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Petitioner: JAMAL KHAN and another VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery, Wahid Bux Brohi Title: JAMAL KHAN and another vs THE STATE Case No.:Special Anti-Terrorism Jail Appeal No,15 of 2001 and Special A.T.A. No,22 of
JUDGMENT
Reported As: PLD 2003 Karachi 195 Result: Order accordingly Judgment JUDGMENT RAHMAT HUSSAIN JAFFERI,J.--- This judgment will dispose of Special 'Anti-Terrorism Appeals Nos.15 and 22 of 2001 and Confirmation Case No,3 of 2001 as they arise from a common judgment. 2. The Appeals have been directed against the judgment dated 1-3-2001. Passed by Anti-Terrorism Court No,III, Karachi, in (i) Special Case No,3 of 2001 (The State v. Jamal Khan and others), arising out of F.I.R., No,293 of 2000, under sections 392/397/34/109, P.P.C. Of Police Station Orangi Town, Karachi, (ii) Special Case No,199 of 2000 (The State v. Jamal Khan and another), arising out of F.I.R. No,250 of 2000, under sections 353/392/397/324/302/34, P.P.C. Read with section 7-A of the Anti- Terrorism Act, 1997 (ATA), of Peerabad Police Station, (iii) Special Case No,200 of 2000 (The State v. Fazal Muhammad), arising out of F.I.R. No,251 of 2000, under section 13-D of the Pakistan Arms Ordinance, 1965 of Peerabad Police Station, Karachi, (iv) Special Case No,201 of 2000 (The State v. Jamal Khan), arising out of F.I.R. No,252 of 2000, under section 13-D of the Pakistan Arms Ordinance, 1965 (hereinafter referred to as Ordinance 1965) of Peerabad Police Station, Karachi. (v) Special Case No,4 of 2001, (The State v. Islam Saeed) arising out of F.I.R. No,260 of 2000 under sections 353/324/34, P.P.C. Of Saeedabad Police Station, Karachi, and (vi) Special Case No,5 of 2001 (The State v. Islam Saeed). Arising out of F.I.R. No,261 of 2000, under section 13-D of Ordinance, 1965 of Peerabad Police Station, Karachi, by which the learned Judge had convicted and sentenced the appellants in the following manner:-- (a) Convicted the appellant Jamal Khan under section 396, P.P.C. Read with section 302, P.P.C. And sentenced him to death and a fine of Rs,175,000. In case of default in payment of tine he was
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directed to suffer R.I. For two years and in case of recovery of fine, it should be paid to the legal heirs of the deceased under section 544-A, Cr. P.0 . (b) Convicted the appellant Fazal Muhammad under section 396 read with section 302. P.P.C. And sentenced him to imprisonment for life and a tine of Rs,175,000. In case of default in payment of fine he was directed to suffer R.I. For two years and in case of recovery of tine, it should be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. (c) Convicted the appellant Jamal Khan under section 392, P.P.C. And sentenced him to suffer R.I. For 10 years and a tine of Rs,50.000 or in default to undergo R.I. For one year. (d) Convicted the appellant Jamal Khan, Fazal Muhammad and co-accused Islam Saeed under section 13-D of Ordinance, 1965, and sentenced them to suffer R.I. For 7 years and fine of Rs,50,000 each or in default to undergo R.I. For one year. (e) Convicted the appellants under section 353, P.P.C. And sentenced them to suffer R.I. For 2 years and a fine of Rs,10,000 each or in default to undergo R.I. For 6 months. (t) The benefit of section 382-B, Cr. P.C. Was extended to them 3. The facts giving rise to the present Appeals and confirmation case are that on 14-11-2000 at about 12-35 noon the complainant Muhammad Rustam Khan of F.I.R. No,293 of 2000 of Orangi Town Police Station encashed his cheque of Rs,15,000 from Habib Bank Limited, Aligarh Branch, Karachi and was going back to his house in Mashallah Coach. At about 12-50 noon when the coach reached at Chowrangi of Sector 8/1/2 near Allahwala College four persons sitting in the coach stood up and took out their pistols and asked the driver to reduce the speed of-the coach. Out of the four culprits one went and stood near the drivel whereas the remaining three persons started snatching money from the passengers. The complainant was deprived of Rs,15,000 and his service card of Pakistan Steel Mill., The coach covered some distance and thereafter the culprits left the coach. The complainant also got down from the coach and started raising cries of dacoits dacoits. Out of the four culprits, two ran towards Sector 8-1/2 whereas the remaining two ran towards Qatar Hospital. The complainant alongwith several other persons followed the culprits, who went towards Qatar Hospital. When the culprits reached near Qadhafi Chowk they got stopped a water tanker and boarded on it thereafter they went towards Qasba More side. The- police personnel present at Qadhafi Police Check Post followed the culprits. From there the complainant went to Police Station Orangi Town for lodging the report which he did at about 1-55 p.m. Being F.I.R. No,3 of 2001. 4. At the Qadhafi Police Check Post two police constables namely Muhammad Saeed and Shamim Ahmed, were present. The people informed them that the dacoits were going in a water tanker; therefore, they followed them on two motor-cycles of passersby. The motor-cycle of P.C. Muhammad Saeed developed some defect, therefore, he was stopped near Qasba More but P.C. Shahmim Ahmed followed the water tanker. P.C. Muhammad Saeed also followed him but when he reached near Caltex Petrol Pump he saw the water tanker was stopped and two persons, who were later on found to be the present appellants, got down from it. Thereafter, one of the said persons later on found to be appellant Jamal Khan fired from his weapon at P.C. Shamim Ahmed. Who after receiving injuries on his body fell down on the ground. The appellant Jamal Khan snatched the S.M.G. Rifle from P.C. Shamim Ahmad and handed over his pistol to his accomplice later on found to be Fazal Muhammad. In the meantime P.C. Muhammad Saeed fired at the appellants. The appellants also fired at P.C. Muhammad Saeed and they started running towards Qasba Colony. Thereafter, two vehicles of Rapid Police Force 15 arrived there, on which the police party alongwtih P.C. Saeed followed the appellants but they went towards Hills of Qasba Colony Thereafter, there was exchange of tire-arms shots between the police and the appellants and then they went inside the graveyard. From the firing of the appellants one passerby child Afsar aged about 10 years sustained injuries.
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The culprits then hid themselves in the graveyard; therefore, the police surrounded the said place and then apprehended them. On inquiries they disclosed their names as Jamal Khan and Fazal Muhammad (the present appellants). The appellant Jamal Khan was. Having SMG Rifle of the deceased P,C. Shamim Ahmed. Which was secure. By A.S.-I. Azhar Mehmood and A.S.-I. Abdul Majeed secured a .30 bore unlicensed pistol from the possession of Fazal Muhammad. From the search of the appellant Jamal Khan Rs,1.150 and from the search of the appellant Fazal Muhammad Rs,1,200 were secured. Thereafter, both the appellants were arrested and such memo. Was prepared. The appellants and the properties were taken to the police station where P.C. Muhammad Saeed lodged the report being F.I.R. No,250 of 2000 against both the appellants whereas A.S.-I. Abdul Majeed lodged the report being F.I.R. No,252 of 2000 under section 13-D of the Ordinance, 1965. Against the appellant Fazal Muhammad and A.S.-L Azhar Mehmood lodged the report being F.I.R No,252 of 2000 under section 13-D of the Ordinance, 1965 against the appellant Jamal Khan. In the mean time the injured P.C. Shamim was taken to the hospital where he succumbed to the injuries. 5. During the interrogation of S.H.O. Sohail Axiitar of Saeedabad Police Station in connection with F.I.R. No,293 .Of 2000 of his police station, the appellants led them near Bilal Coach Stand, Gulshan- e-Ghazi, Saeedabad. Karachi, where encounter took place in which two persons received injuries. They were apprehended at the spot. On enquiries they disclosed their names as Islam Saeed and Amjad. From their personal search T.T Pistols were secured. A Pakistan Steel Mill service card of Muhammad Rustam was also secured from Islam Saeed. Both the said culprits were sent to hospital where Amjad succumbed to the injuries. The S.H.O. Sohail Akhtar lodged the reports being F.I.R No,260 of 2000 at Saeedabad Police Station against Islam Saeed and Amjad and F.I.R. No,261 of 2000 under section 13-D of Ordinance. 1965 against Islam Saeed. 6. The police after usual investigation by recording the statements of witnesses, securing empty cartridges of weapons used at the place of murder, obtaining post-mortem report of the deceased, sending the secured weapons and empties to ballistic expert, etc. Submitted six challans arising out of above mentioned F.I.Rs, of Police Station Saeedabad and Peerabad, Karachi, before the Administrative Judge, Anti-Terrorism Courts, Karachi, from where the cases were assigned to the Anti-Terrorism Court No,III, Karachi, for disposal according to law. All the above cases were consolidated with each other: therefore, a common charge was framed against the appellants and Islam Saeed under sections 302, 324, 353, 392, 396, 397 and 109, P.P.C. Read with section 6-D of A.T.A.. 1997 and 13-D of Ordinance, 1965 to which they pleaded not guilty. 7. The prosecution examined fourteen witnesses namely, P.W.1Muhammad Rustam Khan (complainant of F.I.R. No,293 of 2000 and eyewitness of robbery), P.W.2 P.C. Muhammad Saeed Khan (complainant of F.I.R No,250 of 200() and eye-witness of murder), P.W.3 Muhammad Asif (eye-witness of murder, Mashir of Wardat and recovery of empties), P.W.4 A.S.-I. Azhar Mehmood (complainant of F.I.R No,252/00and eye-witness of chasing the appellants), P.W.5 S.I.P. Abdul Majeed (Complainant of F.I.R. No,251/00 and eye-witness of chasing the appellants) P.W.6 A,.S.I.P. Sikandar Khan (1.0., and prepared memo. Of inquest report), P.W.7 Inayatullah, (Judicial Magistrate who recorded judicial confession of appellant Jamal Khan), P.W.8 Dr.Abdul Shakoor (MLO Abbasi Shaheed Hospital, who conducted post-mortem of the deceased), P.W.9 A.S.I Ali Asghar Tarar (Mashir of arrest of the appellants and recovery), P.W.10 P.C. Suhail Akhter (Mashir), P.W.11 P.C. Abdul Salam (Mashir) of arrest of Islam Saeed), P.W.12 S.I.P. Suhail Akhtar Sulheri (Mashir of third incident), P.W.13 S.-I. Muhammad Ishaque (Mashir and I.O. Of Crime No,293/00), P.W.14 Inspector Muhammad Safdar (Mashir and I.O. Of murder case) and P.W.15 Ghazan Zaden (1.0. Of third incident). 8. The appellants in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. The appellant Jamal Khan admitted that his confessional statement was recorded by the Judicial Magistrate No,II, Karachi (West) but it was given under the pressure of
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police officials. He claimed that he was innocent. The appellant Fazal Muhammad in his further statement claimed that he was suffering from mental ailment. He stated that on 14-11-2000 he left the house of his uncle after taking medicine, therefore, he was in semi-conscious condition and went to Qasba More to see his friend where the incident took place. Due to firing the people were running here and there. He also started running but the police apprehended him and then involved him in this case. He further stated that before identification test the witness Muhammad Rustam Khan saw him but did not identify him at the Police Station Peerabad. The appellant Jamal Khan examined himself on oath and deposed that he had not committed the present offence but had been implicated falsely. Appellant Fazal Muhammad did not examine himself on oath. Both the appellants did not examine any witness in their defence. 9. After considering the material available on the record the trial Court convicted the appellants as mentioned above. The appellants were dissatisfied with the said judgment; therefore, they have preferred the present appeals. As the trial Court had awarded death sentence to the appellant Jamal Khan, therefore, a reference under section 374, Cr.P.C. Has been sent to this Court for confirmation of death sentence. The learned Advocate for the appellant Fazal Muhammad, has argued that on the point of robbery the main witness Muhammad Rustam Khan has not implicated him: that no identification parade was held through P.W. Muhammad Asif who saw the appellant at the incident of murder; that there was no common intention between the appellant Fazal Muhammad and the appellant Jamal Khan in committing the murder of the deceased P.C. Shamim Ahmed; that there are material contradictions in respect of recovery of pistol from the possession of the appellant, therefore, no case has been made out against him. 11. Learned counsel for appellant Jamal Khan has argued that the judicial confession of the appellant is retracted by him which, is also not corroborated by any piece of evidence, available on the record, therefore, it is unreliable. He has further stated that there are material contradictions in the evidence of witnesses, and that the case against the appellant is not proved, therefore, he is entitled for the benefit of doubt. 12. On the legal aspect. The Advocates for the appellants have argued that the sentences awarded under section 396, P.P.0 is illegal because section 396, P.P.0 will be applicable when the number of offenders is five or more but in the present case the number of the accused is four. 13. On the other hand, the learned A.A.-G. Has stated that the incident of robbery has been supported and corroborated by Muhammad Rustam from whom the appellants had snatched Rs,15,000 and appellant Jamal Khan was seen at the police station by the complainant just after the incident, who was identified by him to be one of the culprits but did not identify the appellant Fazal Muhammad. He has further argued that the evidence of complainant and other witnesses show that just after the commission of the robbery two appellants boarded a water-tanker which was intercepted by the deceased P.C. Shamim Ahmed and then the appellant Jamal Khan had tired at the deceased and ran towards hill side alongwith appellant Fazal Muhammad after snatching the SMG rifle of P.C. Shamim and handing over his pistol to appellant Fazal Muhammad, who were subsequently apprehended by the police and T.T. Pistol was secured from the possession of the appellant Fazal Muhammad and S.M.G. Rifle of deceased Shamim Ahmed was secured from the appellant Jamal Khan. All these pieces of evidence if collected together would lead to the conclusion that appellant Fazal Muhammad was also involved in the robbery and subsequently murder of the deceased Shamim Ahmed. Recovery of pistol from his possession and S.M.G. Rifle of the deceased PC Shamim Ahmed from the possession of appellant Jamal Khan. He has further argued that judicial confession of the appellant Jamal Khan has been supported and corroborated by other pieces of evidence available on the record and the judicial confession was voluntarily recorded which is true, therefore, it is sufficient to convict the appellants. He has conceded that
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section 396, P.P.C. Is not applicable in the present circumstances of the case as there were only four culprits who had committed the robbery and subsequently murder was committed, therefore, the convictions under section 396, P.P.C. Is illegal but the appellants can be convicted under section 302(b), P.P.C. He has supported the impugned judgment with regard to the other convictions. 14. We have given due consideration to the arguments and have gone through the evidence available on the record with the help of learned Advocates for the appellants and the A.A.-G. 15. In this case, for the purpose of the present appeals, two incidents had occurred; first, incident of robbery and then incident of murder and subsequently apprehension of the appellants and recovery of pistol and S.M.G. Rifle from their possession. 16. On the point of robbery the prosecution examined P.W.1 Muhammad Rustam. His evidence shows that after encashing a cheque Rs,15,000 from the Bank he boarded Mashallah Coach for going to his house at about 12-50 a.m When the coach reached at the Chowrangi of Sector 8-1/2 near Allahwala College four persons who were sitting in the vehicle coach stood up. Out of them one controlled the driver, the second snatched Rs,15,000 from him on gun-point, third stood at the gate of'the coach and the fourth one started taking money from other passengers. Thereafter, the culprits left the coach and started running but the complainant and other persons raised cries on which two culprits ran towards Orangi Town whereas the remaining culprits started running towards Qatar Hospital, who were followed by them. After covering some distance they found two police officials performing their duties at the police picket. He informed the incident to them who followed the culprits and from there he went to the police station for lodging the report. While he was present at the police station he saw two culprits brought by the police, out of them he identified one of them to be the appellant Jamal Khan, who snatched the money from him but he could not identify the second culprit. His evidence is further supported by P.W.2 P.C. Muhammad Saeed and P.W.3 Muhammad Asif. 17. The evidence of P.W.2 P.C. Muhammad Saeed reveals that he alongwith deceased P.C. Shamim Ahmed were performing their duties at police picket when they were informed that two dacoits were going on a water-tanker, therefore, P.C. Shamim Ahmed immediately took lift from a motorcyclist and proceeded towards the direction where the water-tanker was going. He followed them on another motorcycle after taking lift but his motorcycle went out of order then he started going towards that direction but he saw P.C. Shamim Ahmed got stopped the said water-tanker and pointed his S.M.G. Towards the culprits but one of the culprits namely Jamal Khan (appellant) tired from his pistol at P.C. Shamim Ahmed and then appellant Jamal Khan snatched S.M.G. Rifle from him and gave his pistol to his companion, who was subsequently apprehended and identified as appellant Fazal Muhammad and then the appellants started running towards mountain side. He tired at the appellants but they also retaliated by firing from the S.M.G. Rifle of P.C. Shamim Ahmed and pistol. In the meantime two Rapid Police Mobiles came there. He informed the incident to them and they followed the appellants but they went towards hillside. They chased them but the appelants took shelter in the graveyard which was surrounded and subsequently both the appellants were apprehended from there. S.I.P. Azhar Mehmood secured S.M.G. Rifle of the deceased P.C. Shamim Ahmed-from the appellant Jamal Khan whereas unlicensed pistol was secured from the possession of the appellant Fazal Muhammad. From the personal search Rs,1,550 and Rs,1,200 were secured from the possession of the appellants Jamal Khan and Fazal Muhammad respectively. The S.M.G. Rifle was checked, which contained ten live bullets wereas pistol contained two live bullets. The Mashirnama of arrest and recovery was prepared which was signed by him. The weapons were sealed at the spot. The appellants and the properties were taken to the Police Station Peerabad where F.I.Rs, were lodged. Subsequently, the place of incident of
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murder was seen where they found six empties of S.M.G. And three empties of T.T. Pistol which were secured alongwith blood-stained earth and the same were sealed. 18.The evidence of P.W.3 Muhammad Asif reveals that he was present at the scene of incident. He saw a person trying to snatch S.M.G. Rifle from a police constable and during the said period the said culprit tired three shots at the constable who after receiving injuries fell down on the ground and the said persons had snatched S.M.G. Ritle from the hands of the police constable and ran towards Qasba More. Another police constable reached there, who fired shots at the culprits but those were missed and then two Police Mobiles came there. Thereafter, the said police constable and the Police Mobiles followed the culprits. He went to the injured alongwith other people thereafter an Edhi Ambulance was called in which the injured police constable was sent to Abbasi Shaheed Hospital. His evidence further reveals that he also acted as Mashir of place of incident from where three empty cartridges of pistol. Six empty cartridges of S.M.G. Rifle and bloodstained earth were secured and sealed by the police. He signed the Mashirnama. 19.The evidence of above mentioned witnesses is further corroborated by A.S.-I. Azhar Mehmood and S.-I. Abdul Majeed. Their evidences show that they received a wireless message about the encounter at the place of incident; therefore. They reached there where P.C. Muhammad Saeed informed them about the incident; hence they followed the culprits towards Qasba Colony. When they reached at the hill area the appellants fired at the police party, therefore, they also tired at them. The appellants took shelter in the graveyard which was surrounded and then both the appellants were arrested. SIP Azhar Mahmood secured S.M.G. Rifle of deceased P.C. Shamim Ahmed from the possession of the appellant Jamal Khan whereas unlicensed 30 bore pistol was secured from the possession of the appellant Fazal Muhammad. From their search Rs,1,550 and Rs,1,200 were secured from the appellants Jamal Khan and Fazal Muhammad respectively. On verification the S.M.G. Rifle was found containing ten live bullets whereas pistol was loaded with two live bullets. Thereafter, Mashimama of arrest and recovery was prepared and then the appellants and the properties where taken to the police station where F.I.Rs, were lodged. 20. The evidence of Dr.Abdul Shakoor shows the details of the injuries found on the person of the deceased P.C. Shamim Ahmed. The injuries were: one lacerated type of puncture wound 1 c.m. In diameter over left upper chest, about 4 c.m. Above and lateral to left nipple margins inverted oval shaped (wound of entry). A lacerated punctured wound 3 c.m. In diameter irregular shape back of right lumber region (wound of exit) and six minor injuries of lacerated and abrasions on the person of the deceased. The doctor has opined that the deceased had died on account of cardio respiratory failures due to haemorrhagic shock/resulting from fire-arm weapon injuries. Thus, from his evidence it is clear that the deceased had received fire-arm injuries and died on account of the said injuries. 21. All these witnesses were subjected to cross-examination but nothing has come on record to discredit their evidence. The cross-examination was mainly in obtaining some clarification and details of incident. 22. From the evidence available on the record it is clear that-on 14-11.2000 at about 12-50 a.m. Mashallah Coach was robbed by four culprits where P.W.1. Muhammad Rustam was present and from him Rs,15.000 was snatched. The culprits left the coach and started running. Out of them two ran towards Qatar Hospital, who were followed by P.W.1 Muhammad Rustam and other persons but they boarded a water-tanker. An information about the incident was conveyed to the police constables P.C. Muhammad Saeed and P.C. Shamim Ahmed who chased the culprits. The deceased P.C. Shamim Ahmed was able to stop the water-tanker but the appellant Jamal Khan fired at the P.C. Shamim Ahmed, who received tire-arm injuries and fell down on the ground and appellant Jamal Khan snatched S.M.G. Rifle from the hands of deceased P.C. Shamim Ahmed and handed over his pistol to the appellant Fazal Muhammad, who started running towards Qasba
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Colony. They were chased by P.C. Muhammad Saeed but both the culprits tired at him whereas the P.C. Muhammad Saeed also fired at them. In the meantime two Police Rapid Mobiles in which A.S.-I. Azhar Mehmood and S.-I. Abdul Majeed aiongwith staff came there. They followed them and both the appellants were apprehended from the graveyard. From the possession of the appellant Jamal Khan S.M.G. Rifle of P.C. Shamim Ahmed was secured and from the possession of the appellant Fazal Muhammad an unlicensed .30 bore pistol was secured. From the scene of murder empties of S.M.G. Rifle and pistol were secured which were sealed and were sent to ballistic expert alongwith pistol and S.M.G. Rifle for examination and report. Ballistic Report has been produced in evidence which is Exh.49. It shows that the empties of pistol and S.M.G. Rifle were tired from the above mentioned pistol and S.M.G., thus both the weapons have been connected with the commissions of the incident. The appellant Jamal Khan was immediately identified by P.W. Muhammad Rustam at the police station, who was brought there after his arrest but the appellant Fazal Muhammad was not identified by. P.W. Muhammad Rustam. The prosecution should have held identification parade of the appellants…
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