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IN THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No.222 & 223 of 2015

(Asim alias Popla Vs. The State)

Present:

Mr. Justice Ahmed Ali M. Sheikh &

Mr. Justice Muhammad Saleem Jessar

Date of hearing : 25.11.2016

Date of decision : 16.12.2016

Applicant : Asim alias Popla through Syed Nadeem-ul-Haq,

Advocate.

Respondent : The State through Mr. Muhammad Iqbal Awan,

Assistant Prosecutor General.

O R D E R

Muhammad Saleem Jessar, J: - By this common Judgment, we intend to dispose of above Special Criminal A.T. Appeals No.222 of 2015 and 223 of 2015 as both arise out of one and same Judgment dated 09.9.2015, handed down by learned Special Judge, Anti-Terrorism Court No.VIII, Karachi in New Special Case No.102 of 2015 (old Special Case No.30(III)/2015) and New Special Case No.103 of 2015 (old Special Case No.31(III)/2015), which are outcome of FIR No.04/2015, U/s 4/5, Explosive Substances Act, 1908 read with Section 7 of ATA, 1997 and Crime No.05/2015 under Section 23(1) (A) Sindh Arms Act, 2013 (hereinafter to be referred as Act of 1908, Act of 1997 and Act of 2013 respectively), registered with P.S. Mithadar, Karachi, whereby the appellant has been convicted and sentenced to suffer R.I. for seven years on each count with fine of Rs.50,000/- each and in default thereof, he shall serve out six months more. However, the sentences have been ordered to run concurrently in terms of section 397 Cr.P.C besides, benefit of section 382-B Cr.P.C has also been extended to him. The appellant being aggrieved by and dissatisfied with the common Judgment dated 09.9.2015 (impugned Judgment) has assailed the same before this Court by means of instant appeals as required by section 25 of the Act, 1997 r/w section 410 Cr.P.C.

2. The crux of prosecution case as unfolded in the F.I.Rs No.04/2015 and 05/2015 are that the police party headed by ASI Kashif Barkat was busy in their area patrolling for suppression of crimes on official mobile-II No.SP.7200. While patrolling the complainant had received spy information that a person is standing in suspicious condition at old Queens Road, near Ocean Centre, who is having arms with him. Upon receipt of such information they rushed towards the pointed place found a person was standing while wrapping sheet on his person. Observing him suspicious and due to non-availability of the private persons apprehended him with the help of his subordinates. On inquiry, he disclosed his name to be present appellant (Asim alias Popla). The ASI Kashif Barkat by citing HC Imtiaz Hussain and PC Khan Muhammad as Mashirs conducted his body search and secured a 222 Rifle, Pak made, semiautomatic having number CAL 222 having Magazine No.C-11155 containing seven live bullets lying in the sack carried by the appellant. On his further personal search, the police secured one Awan Gola (Gun Grenade) from his left side pocket of the pant. On query, he disclosed it to be unlicensed one. Since by keeping unlicensed ammunition in his possession the appellant / accused was found guilty of the offence punishable to Sections 4/5 of the Explosive Substances Act, 1908 read with Section 7 ATA, 1997 and 23 (1) (A) of the Act, 2013. He was arrested on spot. The ammunitions secured from his possession were also sealed. From his further body search Rs.140/- were recovered and taken into possession by the Police. The police party along with the accused, case property returned to police station where they got registered a case under Section 4/5 of the Act, 1908 against him meanwhile had informed to Bomb Disposal Unit for getting the recovered Awan Gola defused. The separate FIR in respect of recovery of the Rifle was registered as Crime No.05/2015 under Section 23(1) (A) of the Act, 2013. The investigation of instant case was handed over to Inspector / SHO Chaudhry Muhammad Irshad.

3. After registration of the case, police conducted investigation and after completion of legal formalities submitted the charge sheet before the competent Court of law having jurisdiction. The learned trial Court after taking cognizance observed the proceedings of Oath in terms of Section 16 of the ATA, 1997 at Ex.03. The case in terms of FIR No.05/2015 for offence under Section 23(1) (A), Sindh Arms Act, 2013 is the non-scheduled offence, but has connectivity and nexus with the scheduled offence, therefore, both cases were ordered to be tried by joint trial in terms of Section 17 and 21 (M), ATA, 1997. The necessary copies pertaining to the case statements etc. were supplied to the Appellant / Accused as required by Section 265-C, Cr.P.C. and then framed the charge against Appellant on 28.5.2015 at Ex.05 in following terms: -

CHARGE

I, Imdad Hussain Khoso, Judge Anti-Terrorism Court No.VIIIth, Karachi do hereby charge you:

1.Asim @ Popla S/o Mirajuddin

as follows:

That on 05.01.2015 at about 1945 hours at Old Queens Road, near Ocean Center, Mithadar, Karachi police party apprehended you as suspected and recovered One Evan Gola/Gun Grenade (Explosive-substance) from your possession for which you were having no lawful justification and thereby, you have committed an offence punishable U/S 7(FF) ATA, 1997 and within the cognizance of this court.

I, further charge that on the same time, date and place you were found in possession of One Rifle of 222 bore, number “C11155” Marka “Cal 222 PAK MADE SEMI Automatic” loaded magazine containing 07 live bullets for which you had no legal justification/license and thereby, you have committed an offence punishable U/s 23(1) (a), Sindh Arms Act, 2013 and within the cognizance of this court.

And I hereby direct that you be tried by this Court on the above said charges.

This the 28^th day of May, 2015

(IMDAD HUSSAIN KHOSO)

Judge

Anti-Terrorism Court No.VIII,

Karachi

4. To prove its charge, the prosecution has examined in all five witnesses namely ASI Kashif Barkat, Complainant as Ex.07, he produced the Roznamcha entry Ex.07/A, memo of arrest and recovery Ex.07/B, FIRs Ex.07/C&D, arrival entry Ex.7/E and memo of inspection of place of occurrence at Ex.07/F. PW-2 PC Muhammad Imtiaz Ex.08. PW-03 Bomb Disposal Expert Ghulam Mustafa Arain Ex.09, he produced the Roznamcha entries Ex.09/A and C, clearance certificate Ex.09/B, letter of issuance of the inspection report Ex.09/D and the final inspection report of BDU Ex.09/E. PW-04 SHO/Inspector Muhammad Irshad Ex.10. He produced the Roznamcha entry Ex.10/A, letters Ex.10/B, D and E, FSL report Ex.10/C. Thereafter the learned ADPP closed the prosecution side at Ex.11.

5. Accused was examined under Section 342 Cr.P.C. Ex.12 in which he has denied the prosecution allegations and claimed to be innocent. He has stated that he was apprehended by the Rangers on 24.12.2014 at about 04:00 p.m. from his house and nothing has been recovered from him and case property has been foisted against him. However, he did not examine himself on oath in his defense.

6. After full dressed trial and having heard the parties learned trial court has convicted the appellant and sentenced him in following terms;-

“The sequence of the discussion is that the prosecution has successfully proved the case for an offence punishable U/s 5 of the Explosive Substance Act, 1908 and he is convicted and sentenced him to suffer RI for seven years and fine Rs.50,000/- (fifty thousand), in default, he shall serve six months more. Accused is also guilty of offence u/s 23(i) (a) Sindh Arms Act, 2013 and he is convicted & sentenced to suffer RI for seven years and fine Rs.50,000/- (fifty thousand) in default, he shall serve six months more. Accused is first offender having no history of his involvement in such like cases and he is sole bread earner of his family thus, the court has taken lenient view and ordered that the sentences awarded to the accused in the above cases shall run concurrently as described by section 397 Cr.P.C. Reference is made 1997 P Cr. L J 1185, PLJ 2003 Cr. C (Lah) 484, 2011 P. Cr. L J 1687 and 2012 P Cr. L J 1028, 2005 MLD 856, 2007 YLR 700, 2009 MLD 1068,2015 P. Cr. L J 1380. Accused has extended benefit of section 382-B Cr.P.C. Accused is in custody, he remanded back with conviction warrant to serve out sentence awarded to him.

7. Syed Nadeem ul Haq, learned counsel for the appellant has contended that there are many contradictions in the prosecution evidence and police have not complied with section 103 Cr.P.C. He further contended that the alleged weapons and ammunition were not secured from the possession of the appellant and same have been foisted upon him by the police aims to get shield from their superiors. He further contended that the appellant was arrested by the Rangers from his house on 24.12.2014 at 4.00 a.m. and then he was handed over to police, who implicated him in this false case by foisting the alleged weapons. He further contended that all the P.Ws are from police and none from the public was associated as an eyewitness of the proceedings. In support of his contention, he has placed reliance upon the cases of Muhammad Ayoob Vs. the State (2012 P Cr. L J 1438), Fida Hussain Vs. The State (2012 P Cr. L J 226) and Salman Khan Vs. The State (SBLR 2015 Sindh 310).

8. On the other hand, Mr. Muhammad Iqbal Awan, learned A.P.G appearing on behalf of the State has vehemently opposed and stated that despite lengthy cross nothing fruitful was secured from the prosecution witnesses and no major contradictions and discrepancies have been found in the prosecution evidence. He has submitted that some minor discrepancies, which are on immaterial aspects could not vitiate the evidence adduced by the prosecution which on the contrary is inspiring confidence and no major contradictions were made on material ingredients of the case.

9. We have heard arguments and have gone through the evidence as well as record made available before us.

10. P.W.-1 ASI Kashif Barkat Ex.7, who is complainant of this case has deposed that on 05.01.2015 upon receipt of the spy information when they reached at the pointed place, they found a person standing there in suspect condition who was apprehended and on his search he was found with a cloth bag containing 222 rifle having No.C11155 Pak made alongwith magazine containing seven live rounds. Besides he was also found in possession of one Avan Gola for which he had no valid license. In his cross examination, he had replied that the accused was captured by HC Imtiaz who conducted his body search. No public person was available nor was gathered at the spot. He, however, had stated that he (appellant) was having off white colour bag and multi colour chadar and the weapon secured was sealed by him. Besides Rs.140/- was also secured from his possession. He shown the place of incident to I.O. even then no person from public was available. No major contradiction was made by this PW despite of the cross examination conducted by the defence.

11. P.W.-2 HC Muhammad Imtiaz in his deposition has supported the version of complainant. He has deposed that the accused had a red colour cloth bag and on his body search, he was found in possession of 222 rifle alongwith magazine containing seven live bullets and Avan Gola. Rs.140/- were also recovered from his personal search. However, this P.W has not deposed in his chief that the accused was captured first by whom of them. But in his cross examination he replied that he had captured the accused and he do not remember the colour of the bag and he also did not remember the colour of chadar.

12. P.W.3 Inspector Ghulam Mustafa Arain Ex.9 deposed that on 05.01.2015 he was posted at BDU Artillery Maidan. On same day, he was present at CID Garden in connection with inspection of explosive material. He had received information from P.S. Mithadar and so also from Akber Base regarding recovery of explosive by Mithadar police. He by making departure entry in the daily diary being No.59 went to P.S. Mithadar, Garden where he was told by SHO Choudhry Muhammad Irshad that rifle, Grenade has been recovered without launcher. He inspected the same which was sliver colour and was already saved and was further saved by him. He issued clearance certificate and produced the same before the trial court. He had also produced departure and arrival entries before the trial court. Out of three questions from defence in cross examination, he had answered in affirmative only for one which reads “It is correct to suggest that the number of recovered rifle Grenade is not a readable and rubbed”.

13. P.W.4 SHO Muhammad Irshad was examined by the prosecution. He deposed that on 05.01.2015 he was posted as SHO P.S. Mithadar and on same day FIR No.04/2015 and 05/2015 got registered by ASI Kashif Barkat, memo of arrest and recovery, sealed property, Avan Gola and custody of accused were handed over to him for investigation. On same day, one Ghulam Mustafa Arain had visited the P.S and inspected Avan Gola/ rifle Grenade, after saving sealed it. Such clearance certificate was issued by him. He visited the place of incident upon the pointation of the complainant and witnesses. The weapon was sent for chemical examination and after obtaining permission for trial submitted the charge sheet before the concerned court and after putting some formal questions by defence in his cross no fruitful suggestion was put by the defence. After completion of evidence of prosecution side appellant was examined u/s 342 Cr.P.C. The appellant neither examined himself on oath nor led any defence. He, however, had taken plea by replying the question No.7 of his statement which reads as under:-

“Sir, I am innocent. I was arrested on 24.12.2014 at about 04.00 am from my house by rangers and nothing was recovered from me. Police had registered false cases & I pray for justice”

14. In case of Muhammad Ayoob (supra) the Divisional Bench of this court had acquitted the appellants therein from the charge of sections 4 & 5 of Explosive Substances Act, 1908 r/w section 6 & 7(b) of ATA, 1997 on the ground that the appellant therein was already in custody since 3^rd October, 2002 whereas the alleged weapons were recovered from them after delay of 12 days and therefore, such recovery was treated doubtful being tainted with malafides. In the instant case circumstances are quite different as the appellant was found in possession of alleged ammunition and at the time of trial such recovery was not shattered or destroyed therefore, case of Muhammad Ayoob is not helpful to the appellant.

15. In case of Fida Hussain (supra), the appellant therein was acquitted from the charge of main case and therefore, the offshoot case in terms of section 13(e) Arms Ordinance, 1965 was acquitted on the ground that same set of evidence was disbelieved by the trial court in main case while was maintained in the consecutive case. In the instant case appellant has been convicted and sentenced by the trial court in both cases, therefore, the case of Fida Hussain (ibid) is distinguishable from the facts of the present case.

16. In case of Salman Khan (supra) the applicant therein was granted bail in terms of section 497 Cr.P.C U/s 23(i) (a) of Sindh Arms Act,2013 therefore, principle to the extent that section 34 of Sindh Arms Act, 2013 has not expressly excluded the applicability of section 103 Cr.P.C and the said order of this court is for the bail before trial. Consequently, this case is also not helpful to the appellant, therefore law cited by the counsel for the appellant is distinguishable from the facts and circumstances of the present case.

17. As far as contention of learned counsel for appellants to the effect that entire set of P.Ws is from police, therefore, their testimony cannot safely be relied upon is concerned, same has got no weight in the eye of law particularly when the Act, 1997 specifically bars the provision of section 103 Cr.P.C under section 19-A, Act, 1997, which reads as under:-

“19A. Mode of making searches and arrest.--- The provisions of the Code, except that of section 103, shall mutatis mutandis apply to all searches and arrest by police officer and an officer of equivalent rank of the law enforcement agencies made under this Act.”

It is settled principle of law that police persons are good witnesses as from the public and in absence of any animosity or malice on their part, their testimony cannot be discarded in toto. In this context we are confined to the dicta laid down by Honourable Supreme Court in case of Abdul Rasheed Vs. The State (2009 SCMR 306), whereby learned apex court while discussing this issue has held in para 6 of its Judgment (supra) as under:-

“So far as the argument regarding non-association of the public witnesses at the time of raid by the raiding party is concerned, suffice it to observe that application of provision of section 103 Cr.P.C has been excluded under section 25 of the Act, as laid down by this court in Fida Jan V. The State 2001 SCMR 36. The prosecution witnesses being members of the raiding party were the natural witnesses and their testimony cannot be discarded merely on the ground that they were the employees of the police force. Reference in this context, may be made to Muhammad Azam V. the State PLD 1996 SC 67, Muhammad Hanif V. The State 2003 SCMR 1237, Riaz Ahmed V. The State 2004 SCMR 988 and Naseer Ahmed v. The State 2004 SCMR 1361.

18. The appellant has failed to shatter the prosecution evidence or has proved any malafide on the part of police for falsely implicating him in this case. The evidence adduced by the prosecution at trial is inspiring confidence and there is no illegality or any material irregularity causing miscarriage of justice is found in the impugned Judgment. Consequently, we after examining the record anxiously have reached at the conclusion that prosecution has proved its case beyond any reasonable shadow of doubt. In these circumstances, we do not find any illegality in the finding of appellant’s guilt. The impugned judgment, therefore, is unexceptionable and the conviction does not call for any interference.

19. However, coming to the question of sentence, we note that it has been conceded by the learned trial Court as well as A.P.G. that appellant is a previous non convict so also sole bread earner of his family and there is no other instance of appellant’s involvement in like case. In these circumstances, appellant needs to be given a chance in his life to rehabilitate himself.

20. Consequently, while dismissing the appeals, we maintain the conviction and are persuaded to reduce the sentences of imprisonment on each count from seven years to five years and fine of Rs.50,000/- to Rs.10,000/-. In case of default in payment of fine amount, appellant shall suffer S.I. for three months more. The benefit of section 382-B Cr.P.C. is also extended to the appellant. All sentences shall run concurrently as already directed by learned trial Court. The instant appeals, in view of the above modifications, are disposed off.

JUDGE

Dated: 16.12.2016

A.K / P.S*