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Official Citation: 2024 PCRLJ 1271
Court / Jurisdiction: Sindh High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Muhammad Jamil Ahmed and another vs The State
Ruling Summary: This decision was rendered by the Sindh High Court on 2023-12-31, officially reported as 2024 PCRLJ 1271. In this matter between Muhammad Jamil Ahmed and another and The State, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 PCRLJ 1271
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Irshad Ali Shah Title: Muhammad Jamil Ahmed and another vs The State Case No.:Special Criminal Anti-Terrorism Appeals Nos. 197 to 199 and Confirmation
JUDGMENT
Reported As: 2024 PCRLJ 1271 Result: Appeals dismissed Judgment
JUDGMENT MOHAMMAD KARIM KHAN AGHA, J. Muhammad Jamil Ahmed and Muneer Ahmed appellants were tried by learned Anti-Terrorism Court No.VI, Karachi in Special Cases Nos. 220 to 222 of 2011, arising out of FIR No.765/2011 for offences punishable under Sections 302/324/353/34 P.P.C read with Section 7 of Anti-Terrorism Act, 1999, FIR Nos. 766 and 767 of 2011 for offence punishable under Section 13(D) Arms Ordinance .1965 lodged at P.S Gulshan-e-Iqbal, Karachi. After full-dressed trial, the appellants were convicted and sentenced as under; 1. Accused Muhammad Jameel Ahmed is convicted in Crime No.765/2011 under section 302(b) P.P.C and he is sentenced to death with compensation of Rs.200,000/- (Two Lacs) to be paid to the LRs of the victim. 2. Accused Muneer Ahmed is convicted in Crime No.765/2011 under section 302(b) P.P.C and he is sentenced to death with compensation of Rs.200,000/- (Two Lacs) to be paid to the LRs of the victim. 3. Accused Muhammad Jameel Ahmed is also convicted in Crime No. 765/2011 under section 324 P.P.C and sentenced to Rigorous Imprisonment for ten (10) years and fine of Rs.50,000/- in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 6 months. 4. Accused Muneer Ahmed is also convicted in Crime No. 765/2011 under section 324 P.P.C and sentenced to Rigorous Imprisonment for ten (10) years and fine of Rs.50,000/- in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 6 months.
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5. Accused Muhammad Jameel Ahmed is also convicted in Crime No. 765/2011 under section 353 P.P.C and sentenced to Rigorous Imprisonment for five (05) years and fine of Rs.20;000/ - in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 4 months. 6. Accused Muneer Ahmed is also convicted in Crime No.765/2011 under section 353 P.P.C and sentenced to Rigorous Imprisonment for five (05) years and fine of Rs.20,000/- in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 4 months. 7. Accused Muhammad Jameel Ahmed is also convicted in Crime No. 765/2011 under section 7(1) (a) ATA 1997 and he is sentenced to death. 8. Accused Muneer Ahmed is also convicted in Crime No.765/2011 under section 7(1) (a) ATA and he is sentenced to death. 9. Accused Muhammad Jameel Ahmed is guilty of an offence under section 7(1)(c) of Anti- Terrorism Act, 1997 in Crime No.765/2011 and he is convicted and sentenced to R.I for ten (10) years and fine of Rs.50,000/- in case of default in payment of the fine then he shall suffer Simple Imprisonment of another 6 months. 10. Accused Muneer Ahmed is guilty of an offence under section 7(1) (c) of Anti-Terrorism Act, 1997 in Crime No. 765/2011 and he is convicted and sentenced R.I for ten (10) years and fine of Rs.50,000/- in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 6 months. 11. Accused Muhammad Jameel Ahmed is guilty of an offence under section 6(2) (n) punishable under section 7(1) (h) of Anti-Terrorism Act, 1997 in Crime No. 765/2011 and he is convicted and sentenced to R.I for five (5) years and fine of Rs.20, 000/-in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 4 months. 12. Accused Muneer Ahmed is guilty of an offence under section 6(2) (n) punishable under section 7(1) (h) of Anti-Terrorism Act, 1997 in Crime No. 765/2011 and he is convicted and sentenced to R.I for five (5) years and fine of Rs.20, 000/- in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 4 months. 13. Accused Muhammad Jameel Ahmed is also convicted in Crime No.766/2011 under section 13-D Arms Ordinance, 1965 and he is sentenced to undergo R.1 07 years and with fine of Rs.10,000/- and in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 6 months. 14. Accused Muneer Ahmed is also convicted in bearing Crime No.767/2011 under section 13-D Arms Ordinance, 1965 and he is sentenced to undergo R.1 for 07 years and with fine of Rs.10,000/- and in case of default in payment of the fine then he shall suffer a Simple Imprisonment of another 6 months. All the sentences were ordered to run concurrently.' Benefit of section 382-B Cr.P.C was also extended to the appellants. The sentences of death awarded to the appellants were subject to confirmation by this court. 2. The brief facts of the prosecution case are that on 04.11.2011 at 1230 hours complainant Faisal Mehmood son of Ayoub Khan lodged FIR No. 765 of 2011 under sections 302/324/353/34 P.P.C read with section 7 of ATA 1997 of PS Gulshan-e-Iqbal Karachi. FIR No.766 of 2011 under section 13-D of Arms Ordinance and FIR No.767 of 2011 under section 13-D of Arms Ordinance were lodged by complainant SIP Muhammad Sarfraz of PS Gulshan-e-Iqbal Karachi. Complainant Faisal Mehmood narrated the episode of the incident by stating that on 04.11.2011 at 1230 hours, he and his cousin Ghulam Zain-ul-Abdin left their home to meet Sarfraz son of Justice (R) Zawar Hussain Jafferi, at his residence because it was Friday and they had planned to offer the Jumma prayer together. On arriving, they rang the doorbell of the house of Sarfraz in the meanwhile a silver colour Cultus car bearing Registration No. AUT-209 came in front of the Bungalows No.B-158 and B-163 from which four persons alighted and fired at them, indiscriminately. In order to save his life, he laid down on
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the ground, however, his cousin Ghulam Zain-ul-Abidin sustained multiple fire arm injuries fell down. The police guard Hassan Ali Chandio posted at the house of Justice (R) Zawar Hussain Jafferi on seeing the incident fired upon the culprits and in the meanwhile, a police mobile of PS Gulshan-e-lqbal also arrived at the place of incident and he apprised the police regarding the incident. The police chased the accused persons and after exchange of fire succeeded to arrest two accused persons with their car at certain distance whereas their companions fled away from the scene. On enquiry the apprehended accused disclosed their names as Muhammad Jameel and Muneer. During personal search from accused Muhammad Jameel, SIP Sarfraz recovered one 30 bore Sten gun without license loaded with four live rounds in its magazine and one in chamber. One bag was also found hung on shoulder of accused Muhammad Jameel from which SIP found ten live bullets and two scarfs like Mask, one ladies shalwar, one pair of ladies sock, one bottle of spirit and one Samsung Mobile phone, whereas from the possession of accused Muneer Ahmed, SIP recovered one 30 bore pistol loaded with five live rounds in the magazine. Six empties of 30 bore pistol and seven empties of SMG were also recovered from the place of incident. The case properties were sealed at the spot and SIP Sarfraz seized the vehicle of the accused persons from the place of incident. SIP Sarfraz recorded the statement of complainant Faisal under section 154 Cr.P.C at the spot. SIP Sarfraz brought the apprehended accused persons along with case property at PS Gulshan-e-Iqbal, where he incorporated the statement under section 154 Cr.P.C of complainant Faisal Mehmood in 154 Cr.P.C. Book and registered FIR No.765 of 2011 for the offence punishable under sections 302/353/324/34 P.P.C read with section 7 ATA 1997. He also registered FIR No.766 of 2011 and FIR No.767 of 2011 and FIR No.768 of 2011 for offence punishable under section 13-D Arms Ordinance against the apprehended accused persons as well as against the absconding accused, who made their escape good after throwing away unlicensed arms and ammunition. 3. After registration of the cases, the investigation was assigned to Inspector Chowdhry Manzoor Ahmed, who received the custody of accused Muhammad Jameel and Muneer Ahmed at SIC District East. On 06.11.2011 he called the owner namely Ammad Sher Khan of vehicle bearing registration No.AGB-663. Maker Cultus Suzuki of 2004 who informed him that he had rented out the car to one Shafi on 28.10.2011 for which he produced receipt. I.O. has seized the same and prepared the memo of seizure of the receipt in presence of Ammad Sher Khan. On 10.11.2011, he sent two letters to his SSP for obtaining permission to send the case property for FSL and chemical analyzer. On 14.12.2011, he got identified both the accused persons by eye-witnesses through Judicial Magistrate Karachi, East. On 15.11.2011, he deposited the Perchajat of the deceased in the office of Chemical Examiner along with letter. After receiving the FSL report, the I.O submitted the report under section 173 Cr.P.C. before the competent Court of Law. 4. The trial court framed charge against the accused to which they pleaded not guilty and claimed their trial. 5. At trial, the prosecution in order to prove its case examined 12 PWs and exhibited numerous documents and other items. The statements of the accused were recorded under section 342 Cr.P.C whereby they claimed false implication. They did not examine themselves on oath or call any witness in support of their defence case. 6. Learned trial court after hearing the learned counsel for the parties and assessing the evidence available on record convicted and sentenced the appellants as stated above. 7. Learned trial court in the impugned judgment has already discussed the evidence in detail and there is no need to repeat the same here, so as to avoid duplication and unnecessary repetition. 8. Learned counsel for the appellants have contended that the appellants are completely innocent and have been falsely implicated in this case; that the eye-witnesses evidence regarding the incident of murder is false as this was an unwitnessed incident; that the police departure entry at P.89 A does not mention one of the PWs as being part of the patrolling party which shows the
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falseness of the police case; that there are major contradictions in the evidence of the PWs and as such their evidence cannot be safely relied upon; that the recovered pistols were foisted on the appellants by the police; that the identification of the appellants cannot be safely relied upon as it was conducted 10 days after the incident and the rules for conducting identification parades have not been followed; that there was a delay in sending the recovered empties for FSL report and as such the FSL report cannot be relied upon and as such for any or all the above reasons the appellants by extending them the benefit of the doubt should be acquitted of the charge. In support of their contentions, they have relied upon the cases of Sarwar Gul v. The State and 2 others (2002 PCr.LJ 163), Muhammad Hafeez alias Babu v. The State (2005 PCr.LJ 1335), Muhammad Imran v. The State (2009 PCr.LJ 997), Fida Hussain v. The State (2013 PCr.LJ 1237), Ziarat Gul v. The Stale (2017 PCr.LJ Note 86), Shah Izzat alias Shahzad v. Admin. Constable No.5355 and another (2017 PCr.LJ 25), Ali Sher and others v. The State (2008 SCMR 707), Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142), Hakeem and others v. The State (2017 SCMR 1546), Azhar Mehmood and others v. The State (2017 SCMR 135), Raees Khan v. The State (2018 MLD 835) and Makhan v. Allandino and 4 others (2019 MLD 1383). 9. On the other hand learned Additional Prosecutor General Sindh on behalf of the State has fully supported the impugned judgment. In particular he has contended that the evidence of the police eye-witness and other eye-witnesses are trust worthy reliable and confidence inspiring and can be safely relied upon, that the appellants were arrested on the spot and their pistols recovered from them; that the medical evidence supports the prosecution case, that the empties recovered from the scene led to a positive FSL report when matched with the above pistols and as such the prosecution had proved its case beyond a reasonable doubt against the appellants and their appeals be dismissed and confirmation reference answered in the affirmative. In support of his contentions, he placed reliance upon the cases of Maji v. The State (1970 SCMR 331), Muhammad Din v. The State (1985 SCMR 1046), Noor Muhammad v. The State (1499 SCMR 2722). Muhammad Ehsan v. The State (2006 SCMR 1857), Khadim Hussain v. The State (PLD 2010 SC 669), Muhammad Ilyas and others v. The State (2011 SCMR 460), Muhammad Ashraf v. The State (2011 SCMR 1046) and Dadullah and another v. The State (2015 SCMR 856). 10. We have heard the arguments of the learned counsel for the parties and gone through the entire evidence which has been read out by learned counsel for the appellants and the impugned judgment with their able assistance and have considered the relevant law including that cited at the bar. 11. We find after our reassessm ent of the evidence based on the evidence of the eye-witness police guard, other PW witnesses including police witnesses, PW MLO and post mortem report, recovery of empties from the spot and the dead body being moved from the place of incident to hospital that the prosecution has proved beyond a reasonable doubt that on 04.11.2011 at 12.30 pm Zain-ul-Abdin (the deceased) was shot by firearm and succumbed to his injuries (murdered) before reaching hospital in front of Bungalow Nos.B-158 and B-163 Block 5 Gulshan-e-Iqbal Karachi. 12. The only issue therefore, in our view, left before us is whether it was the appellants (Jameel and Muneer) who were a part of the group of assailants who fired at the deceased and injured him with their firearm shots which lead to his murder and had an encounter with the police and had unlicensed pistols recovered from them at the aforesaid time, date and location. 13. After our reassessm ent of the evidence we find that the prosecution has proved its case against the appellants (Jameel and Muneer) for murdering the deceased by firearm, engaging in an encounter with the police and for carrying unlicensed firearms beyond a reasonable doubt and hereby uphold the convictions and some of the sentences in the impugned judgment against the appellants for the following reasons:
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(a) that the FIR was registered with promptitude within an hour and 30 minutes of the incident in which the appellants have been named and given specific roles of firing at the deceased and being involved in an encounter with the police where unlicensed pistols were recovered from them on their arrest and as such there was no time for the police to consult and concoct a false case with the complainant. Furthermore no enmity existed between either the complainant or the police against the appellants and thus the complainant and the police had no reason to implicate the appellants in a false case. (b) that both the accused were caught red handed each with an unlicensed pistol and were arrested almost on the spot by the police after an exchange of fire between them and the police so once again there is no chance of false implication or even misidentification. (c) The key witnesses in this case in our view are eye-witnesses PW 7 Hasan Ali, PW 10 Fasial Mahmood, PW 5 Amad Sher Khan and PW 6 Muhammed Qureshi, PW 1 Muhammed Sarfraz and PW 2 Ghulam Mustafa's as this prosecution case mainly revolves around the correct identification of the accused who shot the deceased and were involved in the encounter with the police. We shall consider the evidence of these eye-witnesses in turn below; (i) Eye-witness PW 7 Hasan Ali. He was a security guard performing his duties outside the house of Justice (Rtd.) Zawar Hussain Jaffery. According to his evidence the deceased and PW 10 Fasial came to the house at about 12.30pm on 4.11:2011 and he went inside to inform Justice (Rtd) Jaffery when he heard firearm reports. He went outside and saw 4 persons in a silver cultus car 3 of whom had got out of the car who fired on the deceased who sustained bullet injury to his head. He returned fire but the culprits escaped in the cultus car which was chased by a police mobile whereupon the culprits in the cultus car exchanged fire with the police in the mobile where after the police managed to apprehend two of the culprits at a certain distance in another street. He was called before an identification parade 10 days later where he picked out the appellants as the persons who had fired on and murdered the deceased. Such delay in our view will not hinder his correct identification as there is no hard and fast rule as to when an identification parade should be held although the sooner the better even if it was required which was not necessarily the case based on the particular facts and circumstances of this case as discussed below. The law has also moved on in giving the role of the accused during an identification parade as discussed below as each case must be judged on its own particular facts and circumstances and not in a mechanical manner. Even otherwise we have not been alerted to so grave a breach of the rules governing identification parades which would render the current identification parade unreliable as minor irregularities are permissible under the law. This eye-witness was a natural witness and not a chance witness as he was one of the police guards to the retired Judge stationed in a tent outside his house. He did not know the appellants before the incident and had no enmity with them and had no reason to implicate them in a false case. His presence at the scene was not challenged during cross-examination. It was a day light incident and since three of the accused had dismounted from the car he would have got a good look at them. He is named in the FIR along with his role at the scene which accords with his evidence and since the FIR was lodged within 1 hour and 30 minutes of the incident he would not have had time to cook up a false case against the appellants with the complainant or the police especially as he had no reason to do so. He recorded his S.161 Cr.P.C eye-witness statement immediately after the incident as such once again there was no time for him to cook up a false case against the appellants. We find that he has correctly identified the two appellants as a part of the group which fired upon the deceased which lead to the death of the deceased. This is more so since both of the appellants were caught red handed almost on the spot only a few minutes after the incident following an encounter with the police. His evidence was not dented during a lengthy cross-examination. As such we find his evidence to be reliable, trustworthy and confidence
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inspiring and we believe the same especially in respect of the correct identification of the appellants as firing upon and murdering the deceased. Even otherwise based on the particular facts and circumstances of this case which was a day light incident and the eye-witness got a good look at the appellants who were arrested a few minutes after the incident a few streets away it was not even strictly necessary to hold an identification parade. In this respect reliance is placed or Muhammed Siddique and others v. State dated 02- 01-2020 (unreported) in Crim. Jail Appeal No's 24,69,215,486 of 2016 and 682 of 2017 which held as under at Para 5 which is set out below; "5. Castigating severely the evidence of test identification parade, the learned counsel relied upon the guidelines laid down in the case of Kanwar Anwar Ali (PLD 2019 SC 488) to urge exclusion thereof. The supra case indeed a fine piece of juridical literature, nonetheless, does not extend much help to the convicts; it mainly addressed laconic approach adopted by a Magistrate in holding the test identification parade in the said case while highlighting general principles of law on the subject. Test identification parade is a method of proof contemplated by Article 22 of the Qanun-e- Shahadat Order, 1984, reproduced below for the convenience of reference:- "Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place w which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose". The above framework provides enough space to admit evidence in prosecution of offenders previously unacquainted with the victims or the witnesses; appraisal of such evidence is subject to same principles as are universally applicable to any piece of evidence, under consideration in a criminal trial; there are no additional barricades as is evident from the plain reading of the Article ibid; without prejudice to the safeguards available to an accused at each stage of trial, essentially fair as guaranteed under the Constitution, nonetheless, it does not cast an artificially heavier onus on the prosecution to meet standards of proof beyond human capacity. Each criminal case is to be decided having regard to its own peculiar facts and circumstances. A test to be essentially applied is one case may absolutely be irrelevant in another, as the crimes are seldom committed in identical situations; there may be cases wherein prosecution must assign distinct roles played during the occurrence by the culprits for determination of their guilt as well as consequences thereof, however, there are cases in which totality of transaction may not warrant reparability for such determination, like the one in hand. Cases involving abductions, dacoities and sudden assaults, more often than not, constitute episodes wherein different roles played by the culprits merge into integral totality of the crime, thus, it would be too harsh as well as unrealistic to demand exact reenactment of roles by the witnesses. Capacities even intellectually most sharp dwindle drastically in calamitous situations, therefore, the administration of criminal justice, in such peculiar situations, has to be dynamically balanced upon fair trial without prejudice to the accused as well as due weightage to the prosecution evidence without being swayed by illusory notions, subjectively structured upon hypothetical beliefs. Having found the witnesses with no axe to grind, in a comfortable unison on all the salient features of the prosecution case as well as events collateral therewith, we do not feel persuaded by the arguments, couched on hyper technical premise. Petitions fail. Dismissed." (bold added) The appeal which we are currently deciding attracts the above dicta as it is a case of sudden assault.
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(ii) Eye-witness PW 10 Faisal Mehmood is the complainant in this case. According to his evidence on 4.11.2011 he and the deceased left for Justice (Rtd) Jaffery's house with a view to offer Juma prayers with his son (Sarfraz). When they rang the bell of the house he saw a silver cultus car pull up in front of the house and 3 persons get out who made indiscriminate fire on the deceased and himself. The deceased received multiple firearm injuries. He was not injured as he took cover by laying on the ground. He saw the police guard at the house (eye-witness PW 7 Hasan Ali) fire upon the cultus car which was then chased after his intervention by a passing police mobile and after an exchange of fire between the police and the culprits two of the culprits were arrested nearby. He was mashir to the arrest and recovery of the appellants and thus having seen them there was no need for him to attend an identification parade as he was present at the time of the arrest and he would have got a clear view of them firing at the deceased as this was a day light incident as also the police encounter. He also witnessed the encounter between the police and the appellants. He was not a chance witness as he had gone with the deceased to the house of the Retired Justice in order to collect his son (Sarfraz) for juma prayers. He had no ill will or enmity with the appellants and had no reason to falsely implicate them in a false case. He registered his FIR within 90 minutes of the incident and as such had no chance to concoct a false case against the appellants in league with the police. Ills evidence accords with his FIR and corroborates the versions of eye- witness PW 7 Hasan Ali and the other police witnesses who were present at the encounter (especially PW 1 Muhammed Sarfraz and PW 2 Ghulam Mustafa) and the time of the arrest and recovery of the fire arms from the appellants. He was not dented despite a lengthy cross- examination and we have no…
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