IN THE HIGH COURT OF SINDH, KARACHI

Spl. Cr. A.T. Appeal No.196 of 2016

Spl. Cr. A.T. Appeal No.197 of 2016

Spl. Cr. A.T. Appeal No.198 of 2016

Spl. Cr. A.T. Appeal No.200 of 2016

Spl. Cr. A.T. Appeal No.201 of 2016

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Rasheed Ahmed Soomro

Appellants: Rashid Mir S/o Mir Akbar through Syed Lal Hussain Shah, advocate in Appeals Nos.196 & 197 of 2016

Saeed Ahmed S/o Irfan Ahmed through Syed Lal Hussain Shah, advocate in Appeal Nos.198/2016

Mazhar Naseem S/o Muhammad Naseem through Mr. Farhan Zia Abrar, advocate in Appeal No.200/2016

Tariq Khan S/o Gul Hassan through Mr. Farhan Zia Abrar, advocate in Appeal No.201/2016

Respondent: The State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh.

Date of Hearing : 15.08.2017

Date of Judgment : 24.08.2017

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellants Rashid Mir, Saeed Ahmed, Mazhar Naseem and Tariq Khan were tried by learned Judge, Anti-Terrorism Court No.II, Karachi in Special Cases Nos.B-440, 441, 442, 443 and 444 of 2015. By judgment dated 30.07.2016, appellants Rashid Mir was convicted u/s 4/5 of the Explosives Substance Act, 1908 and sentenced to suffer R.I. for 7 years. As to recovery of unlicensed KK from him, he was convicted under section 23(1)(a) of the Sindh Arms Act, 2013 and sentenced to R.I. for 7 years, whereas, accused Mazhar Naseem, Saeed Ahmed and Tariq Khan were convicted under section 23(1)(a) of the Sindh Arms Act, 2013 and sentenced to 7 years R.I. Accused were extended benefit of section 382-B, PPC.

2. Brief facts of the prosecution as disclosed in the F.I.R. are that Inspector Muhammad Ishaq Lashari of of SIU/CIA Karachi along with his subordinate staff left for patrolling duty on 09.12.2014, when police party reached at Ghani Chowrangi, Shershah Karachi at 0830 hours where Car No.ACT-330 Suzuki Mehran appeared from Shershah Site in a suspicious manner, it was stopped. Four persons were found sitting in the car. On inquiry by the police, driver of the car disclosed his name as Mazhar Naseem and another accused disclosed his name as Rashid Mir. Third person disclosed his name as Tariq Khan and fourth as Saeed Ahmed. As private witnesses were not available, Muhammad Ishaq Lashari made ASI Zulfiqar Hyder and HC Mir Balash as mashirs and conducted personal search of accused Rashid Mir and recovered from his side pocket one hand grenade so also short Kalashnikov with 10 rounds. Rashid Mir had no license for the weapons carried by him. From his pocket cash Rs.1250/- were also recovered as well as Q-Mobile phone. From accused Mazhar Naseem one 30 bore pistol without number with five rounds were recovered so also one Sim 03332391294 and cash Rs.500/-. From accused Tariq Khan it is alleged that one 30 bore pistol with 04 live rounds was recovered so also one Samsung Mobile having Sim No.0321-8784993. From personal search of accused Saeed Ahmed, one pistol with six rounds was recovered. He had also no license for the weapon carried by him. Arms and ammunitions were sealed at the spot. Mashirnama of arrest and recovery was prepared. Thereafter, car used by accused was also seized by the IO under section 550, Cr.PC. Accused and case property were brought to the police station, where main case/F.I.R. bearing No.262/2014 was registered against accused under sections 4/5 of the Explosives Substance Act, 1908. Separate F.I.Rs. bearing Nos.263, 264, 265 and 266 of 2014 were also registered against the accused under section 23(1)(a) of the Sindh Arms Act, 2013.

3. During investigation, investigation officer visited place of wardat, recorded 161, Cr.PC statements of the PWs/police officials, weapons as well as explosive substance were sent to the Experts for opinion/report. Reports were received. On the conclusion of usual investigation, challan was submitted against accused in the main case under sections 4/5 of the Explosives Substance Act, 1908 as well as cases under section 23(1)(a) of the Sindh Arms Act, 2013.

4. Learned Judge, Anti-Terrorism Court-II, Karachi amalgamated the cases registered under section 23(1)(a) of the Sindh Arms Act, 2013 against accused Rashid Mir, Mazhar Naseem, Saeed Ahmed and Tariq Khan with main case registered under section 4/5 of the Explosives Substance Act, 1908 in terms of Section 21-M of the Anti-Terrorism Act, 1997.

5. Trial court framed charge against accused in the main case under section 4/5 of the Explosives Substance Act, 1908 as well as in the cases under section 23(1)(a) of the Sindh Arms Act, 2013. All four accused pleaded not guilty and claimed to be tried.

6. At trial, prosecution examined PW-1 Ghulam Mustafa Arain, PW-2 Zulfiqar Haider, PW-3 Muhammad Ishaq, PW-4 Wasim Ahmed Siddiqui. Thereafter, prosecution side was closed at Ex-P/31.

7. Statements of accused were recorded under section 342, Cr.PC. All accused claimed false implication in these cases and denied the prosecution allegations. Accused Rashid Mir in a question as to why the PWs have deposed against him, he replied that on 08.12.2014 he had asked his cousin, namely, Tariq Gul Hassan to arrive at Karachi Airport to pick him up. He came out of the Airport. Police took him to SIU Sadar and weapons were foisted upon him. He had produced Air-ticket from Islamabad to Karachi as Ex.34.

8. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 30.07.2016 convicted and sentenced the appellant as stated above. Hence these appeals.

9. The facts of these cases as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 30.07.2016 passed by the trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

10. Syed Lal Hussain Shah, learned counsel for the appellants argued that place of recovery was thickly populated area but no private person of locality was associated to act as mashir in this case. It is further contended that according to the prosecution evidence, short KK was recovered from the possession of accused Rashid Mir but report of the ballistic expert reveals that it was SMG. Learned advocate for appellant argued that according to the case of prosecution, weapons were recovered from vehicle of accused on 09.12.2014 but same were dispatched for FSL report on 18.12.2014 with a delay of 9 days. It is argued that safe custody of case property has not been established at trial and there was tampering with case property at police station. Counsel for the appellants argued that explosive substance was recovered from accused Rashid Mir and not from other accused but all the accused were charged by Anti-Terrorism Court. It is contended that IO failed to collect information regarding the ownership of the vehicle. Lastly, contended that accused Rashid Mir was arrested from airport and he had produced air ticket but trial Court did not consider defence plea. In support of his contentions, he relied upon the cases of MOINUDDIN alias WASEEM vs. The STATE (2016 YLR 523), SHAHID IQBAL versus The STATE (2016 MLD 230), ILTAF HUSSAIN versus THE STATE (1996 SCMR 167) and unreported judgment of the Division Bench of this Court in Cr. Special ATA No.294 of 2015. Mr. Farhan Zia Abrar, learned counsel for appellants Mazhar Naseem and Tariq Khan adopted the arguments advanced by Syed Lal Hussain Shah.

11. Mr. Muhammad Iqbal Awan, learned Deputy Prosecutor General Sindh argued that prosecution had examined four prosecution witnesses, they have fully supported the case of the prosecution. He further argued that unlicensed weapons and explosive substance were recovered from their possession. Learned D.P.G. argued that evidence of police officials is as good as that of private persons, no mala fide has been brought on record. Mr. Awan supported the impugned judgment and prayed for dismissal of the appeals.

12. We have carefully examined/scanned the evidence of the prosecution witnesses. Prosecution has failed to prove its case against the appellants/accused beyond any shadow of doubt for the reasons that complainant Inspector Muhammad Ishaq Lashari in his evidence has stated that he was unable to produce roznamcha entry No.19 made by him at police station. Complainant as well as I.O were required to produce the arrival and departure entries for the satisfaction of the Court. Non-production of such entries in the evidence cuts the roots of the prosecution case. Complainant in his evidence has deposed that at the time of arrest of accused and recoveries, he asked the private persons to act as mashir but they refused. Mere words of the complainant are not sufficient. He has not disclosed the names of those persons who refused to act as mashir. Complainant in cross-examination has admitted that he had not sealed mobiles and SIM cards recovered from the possession of accused. Partly investigation of the case has been carried out by I.O Naseem Ahmed Siddiqui. Regarding safe custody of the weapons at police station, I.O has replied in the cross-examination that he kept weapons/case property in his possession at police station from 09.12.2014 to 18.12.2014 and admitted that he had not kept such entry in Register No.19 at police station. It has been admitted by him that Shell Petrol Pump is situated at the distance of 200 feet from the place of wardat but this fact has been suppressed by the complainant cleverly in his evidence. PW SIP Ghulam Mustafa Arain has deposed that he was called by Inspector Muhammad Ishaq Lashari, CIA/SIU Saddar for inspection of the hand grenade. He inspected it and found that hand grenade was without detonator. SIP Zulfiqar has admitted that at the time of arrest of the accused, weapons as well as hand grenade were recovered but in the cross-examination he has replied that accused did not resist at the time of their arrest. We are unable to believe that accused were armed with sophisticated weapons and they easily surrendered before police. From the perusal of the mashirnama of arrest and recovery, it appears that prosecution evidence is contradictory to the mashirnama of arrest and recovery. In the evidence it is stated that pistols recovered from the possession of the accused were without numbers but perusal of the mashirnama of arrest and recovery Ex.P/7 shows that number of one pistol is mentioned as PAM-196 of 30 bore. Said pistol has been shown as case property in case F.I.R. No.266/2014, allegedly recovered from accused Saeed Ahmad. Even at the cost of repetition, it is worthwhile to mention here that evidence of prosecution witnesses was unreliable and did not inspire confidence. There was inordinate delay in sending the weapons to the ballistic expert for the report. Despite contention of defence counsel that there was tampering with the case property / weapons at police station. Safe custody of the weapons and safe transit of the case property to the ballistic expert have not been established. Arrival and departure entries of police station have not been produced in the evidence, this fact has been admitted by prosecution witness. Defence plea has been raised by accused Rashid Mir that he was arrested from the premises of International Airport, Karachi and produced air-ticket of Air-Blue but the trial Court did not consider such plea without assigning the reasons. No doubt, evidence of police officials cannot be discarded simply because they belong to police department. The Court should not start with any presumption against the police officials but in the case of recovery of arms and explosive substances where fate of accused persons hinges upon the testimony of the police officials alone, it is essential to find out if there was any possibility to secure independent person at the time of recovery. Conviction or acquittal of an accused person depends upon the credibility of the witnesses as assessed by the trial court but where it was possible for the police officials to call independent witnesses to act as mashir but police deliberately avoided, the Court has to be very careful in weighing such evidence. It is settled principle of law that judicial approach has to be cautious in dealing with such type of evidence. In this case it is alleged that recovery was made from the car of the accused on the road and petrol pump is situated at a distance of 200 feet but complainant Muhammad Ishaq Lashari failed to call private persons from petrol pump. Mere words of the complainant that persons who gathered refused to act as mashir was not sufficient. Accused Rashid Mir has raised defence plea that on 08.12.2014, he was returning from Islamabad to Karachi, his cousin Tariq Gul Hassan came to receive him at Airport. When accused Rashid Mir came out of the Airport premises, he was picked up by police of S.I.U. Saddar Karachi and according to him weapons were foisted upon him. He had also produced copy of air-ticket from Islamabad to Karachi dated 08.12.2014. According to the case of the prosecution, accused Rashid Mir along with others was arrested on 09.12.2014, plea of accused and air-ticket were deliberately suppressed by the police. Unfortunately, trial court ignored the defence plea without assigning the reasons. Learned D.P.G. has argued that police officials had no enmity with the appellants to implicate them in this case falsely. In the present case there are several circumstances in this case which created serious doubt in the prosecution case. Offence under section 4/5 of the Explosives Substance Act, 1908 is serious one but it has come on record that hand grenade was recovered from the accused Rashid Mir and it was without detonator, we are unable to understand as to why appellant was carrying hand grenade without detonator. As regards to the recovery of T.T. pistols from the possession of the accused are concerned, no doubt the Sindh Arms Act, 2013 is enacted to curb the proliferation of arms and ammunitions. Arguments of learned D.P.G. that public witnesses refused to come forward to act as mashir of the recovery. We are unable to accept such arguments for the reasons that it could not absolve the police of their heavy responsibility to produce witnesses from public. There is no dearth of citizens of strong views and character who would come out to support such like cases provided they were taken into confidence, given due respect and were ensured that full protection would be given to them as held in the case of Iltaf Hussain versus The State (1996 SCMR 167). Relevant portion is reproduced as under:

“The argument that public witnesses do not come forward to support such like recoveries because of risk to their life and liberty, nonetheless could not absolve the Police of their heavy responsibility to produce witnesses from public. There is no dearth of citizens of strong views and character who would come out to support such like cases provided they were taken into confidence, given due respect and were ensured that full protection would be given to them, in case, they aided the law‑enforcers to curb the crimes in the best interest of the society as a whole. There may be cases where public witnesses could not be produced because of their non‑availability due to odd hours of the night or the day or where the, recovery was effected from a deserted place or during the dead of night. The position in this case was just the reverse because, admittedly, recovery was effected from a populated area where several other people who saw the recovery of kalashnikov were present but no efforts were made to join them to witness the occurrence. We, accordingly, hold that evidence of Police witnesses who are, in a way, the complainant could not solely be accepted to be relied upon to convict the appellant, especially, when the aforesaid public witness was abandoned without any rhyme or reason. The possibility that the appellant was implicated with some ulterior motive could not be ruled out. For all these reasons, we have no alternative but to acquit the appellant by setting aside his conviction and sentence by giving him benefit of doubt. He is on bail and as such, shall be discharged from the liability of his bail bond. The appeal succeeds and is allowed.”

13. In this case there are number of infirmities / circumstances in the prosecution case which create doubt. It is a known principle of appreciation of evidence that benefit of all favourable circumstances in the prosecution evidence must go to the accused regardless of whether he has taken any such plea or not. Reliance is placed on the case of Muhammad Nawaz and another v. The State and others (2005 PLD SC 40).

14. In the view of above discussion, we have come to the conclusion that the prosecution has failed to prove the aforesaid cases against the accused beyond any shadow of doubt, therefore, we extend benefit of doubt to the accused and allow the aforesaid appeals. Resultantly, conviction and sentences awarded to the appellants by the trial Court vide judgment dated 30.07.2016 are set aside and appellants Rashid Mir, Saeed Ahmed, Mazhar Naseem and Tariq Khan are acquitted of the charge. They shall be released forthwith if they are not required in any other case.

J U D G E

J U D G E

Gulsher/PS