaning, and as it were a key to the understanding of it. Of course it does not mean that if there are express provisions in the Act which go beyond what has been briefly stated in the preamble the express provision will not prevail. But the provision of the Act has to be read in conjunction with the preamble in order to arrive at a finding as to what was the purpose of the legislation'. (Underlining has been provided for emphasis) 10. Thus, it would be significant to state that application or misapplication of the section 6 or 7 of the Act always was/is with reference to subsection (2)(i) of the section 6 of the Act which reads as:- 'creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coining out and carrying on their lawful trade and daily business, and disrupts civil life' ' The Honourable Supreme Court in case of Shaukat Baig (supra) defined said provision as:- 11. 'After having gone through the provisions as contained in section 6 of the Act we are of the firm opinion that 'terrorism' means the use or threat of 'action' where the 'action' falls within the meaning of subsection (2) of section 6 of the Act and creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil life shall amount to terrorism as ' enumerated in section 6 of the Act............. ' Per above, the Honourable Supreme Court defined the term 'terrorism' within meaning of subsection (2) of Section 6 of the Act, if the 'use of threat of 'action': (i) creates a serious risk to safety of the public or a section of the public; OR (ii) is designed to frighten the general public and thereby prevents' them from 'coming out', 'carrying on their lawful trade, 'daily businesses' or disrupts 'civil life' From the above, it makes the intention of the legislature clear that insertion thereof was to cover all such acts/omissions (offences) which are not covered by section 6(1)(a) to (c) and subsection (2) (a) to (h), (j) to (p) of Act, which regardless of sections applied, are found falling within four- corners of subsection (2)(i) of the Act. The first part may be pressed where complained offence is claimed to have created a 'serious risk to safety of the public' or 'a section of the public' which claim would require establishing such fact but the second part would stand attracted if the gathering circumstances justifies that complained action was designed to frighten the public resulting in preventing them from 'coming out', 'carrying on their lawful trade', 'daily businesses' or disrupting 'civil life'. The deliberate use of the terms 'frighten public' is of significance and it cannot be logically believed that to prove this the prosecution was to bring 'public' into witness box but the
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nature and impact of the complained offence was to be examined by the Court on basis whereof the intention of the accused shall be determined. 11. To strengthen our view, we would like to refer the relevant portion of the judgment of Shaukat Baig (supra) wherein Honourable Supreme Court defined the word 'designed to' as:- '16 ...........The words 'designed to' as used in section 6 of the Act do not mean that the offence must be committed with the intention to create terror, sensation or insecurity but it depends upon the nature of the offence and its result on the basis whereof intention of the offender could be determined..' It was further held that: "23. Where a criminal act is designed to create a sense of fear or insecurity in the mind of the general public that can only be adjudged by keeping in view the impact of the alleged offence and manner of the commission of alleged offence....." ' Worth to add here the terms 'carrying on their lawful trade', 'daily businesses' or disrupting 'civil life' are of significance hence if the complained action appears to have resulted in 'frightening' the public from any of the above guaranteed fundamental rights, such act (offence) shall fall within meaning of the 'terrorism': in case of Shaukat Baig, the offence complained i.e. Murder and dacoity was held to be an act of 'terrorism' but considering nature, manner and impact thereof. 12. We can safely add with reference to deliberate used terms 'coming out, 'carrying on their lawful trade', 'daily businesses' or disrupting 'civil life' are purposeful which has got no direct relevancy of the offence, committed by the accused upon the victim, but these speak about consequences and impact thereof upon public though the 'public' js not direct victim of the offence or the benefit, drawn by the accused from such offence. Any offence, regardless of its direct effect upon victim, if results in preventing the public from either of their (public's) guaranteed fundamental rights which are: (i) 'coming out without any fear of harm/injury; (ii) 'carrying on their lawful trade without any fear of harm/injuiry', (iii) 'doing their daily businesses without any fear of harm/injury' (iv) or disrupting their 'civil life' ' Besides, suffice to say that every offence, not covering by section 6(1)(a) to (c) and subsection (2) (a) to (h), (j) to (p) of Act, are done/committed for 'personal gains' whether it be a 'dacoity', 'robbery', ' killing (if same is not on plea of enmity) and even 'street crimes' therefore, if it is stamped that an offence, claimed to be for personal gain, shall exclude application of the Act' then it shall amount to eliminating the 'object' and 'purpose' of said Act. Thus, we are not in agreement with the conclusion, drawn in the referred cases of Hazoor Bux and another v. The State and another (PLD 2012 Sindh 469) and that of Ishaq Ali v. State (2013 PCr.LJ 1808). 13. In the instant case, the place of incident is a 'road' (a place in constant and frequent use of public) where the accused persons without any previous enmity attempted to rob/snatch the motorcycle from deceased (one of the users of such road) and on resistance by deceased they without any hesitation caused fire arm injuries (which could be inferred as an act to create a fear among such victims that in case of any resistance they shall meet same fate, which was also claimed by the prosecution). Thus, if the gathering circumstances are considered within permissible criteria it leads to an impression that though the ultimate object of the accused persons was to rob, may be for personal gain, but the manner in which they acted was nothing to frighten the public that in course of such acts (road robbery/dacoity) if resistance is offered then victim shall be done to death. This, in all senses, was designed so hence would fall within meaning of 'terrorism so was rightly found by the learned trial Court. ' In referred case of `Mohabbat Ali and another v. The State and another' (2007 SCMR 142), it was held that:
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"8. In order to determine as to whether an offence would fall within the ambit of section 6 of the Act, it would be essential to have a glance over the allegations made in the FIR, record of the case and surrounding circumstances. It is also necessary to examine that the ingredients of alleged offence has any nexus with the object of the case as contemplated under sections 6, 7 and 8 thereof. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said Act is to be seen. It is also to be seen as to whether the said Act has created a sense of fear and insecurity in the public or any section of the public or community or in any sect. Examining the case in hand on the above touchstone, it is manifest on the face of it that the alleged offence took place because of previous enmity and private vendetta. The incident admittedly took place inside the fields of sugarcane and Banana cultivated in jungle about 14/15 miles away from the main road. Motive as defined in the FIR is also to be given a specific attention which indicates that there was a personal enmity between the parties over the land and murder case of Haries of complainant." (underlining is supplied for emphasis). ' The said offence of 'murder' was held to be not falling within meaning of 'terrorism' on two counts i.e.: (i) offence was committed in a sugar can crop and Banana cultivated in Jungle about 14/15 miles away from main road; (ii) there was a personal enmity between the parties; Since existence of element of 'personal enmity' is always a sign for public to take the offence as result of settling personal score between two (Parties) and 'public', being not party thereto need not be such acts of settling personal score, hence this case is distinguish from the facts of the case. ' The referred case of Bashir Ahmed v. Muhammad Siddique (PLD 2009 SC 11) was also having the motive as 'enmity inter se' hence the facts of the case are also distinguishable from the one in hand. The facts of the case of 'Tariq Mahmood v. The State and another (2008 SCMR 1631), are also distinguishable from the instant one hence not helpful for accused on this point. 14. Now, we shall revert to the merits of the instant matter. In the instant matter the cause of death of the deceased to be result of firearm injury is not disputed as the same stood affirmed from medical evidence and even is not disputed by the defence. Thus, this aspect of the matter needs not be discussed any further. 15. Before going into the details of the merits of the case, we would like to examine the legal value of identification parade and principles settled down in series of decision, falling within the scope of stare decisis. It is settled proposition of law that question of identification parade only comes into play when the witness of an incident makes two claims i.e. (1) he saw an unknown accused committing the crime (2) he can identify the accused on seeing again. 16. The duty of the witness/prosecution does not come to an end only by saying that "it is the man" but continues unless he/prosecution establishes that "it is the man who committed the offence" because the prosecution is always duty bound not only to prove the happening of the incident but that it was the accused who committed the offence. This has been the object because of which it is always insisted that witness, claiming to have identified/picked the accused, should also specify the role played by such identified/picked person in commission of offence. However, we are also conscious of the legally established principle of law that the law should not be static but it should move along with the times to meet all the present and further situations, circumstances and challenges. Therefore, views to examine the delay in identification parade, joint identification parade, number of dummies and nondisclosure of role, have also undergone certain changes, clarification and modification. 17. Here, it is noteworthy to add here that identification by a witness, who has seen the crime at some distance and a witness, who himself is victim makes the difference, we have no hesitation to
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say that in case of abduction or robbery, or hurt a witness who has direct nexus with the incident, and claims that incident lasted upto considerable time, has significant value. If he is stuck with his claim upto his evidence before trial court, such evidence cannot be ignored on minor irregularities, found in identification parade, or any lacuna on the part of investigation. 18. Having discussed above, now we would like to examine the ocular evidence, brought on record through statement of witnesses before police, identification parade before Magistrate during investigation and thereafter in trial court to weigh this piece of evidence i.e. Identification which, relates to the offence. The complainant PW Ghulam Razzak, PW Shoukat and Muhammad Afzal have been examined to prove this aspect as they all claimed to have seen the accused persons committing the crime. These witnesses in their evidences categorically claimed that: (i) they saw incident; (ii) they saw accused persons (unknown persons); (iii) claimed to properly picked them in 'identification parade'; (iv) they identified the convicts in the court during their examination; Such claim of these witnesses was not denied by the defence and even the defence did not come with any such suggestions which is evident from cross examinations of these witnesses which is:- PW SHOUKAT ALI "It is incorrect that Police had informed me to appear before the ld. Magistrate for identification I had not seen these accused persons earlier, to the identification parade. It is incorrect to suggest that accused persons were shown to us earlier by the police and then we had identified the accused. It is incorrect that all the mashirnama of identification were prepared at the P.S It is incorrect to suggest that I am depositing falsely because I am Arain and complt. Is Arain." PW Ghulam Razzak (complainants) 'Deceased ................................ There were 10 dummies at the time of identification test regarding injured accused Nazir. Police of PS Digri had informed us for appearance. It is fact that police had taken us in the same mobile van along with P.Ws. It is fact that I am by caste Arain and P.Ws Afzal and Shoukat are by caste Arain. It is incorrect to suggest that the involvement of the present accused by me is false. In the FIR I had…
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