HIGH COURT OF SINDH AT KARACHI

 

Special Criminal Anti-Terrorism Jail Appeal No. 137 of 2015

 

 

Present:    Mr. Justice Naimatullah Phulpoto

               Mr. Justice Abdul Maalik Gaddi

 

 

 

Date of Hearing           :        01.11.2017

 

Date of Judgment      :          07.11.2017

 

Appellants                 :          Shahid Hussain @ Shoaib through Ms. Tasneem Shah Advocate.

 

 

Respondent               :           The State through Mr. Mohammad Iqbal Awan Additional Prosecutor General.

 

                                  

JUDGMENT

 

 

NAIMATULLAH PHULPOTO, J.- Shahid Hussain @ Shoaib appellant was tried by learned Judge, Anti-Terrorism Court No.VIII, Karachi in Special Case No.B-202/2014 (FIR No. 49/2014 under Sections 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997 registered at P.S Saeedabad). After full-dressed trial, appellant was found guilty. By judgment dated 15.05.2015, appellant was convicted under Section 5 of Explosive Substances Act, 1908 and sentenced to R.I for 5 years and to pay fine of Rs.50,000/-. In case of default, he was ordered to undergo 06 months more. Appellant was extended benefit of Section 382-B Cr.P.C.

 

2.         Brief facts leading to the filing of this appeal are that on 01.02.2014, SIP Aijaz Memon along with his subordinate staff left Police station for patrolling. At 1330 hours, they saw three suspicious persons appeared on motorcycle. They were signaled to stop but they started firing upon the police party. Police also fired in self defence. After encounter, one accused was apprehended while two culprits made their escape good. SI conducted personal search of accused and recovered T.T Pistol containing three bullets in magazine and one in Chamber and one hand grenade. Accused could not produce license/permission of the weapon and explosive carried by him.  On inquiry, accused disclosed his name as Shahid Hussain @ Shoaib. Accused disclosed the names of co-accused who ran away as Wahid Bux and Arif. Thereafter, accused and case property were brought at Police Station Saeedabad, where FIR bearing Crime No. 49/2014 under Sections 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997 was registered against accused on behalf of state.

 

3.         After usual investigation, Challan was submitted against accused for offences under Sections under Sections 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997.

 

4.         Trial Court framed charge against accused under the above referred sections at Ex.4. Accused pleaded not guilty and claimed their trial.

 

5.         At trial, prosecution examined five witnesses, who produced relevant documents to substantiate the charge. Thereafter, prosecution side was closed vide statement at Ex. 11.

 

6.         Statement of accused was recorded under Section 342 Cr.P.C at Ex.12. Accused claimed false implication in this case and denied the prosecution allegations. Accused declined to examine on oath in disproof of the prosecution allegations and did not lead evidence in defence.

 

7.         Trial Court after hearing learned counsel for the parties and examination of the evidence available on record, by judgment dated 15.05.2015, convicted and sentenced the appellant as stated above. Hence this appeal has been filed.

 

8.         The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the Judgment dated 15.05.2015 passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

 

9.         Ms. Tasneem Shah Advocate appeared on behalf of the appellant and argued that prosecution has failed to establish its’ case against the appellant for the reasons that SI in the cross-examination has admitted that during cross firing not  a single injury was caused to either party. She further argued that hand grenade was recovered on 01.02.2014, but according to inspection report of hand grenade it was sent to Bomb Disposal Unit on 01.03.2014. There was delay of one month in sending hand grenade to the expert. It is argued that such delay in dispatching of explosive substance has not been explained by the prosecution. It is further argued that prosecution has failed to establish safe custody of hand grenade at Police Station for a period of one month. It is further argued that prosecution story is unbelievable as two culprits easily ran away from the police party when the police party was armed with officials arms. Lastly, it is argued that prosecution case was highly doubtful. Learned counsel for the appellant in support of her contentions has relied upon the case reported as Tariq Pervez vs. The State (1995 SCMR 1345).

 

10.       Mr. Mohammad Iqbal Awan learned Additional Prosecutor General Sindh half heartedly opposed the appeal and admitted that explosive substance was inspected after one month and has failed to give any explanation about such delay.

 

11.       We have carefully heard the learned counsel for the parties and scanned the entire evidence.

 

12.       Close scrutiny of evidence reflects that SI in the cross-examination has admitted that during cross firing not a single injury was caused to either party. Even bullet was not hit to the police mobile. Hand grenade was recovered on 01.02.2014, but according to inspection report of hand grenade, it was sent to Bomb Disposal Unit on 01.03.2014. There was delay of one month in sending hand grenade to the expert. Delay in dispatching of explosive substance has not been explained by the prosecution. Prosecution has also failed to establish safe custody of hand grenade at Police Station for a period of one month. We are unable to believe prosecution story that two culprits easily ran away from the police party when the police party was armed with officials arms. In this case there are number of infirmities/lacunas, which have created serious doubt in the prosecution case. 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 creates 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.       For the above stated reasons, while respectfully relying upon the above cited authorities, we have no hesitation to hold that prosecution has failed to prove its’ case against the appellant beyond any shadow of reasonable doubt. Consequently, Appeal is allowed, conviction and sentence awarded by the learned Judge, Anti-Terrorism Court-VIII, Karachi vide judgment dated 15.05.2015 are set aside.  Appellant Shahid Hussain @ Shoaib shall be released from custody forthwith, if he is not wanted in some other custody case.

 

           

 

JUDGE

 

                                                            JUDGE