HIGH COURT OF SINDH AT KARACHI
Special Criminal Anti-TerrorismAppeals No.08& 12 2017
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Date Order with Signature(s) of Judge(s)
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Present: Mr. Justice Naimatullah Phulpoto, J.
Mr. Justice Abdul Maalik Gaddi, J.
Date of Judgment : 23.11.2017
Appellants : Inamullahthrough
Mr.S. Khizar Askar Zaidi, Advocate.
Respondent : The State through Mr. Muhammad Iqbal
Awan, Deputy Prosecutor General, Sindh.
J U D G M E N T
Abdul MaalikGaddi, J.–Through this common Judgment, we intend to dispose of the captioned appeals filed by the appellant as these appeals relate to common Judgment delivered by the learned trial Court dated 21.12.2016.
2. By means of these appeals, the appellant has assailed the common Judgment dated 21.12.2016 passed by the learned Judge of Anti-Terrorism Court No.IX, Karachi in Special Cases No.B-616 of 2014and B-283 of 2015, under Crime No.134/2014 for offence under Section 4/5 of Explosive Substance Act, read with Section 7 of Anti-Terrorism Act, 1997 andCrime No.135/2014 for offence under Section 23(1)(a) of Sindh Arms Act, 2013,registered at police station AVCC/CIA, Karachi, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellant. For the sake of convenience, it would be appropriate to reproduce the relevant portion of the impugned common judgment, which read as follows:-
“Thus, in view of the above facts and circumstances I have come to the conclusion that the prosecution has successfully been able to prove its case against the accused whereby it was established that an explosive substance viz: hand grenade and a 30 bore pistol along with four live bullets were recovered from the possession of accused and therefore, I have decided to convict the accused Inamullah s/o Ali Hussain as under:-
Section Conviction
01. 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.
02. Section 6(2)(ee) of ATA
1997 Punishable u/s
7(ff) of ATA 1997 r/w
Section 4/5 Explosive
Substance Act to suffer R.I. for fourteen years with forfeiture of his property if any as required
u/s 7(2) of ATA 1997.
The benefits of section 382-B Cr.P.C. are however allowed to be extended in favour of the accused. Accused is present on bail, and he is taken into custody and remanded to jail to serve out his sentences. His bail bonds stand cancelled and surety discharged.”
3. Brief facts of the prosecution case leading to filing of these appeals are that on 09.09.2014,ASI Muhammad Haneef lodged FIRs Nos.134/2014 and 135/2014under Section 4/5 of Explosive Substance Act, read with Section 7 of the Anti-Terrorism Act and Section 23(1)(a) of Sindh Arms Act, 2013 at 0130 and 0150 hoursrespectively, at police station AVCC/CIA Shershah, Karachiagainst the accused alleging therein that on the said date, ASI Muhammad Haneef alongwith his subordinate staff namely HC Irshad Ahmed, PC Muhammad Athar, PC Zaheer Khan, PC Tanveer and PC Abdul Ghafoor,was busy in patrolling duty. During patrolling, he received spy information at Site Area that accused Inamullah involved in many cases, was available armed with weapon at main Paracha Chowk Bus Stop Shershah, Karachi with intention to commit any crime. On receipt of such information, ASI Muhammad Haneef alongwith his subordinate staff proceeded to pointed place and apprehended the appellant. On enquiry, present accused disclosed his name as Inamullah, his personal search was conducted, one hand grenade wrapped in white plastic shopper from his right hand and one 30 bore pistol without number having loaded with 4 live rounds were recovered from his possession. Then accused was arrested. Mashirnama of arrest and recovery was prepared in presence of mashirs namely PC Muhammad Athar and PC Zaheer Khan of AVCC/CIA, Karachi. Thereafter, bomb disposal unit was informed for diffusing the hand grenade. Thereafter, accused and case properties were brought to police station, where two separate FIRs, as stated above, were registered under the above referred sections.
4. It reveals from the record that investigation was entrusted to Inspector Muhammad Yaseen of police station CIA, Karachi. Accused and case properties were also handed over to the investigating officer, who after usual investigation submitted the challan against accused under above referred sections.
5. Both the cases were amalgamated for joint trial on the application of State in terms of Section 21-M of Anti-Terrorism Act, 1997.Learned Judge, Anti-Terrorism Court No.IX, Karachi framed the Charge against the accused under Section 6(2)(ee) of Anti-Terrorism Act, 1997 read with 4/5, Explosive Substance Act, 1908 and Section 23(1)(a) of Sindh Arms Act, 2013. Accused pleaded not guilty and claimed to be tried.
6. In order to substantiate the charge, prosecution examined PW-1 ASI Saleem Akhtar of B.D.U. at Ex.P-1, who produced clearance certificate of hand grenade at Ex.P-1/A,roznamcha entries of departure and arrival at Ex.P-1/B, letter addressed to SSP Special Branch B.D.U. at Ex.P-1/C, inspection report of hand grenade at Ex.P-1/D;PW-2 ASI Muhammad Haneef (complainant) at Ex.P-2, who produced entries with regard to his departure and arrival at Ex.P-2/A & Ex.P-2/B, mashirnama of arrest and recovery at Ex.P-2/C and FIRs at Ex.P-2/D and Ex.P-2/E, roznamcha entry at Ex.P-2/F, memo of inspection at Ex.P-2/G; PW-3 PC Mohammad Athar (mashir of arrest and recovery) at Ex.P-3, PW-4 Inspector Muhammad Yaseen (investigating officer) at Ex.P-4, who produced entries of departure and arrival at Ex.P-4/A and Ex. P-4/B, letter addressed to incharge FSL at Ex.P-4/C, FSL report at Ex.P-4/D, letter addressed to SSP AVCC, Karachi at Ex.P-4/E and Order of Home Department at Ex.P-4/F. These witnesses have been cross examined by the counsel for accused. Thereafter, leaned DDPP closed the prosecution side vide Statement at Ex.7.
7. Statement of accused was recorded under Section 342, Cr.P.C. at Ex.8, in which the accused denied the prosecution allegations and raised plea that he was arrested by police from his house on 03.09.2014 illegally in presence of his family, nothing was recovered from his possession, however, at the request of accused, heexamined on oath at Ex.9 and also examined DWs Ali Hussain, Muhammad Yousuf Rashid and Habibullah in his defence at Ex.10 to Ex.12 respectively to show that accused was arrested by the police prior to registration of false cases.
8. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 21.12.2016, convicted and sentenced the appellant as stated above. Hence, these appeals have been filed by the appellant.
9. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 21.12.2016 passed by the trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.
10. Mr. S. Khizar Askar Zaidi, learned counsel for the appellantcontended that appellant is innocent and has been falsely implicated in the present cases and nothing was recovered from his possessionand the alleged recoveries were foisted upon him. Per learned counsel, in fact accused was arrested by the police from his house on 03.09.2014 at midnight in presence of his father namely Ali Hussain and neighborers namely Muhammad Yousuf Rashid and Habibullah, who in their evidence have supported the version of the appellant. Per learned counsel, prosecution has failed to bring on record the intention of accused as to with what purposes, appellant was carrying hand grenade and according to him, the alleged hand grenade was without detonator. He further submitted that despite the advance information about the alleged availability of the appellant at Paracha Chowk Bus Stop Shershah, Karachi, which was thickly populated area, but no independent person was cited to witness the arrest and recovery proceedings. Therefore, according to him, on these grounds, false implication of the appellant in these cases could not be ruled out. During the course of arguments, learned counsel has taken to us towards evidence of prosecution witnesses and has pointed out various contradictions in between the evidence of prosecution witnesses, but the learned trial Court has not appreciated these aspects of the case, convictedand sentenced the appellant, as stated above. However, he has prayed for allowing these appeals while relying upon the case of Tariq Pervez v. The Statereported as1995 SCMR 1345.
11. Conversely, Mr. Muhammad Iqbal Awan, learned Deputy Prosecutor General while supporting the impugned judgment 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 reasonable dent and defect in the prosecution case and the offence has been proved against the appellant, therefore, according to him, these appeals may be dismissed.
12. We have heard the learned counsel for the parties at a considerable length and have perused the evidence and documents available on record.
13. It reveals from the record that it was the case of spy information.On 09.09.2014, ASI Muhammad Haneef alongwith his subordinate staff proceeded to the pointed place i.e. Paracha Chowk Bus Stop Shershah, Karachi and apprehended the appellant. It has come on record that one hand grenade and one 30 bore pistolwithout number having loaded with 4 live rounds were recovered from the possession of appellant. We are unable to rely upon the evidence of ASI Muhammad Haneef for the reasons that it was the case of prior information and place of incident was thickly populated area as deposed by PW-2, ASI Muhammad Haneef in his evidence at Ex.P-2. We are unable to understand as to why ASI Muhammad Haneef did not associate with him any independent person of the locality to witness the recovery proceedings.According to the prosecution, at the time of arrest of accused, he was armed with weapon and it is also against the nature of criminal to surrender before the police without offering any resistance. It is the case of prosecution that accused was armed with hand grenade and pistol, again it is unbelievable that appellant without causing any harm to the police, was arrested by them. Investigating officer of the case failed to examine any independent person of the locality to ascertain truth. No explanation in this regard has been furnished by the prosecution.
14. We have gone through the evidence of DWsnamely Ali Hussain, the father of appellant, Muhammad Yousuf Rashidand Habibullah, who are neighborers of appellant having no any inimical terms with police,deposed that accused was arrested by police from his house at midnight on 09.09.2014, but defence evidence has not been considered by the trial Court.
15. As observed above, it was the case of spy information and 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 official alone. We are conscious of the fact that the provisions of Section 103, Cr.P.C. are not attracted to the case of personal search of accused in such cases. However, where alleged recovery was made at Paracha Chowk Bus Stop Shershah, omission to secure independent mashirs particularly in the case of spy information cannot be brushed aside lightly by this Court.
16. During the course of arguments, we have gone through the evidence of the prosecution witnesses with the able assistance of the parties counsel and come to this conclusion that the evidence of prosecution witnesses isare contradictory to each other on material particular of the case. For example, it is deposed by the complainant/PW-2 ASI Muhammad Haneef in his cross examination that at the time of leaving the police station for patrolling the “munshi” of police station was also along with them and he was holding the investigation kit. The name of that munshi is the Irshad. However, he admitted that the name of said munshi Irshad is not mentioned in the departure entry available on record at Ex.P-2/A.In mashirnama of arrest and recovery at Ex.P-2/B, number of hand grenade is not mentioned and so also the pistol is without number, but clearance certificate and inspection report at Ex.P-1/A and Ex.P-1/D produced by the PW-1 ASI Saleem Akhtar of B.D.U showing the number of hand grenade as ARGES-69 and without detonator. Likewise, FSL report at Ex.P-4/D, produced by PW-4 Inspector Muhammad Yaseen, showing the rubbed number of pistol. As far as, recovery of hand grenade is concerned, the same as deposed by PW-1 ASI Saleem Akhtar was without detonator. Nothing on record that whether the said grenade was sealed on spot. Moreover, the hand grenade was retained by whom has also not been explained by the prosecution that after its recovery, under whose custody, it was lying. The expert from Bomb Disposal Unit had inspected the hand grenade on 13.09.2014 though the same was recovered on 09.09.2014 (delay of four days) and from 09.09.2014 to 13.09.2014 is also questionable. Similarly, Forensic Laboratory Report on record at Ex.P-4/D shows that weapon viz 30 bore pistol and empties were by the laboratory on 18.09.2014, after the delay of nine days. When confronted the contradictions in the evidence of prosecution witnesses as well as several circumstances/infirmities as noted above,learned DPG has not replied satisfactory.
17. All the above circumstances have proved that neither the incident as alleged, had taken place, nor the recoveries, as shown, were 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, these appeals are allowed. The impugned common 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
JUDGE
Faizan A. Rathore/PA*