THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No. 151 of 2016

Special Criminal Anti-Terrorism Appeal No. 152 of 2016

Special Criminal Anti-Terrorism Appeal No. 153 of 2016

Special Criminal Anti-Terrorism Appeal No. 154 of 2016

Special Criminal Anti-Terrorism Appeal No. 155 of 2016

Special Criminal Anti-Terrorism Appeal No. 156 of 2016

Special Criminal Anti-Terrorism Appeal No. 141 of 2016

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Khadim Hussain Tunio

Date of Hearing : 08.09.2017 .

Date of announcement

of judgment : 12.09.2017 .

Appellants : Abdul Haq @ Mulla, Mohammad Saleem @ Mamo, Arshad Ali, Ali Raza, and Kashif through Mr. Mumtaz Ali Khan Deshmukh Advocate.

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

J U D G M E N T

NAIMATULLAH PHULPOTO, J.- Appellants Kashif, Abdul Haq, Mohammad Saleem alias Mamo, Arshad Ali and Ali Raza were tried by learned Judge, Anti-Terrorism Court No. II, Karachi for offences under Sections 353/324/34 PPC, under Section 25 of Sindh Arms Act 2013 and under Section 4/5 Explosive Substance Act 1908 read with Section 6(2)(m)&(n) punishable u/s 7(ff) of Anti-Terrorism Act, 1997. After full-dressed trial, by judgment dated 09.05.2016, appellants were convicted and sentenced as under:

65. The charge leveled against the five accused persons namely Kashif s/o Ilyas Ahmed, Abdul Haque s/o Zialul Haq, Muhammad Saleem alias Mamoo s/o Sagheer Ahmed, Arshad Ali s/o Raheem Bux and Ali Raza s/o Shoukat Ali that had encounter with police stands proved. They are convicted and sentenced to suffer R.I for 3 years u/s 353 PPC.

66. The Court has taken lenient view in case of accused Kashif and since he had helping the other accomplices u/s 21(I) of ATA, therefore, he is convicted and sentenced to suffer R.I for 5 years.

67. As to the recovery of unlicensed pistol 30 bore from accused Abdul Haq is also proved. He is convicted and sentenced to suffer R.I for 7 years u/s 25 of S.A.A with fine of Rs.5000/- in failure to pay the fine, he is further undergo for six months as well as recovery of two Ball bombs from him is also proved. He is convicted and sentenced to suffer R.I for 14 years u/s 7(ff) of ATA, 1997.

68. As to the recovery of Repeator of 12 bore from accused Mohammad Saleem alias Mamoo is also proved. He is convicted and sentenced to suffer R.I for 7 years u/s 25 of S.A.A with fine of Rs.5000/- in failure to pay the fine, he is further to undergo for six months.

69. As to the recovery of unlicensed pistol 30 bore from accused Arshad is also proved. He is convicted and sentenced to suffer R.I for 7 years u/s 25 of S.A.A with fine of Rs.5000/- in failure to pay the fine, he is further undergo for six months.

70. As to the recovery of Ball bomb from accused Ali Raza is also proved. He is convicted and sentenced to suffer R.I for 14 years u/s 7(ff) of ATA, 1997. All the punishments will run concurrently. The benefit of Section 382(b) of Cr.P.C is also given to all of them.

2. Brief facts of the prosecution case, as disclosed in the FIR lodged by complainant/SIP Gul Bahar of PS New Karachi Industrial Area are that on 01.10.2014 at about 0110, SIP was on patrolling along with his subordinate staff in Government vehicle in search of criminals who had gone to Allah Wali Sector 6/C Khameso Goth, when they reached at Rice Factory Sector 6/C Khameso Goth, New Karachi 5/F, at about 0005 hours. It is alleged that police party saw two motorcyclists with five suspicious riders, going towards the road of Allah-Wali. Police signaled them to stop, but the accused persons had started firing at police party and tried to escape. The police had also fired in self defense. Police apprehended them. On motorcycle No. KGV-1706, Maker Unique Black Colour, three accused persons were riding. The person who was driving the motorcycle disclosed his name as Kashif, whereas, accused Abdul Haque and Mohammad Saleem were sitting behind him. Another motorcycle bearing No. KGH-4655 Maker Unique Black Colour was being driven by a person, who disclosed his name as Arshad Ali whereas, accused Ali Raza was sitting behind him. Due to non-availability of private persons, in the light of mobile. Personal search of the accused persons was conducted in presence of mashirs. From accused Kashif nothing was recovered. From personal search of accused Abdul Haq, SIP recovered T.T pistol of 30 bore silver colour with Black Butt having two rounds with loaded magazine and one round in the chamber. From further search, SIP recovered from the front side pocket of his pant two ball bombs. From personal search of accused Mohammad Saleem, SIP recovered a Repeater of 12 bore, two cartridges loaded in magazine and Rs.300/- and from accused Arsahd recovered a T.T Pistol, black colour three rounds loaded magazine, one in Chamber and Rs.200/-. From accused Ali Raza was recovered from his front side pocket a ball bomb of white colour and Rs.200/-. The mashirnama of arrest and recovery was prepared in presence of mashirs ASI Bin Yameen and PC Nadeem. The accused persons could not produce the documents of the motorcycles as such the same were seized u/s 550 Cr.P.C. The weapons were sealed separately. From the place of incident police also secured 4 empties of SMG and 3 of 30 bore and one empty of 12 bore. They were also sealed. Thereafter, accused and the case property were brought at Police station New Karachi Industrial Area, where, SIP Gul Bahar lodged separate FIRs against the accused on behalf of state vide Crime No.280/2014 for offence under Sections 353/324/34 PPC read with Section 7 ATA 1997, FIR bearing Crime No.281/2014 for offence u/s 25 of Sindh Arms Act, 2013, FIR bearing Crime No.282/2014 for offence u/s 4/5 Explosive Substance Act, 1908, FIR bearing Crime No.283/2014 for offence u/s 25 of Sindh Arms Act, 2013, FIR bearing Crime No.284/2014 for offence u/s 25 of Sindh Arms Act, 2013, FIR bearing Crime No.285/2014 for offence u/s 4/5 Explosive Substance Act, 1908.

3. Investigation of these FIRs was entrusted to Inspector Ali Hyder Shah on 01.10.2014, custody of accused and case property was also handed over to him. I.O inspected the place of wardat on the pointation of SI Gul Bahar Sahito. Mashirnama of inspection of place of wardat was prepared in presence of mashirs SIP Gul Bahar and ASI Bin Yamin. He also recorded 161 Cr.P.C statements of P.Ws. On 03.10.2014, I.O dispatched pistols and repeater for FSL along with bullets to the FSL for examination and report and collected positive report. On the conclusion of the investigation after seeking approval from the Home Department, challan was submitted against the accused before the learned Judge, Anti Terrorism Court at Karachi under the above referred sections. All the six cases were jointly ordered to be tried by the trial Court in terms of Section 21-M of the Anti Terrorism Act, 1997.

4. Trial Court framed charge against accused under the above referred sections. Accused pleaded not guilty and claimed to be tried.

5. At trial, prosecution examined P.W-1 ASI Bin Yameen at Ex. P/1, who produced memo of arrest and recovery at Ex. P/2, memo of inspection of place of incident at Ex.P/3, departure entry No. 37 at Ex.P/4, FIR No. 280/2014 at Ex.P/5, FIR No. 281/2014 at Ex.P/6, FIR No. 282/2014 at Ex.P/7, FIR No. 283/2014, 284/2014 and 285/2014 at Ex.P/8 to P/10 respectively. P.W-2 PC Nadeemuddin at Ex.P/11, P.W-3 ASI Abid Farooq at Ex.P/12, who produced Departure entry No. 7 at Ex.P/13, Clearing Certificate of FIR No. 282/2014 at Ex.P/14 and FIR No. 285/2014 at Ex. P/15. He has produced the Final Report of FIR No. 282/2014 at Ex. P/16 and that of FIR No.285/2014 at Ex.P/17. P.W-4 PC Yasir Kareem at Ex.P/18, P.W-5 Inspector Ali Hyder Shah at Ex.P/19, who produced Entry No.18 by which he had gone for site inspection at Ex.P/20, sketch of place of incident at Ex.P/21, four photographs fixed on two pages at Ex.P/22, letter written to FSL on 03.10.2014 at Ex.P/23 and the report of FSL at Ex.P/24. He has produced letter written to Incharge CRO at Ex.P/25, Criminal record of three accused persons Abdul Haq, Arshad and Ali Raza at Ex.P/26, Ex. P/27 and Ex.P/28 respectively. Letter written to FSL for inspection of Government mobile at Ex.P/30. He has also produced letter written by SSP to Home Department for permission u/s 7 of Explosive Substance Act as Ex.P/31 and he produced the receiving of that application at Ex.P/32. Report about Government vehicle submitted before the Court at Ex.P/33.

Thereafter, prosecution side was closed by learned DDPP vide his statement at Ex.34.

6. Statements of the accused were recorded under Section 342 Cr.P.C. at Ex.35 to 39 respectively, in which they claimed their false implication in this case and denied the allegations leveled against them. Accused have raised plea that police officials demanded money from them and on their refusal pistols, Repeater and explosive have been foisted against them. Regarding positive report of these weapons, they stated that the same have been managed by the police. Accused neither examined themselves on oath in disproof of the prosecution allegations nor lead any evidence in defense.

7. Learned trial Court after hearing the learned counsel for the parties and assessment of the evidence, by the Judgment dated 09.05.2016, convicted and sentenced the appellants as stated above. Hence, the appellants filed separate appeals against the common judgment dated 09.05.2016 passed by trial Court.

8. The facts of these cases as well as evidence produced before the trial Court find an elaborate mention in the Judgment dated 09.05.2016 passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

9. Mr. Mumtaz Ali Khan Deshmukh learned Advocate for the appellants mainly contended that there was police encounter but no one received injury in the police encounter. He has argued that there are material contradictions in the prosecution evidence. He further argued that P.W-2 has been declared hostile and his evidence was contradictory to the evidence of other P.Ws on material particulars of the case. He has also argued that safe custody of the crime weapons and other explosive at police station has not been established. Lastly, argued that prosecution case is highly doubtful and prayed for acquittal of the accused.

10. Mr. Mohammad Iqbal Awan learned DPG argued that after encounter, accused were arrested at the spot and from their possession pistols and Ball Bombs were recovered and the weapons were sent to the expert and positive report was received. Learned DPG further argued that all the P.Ws have supported the case of prosecution and contradictions which have come on record were minor in nature. Lastly, it is contended that no enmity or malafide on the part of police officials has been brought on record. He prayed for dismissal of the Appeals.

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

12. We have come to the conclusion that prosecution has failed to prove its case against the appellants for the reasons that evidence of police officials does not inspire confidence. It was night time incident, there was encounter with the sophisticated weapons, source of identification of the accused at night time has not been disclosed by the prosecution. As such identification of accused was doubtful. In the police encounter with the sophisticated weapons no one received injury in the incident. Episode appears to be unbelievable. After arrest of the accused, case property and accused were brought at police station but there was no evidence that weapons and ball bombs were kept in safe custody in Malkhana of the police station. Even Incharge of Malkhana has not been examined. Offence under section 4/5 of the Explosives Substance Act, 1908 is serious one, but it has come on record that SIP had taken bombs to his home as such safe custody of the bombs has not been established. From the perusal of the evidence it transpires that evidence of P.Ws is contradicted on material particulars of the case and recovery of the weapons from the possession of the accused at the time of their arrest. Intention of accused to cause damage has also not been brought on record. P.W-2 PC Nadeemuddin has been declared hostile by the learned DDPP and he was cross-examined there was no improvement in the prosecution case. It has also come on record that at the time of firing two persons of the locality were attracted but neither those persons were examined by the police nor were they produced before the Trial Court for recording their evidence. We are unable to understand that as to why the SIP did not associate those persons as witnesses. As such best possible evidence was deliberately not produced. Presumption would be in case those private persons might have been examined they would have not supported the case of prosecution. 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 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. In the case of Muhammad Nawaz and another v. The State and others (PLD 2005 SC 40), the Honourable Supreme Court has held as under:

“It is a known principle of appreciation of evidence that the benefit of all favourable instances in the prosecution evidence must go to the accused regardless of whether he has taken any such plea or not.”

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 appellants beyond any shadow of doubt, therefore, we extend benefit of doubt to the appellants and allow the appeals. Consequently, conviction and sentences recorded by the trial court by judgment dated 09.05.2016 are set aside and the appellants namely Kashif son of Ilyas Ahmed, Abdul Haq alias Mulla son of Ziaul Haq, Mohammad Saleem alias Mamoo son of Sagheer Ahmed, Arshad Ali son of Raheem Bux and Ali Raza son of Shoukat Ali are acquitted from the charges. Learned Advocate for appellant Kashif submits that appellant Kashif could not appear today as he is lying ill. His bail bond stands cancelled and surety discharged. However, Appellants Abdul Haq alias Mulla son of Ziaul Haq, Mohammad Saleem alias Mamoo son of Sagheer Ahmed, Arshad Ali son of Raheem Bux and Ali Raza son of Shoukat Ali are in custody, they shall be released forthwith, if they are not required in any other custody case.

JUDGE

JUDGE