2018G3002 (PLP)

MALIK HAQ NAWAZ, J.

The appellants/convicts were booked for the above offences vide FIR No. 77/2015 of Police Station City Chilas and stood trial in the Court of Anti-Terrorism Gilgit.

2. The precise allegations contained in the FIR are produced in opening part of the judgment of trial Court, which are once again reproduced for ready reference:- Briefly stated the prosecution story is that the ASI/SHO Shah Serwar of Police Station City Chilas has registered a case FIR No. 77/2015 vide Ex-PW-2/A on 09/11/2015 on his murasila wherein it has been stated that, "Today on 09.11.2015, I received information from the special informer that the wanted absconder accused Shafiq-ur-Rehman alias Khalid Mandaila son of Faqir Muhammad resident of Thak, involved in another case FIR No 20/2013 under sections 302/395/ 147/149/34, P.P.C. and 6/7, A.T.A., of Police Station Goner Faram is present in Ronae area along with his brother Ata-ur-Rehman and Raji Rehmat. On receiving the information I along with subordinate Police officials including HC Rasheed Ahmed, FC Tufail Ahmed, FC Basheer Ahmed, FC Abdul Qadir, FC Hazrat Suleman and 50 other Police officials from Police Line Chilas reached at the source identified area under the supervision of DSP Headquarter and cordoned the area for the arrest of the accused. The headlight of the vehicle was switched on. In the meanwhile at about 18:35 hrs a motorcycle without any registration number appeared from Butogah Nallah and having seen the security forces at Nakah, absconder accused Shafiq- ur-Rehman alias Mandaila, Ata-ur-Rehaman sons of Faqeer Muhammad Residents of Thak and Raji Rehmat son of Juma Khan resident of Tangir Diamer opened fire on the security forces with firearms. As a result of firing of accused Atta-ur- Rehman, Naik Ameer Ahmed of 70 Punjab Regiment received bullet injury on his right leg while the bullet fired by absconder accused Shafiq-ur-Rehman alias Mandaila crossed from the uniform of Police officials FC Basheer Ahmed. The Police officials also opened fire in their defense. The accused runaway by opening fire on security forces and were chased by the Police and apprehended accused Ata-ur-Rehman son of Faqeer Muhammad resident of Thak and Raji Rehmat son of Juma Khan resident of Tangir Diamer while proclaimed offender Shafiq-ur- Rehman alias Mandaila son of Faqeer Muhammad resident of Thak escaped from the place of occurrence and said proclaimed offender/absconder accused was also involved and required in other terrorism case. The security officials gave signal to stop the motorcycle but the above named accused opened fire with firearms on security forces with the intention to kill thereby injuring a security person. Due to the act of the accused, fear and insecurity and terror spread in the area. The accused have committed heinous offences of disturbing the peace and spreading terror, opening fire on the law enforcement agencies and restraining them from performing their duties, and by fleeing from avoiding their lawful arrest. Murasila for registration of case is sent through Constable Abdul Qadir and I am busy in search of the escaped accused. Case be registered against the accused." The accused escaped by opening fire resultantly the police officials got injuries and the accused tried to obstruct from the duties of police officials.

3. In order to prove the case, prosecution examined 11 PWs and closed its case. The accused were examined under section 342, Cr.P.C. on 28-07-2016, however they did not opt to be examined on oath in terms of section 340(2), Cr.P.C.

4. The trial Court announced its verdict on 28-09-2016, which is contained from paras 70 to 73 of the judgment impugned before this Court. The relevant paras are reproduced as under:-

70. In view of the discussions made in Paras Nos. 14 to 69 above, and after evaluation of the entire evidence, I am, of the considered opinion that the prosecution has proved its case against accused Atta-ur-Rehman and accused Raji Rehmat and proclaimed offender Shafiq-ur-Rehman alias Mandela beyond any shadow of doubt by providing sufficient evidence in the shape of ocular evidence, Medical evidence, Recovery of weapons of offence, confessional statements of accused and absconsion of accused.

71. In the light of the above discussions, I hold that the prosecution has proved guilt of the accused Atta-ur-Rehman, accused Raji Rehmat and proclaimed offender/absconder accused Shafiq-ur-Rehman alias Mandila for murderous assault on injured Naik Ameer Ahmad and other members of security forces, hence, I convict accused Atta-ur-Rehman, accused Raji Rehmat and proclaimed offender/absconder accused Shafiq-ur-Rehman alias Mandila under section 324/34, P.P.C. read with section 7(c) of the Anti-Terrorism Act, 1997, for murderous assault and causing injury to the above named injured person and sentence them to rigorous imprisonment for 10 years and fine of Rs: 100000/- (Rupees one hundred thousand) each. In default thereof, the accused to suffer imprisonment for a term of six months each. The above named accused are also hereby convicted under section 337-D, P.P.C. read with section 7(C) of the Anti-Terrorism Act 1997 and sentenced them to pay Arsh of Rs. 100,000/- (Rupees one hundred thousand) each to the victim/injured Naik Ameer Ahmad and also sentence them to rigorous imprisonment for 10 years. The above named accused are also hereby convicted under section 353/34, P.P.C. and sentence them to imprisonment for 3 years.

72. I convict accused Atta-ur-Rehman under section 13(d) of Arms Ordinance, 1965 and sentence him to undergo imprisonment for 3 years. I convict accused Raji Rehmat under section 13(d) of Arms Ordinance, 1965 and sentence him to undergo imprisonment for 3 years. The weapons of offence recovered from the above named convicts-accused are hereby confiscated in favour of the State.

73. Proclaimed offender/absconder accused Shafiq-ur Rehman alias Khalid Mandila is also hereby convicted under section 224, P.P.C. and sentence him to undergo imprisonment for 2 years. The said above named proclaimed offender/absconder accused is also hereby convicted under section 21-L of the Anti-Terrorism Act, 1997 and sentence him to rigorous imprisonment for 10 years.

5. Being aggrieved from the judgment of the trial Court, the convict/appellants have filed criminal appeal No. 39/2016 raising multiple grounds for acquittal. The learned counsel for the appellants submitted that there is no worth reliance evidence in the instant case to convict the appellants and the learned trial Court has based conviction on the sketchy and flimsy evidence, which does not find any corroboration from any independent source. The learned counsel further contended that the appellants have been made scapegoat to put pressure on the families of the appellants to cause arrest of one Shafiq-ur- Rehman Alias Mandela, who is a most wanted hardened criminal and involved in the case of Nanga Parbat where some foreigner mountaineers were killed. The learned counsel vehemently contended that FC Abdul Qadir, who brought the Murasila in the Police Station, has neither been cited in the calendar of witnesses nor has been examined in the trial Court. Per learned counsel, he was an important witness of the prosecution, who for ulterior motive was not cited as a prosecution witness. The FIR of the case has been lodged with a considerable delay and it seems that the said time has been consumed in tailoring a false story of the occurrence. The recovery of motor bike from the place of occurrence and the arrest of the accused are not substantiated from the record. The learned counsel lastly argued that the story of firing and causing injuries to an Army Jawan are fabricated. Had these allegations been true, the most wanted accused Shafiq-ur-Rehman alias Mandela could have not been able to manage his escape from the place of occurrence. The learned defence counsel submits that the learned trial Court convicted the appellant violating the principles of safe administration of criminal justice and the appellants deserve clean acquittal from the motivated charges. The learned counsel relied on PLD 2008 Lah 268, PLD 1986 Peshawar 188, 2011 SCMR 527, 1995 SCMR 1627, 2012 YLR 374 and PLD 2006 Karachi 20 in support of his contention.

6. On the other hand the learned Deputy Advocate General defended the judgment and submitted that there is abundant evidence available on the prosecution file to establish the guilt of the accused. The learned Deputy Advocate General submitted that the ocular evidences, circumstantial evidence, confessional statements of accused and medical evidences, all pieces of evidence when read together establish guilt of the accused beyond any shadow of doubt. The learned Deputy Advocate General vehemently argued that there is complete coherence between the statements of almost all the PWs and despite of lengthy cross examination the defence was unable to extract anything in their favour. Lastly the learned Deputy Advocate General submits that the manner of occurrence and time of occurrence has not been disputed by the defence and the appellants also opened indiscriminate firing on the personnel of security forces and one Army Jawan Naik Amir Ahmad of 70 Punjab Regiment was seriously injured, which depicts the conduct of the appellant and the trial Court has rightly convicted the appellants after proper appraisal of evidence.

7. We have heard both the counsel for the parties at length and have minutely scanned the record of the case, with care and caution. The scrutiny of the record shows that the case of prosecution hinges on various pieces of evidences, ocular evidence, which has been furnished by IP Shah Sawar, (PW-3), HC Rasheed Ahmed (PW-6), SP Muhammad Amir (PW-7) and Naik Amir Ahmed of 70 Punjab Regiment, who was also injured in the incident. The statements and narration of all these PWs is in line with the prosecution case and despite lengthy and laborious cross-examination, their statements could not be shattered. The ocular evidence is further corroborated from the statement of Doctor Jan Alam examined as (PW-8). The medical officer appeared in witness box and verified the factum of giving first aid to the injured Naik Amir Ahmed. The injury sheet was got exhibited in the trial Court as Exh. PW-8/A and the time given in injury sheet coincides with the time of occurrence. During the course of cross-examination, neither the time of sustaining the gun shot injury by Naik Amir Ahmed was challenged nor it was suggested that it was self inflicted. During the course of investigation one motor bike which was allegedly used for commission of offence was taken into possession by the I.O. vide recovery memo Exh.PW-6/C and the superdari of the same was later on claimed by a real brother of accused Atta-ur Rehman. Weapon of offence .30 bore pistols were recovered from both the appellants vide recovery memo. Exh. PW-4/A and Exh. PW-4/B. Crime empties from two places of occurrence (16 in Nos) were also taken into possession vide recovery memo Exh. WP-6/A and Exh. PW-6/B. On 25-11-2015 both the accused were produced before Danishwar Khan SSP Diamer, who recorded their conditional confessional statements under section 21-H, after fulfillment of all the legal formalities. It is pertinent to mention here that after necessary amendment in section 21-H of ATA-1997, the same has been made admissible in evidence, "if the accused was/were involved in attack on the members of Armed Forces, Civil Armed Forces, Law Enforcement Agencies, Government Institutions, hotels or public property, the confession so made shall be admissible in evidence". Although the statements of accused recorded under section 21-H are by itself not sufficient to base conviction but the Court may put the same in juxtaposition with the other evidence and may form an opinion about the admissibility or otherwise of the same. In the instant case the accused were involved in attacking the personnel of Armed Forces, therefore, these statements when seen in the context of other available evidence could be taken as a piece of corroboratory evidence. The weapon of offence two 30 bore pistols and 16 crime empties, which were recovered from the place of occurrence were not sent to forensic expert for expert opinion and no plausible explanation is available on record for non sending of the same to forensic expert, which act is highly depreciated. The recovery of weapon of offence cannot be considered as a corroboratory piece of evidence in absence of forensic report. Recovery is only a corroboratory piece of evidence and even if it is excluded from consideration, there is abundant evidence on record to establish the guilt of the accused beyond any shadow of reasonable doubts.

8. However coming to the question of sentence, we noted that while awarding sentence of imprisonment, the learned trial Court has taken a very harsh and rigid view and has not taken into account the recognized principals necessary to be considered while awarding sentence to an accused, which could be divided in the following five categories:- i. Retribution: The act of taking revenge upon a criminal perpetrator. ii. Deterrence: A goal of criminal sentencing which seeks to prevent others from committing crimes similar to the one which an offender is being sentenced. iii. Restoration: A goal of criminal sentencing which attempts to make the victim "whole again". iv. Rehabilitation: The attempt to reform a criminal offender. v. Incapacitation: The use of imprisonment or other means to reduce the likelihood that an offender will be capable of committing further offences. The sentence has to be proportionate to the gravity of offence. Imposition of extreme sentence should be in exceptional and demanding circumstances, which does not exist in the case in hand.

9. The learned trial Court has convicted the appellants under section 337-D and awarded them 10 years' R.I and also convicted them under section 324, P.P.C. and 10 years' R.I., was awarded to them. We found that neither Dr. Jan Alam examined as PW-8 in the trial Court has given any specification of the injury, either it was "Jaifah or Ghayr-Jaifah" nor the treatment papers or any expert opinion of any medical officers of CMH Gilgit is available on record to sustain conviction under section 337-D, which is set aside, the conviction under section 324, P.P.C. is maintained, however, we reduce the sentence of imprisonment from 10 years' to 05 years' R.I. All the other sentences will remain intact but will run concurrently. The benefit of section 382-B, Cr.P.C. shall be extended to the appellants. The weapon of offence shall be confiscated in favour of State.

10. With the above modifications the appeal is disposed of. JK/157/GB Order accordingly.