IN THE HIGH COURT OF SINDH, KARACHI

Special Criminal Anti-Terrorism Appeal No.13 of 2016

Special Criminal Anti-Terrorism Appeal No.51 of 2017

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Date Order with Signature(s) of Judge(s)

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Present:

Syed Hasan Azhar Rizvi, J.

Abdul Maalik Gaddi, J.

1. Ali @ Chota @ Yasir

2. Abdul Samad …………….. Appellants

Versus

The State …………….. Respondent

Date of hearing : 23.06.2017

Mr. Nadeem Ahmed Azar, Advocate for the Appellants.

Mr. Muhammad Iqbal Awan, Assistant Prosecutor General, Sindh.

J U D G M E N T

Abdul Maalik Gaddi, J.– Through this common Judgment, we intend to dispose of the captioned criminal appeals filed by the appellants as these appeals relate to same subject matter involving common question of law and facts as well as arise out of common Judgment delivered by the learned trial Court.

2. By means of these appeals, the appellants have assailed the legality and propriety of the common Judgment dated 08.12.2015 passed by the learned Presiding Officer of Anti-Terrorism Court No.V, Karachi in Special Cases No.254 and 255 of 2014 respectively, in cases Crime Nos.336/2014 and 339/2014 registered under Section 4/5 Explosive Substance Act, read with Section 7 ATA, 1997 at police station Ferozabad, Karachi, whereby the learned trial Court after full dressed trial convicted and sentenced the appellants in point No.2 of the common judgment. For the sake of convenience, it would be advantageous to reproduce the relevant portion of the findings of Point No.2, which reads as follows:-

“Point No.2.

i) Accused Ali Chota son of Saleh Muhammad is convicted under Section 7(1)(ff) of Anti-Terrorism Act, 1997 and sentenced to undergo R.I. for 14 years in Special Case No.254/2014, FIR No.336/2014 of P.S. Ferozabad, Karachi.

ii) Accused Abdul Samad son of Wali Muhammad is convicted under Section 7(1)(ff) of Anti-Terrorism Act, 1997 and sentenced to undergo R.I. for 14 years in Special Case No.255/2014, FIR No.339/2014 of P.S. Ferozabad, Karachi.

The benefit of Section 382-B Cr.P.C. was also extended to each accused from the date of their arrest.”

3. The facts of the prosecution case in nutshell as alleged in the FIR are that on 09.07.2014 ASI Muhammad Asghar of P.S. Ferozabad was on patrolling duty alongwith his staff vide Entry No.51. PC Abdul Hameed driver of police mobile, PC Ghulam Mustafa and Saleh were also in the police mobile while patrolling the area when they reached at Noor Ground, Block-2, PECHS, Karachi at about 1.0 a.m. ASI Muhammad Asghar received by spy information that two persons were present near Ground in suspicious condition having weapons. The ASI Muhammad Asghar took informer and reached at the pointed place and found two persons and apprehended them. Both were holding bags like shopper in their hands. ASI Muhammad Asghar checked both shoppers and from the bag, which was holding by Ali alias Chota two Awan Golas, 09 rods of charas, one pistol 30 bore with magazine four rounds one purse and one wrist watch recovered. From second bag, which was holding by Abdul Samad, two Awan Golas, 09 rods of charas, one pistol 30 bore loaded magazine 05 rounds and one purse containing one CNIC also recovered. The ASI Muhammad Asghar in presence of witnesses PC Ghulam Mustafa and Muhammad Saleh seized the same and arrested the accused under mashirnama and returned to police station and lodged six FIRs being Crime Nos.335 to 340 of 2014, FIR bearing No.336/2014 was under Section 4/5 Explosive Substance Act read with Section 7 of ATA, 1997 of police station Ferozabad against Ali alias Chota while FIR No.339/2014 under Section 4/5 Explosive Substance Act read with Section 7 ATA, 1997 of police station Ferozabad against Abdul Samad; rest cases have been challaned in other Courts. Hence, these FIRs.

4. It reveals from the record that in order to establish accusation against the appellants, prosecution had examined in all four witnesses. PW-1 complainant ASI Muhammad Asghar at Ex.07, he produced copy of daily diary report of police station Ferozabad, Karachi dated 08.07.2014 at Ex.7/A, memo of physical search, recovery and arrest alongwith translation at Ex.7/B, copy of FIR No.336/2014 alongwith translation at Ex.7/C, copy of FIR No.339/2014 alongwith translation at Ex.7/D and memo of inspection of scene of crime alongwith translation at Ex.7/E. PW-2 Ghulam Mustafa at Ex.8. Record shows that vide statement at Ex.9, prosecution give up PC Saleh Muhammad for evidence. PW-3 SIP Muhammad Ayoub Baloch of Bomb Disposal Unit at Ex.10, he produced clearance certificate at Ex.10/A, Inspection Report of Rifle Grenades at Ex.10/B and Ex.10/C. Record further shows that application under Section 540 Cr.P.C. filed by the counsel for the appellants at Ex.11. PW-4 Syed Fida Hussain Shah at Ex.12, he produced copy of letter for CRO at Ex.12/A, letter addressed to SSP Technical for calling final report of Bomb Disposal Unit at Ex.12/B, letter addressed to Home Department for sanction of prosecution at Ex.12/C, sanction order for prosecution at Ex.12/D and Ex.12/E respectively, entry at Ex.12/F. These witnesses have been cross examined by the counsel for the appellants, thereafter, prosecution had closed its side vide statement at Ex.13.

5. The statement of the appellants were also recorded under Section 342 Cr.P.C. in both the cases at Ex.14 and Ex.15, in which they have denied all the allegations as leveled by the prosecution and have stated that the cases against them are false and nothing were recovered from them. They further stated that ASI Muhammad Asghar demanded bribe from them and when they did not pay the same they have been falsely implicated in these cases. They further stated that they were taken by the Rangers from their mohallah in the month of holy Ramazan when they were going to offer prayer, as such they have prayed for their acquittal.

6. Heard the parties counsel and perused the record.

7. As per prosecution story, the appellants were arrested near Noor Ground, Block-2, PECHS, Karachi and during their personal search, two Awan Golas, 09 rods of charas, one pistol 30 bore with magazine 04 rounds, 01 purse and one wrist watch were recovered from appellant Ali alias Chota, whereas, from second bag, which was holding by the appellant Abdul Samad, two Awan Golas, 09 rods of charas, one pistol 30 bore loaded magazine 05 rounds and 01 purse containing one CNIC were recovered in presence of mashirs PC Ghulam Mustafa and PC Muhammad Saleh. Whereas, investigating officer of the case namely Inspector Syed Fida Hussain in his evidence available on record at Ex.12 while contradicting the above facts deposed that he had received two Awan Golas and one pistol 30 bore with magazine 04 live bullets from the complainant. It is surprising to note here that when allegedly 30 bore pistols were recovered from the appellants separately, but no separate case has been registered against them for possessing unlicensed weapons, thus, it appears that the case of the prosecution is based on doubtful story.

8. It appears from the record that 09 rods of charas being 90 grams were also recovered from each of the appellant under the same mashirnama dated 09.07.2014 and they were separately challaned in Crime Nos.335 and 338 of 2014 of police station Ferozabad, Karachi under Section 6/9-A of CNS Act, but in the said FIRs, these appellants have been acquitted by the learned Civil Judge/Judicial Magistrate-XIII, Karachi (East) vide judgment dated 08.12.2016 on the ground of non-production of recovered charas in the Court. The said judgment has not been challenged by the prosecution before any competent Court of law, as such, the said judgment attained finality. When confronted this fact with the learned APG, he has no answered with him, however, he admits that common mashirnama of the said cases was prepared in presence of the mashirs PC Ghulam Mustafa and PC Muhammad Saleh. We have noticed that alleged incident took place on 09.07.2014, but the clearance certificate of Bomb Disposal Unit issued on 12.07.2014 by SIP Muhammad Faras after the delay of more than three days for which no explanation has been furnished. In our view, it should be issued on the same day in order to show the transparency of the process. This fact creates serious doubt/dent in the prosecution case, but the learned trial Judge did not consider all these facts and passed the impugned judgment without applying his judicial mind.

9. As observed above, this is the case based upon doubtful story. In this regard, we may say that many doubts are not needed in the prosecution case, rather any reasonable doubt arising out of prosecution evidence as happened in this case, it would be better to acquit the accused than convicting one innocent soul. Acquitting by error, would be better than convicting by error. Once substantial doubt is enough for acquittal of the accused. We have already highlighted many doubts in the prosecution case as supra, therefore, benefit of doubt will go in favour of the appellant.

10. For our above stated reasons, we have no hesitation to hold that the prosecution has failed to prove its case against the appellants and learned trial Court did not appreciate the evidence and documents on record properly. Consequently, these appeals are allowed. The impugned common Judgment passed by the trial Court is set-aside. Resultantly, the appellants are acquitted from the charge. They are in jail, therefore, jail authorities are directed to release the appellants forthwith, if they are not required in any other cases.

11. These appeals were allowed by our short order after hearing the learned counsel for the parties on 23.06.2017 and these are the reasons thereof.

Karachi.

Dated: 29.06.2017.

JUDGE

Faizan A. Rathore/PA*