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Official Citation: 2024 MLD 762
Court / Jurisdiction: Sindh High Court
Year of Decision: 2020
Decision Date: 2020-12-23
Parties: Anwar Faheem alias Anoo alias Zeeshan vs The State
Ruling Summary: This decision was rendered by the Sindh High Court on 2020-12-23, officially reported as 2024 MLD 762. In this matter between Anwar Faheem alias Anoo alias Zeeshan and The State, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 MLD 762
Court Name: Sindh High Court Judge(s): Nazar Akbar, Zulfiqar Ahmad Khan Title: Anwar Faheem alias Anoo alias Zeeshan vs The State Case No.: Special Crime Anti-Terrorism Appeals Nos. 317 and 318 of 2019 Date of Judgment:2020-12-23 Reported As: 2024 MLD 762 Result: Appeals allowed
JUDGMENT
JUDGMENT ZULFIQAR AHMAD KHAN, J. Appellants Anwar Faheem alias Anoo alias Zeeshan son of Faheemullah and Khurrum Mustafa son of Muhammad Ajaib were tried by learned Judge, Anti-Terrorism Court- VI, Karachi in Special Case No. 163 of 2011 [Crime No. 544 of 2011, under section 302/34 P.P.C. read with Section 7 of ATA 1997] at P.S Gulshan-e-Iqbal, Karachi and in Special Case No. 167 of 2011 [Crime No. 463 of 2011, under section 13(d) of Arms Ordinance, 1965), registered at P.S. Quaidabad, Karachi. On conclusion of the trial, vide judgment dated 28.10.2019, the appellants were convicted and sentenced as under:- 1) Accused Anwar Faheem is convicted in bearing Crime No.544/2011, under section 302(b) P.P.C. and he is awarded death sentence as hanged till to his death with compensation of Rs.200,000/- to be paid to the legal heirs of the victim. 2) Accused Khurrum Mustafa is convicted in bearing Crime No.544/2011, under section P.P.C. and he is awarded death sentence as hanged till to his death with compensation of Rs.200,000/- to be paid to the legal heirs of the victim. 3) Accused Anwar Faheem is convicted in bearing Crime No.544/2011, under section 7(1)(a) ATA, 1997 and he is awarded death sentence, to be hanged till his death. 4) Accused Khurrum Mustafa is convicted in bearing Crime No.544/2011, under section 7(1)(a) ATA, 1997 and he is awarded death sentence, to be hanged till his death. 5) Accused Anwar Faheem is also convicted in bearing Crime No.463/2011 under section 13(d) Arms Ordinance, 1965 and he is sentenced to undergo for R.I. 07 Years with fine of Rs.10,000/- and in case of default in payment of the fine then he shall suffer a simple imprisonment of another six months.
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6) Benefit of Section 382-B, Cr.P.C. was also extended to accused. 2. Brief facts as per the Crime Report No.544 of 2013 [Exh.18/J] are that on 25.07.2011 at about 2345 hours, informant Syed Anwar Shah reported the matter to police alleging that his brother Sabir Shah on 24.07.2011 with his friend Muhammad Shareef in his car bearing No.ARH-363, Make Mira, silver colour, proceeded to meet his friends. At about 1200 hours at midnight by telephone, the complainant received information that his brother and his friend had been killed near Gulshan Degree College, Block-07, Gulshan-e-Iqbal, at about 11:15 p.m. by some unknown persons, riding a motorcycle. The complainant instantly went to Jinnah Hospital and found dead bodies of his brother Sabir Shah and his friend Muhammad Sharif, who had sustained fire arm injuries at different parts of their bodies. Hence, the FIR was lodged against the unknown persons. 3. After usual investigation, challan was submitted against the above accused under the aforementioned sections and trial court framed charge against the accused at Exh.06, to which the accused pleaded not guilty and claimed to be tried: 4. At trial, prosecution examined as many as twenty witnesses in order to prove its case. Thereafter, prosecution side was closed. 5. Statements of accused Anwar Faheem and Khurrum Mustafa under Section 342 Cr.P.C. were recorded at Exhs.47 and 48, wherein the accused denied all the incriminating pieces of prosecution evidence brought against them on record and claimed false implication in these cases and stated that crime weapons have been foisted upon them, all the witnesses are untruthful, interested and inimical to them and declined to give statement on oath. In a question what else you have to say, they replied that they were innocent and had done no offence, prayed for justice. 6. Trial Court after hearing the learned counsel for the parties and assessment of the evidence, vide judgment dated 28.10.2019 convicted and sentenced the appellants as stated above. Hence these appeals. 7. Before dealing with the instant case and assessing the evidence before us it is relevant to mention that initially co-accused Noman Azeem, Rashid alias Chamber and Asif Qasmani were acquitted by extending them benefit of doubt under section 265-H(i) Cr.P.C. 8. Learned counsel for the appellants contended that the impugned judgment is illegal, unlawful, arbitrary and is unwarranted by law. He further contended that there is no strong evidence against the appellants/accused and they cannot be convicted on the basis of prosecution evidence. He further argued that no such incident took place and police has managed a flimsy story in the said FIR, He further contended that learned trial court did not consider the discrepancies and contradictions in the statements of PWs while deciding the case against the present accused and the learned trial Court has failed to appreciate that no alleged weapon has been recovered from the possession of the appellants and the alleged recovery totally foisted upon them. He also contended that the learned trial court has erred in holding that the prosecution has proved the case against the appellants while there was contradictory evidence, which is not trustworthy due to material contradictions and conviction handed down to the appellants is illegal and the same is result of mis-reading of facts and evidence on the record. Learned counsel further contended that the appellants are innocent and have falsely been implicated in these fake and managed cases. He further contended that the learned trial court has miserably failed to appreciate the evidentiary value of evidence and also failed to prove the case beyond any shadow of doubt, so also, there is no FSL report till date available. Learned counsel for the appellants contended that the prosecution has failed to cite any private witness in this case. Lastly, learned counsel has prayed for acquittal of the appellant. In support of his contentions, learned counsel has relied upon the cases of Muhammad Asif v. The State [2017 SCMR 486], Muhammad Pervaiz v. The State [PLD 2019 SC 592], Notice to Police Constable Khizar Hayat (PLD 2019 SC 527), and unreported judgment passed by this Court in Criminal Appeal No. 150 of 2016 [Khurrum Mustafa v. State].
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9. Learned Additional Prosecutor General while supporting the impugned judgment contended that sufficient incriminating evidence is available on record connecting the appellants with the commission of crime and prosecution has examined 20 PWs and they have fully implicated the accused in the present crime. She further argued that police officials had no enmity to falsely implicate the present accused in this case and trial court has rightly convicted the accused. She prayed for dismissal of the present appeals. 10. We have carefully heard the learned Counsel for the parties and scanned the entire evidence available on record. 11. At the trial, prosecution examined PW-01, Javed Iqbal Malik, Civil Judge, [Exh.141, who has conducted identification parade in the case and produced the Memo as Exh. 14/A and CNIC of witness Masroor Hussain as Exh.14/B. He has not been cross examined though chance was given. 12. PW-2, SIP Shahnawaz Khan, [Exh.18] deposed that he was posted as SIP at PS Gulshan-e-Iqbal, Karachi, in the Investigation Branch. On the same day, at about 2320 hours, one Babar called through cell phone at PS Gulshan-e-Iqbal that two unknown persons on motorcycle fired upon the car bearing registration number ARK-363 Meera, silver coloured at Gulshan Degree College, main gate, and as a result thereof two persons sustained bullet injuries and died and dead bodies were lying there. He further stated that he inspected the dead body of Ghulam Sabir Shah son of Ghulam Shah in presence of ASI Asir and Zubair and prepared such Memo in their presence, which he produced as Exh.18/E. He has further stated that on 25.07.2011 at 2300 hours, he went to the house of Anwar Shah, the brother of the deceased for recording his statement under section 154 Cr.P.C. which he produced as Exh.18/1 and subsequently he registered the FIR No.544/2011 under section 302/34 P.P.C., which he produced as Exh.18/J. During his cross-examination he admitted that he reached within five minutes at the place of incident and Babar did not meet with him at the place of incident, he did not inquire from the people of the locality on arrival at the place of incident and he had not mentioned the source of light for preparation of the memo at the place of incident in memo of seizure, he had not mentioned the engine and chasis number of the Meera Car in Memo of Seizure, further admitted that he had not mentioned the facts of any damage to the Meera Car in the Memo of Seizure and he did not make entry while leaving the PS for house of complainant as to record his statement and complainant did not nominate any accused in FIR and I.O. did not take any photograph at the place of incident and no sketch of the place of incident was prepared by I.O. in his presence, no private witness was accompanying I.O. at the time of inspection of the place of incident and the place of incident was surrounded with residential houses and I.O. did not inquire from the chowkidar of the College, further admitted that there was no signature of the mushirs on the sealed parcels and he had not mentioned the numbers of the empties in memo of seizure and neither he had mentioned the date upon the sealed parcel nor particular place of sealing upon the parcel and he had not mentioned the registration number of the ambulance in memo. 13. PW-03 Shaikh Anwar Shah [Exh.20] deposed that on 24.07.2011 at about 2315 hours, he was present at his house, he received information that his younger brother Sabir Shah along with his friend Shareef son of Zareef had been murdered by some unknown persons behind Gulshan Degree College. The culprits were on two motorbikes. Upon which he along with his other-brother rushed towards JPMC where he had seen the dead body of his brother and his friend. He had also seen the fire arm injuries appearing on the body of his brother viz. at the head, neck and stomach. Police recorded his statement under section 154 Cr.P.C and on the next day I.O had recorded his statement under section 161 Cr.P.C. 14. PW-04 Masroor Hussain [Exh.22] deposed that on 24.7.2011 at about 11:00, he along with his friend Faiz Muhammad went to Block-7 at Al-Jannat Restaurant, Gulshan-e-Iqbal to have dinner by car. When they reached and parked the car, they got out and saw a friend of him namely Sabir Shah
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and his companion were being manhandled and dragged by some unknown persons who then forcibly put them in a silver coloured Mira Car and drove away. They were shocked and returned to their home. He also stated that on the next morning, he read in daily Janbaz and also saw their photos that the two persons who were murdered at night were actually Sabir Shah and his companion. He then collected address of Sabir Shah from his show room and then went over but found that his family had gone to their native village for funeral. He produced true copy of his statement recorded under section 164 Cr.P.C. as Exh.22/A before the Magistrate. During his cross- examination he admitted that the place of incident was a populated area and a busy commercial one, he did not ask contact number of the family members of the deceased from anyone in the neighborhood when they had gone for funeral and he had not mentioned the specific distance from where he witnessed the incident and in his statement under section 161 Cr.P.C. neither the license plate number of his car nor of the silver car has been mentioned and in his statement under section 161 Cr.P.C. it was not mentioned that whether the accused persons were armed with weapon so also their description has also not been mentioned and further admitted that ammunition recovered by the police was shown to him at PS and they disclosed that the weapons viz. KK was recovered from accused Khurram Mustafa and TT Pistol from accused Anwar Faheem. 15. PW-05 Inspector Tariq Ali [Exh.23] deposed that on 04.08.2011, he was posted as SIP at PS Gulshan-e-Iqbal, Karachi, in Investigation Branch. On the same day, he was entrusted with the investigation of Crime No. 544/2011 of PS Gulshan-e-Iqbal through letter dated 04.08.2011, which he produced the same as Exh.23/A. He has also produced site sketch as Exh.23/B, bears his signature. On return to the PS, he recorded statement under section 161 Cr.P.C. of the complainant and eye witness Mansoor Hussain. On 06.09.2011 he sent crime empties and recovered weapon to the FSL through letter which he produced as Ex.23/E. He also produced FSL report dated 08.09.2011 as Exh.23/F. During his cross-examination he admitted that he had not produced any entry showing that he had left the PS for visiting the place of incident where he verified the sketch so prepared by PI Sultan Nawaz and Exh.23/B did not bear round stamp of PS Gulshan-e-Iqbal and on information he had proceeded to Crime Branch Landhi-2 and he did not ask any private person to accompany him and be a mashir, further admitted that he did not associate any official of the Crime Branch Landhi-02, to be mushir of formal arrest and in Exh.23/J, accused Anwar Faheem has not given any description of his accomplices, and he had exhibited carbon copy of the entries in Exh.23/I and in Exh.23/I, there was no signature of any official on the round seal of Crime Branch, Landhi02 and he had proceeded to PS Sachal, he did not ask any private person to accompany him and be mushir and he did not associate any official of PS Sachal, to be mushir of formal arrest and after making entry of serial No.105 in the daily diary, entries bearing Nos. 106,107 and so on, were also incorporated. Exh.23/K, was a carbon copy which only shows the entries related to him, whereas the daily roznamcha diary has all the entries written fairly, in serial wise sequence and in Exh.23/K, there was no signature of any official on the round seal of PS Sachal, and in Exh.23/M, the entry number was not mentioned, and the mode of conveyance so used was not mentioned in Exh.23/M, and no official of PS Sachal has been associated as mushir in Exh.23/M and in Exh.23/N, the entry number was not mentioned. 16. PW-06 SIP Muhammad Aslam [Exh.27] deposed that on 07.10.2011 he was posted as SIP at PS Gulshan-e-Iqbal in Investigation Branch. On the same day, he received the investigation of 'FIR No.544/2011 along with police papers. Accused Khurram Mustafa and Anwar Faheem were locked up at the PS. On 13.10.2011, he interrogated both the accused. During interrogation, accused Khurram Mustafa disclosed that the weapon he used in commission of the offence had been recovered by PS Sachal. Whereas accused Anwar Faheem disclosed that the weapon he used in the commission of the offence had been recovered by the crime branch Quaid Abad, Karachi. He made interrogation [entry No.38], which he produced as Exh. 27/A. During his cross-examination he
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admitted that Exh. 27/A did not mention the number of police mobile nor the personnel who went along. They had reached PS Sachal on 13.10.2011 at 1920 hours and as per Exh.23/M, no witness of PS Sachal has been associated and no personnel of Crime Branch Landhi was associated as mushir. 17. PW-07 HC Muhammad Rafiq [Exh.281 deposed that on 24.07.2011, he was posted as HC at PS Gulshan-e-Iqbal, Investigation Branch. On the same day, duty officer received information that an abandoned car with a couple of dead bodies in it was available at the back side of Gulshan College, Block-7, Gulshan-e-Iqbal. They reached the spot at 2300/2315 hours, under command of SIP Shahnawaz with personnel namely PC Zubair on motorcycles. They found a grey coloured Mira Car bearing license Plate No.ARK-363, the driver side window pane of which was shattered and 05 empties of KK and 02 empties of 30 bore were found near the car. The empties, were collected and sealed by SIP Shahnawaz who prepared its mushirnama in his presence and PC Zubair. During his cross-examination he admitted that Ex.18/B did not tell the source of lights available at the place of incident and shattering of car window was not mentioned in Ex.18/B and neither engine nor chasis number were mentioned in Exh.18/B and Exh.18/B did not, tell that how far the empties lay scattered away from the car, and serial numbers of empties were also not mentioned in Exh.18/B, and article "A" did not mention the date of its sealing, further admitted that he had not exhibited any document showing impounding of the car in the PS. 18. PW-08 PC Faqir Muhammad [Exh.31] deposed that on 06.10.2011, he was posted at PS Gulshan-e- Iqbal as PC. At about 1900 hours, he in subordination of SIP Tariq along with HC Tufail Ahmed left PS for crime branch Landhi No.2. When they reached, SIP Tariq took out the custody from the lock up of the arrested accused namely, Anwar Faheem and he was interrogated in instant case. During which, he disclosed the names of his accomplices as Khurram, Asif, Mani, Rashid and Furon. Further disclosed that he along with them, ascorted the deceased persons into the car from Al-Jannat Restaurant and took them to Block-07, Degree College and killed them by firing because of their Pathan Community. He further stated that SIP Tariq formally arrested the above-named accused, prepared mushirnama in his presence and HC Tufail Ahmed. He stated that his statement under section 161 Cr.P.C. was recorded by SIP Tariq. During his cross-examination he admitted that no private person has been associated as mushir and Exh.23/J did not describe the accomplices and no mushir had been attributed from crime branch. 19. PW-09 PC Anjum Khursheed [Exh.32] reiterated the prosecution story in his evidence. During his cross-examination he admitted that when they proceeded to apprehend the accused, neither, they had any photograph of the accused nor had he seen him before and no private person has been attributed. 20. PW-10 Sr. MLO Dr. Dileep Khatri [Exh.33], who produced postmortem No.577/11 Exh.33/B and 33/C and stated that it bear the signature of Dr. Abdul Razzak. He also produced the postmortem No.578/11 and medical certificate of cause of death of deceased Muhammad Sharif and produced the same as Exh.33/D and Exh.33/C. He had not been cross examined though chance given. 21. PW-11 SIP Muhammad Asif also repeated the whole prosecution story and then he had not been cross-examined. 22. PW-12 HC Dosoza, [Exh.35] deposed that on 07.10.2011, he was posted as PC at PS Gulshan-e- Iqbal. On the same, day, he in subordination of ASI Tariq Ali along with HC Huzoor Bux and driver went to PS Sachal in police vehicle. At PS Sachal, ASIP Tariq Ali took out of the custody of the arrested accused Khurram and took him to interrogation room for investigation. During interrogation he disclosed that he along with his accomplices Anwar, Furon, Rashid and other companions committed murder at Block-7, Gulshan-e-Iqbal, near Degree College. On such disclosure ASIP Tariq Ali formally arrested the accused in instant case and prepared the mushirnama of arrest and took his signature and Huzoor Bux and his 161 Cr.P.C. statement was also
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recorded. During his cross-examination he admitted that he did not remember the exact timing of departure from PS Gulshan-e-Iqbal. He does not remember the exact timing of arrival at PS Sachal and accused did not describe any of his accomplices as well as disclosed their parentage during investigation, and ASI Tariq Ali did not associate any private witness nor any police official from PS Sachal to act as mushir. 23. PW-13 Retd. Inspector Hameedullah Khan, [Exh.36] deposed that on 03.06.2012, he was posted as SIO at PS Darakhshan. There was an accused namely Rashid alias Chamber who was already arrested in Crime Nos.212/12 and 214/12 of PS Darakhshan, whom he interrogated on the same day. During interrogation, he disclosed about his involvement in the instant crime. Afterwards, he made call at PS Gulshan-e-Iqbal who informed him that the instant case was transferred in CID Garden. On 04.06.2012, PI Malik Adil along with his subordinates came to PS Darakhshan. He took out the custody of the accused and interrogated him in interrogation room in his presence. During interrogation, he admitted to his guilt in the instant crime. PI Malik Adil formally arrested the accused and prepared mushirnama of formal arrest in his presence as well as in presence of PC Maqbool. He produced such mushirnama as Exh.36/A. Thereafter, he locked up the accused and recorded his statement under section 161 Cr.P.C. During his cross-examination he admitted that it was not mentioned in his statement under section 161 Cr.P.C that in whose presence, when and where he interrogated accused Rashid alias Chamber, and he had not produced any entry regarding the interrogation of the accused, and he had not disclosed the time of making call at PS Gulshan-e-Iqbal in his statement under section 161 Cr.P.C. 24. PW-14 Mehboob Illahi, [Exh.37] was declared hostile by the learned APG and he was cross- examined by the learned APG. 25. PW-15 ASI Arshad Iqbal [Exh.39] who has deposed in his examination that on 05.10.2011, he was posted as ASI as Crime Branch-II, Karachi. Under the subordination of PI Azam Masood, HC Syed, HC Ayub and PC Nawaz were busy in the area patrolling for prevention of crime in official police mobile. When PI Azam Masood received spy information on which they stopped two persons riding on one motorcycle bearing registration number KBT-3320 make Pak Hero at Star Ground Main Gate, Mollah Madad Graveyard. On enquiry, the suspect person riding the motorcycle, disclosed his name as Muhammad Ali and on his search, one TT Pistol 30 bore without number in back pocket of his pant was recovered along with 04 live rounds in its magazine. While the pillion rider disclosed his name as Anwar Faheem, on his search, one TT pistol 30 bore without number along with 03 live rounds in its magazine in back packet of his pant was recovered. PI Azam Masood asked for the license of the recovered pistols, which they failed to produce. Thereafter, PI Azam Masood sealed both the pistols, separately, and prepared memo of arrest, and recovery on which he obtained his signature and that of HC Saeed Khan which he produced as Exh.39/A. Investigation of instant FIR bearing No.463/2011 under section 13(d) was assigned to him by PI Azam Masood. He interrogated the accused, during which accused Anwar Faheem disclosed his involvement in killing of one person in P.S Gulshan-e-Iqbal. On such disclosure, he informed PS Gulshan-e-Iqbal. I.O of PS Gulshan-e-Iqbal namely SIP Tariq came and interrogated the accused in the FIR 544/2011 and arrested him. He produced the arrival entry and handing over of the accused as Exh.39/D. On 13.13.2011, new I.O/PI Aslam Baloch of PS Gulshan-e-Iqbal in the instant FIR collected the recovered pistol from the accused. He handed over the pistol to PI Aslam Baloch, vide memo of handing over the pistol. He produced the memo of handing over the pistol to PI Aslam Baloch as Exh.39/E. During his cross-examination he admitted that the mode of communication of the spy information, the place and time of receiving it, have not been explained in his examination-in-chief, FIR, Memo of arrest and his statement under section 161 Cr.P.C. and during patrolling the police lights remain switched on and Exh.39/A did not disclose that which of the accused rode the motorcycle and which one sat pillion and Exh.39/A did not bear description of the pistol nor its sketch and Exh.39/A
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also did not specify the number of rounds found loaded in the pistol and no private person could be associated as no one was found and it was not mentioned in Exh.39/A that under what source of light it was prepared, further admitted that he had not exhibited any entry showing the custody of the pistol and Exh.39/A, did not bear the bullets number written at their base. 26. PW-16 ADJ Zahida Parveen [Exh.40], who recorded statements of witnesses under section 164 Cr.P.C. on the application moved by IO/PI Malik Muhammad Adil. During her cross-examination she admitted that accused Anwar Faheem was not brought before her for IDP and It was not in her knowledge whether any IDP was held prior to recording statements under section 164 Cr.P.C. of the witnesses and It was a fact that she did not note down if the accused and the witnesses had come together before her or separately and during confessional statement, accused Noman did not name any co-accused and Exh.40/I, speaks that accused Noman was made hostage in his company car and taken by the other persons to the place of incident and every answer to, the questions does not bear signature / thumb impression of the accused,…
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