HIGH COURT OF SINDH AT KARACHI

 

Special Criminal Anti-Terrorism Jail Appeal No. 52 of 2017

 

Present

                                                                                Mr. Justice Naimatullah Phulpoto

                                                                                Mr. Justice Abdul Malik Gaddi       

 

 

Date of Hearing        :           23.10.2017.

 

Date of Judgment    :            25.10.2017.

 

Appellant                 :            Sharjeel through Mr.  Nadeem Ahmed Azar Advocate.

 

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

 

 

JUDGMENT

 

 

 

NAIMATULLAH PHULPOTO, J.- Sharjeel son of Pervaiz appellant was tried by learned Judge, Anti-Terrorism Court IX Karachi in Special Cases Nos.A-95, A-96 and A-97 of 2015. After full-dressed trial, by judgment dated 24.01.2017, appellant Sharjeel was convicted and sentenced as under:-

           

           

01.

Section 324 PPC r/w Section 7 of Anti-Terrorism Act, 1997

To suffer R.I for seven years and fine of Rs.50,000/- and in case of default of payment of the fine, the accused to undergo R.I for one year more.

02.

Section 353 PPC

To suffer R.I for one year

03.

Section 23(1)-A SAA

To suffer R.I for seven years and fine of Rs.25,000/- and in case of default of payment of fine, the accused will have to undergo R.I for six months more.

04.

Section 6(2)(ee) of Anti-Terrorism Act, 1997 punishable u/s 7(ff) of Anti-Terrorism Act, 1997 read with Section 4/5 Explosive Substances Act,

To suffer R.I for fourteen years with forfeiture of his property if any as required u/s 7(2) of Anti-Terrorism Act, 1997.

 

Benefit of Section 382-B Cr.P.C was also extended to accused.

 

2.         Brief facts of the prosecution case as disclosed in the FIR are that on 14.07.2013, ASI Ali Bukhsh along with his subordinate staff left Police Station for patrolling duty. At 0020 hours, when police party reached at main University Road opposite Rizwan Society, where it is alleged that three persons appeared on the motorcycle in the suspicious manner. Police signaled them to stop. It alleged that accused who was sitting on the rear seat of the motorcycle, started firing at the police party with intention to kill. Police also made fires in self defence. It is alleged that during cross-firing, accused who made fires upon the police, sustained fire arm injury at his leg and fell down on the ground from the motorcycle whereas, remaining two culprits succeeded to run away from the place of incident. The police party apprehended present accused in injured condition. From his personal search, one hand grenade and pistol of 30 bore with loaded magazine were recovered. On enquiry, accused disclosed that he had no license/permission for the explosive substance and weapon carried by him. Thereafter, accused and case property were brought to the Police Station, where three separate FIRs bearing Crime No. 361/2013, under Sections 353/324/34 PPC read with Section 7 of Anti-Terrorism Act, 1997, Crime No. 362/2013, under Section 4/5 Explosive Substances Act, 1908 read with Section 7 of Anti-Terrorism Act, 1997 and Crime No. 363/2013, under Section 23(1)(a) of Sindh Arms Act, 2013 were registered at Police Station Sachal against the accused on behalf of state.

 

3.         After usual investigation, challan was submitted against accused Sharjeel. Learned Trial Court amalgamated the aforesaid cases in terms of Section 21-M of Anti-Terrorism Act, 1997.

 

4.         Learned Judge, Anti-Terrorism Court-IX, Karachi framed charge against the accused Sharjeel under the above referred sections at Ex.4. Accused pleaded not guilty and claimed trial.

 

5.         At trial, prosecution examined five prosecution witnesses, who produced mashirnama of arrest and recovery, FIRs, mashirnama of place of incident, FSL report and other relevant documents. Thereafter, prosecution side was closed by learned DDPP 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 the case and denied the prosecution allegations. Accused declined to give statement on oath in disproof of the prosecution allegations. No evidence has been led in defence.

 

7.         Learned Trial Court, after hearing the learned counsel for the parties and examination of the evidence available on record, convicted and sentenced the appellant as stated above by single judgment, hence this appeal is filed.

 

8.         The facts of these cases as well as evidence produced before the trial Court find an elaborate mention in the Judgment dated 24.01.2017, passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

 

9.         Mr. Nadeem Ahmed Azar, learned Advocate for the appellant has mainly contended that incident took place at mid night at University Road and not a single injury was caused to the police officials, but in the fake encounter, police caused fire arm injury at the leg of the accused. It is also argued that at the place of wardat no blood was found. It is argued that there is variation in the description of hand grenade given in the mashirnama of arrest and recovery so also in the report of FSL. It is further argued that after 13 days of the recovery of the hand grenade, it was defused by Bomb Disposal Expert and there was no evidence that hand grenade was kept in the safe custody at P.S for 13 days. It is argued that same police investigated the case of  accused and such investigation was malafide. Lastly, it is argued that accused was in illegal detention of Rangers before registration of this case and false cases were registered against accused. In support of his contentions, has relied upon the case reported as Mumtaz Ali vs. The State (2011 SCMR 70).

 

10.       Mr. Mohammad Iqbal Awan, learned DPG argued that accused was arrested in injured condition at spot; explosive substance /hand grenade and pistol were recovered from his possession. He supported the judgment of the trial Court.

 

11.       From the scrutiny of the evidence, it transpires that SI Ali Bukhsh has deposed that on 13.07.2013, he left Police Station along with PCs Waheed Khatak and Abdul Rauf for patrolling vide Roznamcha Entry No. 35 at 8:00 pm. When the police party reached near Rizwan Society, where three accused persons appeared on the motorcycle. They were signaled by the police to stop. Out of them, present accused sitting on the rear seat of the motorcycle, started firing upon the police with intention to kill. Police also fired in self defence. During cross firing, one fire hit to present accused sitting at the rear seat and he fell down, remaining two accused succeeded to run away. It was 12:20 am (night). Sub Inspector has further deposed that he recovered T.T. Pistol from the possession of the accused as well as hand grenade. Accused and case property were brought at Police Station, where three separate FIRs bearing Crime No. 361/2013, under Sections 353/324/34 PPC read with Section 7 of Anti-Terrorism Act, 1997, Crime No. 362/2013, under Section 4/5 Explosive Substances Act, 1908 read with Section 7 of Anti-Terrorism Act, 1997 and Crime No. 363/2013, under Section 23(1)(a) of Sindh Arms Act, 2013 were registered against accused. Then, he handed over copies of the FIRs, case property and custody of the accused to SIP Abdul Hakeem for further investigation. SI Ali Bukhsh in the cross-examination has admitted that there was cross firing for 5 minutes. SIP Abdul Hakeem I.O has deposed that he inspected place of wardat and secured 4 empties of SMG and 3 empties of pistol from the place of wardat.

 

12.       From the above evidence, we have come to the conclusion that prosecution has failed to establish its’ case against the accused for the reasons that there was cross firing for 5 minutes with the sophisticated weapons but not a single injury/scratch was caused to any of the police official. According to the case of prosecution present accused sustained fire arm injury with the official SMG and he fell down on the ground, but no blood was found by the I.O at the time of inspection of place of wardat. We are unable to believe that two accused ran away and police remained calm without any effort to arrest them. After arrest of the accused explosive substance and pistol were not sealed at spot. Medical Officer who examined injured accused was also not examined by the prosecution and it has also caused serious doubts in the prosecution case. Hand grenade was without number and it is rightly contended by the learned counsel for the appellant that it is very easy to foist hand grenade without number. According to the case of prosecution hand grenade was defused after 13 days such delay has not been explained by the prosecution. Investigation has been carried out by the same police. Such investigation was highly questionable. Rightly reliance has been placed upon the case reported Mumtaz Ali vs. The State (2011 SCMR 70),  

“5. Having heard the learned counsel for the parties and having reappraised the evidence with their assistance, we find that admittedly the occurrence took place at a public place and according to Muhammad Umar, SIP (P.W.1), he fired 45 shots in the alleged police encounter but surprisingly, neither during occurrence nor after the occurrence any one from public reached the spot. The statement of the other witness namely Akhtar Hussain, HC (P.W.2) does not improve the prosecution case in any manner and a bare reading of the same, would show that neither in his statement nor in that of P.W. 1 there is allegation that appellant fired at the police party. Their statements are to the effect that after the encounter they reached the spot and found a person lying dead, one decamped and appellant was lying injured. Although according to the prosecution, three accused fired at the police party but surprisingly no member of the police party was injured nor any bullet hit police vehicle. The consistent plea of the appellant during the trial was that there was exchange of firing between two parties and he got injured in the cross firing. There is nothing on record to indicate that this plea was ever investigated instead the complainant police officer himself investigated the case. The non-production of medical evidence particularly with regard to injury received by the appellant is a serious infirmity in the prosecution case as in absence of that it would not be free from doubt to hold that the appellant received the injury on account of firing by police party or those were caused by cross firing between the two parties. Even if the prosecution story is admitted to be true that there was firing from the side of the accused the possibility that it was the deceased Shafoo or the absconding accused who fired at the raiding party, could not be ruled out.

6. For what has been discussed above, we find that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt, to sustain conviction. Consequently, this appeal is allowed the impugned judgment is set aside and Mumtaz Ali-appellant be released from jail forthwith unless detained in any other case.”

 

13.       For what has been discussed above, we find that prosecution has failed to prove its’ case against appellant beyond any reasonable doubt, to sustain conviction. Consequently, this appeal is allowed, the impugned judgment is set aside and Sharjeel appellant be released from jail forthwith unless detained in other case.

 

 

JUDGE

 

                                                JUDGE