2013 PLP 777 (SCMR)

TARIQ PARVEZ, J.

Appellant, Hakim Khan reportedly a proclaimed offender in number of cases, was arrested in an injured condition by Nazir Ahmed, SHO of Police Station Lawa, District Chakwal.

2. Background of the occurrence is that on 12-6-2004, a police party headed by Nazir Ahmed, SHO of Police Station Lawa and many others from the Police Department on the basis of information that the appellant and his co-accused Ali Noor @ Allah Noor who both were required in different criminal cases had set a shelter in the jungle in the mountains and have created a den wherefrom they are terrorizing the people of locality. A police party when encircled the hideout of the appellant and his co-accused and were directed to surrender, they instead of doing so starting firing at the police party wherein Ali Noor @ Allah Noor was armed with G-III rifle while appellant with SMG. During the firing between the police party and the proclaimed offenders Hakim Khan, appellant was arrested as he became injured whereas despite repeated alarms to Ali Noor @ Allah Noor to surrender he instead kept on firing and during encounter was killed. At the time of arrest Hakim Khan, appellant was in possession of two hand-grenades and a SMG rifle whereas Ali Noor @ Allah Noor deceased had four hand-grenades and G-III rifle besides other articles as given in detail in F.I.R. It was during the course of exchange of firing that the Pos. had also thrown two hand-grenades on the police party but no one was hurt.

3. The case of the appellant was sent up for trial before Special Court, Anti-Terrorism No.1, Rawalpindi whereon 18th September, 2004 charge was framed against the appellant who pleaded not guilty whereafter prosecution was allowed to lead its evidence who produced five prosecution witnesses besides documents exhibited particularly in respect of arms and ammunitions found on the person of the two proclaimed offenders i.e. appellant and dead accused and other arms and ammunitions.

4. The appellant when examined under section 342, Cr.P.C., came with the plea that he is innocent and falsely involved because of his enmity/strained relations with the police wherein on learning about arrest of Noor Ali his co-accused he had gone to the Police Station but was maltreated over which he raised hue and cry and threatened the police for registration of case against them. No other evidence was produced in defence.

5. The learned trial Court on conclusion of the trial while believing prosecution evidence found the appellant guilty under section 7(h) of Anti-Terrorism Act, 1997 and sentenced him to two years' R.I. with a fine of Rs.10,000 and in default to suffer six months' R.I. He was also convicted and sentenced under section 13-A(1)(c) Pakistan Arms Ordinance, 1965 to suffer Life Imprisonment with order that all his movable and immovable shall stand forfeited.

6. The appellant preferred Criminal Appeal No.432-T of 2005 before the Lahore High Court, Rawalpindi Bench which was heard on 11-12-2008 and the learned Division Bench dismissed the same. Hence, the appellant preferred Jail Petition No.111 of 2009 through Superintended Jail, Rawalpindi wherein leave to appeal was granted by this Court vide order dated 3-3-2011.

7. Learned counsel appearing for the appellant has argued that the appellant was not given the opportunity of fair trial because in the opening paragraph of impugned judgment of High Court it is clear that no one had appeared on behalf of the appellant before the High Court and that his case was decided by the High Court without hearing him thus it is against the principle of natural justice and serious prejudice has caused to the appellant. It is also argued that except for the police witnesses no body from the public was associated during integration and police of the area has not only taken law into its hands by making extra judicial killing of Noor Ali but has also caused injuries to the person of appellant. It was argued that keeping in view the fact that the counter version was set up by the appellant i.e. it was a case of the accused that the accused might have acted while exercising his right of self-defence, his conviction and sentence are not sustainable.

8. Learned Additional Prosecutor-General have supported the judgments of the learned trial Court as well as the learned High Court.

9. After perusal of the evidence, we find that there is direct testimony of Nazir Ahmed (P.W.) Inspector/SHO beside the statement of Khalil Ahmed SI (P.W.2) who remained associated during the entire course and also are witnesses to the recoveries made from the spot or from the very person of the appellant who was arrested while in injured condition. The arrest in the manner as given by the prosecution is supported by the fact that at the time of the arrest appellant was found injured. He could not explained as to how he has sustained firearm injury which is corroborated by medical evidence with regard to probable time of receiving injuries and the time of occurrence as given by the police who are in this case themselves witnesses.

10. As far as question of not providing opportunity of hearing, it appears that the appellant was properly defended before the learned trial Judge; every witness was subjected to cross-examination by the defence counsel and the judgment of the High Court also refers to the version of the defence and it was only thereafter the conviction was recorded by the learned trial Court and maintained by the learned High Court. Be that as it may, at the this stage, we have thoroughly examined the case of the prosecution and version of the defence when the appellant assisted by the learned counsel and we find that the prosecution has brought home charge against the appellant and that version of the appellant is not corroborated by any independent circumstance. In this view of the matter we find that there is no force in this appeal, therefore the same is dismissed. MWA/H-3/SC Appeal dismissed.