HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No.67 of 2016

Special Criminal Anti-Terrorism Appeal No.68 of 2016

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Maalik Gadi

Appellant: Naveed Ahmed Tanoli son of Shaukat Ali through M/s. Nadeem Khan and Irfan Aziz, advocates

Respondent: The State through Mr. Ali Haider Saleem, Deputy Prosecutor General Sindh.

Date of Hearing : 09.11.2017

Date of Judgment : 15.11.2017

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Naveed Ahmed Tanoli was tried by learned Judge, Anti-Terrorism Court-I, Karachi in Special Cases Nos.A-192 and A-193 of 2015. By judgment dated 17.02.2016, appellant Naveed Ahmed Tanoli was convicted under section 7(ff) of Anti-Terrorism Act, 1997 and sentenced to suffer 14 years R.I. He was also convicted under section 23(1)(a) of the Sindh Arms Act, 2013 and sentenced to suffer 5 years R.I. and to pay fine of Rs.20,000/-, in case of default in payment of fine, he was ordered to suffer six months S.I. more. Both the sentences were ordered to run concurrently. Appellant was extended benefit of section 382-B, Cr.PC.

2. Brief facts of the prosecution case leading to the filing of appeal are that on 16.04.2015 at 1350 hours, SIP Muhammad Ashraf lodged F.I.R. No.94/2015 against the accused under section 4/5 of the Explosive Substances Act, 1908 read with section 7 of the Anti-Terrorism Act, 1997 at P.S. Shah Faisal Colony, Karachi, alleging therein that SIP Muhammad Ashraf along with subordinate staff was busy in patrolling duty. During patrolling, received spy informed that accused Naveed Ahmed Tanoli, who was absconder in various cases was present along with his accomplices at International Chowk, Nath Khan Goth, Karachi. On receipt of such information, SIP Muhammad Ashraf along with subordinate staff proceeded to the pointed place and apprehended the appellant whereas his accomplices ran away through narrow streets. On inquiry, present accused disclosed his name as Naveed Ahmed Tanoli, his personal search was conducted, one ball cracker and one 30 bore pistol with 6 live bullets were recovered from his possession. Pistol was without license. Accused was arrested, mashirnama of arrest and recovery was prepared in presence of mashirs. Thereafter, bomb disposal unit was informed for defusing the ball cracker. On the inquiry, accused disclosed the names of co-accused who ran away as Sir Zameen son of Qalandar Khan, Zakir son of Nadir Khan and Khan Afsar son of Farman. Thereafter accused and case property were brought to the police station where two FIRs bearing Crimes Nos.94 and 95 of 2015 were registered under sections 4/5 of the Explosive Substances Act, 1908 read with section 7(ff) of the Anti-Terrorism Act, 1997 and section 23(1)(a) of the Sindh Arms Act, 2013.

2. Investigation was entrusted to SIP Tahseen Baig of P.S. Al-Falah; accused and case property were also handed over to the IO and IO visited the place of wardat on the pointation of the complainant and prepared such mashirnama in presence of mashirs. IO recorded 161, Cr.PC statements of accused. IO dispatched pistol and bullets to FSL for examination and report. Thereafter, said IO was transferred and further investigation was conducted by Inspector Dhani Bux, who received report of bomb disposal unit. On the conclusion of investigation, challan was submitted against the accused under the above referred sections.

3. Both the cases were amalgamated on the application of the State in terms of Section 21-M of the Anti-Terrorism Act, 1997. Learned Judge, Anti-Terrorism Court-I framed charge against the accused under sections 7(h) of Anti-Terrorism Act, 1997 and 23(1)(a) of the Sindh Arms Act, 2013. Accused pleaded not guilty and claimed to be tried.

4. In order to substantiate the charge, prosecution examined PW-1 SIP Muhammad Ashraf at Ex.5, PW-2 PC Mairajuddin at Ex.6, PW-3 Inspector Tahseen Baig at Ex.7, PW-4 Inspector Dhani Bux at Ex.8. Thereafter, prosecution side was closed.

5. Statement of accused was recorded under Section 342 Cr.P.C at Ex-10, in which the accused denied the prosecution allegations and raised plea that he was arrested from his house on 16.04.2015 at 10:30 am in presence of his family. It is stated by the accused that police demanded illegal gratification from him to which he refused and he was involved in these cases falsely, however, accused did not examine himself on oath in disproof of prosecution allegations but examined in defence DW Zohaid Ali. Defence witness produced copy of application, addressed to Inspector General of Police Sindh along with TCS receipts and conformation report at Ex.11 to 11/C to show that accused was arrested by the police prior to registration of false cases.

6. Trial court formulated the points for determination and heard the counsel for the parties and examined the evidence, finally convicted and sentenced the accused as stated above.

7. 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.

8. The extensive arguments of learned advocate for appellant and Deputy Prosecutor General Sindh are not recorded separately but same shall be reflected during the course of recording findings in this case.

9. Admittedly, it was the case of spy information, SIP Muhammad Ashraf along with his subordinate staff proceeded to the pointed place on 16.04.2015 and apprehended the appellant whereas his accomplices ran away. It has come on record that one ball cracker and one pistol were recovered from the possession of appellant/accused. We are unable to rely upon the evidence of SIP Muhammad Ashraf for the reasons that it was the case of prior information and according to prosecution, accused had background of his involvement in the criminal cases. We unable to understand as to why SIP Muhammad Ashraf did not associate with him independent persons of the locality at the time of recovery of the ball cracker and T.T. pistol. It is also unbelievable that the accomplices of the appellant/accused ran away when police party was armed with official arms and ammunitions. It makes the conduct and efficiency of the concerned police officials questionable. It is also against the nature of the criminal to surrender before the police without offering any resistance. In this case, it is the case of the prosecution that accused was armed with ball cracker and pistol, it was unbelievable that appellant without causing any harm to the police, was arrested by the police. PW-3 Inspector Tahseen Baig failed to examine independent persons of locality to ascertain truth. DW-1 Zuhaib has deposed that his brother was arrested by police from house on 16.04.2015 but defence evidence has not been considered by trial court.

10. We have no hesitation to hold that prosecution has failed to prove its case against the accused for the reasons that it was the case of spy information, it was essential to find out if there was any possibility of securing independent persons of the locality at the time of arrest and recovery but no effort was made by the police. It is settled principle of law that judicial approach has be conscious in dealing with the cases in which testimony hinges upon the evidence of the police officials alone. We are conscious of the fact that that provisions of section 103, Cr.PC are not attracted to the case of personal search of accused in such cases. However, where alleged recovery was made on the main road, omission to secure independent mashirs particularly in the case of spy information cannot be brushed aside lightly by this Court.

11. 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.

12. On overall assessment of entire evidence in the case and on considering of the surrounding circumstances, we are of the considered view that case against the appellant is doubtful in nature. Accordingly, we extend benefit of doubt to accused and acquit him from the charge. The conviction and sentence recorded against the appellant are set aside. The appellant shall be released forthwith if not required in any other case.

J U D G E

Gulsher/PS