IN THE HIGH COURT OF SINDH, KARACHI

Criminal Anti-Terrorism Appeal No.105of 2014

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Date Order with Signature(s) of Judge(s)

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Present:Naimatullah Phulpoto, J.

Abdul MaalikGaddi, J.

Mukhtiar Ahmed @ Atato

son of Abdul Fateh …………. Appellant

versus

The State …………. Respondent

Date of hearing: 23.10.2017

Date of Decision: 31.10.2017

Mr. Nadeem Ahmed Azar, Advocate alongwith Appellant.

Mr. Muhammad Iqbal Awan, Deputy Prosecutor General, Sindh.

J U D G M E N T

Abdul MaalikGaddi, J.–Throughinstant appeal, the appellant has challenged the Judgment dated 28.10.2014 passed by the learned Judge, Anti-Terrorism Court No.VIII, Karachi in Special Case No.113 of 2013 (Re: The State v. Mukhtiar Ahmed@ Atato) arising out of Crime No.288 of 2013registered under Section 4/5 Explosive Substance Act, of police station Baghdadi, Karachi, whereby the learned trial Court after full dressed trial,convicted and sentenced the appellant in point No.02 of the impugned judgment. For the sake of convenience, it would be appropriate to reproduce Point No.2 of the said judgment, which reads as under:-

“POINT NO.2.

The sequence of the discussion is that the prosecution has successfully proved the charge of an offence U/s 5 of Explosive Substance Act, 1908 beyond any reasonable doubt. Accused is guilty of an offence U/s 5 of Explosive Substance Act, 1908 and he is awarded sentence to RI for 3 years. The accused is first offender having no history of his involvement in such like cases of sole bread earner of his family thus the court has taken lenient view and awarded lesser sentence in view of the case Muhammad Yaseen Vs the State NLR 1984 Criminal SC 314, Law notes 1984 SC 1272, PSC 1984 SC-1030. Accused is also extended to the benefit of Section 382-B Cr.P.C. Accused is in custody he may be remanded back with conviction warrant to serve out sentence awarded to him.”

2. The brief facts of the prosecution case as per FIR are that on 14.10.2013 the complainant Muneer Hussain SHO of police station Baghdadi alongwith his subordinate staff namely ASI Azhar Hussain, HC Sikandar Ali, PC Zubair Afridi, Driver Liaquat Ali and other staff including APC staff was on patrolling duty vide entry No.30. During patrolling they had received secrete information regarding the presence of wanted criminals of Lyari Gangwar namely Mukhtiar @ Atato alongwith 7/8 companions at own Addah, Madni Corner, Shah Waliullah Road, Karachi. On receipt of this information they rushed to the intimated place and at about 0100 hours reached there. On their arrival the culprits had started firing, police party had also fired in their defence, after exchange of firing the accused Mukhtiar @ Atato, Imran @ Rajab and Ali Akber were apprehended while remaining made their escaped good. Accused Mukhtiar @ Atato having a SMG loaded with magazine containing 05 live bullets. On his body search Charas weighting 1300 grams and two hand grenades were recovered. Accused Imran @ Rajab had also SMG loaded with 03 live bullets in magazine and one in chamber. On his body search Charas weighting 900 grams was recovered. Accused Ali Akber had also one 9MM pistol and Charas weighting 700 grams. Accused had also failed to produce the license for the recovered weapons. All three accused were arrested on the spot, memo of arrest and recovery was prepared accordingly. Accused and case property were brought to police station. Separate cases for the offence of encounter, recovery of unlicensed weapons, explosive substance and narcotics were registered separately. Hence, this FIR.

3. It appears from the record that after registration of FIR, the investigation was carried by SIP Rao Anwar, who after recording the statementsof PWs under Section 161 Cr.P.C.,submitted the final report against the appellant in the Court of law.

4. It also appears from the record that in order to establish accusation against the appellant/accused, prosecution had examined in all six witnesses namely PW-1 Sikandar Ali at Ex.6;PW-2 SI/SHO Muneer Hussain (complainant)at Ex.7, he produced attested copy of departure entry at Ex.7/A, attested copy of memo of arrest and recovery at Ex.7/B, FIR at Ex.7/C, recorded entry of roznamcha at Ex.7/D and property as Article at Ex.7/E; PW-3 Ghulam Mustafa at Ex.8, he produced letter at Ex.8/A, clearance certificate at Ex.8/B, departure and arrival entry at Ex.8/C, examination report at Ex.8/D; PW-4 Azhar Hussain at Ex.9;PW-5 Rao Muhammad Anwar at Ex.10, he produced the letter at Ex.10/A, inspection vide entry number at Ex.10/B and produced the same at Ex.10/C; PW-6 Saeed Alam at Ex.11, he produced the entry number at Ex.11/A. Counsel for the appellant cross examined the prosecution witnesses.Thereafter, vide statement as Ex.12, learned Deputy District Public Prosecutor for the State closed the side of prosecution.

5. It reveals from the record that the appellant in his statement under Section 342 Cr.P.C. at Ex.13of the R&Pshas denied the case and claim of the prosecution by stating that he is innocent and has been falsely implicated by the complainantin this case with malafide intention as nothing was recovered from his possession. He further stated that he was apprehended by the Rangers officials from his house,detained him for two days and after interrogation Rangers officials had handed over his custody to the police, who demanded money for his release, on his refusal police had falsely implicated him in the present case, however, appellant did not examine himself on oath nor led any evidence in support of his defence.

6. 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. He has further argued that no inhabitants of locality were made as mashirs of recovery and thus, there is violation of Section 103 Cr.P.C. He also argued that the evidence of complainant and mashirs are contradictory which cannot be relied upon. He also submitted that accused was arrested by the Rangers officials, who handed over the custody of the appellant to the police. He also contended that complainant/police had booked the appellant in Narcotics case in Crime No.287 of 2013 under Section 9-C of CNS Act, 1997 registered with police station Baghdadi, Karachi, in which he has been acquitted under same mashirnama. He also contended that alleged recovered Hand Grenade is not serviceable as the same was without detonator. In this respect, he has drawn our attention towards the Clearance Certificate of Bomb Disposal Unit available at page 45 of the paper book and he was of the view that under these circumstances, the appellant is entitled for his acquittal from the said case and this appeal may be allowed.

7. Conversely, learned DPG has argued that the 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, this appeal may be dismissed.

8. We have heard the learned counsel for the appellant as well as learned DPG and perused the evidence and documents so brought on record.

9. We have carefully perused the evidence and come to the conclusion that prosecution has failed to prove its case against the appellant for the reasons that it was the case of spy information 7/8 wanted criminals of Lyari Gangwar including the appellant were available at Madni Corner, Shah Waliullah Road, Lyari, Karachi, despite thatfact SHO Muneer Hussain of police station Baghdadi did not bother to associate with him any independent person of the locality from the place of information or place of incident to witness the arrest and recovery proceedings, although, it has been brought on record that place of incident was a populated area, thus, it appears that availability of independent person from the said place cannot be denied. No plausible explanation was offered by the prosecution why police did not cite any independent person to witness the arrest and recovery proceedings. According to prosecution evidencewhen police party reached to arrest the wanted criminals, who were 7/8 in numberincluding present appellant ofLyari Gangwars at aforesaid place, they upon seeing the police party, started firing upon them and in retaliation, police party also fired upon them with sophisticated weapons, but surprisingly nobody received any injury from either side. Even no bullet was hit to police vehicle. During the course of arguments, we had specifically asked the question from the learned DPG whether after the incident, the empties of bullets and SMG recovered from the appellant were sent to FSL for examination, he had no reply. However, we have perused the case file, but no report of FSL is available on record regarding examination of SMG and empties of bullets recovered from the place of incident.Therefore, on this ground false implication of appellant in this case could not be ruled out.We have gone through the evidence of PW-2 complainantMuneer Hussain Chandioand found that his evidence is contradictory to documentary evidence. For example, the said witness in his cross examination deposed that recovery and arrest memo was written by HC Jan Muhammad at his dictation at the spot, although, the said HC Jan Muhammad has neither been cited as Mashir nor his name is mentioned in the roznamcha entry of departure at Ex.7/A on record.It is pertinent to mention here that roznamcha entry, Ex.7/A produced by the complainant shows that hehad handed over the charge of police station to HC Jan Muhammad before departure from police station Baghdadi, Karachi.It is established that said HC Jan Muhammad was not accompanied with them at the time of alleged incident, which shows that memo of arrest and recovery has not been prepared at the place of incident, which creates serious doubt in the prosecution story. It also appears from the record that another FIRbearing Crime No.287 of 2013 was lodged police station Baghdadi, Karachi under Section 9(c) of C.N.S. Act, 1997 against the present appellant under same mashirnama of arrest and recovery, in which complainant/SHO in his evidence deposed that memo of recovery and arrest was written by HC Zubair Hussain under his dictation on the spot. In the said crime HC Zubair Hussain hadalso not been cited as mashir nor his name is mentioned in the roznamcha entry of departure. This fact is clearly from the Judgment dated 28.04.2014 passed by the learned Judge, Special Court-II (C.N.S.), Karachi in Special Case No.1047 of 2013, and in thesaid case, appellant has been acquitted under Section 265-H(1), Cr.P.C. The said judgment has not been challenged by the prosecution before any competent forum of law, as such, said judgment attained finality. When confronted the above facts with the learned DPG, was not able to controvert the same, however, he admits that common mashirnama of the said cases was prepared in both cases.

10. We have also gone through the evidence of PW-3 SI Ghulam Mustafa of Bomb Disposal Unit, Artillery Maidan, Karachi at Ex.8 and during his evidence, he produced Clearance Certificate at Ex.8/B showing that hand grenade recovered from the appellant was without detonator,while in his cross examination, the said witness admitted that said hand grenade cannot be used without detonator, therefore, under the circumstances, it does not accept to a prudent mind when a grenade cannot exploit without detonator then why the appellant had kept with him.

11. For the above stated reasons, there are several circumstances/infirmities in the prosecution case, which have created reasonable doubt about the guilt of the appellant.

12. In case of Tariq Pervez v. The State reported as 1995 SCMR 1345, the Hon’ble Supreme Court has observed as follows:-

“It is settled law that it is not necessary that there should many circumstances creating doubts. If there is single circumstances, which creates reasonable doubt in the prudent mind about the guilt of the accused, then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.”

Similar view has also been taken in the case of Muhammad Akram v. The State reported as 2009 SCMR 230.

13. While respectfully relying upon the case lawsreferred to above, we have no hesitation to hold that prosecution has failed to establish its case against the appellant beyond reasonable doubt. Therefore, by extending the benefit of doubt, this appeal is allowed. The conviction and sentences recorded by the Judge, Anti-Terrorism Court-VIII, Karachi vide judgment dated 28.10.2014 are set-aside. Appellant is acquitted of the charge. Appellant is on bail. His bail bond stands cancelled and surety is hereby discharged.

JUDGE

Faizan A. Rathore/PA*