2018 PLP 211 (YLRN)

KHADIM HUSSAIN M. SHAIKH, J.

The captioned appeal is directed against the judgment dated 31.07.2012, passed by the Anti-Terrorism Court-II, Karachi, in Special Case No. 29 of 2011, re-State v. Muhammad Asif, culminated from Crime No. 120 of 2011, registered at Police Station Kharadar, whereby, the trial Court convicted Muhammad Asif alias Chutto son of Ghulam Sarwar [who hereinafter will be referred to as the appellant], for offence punishable under section 7(h) of Anti-Terrorism Act, 1997 and offence punishable under section 13-D of Arms Ordinance, 1965 and sentenced him to undergo R.I. for five [05] years in each case, extending him benefit of section 382-B, Cr.P.C.

2. Briefly the facts of the case are that one month prior to this incident, the appellant along with his an accomplice had come in gao gali, Mithadar, Karachi and on show of deadly weapons had looted the complainant, and other shopkeepers and since then the appellant had been demanding bhatta from the complainant party by written slips and on cell phone No. 0324-2158675. On 10.03.2011 at 08.30 a.m., complainant Muhammad Tariq Qureshi and his elder brother Zahid Hussain were busy at their chicken sale shop styled as "BISMILLAH CHICKEN CENTRE" at gao gali Mithadar, Karachi, when the appellant and his accomplice known as Naveed, who was earlier introduced as Faraz by the appellant, came on motorbike "Unique 70-CC" without number Black Colour and on show of deadly weapons demanded Rs.5 lacs as bhatta from complainant's brother Zahid else he would be ready for his murder. On his refusal, both the culprits dragging Zahid from the shop were taking him towards Muhabat Khanji Road, when he raised cries, shouting for help, which attracted the complainant, who taking churri being used at his chicken sale shop, chased the culprits, to which the appellant fired from his gun straight at them, which hit complainant's brother on his shoulder and left leg and fell down. The complainant caused a churri blow on right arm of the appellant, with the result that the gun was dropped from his hand and then there was scuffle between the complainant party and the culprits and the complainant in defence caused churri blows to culprit Naveed, when he was about to fire from his gun aimed at the complainant and the public, attracted to the scene of wardhat and other shopkeepers, also started beating the culprits and in the meanwhile the police in a mobile came there and rescued the culprits, and took the weapons in their possession. Culprit Naveed alias Faraz had died there and whereas the appellant was arrested. Then the injured persons including the complainant and dead body of deceased culprit were taken to the hospital. The complainant recorded his statement under section 154, Cr.P.C., which was incorporated in book under section 154, Cr.P.C., as an FIR. After usual investigation the appellant was sent up with the challans to face his trial.

3. A formal charge was framed against the appellant on 24.09.2011 at Ex.03, to which the appellant did not plead guilty and claimed his trial vide his plea at Ex-04. Subsequently, amended charge was framed on 23.11.2011 at Ex.05, to which again the appellant pleaded not guilty and claimed his trial vide his plea at Ex.06.

4. To prove its case, the prosecution examined PW-1 Tariq Wali Muhammad at Ex.P/ 7, who produced the memo of arrest and recovery and seizure at Ex.P/8 with slip at Ex.P/8-A, his 154, Cr.P.C. statement at Ex.P/ 9, memo of last worn cloths of deceased Faraz at Ex.P/10, and memo of place of incident and securing of blood stained earth at Ex.P/11; PW-2 Zahid Qureshi at Ex.P/12; PW-03 SIP Muhammad Parvez at Ex.P/13, who produced the copy of FIR No. 121/2011 under section 13-D Arms Ordinance at Ex.P/14; PW-04 Muhammad Farhan at Ex.P/15; PW-05 SIP Muhammad Ishaq Abdul at Ex.P/16, who produced two letters given to MLO for dead body and for injured separately at Ex.P/17 and Ex.P/18 respectively, memo of inquest report and examination of dead body of Faraz at Ex.P/19 and Ex.P/20, letter regarding shifting of the dead body to Mortuary of Edhi at Ex.P/21, the statement of injured Tariq under section 154, Cr.P.C., copy of FIR No. 120/2011 under section 287/324/43, P.P.C. at Ex.P/22, entries at Ex.P/23 and Ex.P/24; PW-06 Dr. Jagdesh Kumar at Ex.P/ 25, who has produced postmortem Report No. 130/2011 of deceased at Ex.P/26, the death certificate at Ex.P/ 27 and M.L. certificate of injured Tariq at Ex.P/28; PW-07 Dr. Aftab Ahmed Channar at Ex.P/29, who has produced MLC No. 1232 at Ex.P/30 and ML report at Ex.P/31 to Ex.P/32 and final medical legal report at Ex.P/33, and so also the report for autopsy at Ex.P/34; PW-08 SIP Muhammad Anwar at Ex.P/35, who has produced the entry at Ex.P/36, photograph of the deceased at Ex.P/37, sketch of place of incident at Ex.P/38 and photograph of place of incident at Ex.P/39, a letter to Edhi Centre to handover the dead body to legal heir of the deceased at Ex.P/40, letter for Chemical Examination report at Ex.P/ 41, the Chemical report at Ex.P/42, letter for FSL at Ex.P/43, copy of letter of AIG FSL at Ex.P/44, Examination report at Ex.P/45, copy of remand report under section 167, Cr.P.C., at Ex.P/46 and report under section 168 Cr.P.C., at Ex.P/47 respectively; PW-09 Salamat-ullah, Retired Inspector at Ex.P/ 48, who produced the copy of notice under section 160, Cr.P.C., at Ex.P/49 and thereafter, learned SPP for the State closed the side of prosecution at Ex.P/50 on 28.06.2012.

5. The statement of the appellant under section 342, Cr.P.C., was recorded at Ex.P/51, 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.

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

7. 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 15.06.2015 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. 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.

8. 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 Tariq Wali Muhammad, his brother injured Zahid Qureshi, independent person Muhammad Farhan, Medical Officers and police official witnesses, who all have supported the prosecution case. He, therefore, prays that the appeal may be dismissed.

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

10. From the perusal of the record, it would be seen that P.W-1 complainant Tariq Wali Muhammad and PW-02 Zahid Qureshi in their depositions have supported the prosecution case. The relevant pieces of their depositions are mentioned in paragraphs-20 and 26 of the impugned judgment dated 31.07.2012, passed by the learned trial Court, which for the sake of convenience, are reproduced here:-- "

20. PW-01 is the complainant Tariq at Ex.P/7. He deposed before the Court that he works with his brother in their chicken shop and that a month before 10.03.2011, the accused Asif had looted him and the other shopkeepers. Since then he used to give slips and demand bhatta and also used to phone threatening him. On 10.03.2011 accused Asif Chuttoo had come with another person on motorbike black colour without number and demanded Rs.500,000/- as bhatta from his brother Zahid, who refused upon which on the point of gun, brought him out of the shop. His brother resisted and shouted for help. Asif fired at his brother who received bullet injury on his left calf and fell down. He heard the noise he was cutting the chicken with the churri. He attacked Asif Chuttoo on his forearm upon which the churi fell down. His other companion Naveed also known as Faraz picked the gun and fired at him but he saved himself. He thought that if he did not do anything he would be killed therefore he attacked him with churri in self defence, they grappled each other. He had given him one churn blow when the public came and started beating them. The accused Asif was arrested by police whereas the other accused died." "

26. PW-02 is Zahid Qureshi at Ex.P/12. He deposed before the Court that on 10.03.2011 at about 08.15 a.m. he was in his shop and getting the chicken Hillal from his younger brother Muhammad Tariq when two boys came on motorbike. He recognized one of them who had looted him a month back and the other chicken shops. They had given purchi on which was written "Raja Pathan, Babar Pathan Zindagi Ya Mout". The mobile number was also written on the slip 0324-2158675. They had demanded Rs.5 lac as bhatta. On his refusal, Asif whose name was later on known to him, brought him out of shop on point of firearm and have him a butt blow at the back of his shoulder. He had taken him to few paces. He caught the gun in the hand of the accused and shouted for help but the accused fired at him. He received bullet injury on his left calf and his left shoulder and fell down. As the accused was about to fire at him on his chest, younger brother Tariq hearing him came for his help and hit the accused on his forearm with knife whereupon the gun fell down and his other accomplices picked the gun and fired at Tariq. He threw a big stone at him but missed the target. Tariq gave him churri blow. Public who had gathered started beating the culprits. The police came and separated the accused from the public. He was injured therefore he was sent to the hospital for treatment in Edhi Ambulance."

11. P.W-04 Muhammad Farhan, who an independent person, deposed that on 10.03.2011 he had gone to the shop of Zahid at 08.15 to get the chickens when he saw this incident and supported PW-01 Tariq Wali Muhammad and PW-02 Zahid.

12. PW-06 Dr. Jagdesh Kumar, who conducted postmortem examination of deceased and having also examined PW-01 Tariq Wali Muhammad, PW-07 Dr. Aftab Ahmed Channa, who examined the appellant Asif and injured PW-02 Zahid Qureshi, both have also corroborated the ocular evidence.

13. PW-03. Muhammad Parvez, P.W-05 SIP Hakim Ali, PW-08 SIP Muhammad Anwar of Police Station Kharadar and PW-09 Salamatullah Inspector Investigation of P.S. Kharadar, all have also supported and corroborated the prosecution case.

14. Record further reveals that all the aforesaid prosecution witnesses were cross-examined at length, but nothing tangible could be extracted from them by the defence.

15. In view of what has been stated above, we find that the eye-witnesses of the occurrence, who are also injured sustaining injuries in this incident, remained consistent in their statements; there is no contradiction in the statements of the prosecution witnesses on material points; their statements are corroborated by the medical evidence; the FIR in the case in hand was 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 31.07.2012, and the same also does not suffer from misreading or non-reading of the evidence, which does not call for any interference. Accordingly, the appeal, being devoid of merit, is dismissed. JK/M-6/Sindh Appeal dismissed.