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Petitioner: SHAHID ZAFAR and others VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Sajjad Ali Shah, Naimatullah Phulpoto Title: SHAHID ZAFAR and others vs The STATE Case No.:Special Criminal Anti-Terrorism Appeals Nos.6, 7, 8, 9 of 2011 and
JUDGMENT
Reported As: 2015 P Cr. L J 628 Result: Order accordingly Judgment JUDGMENT NAIMATULLAH PHULPOTO, J.---Aforesaid appeals under section 25(1) of the Anti-terrorism Act, 1997 (herein after referred to as A.T.A.) at the instance of appellants are directed against the judgment dated 12-8-2011, passed by the learned Anti-Terrorism Court-I, Karachi, whereby appellants have been convicted under section 7(a) of the A.T.A. Read with sections 302, 34, P.P.C. And appellant Shahid Zaffar has been sentenced to death with direction to be hanged by neck till he is dead and remaining appellants namely Muhammad Afzal, Bahaur Rehman, Liaquat Ali, Muhammad Tariq, Manthar Ali and Afsar Khan were sentenced to imprisonment for life. Death sentence awarded to the appellant Shahid Zafar was subject to confirmation by this Court under section 374, Cr.P.C. Read with section 30(2) of A.T.A., 1997. All the appellants were directed to pay fine of Rs, 2 lacs each and in case of default in payment of fine, they were ordered to undergo SI for six months' more. Appellants were further directed to pay the compensation of Rs,1 lac each to legal heirs of the deceased under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. Was extended to remaining appellants/accused. The learned trial Court has submitted the proceedings for confirmation of the death sentence. By this judgment, we would decide the aforesaid appeals as well as Reference for confirmation of death sentence awarded to appellant Shahid Zafar. 2. Brief facts of the prosecution case as disclosed in the FIR are that on 9-6-2011 at 0030 hours Syed Salik Shah lodged his report at PS Boat Basin alleging therein that he resides at H. No,22/26, Hijrat Colony, Street No,33, Karachi and he was media person attached with Samaa T.V. On 8-6-2011, he was present in his office at 5-30 p.m., his mother informed him on telephone that the ladies of
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Mohalla had informed her that her son Sarfaraz had a quarrel with someone in Shaheed Benazir Bhutto Park, where police and Rangers personnel were available. After hearing such news, complainant went to the Police station Boat Basin, where SIP Zulfiqar Ali duty officer informed him that a young person has received injury, fired by Rangers personnel in a quarrel at Shaheed Benazir Bhutto Park and injured person has been taken to the Jinnah Hospital Karachi. It is further alleged that complainant went to the Jinnah Hospital and found his brother lying dead, in Emergency Ward. It is alleged by the complainant that appellants Muhammad Afzal, Shahid Zafar along with their companions and two unknown persons had committed murder of his brother Syed Sarfaraz Shah. FIR was recorded vide Crime No,227 of 2011 under. Section 302/34, P.P.C. At Police Station Boat Basin on 9-6-2011 at 0300 hours. 3. After registration of FIR, its copy was supplied to SIO Faqeer Dad Yousufzai of P.S Boat Basin for investigation. He investigated the case till 10-6-2011. SIO visited the place of wardat situated at Benazir Park Clifton Karachi in presence of mashirs, it was shown to him by SIP Zulfiqar Ali. He prepared mashirnama of place of wardat in presence of mashirs SIP Zulfiqar and PC Nazir and prepared such mashirnama. He recorded 161, Cr.P.C. Statements of P.Ws. SIP Zulfiqar and PC Nazir. On the same date, at 2345 hours SIP Mubashir Hussain appeared at Police Station and produced two accused persons namely Shahid Zaffar and Muhammad Afzal. He arrested them in presence of mashirs namely SIP Riaz Hussain and PC Nazir and prepared such mashirnama. On 10-6-2011 Lance Naik Muhammad Ashfaq appeared at Police station and handed over G-3 Rifle No,1289 with 10 live bullets and two empties through letter. He secured the same in presence of mashirs HC Maula Bux and SI Nasrullah and prepared such mashirnama and sent said G-3 Rifle to Incharge FSL, Karachi on 11-6-2011, with two empties used in this crime for examination and report. I/O recorded 161, Cr.P.C. Statements of P.Ws. During investigation he added section 7, A.T.A., 1997. 4. Honourable Supreme Court of Pakistan had taken suo motu action in this matter and in Suo Motu Case No,10 of 2011 Mr. Sultan Ali Khawaja was directed to take over the charge of investigation while observing in order dated 10-6-2011 as under:-- "(12) From the above noted facts and circumstances, it is not difficult to visualize that how this incident had taken place and the manner in which both the high-ups i,e, of the Police and the Rangers, had dealt with the It is classical case of highhandedness of the law enforcing agencies and instead of feeling sense of responsibility and showing uprightness and honesty, they are, even today, concealing the facts while appearing before this Court. Therefore, under these circumstances, we apprehend that the investigation of the case would not be conducted properly and impartially in presence of both these senior officers i,e, Mr. Fayyaz Ahmed Leghari, PPO Sindh and Mr. Muhammad Ejaz Chaudhry, DG Rangers (Sindh), as such through Attorney General of Pakistan, we direct that they should be posted out within a period of three days and in the meantime some alternate arrangements should be made. However, if after three days, the notifications in this regard are not issued, it is directed to withhold the salaries of above two officers as they would not be entitled for the same till the notification of their posting out is not issued. This part of our order shall be enforced/implemented by the Secretary Interior by proceeding according to relevant rules. Meanwhile, Mr. Sultan Khawaja, DIG Karachi, who is statedly a reputable officer, is directed to take over the charge on the investigation against all the culprits and complete the same within a period of seven days, by applying all appropriate provisions of law as the matter seems to attract prima facie section 7 of the A.T.A., 1997, and shall send up challan before the Court of competent jurisdiction. He shall also submit progress report of his investigation to the Registrar of this Court for our perusal in Chambers." 5. There after investigation was transferred to DIG Sultan Ali Khawaja. Sultan Ali Khawaja, DIG constituted an investigation team with approval of CCPO, Karachi headed by him, statements of the P.Ws. Were recorded under section 161, Cr.P.C., case properties were sent to Ballistic and
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Chemical Examiners for analysis and report, cell phones data used by the accused and deceased were collected. He had also received report from the Fire Arm Examiner, Karachi dated 17-6-2011, in Crime No, 227 of 2011 under sections 302, 34, P.P.C., in which it was shown that pistol in question was not fire arm. He had also received report of the Chemical Examiner showing that clothes of the deceased were stained with human blood. Report of the Ballistic Expert regarding other official weapons recovered from accused was also received. On the completion of the investigation, challan was submitted against appellants in the court of learned Administrative Judge ATC, Karachi under section 302, 34, P.P.C. Read with 7, A.T.A., 1997. Case was transferred to the Court of learned Anti-Terrorism Court No,1, Karachi for disposal according to law. 6. A formal charge against appellants/accused Shahid Zaffar, Muhammad, Afzal Khan, Baha-ur- Rehman, Liaquat Ali, Muhammad Tariq, Manthar Ali and Afsar Khan was framed at Exh.10. To the charge accused pleaded not guilty and claimed trial. 7. At trial, prosecution examined, P.W.1 Syed Salik Shah, P.W.2 SIP Riaz Hussain, P.W.3 Muhammad Javed, P.W.4 SIP Zulfiqar Ali, P.W.5 Inspector Naseer Muhammad, P.W.6 Mst. Gul Naz, P.W.7 Muhammad Shaheen Javed, P.W.8 SIP Abdul Haleem Kolachi, P.W.9 Dr. Ayaz Ali Memon, P.W.10 Abdul Rasheed, P.W.11 SIP Nasrullah Khan. P.W.12 Muhammad Shahid, P.W.13 Muhammad Ramzan, P.W.14 SIP Faqeer Dad, P.W.15 Zahid Essa Khokhar, P.W.16 Shakeel Ahmed Shaikh, P.W.17 inspector Muhammad Mubeen, P.W.18 Abdul Salam Soomro, P.W.19 DSP Altaf Hussain, P.W.20 DIG Sultan Ali Khawaja. 8. Statements of appellants Shahid Zafar, Muhammad Afzal, Bahaur Rehman, Liaquat Ali, Muhammad Tariq, Manthar Ali and Afsar Khan were recorded under section 342, Cr.P.C. At Exhs.32 to 38, in which appellants have denied prosecution allegations and pleaded innocence. Appellant Shahid Zafar has stated that he has not committed murder of deceased Sarfraz Shah. However, he has admitted that on 8-6-2011, he along with other Rangers had gone to Shaheed Benazir Park for performing duty. He has also replied that he had no knowledge about the video clip of the incident shown on AWAZ TV on 8-6-2011. He has also denied that he had committed the act of terrorism. He further stated that P.Ws. Have deposed against him at the instance of complainant and I.O. He wanted to examine in defence Col. Salman, Pakistan Rangers, Muhammad Saleem, Driver CHEEPA Ambulance and Chief Engineer SAMA TV. Appellant Shahid Zafar did not examine himself on oath in disproof of prosecution allegations. In a question what else he has to say, he replied that he was innocent and has been falsely implicated in this case. Appellant Muhammad Afzal Khan has also pleaded innocence and denied the prosecution allegations and stated that P.Ws. Have deposed against him at the instance of 1.0. Appellant Muhammad Afzal Khan did not examine himself on oath in disproof of prosecution allegations. He did not examine any witness in defence. Appellant Bahaur Rehman has also pleaded innocence and denied the prosecution allegations and stated that he had not committed act of terrorism and P.Ws. Have deposed against him at the instance of I.O. No evidence has been led by him in defence and he declined to give statement on oath in disproof of prosecution allegations. Appellant Liaquat Ali has also denied prosecution allegations and stated that he had not committed act of terrorism and P.Ws. Have deposed against him at the instance of I.O. No evidence in defence is produced by him and he did not examine himself on oath. Appellant Muhammad Tariq has also denied prosecution allegations and stated that he had appeared before I.O. Himself. He has shown ignorance about video clip of incident. Appellant Muhammad Tariq has denied the commission of act of terrorism and stated that P.Ws. Have deposed against him at the instance of complainant and police. He wanted to examine in defence one Alam Zaib. Appellant did not examine himself on oath. Appellant Manthar has denied the prosecution allegations and stated that he had called accused Afsar Khan on his mobile. Other prosecution allegations have been denied by him. He wanted to examine in defence one Alam Zaib, however no evidence on oath was given by him. Appellant Afsar Khan has also denied all the
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incriminating pieces of evidence brought on record against him and stated that no act of terrorism has been committed by him and P.Ws. Have deposed against him at the instance of complainant and P.Ws. He wanted to examine in defence DIG Sultan Ali Khuwaja, DSP Altaf Hussain and SIP Nasrullah. He declined to give statement on oath in disproof of prosecution allegations. In a question what else he has to say, he replied that he is innocent and has been falsely implicated in this case by the complainant because he had apprehended deceased and handed over to the Rangers personnel. D.W.1. Alam Zaib Khan has deposed that on 8-6-2011 he had visited Shaheed Benazir park with his friend Miss Hira and he was sitting with her in park where one person appeared and pointed out pistol at them and asked to raise hands up and hand over to him all the belongings. He asked Miss Hira to handover him her mobile phone, thereafter culprit asked Alam Zaib Khan to handover him his mobile, to which he resisted and caused him butt blows and he fell down. In the meanwhile, appellant Afsar Khan came there and he handed over said person to appellant Afsar Khan and appellant Afsar Khan handed over his custody to law enforcing agency. Hi cross-examination he denied the suggestion that he was not present in Shaheed Benazir park on the day of incident along with Miss Hira. He has denied the suggestion that he was deposing falsely in order to save the accused from the conviction. D.W.2 Col. Salman Ahmed Khan has deposed that on the day of incident accused were performing their duties in the area of Boat Basin. Before incident he came to know that accused persons were called by one civilian and they were handed over one person involved in commission of robbery. Above named D.W. Came to know that accused persons asked culprit to sit down and raise his hands up, but he tried to snatch weapon from accused persons and he died due to accidental fire. He has further stated that Rangers perform duty to maintain law and order at Karachi. No other defence witness has been examined by appellants and Advocates for the appellants/accused closed side. 9. We have carefully heard the learned counsel for the parties and scanned the entire evidence. 10. In order to prove an unnatural death of deceased Sarfaraz Shah, prosecution has examined Dr. Ayaz Ali (P.W.9), who has stated that on 8-6-2011 he was performing his evening duty in the JPMC. At 6-00 p.m. Injured Sarfraz was brought in the hospital in the critical condition by Chippa driver namely Saleem. He examined him and found following injuries on his person:-- (1) Fire Arm puncture wound 1 c.m. In diameter over posterior aspect of upper one third of left forearm. Margins are inverted and no blackening present. Wound of entry. (2) Fire Arm injury measuring size 8 cm x 5 cm over medial aspect of mid of left forearm. Margins are rough and averted. Wound of exit. (3) Fire Arm punctured wound 1 c.m. In diameter over posterior aspect of lower one third of left forearm. Margins are inverted and no blackening present. Wound of entry. (4) Fire arm injury measuring 5 c.m x 4 c.m over medial aspect of lower one third of left forearm. Margins are rough and averted. Wound of exit. (5) Firearm injury measuring 20 c.m. x 15 c.m. Over medio) posterior aspect of right thigh, bursting in manner. (6) Firearm injury 4 c.m x 3 c.m over anterior aspect of left thigh, margins are inverted and no blacking present. Wound of entry. (7) Firearm injury 12 c.m x 10 c.m, posterior aspect of left thigh, margins are rough and averted. Wound of Exit. Medical Officer after examination of injured issued such certificate and produced it at Exh.19/A. Thereafter injured expired and certificate of cause of his death was issued by Dr. Ghulam Mustafa of JMPC while opining that deceased had died due to cardio pulmonary failure as a result of firearm injuries. He produced such certificate at Exh.19/B. He had handed over clothes of deceased to SIP Muhammad Javed at P.S. Boat Basin. Evidence of the Medical Officer goes unchallenged and
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unrebutted in cross-examination. Only one question had been put up to the doctor and he replied that he did not find marks of fists or kicks blows on the body of deceased. 11. The number of injuries, nature and weapon used have not been disputed in cross-examination. Efficiency and Integrity of the Medical Officer have not been questioned. Therefore, we have no hesitation to hold that deceased Sarfraz Shah died his unnatural death as described by Medical Officer. 12. Complainant Syed Salik Shah has stated that on 8-6-2011 at 5-30 p.m. He was present at his office situated at Techno City of Altaf Hussain Hali Road. He received call of his mother, she informed him that mohalla women have told her that there was some quarrel with Sarfraz Shah (deceased) at Shaheed Benazir Park. He was further informed that police and Rangers personnel were available at the place of incident. Complainant after receipt of such information, contacted Boat Basin police, but they had no knowledge about the incident. SIP Zulfiqar subsequently told to the complainant that consequent upon the quarrel of his brother he had received injuries and he had been shifted to the Jinnah Hospital. Complainant went there and found that the dead body of his brother was lying in emergency and some Rangers personnel were standing there. One Afzal belonging to Rangers was also standing there. He enquired him about murder of his brother, to which he replied that his brother has been murdered in the encounter with the Rangers. Complainant got dead body of his brother after postmortem examination and came to the C.M. House along with friends and relatives by taking the dead body for protest against such act of Rangers Officials. Protest continued for 6/7 hours and on the assurance of the police officials he went to the police station and lodged the report. He saw video clip of his brother on TV. Channel but could not see it and lost his senses. He was cross-examined by learned Advocate of accused Shahid and Afzal and admitted that names of the culprits of the incident were not disclosed by mohalla women to his mother. He has stated that he had found accused Shahid Zafar and Muhammad Afzal in Rangers uniform in the hospital. Complainant has denied the suggestions that his brother was involved in committing robbery. In the cross-examination to learned Advocate for remaining accused, complainant has replied that his further statement was recorded after Juma prayer and he had not mentioned the names of the eye-witnesses in the FIR or in further statement. He has denied the suggestions that pistol was recovered from the possession of his brother. He has also denied the suggestions that he was deposing falsely against the accused. 13. P.W.2 S.I.P. Riaz Hussain Awan has stated that on 8-6-2011 he was performing his duty at P.S. Boat Basin. Complainant appeared at police station on the same day at 1215 hours for lodging his report against Rangers personnel. He recorded his statement and handed over copy of the FIR to SIO for investigation purpose. On 9-6-2011 at 2345 hours SIP Mubashir Hussain of Rangers brought accused Shahid Zaffar and Muhammad Afzal. They were arrested by SIP Faqeer Dad, such mashirnama was prepared. He acted as mashir. Co-mashir was P.C. Nazir Khattak. He has stated that his statement under section 161, Cr.P.C. Was recorded on 16-6-2011. His statement was also recorded by DIG Sultan Ali Khawaja I.O. Of the case. In the cross-examination, he has replied that names of accused Baha-u-Rahman and Liaquat Ali are not mentioned in the FIR. It has also been admitted that names of the eye-witnesses are not mentioned in the FIR. 14. P.W.3 SIP Muhammad Javed Rajput has stated that on 8-6-2011 he was posted, at P.S. Boat Basin. On the same day at 1835 hours he received telephonic message from S.I. Wilayat that he had been informed by Dr. Ayaz that one person namely Sarfraz Shah son of unknown aged about 25 years has expired in the hospital and he was required to reach at JPMC for completion of legal formalities. He reached in the hospital and found dead body of deceased Sarfraz Shah. At that time Shahid Zafar and Muhammad Afzal belonging to Rangers were standing near the dead body. He prepared mashirnama of inspection of dead body and inquest report and gave letter to the doctor
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about his opinion regarding cause of death of deceased. In the cross-examination he has denied the suggestion that he was deposing falsely. 14(sic.) P.W.4 SIP Zulfiquar Ali Gujar has stated that on 8-6-2011 he was present at P.S. Boat Basin. At 6-35 p.m. SIP Javed received information in his presence that one person namely Sarfraz Shah has been brought to the hospital in the injured condition while he was committing dacoity. He informed S.H.O. P.S. Boat Basin about the incident. In the meanwhile SIP Javed proceeded to hospital and he lodged FIR of Crime No,225/2011, under sections 393, 353, 324, P.P.C. And FIR No,226 of 2011, under section 13(d), Arms Ordinance of the complainant Afsar Khan against Sarfraz Shah. He produced FIRs at Exhs.14/A and 14/B. SHO handed over one pistol of .30 bore, 3 live bullets and one empty, one purse, cash of Rs,750 and a mobile to him, SHO told him that articles have been handed over to him by Rangers Personnel, the same were recovered from the possession of deceased. He sealed pistol and bullets and handed over the case property to SIO P.S. Boat Basin for investigation purpose. On 9-6-2011 at 6-00 p.m. First I.O. SIP Faqeer Dad visited the place of vardhat in his presence and in presence of mashir P.C. Nazir and prepared such mashirnama. He has stated that his statement was recorded by DIGP Sultan Ali Khawaja, Investigating Officer in this case. In the cross-examination he has admitted that his statement under section 161, Cr.P.C. Was recorded after eight days of the incident. He has denied the suggestions that he was deposing falsely against the accused at the instance of his superiors. 15. P.W.5, Inspector Naseer Muhammad Tanoli has stated that on 8-6-2011 he was posted as S.H.O. P.S. Boat Basin. At 1840 hours he was performing his patrolling duty, he received information at mobile phone from SIP Zulfiquar of P.S. Boat Basin that one person has been seriously injured in the firing of Rangers personnel at Shaheed Benazir Bhutto park and he has been taken to JPMC. On such information, SHO, proceeded to place of vardhat, where number of persons were available, he enquired from them about incident, they informed the SHO that one person has received the injuries caused by Rangers personnel and he has been shifted to JPMC. SHO went to JPMC, where he met SIP Javed, who disclosed him that injured has expired. In the meanwhile, he received call from Deputy Superintendent Rangers namely Ali, who asked SHO to reach at Rangers Headquarter 32 Wing Kalapul. He went there and met Superintendent Rangers, he called SIP Baha-u-Rahman, who handed over to him one pistol with magazine, three live bullets, one empty, one purse, cash Rs,750 and one mobile phone through letter and stated that articles were recovered from deceased Sarfraz Shah. SIP Baha-u-Rahman further informed SHO, that during encounter deceased had fired upon them from the pistol. Superintendent Rangers namely Ali asked SHO to take Afsar Khan at P.S. For lodging his report. He came to P.S. Along with Afsar Khan and handed over articles to SIP Zulfiquar for legal proceedings. On 9-6-2011 he received telephone from duty officer SIP Riaz that one media person had appeared at P.S. For registration of the FIR against Rangers Personnel. He directed SIP Riaz to register FIR of the complainant and FIR No,227/2011 under sections 302, 34, P.P.C. Was registered. In the cross-examination, SHO has replied that prior to this incident deceased Sarfraz Shah was apprehended by him while committing robbery, but he was released at the request of his parents. He has denied the suggestions that he has deposed falsely against the accused at the instance of DIG Sultan Ali Khawaja. 16. P.W.6 Mst. Gul Naz Tanoli has stated that she resides with her husband and children in her house situated in street No,21, Hijrat Colony, Karachi. She saw video clip at Samaa T.V. At 1.30 a.m. And saw six Rangers personnel and one private person had apprehended deceased, private person was causing fists and kicks blows to him and handed over him to Rangers Personnel at Shaheed Benazir Bhutto Park. She has further stated that boy was begging for his life and was praying for mercy before the Rangers Personnel and one Ranger was asking the other Rangers personnel/accused to open fire upon him. Deceased received fire at his hand and leg and fell down. He was bleeding. Deceased was requesting to the accused to shift him to the hospital but no
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one came forward. After seeing the video clip, she stated that she was confused and felt insecure and could not move freely and her children were also under fear and felt insecure. She was cross- examined. She denied the suggestions that she has deposed falsely against the accused at the instance of complainant. 17. P.W.7 Muhammad Shaheen Javed has stated that on 9-6-2011 at 7-30 a.m. He came to the house from the duty and found mohalla people under fear and his family was also feeling insecure as Rangers personnel had committed murder of a boy. He switched on T.V. And saw video clip that one person in civil dress apprehended one person and handed over to Rangers personnel after causing him kicks blows. The boy was trying to sit in the police mobile and Rangers personnel dragged him down and pointed their weapons at him, in the meanwhile, he was fired upon by the Rangers personnel and deceased was begging for his life before the Rangers officials, but no one heard him. On seeing this footage on T.V. He has stated that he felt insecure. On 12-6-2011 his statement under section 161, Cr.P.C. Was recorded. He…
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