HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-TerrorismAppeal No.252 of 2015

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Maalik Gaddi

Date of hearing : 06.12.2017

Date of Judgment : 19.12.2017

Appellant : Muhammad Ibrahim

through M/s. Mamoon K. Shirwany & Farkhunda Jabeen, Advocates.

Respondent : The State through Mr. Abdullah Rajput,

Additional Prosecutor General, Sindh.

J U D G M E N T

Abdul MaalikGaddi, J.–Appellant Muhammad Ibrahim was tried by the learned Judge, Anti-Terrorism Court No.X, Karachi, under Section 4/5 of Explosive Substance Act, 1908 read with Section 7 of Anti-Terrorism Act, 1997 in Special Case No.B-620 of 2014 (Re: The State v. Muhammad Ibrahim), arising out of Crime No.386 of 2014 registered at police station CID, Sindh. By judgment dated 16.09.2015, the appellant was convicted under Section 7(i)(ff) of ATA 1997 and sentenced him to suffer R.I. for 14 years. Benefit of Section 382-B Cr.P.C. was also extended to the accused.

2. The brief facts of the prosecutioncase leading to the filing of this appeal are that 13.10.2014 at about 0310 hours, ASI Muhammad Dilawar lodged FIR under above referred sections, alleging therein thaton relevant date, he was on patrolling duty alongwith his subordinate while he received spy information that two suspicious persons were available near Railway Station, Wazeer Mansion, Machar Colony, Karachi. On such information, police party reached at pointed place at 12:50 a.m. and apprehended one of them and inquired about his identity, who disclosed his name as Muhammad Ibrahim son of Muhammad Anwar. On his personal search in presence of mashirs, police recovered one Hand Grenade,as such, accused was arrested and brought him at police station, where the said FIR was registered under above referred sections. It appears from the record that the mashirnama of recovery of this case as well as FIR No.383/2014 under Section 6/9-C of Control of Narcotic Substance Act is same, however, the case under Crime No.383/2014 was challaned separately in the Court of Control of Narcotics Substance, which is not subject matter of this Court.

3. It also appears from the record that after registration of FIR, the investigation was carried out by Inspector Bezahat Ali, who after recording the statementsof PWs under Section 161 Cr.P.C. and after completing all the formalities,submitted the final report against the appellant in the Court of law.

4. The charge was framed on 22.04.2015 against the accused Muhammad Ibrahim by the learned trial Court under above referred sections, to which accused pleaded not guilty and claimed to be tried.

5. At trial, in order to establish accusation against the appellant/accused, prosecution had examined the following witnesses alongwith the documents produced in evidence by them:-

(i) PW-1/Complainant ASI Muhammad Dilawar at Ex.5, who produced roznamcha entry No.21, memo of arrest and recovery, FIR, entry No.26, arrival entry No.26 and memo of inspection of place of incident at Ex.5/A to Ex.5/F respectively;

(ii) PW-2 HC Muhammad Hashim at Ex.6;

(iii) PW-3 ASI Syed Laeeq of Bomb Disposal Unit at Ex.7, who produced letter, entries, clearance certificate and final report of Hand Grenade at Ex.7/A to Ex.7/E respectively;

(iv) PW-4/I.O. Inspector Bezahat Ali at Ex.8, who produced entry No.34, arrival entry No.42, letter addressed to Home Department and permission of Home Department at Ex.8/A to Ex.8/D respectively.

These witnesses were cross examined by the counsel for accused. Thereafter, leaned DDPP closed the prosecution side vide Statement at Ex.9.

6. Statement of accused was recorded under Section 342, Cr.P.C.at Ex.10, in which he hasdenied the allegations as leveled by the prosecution and submitted that he is innocent; he has been picked up by Rangers Personnel on 06.10.2017 from his house and nothing was recovered from him. Accused did not examine himself on Oath, however, in support of his version, he examined Muhammad Akbar and Bakhtiar Ahmed in his defence at Ex.11and Ex.12 respectively in which they have corroborated the version of appellant. Thereafter, counsel for accused had closed its’ side vide statement at Ex.13.

7. Learned counsel for the appellant has argued that complainant as well as mashirs of this case are police officials and their evidence cannot be believed without corroboration of independent evidence, which is lacking in this case;thus, according to him, there is violation of Section 103 Cr.P.C. He further argued that as per evidence of defence witnesses, accused was arrested on 06.10.2014 by the Rangers Personnel from his house situated at Lyari, Karachi and nothing was recovered from him and alleged recoveryof hand grenade was foisted upon him by the police.Per learned counsel, appellant had also examined two witnesses to prove his version in his defence, who have alsosupported his version, but learned trial Court has not appreciate the defence version. He also argued that the evidence of complainant and mashirs on record are contradictory to each other on material particulars of the case. During the course of arguments, he has highlighted the number of contradictions in between the evidence of prosecution witnesses, as such, he was of the view the on the basis of contradictory evidence, no conviction cannot be safely relied upon for maintaining conviction, thus, according to him, under the above mentioned facts and circumstances,the appellant is entitled for hisacquittal.

8. Conversely, learned DPG has argued that complainant as well as mashirs including investigating officer have supported the prosecution case and case is proved against the accused beyond the shadow of doubt. He has also argued that defence counsel has not been able to create any dent/defect in the prosecution case and the offence has been proved against the appellant and accused was arrested from the spot and hand grenade was recovered from him in presence of mashirs namely HC Muhammad Hashim and PC Yasir Khan, who have no inimical terms with the appellant;therefore, according to him, prima facie, the appellant is involved in this case, which is serious and heinous in nature.

9. We have carefully heard the learned counsel for the parties and scanned the entire evidenceavailable on record.

10. We have come to the conclusion that prosecution has failed to prove its’ case against the appellant for the reasons that all the pieces of evidence produced by prosecution in this case are weak in nature. Admittedly, it was the case of spy information and complainant ASI Muhammad Dilawar had sufficient time to call independent person either from place of information or from place of incident i.e. Railway Station, Wazeer Mansion, Machar Colony, Karachi and it has been brought in evidence of complainant ASI Muhammad Dilawar that the place of incidentwas a thickly populated area, but no efforts at all were made by him to call independent person of the locality to witness the recovery proceedings; therefore, false implication of the appellant in this case could not be ruled out. It is the case of the prosecution as deposed by complainant ASI Muhammad Dilawar that present accused was arrested at 12:50 a.m. alongwith co-accused Dilawar and recovered one hand grenade and so also charas containing 1200 grams from present appellant. The cases against present appellant and co-accused Dilawar with regard to recovery of charas were separately challaned before the Court of Control of Narcotics Substance, therefore, at this stage, we confine ourselves only to discuss about the recovery of hand grenade allegedly recovered from the present appellant or otherwise. It is claimed by the prosecution that one hand grenade was recovered from the possession of the appellant, but no description/numberof the hand grenade is mentioned either in FIR or in mashirnama of arrest and recovery;while contradicting this fact, PW-3 ASI Syed Laiq of Bomb Disposal Unit in his evidence at Ex.7,produced clearance certificate and inspection report of hand grenade at Ex.7/D and Ex.7/E respectively, showing the number of hand grenade as ARGES 69, colour green and without detonator. Not only this, as per prosecution, the hand grenadewas recovered from the appellant on 13.10.2014, but it was sent to experts on 21.10.2014, after the delay of eight days and during this intervening period, the hand grenade was retained by whom has also not been explained by the prosecution. Clearance certificate and inspection report of hand grenade produced by PW-3 Syed Laiq of B.D.U. at Ex.7/D and Ex.7/E respectively, showing that the alleged hand grenade was without detonator and explosive substance, therefore, under the circumstances, it does not appeal to a prudent mind when a grenade cannot exploit without detonator then why the appellant had kept with him.

11. Admittedly, incident took place in the midnight time. Source of identification has not been mentioned. PW-1/complainant ASI Muhammad Dilawar in his cross examination at Ex.5 deposed that mashirnama of arrest and recovery was prepared on the body of police mobile, while contradicting this fact, PW-2 Muhammad Hashim deposed in his cross examination at Ex.6 that mashirnama of recovery and arrest was prepared in front seat of police mobileon the torch light,but said torch was also not produced in evidence before the trial Court. There are also several circumstances/infirmities in the prosecution case, which have created reasonable doubt about the guilt of the appellant, but the learned trial Court has failed to appreciate the evidence as per settled principle of law and also utterly failed to appreciate the defence version in its judgment.

12. All the above circumstances have proved that neither the incident as alleged, had taken place, nor the recovery, as shown, was effected from the possession of appellant. It is settled principle of law that to extend benefit of doubt there is no necessity to gather many circumstances but even if slightest doubt arises out of prosecution case, is sufficient to extend the benefit of doubt to the accused. In the instant case in view of the discussion whatever discussed hereinabove and the material placed before us has constrained to hold that the prosecution has miserably failed to prove its charge against the appellant beyond any reasonable shadow of doubt. Consequently, this appeal is allowed. The impugned judgment passed by the trial Court is set-aside. Resultantly, the appellant is acquitted of the charge. Appellant is in custody, therefore, jail authorities are directed to release the appellant forthwith, if he is not required in any other case.

JUDGE

Faizan A. Rathore/PA*