HIGH COURT OF SINDH AT KARACHI
Special Criminal Anti-Terrorism Jail Appeal No.148 of 2017 alongwith
Special Criminal Anti-TerrorismAppeals No.149, 150, 151 & 152 of 2017
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Date Order with Signature(s) of Judge(s)
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Present:NaimatullahPhulpoto, J.
Abdul MaalikGaddi, J.
Date of hearing : 07.11.2017
Date of Judgment : 14.11.2017
Appellants : Asmatullah, Mazhra @ Azhar&Aamir
throughMr. S. KhizarAskarZaidi, Advocate.
Appellant : Jalal through Mr. Muhammad Akbar, 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 appellants as these appeals relate to common Judgment delivered by the learned trial Court dated 29.05.2017.
2. By means of these appeals, the appellants have assailed the common Judgment dated 29.05.2017 passed by the learned Judge of Anti-Terrorism Court No.I, Karachi in Special Cases No.2090 to 2095 of 2016, under Crime No.427/2016 for offence under Section 353/324/34 PPC read with Section 7 of Anti-Terrorism Act, 1997, Crime No.428/2016 for offence under Section 23(1)(a) of Sindh Arms Act, 2013, Crime No.429/2016for the offence under Section 23(1)(a) of Sindh Arms Act, 2013, Crime No.430/2016 for offence under Section 4/5 Explosive Substance Act, 1908, Crime No.431/2016 for offence under Section 23(1)(a) of Sindh Arms Act, 2013 and Crime No.432/2016 for offence under Section 23(1)(a) of Sindh Arms Act, 2013, registered at police station Surjani Town, Karachi, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellant in point No.3 of the common judgment. For the sake of convenience, it would be advantageous to reproduce the findings of Point No.3, which read as follows:-
“POINT NO.3.
In view of my findings on points No.1 & 2, the prosecution has been able to prove its charge against the accused Asmatullah son of Allah Ditta, Mazhra @ Azhar son of Afzal, Aamir son of Noor Muhammad and Jalal son of Farzand Ali beyond any shadow of doubt, I therefore, convict them u/s 265-H(2) and sentence them R.I. for five years each, with fine of Rs.20,000/- each, for the offence punishable under section 7(h) of Anti-Terrorism Act, 1997, in case of non-payment of fine, they will suffer S.I. for 6 months more. I also convict and sentence them R.I. for ten years each with fine of Rs.20,000/- each for offence punishable under section 7(b) of Anti-Terrorism Act, 1997, in case of non-payment of fine, they will suffer S.I. for 6 months more. I also convict and sentence them R.I. for five years each with fine of Rs.20,000/- each for the offence punishable under section 23(1)(a) of Sindh Arms Act, 2013, in case of non-payment of fine, they will suffer S.I. for 6 months more. I also convict and sentence accused Mazhra @ Azhar son of Afzal R.I. for 14 years, for the offence punishable u/s 7 (ff) of Anti-Terrorism Act, 1997. All the sentences shall run concurrently. The benefit of section 382-B Cr.P.C. is also extended to them. All the four accused present in custody, are remanded back to serve out the sentences.”
3. Brief facts of the prosecution case as disclosed in the FIR are that on 06.10.2016, the complainant SIP Muhammad Hanif registered FIRs of above crime numbers at police station Surjani Town, Karachi stating therein that on receiving intelligence information, three police parties were constituted. It is further stated that complainant started search operation of village Saifal Mari. In the meantime, four accused persons emerged on two motorcycles and on seeing police party, they started firing upon the police and police also fired in their defence. In the result, two accused Asmatullah son of Allah Ditta, Mazhra @ Azhar son of Afzal became injured and fell down and remaining two accused surrendered before the police. Police apprehended all the four accused. On the personal search of accused Asmatullah, police recovered one 30 bore pistol without number from his right hand with six live bullets and Rs.580/- from his possession. From the possession of accused Mazhra @ Azhar, one 30 bore pistol with five live bullets without number from his right hand, one hand grenade No.RGO-78 from side pocket of his trouser and Rs.500/- from second side pocket of his trouser were recovered. From the possession of accused Aamir, one 30 bore pistol bearing No.1341 with seven live bullets, one mobile phone Nokia and Rs.550/- were recovered and from the possession of accused Jalal, one 30 bore pistol without number with five live bullets and Rs.310/- were recovered. Both motorcycles of accused were also taken into custody. Police also recovered six empties of SMG, four empties of MP-5 and seven empties of 30 bore pistol from place of incident. The official of Bomb Disposal Unit was informed on the spot. Both injured accused were shifted to AbbasiShaheed Hospital in Chippa Ambulance for treatment, hence, present FIRs were registered.
4. After usual investigation, challan was submitted against appellants/accused under above referred sections. Learned trial Court amalgamated the aforesaid cases with main case for joint trial, in terms of Section 21-M of Anti-Terrorism Act, 1997.
5. Trial Court framed Charge against accused on 24.02.2017 under the above referred sections. Accused pleaded not guilty and claimed their trial.
6. In order to prove the accusation against the appellants,prosecution had examined following witnesses:-
(i) PW-1/mashir ASI Liaquat Ali at Ex.5, he produced memo of arrest and recovery, sketches of pistols, letter addressed to MLO AbbasiShaheed Hospital for medical treatment of accused and memo of inspection of place of incident at Ex.5/A to Ex.5/Drespectively;
(ii) PW-2/complainant Sub-Inspector Muhammad Hanif at Ex.6, he produced copy of roznamcha entry No.50, FIR No.427/2016 to FIR No.432/2016, roznamcha entry No.61, Medico Legal Certificates of accused Asmatullah and Mazhra @ Azhar and clearance certificate, issued by the official of Bomb Disposal Unit at Ex.6/A to Ex.6/K respectively;
(iii) PW-3/I.O. Inspector Muhammad UrsRajar at Ex.7, he produced roznamcha entry No.70 and roznamcha entry No.3, letter addressed to SP Technical BDU Special Branch for obtaining final report of hand grenade, letter addressed to Incharge FSL for inspection of pistols, bullets and empties, order of SP Investigation dated 10.10.2016, letter addressed to Secretary, Home Department, Government of Sindh, Karachi for obtaining sanction order, report of FSL, final report of Bomb Disposal Unit and permission accorded by the Government of Sindh, Home Department at Ex.7/A to Ex.7/I respectively;
These witnesses have been cross examined by the advocate for accused. Thereafter, leaned DDPP closed the prosecution side vide Statement at Ex.8.
7. Statements of accused under Section 342,Cr.P.C. were recorded separately at Exs.9 to 12. Accused claimed their false implication in the present cases and denied the prosecution allegations.Accused Asmatullah in his statement recorded under Section 342, Cr.P.C. at Ex.9, stated that one ASI Sarfarazwas his neighborer, who was teasing him and his family and on his instance, SHO, police station Khawaja Ajmer Nagri took him from his house on 01.01.2016 and after four days, handed over him to SHO, police station Manghopir, who involved him in this case through SHO, police station Surjani Town, Karachi for the reasons that he failed to pay the bribe. Accused Mazhra @ Azhar in his statement recorded under Section 342, Cr.P.C., stated that on 01.10.2016, he went to “Manghopir Shrine” with his grandmother, but police took him from that “Mazar” and after four days, blind folded him and took him to some place, where police fired at his leg and caused injuries to him and then involved him falsely in this case in order to save their own skin. Accused Aamir in his statement recorded under Section 342, Cr.P.C., stated that he has been involved at the instance of SHO, police station Surjani Town, Karachi. Neither encounter had taken place nor anything was recovered from his possession and on 04.10.2016, he was taken away by the police from near the house, while he was coming on his motorcycle towards his house.Accused Jalal in his statement recorded 342, Cr.P.C., stated that he was booked in the present case at the instance of SHO, police station, Surjani Town. Neither encounter had taken place nor anything was recovered from his possession. On 04.10.2016 at about 8:00 p.m., he was coming from his shop and when reached near his house, police took him with them and demanded illegal gratification, when he failed to fulfill their illegal demands, they booked him in the present cases. Accused neither examined themselves on oath nor led any evidence in their defense.
8. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 29.05.2017, convicted and sentenced the appellants as stated above. Hence, these appeals have been filed by the appellants.
9. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 29.05.2017 passed by the trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.
10. M/s. S. KhizarAskarZaidi and Muhammad AkbarKhan,learned counsel for the appellantscontended that appellantsare innocent and have been falsely implicated in the present cases. Per learned counsel, neither encounter had taken place, nor accused were arrested from the alleged place of incident. It is further contended that nothing was recovered from their possession; the alleged recoveries have been foisted upon them by the police to show their efficiency. They further contended that on 01.01.2016, accused Asmatullah was taken away by SHO, police station Khawaja Ajmer Nagri from his house at the instance of one ASI Sarfaraz and after four days, handed over him to SHO, police station Manghopir, who involved him in these cases through SHO, police station Surjani Town, Karachi, for the reasons that he failed to pay bribe to them. They further contended that accused Asmatullah and Mazhra @ Azharwere made injured while taking them at some abandoned place, thereafter, they were falsely implicated in these cases. Per learned counsel, there are major contradictions in the evidence of witnesses, examined by the prosecution. The complainant SIP Muhammad Hanif has stated in cross examination that SHO, police station Surjani Town had not come to place of incident, whereas, mashir of arrest and recovery has stated that SHO, police station, Surjani Town, had come at place of incident.Appellant Jalal was juvenile at the time of incident and recovery was also foisted upon him.He further contended that complainant had alleged in the FIR that tyre of one police mobile was burst due to firing of accused as well as bullet hit to one police mobile, but investigating officer replied in cross examination that no damage was caused to police mobile. The prosecution had also failed to examine Medico Legal Officer.No harm have been caused by the accused, as hand grenade allegedly recovered from Mazhra @ Azharwas without detonator, beside it was sent to expert for examination after the delay of eight days, for which no plausible explanation was furnished by the police, but the learned trial Court has failed to appreciate all these legal aspects and passed the impugned common judgmentwithout appreciating evidence according to settled principles of law.
11. Conversely, Mr. Mohammad IqbalAwan, learned Deputy Prosecutor General while supporting the impugned judgment argued that at the time of incident, the accused deterred the police party from performing their lawful duties with intention to commit their murder and police also fired in their defence and during encounter, accused Asmatullah and Mazhra @ Azharhad received bullet injuries at their legs. In the meantime, police arrested the accused in presence of Mashirs, such mashirnama was prepared on spot. Thereafter, accused and case properties were brought to police station and aforesaid FIRs were lodged.
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. After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial. It is the settled principle of law that burden is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view of this basic touchstone of criminal administration of justice, we have examined the ocular evidence as well as circumstantial evidence, alongwith impugned common judgment.
14. 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 in between the accused and police party with sophisticated weaponsfor about five minutes, as stated by Complainant/Sub-Inspector, Muhammad Hanif in his evidence at Ex.6, but surprisingly, not a single injury was caused to any police official.He further deposed that during encounter, accused Asmatullah and Mazhra @ Azharreceived bullet injuries at their legs, as such, they were arrested in injured condition alongwith co-accused and were shifted to AbbasiShaheed Hospital for treatment and obtained their Medical Certificates available on record at Ex.6/I and Ex.6/J,from MLO, Dr. Muhammad Saleem, but the prosecution has failed to produce the concerned doctor in evidence, who had examined and medically treated the accused Asmatullah and Mazhra @ Azhar.The evidence of said doctor was necessary to have been produced to corroborate the prosecution case, particularly, with regard to nature of injuries received by the said accused, but no such evidence was produced. Even otherwise, no explanation in this behalf has been tendered by prosecution to justify the non-production of medical evidence.Therefore, no reliance can be placed safely on Ex.6/I & Ex.6/J (medical reports). The act of withholding of most material witness would create an impression that the witness if would have been brought in to witness box, he might not have supported the prosecutionand in such eventuality, the prosecution must not be in a position to avoid the consequences; hence, a dent has been caused to the case of the prosecution. On query, learned DPG has also admitted that no blood was also found at the vardaat.
15. It has also been brought on record that the incident had took place in Saifal MariVillage, itwas surrounded by houses and alleged encounter had continued for five minutes in between police and accused, but surprisingly, neither during occurrence nor after the occurrence, anyone from public reached to the spot to witness the incident.As observed above, the instant took place in Saifal Mari Village, which is populated area, then why the police did not call any private person to act as mashir of arrest and recovery proceedings. No explanation in this behalf has also been furnished, as such, under these circumstances, false implication of the accused in these cases on this ground could not be ruled out.
16. We have gone through the evidence of the prosecution witnesses on record with the able assistance of the parties counsel and found the same contradictory on material particulars; therefore, the same could not be safely relied upon for maintaining the conviction. For example, PW-1/mashir of arrest and recovery, ASI ChaudhryLiaquat Ali has deposed that SHO, police station Surjani Town, had come to the place of incident, whereas,complainant SI Muhammad Hanif in his cross examination while contradicting this fact,deposed that SHO, police station Surjani Town was not with them at the time of incident. Likewise, PW-2/complainant ASI Muhammad Hanif in his evidence deposed that tyre of police mobile had burst due to firing and mobile was also damaged, whereas, PW-3/Investigating Officer Inspector Muhammad UrsRajar in his evidence while contradicting this fact hasdeposed that there was no bullet mark at police mobile. No damage was also caused to police mobile. Similarly, PW-1 ASI ChaudhryLiaquat Ali deposed that they went to place of incident in a private car, whereas, the other witnesses did not disclose that on which vehicle they went to the place of incident. It is highly questionable that private car was used by police for official duty.All these contradictions lead to us that the incident had not taken place in a fashion, as alleged by the prosecution.
17. It is also the case of prosecution that after the incident was over, the complainant allegedly recovered one hand grenade No.RGO-78, as mentioned in FIR and mashirnama of arrest and recovery, from the possession of accused Mazhra @ Azhar, but the inspection report at Ex.7/H showed the number of hand grenade as RGD-78. There is a difference with regard to number of hand grenade; prosecution could not explain this ambiguity, however, the inspection report shows that the same was also without detonator. It was allegedly recovered on 06.10.2014, but inspection report shows that it was inspected on 14.10.2016, after the delay of eight days.Moreover, the hand grenade was retained by whomduring this intervening period has also not been explained by the prosecution that after its recovery under whose custody, it was lying. Prosecution has also not produced Bomb Disposal Expert for his evidence. Safe custody of hand grenade has not been proved.As far as, the alleged recovery of pistols and empties are concerned, it is mentioned in the mashirnama of arrest and recovery that all the pistols were without numbers except one pistol bearing No.1341, however, the examination report on record at Ex.7/G showing that the numbers of weapons were rubbed except one pistol bearing No.1341. When confronted with the contradiction and discrepancies in the statement of prosecution witnesses, learned DPG has not replied satisfactorily.
18. In view of above, we have considered the version of both the parties put forward by them through evidence and put the same in juxtaposition then we found that the version of the appellants seemto be more plausible and convincing while the version of the prosecution appears to be doubtful.
19. 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 appellants. 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 appellants 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 appellants are acquitted of the charge. Appellants are in custody, therefore, jail authorities are directed to release the appellants forthwith, if they are not required in any other cases.
JUDGE
Faizan A. Rathore/PA* JUDGE