2026 PLP 334 (MLD)

Khadim Hussain Tunio, J.

Through instant appeal, appellant Yousuf Khan son of Nasir Khan has challenged the Judgments dated 23.02.2023 (impugned judgments), passed by the learned Judge Anti-Terrorism Court-I, Karachi, in Special Case No.446/2022 and 446-A/2022 (Re-State v. Sohail Khan), culminated from Crime No.316/2022 under Sections 353, 324, 186, 34, P.P.C read with Section 7 ATA, 1997 and Crime No.317/2022, under Section 23(1)(a) of the Sindh Arms Act, 2013, both registered at P.S. Chakiwara, Karachi, whereby he was convicted and sentenced as under: (i) For offence under Section 7(h) of the Anti-Terrorism Act, 1997, sentenced to suffer R.I. for 5 years and to pay fine Rs.20,000/-, in default whereof to suffer S.I. for 3 months more. (ii) For offence Section 353, P.P.C sentenced to suffer R.I, for 2 years and to pay fine Rs.10,000/-, in default whereof to undergo S.I. for 2 months more. (iii) For offence under Section 7(b) of the Anti-Terrorism Act, 1997, sentenced to suffer R.I. for 10 years and to pay fine Rs.20,000/-, in default whereof to suffer S.I. for 6 months more. (iv) For offence under Section 324, P.P.C, sentenced to suffer R.I. for 5 years and to pay fine Rs.20,000/-, in default whereof to suffer S.I. for 3 months more. (v) For offence Section 23(1)(a) of the Sindh Arms Act, 2013 sentenced to suffer R.I. for 5 years and to pay fine Rs.20,000/-, in default whereof to suffer S.I. for 2 months more. All the above sentences were ordered to run concurrently, Benefit of Section 382-B, Cr.P.C was also extended to appellant.

2. The facts of the prosecution case, as reflected in the impugned judgments, are that on 12.08 2022, complainant ASI Ali Raza, along with his subordinate staff, departed from the police station on routine patrolling duty in a police mobile. At about 0130 hours, when the police party reached at Mirza Adam Khan Road near KESC Office, Bihar Colony, Lyari, Karachi, they noticed a person sitting on footpath who, upon noticing the police, allegedly attempted to flee. When the police party tied to apprehend him, the accused is stated to have opened fire upon them with the intention to commit their murder, whereupon the police also resorted to firing in self-defence. During the alleged encounter, the accused sustained a firearm injury on his right leg and was apprehended at the spot. Upon inquiry, he disclosed his name as Yousuf Khan son of Nasir Khan. It is further alleged that a .30 bore pistol along with two live rounds, two mobile phones, namely (i) a Nokia keypad phone and (ii) a Tecno touchscreen phone, and a black-coloured wallet containing his original CNIC and cash of Rs. 200/- were recovered from his possession. In addition thereto, one empty 9-mm cartridge and three empties of .30 bore pistol were allegedly secured from the place of incident. The accused was thereafter arrested under a memorandum of arrest and recovery in the presence of mashirs, and the case property was sealed. The injured accused was referred to Civil Hospital, Karachi for medical treatment through HC Muhammad Sajjad, PC Pir Muhammad and Driver PC Abdul Qadeer under the letter of the complainant. Thereafter, the complainant returned to the police station and lodged separate FIRs against the accused on behalf of the State.

3. Learned Judge, Anti-Terrorism Court- vide his order dated 25.11.2022 at Ex.2, ordered joint trial of both the cases as provided under section 21-M of the Anti-Terrorism Act, 1997. 4 Trial court framed charge against accused under above referred sections at Ex.4, to which he pleaded not guilty and claimed to be tried.

5. At trial, prosecution, in order to prove its case examined as many as 5 PW S, namely PW-1 ASI Ali Raza Shah at Ex.5., PW-2 HC Muhammad Sajjad at Ex.6, PW.3 Dr. Ali Raza at Ex.7 and PW-4 PI Syed Anwar Hussain Bukhari at Ex.8. Thereafter, learned APG for the State closed the side of prosecution vide statement at Ex.9

6. Statement under Section 342, Cr.P.C of accused was recorded at Ex. 10, in which he denied the allegations levelled against him in totality and pleaded his false implication and foisting of .30 bore pistol. He further stated that no encounter took place on 11.08.2022, in fact, while he was parking his taxi at City Courts, he was picked up by the police and demanded Rs. 100,000/- as bribe to release him, which he refused to, as such, he was handed over to Chakiwara police who, after causing him firearm injury, referred to Civil Hospital for treatment and later booked him in the instant case. However, the appellant neither examined himself on oath nor led any evidence in his defence

7. After hearing learned counsel for the respective parties, learned triat Court convicted and sentenced the appellant as stated supra.

8. Facts of the case as well evidence produced before the trial Court find an elaborate mention in the impugned judgments dated 23.02.2023, therefore, same may not be reproduced hereunder for the sake of brevity and to avoid repetition.

9. It is contended by the learned Counsel for the appellant that the appellant is innocent and has been falsely implicated in these cases by the police for mala fide reasons by foisting .30 bore pistol upon him; that there was police encounter and both the parties, according to the case of prosecution, fired with sophisticated weapons, but none of police officials sustained any scratch, as such, the provisions of section 324, P.P.C does not apply in the instant case; that admittedly it was a night time incident and, as per prosecution, there was not a single person available from the locality, as such, creating element of terror in the public does not arise, therefore, Section 7 of the ATA has wrongly been inserted in the FIR; that complainant has failed to disclose the source of identification of appellant at night time; that incident had occurred on the main road and possibility of the private persons at that time could not be excluded; that appellant in his statement under section 342, Cr.P.C had claimed false implication, denied prosecution allegations and added that upon his failure to pay bribe, the police after causing him firearm injury, referred him to hospital for treatment and later on booked him in the instant case; that all the PWs are police officials and there are material contradictions in their evidence. Lastly, it is submitted that prosecution has failed to prove its case against the appellant, hence he prayed for his acquittal.

10. Conversely, learned D.P.G appearing for the State has supported the impugned judgments, while contending that the prosecution has proved its case against the appellant beyond any reasonable doubt and prayed for dismissal of instant appeals.

11. We have carefully heard the learned counsel for the appellant, learned D.P.G. for the State and perused the material available on record.

12. It is the prosecution's version that on 12.08.2022, while the police party of P.S. Chakiwara headed by ASI Ali Raza was on routine patrolling duty in a police mobile, an encounter took place with the present appellant at Mirza Adam Khan Road near KESC Office, Bihar Colony, Lyari, Karachi. The appellant, who was allegedly found sitting on the footpath, upon seeing the police, attempted to flee and, when intercepted, is stated to have opened fire upon the police party with intention to commit their murder. In purported self-defence, the police officials retaliated. As a result of the exchange of fire, the appellant sustained a firearm injury on his right leg and fell at the spot, where he was apprehended. The medical evidence produced at trial through PW-3 Dr. Ali Raza supports that the injury sustained by the appellant was caused by a firearm projectile and was declared to be an entry and exit wound. It is further the prosecution case that upon arrest of the appellant in injured condition, a .30 bore pistol along with two live rounds, two mobile phones and a wallet containing CNIC and cash were recovered from his possession, while one empty .9-mm bullet and three empties of .30 bore were secured from the place of incident. The role attributed to the appellant, therefore, is of direct participation in the alleged firing upon the police party. The learned trial Court, in retorning a finding of guilt placed reliance upon the ocular version of the police witnesses, the alleged recovery of the weapon, and the supporting medical and forensic material. The prosecution treated the alleged recovery of the pistol from the appellant as the primary incriminating circumstance. It was asserted that the case property was sealed at the spot and subsequently forwarded to the Forensic Science Laboratory. As noted in the impugned judgment, the FSL, opined that the weapon was in working condition and that the crime empties had forensic linkage with the relevant firearm, and that the parcels were received in sealed condition. The Investigating Officer also deposed that the case property remained sealed from the time of recovery till its dispatch. The learned trial Court relied upon this forensic material as corroborative of the ocular account regarding recovery and alleged use of the weapon in the encounter

13. On a combined appraisal of the ocular account vis- -vis the medical and forensic material available on record, the prosecution endeavoured to establish that the .30 bore pistol allegedly recovered from the appellant was, in fact, the very weapon used in the commission of the offence. On this premise, the learned trial Court upheld the applicability of Sections 353, P.P.C and 23(1)(a) of the Sindh Arms Act, 2013. Insofar as Section 324, P.P.C is concerned, it was observed that the offence is constituted not merely by the resultant injury, but by the existence of the requisite mens rea to commit qatl-e-amd coupled with an overt act in furtherance thereof. The prosecution case is that the appellant, upon being signalled to stop, opened direct fire upon the police party and, during the ensuing exchange, sustained a firearm injury on his right leg, while crime empties were secured from the spot. The prosecution witnesses have remained consistent on the essential features of the occurrence, namely, the alleged firing by the appellant, the encounter, his injury, apprehension at the spot and the recovery of the unlicensed weapon from his possession. Certain discrepancies were highlighted by learned counsel for the appellant during the course of arguments with respect to peripheral details. However, upon independent scrutiny of the record, the learned trial Court treated such inconsistencies as minor in nature, not going to the root of the case, and insufficient to dislodge the prosecution version regarding the occurrence, arrest and alleged recovery. The impugned judgment thus proceeds on the premise that these discrepancies do not materially impair the evidentiary substratum of the prosecution case.

14. So far as the appellant's conviction under section 7 of the Anti-Terrorism Act, 1997 is concerned, the same is not sustainable in the eye of law 6 is liable to be set aside. The legal parameters for attracting section and of the Anti-Terrorism Act, punishable under section 7 thereof, now stand conclusively settled by the apex Court. It is a settled proposition that the mere commission of a violent or firearm-related offence, by itself, does not ipso facto bring it within the ambit of "terrorism unless the prosecution affirmatively establishes that such act was committed with the specific object of striking terror, creating fear or insecurity in the public at large or in any section of the society, or to achieve any of the purposes enumerated in section 6(1) of the Act. The Hon'ble Supreme Court in the case of Ghulam Hussain and others v. The State and others (PLD 2020 SC 61) lucidly held that, in order to constitute terrorism, the act must not only fall within the mischief of subsection (2) of section 6 but must also be intrinsically connected with the objectives mentioned in subsection (1) thereof. It was further clarified that even heinous or violent acts springing from personal disputes, situational encounters or isolated events, lacking the requisite design to terrorise society, fall outside the purview of the Anti-Terrorism Act. When the facts of the present case are examined on the anvil of the aforesaid settled principles, it is evident that the prosecution has failed to bring on record any material whatsoever to show that the alleged act of the appellant was actuated by any intent or design to spread terror amongst the public. At the highest, the prosecution case discloses an alleged encounter occurring during routine patrolling, in which, according to the prosecution itself, only the appellant sustained a firearm injury, while no member of the police party received even a scratch and no independent member of the public was affected. There is neither any allegation nor any evidence suggesting that the alleged firing created panic, fear or insecurity in the locality or among the general public. The occurrence, as projected by the prosecution, at best emanates from a situational confrontation between the police and the appellant, lacking the essential mens rea required to attract the extraordinary jurisdiction of the Anti-Terrorism Act. The principle reiterated by the Hon'ble Supreme Court in Ali Gohar and others v. Pervez Ahmed and others (PLD 2020 SC 427) and Muhammad Farhan alias Irfan v. The State (2021 SCMR 488), that offences arising out of personal or situational encounters with the police do not fall within the fold of terrorism in the absence of the requisite terrorising intent, squarely applies to the facts of the present case. Consequently, the conviction of the appellant under section 7 of the Anti-Terrorism Act, 1997 is legally unsustainable and is hereby set aside.

15. So far as the applicability of section 186, P.P.C is concerned, the same is also not attracted to the facts and circumstances of the present case. The offence under section 186, P.P.C is attracted only when an accused is shown to have voluntarily obstructed a public servant in the discharge of his public functions, and such obstruction must be established through clear, specific and affirmative evidence independent of the mare use of force or resistance contemplated under other penal provisions. In the present case, the prosecution version, even if taken at its face value, is that the appellant allegedly fired upon the police party upon being signalled to stop and was apprehended after sustaining injury. There is no distinct or independent evidence on record to demonstrate any separate act of "obstruction" as envisaged under section 186, P.P.C, separate from the alleged act of firing itself. Moreover, none of the prosecution witnesses has attributed any specific overt act to the appellant constituting obstruction of public duty in the statutory sense contemplated by section 186, P.P.C. Where the alleged obstructive conduct is inseparably merged with the use of criminal force against a public servant, the invocation of section 186, P.P.C becomes legally redundant and impermissible. In absence of proof of a separate and independent ingredient of obstruction, the conviction of the appellant under section 186, P.P.C cannot be legally sustained and is, therefore, liable to be set aside.

16. In view of the foregoing discussion, we hold that the prosecution has failed to satisfy the essential jurisdictional prerequisites for the applicability of section 7 of the Anti-Terrorism Act, 1997; consequently, the conviction recorded against the appellant thereunder cannot be legally sustained. Similarly, for the reasons discussed hereinabove, the convictions of the appellant under section 324, P.P.C is also not tenable. However, the prosecution has been able to establish the guilt of appellant Yousuf Khan son of Nasir Khan beyond reasonable doubt for the offences punishable under section 353, P.P.C and section 23(1)(a) of the Sindh Arms Act, 2013. Resultantly, the convictions of the appellant under section 7 of the Anti-Terrorism Act, 1997 and section 324, P.P.C, as recorded through the impugned judgment, are set aside, while his convictions under section 353, P.P.C and section 23(1)(a) of the Sindh Arms Act, 2013 are maintained. Nevertheless, keeping in view the peculiar facts and circumstances of the case, the nature of the occurrence, and the period of incarceration already undergone by the appellant, the sentences awarded to him in respect of the said surviving offences are modified and reduced to the period he already undergone, including the fine amount. The appellant shall be released forthwith, if not required to be detained in connection with any other custody case.

17. The captioned criminal appeals are disposed of in the above terms. JK/Y-6/Sindh ????