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Official Citation: 2024 PHC 332
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2024
Decision Date: 2024-10-08
Parties: Rustam son of Gul Nawaz and others vs The State etc
Ruling Summary: This decision was rendered by the Peshawar High Court on 2024-10-08, officially reported as 2024 PHC 332. In this matter between Rustam son of Gul Nawaz and others and The State etc, 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 2024PHC332
Court Name: Peshawar High Court Judge(s): Ishtiaq Ibrahim, Wiqar Ahmad Title: Rustam son of Gul Nawaz and others vs The State etc Case No.: Cr. A No. 1073-P/2023, Cr.A. No. 1086-P/2023 Date of Judgment:2024-10-08 Reported As: 2024 PHC 332 Result: Appeal Dismissed
JUDGMENT
JUDGMENT ISHTIAQ IBRAHIM, CJ.-Tried by learned Judge Anti-Terrorism Court-III, Peshawar, ("Trial Court"), in case FIR No.453 dated 08.03.2021, registered under sections 302, 324, 34 PPC and section 7 Anti- Terrorism Act, 1997, at Police Station Faqir AbadJCTD, Peshawar (1) Rustam and (2) Roohullah, ("appellants"), having been found guilty of committing murder of Mubashar Ahmed ("deceased"), have been convicted and sentenced vide judgment dated 14.06.2023 ("impugned judgment") as under: Under Section 302/34 PPC:- To undergo rigorous imprisonment for life each and to pay rupees one lac each, as compensation to legal heirs of the deceased in terms of section 544-A Cr.P.C. and in default thereof to further undergo six months simple imprisonment. Under Section 7(1)(a) Anti-Terrorism Act, 1997:- To undergo rigorous imprisonment for life each and to pay rupees one lac each as fine and in default thereof to further undergo six months simple imprisonment each. Under Section 324/34 PPC:- To undergo ten years rigorous imprisonment on two counts each and to pay rupees one lac each as fine and in default thereof to further undergo six months simple imprisonment each. Under Section 7(1)(b) Anti Terrorism Act, 1997: To undergo rigorous imprisonment for ten years each and to pay rupees one lac each as fine and in default thereof to further undergo six months simple imprisonment each. All the sentences shall run concurrently and benefit of Section 382-B Cr.P.C. has been extended to the appellants.
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2. Through the instant and connected Cr.A. No.1086-P of 2023, the appellants have questioned their conviction and sentences, whereas, Zia Ullah, the petitioner-complainant, has filed connected Cr.R. No.170-P of 2023, seeking enhancement of sentences of the respondents-convicts from life imprisonment to normal penalty of death as provided for the offence under section 302 PPC. 3. Since all the three matters are stemming out from the impugned judgment of the learned trial Court, therefore, we propose to decide the same through this single judgment. 4. The prosecution's case as per First Information Report ("FIR") Exh.PA, registered on the basis of Murasila is that on 08.03.2021 at 0240 hours, complainant Zia Ullah (PW.12), in company of friend, namely, Mubashir Ahmad (then injured), in casualty of Lady Reading Hospital ("LRH"), Peshawar, reported to Inayat Ullah Khan ASI (not produced) to the effect that on 08.03.2021 he along with his friends, namely, Mubashir Ahmad and Muhammad Haris (PW.13), late night left Supper Market Saddar Peshawar in a Motorcar bearing Registration No.APZ.966, being driven by injured Mubashir Ahmad for refreshment and taking tea; that at 0210 hours, when they reached Dalazak road City Railway Station, Mubashir Ahmad stopped the motorcar, deboarded from it and went at distance for attending the call of nature and after his return when he boarded the motorcar, they told him to play music/tape-record of the motor car. In the meantime, they heard report of fire shots and Mubashir Ahmad told them that the bullets of the fire shots have hit him; that no sooner he (complainant) deboarded from the motorcar and reached driving seat of the motorcar in the meantime two police constables, duly armed, riding on a motorbike arrived at the spot, who on noticing Mubashir Ahmad in injured condition told them to immediately shift him to the hospital; that Muhammad Haris (PW.13) immediately occupied the driving seat of the motorcar and they shifted their injured friend to hospital; that he has not seen anyone firing at them, but is satisfied from the dubious movements and actions of the two constables that they might have fired at them. Report of the complainant was recorded in the shape of Murasila, on the basis of which, FIR Exh.PA was registered under section 324 PPC against unknown culprit(s). 5. On 08.03.2021 at about 02.25 AM, Dr. Latifullah (PW.16), examined injured Mubashir Ahmad aged about 20 years and found the following injuries on his person vide Medico legal report Exh.PW.16/1:- i. One firearm wound about 2x3 cm in size on his right lateral aspect of chest below axilla. ii. Firearm wound about lx1 cm on left anterior aspect of chest above nipple. iii. Firearm wound about 3x4 cm on his right hip joint, lateral aspect. iv. Firearm wound about lx1 cm on his pelvic region just above root of penis. v. Abrasion on left thigh plus right flank. The patient was advised X-ray pelvic, chest, left thigh and fast scan. He was referred to CVW, CTW, COW, CSW, urology and radiology. Probable duration of injuries: within 30 minutes approximately. Kind of weapon used: firearm. 6. On the same day i.e. 08.03.2021 injured Mubashir Ahmad deceased succumbed to injuries. At 02.45 AM, Dr. Noor ul Baqi (PW.15), conducted autopsy on the dead body of the deceased and found the following:- External Appearance: As per record the deceased was hospitalized vide Chit No.KO.2ACF21158115. Time of death of the deceased as per police record 04.09 AM at LRH, Peshawar. No mark of ligature on neck. A young man with average built wearing white shalwar bloodstained with firearm defects and blackening seen vide postmortem report Exh.PM. Injures: i. A firearm entry wound on right outer of chest 4x3 cm in size with metallic stapling 5 cm from axilla 9 cm from nipple. ii. Firearm exit wound on left front of chest 3x3 cm in size. 5 cm midline. 9cm above nipple.
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iii. A surgically made wound 2x1 cm on right outer of chest 4 cm from nipple, 7 cm from axilla. iv. A grazing wound 4x1 cm in size on right outer of chest, 5 cm nipple, 4 cm from axilla, metallic piece was also recovered. v. Firearm entry wound right outer of thigh 4x2 cm in size with blackening around and abrasion 7 cm from iliac spine 14 cm from midline. vi. Firearm exit wound on left side public area lx1 cm, 1 cm from midline, 2 cm from root of penis. vii. Firearm re-entry inner of thigh 1x2 cm in size, 3 cm from growing, 20 cm above knee. viii. Firearm exit left outer of thigh lx1 cm in size, 13 cm from iliac spine, 12 cm from knee. ix. An abrasion on right side thigh 2x3 cm in size, 8 cm below iliac spine. Thorax: Walls, ribs, cartilages, plurae, right and left lungs injured. Stomach and its contents: Partially filled. Remarks:-According to his opinion the deceased died due to injuries to the vessels of lower abdomen and upper thigh, both lungs and associated blood vessels due to firearm. Probable time between injury and death: hospitalized. Probable time between death and postmortem: 3 to 6 hours. 7. On 13.03.2021, complainant Zia Ullah (PW.12), recorded statement under section 164 Cr.P.C. before the learned Judicial Magistrate, Peshawar, wherein he denied report written down in the Murasila. His statement is reproduced below: "Stated that on 08.03.2021 at night, I along with my friends, namely, Mubashir Ahmad and Muhammad Haris, was going in a motorcar bearing Registration No.APZ.966, driven by Mubashir Ahmad, for taking tea and when we reached at Dalazak road near City Railway Station, Peshawar, Mubashir Ahmad stopped the motorcar, deboarded from it and went for attending the call of nature. After little time he returned and occupied the driving seat of the motorcar, the police opened fire at us, as a result, Mubashir Ahmad got hit and seriously injured while we luckily remained unscathed. In the meantime, two police constables, duly armed and greatly perturbed came there and aimed their weapons at us. When I opened the door of the motorcar, my friend Mubashir Ahmad, fell on the ground from the driving seat. The two constables told us to shift our injured friend to hospital; that out of the two constables, one having beard, called someone on his cell phone and stated conversation with him. We put the injured in the motorcar and shifted him to hospital. After sometimes, SHO Police Station Faqir Abad Peshawar along with other police officials reached hospital. I narrated the occurrence to him but he ignored my version and started pressurizing us to hand over him the ICE and arms allegedly in our possession. The SHO also threatened us. We were already frightened due to the incident. The SHO then obtained my signature on a paper written by he himself. After sometime, the injured succumbed to injures. I charge the two constables, namely, Roohullah and Rustam for committing murder of Mubashir Ahmad deceased and firing at us. This is my statement". 8. Similarly, on 09.04.2021, Muhammad Haris, recorded statement under section 164 Cr.P.C. before the learned Judicial Magistrate-IV, Peshawar, wherein he too while narrating the same story as advanced by the complainant charged both the appellants-constables for murder of the deceased and ineffective firing at them. 9. Shafi Ullah Khan DSP (PW.18), conducted investigation in the case, who on receipt of copy of FIR, proceeded to the spot and prepared site plan Exh.PB at his own observation. During spot inspection, he secured blood through cotton Exh.P.2 from the place of the deceased and one empty of 7.62 bore Exh.P.3, vide recovery memo Exh.PW.9/1. On 08.03.2021, he took into possession one DVR Exh.P.8 from Taj Mahal Students Hostel, vide recovery memo Exh.PW.9/3. He also took into possession the last worn bloodstained garments of the deceased vide recovery memo Exh.PW.9/2. Vide recovery memo Exh.PW.6/1 he took into possession motorcar bearing registration No.APZ.966 Exh.P.1 of the deceased. Vide recovery memo Exh.PW.11/2 he took into possession a .30 bore pistol
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Exh.PX belonging to constable Roohullah (appellant) and one SMG official rifle Exh.PX/1 bearing No.56-29012724 along with loaded magazine containing 23 live round Exh.PX/2 belonging to constable Rustam (appellant), produced by Ameer Dad Khan (PW.7) Moharrir of Police Station. Vide recovery memo Exh,.PW.11/1 he took into possession a motorcycle of the appellants bearing registration No.3760-KPK Exh.PX/3. He draw photographs of the motorcar Exh.PW.18/1 (four in number). The appellants were arrested by the SHO and handed over to Shafi Ullah Khan DSP (PW.18), who obtained their physical remand from the court of learned Judicial Magistrate, interrogated them and recorded their statements under section 161 Cr.P.C. He also obtained CDR of mobile numbers of the deceased as well as the accused Exh.PW.8/1. On 13.03.2021 he applied for identification parade of the appellants which was allowed and their identification parade was conducted. On 10.03.2021 he inserted section 7 ATA in the case, sent the blood and urine obtained from the appellants to KMC Peshawar for the purpose intoxication analysis, reports whereof are Exh.PL and Exh.PL/1. He also sent the bloodstained articles as well as empties, weapons of the appellants and the motorcar to the FSL. On 11.03.2021 he took into possession two spent bullets, 9 one recovered from the body of the deceased during postmortem examination and another recovered from bonnet of the motorcar, vide recovery memo Exh.PW.9/4. He placed on file FSL reports which are Exh.PZ, Exh.PZ, Exh.PZ/2 and Exh.PZ/3, recorded statements of the PWs under section 161 Cr.P.C. and thereafter handed over case file to Qeemat Gul Khan Inspector (PW.14) Police Station CTD Peshawar. On receipt of investigation, Qeemat Gul Khan Inspector (PW.14), placed on file extract of Register No.19 and 21 of PS Faqir Abad. Vide application Exh.PW.14/1 he applied for obtaining CDR data of mobile numbers of the complainant party, produced PW Muhammad Hans for recording his statement under section 164 Cr.P.C. before the learned Judicial Magistrate. Vide recovery memo Exh.PW.3/1 he took into possession USB regarding video recording of the place of occurrence, recorded statements of the PWs under section 161 Cr.P.C. and after completion of investigation handed over case file to Noorullah Khan SHO (PW.1), who submitted complete challan against the appellants before the learned trial Court. 10. On receipt of challan by the learned Trial Court, the appellants were summoned and formally charge sheeted under sections 302, 324 and 34 PPC, sections 7(1)(a), 7(1)(b) Anti-Terrorism Act, 1997 and section 15 Khyber Pakhtunkhwa Arms Act, 2013. To prove guilt of the appellants, the prosecution examined as many as twenty (20) witnesses. After closure of the prosecution's evidence, statements of the appellants were recorded under section 342 Cr.P.C. wherein they denied the prosecution's allegation and professed their innocence. They, however, neither wished to be examined on oath under section 340(2) Cr.P.C. nor opted to produce evidence in defence. On conclusion of trial, the learned trial court, after hearing both the sides, convicted and sentenced the appellants as mentioned in the initial paragraph of the judgment, hence, these appeals and revision petition. 11. We have heard the exhaustive arguments of learned counsel for the parties and perused the record and evidence with their valuable assistance. 12. We would like to first determine the applicability of the offences of the Anti-Terrorism Act, 1997 keeping in view the facts and circumstances of the case as well as evidence led by the prosecution and legal position of trial of the appellants conducted by the Anti-Terrorism Court which culminated into the conviction of the appellants under the penal provisions of the Special law i.e. the Anti-Terrorism Act 1997 as well as general law under sections 302(b) and 324 PPC as it was the first argument of learned counsel for the appellants that the essential ingredients to bring the occurrence within the ambit of sections 6 and 7 of the Anti-Terrorism Act, 1997, are missing. After going through the record from cover to cover and scrutinizing the evidence of prosecution, we are firm in our view to hold that from the very inception of the case till final conclusion of trial, the prosecution's evidence is completely silent with regard to motive behind the occurrence. An iota of
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evidence has not been brought on record by the prosecution to bring the instant case within the meaning of section 6 of the Anti-Terrorism Act, 1997 ("Act of 1997"), which for the sake of convenience is reproduced below:- "S.6.Terrorism(1) In this Act, "terrorism" means the use or threat of action where: (a) The action falls within the meaning of sub-section (2) and (b) The use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or a foreign government or population or an international organization or create a sense of fear or insecurity in society; or (c) The use of threat is made for the purpose of advancing a religious, sectarian or ethnic cause or intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilians, including damaging property to ransacking, looting, arson or by any other means, government officials, installation security forces or law enforcement agencies. This court in its authoritative judgment in case titled, "Jumaraz Vs the State" (2021 YLR Peshawar, 955) has held that "the issue of applicability of section 6 of the Act of 1997 to a particular case has remained a debated topic before the august Supreme Court of Pakistan as well as the High Courts of the country and the view which has persistently been taken in this regard is that all the acts mentioned in sub-section (2) of Section 6 of the Act, if committed with design/motive to intimidate the government, public or a segment of the society, or the evidence collected by prosecution suggests that the aforesaid aim is either achieved or otherwise appears as a by-product of the said terrorist activities, are to be dealt with by the special Courts established under the Act of 1997. The the test to determine whether a particular act is terrorism or not is the motivation, object, design and purpose behind the act and not the consequential effect created by such act". In the present case, the allegation against the appellants is that they being police officials during their duty timing fired at the complainant party without any motive and as a result of their firing, the deceased got hit and succumbed to injuries. No doubt a young boy/student of 20 years has been done to death for which the appellants are charged, but it is persistent view of the august Supreme Court of Pakistan that mere gravity or brutal nature of an offence would not provide a valid yardstick for bringing the same within the meaning of terrorism. This view was re-affirmed by the larger Bench of the august Supreme Court of Pakistan in a judgment rendered in case titled Ghulam Hussain and others Vs. The State and others reported as PLD 2020 Supreme Court 61, and fmally it was concluded in the said judgment that: For what has been discussed above it is concluded and declared that for an action or threat of action to be accepted as terrorism within the meanings of section 6 of the Anti-Terrorism Act, 1997 the action must fall in subsection (2) of section 6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of section 6 of that Act or the use or threat of such action must be to achieve any of the purposes mentioned in clause (c) of subsection (1) of section 6 of that Act. It is clarified that any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clauses (b) or (c) of subsection (1) of section 6 of the said Act. It is further clarified that the actions specified in subsection (2) of section 6 of that Act do not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta. The occurrence in the present case do not qualify the essential ingredients of section 6 punishable u/s 7 of the Act of 1997. This Court, after scanning the entire evidence and material available on record, has come to the conclusion that Section 7 of the Act of 1997 is not applicable to the present case in light of the judgment of the larger bench in Ghulam Hussain's case supra.
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11 The next legal point for determination is that what would be the fate of the case when otherwise the appellants are found guilty of the offences under sections 302, 324 and 34 PPC and whether their conviction under penal sections of the Pakistan Penal Code can be maintained or not? if this court arrives at the conclusion that the prosecution has proved their guilt. It may be noted that the Anti-Terrorism Court, after taking cognizance of a non-scheduled offence, is vested with powers u/s 23 of the Act of 1997 to transfer the case to a Court having jurisdiction. For ready reference the said provision is reproduced below: 23. Power to transfer cases to regular Courts. Where after taking cognizance of an offence, an Anti Terrorism Court is of opinion that the offence is not a scheduled offence, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any court having jurisdiction under the Code, and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence. This Court exercises its jurisdiction in the instant case as an Appeal Court u/s 25 of the Act of 1997 read with section 410, Cr.P.0 and it is an admitted legal position that appeal is continuation of the trial. The powers of this Court as Appellate Court whether u/s 25 of the Act of 1997 or under section 410, Cr.P.C, are regulated by section 423, Cr.P.0 which confers vast powers on the Appeal Court regarding reversal, alteration, reduction or changing the nature of the sentence awarded to a convict by trial Court. The above provisions of law is reproduced below for ready reference. 423. Powers of Appellate Court in disposing of appeal.--(1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under Section 411-A, subsection (2) or Section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering dismiss the appeal, or may -- (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or sent for trial to the Court of Session or the High Court, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction, (1) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or sent for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of Section 106, sub-section (3), not so as to enhance the same; (c) in an appeal from any other order, alter or reverse such order; (d) make any amendment or any consequential or incidental order that may be just or proper. (Emphases supplied) Admittedly, the appellants/convicts have been afforded fair and proper opportunity of cross- examination of the PWs. They have also been examined u/s 342 Cr.P.C. We do not see any illegality or even an irregularity in the entire proceedings conducted by learned trial Court. Similarly, no prejudice would be caused to the appellants if this court decides their appeal to the extent of the provisions of the general law. In this view of the matter, this Court while exercising powers u/s 25 ATA or 410, Cr.P.C read with section 423, Cr.P.C, deem it appropriate to look into the conviction and sentences of the appellants, recorded by trial Court under the general law instead of remanding the case to the Court of Sessions for deciding the case in exercise of its ordinary criminal jurisdiction on the basis of evidence recorded by Special Court. If this court is convinced with regard to conviction of the appellants and no illegality or material irregularity is noticed on the face of record to vitiate the trial, in that eventuality this Court can exercise its jurisdiction to set aside the conviction under one head by maintaining the conviction and sentence under the other head,
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subject to appraisal of evidence. Reliance in this regard can be placed on the judgment of the august Supreme Court of Pakistan in the case of Waris Ali and 5 others Vs. The State (2017 SCMR 1572) wherein the appellants were initially charged u/s 302/324/452/436 P.P.C read with section 148 & 149, P.P.C whereas sections 6 and 7 (a) of the Act were subsequently inserted in the case. The trial Court in the mentioned case, inter alia, awarded death sentences to the appellants u/s 7(a) ATA which was confirmed by the Lahore High Court in appeals. The august Supreme Court of Pakistan, after hearing appeal of the convicts, set-aside their conviction u/s section 7(a) of the Act of 1997 by converting the same to one under section 302(b), P.P.0 and reduced their sentences from death to life imprisonment in view of the facts and circumstances of the case. Relevant portion of the judgment is as under: 31. Accordingly, the conviction of the appellants under section 7(a) of the Special Act, is set aside and the same is converted to one under section 302(b), P.P.C. however, keeping in view the peculiar circumstances of the case, this Court is influenced by caution and for securing the ends of justice in the matter of sentence because all was not well with the complainant and the Prosecution, the possibility that innocent persons amongst the guilty one were also involved, could not be altogether ruled out, thus, the death sentences awarded to all the appellants are reduced to life imprisonment on the counts mentioned in the impugned judgment but under section 302(b), P.P.C. and the conviction and sentences awarded to them under section 6 read with section 7 of the Special Act are set aside. 14. In view of what has been discussed above, conviction and sentences of both the appellants under sections 7(1)(a) and 7(1)(b) of the Act of 1997 are hereby set-aside and the appeals are being decided on merit to the extent of conviction and sentences of the appellants recorded…
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