HIGH COURT OF SINDH AT KARACHI

Cr. Anti-Terrorism Appeals Nos.3, 4, 5, 11,

12, 14, 15, 16, 17, 18, 40 and 41 of 2016

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Rasheed Ahmed Soomro

JUDGMENT

Appellants: Muhammad Javed, Jahangir alias Ibrahim, Atique Ahmed, Muhammad Laiq Shah, Ayanullah, Ali Rehman, Umair Gul and Shafiq Ahmed through M/s. Ali Gohar Masroof and Syed Nadeem-ul-Haq, Advocates.

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

Date of Hearing : 07.08.2017

Date of Judgment : 07.08.2017

NAIMATULLAH PHULPOTO, J.- By this common judgment, we intend to decide Criminal Anti-Terrorism Appeals Nos. 3, 4, 5, 11, 12, 14, 15, 16, 17, 18, 40 and 41 of 2016, as aforesaid appeals are outcome one and same judgment of learned Judge, Anti-Terrorism Court No. VI, Karachi dated 22.12.2015.

2. Brief facts of the case as disclosed by SI Mohammad Tahir before the learned Trial Court are that on 09.03.2015, he along with ASI Ghulam Dastagir and 13 other police officials left CTD for the arrest of terrorists belonging to the religious and ethnic groups. While patrolling, when the police party reached near PS Itehad Town, SI Mohammad Tahir received spy information that Abdul Samad @ Dost Mohammad @ Usman Commander of Tehreek-e-Taliban Pakistan alongwith his accomplices were planning for commission of some terrorists acts. Spy informer told the police that they belong to Waziristan and they were available in a compound of Itehad Town. After receipt of such information, police party proceeded to the pointed place, door of the compound wall opened when the police party entered, one accused person succeeded in running away by scaling the wall. However police caught hold 8 accused persons. On inquiry, they disclosed their names as 1. Mohammad Javed, 2.Jahangir, 3.Atiq Ahmed, 4. Mohammad Laiq, 5.Ayanullah, 6. Ali Rehman, 7.Umair Gul and 8.Shafiq Ahmed. SI Mohammad Tahir in presence of the mashirs conducted personal search of each accused separately. From personal search of accused Mohammad Javed, one Rifle 222 loaded with 8 live bullets, load magazine was recovered. On further personal search of accused Javed, recovered one 30 bore pistol loaded with 5 live bullets, magazine. From the personal search of accused Jahangir, one Rifle 222 loaded with 7 live bullets and magazine was recovered. On further personal search of accused Jahangir, one 30 bore pistol loaded with 5 live bullets, magazine was recovered. From personal search of accused Atiq Ahmed one Rifle 222 loaded with 7 live bullets and magazine was recovered. On further personal search of accused Atiq Ahmed, one 30 bore pistol loaded with 5 live bullets was recovered. From personal search of accused Mohammad Laiq, one 30 bore pistol loaded with 4 live bullets was recovered. From personal search of accused Ayanullah, one 30 bore pistol loaded with 5 live bullets was recovered. From personal search of accused Ali Rehman, one 30 bore pistol loaded with 6 live bullets was recovered. From personal search of accused Umair Gul, one 30 bore pistol loaded with 5 live bullets was recovered. From personal search of accused Shafiq Ahmed, one 30 bore pistol loaded with 5 live bullets was recovered. All the accused could not produce licenses of the recovered weapons and ammunitions. Thereafter, according to S.I Mohammad Tahir compound was searched. Two bags of 25 K.Gs each lying in small room/kholi were recovered, each contained explosive substances. One blue colored polythene shopping bag was also recovered, from which 10 ball bombs having red color tap solution were secured by the police. Police also seized two motorcycles parked in the said compound. Arms and ammunitions were sealed on the spot. Accused were arrested. Ball Bombs and two bags of explosive substance were separately sealed. Motorcycles were taken into custody u/s 550 Cr. P.C. Compound was lying vacant. Mashirnama of arrest and recovery was prepared by SI in presence of mashirs ASI Ghulam Dastagir and HC Sardar Fazal. Thereafter, CTD officials returned back to P.S CTD where, Roznamcha Entry No. 23 at 2000 hours was made. SI Mohammad Tahir lodged FIR against accused on behalf of state vide Crime No. 59 of 2015 u/s 4/5 of the Explosive Substances Act 1908 r/w 7 ATA, 1997. SI lodged separate FIRs against all the accused u/s 23(1)(a) of Sindh Arms Act, 2013 vide Crime No. 51 to 58 of 2015 at PS. Thereafter, he handed over the case papers and all the FIRs, custody of the accused, weapons and explosive substances to Inspector Bazaat Ali further investigation on 10.03.2015.

3. During investigation, Inspector Bazaat Ali inspected place of wardat in presence of HC Fazal Sardar and SI Mohammad Tahir and prepared mashirnama of place of wardat. IO recorded 161 Cr.P.C statements of P.Ws. Case property viz. weapons and explosive substances were sent to the experts for the opinion by the I.O. Report was received. On the conclusion of the investigation, submitted challans in the main case bearing Crime No. 59 of 2015 and connected/offshoot cases bearing Crime Nos. 51 to 58 of 2015 were submitted before the learned Anti-Terrorism Court.

4. All the above cases were amalgamated and joint trial was ordered by the learned Judge, Anti-Terrorism Court in terms of Section 21-M of the Anti-Terrorism Act, 1997.

5. Learned Judge, Anti-Terrorism Court No.VI framed Charge against accused 1. Mohammad Javed, 2.Jahangir @ Ibrahim 3.Atiq Ahmed, 4. Mohammad Laiq, 5.Ayanullah, 6. Ali Rehman, 7.Umair Gul and 8.Shafiq Ahmed in the main Special Case No. B-264 of 2015 as well as in the connected Special Cases Nos. B-256/2015 to B-263 of 2015. All the accused pleaded not guilty and claimed to be tried.

6. At trial, prosecution examined the following witnesses:

1. P.W-1 SI Mohammad Tahir at Ex.5 who produced attested carbon copy of memo of arrest and recovery at Ex. 5/B, Roznamcha entry at Ex.5/C, FIRs at Ex.5/D to 5/T.

2. P.W-2 ASI Syed Laeeq at Ex.6, who produced DEO letter from CTD Garden regarding inspection of explosive substance at Ex.6/A, Departure entry No. 36 at Ex.6/B, clearance certificate at Ex.6/D and detail inspection report and chemical report at Ex. 6/E.

3. P.W-3 ASI Ghulam Dastagir Khan at Ex.7.

4. P.W-4 Inspector Syed Baazat Ali at Ex.8, who produced Roznamcha Entry No.35 at Ex.8/A, letter for CRO at Ex.8/B, letter to SSP Technical for request of chemical analysis of explosive substances at Ex.8/C, letter to SSP for chemical analysis at Ex.8/D, request for permission to challan the case made to the Home Department by SSP at Ex.8/E, permission at Ex.8/F, letter for sending case property for FSL at Ex.8/G, report of FSL at Ex.8/H, the report of the samples of explosive material issued by CTW with a cover letter at Ex.8/I(I) to 8/I-(V).

Thereafter, vide statement at Ex.9 prosecution side was closed.

7. Statements of accused were recorded u/s 342 Cr.P.C. at Ex.10 to Ex.17. All the accused denied prosecution allegations. Accused Mohammad Laiq Shah has stated that P.Ws have deposed against him as they are police officials. Actually he was picked up by police from the shop and the owner of the shop submitted such application dated 5.11.2014 to higher authorities. Accused examined himself on oath as well as examined Aamir in his defence. Accused Ayanullah has also claimed false implication in the case and has stated that he was arrested on 20.12.2014 from his house by the law enforcement agency. Accused did not examine himself on oath. Accused Umair Gul has raised plea that he was picked up by the law enforcement agency on 14.11.2014 from his house. Accused also did not examine himself on oath. He produced Mohammad Noor in his defence. Accused Shafiq Ahmed raised plea that he was picked up from his house on 31.01.2015. Accused examined Mst. Azmatun Nisa in his defence and also examined himself on oath. Accused Ali Rehman has raised plea that he was picked up by the Rangers on 02.01.2015. Accused examined Syed Ali & Riaz in his defence and also examined himself on oath. Accused Ateeq Ahmed raised plea that he was picked up by law enforcement agency on 31.01.2015. Accused examined Mst. Azmatun Nisa in his defence and also examined himself on oath. Accused Mohammad Jahangir has raised plea that he was arrested by the law enforcement agency. Accused examined Mst. Gul Bahar Khatoon in his defence and also examined himself on oath. Accused Mohammad Javed raised plea that Rangers picked up him from his house on 02.01.2015. Accused examined Syed Ali and Riaz in his defence and also examined himself on oath.

8. DW-Mst. Azmatun Nisa has deposed that on 31.01.2015, Rangers came at her house and picked her sons Atiq, Shafiq Ahmed and Nafees Ahmed. She went to police station for lodging such report but she was refused. On 12.02.2015, she reported incident to DG Rangers, Governor of Sindh, Honourable Chief Justice through TCS and produced copy of C.P.No.D-1246/2015.

9. Learned Trial Court after hearing the learned counsel for the parties and assessment of the evidence available on record, convicted and sentenced the appellants vide impugned judgment dated 22.12.2015 as stated above, hence these Appeals are preferred by the Appellants.

10. The facts of these cases as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 22.12.2015 passed by the trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

11. Mr. Ali Gohar Masroof, learned advocate for appellants mainly made the following contentions:

(i) that according to F.I.R., it was recorded on 09.03.2015 at 17:15 hours, whereas, the complainant has replied in cross examination that police reached at the place of incident at 17:45 hours and mashirnama of recovery and arrest was also prepared at same time;

(ii) that weapons as well as explosive substance were sent to experts for opinion after seventeen days of the recovery on 26.03.2015;

(iii) that no private witness was associated to witness recovery proceedings though it was case of spy information;

(iv) that the description of the fire arms as well as explosive substance have not been mentioned in the Mashirnama of arrest and recovery;

(v) that explosive material was not weighted at the time of recovery;

(vi) that alleged recovery was made within the territorial jurisdiction of police station Ittehad Town, Karachi, whereas, police official belonged to CTD, Karachi located at Garden, no entry was made at P.S. Ittehad;

(vii) that place of recovery has not been specifically mentioned in Mashirnama of recovery and arrest;

(viii) that explosive substance was recovered from small room, whereas, weapons were recovered from possession of accused, but joint Mashirnama was prepared;

(ix) that Investigating Officer failed to collect information about the ownership of the premises/place of vardat;

(x) that complainant conducted raid in the premises without obtaining such warrant from concerned Magistrate;

(xi) that report of the ballistic expert has been managed;

(xii) that safe custody of weapons and explosive substances have not been established at trial.

In support of his contentions, he has placed reliance upon the judgments reported in the cases TAUFIQUE KHAN versus The STATE (2007 YLR 2953 ) MUHAMMAD AYOOB versus The STATE (2012 PCr.LJ 1438), FAHEEM versus The STATE (2014 PCr.LJ 732) and unreported judgment passed by this Court in Special Criminal Appeal No.12 of 2015 dated 31.01.2017. Syed Naveed-ul-Haq, learned advocate for appellants adopted the same arguments.

12. Mr. Muhammad Iqbal Awan, learned Assistant Prosecutor General Sindh, argued that appellants were arrested from a compound by the police officials, unlicensed weapons and explosive substances were recovered from their possession, however, Mr. Awan conceded to the contention raised by the learned advocate for the appellants that no evidence has been produced by the prosecution regarding safe custody of the explosive substances and weapons at the police station and their safe transit to the expert for the opinion. Mr. Awan supported the impugned judgment and prayed for dismissal of the appeals.

13. After hearing the learned counsel for the parties we have perused the evidence minutely.

14. We have come to the conclusion that prosecution has failed to prove its case against the appellant for the reasons that it was the case of spy information; sub-inspector Muhammad Tahir had sufficient time to call the independent and respectable persons of the locality to witness the recovery proceedings but it was not done in this case. In the case of possession of explosive substance with intent to endanger life or property, intention is essential ingredient of offence as held by Honourable Supreme Court in the case of MUHAMMAD YASIN versus THE STATE (1984 SCMR 866). Relevant portion is reproduced as follows:-

“6. After having carefully gone through the above-noted provisions and given our anxious thought to the contentions raised by the learned counsel for the appellant, we are inclined to agree with the appellant’s counsel that the evidence on the record does not make out either an offence under section 3 of under section 4(h) of the Act in question.

Section 3 makes it punishable for unlawfully and maliciously causing explosion which is likely to endanger life or property. No doubt in the present case an explosion was caused which endangered life, but even if it be assumed that the appellant had knowingly caused the explosion yet it cannot be said that he did it maliciously. It is evident from the record that not only his own fingers had been blown off but his minor son aged 3 years who was standing nearby was also seriously injured. It cannot, therefore, be imagined that the appellant caused explosion maliciously. As a matter of fact, from the evidence on the record it appears that he did not even know that the explosion was likely to occur at that time. The necessary ingredients of the offence are, therefore missing, with the result that the appellant could not have been found guilty of offence under section 3 of the Act.

7. Section 4(b) of the Act makes it an offence to be in possession or in control of any explosive substance” with intent by means thereof to endanger life, or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property in Pakistan.”

The learned State counsel has not been able to point out any material on the record to establish such intention. He argued that this should be inferred from mere possession of the explosives. We not thing such an inference can be drawn in this case. The intention in question must either be specifically established or such facts should be brought on record from which an inference of the presence of such intention can be reasonably drawn. But no such facts have been brought on the record in this case. Consequently we feel that the possession of the explosives by the appellant in this case does not fall within the mischief of section 4(b) either.

15. In the present case, we have carefully perused the evidence of PWs SI Muhammad Tahir, ASI Syed Laeeq, ASI Ghulam Dastagir Khan and Inspector Syed Baazat Ali. Prosecution has failed to establish malicious intention on the part of appellants/accused. Actual possession of explosive substance has also not been established, there was no evidence that who brought explosive substance in the room. As such, conviction recorded by trial Court under sections 4/5 of the Explosive Substances Act, 1908 and section 7 of the Anti-Terrorism Act, 1997 is not sustainable under the law.

16. Record reflects that the description of the fire arms and explosive substances have also not been mentioned in the mashirnama of arrest and recovery, simply it is mentioned that numbers have been rubbed. In case numbers have been rubbed, case properties were not marked by the IO for identification. It has also come on record that explosive substance was not weighed at spot. According to the case of prosecution weapons and explosive substances were recovered on 09.03.2015 and same were brought to the police station; no entry was kept at the malkhana of the police station regarding handing over the case property to the WHC of the police station for safe custody. There was also no evidence that case property was safely transmitted to the expert for opinion. There was also in ordinate delay in sending the weapons and explosive substances to the ballistic expert. The case property was recovered on 09.03.2015 and same was sent to the expert on 26.03.2015 for report. Delay in sending of the weapons and explosive substances had not been explained. The name of the police official who had taken the case property to the Expert had not been mentioned in the evidence. In the circumstances of the case tampering with the case property could not be ruled out. Report of the fire arm expert Ex.8/H shows that two weapons were not in working order at the time of their examination.

17. PW-2 ASI Syed Laeeq had examined explosive substance at the spot and replied in cross-examination that material present before the Court is one of component of explosive substance but the same cannot cause damage in isolation, without mixing with other material. No doubt, evidence of police officials is as good as that of private persons but in this case evidence of police officials appears to be unbelievable and untrustworthy for the reasons that according to the evidence police officials on spy information conducted raid and one accused jumped the wall and ran away. We are unable to believe evidence of police officials that police officials remained calm and even did not fire in air or made effort to chase the culprit who ran away. It is also unbelievable that 12 persons being armed with deadly weapons easily surrendered before the police and police easily caught hold the accused, that all is totally unbelievable. Accused have raised defence plea that Law Enforcing Agency had picked them from their houses before registration of these cases and mother of appellants Atique Ahmed and Shafiq Ahmed, namely, Mst. Azmat filed C.P.No.D-1246/2015 before the Court on 07.03.2015 and moved applications to higher authorities. Trial Court did not consider the defence plea. It is settled proposition of law that defence plea is to be considered in juxtaposition to the prosecution case. Learned Division Bench of this Court in Special Criminal Anti-Terrorism Appeal No.12 of 2015 (Muhammad Rasheed aka Babli versus State) considered the defence plea in the following terms:

“18. The Superior Courts repeatedly held that all the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question viz. is the plea/version raised by the accused satisfactorily established by the evidence and the circumstances appearing in the case. If the answer be in affirmative, then the Court must accept the plea of accused and act accordingly. If the answer to the question be in the negative, the Court will not reject the defence as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly. In the instant case, plea raised by the appellants seems to be more plausible, cogent and confidence inspiring than the prosecution case.

19. Consequently, in view of our above discussion, we are of the considered view that appellants picked up earlier by the personnel of Pakistan Rangers, were later implicated in the bogus cases. Hence, no sanctity can be attached to the prosecution case as well as the deposition of prosecution witnesses also for the reason that under the prevalent condition family members of the appellants anticipating their implication in false and bogus FIRs promptly resorted to the constitutional jurisdiction of this Court.

20. From the above discussion, we are of the considered view that the prosecution has failed to bring home guilt of the appellants beyond any reasonable doubt. For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt, one single circumstance leading towards the real doubt is sufficient to acquit the accused.

21. For the aforesaid reasons, we by our short order dated 26.1.2017 allowed the captioned appeals, set-aside the impugned consolidated judgment passed by the trial Court and acquitted the appellants of the charge.”

18. Prosecution case and defence pleas are more or less the same in this case.

19. Even at the cost of repetition it will be worthwhile to mention here that it was a case of spy information, police officials failed to associate independent and respectable persons while searching the place of wardat/compound; the description F.I.R. arms and explosive substances have also not been mentioned in the mashirnama of arrest and recovery; there was inordinate delay in sending the weapons and explosive substances to the export for opinion; safe custody of the arms and explosive substances have also not been proved. PW No.3, ASI Ghulam Dastaghir could not identify some of the accused in the Court; defence theory has been substantiated by filing the constitution petition and applications made to the higher police officials to show that accused persons were picked up by the law enforcement agency before registration of the case. Even for the satisfaction of the Court departure entry of CTD not produced before the trial Court. Non-production of such entry would be fatal to prosecution case. No doubt, the Sindh Arms Act, 2013 is enacted to curb the proliferation of arms and ammunitions and punishment for possession of any fire arm is extended to 14 years and with fine. The rule for safe administration of criminal justice is; the harsher the sentence the stricter the standard of proof. Therefore, for the purposes of safe administration of criminal justice, some minimum standards of safety are to be laid down so as to strike a balance between the prosecution and the defence and to obviate chances of miscarriage of justice on account of exaggeration by the investigating agency. Such minimum standards of safety are even otherwise necessary for safeguarding the Fundamental Rights of the citizens regarding life and liberty, which cannot be left at the mercy of police officers without production of independent evidence. It would be unsafe to rely upon the evidence of police officials without independent corroboration which is lacking in this case. The concept of benefit of doubt to an accused person is deep‑rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right as held by the Honourable Supreme Court in the case of TARIQ PARVAIZ versus THE STATE (1995 SCMR 1345).

20. For the above stated reasons, while relying upon the above cited authorities, we have no hesitation to hold that prosecution has utterly failed to establish its case against the appellants. Trial court failed to appreciate the evidence according to the settled principles of law, therefore, Criminal Anti-Terrorism Appeals Nos.3, 4, 5, 11, 12, 14, 15, 16, 17, 18, 40 and 41 of 2016 are allowed; conviction and sentence recorded by learned Judge, Anti-Terrorism Court No.VI, Karachi vide consolidated judgment dated 22.12.2015 in Special Cases Nos.B-264, 256, 257, 258, 259, 260, 261, 262 and 263 of 2015 are set-aside; appellants (1) Muhammad Javed S/o Abdul Rehman @ Commander @ Rehman Baba (convicted and sentenced in Crime No.59/2015 u/s 4/5 Explosive Substances Act, 1908 read with sections 6/7 of the Anti-Terrorism Act, 1997 and Crime No.51/2015 u/s 23(1)(a) of the Sindh Arms Act, 2013 of P.S. C.T.D. Sindh, Karachi) (2), Jahangir @ Ibrahim S/o Muhammad Younus (convicted and sentenced in Crime No.59/2015 u/s 4/5 Explosive Substances Act, 1908 read with sections 6/7 of the Anti-Terrorism Act, 1997 and Crime No.52/2015 u/s 23(1)(a) of the Sindh Arms Act, 2013 of P.S. C.T.D. Sindh, Karachi) (3) Atique Ahmed S/o Shabbir Ahmed (convicted and sentenced in Crime No.59/2015 u/s 4/5 Explosive Substances Act, 1908 read with sections 6/7 of the Anti-Terrorism Act, 1997 and Crime No.53/2015 u/s 23(1)(a) of the Sindh Arms Act, 2013 of P.S. C.T.D. Sindh, Karachi), (4) Muhammad Laiq Shah S/o Zahir Shah (convicted and sentenced in Crime No.59/2015 u/s 4/5 Explosive Substances Act, 1908 read with sections 6/7 of the Anti-Terrorism Act, 1997 and Crime No.54/2015 u/s 23(1)(a) of the Sindh Arms Act, 2013 of P.S. C.T.D. Sindh, Karachi), (5) Ayanullah S/o Mumraiz Khan (convicted and sentenced in Crime No.59/2015 u/s 4/5 Explosive Substances Act, 1908 read with sections 6/7 of the Anti-Terrorism Act, 1997 and Crime No.55/2015 u/s 23(1)(a) of the Sindh Arms Act, 2013 of P.S. C.T.D. Sindh, Karachi) (6) Ali Rehman S/o Humesh Khan (convicted and sentenced in Crime No.59/2015 u/s 4/5 Explosive Substances Act, 1908 read with sections 6/7 of the Anti-Terrorism Act, 1997 and Crime No.55/2015 u/s 23(1)(a) of the Sindh Arms Act, 2013 of P.S. C.T.D. Sindh, Karachi) (7) Umair Gul S/o Saeed Akber (convicted and sentenced in Crime No.59/2015 u/s 4/5 Explosive Substances Act, 1908 read with sections 6/7 of the Anti-Terrorism Act, 1997 and Crime No.57/2015 u/s 23(1)(a) of the Sindh Arms Act, 2013 of P.S. C.T.D. Sindh, Karachi) and (8) Shafiq Ahmed S/o Shabbir Ahmed (convicted and sentenced in Crime No.59/2015 u/s 4/5 Explosive Substances Act, 1908 read with sections 6/7 of the Anti-Terrorism Act, 1997 and Crime No.58/2015 u/s 23(1)(a) of the Sindh Arms Act, 2013 of P.S. C.T.D. Sindh, Karachi). Appellants named above are acquitted of the charge by extending benefit of doubt, they shall be released forthwith if they are not required in some other case(s) vide our short order dated 07.08.2017. These are the reasons for our short order announced on 07.08.2017.

J U D G E

Gulsher/PS