HIGH COURT OF SINDH AT
KARACHI
Special Cr.
Anti-Terrorism Appeal Nos.237 of 2015
Special Cr.
Anti-Terrorism Appeal Nos.238 of 2015
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Rasheed Ahmed Soomro
Appellants: Zubair
Ahmed alias Ladu son of Siddique Ahmed, through Mr. Muhammad
Ilyas Awanm, advocate
Respondent: The State through Mr. Ali
Haider Saleem, Deputy Prosecutor General Sindh.
Date of Hearing : 22.08.2017
Date of Judgment : 29.08.2017
JUDGMENT
NAIMATULLAH PHULPOTO, J.-
Appellant Zubair
Ahmed alias Ladu was tried by learned Judge
Anti-Terrorism Court-VI, Karachi in Special Cases Nos.164(III)/2014
and 165(III)/2014. By judgment dated 29.08.2015, the appellant was convicted
u/s 23(1)(a) of Sindh Arms Act, 2013 and sentenced to
7 years R.I. and to pay of Rs.10,000/-, in case of
default in payment of fine, he was ordered to suffer S.I.
for 4 months more. Appellant was also convicted under sections 4/5 of the
Explosives Substance Act, 1908 read with 7(1)(ff) of the Anti-Terrorism Act, 1997 and sentenced to 14
years R.I., and to pay fine of Rs.10,000/- and in
case of default in payment of fine he was ordered to suffer SI for 4 months
more, forfeiture of property was also ordered. Benefit of section 382-B, Cr.PC
was extended to accused.
2. Brief facts of the prosecution case as
disclosed in F.I.R. are that on 14.05.2014 SI Ghulam Muhammad of P.S. Garden
Karachi lodged F.I.R. No.109/2014 on behalf of the
State under sections 4/5 of the Explosives Substance Act, 1908 and F.I.R. No.108/2014 and under section 23(1)(a)
of the Sindh Arms Act, 2013, alleging therein that on 14.05.2014 he was posted
at P.S. Garden in Operation Wing. On the said date, at 22:10 hours he along
with his subordinate staff left police station for patrolling duty in the Government
mobile. While patrolling when police party reached at “My Choice street”, near Pan House, where four personnel of Rangers on
two motorcycles accompanied them for joint patrolling within the territorial
jurisdiction of police station. When they reached at Khajoor
Mosque street, they found a person standing there in a
suspicious manner, he was carrying a weapon like KK.
Police and rangers finding him in suspicious manner caught him hold. It alleged
that KK loaded with 10 bullets in its magazine was
recovered from the accused. However, on further personal search of the accused one
rifle grenade was also recovered from the left side of his paint. One purse
which containing CNIC, Visa Cards, a Zong SIM and
cash amount of Rs.200/- were also recovered from
possession of accused. On inquiry, accused disclosed his name as Zubair Ahmad alias Ladu. Accused
was asked for license of the arms and ammunitions carried by him to which he replied that the same were without license. Accused
was arrested at spot in presence of mashirs, namely, SIP Ghulam Muhammad, ASI Rasool Bux
and PC Muhammad Iqbal. Thereafter, accused and case property were brought to
the police station Garden where SIP Ghulam Muhammad, lodged two FIRs against accused on behalf of the State bearing FIRs Nos.108/2014 under section
23(1)(a) of the Sindh Arms Act, 2013 and 109/2014 u/s 4/5 of the Explosives
Substance Act, 1908.
3. Investigation of the cases was assigned
to Inspector Muhammad Asif Munawar, he visited the
place of vardat on the pointation of SIP Ghulam
Muhammad in presence of mashirs ASI Rasool Bux and PC Muhammad Iqbal.
He prepared such mashirnama and recorded 161 Cr.PC statements of the prosecution
witnesses. IO sent weapons to the experts for report and received final report
from BDU and clearance certificate. On the completion
of investigation, he submitted final reports in the aforesaid cases before the
competent Court of law.
4. Both cases were entrusted to learned
Judge, Anti-Terrorism Court-III, Karachi for disposal according to law. Learned
trial court amalgamated case under section 23(1)(a) of the Sindh Arms Act, 2013
with main case under section 4/5 of Explosives Substance Act, 1908 in terms of
Section 21-M of the Anti-Terrorism Act, 1997 and held joint trial.
5. Learned trial court framed charge
against the accused under the above referred sections at Ex.4.
Accused pleaded not guilty and claimed to be tried.
6. In order to
substantiate the charge against the accused, prosecution examined five
prosecution witnesses, namely, PW-1 ASI Rasool Bux at Ex-7, PW-2 PC
Muhammad Iqbal at Ex.8, PW-3 SIP Ghulam Muhammad at
Ex-9, PW-4 SIP (BDU) Muhammad Iqbal at Ex-10, PW-5, Inspector
Muhammad Asif Munawar at
Ex-12. Thereafter, prosecution side was
closed at Ex-15.
7. Statements of appellant/accused was recorded u/s 342 Cr.P.C at Ex.14.
Appellant claimed false implication in this case and denied the prosecution
allegations. Accused did not examine himself on oath in disproof of prosecution
allegations, however, he has examined two DWs,
namely, Mst.
Farida and Ghulam Shabbir in his defence. In a
question what else he has to say, accused replied that he was picked up by the
Rangers on 07.05.2014 from his house and his mother Mst.
Farida moved an applications before Honourable Chief Justice, High Court of
Sindh through TCS, applications were also sent to
Inspector General of Police Sindh, Director General Rangers Sindh and S.H.O. P.S. Garden, Karachi. Thereafter, mother of accused
filed Constitution Petition No.2480/2014 before the
High Court of Sindh, Karachi on 10.05.2014. Copy of C.P.
No.2480/2014 has been produced at Ex-15/A.
8. Learned trial court, on the conclusion
of the trial, after hearing the learned counsel for the parties, and
assessment of the evidence available on record, convicted and sentenced the
appellant vide impugned judgment dated 29.08.2015 as stated above, hence these appeals
are preferred by the Appellant.
9. The facts of these cases as
well as evidence produced before the trial Court find an elaborate mention in
the judgment dated 29.08.2015 passed by the trial Court and, therefore, the
same may not be reproduced here so as to avoid duplication and unnecessary
repetition.
10. Mr. Muhammad Ilyas
Awan, advocate for appellant, contended that police party was accompanied by
Rangers officials but Rangers officials were not examined before the trial
court. As per learned counsel for the appellant material
evidence was withheld deliberately. It is also contended that according
to the mashirnama of arrest and recovery, case property was not sealed at the
spot. It is contended that case property was tampered at the police station and
safe custody of the case property has not been established at trial. Learned
advocate for the appellant further contended that PW-1 SIP Rasool
Bux has admitted that description of the rifle
grenade has not been mentioned in the mashirnama. It is further contended that
trial court failed to consider the defence evidence. According to learned
counsel for the appellant, accused was picked up from his house on 07.05.2014
by the Rangers and mother of the appellant, namely, Mst.
Farida approached S.H.O. P.S. Garden for registration
of F.I.R. but he refused. Then she moved applications to the Inspector General
of Police Sindh and Director General Rangers Sindh but without any result.
Mother of the appellant filed C.P. No.D-2480/2014 on 10.05.2014, after issuance of notice to
the respondents, appellant was arrested in these cases falsely. Lastly, it is
contended that prosecution case was highly unbelievable but trial court did not
appreciate the evidence according to the settled principles of law. In support
of his contentions, learned counsel for the appellant relied upon the case of
Muhammad Mansha versus The State (1997 SCMR 617).
11. Mr. Ali Haider Saleem, learned Deputy
Prosecutor General Sindh, argued that the appellant was arrested on the road, KK was recovered from his possession so also one rifle
grenade, heinous offence has been committed by the appellant. He has further
argued that evidence of police officials was corroborated by the report of
expert and trial court rightly relied upon the evidence of police officials. As
regards to the contradictions in the evidence of the prosecution witnesses,
learned D.P.G. argued that such contradictions are
minor in nature. He prayed for dismissal of the appeals.
12. We have carefully
heard the learned counsel for the parties and scanned the entire evidence
available on record.
13. We have come to the conclusion that
prosecution has failed to establish its case against the appellant for the
reasons that it is the case of the prosecution that police officials headed by
SIP Ghulam Muhammad and Rangers personnel left for joint patrolling and
arrested the accused and recovered weapons from his possession but at trial
Rangers personnel were not produced. It is rightly contended by defence counsel
that material evidence was withheld, the presumption would be that in case
Rangers personnel would have been examined before the trial court they might
not have supported the case of the prosecution. PW-1 ASI
Rasool Bux has admitted
that description of rifle grenade has not been mentioned in the mashirnama.
According to mashirnama of the arrest and recovery Ex.7/A
case property was also not sealed at the spot. We agree with the learned
counsel for the appellant that safe custody of the weapons / case property at
police station and its safe transit
have not been established at
trial. Material contradictions have been pointed out by the learned advocate
for the appellant. PW.1 Rasool
Bux has deposed that mashirnama of arrest and
recovery was prepared by SIP Ghulam Muhammad / complainant of the case, on the
same point, PC Muhammad Iqbal has deposed that such
mashirnama was prepared by SIP Rasool Bux. Trial court has failed to consider the defence plea.
Accused in his statement recorded under section 342, Cr.PC has stated that he
was picked up from his house on 07.05.2014 by the Rangers officials and his
mother Mst. Farida approached S.H.O.
P.S. Garden for registration of the case but he refused, thereafter, mother of
appellant moved applications to the Honourable Chief Justice High Court of
Sindh, Inspector General of Police Sindh, Director General Rangers Sindh but
without any response. Finding no other way, mother of appellant Mst. Farida filed C.P. No.D-2480/2014 on 10.05.2014. After issuance of notice,
appellant was shown under arrest, these cases were foisted upon the appellant.
Copy of C.P. No.D-2480/2014
and applications have been produced in defence evidence.
14. In view of defence theory false
implication of the accused in this case could not be ruled out. Thus, accused
cannot be left at the mercy of the police in such circumstances. It would be
unsafe to rely upon the evidence of the police officials without independent
corroboration. Arguments of the learned D.P.G. that
public witnesses refused to come forward to act as mashir of the recovery
because of risk to their life and liberty. 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. We are unable to understand as
to why Rangers personnel were not produced before the trial Court. We accordingly
hold that evidence of police officials could not solely be accepted to be
relied upon to convict the appellant without independent corroboration, which
is lacking in this case. Possibility of false implication of the
appellant/accused in these cases cannot be ruled out, particularly in these
circumstances when mother of the appellant/accused filed Constitution Petition No.D-2480/2014 against Rangers Sindh and police officials
regarding illegal detention of the appellant but investigation officer concealed
this fact with ulterior motive and challaned the
accused in this case. 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 thickly populated area/street where several other people who saw the
recovery of weapons 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 Rangers personnel
and public witnesses were abandoned without any rhyme or reason. The
possibility that the appellant was implicated with some ulterior motive could
not be ruled out. Reliance is placed on the case of ILTAF
HUSSAIN versus The STATE (1996 SCMR 167).
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 recorded against the appellant by the trial Court vide
judgment dated 29.08.2014 are set aside and appellant Zubair
Ahmad alias Ladu is acquitted of the charge. Appellant
shall be released forthwith if he is not required in any other case.
J U D G E
J U D G E
Gulsher/PS
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 appellant by the trial Court vide
judgment dated 29.08.2014 are set aside and appellant Zubair
Ahmad alias Ladu is acquitted of the charge. He shall
be released forthwith if he is not required in any other case.
J U D G E
J U D G E
Gulsher/PS