2018 P Cr (PLP)

KHADIM HUSSAIN M. SHAIKH, J.

The captioned appeals are directed against the consolidated judgment dated 23.10.2012, passed by the Anti-Terrorism Court-I, Karachi, in Special Cases Nos. 14, 13 and 15 of 2011, re-State v. Sajjad Ali, culminated from Crimes Nos.355, 357 and 358 of 2011, registered at Police Station F.B. Industrial Area, Karachi, whereby, the trial Court convicted Sajjad Ali son of Amanullah [who hereinafter will be referred to as the appellant] and sentenced him as under:- Offence Sentence For offence punishable under sections 385, 386, P.P.C. To suffer R.I. five [05] years and fine of Rs.20,000/- and in default of payment of fine to undergo S.I. for six [06] months more. For offence punishable under section 7(h) of Anti-Terrorism Act, 1997 read with section 353, P.P.C. To suffer R.I. five [05] years and fine of Rs.20,000/- and in default of payment of fine to undergo S.I. for six [06] months more. For offence punishable under section 13-D, Pakistan Arms Ordinance, 1965. To suffer R.I. three [03] years and fine of Rs.5,000/- and in default of payment of fine to undergo S.I. for three [03] months more. All the aforementioned sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C., was also extended to the appellant.

2. The appellant was sent up with three challans to face his trial in the Special Cases Nos. 14, 13 and 15 of 2011, culminated from Crime No. 355 of 2010, under sections 385, 386, 506-B, P.P.C., read with section 6(2)K of A.T.A., 1997, 357 of 2010, under sections 353, 324, P.P.C. and 358 of 2010, under sections 13[d], Arms Ordinance, 1965, all three registered at Police Station P.B. Industrial Area, Karachi, showing co-accused Imran alias Sanki as absconder. After completing all the requirements under the law, a formal charge was framed against the appellant at Ex.09, to which the appellant did not plead guilty and claimed his trial vide his plea at Ex-09/A.

3. To prove its case, the prosecution examined PW-01 complainant Mehmood Ali Khan at Ex.10, who has produced memo of recovery of envelope at Ex.10/A, memo of arrest and recovery of accused at Ex.10/B, FIR No. 355/2010 at Ex.10/C and memo of inspection of place of incident at Ex.10/0; PW-02 ASI Irshad Ali Rathore at Ex.11, who has produced roznamcha entry No. 25 dated 16.11.2010 at Ex.11/A, FIR No. 357 of 2010, under sections 353/324, P.P.C., FIR No. 358/2010, under section 13(d) of Arms Ordinance, 1965 at Ex.11/B and Ex.11/C respectively and roznamcha entry No. 32 at Ex.11/D; PW-03 Sanjar Khan at Ex.12; PW-04 PC Qurban Ali at Ex.13; PW-05 Sub-Inspector Mehmood Khan [Investigating Officer] at Ex.14, who produced roznamcha entry dated 16.11.2010 at Ex.14/C, letter issued to Incharge FSL, report of PSL at Ex.14/B and at Ex.14/C, letter issued by the SSP Investigation-II West Zone CCP, Karachi to the Deputy Inspector General of Police, CID Sindh Karachi at Ex.14/D and call data consisting upon four pages at Ex.14/E, and, thereafter, learned Special Public Prosecutor for the State closed the side of prosecution vide statement at Ex.15.

4. The statement of the appellant under section 342, Cr.P.C., was recorded at Ex.16, wherein, he denied the allegations and professed his innocence. He, however, neither examined himself on oath under section 340(2), Cr.P.C., nor did he examine any person as defence witness.

5. On the conclusion of the trial, the trial Court convicted and sentenced the appellant as discussed in paragraph-1 (supra), hence this appeal.

6. The appellant and his counsel are called absent. There is also no intimation. Same was the position on the last date of hearing viz. 30.06.2017. Record reflects that the appellant has been released from the prison on 22.04.2015 on expiry of his sentence, extending him benefit of section 382-B, Cr.P.C., coupled with remission, and, therefore, the appellant has lost interest to pursue the matter. Learned advocate for the appellant has also chosen to remain absent, although the name of the learned counsel does appear in the daily cause list and today is the date by the Court, and, thus none is present to address the Court on behalf of the appellant. In such view of the matter, we have heard the learned Additional Prosecutor General.

7. It is inter alia contended by the learned A.P.G. that the prosecution has proved its case against the appellant beyond any shadow of doubt by examining complainant Mehmood Ali Khan and police official witnesses, who all have supported the prosecution case and no animosity against the prosecution witnesses has been proved by the appellant. He, therefore, prays that the appeal may be dismissed.

8. We have considered the arguments of learned Additional P.G. and have gone through the record with the assistance of learned A.P.G.

9. From the perusal of the record, it would be seen that P.W-1 complainant Mehmood Ali Khan has substantiated the case of the prosecution during his evidence and all the other PWs and the material adduced in evidence have supported and corroborated the prosecution case during the trial. The learned trial Court appreciating the evidence brought on the record, has convicted and sentenced the appellant. For the sake of convenience, the relevant findings and observations of the learned trial Court are reproduced here:- "In this case complainant with whom no enmity has been suggested by the defence counsel in the cross-examination. The version of the complainant is fully supported by the police officials examined by the prosecution. In this case the data of mobile phone has been produced, which shown that on the alleged date phone calls were received on the telephone number of factory so also on mobile phone of ASI Irshad Ali, who has engaged the accused by posing himself as an employee of the factory. It is also proved that on the day of arrest accused asked the complainant party to pay Rs.50,000/- as extortion at Al-Noor Graveyard, where he was present and after encounter he was arrested at the spot and mobile phone containing SIM No.0303-2373825 and one purse etc. were recovered from his possession. On the point of such recovery apart from evidence of police officials, their version is supported by the complainant, therefore, it is proved that accused had demanded extortion by throwing envelope in the factory. So far as the case of prosecution that accused fired upon the police officials with intention to commit their murder is concerned, even they have not stated in their evidence that accused fired upon them with intention to commit their murder, is to be proved by way of circumstances in which the incident had taken place. The complainant who is private witness has deposed that as accused saw the police party, he started running and fired upon them, ASI Irshad Ali has not stated that accused fired upon them with intention to commit their murder, Moreover, no body from either side had received a single scratch during encounter. Therefore, I am of the opinion that ingredients of section 324, P.P.C. are missing, whereas, it is proved that accused resisted and deter the police party from performing their duty and one .30 bore pistol along with three bullets was recovered from him. The version of private witnesses is also supported by the police officials, against whom there is nothing on record that they falsely deposed against the accused. I have no hesitation to rely on the version of these witnesses as their evidence inspires confidence. The act of accused created sense of fear and insecurity in the minds of complainant party, people of that locality and those who came to know about this incident."

10. In view of what has been stated above, we find that the complainant remained consistent in his statement; and the version of the complainant has been supported by the police official witnesses, which has further been corroborated by the material adduced in evidence; there is no contradiction in the statements of the prosecution witnesses on material points; the FIRs, in the case in hand were recorded with promptitude; and, under these circumstances, we are of the considered view that the prosecution has been able to prove the case against the appellant beyond any shadow of doubt. We do not find any illegality in the impugned judgment dated 23.10.2012, and the same also does not suffer from misreading or non-reading of the evidence, which does not call for any interference. Accordingly, the appeals, being devoid of merits, are dismissed. JK/S-5/Sindh Appeals dismissed.