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Petitioner: Shahrukh Jatoi VS Respondent: The State
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Nazar Akbar Title: Shahrukh Jatoi vs The State Case No.:(1) Special Cr.ATA No.19 of 2013 (2) Special Cr.ATJA No.24 of 2013 (3) Special
Cr.ATA No.25 of 2013 (4) Criminal Revision No.40/2014 (5) Conf. Case No.1/2013 Date of Judgment:2019-05-13 Reported As: 2019 SHC 132 Result: N/A Judgment Muhammad Ali Mazhar, J: This common judgment will dispose of Special Cr. ATA No.19/2013 filed by Nawab Siraj Ali and Nawab Sajjad Ali Talpur, Special Cr. ATJA No.24/2013 filed by Ghulam Murtaza, Special Cr. ATA No.25/2013 filed by Shahrukh Jatoi under Section 25 of the Anti-Terrorism Act, 1997 read with Section 410 Cr.P.C. and Criminal Revision No.40/2014 filed by Shahrukh Jatoi to challenge the order dated 03.06.2013 passed by Anti-Terrorism Court No.III, Karachi holding that he was not minor at the time of crime. By dint of impugned common judgment passed in Special Case No. 15(III)/2013, the learned trial court convicted and sentenced to death Shahrukh Jatoi and Nawab Siraj Ali Talpur, whereas Nawab Sajjad Ali Talpur and Ghulam Murtaza Lashari were convicted and sentenced to imprisonment for life under Section 7 (a) ATA read with Section 302, 109 and 34 PPC whereas in Special Case No. 16(III) of 2013, one of the Appellants Shahrukh Jatoi was also tried in Crime No. 32 of 2013 lodged under Section 13(e) of Arms Ordinance and awarded rigorous imprisonment for three years whereas Ghulam Murtuza Lashari in addition to life imprisonment, also awarded sentence to imprisonment for one year under Section 354 P.P.C. 2. The transient facts of the case are that on 25.12.2012 at about 1215 hours, Ghulam Murtaza Lashari, cook of Nawab Siraj Ali Talpur and Nawab Sajjad Ali Talpur misbehaved to Miss Maha with intent to outrage her modesty at the door of her flat, Country Club Apartm ent, Phase V, DHA, Karachi, when she came back from valima reception of her sister . On coming to know this incident deceased Shahzeb squabbled with the appellants at the ground floor (reception) of the Country Club Apartment. In the meantime, his father Orangzaib Khan (complainant) along with his wife Ambreen reached there and tried to cool down the situation, but the appellants insisted that they would not be satisfied unless appellant Ghulam Murtaza Lashari is allowed to slap Shahzeb. The complainant directed Shahzeb to tender apology which he did, but the appellants were not satisfied. To avoid
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any untoward situation, the complainant asked him to leave the place. As soon as the Shahzeb left the place in his car, the appellant Shahrukh Jatoi brandished his pistol, made aerial firing and loudly declared that he is Shahrukh Jatoi son of Sikandar Ali Jatoi and he will kill Shahzeb (deceased). Thereafter, the appellants proceeded in a silver colour Toyota car of appellant Shahrukh Jatoi. Apprehending evil designs of the appellant, two friends of the Shahzeb namely Mohammad Shah and Mohammad Ahmed Zuberi followed him in their car whereas the parents of the Shahzeb went to the flat of appellants Nawab Siraj Ali Talpur and Nawab Sajjad Ali Talpur to talk their father Nawab Imdad Ali Talpur. The appellants intercepted Shahzeb near Bungalow No.44/1/1-A at Khayaban-e-Bahria, thereafter, appellants Shahrukh Jatoi and Nawab Siraj Ali Talpur made fires on him while the appellant Nawab Sajjad Ali Talpur and Ghulam Murtaza Lashari instigated them. Mohammad Shah and Mohammad Ahmed Zuberi witnessed the incident and they took the deceased to Ziauddin Hospital in their car and informed the complainant to reach the hospital. The Police had recorded the statement of the complainant at Ziauddin Hospital and registered FIR No.591/2012 at Police Station Darkhshan on 25.12.2012. The charge was framed and all the appellants pleaded not guilty and claimed to be tried. The prosecution examined 23 witnesses in the trial court. In the statements recorded under Section 342 Cr.P.C at Ex.62 to 65, all the appellants contended that the case and the evidence produced against them were false. The appellants did not examine themselves on oath in their defence. The appellants Nawab Siraj Ali Talpur and Nawab Sajjad Ali Talpur examined their father Nawab Imdad Ali Talpur (D.W .1) at Ex.66, in their defence. Shahrukh Jatoi examined five witnesses namely Izharul Haq (D.W .2) at Ex.68, Ashraf Ali Jatoi (D.W .3) at Ex.69, who produced photocopy of his passport and photocopies of two passports of Azhar Ali and Ghulam Akber Jatoi at Ex.69/A & 69/B, Major Syed Asif Nabi (D.W .4) at Ex.70, who produced photocopy of order of permission for soil testing at Ex.70/A, Mohammad Iqbal Durrani (D.W .5) at Ex.71, who produced tenancy agreement at Ex.71/A and Gulzar Ahmed (D.W .6) at Ex.72. 3. Sardar Latif Khan Khosa, the learned counsel for the appellant Shahrukh Jatoi argued that the learned trial court seriously erred in shifting the burden of proof on the appellants. In support of this contention, he referred to 2001 SCMR 424, PLD 2005 SC 63, 2009 SCMR 790, 2009 SCMR 230,1995 SCMR 1345 , and 2004 YLR 216. The version in the FIR was not corroborated through any circumstantial or medical evidence. The learned trial court ignored the deliberate dishonest improvement. Both the eye-witnesses namely Mohammad Shah PW-18 and Mohammad Ahmed Zuberi PW-19 improved their evidence in court to support the evidence of the complainant. The two eyewitnesses claimed to have taken the deceased in their car to Ziauddin Hospital but no blood stains on wears were obtained. The so called evidence of recovery both in respect of crime empties and alleged weapon appeared to be completely doubtful. The appellant was below the age of 18 years and was wrongly tried and convicted by the learned trial court. The case was triable by Sessions Court and not ATC, hence the conviction and sentence awarded by the learned Judge is against the law. He further argued that post-trial legal evidence would determine the proof or disproof of the charge of terrorism. There is no iota of evidence supporting the charge of Section 7 of the ATA. The learned trial court observed that the incident was televised on different channels therefore element of terrorism prima facie visible in the crime and same falls within the ambit of Anti-T errorism Act 1997. The FIR did not spell out any element of terrorism. No question was asked under section 342 Cr.P.C as to whether the act of appellants resulted insecurity , panic or terror in society . A compromise was also arrived at between the parties which was found to be genuine and voluntary . The natural witnesses, residents of Country Club Apartments were PW-13 & PW-14 who deposed the truth. It was further averred that the presence of both the eye witnesses i.e. Muhammad Shah PW-18 and Muhammad Zuberi, PW-19 was doubtful on the scene of occurrence. 4. It was further averred that both the eye witnesses failed to show any physical guarantee of their presence. When they took out Shahzeb drenched in blood from his Car, put him in their Car and took him to Ziauddin Hospital, neither they sustained any scratch mark nor their own clothes were stained in blood. The death certificate of Dr.Ziauddin Hospital Exh.60/E states that Shahzeb was brought to Hospital on 25.12.2012 at 1:30 am but all witnesses came up with changed time of occurrence. The deceased received both the injuries on the back side of the body while he was sitting in front seat and driving the car. The key point which dismantles the ocular account is the directions in which appellants and the deceased proceeded after the brawl. The evidence of
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eyewitnesses are inconsistent, contradictory and poles apart which necessitated the court to give preference one over the other . In the trial, the complainant was examined as PW 7 at Ex 34 and has admitted certain pieces of his evidence not forming part of his 154 Cr.P.C statement with the explanation that on 25.12.2012 when he met with SI Nafees, then he came to know that his 154 Cr.P.C statement was not recorded properly, for which he complained to higher authorities and in consequence SI Yasin was put under suspension, however , no second FIR was registered except his further statement under Section 161 Cr.P.C. It was further averred that the time and date of the occurrence was mentioned in the FIR to be 24.12.2012 at about 11:50 pm. Time of Report 00:45 & FIR at 1:15 am dated 25.12.2012. According to other eye witnesses the time and date of occurrence is 1:15 am dated 25.12.2012 as improved subsequently to accord with entry of arrival in Dr. Ziauddin Hospital Exh. 60/E. The date of arrest of the appellant is 17.01.2013 and the recovery of crime weapon is 23.01.2013. There is a delay of almost 7 days in the alleged recovery of weapon after the arrest of appellant Shahrukh. The place of occurrence is an open plot without boundary wall and accessible to the general public. The identification marks of the crime weapons is also shrouded in mystery . He further argued that crime empties were deposited through letter dated 31.12.2012 in the FSL by PW-22 Nafees Ahmed SI which was taken back on 17.01.2013 upon telephonic direction from FSL to PW- 22. The empties were resubmitted after alleged recovery of pistol. 5. Mr.Mehmood Qureshi Advocate for the appellant Nawab Siraj Talpur and Sajjad Talpur argued that the first version set up by complainant Orangzaib (PW-7) in FIR was dishonestly improved through supplementary statement under Section 161 Cr.P.C. whereby complainant not only changed the time of incident but also the manner of dispute at Country Club Apartment. The learned trial Judge ignored material dishonest improvement. He relied on PLD 1994 (Pesh) 21, 1995 SCMR 1350, 2003 SCMR 1419, 2008 SCMR 6, 2007 SCMR 1825 and 1993 SCMR 550. Both the eyewitnesses namely Muhammad Shah (PW-18) and Muhammad Ahmed Zuberi (PW-19) dishonestly improved the case of prosecution. The PW-20 Muhammad Danish was a chance witness. He was not resident of Country Club Apartment. His presence required independent corroboration which is lacking in this case. There is no circumstantial and or any other corroborative evidence on record to support the prosecution version against the appellants. The testimony of defence witness Imdad Ali Talpur inspired confidence but not given due consideration. The learned counsel further argued that an offence may be gruesome and revolt the human conscience but the accused can be convicted only on legal evidence and not on surmises and conjecture. It is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. Ref: Sarwan Singh Rattan Singh v. State of Punjab (AIR 1957 SC 637), 1995 SCMR 599 and PLD 2002 Supreme Court 1048. The motive as alleged was too weak to prompt a person to kill. He further argued that the Medical Evidence was only confirmatory or of supporting nature and was never held to be corroborative evidence to identify the culprit. Ref: Atta Muhammad and other v. The State (1995 SCMR 599). The learned counsel further argued that the purpose of the F.I.R. is to set the criminal law in motion and to obtain the first hand, spontaneous information of occurrence in order to exclude the possibility of fabrication of story on consultation or deliberation. Ref: 2011 SCMR 45 (Mushtaq Hussain and another v. The State), PLD 1994 Peshawar 214 (Asal Muhammad and others v. The State) and 2006 P Cr. LJ 639 (Dr. Khalid Moin and others v. The State and others). It was further averred that any statement or further statement of the first informant recorded during the investigation by police cannot be equated with First Information Report. Ref: 1995 SCMR 1350 (Falak Sher alias Shero v. The State) , 2003 SCMR 1419 (Khalid Javed and another v. The State ) and 2 0 08 SCMR 6 (Akhtar Ali and others v . The State). 6. The learned counsel further argued that the testimony of witnesses containing material improvements which is not believable and trustworthy. Ref: Sardar Bibi and another v. Munir Ahmed and others, (2017 SCMR 344). He further argued that ocular evidence may be classified into three categories-firstly, wholly reliable; secondly, wholly unreliable; and thirdly, partly reliable and partly unreliable. Ref: Atta Muhammad and others v. The State, (1995 SCMR 599). The learned counsel also quoted the principle that the proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the
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eye-witnesses and the probability of the story told by them and then examine the statement of the accused under section 342, Cr.P.C., statement under section 340(2), Cr.P.C. and the defence evidence. Ref: PLD 1994 S.C. 879 (Ashiq Hussain alias Muhammad Ashraf v. The State), 1993 SCMR 550 (Syed Saeed Muhammad Shah and another v. The State), 2013 SCMR 106 (Mehboob ur Rehman v. The State), 1985 SCMR 510 (Nadeem-ul-Haq Khan and others v. The State), PLD 2008 S.C. 513 (Muhammad Asghar v. The State), 2010 SCMR 1009 (Muhammad Shah v. The State) and 1993 SCMR 550 (Syed Saeed Muhammad Shah and another v. The State). It is a well-settled principle of law that in such a situation, the interpretation favourable to the accused is required to be taken into consideration. Ref: 2010 SCMR 1009 (Muhammad Shah v. The State), 1992 SCMR 96 (Yar Muhammad and others v. The State) 7. Mr. Haq Nawaz Talpur Advocate for the appellant Ghulam Murtuza Lashari argued that the trial court fell in error by not attaching weight to the voluntarily and dishonest improvements made by the prosecution witnesses at trial in particular by the alleged eyewitnesses Muhammad Ahmed Zuberi and Shah Muha mmad. The trial court also failed to appreciate that the omissions in 161 Cr.P.C. statements amount to contradiction and the benefit whereof is always given to the defence. The learned trial court has relied upon the corroboration of tainted piece of evidence for another piece of evidence in proof of the charge. The trial court fell in error by awarding punishment under Section 354 PPC as no ingredients of the of fence is spelt out from the recorded evidence. 8. Mr. Farooq H. Naek, learned counsel for the applicant Shahrukh Jatoi in Criminal Revision Application 40/2014 argued that under Section 7 of Ordinance 2002, the Juvenile Court has to record findings after such inquiry which shall include a medical report for determination of the age of child. ATC Judge wrongly held that B Form of applicant issued on 15.01.2007 on verbal assertion of father was just to obtain passport for applicant which was issued on 03.02.2007. The court failed to consider Municipality birth certificate issued on the basis of Hospital birth certificate but wrongly relied upon Samdani Hospital Certificate issued on 14.05.1998. Atchison College record is also based upon Samdani Hospital Certificate. The Medical report of the board is doubtful because dentists were not part of board. Greulich-Pyle not mentioned in the report to compare bones in X-Ray with bones of standard. It was further averred that Police Surgeon after medical examination of applicant submitted the Report on 21.03.2013 wherein age of the applicant was declared to be 17 to 18 years. The court did not consider the Medical Report and directed for constitution of a Board to conduct ossification test of the applicant to determine his age. On 06.02.2013 applicant was examined by the Medical Board and instead of forming an opinion wrote a letter on the same date to the I.O directing him to produce the passport (Original), birth certificate from Hospital, O'Level/Matric Certificate, NIC/B Form and School Leaving Certificate/Aitchison College. The I.O produced the photocopies of two Passports, duplicate birth certificate dated 14.05.1997 issued by Samdani Hospital in respect of a baby boy born to Mrs. Naseem Sikander and received from Aitchison College Lahore, photocopy and certified copy of "B" Form of NADRA, photocopy of birth certificate of District (East) No.65194 issued by District East Karachi. It was further averred that the Medical Board was not authorized to call for academic record of the applicant. He added that the Greulich Pyle method is unreliable when it comes to children/adolescent persons in Pakistan. He further argued that there are two medical reports and two birth certificates. One in favour of the applicant must be considered which was not done by trial court. 9. The complainant (Orangzaib Khan) was being represented by Mr.Mehmood Alam Rizvi Advocate but during pendency of the instant appeals, he expired, thereafter , Mr.Mehmood Alam Rizvi advocate filed vakaltnama for Mrs.Ambreen (mother of deceased Shahzeb and his sisters Maha Khan and Parishay Waqas). He clearly stated that after recording conviction by the trial court, the complainant had patched up the matter and an application was also filed for recording compromise in this court. He further argued that the affidav its of all legal heirs duly verified by this court are already on record in support of compromise application and even the trial court also recorded the statements of legal heirs and finally submitted the report in this court verifying the genuineness of the compromise. According to the learned counsel he has been issued instructions to concedes his no objection to the acquittal of the appellants in view of the compromise. 10. Heard the arguments. To start with, we feel like to thrash out the plea raised by the learned counsel for the appellants that the case was not triable by the Anti-T errorism Court and despite previous orders passed by this
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court and apex court in this regard, still it is opened to this appellate court to revisit as to whether the case was triable by ATC or ordinary court. The backdrop of this argument is the compromis e reached between the parties. The learned counsel argued that if this court comes to the conclusion that the case should have been tried by ordinary court and remand the case, then on the strength of compromise, the appellants will be acquitted. The learned counsel referred to the case of Province of Punjab vs. Muhammad Rafique (PLD 2018 S.C. 178), in which apex court held that while deciding the question of attraction of the provision s of the Anti-T errorism Act, 1997 the court has to see the manners in which the incident had taken place including the time and place and should also take note of whether the act created terror or insecurity in the general public. In the case of Waris Ali vs. State (2017 SCMR 1572), the court held the harm caused to human life might be devastating, gruesome and sickening, however, this by itself would be not sufficient to bring the crime within the fold of terrorism or to attract the provisions of Sections 6 or 7 of the Anti-Terrorism Act, 1997, unless the object intended to be achieved fell within the category of crimes clearly meant to create terror in people and/or sense of insecurity. Likewise, in the case of Kashif Ali vs. Judge, Anti-Terrorism, Court, Lahore (PLD 2016 S.C. 951), the apex court held that whether a particular act was an act of terrorism or not, the motivation, object, design or purpose behind the act had to be seen. The background of the case in hand demonstrates that earlier also, one of the appellants Shahrukh Jatoi moved an application in the trial court to transfer the case in the ordinary court and when the application was rejected, he approached this court. Ref: 2013 MLD 1588 (Shahrukh Jatoi vs. The State). The learned divisional bench of this court held that the act of Shahrukh Jatoi created sense of helplessness and insecurity amongst the people of Defence/Clifton area, where offence was committed and did destabilize the public at large. As such, provisions of section 6 of the Anti-Terrorism Act, 1997 are fully attracted in this case. The court further held that the case would fall within the jurisdiction of Anti-Terrorism Court and the order of learned trial Court dated 5-3-2013 did not suffer from any material irregularity or illegality, the same was maintained. The learned division bench was fortified by the dictum laid down in the case of Mirza Shaukat Baig v. Shahid Jamil (PLD 2005 SC 530) and also relied on the case of Nooruddin v. Nazeer Ahmed and 4 others (2011 PCr.LJ 1370) in which it was held that enmity would not be the sole criteria to determine the jurisdiction of Anti-Terrorism Court. Aforesaid judgment of this Court was upheld by honourable Supreme Court in the case Nazeer Ahmed and others v . Nooruddin and another ( 2012 SCMR 517 ). Relevant portion is reproduced as under:-- "We have heard the learned Advocate Supreme Court and have perused the record. The learned High Court has examined the material at length and has rightly concluded that the act of the petitioners created sense of insecurity amongst the villagers and did destabilize the public at large and therefore, attracts the provisions of section 6 of the Anti-T errorism Act....... Neither the motive nor intent for commission of the offence is relevant for the purpose of conferring jurisdiction on the Anti-T errorism Court. It is the act which is designed to create sense of insecurity and or to destabilize the public at large, which attract the provisions of section 6 of the Anti-T errorism Act, which in the case in hand was designed to create sense of insecurity amongst the co-villagers." 11. It is a matter of record that earlier the instant appeals were disposed of by a learned Division Bench of this Court on 28.11.2017 and remanded the matter to the court of ordinary jurisdiction for denovo trial on the ground that Anti-T errorism Court had no jurisdiction to try the same. The said order was challenged by civil society members, Muhammad Jibran Nasir & others vs. The State (PLD 2018 S.C. 351). The apex court while deciding the matter also traced the history of this case and observed in the order that soon after taking place of the incident in this case the apex Court had taken suo motu notice of the matter through Constitution Petition No. 01 of 2013 and remained seized of those proceeding s under Article 184(3) of the Constitution till after a Challan of the case was submitted by the local police before an Anti-T errorism Court. The court further observed in the order that suo motu case was finally disposed of on 22.02.2013 and the operative part of the order reads as under: "4. In view of the above, we are of the opinion that the challan has been submitted, therefore, the trial has to take place independently , without being influenced in any manner from the present proceedings, in terms of the provisions of Anti Terrorism Act, particularly , Section 19(7), which provides that the cases have to be decided within a period of seven days by holding day-to-day hearing and also in accordance
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with the guidelines, which have been provided by this Court to monitor the trial proceedings in the case of Sh. Liaqat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs and others (PLD 1999 SC 504). The relevant guidelines have been incorporated in the following paras of the short order:- "(iii) The concerned Special Court should proceed with the case entrusted to it on day to day basis and pronounce judgment within a period of 7 days as already provided in A.T.A. or as may be provided in any other law; (viii) That the Chief Justice of Pakistan may nominate one or more Judges of the Supreme Court to monitor the implementation of the above guidelines. The Judge or Judges so nominated will also ensure that if any petition for leave/or appeal with the leave is filed, the same is disposed of without any delay in the Supreme Court; (ix) That besides invoking aid of the Armed Forces in terms of sections 4 and 5 of the A.T.A. the assistance of the Armed Forces can be pressed into service by virtue of Article 245 of the Constitution at all stages including the security of the Presiding Officer , Advocates and witnesses appearing in the cases, minus the process of judicial adjudication as to the guilt and quantum of sentence, till the execution of the sentence." 5. Copy of this order be sent to the learned Monitoring Judge, appointed by the Hon Chief Justice of High Court of Sindh as well as to the learned Monitoring Judge of this Court for information and for ensuring that the trial of this case is concluded, strictly in accordance with law, within the period as stipulated by the above provisions. 6. Raja Muhammad Ibrahim Satti, learned Sr. ASC, has submitted a Civil Misc. Application No. 765/2012 and stated that as the challan has been submitted and the court had made observation that the trial shall be held…
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