Police encounter

Terrorism, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapons and recovery of weapons

Anti-Terrorism Court

Jurisdiction

Police encounter

Element of creating fear and insecurity in society, absence of

Effect

Accused persons were alleged to have encountered a police party in armed conflict

Accused persons sought transfer of trial to Court of ordinary jurisdiction on the plea that no act of terrorism was made out

Validity

Although there was an act of armed resistance against members of law enforcement agency, as envisaged in S. 6(2)(o) of Anti-Terrorism Act, 1997, yet factor specified in S. 6(1) of Anti-Terrorism Act, 1997, was absent

Matter did not fall within the fold of 'terrorism'

Mere recovery of firearms and ammunition coupled with assertion that the same were to be supplied onwards for the purpose of creating/ spreading terror did not suffice for that purpose, especially when intended recipient was not a proscribed person or proscribed organization

Alleged offence was even otherwise not one of those heinous offences which did not constitute offence of terrorism per se but were nonetheless to be tried by an Anti-Terrorism Court due to having been specified in Entry No. 4 of Third Schedule to Anti-Terrorism Act, 1997

High Court set aside the order passed by Anti-Terrorism Court and trial was transferred to ordinary Court of competent jurisdiction

Revision was allowed accordingly.

Investigation report filed by police under "C" class was disposed of by Magistrate under "B" class (false case) with direction to take action against complainant party of police officials

Validity

Material collected during course of investigation was not sufficient enough to declare that FIR lodged by police officials was maliciously false yet such material was sufficient to take cognizance against accused persons

High Court modified findings of Magistrate by converting category of case from "B" class to "C" class

Some material had come on record against police officials in respect of suspicious encounter resulted into death of three persons and the same needed high standard inquiry against police officials

High Court in exercise of inherent jurisdiction under S. 561-A, Cr.P.C. directed Inspector General of Police to conduct departmental inquiry into the matter

Application was disposed of accordingly.

Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, abetment, rioting armed with deadly weapon, unlawful assembly, common intention, possessing illicit weapon, act of terrorism

Appreciation of evidence

Police encounter

Scope

Encounter, according to the prosecution evidence was of a major nature which lasted up to four hours

Reinforcements were called

149 empties of varying bore was recovered from the scene along with human blood as proved by a chemical report

Two policemen died on the spot, three policemen were injured on the spot and three of the miscreants were killed on the spot which was an admitted position

No defence witness was produced from the locality to give evidence that no encounter took place

Encounter as alleged by the police had been proven beyond a reasonable doubt on the time, date and location as alleged in the charge

Circumstances established that the prosecution had proved its case beyond a reasonable doubt

Appeal was dismissed accordingly.

High Court observed that in the case of police encounter, it is desirable and even imperative that it should have been investigated by some other agency

Police, could not be investigators of their own cause

Such investigation which is woefully lacking independent character could not be made basis for conviction, that too when it is riddled with many lacunas and loopholes.

High Court observed that standard of proof should be far higher as compared to any other criminal case, thus, it was desirable and even imperative that it should have been investigated by some other agency

Police, in that case, could not have been investigators of their own cause

Such investigation which was woefully lacking independent character could not be made basis for conviction, that too when it was riddled with many lacunas and loopholes

Circumstances established that the prosecution had failed to bring home the guilt of accused

Appeal against conviction was allowed, in circumstances.

Accused persons were arrested for kidnapping for ransom and abductee was recovered from their custody after police encounter

Non-holding of identification test was no ground to discard testimony of eye-witness and abductee who remained in custody of accused for considerable period and identification of accused in court at time of evidence was sufficient

Identification parade was not a requirement of law but only one of methods to test veracity of eyewitness who had an opportunity to see accused and claimed to identify him

All witnesses including abductee fully supported case of prosecution against accused persons

Recovery of abductee from custody of accused persons; their encounter with police and receiving of injuries during encounter by one accused and death of other accused; recoveries of unlicensed weapons from accused persons including empties which were sent to Forensic Science Laboratory and report of Chemical Examiner regarding blood stained clothes of deceased accused and blood stained mud; collection of Call Data Record (CDR) of mobile of accused so also abductee; and recovery of mobile phone and SIM which were used for demand of ransom had proved case of prosecution

Evidence of star witness (abductee) was trustworthy, inspired confidence which could not be discarded on flimsy grounds or on technical ones

High Court declined to interfere in conviction and sentence awarded to accused persons by Trial Court

Appeal was dismissed in circumstances.

Held, standard of proof should have been far higher as compared to any other criminal case, thus, it was desirable and even imperative that it should have been investigated by some other agency

Police could not be investigators of its own cause

Investigation which was woefully lacking independent character could not be made basis for conviction, that too when it was riddled with many lacunas and loopholes

Circumstances established that the prosecution had failed to bring home the guilt of accused.

High Court observed that in cases of police encounters where only the accused received injuries during the encounters, non production of medical evidence in respect of those injuries was fatal to the case of prosecution.

Complaint against accused was that he along with co-accused persons killed two persons under the pretext of police encounter

Validity

Two persons lost their lives allegedly at the hands of accused persons, after first sustaining fire shot injuries under the pretext of police encounter

Investigating officer was required to investigate the case even from the angle of defence but his conclusion must always be based on facts discovered during the course of investigation and not merely on the words of informant or defence

Root of defence plea being that deceased persons being desperate and hardened criminals were done to death in police encounter, Magistrate was right in demanding some proof of such plea, which the accused persons failed to produce before him

Witnesses of incident had supported the version of informant, then the investigating officer was not justified to declare the case to be false on the basis of defence plea without collecting any proof thereof

Except the petitioner, none else had assailed the order of Magistrate which impliedly reflected that they had accepted the same

Taking cognizance of offence would not release the prosecution of its duty to prove its case beyond any shadow of doubt or take away the right of accused to enjoy fair trial

Criminal miscellaneous application was dismissed, in circumstances.

Petitioner (Police Official ) was amongst ten accused persons, some of whom were in uniform and some in civilian clothes, who came in police mobile van and two private vehicles at night and took away the son of the complainant; the complainant was later told that his son had been killed in the police encounter

Complainant contended that in his presence, the petitioner caught hold of his son and made him sit in the mobile van

Petitioner contended that he was entitled for the concession of bail as present case was an old one yet the same had not been decided even after lapse of statutory period for the conclusion of the trial

Validity

Act of the petitioner, tentatively, fell within the ambit of "terrorism" and "extra judicial killing" and on said ground alone, the petitioner was not entitled to bail

Record revealed that out of twenty nine witnesses, eight material witnesses including complainant had been examined which showed that substantial progress had been made in trial by the Trial Court and the case was about to conclude

Record also revealed that the petitioner was apprehended after more than four years of lodging of the FIR

Petitioner was well aware of the charge against him, but he opted not to surrender before the Trial Court for a long period, which showed that the petitioner by his conduct thwarted the process of investigation as well as trial

Unexplained noticeable abscondence of an accused deprived him some of the normal rights granted to him by procedural as well as substantive law

Case diaries and progress report submitted by the Presiding Officer of the Trial Court, showed that the delay in conclusion of trial was on the part of petitioner as he consumed one year time to complete the cross-examination of the complainant

Progress report categorically stated that the petitioner had shown mistrust upon the Court and emphasized to refer for transfer of the case to any other Court, therefore, reference was made to the Registrar of the High Court,for transfer of the case

Sufficient efforts were made by the Trial Court to conclude the trial, but it was the petitioner who delayed the conclusion of trial and even approached revisional court for the transfer of his case

High Court directed Trial Court to decide the trial as early as possible in accordance with law since the present case was an old one

Bail was refused to the petitioner, in circumstances.

High Court observed that such cases were to be investigated by some other agency.

Act of terrorism, attempt to Qatl-i-amd, obstruction to government official, damage to property and recovery of explosives and arms

Appreciation of evidence

Benefit of doubt

Police encounter

Proof

Recovery proceedings, absence of

Public witnesses

Accused was arrested for causing encounter with police officials on duty

Accused was convicted under different provisions of law and was variously sentenced maximum to 14 years of imprisonment

Validity

No police officer or anyone else was injured in the incident though it was daytime incident and place of incident was a thickly populated area

Story of prosecution was unbelievable as police claimed that they were armed with arms and ammunition and one accused ran away from the police

Such was a question mark about police officials who participated in the encounter

Accused surrendered before police though he was armed with pistol thus, there was no question of deterring police party from discharging their lawful duties of causing obstruction of any sort

No private person was associated as Mashir (witness) of arrest and recovery though it had come on record that place of incident was surrounded by houses and shops

Prosecution failed to prove its case against accused and Trial Court could not appreciate evidence according to settled principles of law

False implication of accused could not be ruled out

High Court set aside conviction and sentence awarded to accused by Trial Court as prosecution could not prove its case beyond shadow of doubt

Accused were acquitted and appeal was allowed in circumstances.

Accused persons were alleged to have committed police encounter and they were convicted by Trial Court and sentenced variously maximum up to imprisonment for fourteen years

Validity

Nobody received any injury from police side even no bullet was hit to police mobile during the encounter

Trial Court was silent in judgment with regard to police encounter, therefore, S.7 of Anti-Terrorism Act, 1997 was misapplied

High Court set aside conviction and sentence to the extent of S. 7 of Anti-Terrorism Act, 1997 awarded to accused persons

Recovery of alleged articles from possession of accused persons though were independent offenses and as S. 7 of Anti-Terrorism Act, 1997 was wrongly applied, sentence awarded to accused persons with regard to recovery of articles was reduced to one which they had undergone

High Court maintained conviction but reduced sentence to one which accused had already undergone and fines imposed were also remitted

Appeals were dismissed in accordingly.

Applicant/complainant (father of deceased) sought transfer of case pending before Court of Session to Special Court (Anti-Terrorism)

Complainant alleged that Police (Station House Officer of Police Station "X") picked up his son, demanded illegal gratification and murdered him despite filing of habeas corpus petition which was pending before the Court of Session

While Police (Station House Officer of Police Station "Y") alleged that there was encounter with unknown terrorists in which three terrorists were killed and others made their escape good and son of complainant died during that encounter

Said case was pending before the Special Court (Anti-Terrorism)

Both the cases were cross-cases relating to different sets of accused persons while alleged murder of son of complainant was common

Two separate criminal proceedings in respect of murder of the deceased were pending in two distinct courts and when there were two versions in respect of same occurrence, trial ought to be conducted by one and the same court because serious likelihood of conflict could prevail, if two cases giving different versions of same incident were not tried together

Scheduled and non-scheduled offences could be tried in one and same trial by the Anti-Terrorism Court

Case pending before the Court of Session was ordered to be transferred to Special Court (Anti-Terrorism)

Application for transfer of case was allowed in circumstances.

Kidnapping for ransom, possessing unlicensed arms, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting, common intention, act of terrorism

Appreciation of evidence

Benefit of doubt

Police encounter

Police claimed that accused opened fire on police party

Standard of proof in such a case had to be higher as compared to any other criminal case

High Court observed that it was desirable that such case should have been investigated by independent police officer or agency

Investigation in the case lacked independent character, which could not be made basis for conviction

Attending circumstances cast serious doubt about the veracity of the prosecution case, benefit of which was extended to accused

Conviction and sentence recorded by Trial Court were set aside and accused were acquitted in circumstances.

Accused persons faced trial for demanding Bhatta by issuing a slip to complainant and also made threatening telephone calls

Accused persons were convicted by Trial Court and sentenced variously maximum up to imprisonment for five years

Validity

Handwriting on Bhatta slip was not got matched not voice was identified

No confessional statements of accused persons was on record

Names of accused persons were not mentioned in the FIR and they were supposed to be produced before Magistrate for holding identification parade but no such parade was held

First Information Report though showed that police encounter took place for few minutes in-between-police and accused persons but neither any damage was caused to the police vehicle nor any injury was caused to any police official

Such fact remained in mystery and created doubt in prosecution case

Police officials narrated different stories in their statements regarding alleged raid, seizure, recovery and property shown in Court and the same could not be safely relief upon for conviction of accused persons

Prosecution failed to prove its case against accused persons and Trial Court did not appreciate evidence properly

High Court set aside conviction and sentence awarded by Trial Court and all accused persons were acquitted of the charge

Appeal was allowed accordingly.

Complainant contended that the police officials in connivance with other co-accused committed the murder of the sons of the complainant and in order to save their skin gave it a colour of police encounter

Complainant of the case was not an eye-witness of the abduction/ murder of the deceased, and prosecution's case was only based upon the evidence of prosecution witness who claimed that he was present at the place of occurrence when the deceased were abducted by the police officials and that on the asking of complainant he followed the accused

Held, that there was no occasion for the prosecution witness to stay at complainant's place when his own residence was 14 Kilometers away from the complainant's place of residence and he further claimed that he followed the accused in taxi car to the police station but driver of the said taxi was not produced before the Trial Court

Deceased, in the present case, were record-holders and had history of involvement in number of criminal cases including murder, dacoity and possessing illicit arms and they were killed in a genuine police encounter, whereas private accused were involved by the complainant on account of previous enemity with him

Tainted piece of evidence could not furnish any corroboration to another tainted piece of evidence

Trial Court while acquitting the accused did not commit any misreading or non-reading of evidence and when an accused was acquitted from the case after a regular trial, he enjoyed double presumption of innocence and his acquittal could not be disturbed without any strong exceptional reason

Appeal being devoid of any merit was dismissed.

Despite cross-firing with sophisticated weapons, no one received any injury and no damage was caused to the police vehicle

Case had been challaned, therefore, there was no question of tampering with prosecution evidence

Application of S. 324, P.P.C was yet to be determined at trial

Concession of bail could not be refused to accused on basis of mere allegations without sufficient material

Case was one of further inquiry and accused was released on bail accordingly.

Trial Court convicted and sentenced accused under S.7 of Anti-Terrorism Act, 1997 and S.13-A(1)(c) of Pakistan Arms Ordinance, 1965

Appeal filed by accused before the High Court was also dismissed

Contentions of accused were that serious prejudice was caused to him as no one appeared on his behalf before the High Court, and that he might have acted while exercising his right of self-defence

Validity

Manner of arrest as given by the prosecution was supported by the fact that at the time of arrest accused was found injured

Accused could not explain as to how he had sustained firearm injury, which was corroborated by medical evidence with regard to probable time of receiving injuries and the time of occurrence as given by the police

Accused was properly defended before the Trial Court and every witness was subjected to lengthy cross-examination by defence counsel

High Court referred to the defence version and only thereafter maintained conviction recorded by Trial Court

Prosecution had brought home charge against the accused

Version of accused was not corroborated by any independent circumstance

Appeal was dismissed accordingly.

Accused was allegedly arrested in an injured condition during a police encounter and arms and ammunition were recovered from him

Trial Court convicted and sentenced accused under S.13 of Pakistan Arms Ordinance, 1965

Appeal filed by accused before the High Court was also dismissed

Contentions of accused were that serious prejudice was caused to his defence as he was not represented by any counsel before the High Court; that he was implicated in the present case since he wanted to lodge a criminal case against police officials for killing one of his friends in a fake police encounter

Validity

Police officials had given direct testimony about the arrest of accused in an injured condition with unlicensed weapon

Although witnesses were police officials but keeping in view the fact that there was cross-firing between the police and accused, who refused to surrender, there was no question of any person from the public being available for the purpose of witnessing the recovery

Accused was defended by a counsel before the Trial Court, where prosecution witnesses were subjected to lengthy cross-examination

Accused opted not to engage a counsel before the High Court, however his present appeal was heard with the assistance of a senior defence counsel appearing on his behalf, thus no prejudice was caused to the accused

Appeal was dismissed in circumstances.

Assault or criminal force to deter public servant from discharge of his duty, attempt to commit qatl-e-amd, forgery for purpose of cheating, making or possessing counterfeit seal etc., common intention

Bail, grant of

Further inquiry

Police encounter

During exchange of firing no one had received injuries from either side, or even no bullet hit the Police Van, or the car

Mob of people had gathered during course of encounter but, Police had failed to associate any independent witness of the vicinity to act as Mashir which was a violation of mandatory provisions of S.103, Cr.P.C.

Accused was arrested from the car and his three companions made their escape good

Section 468, P.P.C. was a non-cognizable offence

Investigating Officer had failed to confirm from the Excise Department, whether accused persons had used forged number plate over the car

No F.I.R. was registered against the robbery or snatching of car, or theft of said car

No empty was recovered from the place of wardat

Accused having made out a case of further enquiry under S.497(2), Cr.P.C. was admitted to post-arrest bail, in circumstances.

Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees, possession of illegal weapons, acts of terrorism

Appreciation of evidence

Police encounter

Consistent witness statements

Medical evidence corroborating ocular version

Effect

Accused persons, who belonged to a group of dacoits, attacked the police party during an encounter, which resulted in death of three police officials and also caused injuries to four others

All witnesses supported the prosecution case and reiterated their earlier statements recorded during investigation

No material discrepancy was found in statements of witnesses, which could be termed as material contradiction

Ocular version was substantiated by natural and credible witnesses, including injured witnesses/ police-officials

Arrest of accused persons at the place of occurrence along with sophisticated weapons was proved through trust-worthy evidence

Prosecution witnesses/police-officials were cross-examined at length, but defence failed to shake their credibility and veracity

Although one co-accused was acquitted by Trial Court on basis of his plea of alibi, but present accused persons never claimed/agitated such defence plea

Acquitted co-accused had not examined any witness in his defence nor produced any document to substantiate his plea of alibi, therefore, prosecution case could not be made doubtful on basis of acquittal of said co-accused

Although private witnesses were not arranged, but in circumstances of the occurrence, it was neither practical nor advisable to arrange private witnesses as it would have amounted to putting lives of private persons in danger

Medical evidence was not in contradiction with ocular evidence

Prosecution successfully proved the charge against accused persons through an unbroken chain of ocular, medical and circumstantial evidence

High Court dismissed appeal of accused persons, and issued show-cause notice to the acquitted co-accused to show as to why judgment of acquittal in his favour should not be set-aside

Case was remanded to the Trial Court to consider acquittal of co-accused.

Right of self-defence was to be used as a shield to ward off on warranted attack to person or property, but it could not be used as vehicle for provoking an attack

Right of self-defence was to be exercised as a preventive measure and not for launching an attack for retaliatory purpose

Court would have to examine such question with reference to the facts of each case and keeping in view the state of mind of the person placed in the position of the person attacked who exercised the right of private defence

Art.9 of the Constitution

Encounter would not entitle a Police party to kill indiscriminately the persons who were allegedly involved in the encounter as the basic requirement provided in S.99, P.P.C. and in view of the importance and magnitude of Art.9 of the Constitution.

Attempt to commit qatl-e-amd, assault or criminal forces to deter public servant from discharge of his duty, rioting armed with deadly weapons, possession of illegal weapons, acts of terrorism

Bail, refusal of

Accused persons belonging to gang of kidnappers

Police encounter

Hostages (abductees) freed

Co-accused apprehended and disclosing names of the accused persons, implicating them in the offence

Contentions of accused persons was that they had been involved in the case on the statement of the co-accused, which was not admissible under the law; that alleged police encounter took place for 30 minutes but no one from either side received any injury, and that statements of alleged abductees were recorded after a delay of 10 days without any plausible explanation

Validity

Act of the accused persons showed that they fired upon the police party and obstructed them from performing their lawful duties

Number of witnesses had witnessed the incident which included police officials and the abductees

Evidence of police officials was also corroborated by the abductees

Accused persons were facing trial in a number of heinous offences

Bail application of the accused persons was dismissed, in circumstances.