2026 PLP 743 (SCMR)

ISHTIAQ IBRAHIM, J.

Bilal Rasheed and Muhammad Daniyal ( the petitioners ), along with co-accused Tariq Rahim, Azhar Ahsan, Shahid Usman, Fawad Khan and Ghulam Abbas (all police officials/officers), were tried by the learned Judge, Anti-Terrorism Court-VII, Central Prison, Karachi ( the Trial Court ) in Crime No.16 of 2018 registered under sections 302 and 34 of the Pakistan Penal Code, 1860 ( P.P.C. ), read with section 7 of the Anti-Terrorism Act, 1997 ( ATA ), as well as Crimes Nos. 138 and 139 of 2018 registered under section 25 of the Sindh Arms Act, 2013 at Police Station Darakshan, Karachi for committing murder of Intezar Ahmed deceased, a 19-year-old student with firearm. Upon conclusion of the trial, the learned Trial Court, vide judgment dated 25.10.2021, convicted and sentenced the petitioners and the aforementioned co-accused as under: Petitioners Muhammad Daniyal and Bilal Rasheed: Under section 7(1)(a) ATA: Sentenced to death along with fine of Rs.200,000/- (Rupees two lac.) each. In case of default of payment of fine, each to suffer S.I. for six months more. Under Section 302(b)/34 P.P.C.: Sentenced to death. Under Section 25 of Sindh Arms Act, 2013: Sentenced to suffer imprisonment for 10 years along with fine of Rs.50,000/0 (Rupees fifty thousand) each. In case of default in payment of fine, each to suffer further S.I. for three months more. The accused Tariq Mehmood, Tariq Raheem, Azhar Ahsan, Shahid Usman, Fawad Khan and Ghulam Abbas: Under Section 7(1)(a) read with section 21-I ATA: Sentenced to suffer R.I. for life each and to pay Rs.200,000/- (Rupees two lac) each to legal heirs of the deceased and in default thereof to further undergo six months simple imprisonment. Under Section 302 (b) read with sections 109/113 P.P.C.: Sentenced to undergo rigorous imprisonment for life each and to pay Rs.100,000/- (Rupees one lac) each as compensation to legal heirs of the deceased and in default thereof to further undergo six months simple imprisonment. All the substantive sentences of imprisonment of each convict were ordered to run concurrently and benefit of 382-B Cr.P.C. was extended to them.

2. The High Court of Sindh, Karachi ( the High Court ), while adjudicating upon the criminal appeals preferred by Bilal Rasheed and Muhammad Daniyal, the petitioners-convicts, was pleased to delete the charge under Section 7 ATA. However, their conviction under Section 302(b) P.P.C. was maintained. The sentences of death awarded to them were commuted to imprisonment for life, coupled with a direction to pay Rs.100,000/- each to the legal heirs of the deceased, as compensation under Section 544-A of the Code of Criminal Procedure, 1898 ( the Code ), and in default thereof, to undergo simple imprisonment for a further period of one year each. The conviction and sentence awarded to the petitioners-convicts under Section 25 of the Sindh Arms Act, 2013 were also maintained. Their sentences were ordered to run concurrently, and the benefit of Section 382-B of the Code was extended to them, vide judgment dated 14.10.2022 ( the impugned judgment ).

3. The learned High Court while allowing appeals of co-accused convicts Tariq Rahim, Tariq Mehmood, Azhar Ahsan, Shahid Usman, Fawad Khan and Ghulam Abbas, set aside their convictions and sentences recorded by the Trial Court and acquitted them of the charge through the impugned judgment.

4. Petitioner-convict Muhammad Daniyal has filed Criminal Petitions Nos. 176-K and 177-K of 2022 while petitioner-convict Bilal Rasheed, has filed Criminal Petitions Nos. 178-K and 179-K of 2022, against their conviction and sentences recorded by the High Court through the impugned judgment. Conversely, Ishtiaq Ahmed complainant, has filed Criminal Petition No.1493 of 2022 against acquittal of the co-accused-respondents recorded by the High Court.

5. The prosecution case, as reflected from the record, is that Raja Tanveer SIP (PW-2), posted at Police Station Darakhshan, Karachi, was performing duty on 13.01.2018 from 1510 hours to 2000 hours when he received information through 15-Emergency that an unknown assailant had committed the murder of one Intezar Ahmed deceased by firearm and that the deceased had been shifted to Jinnah Hospital, Karachi, by driver Muhammad Siddique through Chhipa Ambulance No. EA-0754. Upon receipt of the said information, he proceeded to Jinnah Hospital where he met Dr. Abdul Ghaffar, who issued him a written permission to undertake proceedings under Section 174, Cr.P.C., in respect of the dead body of the deceased. The Medical Officer then conducted the post-mortem examination of the deceased vide PM No. 26/2018 and issued a certificate regarding the cause of death of the deceased. A sealed parcel containing the last-worn clothes of the deceased was handed over along with the dead body to Raja Tanveer SIP, which was thereafter delivered to Muhammad Salahuddin, the maternal uncle of the deceased.

6. Ishtiaq Ahmed complainant (father of the deceased) who was also present at the hospital, informed Raja Tanveer SIP, that he would report the incident at the Police Station. He accompanied Raja Tanveer SIP to the Police Station, where he reported that his son Intizar Ahmed deceased, studying in Malaysia had come to Karachi on 29.11.2017; that on 13.01.2018 at about 5:30 p.m. his deceased son left home in his Toyota Corolla Grande motorcar bearing Registration No. BLE-254 to meet his friends in Defence. At about 8:00 p.m., one Junaid, a boy from the neighbourhood, came to the complainant s residence and informed him that his son had sustained a firearm injury and had been shifted to Jinnah Hospital. Upon reaching the hospital, the complainant was informed that his son had succumbed to the injury. On inquiry, the complainant came to know that at about 7:15 p.m. at Lane-5 near Castle Lights, Bukhari Commercial, Phase-V, DHA Karachi, unknown culprits had fired upon and killed his deceased son for the reasons then unknown. He accordingly charged unknown culprit(s) as responsible for the murder of his deceased son.

7. The petitioners-convicts and their co-accused (since acquitted) were subsequently nominated as accused in the case on the basis of a statement under Section 154, Cr.P.C., dated 13.01.2018, recorded at 1940 hours as Exh. P-10/A, of Inspector Tariq Mehmood (co-accused since acquitted). As per the said report/Exh.P-10/A, Inspector Tariq Mehmood, posted as SHO, Police Station ACL, Karachi, along with his staff was on duty for crime control and checking of pickets in the vicinity of Khayaban-e-Bukhari, Phase-VI, DHA Karachi. He met Inspectors Tariq Raheem, Azhar Ahsan, and their subordinate staff, namely, Head Constable Shahid and Police Constables, namely, Fawad Khan and Ghulam Abbas, who were patrolling in the area in connection with efforts to curb streets crimes, as incidents of snatching vehicles by culprit in white Toyota Corolla bearing official number plates, had been reported. According to report of Inspector Tariq Mehmood at about 1915 hours, Police Constable Fawad Khan informed him by phone that a suspicious white Toyota Corolla Grande, bearing Registration No.987, was parked near an official vehicle in the interior streets of Khayaban-e-Bukhari. Acting on this information, Inspector Tariq Mehmood along with others proceeded to the location where they observed two white motorcars. When they attempted to intercept Toyota Corolla Grande No. BLE-254, the vehicle sped away. At this juncture, Bilal PC and Daniyal PC (petitioners-convicts) allegedly appeared at the spot and opened fire upon the fleeing vehicle in order to stop it. Despite warnings from their superior officers to cease firing, the petitioners-convicts constables continued firing and thereafter fled from the spot. The injured driver of the vehicle was shifted to the hospital where he succumbed to injuries. The weapons of the accompanying subordinates police officials with Inspector Tariq Mehmood were taken into custody and they were charged for having opened fire without orders, resulting in the death of the driver of the said motorcar.

8. Investigation was entrusted to Muhammad Ashraf Jogi, SI/Investigating Officer (I.O.), who visited the place of occurrence and prepared a memo of inspection. Prior to his arrival, Arshad Ali SI, had secured the deceased s vehicle, eight 9mm fired empties and one bullet. He recorded the statement of Inspector Tariq Mehmood, who implicated Head Constable Shahid and Police Constables, Usman Ghani, Ghulam Abbas, Fawad Khan, Bilal and Muhammad Daniyal for the occurrence. The I.O. arrested the above-named police officials along with Inspector Tariq Mehmood, who instead of citing him as prosecution witness was also made accused in the case. The petitioners-convicts made their escape good from the spot. On 15.01.2018, the petitioners-convicts Bilal and Muhammad Daniyal himself appeared at Police Station Darakhshan and surrendered. The I.O. took into custody their official weapons, the deceased s vehicle and the motorcycle of the petitioners-convicts. The weapons and vehicle were sent to the Forensic Science Laboratory (FSL). As per the FSL report, 12 out of 18 recovered empties were fired from the official pistol allotted to petitioner-convict Bilal by AVCC, while 6 empties matched with the pistol allotted to petitioner-convict Muhammad Daniyal by ACLC. CCTV footage of the place of occurrence was obtained along with DVR; the footage clearly depicted the vehicles of the accused and of the deceased, and petitioner-convict Bilal was seen firing. Call Data Records (CDRs) confirmed the presence of the acquitted co-accused at the scene. During investigation, it was also revealed that one Mst. Madiha Kiyani daughter of Masood Kiyani, was accompanying the deceased at the time of occurrence; her statement was also recorded by the I.O.. Subsequently, the investigation was handed over to a Joint Investigation Team (JIT) and, upon completion, a report under Section 173, Cr.P.C. was submitted against the accused before the Trial Court.

9. After a full-dressed trial, all the accused were convicted and sentenced as discussed in the earlier part of this judgment. The learned High Court, however, deleted the charge under Section 7 ATA, but maintained the conviction of the petitioners-convicts under Section 302, P.P.C. while commuting their death sentence to imprisonment for life. The co-accused named above were acquitted by the High Court, as noted above.

10. We have heard the arguments of learned counsel for the parties as well as the learned Additional Prosecutor General, Sindh, and perused the record, evidence and the judgments of the Courts below.

11. It is a case in which eight accused (all police officials), including the petitioner-convicts Muhammad Daniyal and Bilal Rasheed, are charged for murder of Intezar Ahmed (deceased). Inspector Tariq Mehmood (since acquitted), then posted as SHO, ACLC, furnished the initial version of the occurrence in his report under Section 154, Cr.P.C., on the very day of the incident i.e., 13.01.2018. In his said report he had provided an ocular account of the occurrence, but surprisingly he was arrayed as an accused instead of being cited as a prosecution witness. We have also noticed further anomalies and concessions apparent from the investigation, including the failure to send the CCTV footage of the place of the occurrence to the Forensic Science Laboratory (FSL) on the part of the prosecution. Considering the status of the accused as police officials and the fact that the investigation was also carried out by officials of the same Force, it would not be appropriate, nor in the interest of justice, to apply the same rigorous evaluative standards as in routine criminal cases. The possibility of deliberate concessions on the part of the police in favour of the accused cannot be ruled out keeping in view the peculiar facts and circumstances of the case.

12. No independent witness from the public came forward to furnish an ocular account of the occurrence. During the investigation, it surfaced that one Mst. Madiha was also accompanying the deceased in the same motorcar at the relevant time. She was accordingly cited as prosecution witness and examined as PW.10. Upon examining her testimony, we note that although she admitted having witnessed the occurrence but she did not identify any of the accused as the persons who fired upon the motorcar of the deceased. According to her statement, on the fateful day the deceased asked her to accompany him for a drive and to get something to eat. They went to a juice spot near Caf Clifton, where they had juice. Thereafter, at Maghrib time, the deceased informed her that he would drop her home; however, on reaching Bukhari Commercial, the deceased telephoned his friend who arrived there and handed over some drugs/ hashish to the deceased. The deceased then drove his motorcar towards Ittehad Commercial and into the narrower streets, where the he stopped the car. At that point, two other cars intercepted their vehicle, though she could not identify the persons. She stated that the deceased halted the car and she observed a person in front of the vehicle signalling them to move ahead, though she had seen only the person s hand and not his face. She further stated that she heard commotion from behind the vehicle, directing the deceased to stop. The deceased initially stopped the vehicle but then accelerated, whereupon firing started but according to her she could not discern whether the firing was from the front or back. Upon the commencement of firing, she allegedly lay down on the floor of the car. The vehicle then crossed the road, and she asked the deceased to recite the Kalima. The car subsequently struck a footpath, crossed the road again, and its wheel became lodged in a gutter, bringing it to a halt. She then disembarked from the vehicle of the deceased and left the scene in a rickshaw. The testimony of Mst. Madiha (PW.10) proves the commission of the offence on the day, date, time and place of occurrence as alleged by the prosecution, though she has not directly named anyone by name as accused.

13. We have also examined the testimony of the father of the deceased (PW.1), who admittedly, is not an eye-witness of the occurrence. According to him, the petitioners-convicts were serving as gunmen/guards of the SSP, ACLC; that the deceased had developed a relationship with one Mst. Marrok Sohail, niece of the Personal Assistant (PA) of the said SSP, on which the PA of the SSP was displeased, and that due to this alleged grudge, the deceased was murdered by the petitioners-convicts at the instigation of the PA of SSP. We find no sufficient or convincing evidence on record to substantiate the aforesaid assertion of father of the deceased. Mere aforesaid bald allegation without solid proof and evidence would not be sufficient to believe the motive advanced by the father of the deceased.

14. Keeping in view the peculiar facts and circumstances of the case, we are constrained to hold that, since all the accused were police officials, the possibility that undue concession was extended to them during the course of investigation and subsequently by the prosecution cannot be ruled out. Likewise, we find no convincing evidence on record to substantiate the motive alleged by the father of the deceased. In such circumstances, it becomes incumbent upon the Court to adopt a third view emerging from the facts and circumstances revealed by the evidence on record. Guidance in this regard may be drawn from the judgment of this Court in Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502).

15. We have examined the material available on the record and observe that the petitioners-convicts, Muhammad Daniyal and Bilal Rasheed, were not part of the ACLC team accompanying Inspector Tariq Mehmood on the day and time of occurrence. As per material on record, the petitioners arrived at the crime spot later in the evening. Mst. Madiha (PW.10), in her statement stated that the deceased obtained narcotics from his friends which were available with him in the motorcar as well as certain number plates and that for this reason he accelerated the vehicle when he was signaled to stop. The relevant portion of her cross-examination is reproduced below: It is correct that the deceased used to change number plates of the vehicle owned by him. It is correct to suggest that the deceased had drugs in the car at the relevant time due to which he accelerated the vehicle . As per the statement of Mst. Madiha (PW-10), when the deceased failed to obey the signal to stop, firing was opened at his motorcar. Although she did not specifically name the petitioners-convicts as the persons who fired at the vehicle of the deceased, however, the record shows that the official weapons allotted to all the accused, including the petitioners-convicts, were sent to the Forensic Science Laboratory for comparison with the crime empties. The FSL report establishes that only the official weapons allotted to petitioners-convicts Muhammad Daniyal and Bilal Rasheed matched with the crime empties. This scientific evidence, therefore, conclusively proves that these were the petitioners-convicts who fired upon the vehicle of the deceased. The testimony of Mst. Madiha further reveals that narcotics and certain number plates were present in the vehicle, suggesting that the deceased attempted to flee, presumably to evade arrest, and did not comply with the police signal. Record further reveals that there were complaints to police about the street crime, snatching, and motorcar theft, therefore, the petitioners-convicts, who were police constables, may have formed the belief that the deceased was a criminal and trying to make his escape good from the spot. Acting on this assumption, they resorted to firing at the motorcar. However, even if such belief is assumed, the act of opening fire in these circumstances was wholly disproportionate and amounted to an excess of authority vested in the petitioners-convicts by law, resulting in the fatal injury to the deceased. No prior enmity, ill will, or motive against the deceased has been established on the part of the petitioners-convicts. Likewise, there is no evidence on record to suggest any premeditation or prior consultation between them in the commission of the offence. Therefore, from the facts and circumstances emerging from the available evidence, and while adopting a third view, we hold that the petitioners-convicts, while acting in the purported discharge of their official duties and treating the deceased as a suspect, fired at his vehicle. As a consequence thereof, one of the bullets struck the deceased, resulting in his unnatural death. Admittedly, there is no direct evidence to establish as to which of the petitioners-convicts fired the fatal shot. However, according to the FSL report, the official weapons allotted to both petitioners-convicts, namely Muhammad Daniyal and Bilal Rasheed, matched with the crime empties recovered from the spot. In these circumstances, the question as to whose shot actually hit the deceased becomes immaterial, as both petitioners-convicts actively participated in the firing that led to the fatal consequence. In view of the above, in our considered view, the ingredients of the offence under Section 302(c), P.P.C. are attracted in the present case rather than those of Section 302(b), P.P.C. Section 302(c), P.P.C. was introduced through the Qisas and Diyat Ordinance, 1990. Although the legislature has not expressly defined the categories of cases falling under clause (c), and the matter has been left to the courts to determine on a case-to-case basis, this Court in Ali Muhammad v. Ali Muhammad and another (PLD 1996 Supreme Court 274) has categorically held that cases earlier falling under the exceptions to the old Section 300 read with the old Section 304, P.P.C. were intended to be dealt with under the new Section 302(c), P.P.C. The relevant portions of the judgment, are reproduced below for ready reference: 29............................. (1)......................... (2)......................... (3)............................................................................................................................... there should be no doubt that the cases covered by the exceptions to the old section 300, P.P.C. read with old section 304 P.P.C. thereof, are cases which were intended to be dealt with under clause (c) of the new section 302, P.P.C.................................. Exceptions to the old section 300 P.P.C., read as under:- When culpable homicide is not murder: Exception 1: Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:- Firstly: That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly: That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly: That the provocation is not given by anything done in the lawful exercise of the right of private defence. Exception 2: Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary of the purpose of such defence. Exception 3: Culpable homicide is not murder if the offender being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due dis-charge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender s having taken undue advantage or acted in a cruel or unusual manner. Exception 5 : Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. Old section 304 P.P.C., is also reproduce hereunder:-

304. Punishment for culpable homicide not amounting to murder: Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention, of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death. Keeping in view above-mentioned circumstances of the instant case and the above-referred provisions of law, the case of the petitioner-convicts squarely falls within the ambit of Exception 3 of the erstwhile section 300 P.P.C.

16. For what has been discussed above, Criminal Petitions Nos.176-K to 179-K of 2022, filed by the petitioners-convicts Muhammad Daniyal and Bilal Rasheed are converted into appeal and disposed of in the terms that their conviction under section 302(b), P.P.C. are converted into section 302(c), P.P.C. and they are sentenced to undergo 15 years imprisonment. The remaining conviction and sentences of the appellants-convicts are maintained. Benefit of Section 382-B Cr.P.C. is extended to them. Criminal Petition No.1493 of 2022

17. We see no evidence and ground to warrant reversal of the acquittal of the respondents-accused. Accordingly, this petition is dismissed. JK/M-6/SC Petition dismissed.