THE HIGH COURT OF SINDH AT KARACHI

 

Special Criminal Anti-Terrorism Appeal No. 78 of 2014

 

 

Present:    Mr. Justice Naimatullah Phulpoto

 Mr. Justice Khadim Hussain Tunio

 

 

 

Date of Hearing                 :              13.09.2017                                                          .

 

Date of announcement

of judgment                       :              18.09.2017                                                        .

 

Appellant                           :              Mohammad Jameel through Mr. Tahir Raheem Advocate.

 

Respondent                        :              The State through Mr. Mohammad Iqbal Awan DPG.

 

 

J U D G M E N T

 

NAIMATULLAH PHULPOTO, J.- Appellant Mohammad Jameel was tried by learned Jude, Anti-Terrorism Court No.1, Karachi in Special Case No.A-29/2013. By judgment dated 29.09.2014, appellant was convicted under Section 7(ff) of Anti-Terrorism Act, 1997 and sentenced to suffer 14 years R.I. Appellant was also convicted under Section 7(c) of Anti-Terrorism Act, 1997 and sentenced to suffer 10 years R.I and to pay fine of Rs.100,000/- and in case of default in payment of fine, he was ordered to suffer 6 months S.I more. All the sentences were ordered to run concurrently. Benefit of Section 382-B Cr.P.C was also extended to the appellant.

 

2.         Brief facts of the prosecution case, as disclosed in the FIR are that SIP Mohammad Riaz was posted as Incharge of police post Abbas Town, PS Sachal, Karachi. On 13.11.2012, he had left police station for patrolling along with PC Ali Dino and PC Javed Iqbal and when the police party reached in village Abdulah Palari at about 1:10 am, police heard bomb blast. Police party proceeded to the police post Abbas Town, where it is alleged that at Al-Asif Police post, HC Mukhtiar Ali and PC Altaf Ali were lying injured in the Police Post. SIP Mohammad Riaz was informed that two culprits had thrown hand grenade upon the police post which caused injuries to the above named police constables. Both the injured constables were shifted to Patel Hospital for their treatment. FIR was lodged by SIP Mohammad Riaz on behalf of state at Police Station Sachal. It was recorded vide Crime No. 692/2012 for offences under sections 324/334/34 PPC & 4/5 Explosive Substances Act, 1908 read with 7 of Anti-Terrorism Act, 1997.

 

3.         After registration of the FIR, investigation was entrusted to Inspector Pir Bux. He inspected place of incident on 13.11.2012 in presence of mashirs and prepared such mashirnama. I.O recorded 161 Cr.P.C statements of the P.Ws. On 28.02.2013, accused Jameel who was already confined at PS Schal was arrested by him and interrogated in this case. I.O produced accused before Judicial Magistrate-IV Malir Karachi for identification parade on 15.03.2013. Accused was identified and was remanded to jail. Police obtained permission from the Home Department for trial. I.O collected final medical certificates from the Medico Legal Officer and two reports from Bomb Disposal Unit. After usual investigation, challan was submitted against accused under Section 324/334/34 PPC read with Section 3/4 Explosive Substance Act, 1908 read with Section 7 of Anti-Terrorism Act, 1997.  Accused Sher Alam, Zubair Masood and Pervaiz Masood were shown as absconders and they were declared as Proclaimed Offenders. After completion of the necessary formalities, case was ordered to proceed against the present accused.

 

4.         Trial Court framed charge against accused Mohammad Jameel at Ex.6 under the above referred Sections. Accused pleaded not guilty and claimed to be tried.

 

5.         At trial prosecution examined 10 witnesses. Thereafter, prosecution side was closed by the learned DDPP vide his statement at Ex. 17.

 

6.         Statement of accused was recorded under Section 342 Cr.P.C. at Ex.18. Accused has claimed his false implication in this case and denied the prosecution allegations. As regards to the identification of the accused through HC Riasat Ali and PC Mohammad Akhtar, accused has replied that they were not the eye witnesses of the incident. Accused has further replied that P.Ws were police officials, interested and they have deposed against him falsely. Accused did not examine himself on oath in disproof of the prosecution allegations. No evidence was adduced in defence.

 

7.         Trial Court after hearing the learned counsel for the parties and assessment of the evidence, by judgment dated 29.09.2014, convicted and sentenced the appellant as stated above and case of the Proclaimed Offenders was kept on dormant file.

8.         Learned counsel for the appellant mainly contended that names of the eye witnesses are not mentioned in the FIR; that incident was un-witnessed; that it was night time incident, source of identification of the accused has not been disclosed by the prosecution; that appellant was arrested in other case on 28.02.2013 but identification parade was held with the delay of 14 days. It is also argued that prosecution has failed to prove its case against accused and Trial Court failed to bring the evidence according to settled principles of law. In support of his contentions, reliance is placed upon the case of Tariq Pervez vs. The State (1995 SCMR 1345).

 

9.         Mr. Mohammad Iqbal Awan, learned DPG argued that no doubt actual incident was un-witnessed, but accused were seen by P.Ws PC Mohammad Akhtar and HC Riyasat Ali soon after the incident when they were returning after taking cup of tea. Learned DPG further argued that appellant was identified by P.Ws in the identification parade held before the Judicial Magistrate, Malir Karachi. Lastly, it is submitted that prosecution has proved its case against appellant and prayed for dismissal of the appeal.

 

10.       From perusal of the evidence it transpires that HC Mukhtiar Ali and PC Altaf had sustained injuries in the incident. HC Mukhtiar has deposed that on 13.11.2012 he was sleeping along with PC Altaf after performing his duty at Police Post Abbas Town of PS Sachal. At 1:10 am, there was bomb blast and he received injuries so also PC Altaf. Injured witness categorically stated that he had not seen the culprits of the incident. PC Altaf has also deposed that he had not seen the culprits of incident. In this case ASI Riyasat Ali has claimed to be eye witness of the case, who deposed that on 13.11.2012, he was posted as Head Constable at Police Station Sachal. He along with PC Muhammad Akhtar left police station for Bakhar village and they had taken tea at Sardar Hotel. After taking tea they were proceeding to Bakhar village and at 1:10 am, they found 4 persons on motorcycles, who had thrown something on the Police Post and there was a bomb blast. Accused persons drove away on their motorcycles. Thereafter, HC Mukhtiar and PC Altaf were found lying injured in the police post. Evidence on the same line has been given by PW-7 HC Mohammad Akhtar. We are unable to believe the evidence of these eye witnesses for the reasons that they were the chance witnesses and they have not given sufficient explanation for their presence around place of incident at mid night time. Moreover, both of them were not eye witnesses of actual incident. We have several reasons to disbelieve their evidence firstly they have not disclosed source of identification of the accused at mid night time, secondly it is unbelievable that these police officials made no efforts to catch hold accused persons or at least they could have fired upon the culprits who had thrown bomb at police post. There was nothing on record that accused persons were previously known to the police officials on account of their criminal background. Contention of learned DPG that accused were previously known to the police officials remained unproved and unsubstantiated when neither criminal background nor involvement of the appellant has been proved on record, how could the prosecution witnesses identify accused at odd hours of night without disclosing the source of identification is a question which went unanswered during trial. Incident had occurred on 13.11.2012 at 0110 hours, but it was reported to police station at 0320 hours. Distance was 7/8 K.M, delay in lodging of the FIR would also give rise to the inference that the occurrence has not taken place in the manner projected by the prosecution and that this time was consumed in making an effort to give a coherent attire to the prosecution case, which hardly proved successful. This delay is more fatal when the police station is situated at the distance of 7/8 K.M from the place of occurrence. Such delay would also militate against the veracity of the prosecution witnesses when it is not their case that they had no vehicle to reach the police station soon after occurrence. Prosecution evidence appears to be unnatural and unbelievable. The standard of proof should have been far higher as compared to any other criminal case when according to prosecution, it was a police case. It was thus, desirable and even imperative that such case should have been investigated by some other agency, as police in such case, could not have been investigators of their own cause. Such investigation lacks independent character and conviction cannot be based on the basis of such investigation, when it is riddled with many lacunas as discussed above. Honourable Supreme Court of Pakistan in the case reported as Zeeshan @ Shani vs. The State (2012 SCMR 428), has held as under:

 

10.       Escape of the complainant and the prosecution witnesses also raises serious doubts about their presence at the spot when according to the prosecution the assailant fired as many as six shots. The complainant who was sitting next to the deceased could not have escaped unhurt. Yes, coincidence cannot be ruled out but in the matrix of this case we would be stretching its arm too long by attributing his escape to that. Even escape of the assailant does not fit in with the surrounding when the deceased, complainant and the P.Ws. were admittedly armed and there is nothing on the record to show as to what restrained them to retaliate with immediacy, after the assailant fired the first shot. In the absence of any explanation the story so narrated would not appear to be credible from any angle it is looked at.

 

11.       The standard of proof in this case should have been far higher as compared to any other criminal case when according to the prosecution it was a case of police encounter. It was, thus, desirable and even imperative that it should have been investigated by some other agency. Police, in this case, could not have been investigators of their own cause. Such investigation which is woefully lacking independent character cannot be made basis for conviction in a charge involving capital sentence, that too when it is riddled with many lacunas and loopholes listed above, quite apart from the after­thoughts and improvements. It would not be in accord of safe administration of justice to maintain the conviction and sentence of the appellant in the circumstances of the case. We, therefore, by extending the benefit of doubt allow this appeal, set aside the conviction and sentence awarded and acquit the appellant of the charges. He be set free forthwith if not required in any other case.

 

 

11.       As regards to identification parade through these witnesses is concerned, no reliance can be placed upon such identification parade held before Mr. Naveed Asghar Civil Judge & Judicial Magistrate on 15.03.2013 for the reasons that in the cross-examination Magistrate has avoided to reply that he had granted remand of the accused in police custody prior to the holding of the identification parade in 13(d) Arms Ordinance case. Magistrate has also avoided to reply that face of the accused was muffled when accused was produced before him for the remand purpose. Moreover, identification parade was not held according to law. After arrest of the accused nothing incriminating was recovered from him in this case. It appears that appellant was charged under section 324 PPC read with Section 7 of Anti-Terrorism Act, 1997, but no trustworthy evidence to prove its case has been brought on record. Trial Court failed to appreciate prosecution evidence according to settled principles of law. Evidence of police officials did not inspire confidence. It would be unsafe to maintain conviction on such evidence.

12.       In this case there are number of infirmities / circumstances in the prosecution case which create doubt. It is settled principle of law for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez vs. The State (1995 SCMR 1345), wherein the Honourable Supreme Court has held as under:-

“The concept of benefit of doubt to an accused persons 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 crates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as matter of grace and concession but as a matter of right.”  

 

13.       In the view of above, we have come to the conclusion that the prosecution has failed to prove the aforesaid case against the appellant Mohammad Jameel beyond any shadow of doubt. Therefore, we extend benefit of doubt to the appellant Mohammad Jameel and allow Special Criminal Anti-Terrorism Appeal No 78 of 2014. Consequently, the conviction and sentence recorded by the Trial Court vide judgment dated 29.09.2014 are set aside. Appellant Mohammad Jameel is acquitted of the charges. Appellant shall be released forthwith, if he is not wanted in some other custody case.

 

 

 

 

 

 

 

 

JUDGE

 

                                                                                                JUDGE

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