HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-TerrorismAppeal No.124 of 2015

Present: Mr. Justice NaimatullahPhulpoto

Mr. Justice Abdul MaalikGaddi

Appellant : Muhammad Aamir @ Lakha

throughMr.Shamsher Abbas, Advocate.

Respondent : The State through Mr. Muhammad Iqbal

Awan,Deputy Prosecutor General, Sindh.

Date of hearing : 27.11.2017

Date of Judgment : 05.12.2017

J U D G M E N T

Abdul MaalikGaddi, J.–Through this appeal, the appellant has assailed the judgment dated 27.05.2015 passed by the learned Judge, Anti-Terrorism Court No.IX, Karachi, in Special Case No.148(III)/2013 (Re: The State v. Muhammad Aamir alias Lakha), arising out of Crime No.501/2013 registered at police station Gizri, under Section 4/5 Explosive Substance Act, 1908 read with Section 7 of the Anti-Terrorism Act, 1997, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellant in point No.2 of the impugned judgment. For the sake of convenience, it would be appropriate to reproduce the finding of point No.2 of impugned judgment, which read as under:-

“Point No.2

In view of above, I am of the view that the prosecution has successfully proved the charge against the accused. Since two parallel penal provision i.e. 6(2)(ee) of ATA 1997 punishable u/s 7(ff) and section 5 of Explosive Substance Act are attracted in this case against the accused and accused is to be inflicted with punishment in one of the either. Therefore, the accused is hereby convicted and sentenced to suffer R.I. for fourteen years and fine of Rs.50,000/- in offence of section 6(2)(ee) of ATA 1997. In case of default in payment of fine the accused shall suffer R.I. for three months more. The benefit of section 382-B Cr.P.C. is extended in favour of the accused.”

2. The brief facts leading to the filing of appeal are that SI Azhar Ali Samo lodged an FIR on 30.11.2013 at 0400 hours’ time, stating therein that on the same date, he alongwith HC Mushtaq, PC Arif Gujar and Driver HC Sikandar left police station under entry No.43 in government mobile for patrolling. During patrolling at different places when at about 0230 hours, they reached at main Gizri road opposite to Darwesh Hotel under the Gizri Bridge, they found one suspect having a bag in his hand standing there who was apprehended by police and on inquiry, he disclosed his name as Muhammad Aamir alias Lakha son of Muhammad Ibrahim. The said bag was taken into possession from the accused and was searched which led to the recovery of one Kalashnikov without butt and the No. “S.123732” was written on the wooden body of such weapon. The No. 48463 was inscribed on the Kalashnikov. One magazine of Kalashnikov containing 10 live bullets were also recovered. On further search, one hand grenade bearing marking No. 69 HDGH ARGES was also recovered from the said same bag. The accused on inquiry disclosed the weapon to be unlicensed. The team of the BDS was informed and called about the recovery of the hand grenade from the spot. Further personal search of the accused led to the recovery of Rs.200/- from the pocket of his pant. The Kalashnikov alongwith magazine was sealed on the spot and hand grenade was taken into possession for getting it inspection. Such memo of arrest and recovery was prepared in the presence of mashirs HC Mushtaq and PC Muhammad Arif. Thereafter, accused alongwith case properties were brought at police station, where FIR wasregisteredunder above referred section.However, separate challan under Crime No.502/2013 registered at police station Gizri, under Section 23(1)(a) of Sindh Arms Act, 2013 was transferred to Sessions Judge, Karachi (South) on Administrative grounds.

3. It appears from the record that after registration of FIR, the investigation was entrusted to Inspector Ali Ahmed, who after usual investigation and completing all formalities,submitted the final report against the appellant in the Court of law.

4. 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/SI Azhar Ali Sano at Ex.6, who produced the entry No.43, memo of arrest and recovery, clearance certificate of BDU, FIR No.501/2013, entry No.54, memo of inspection of the place of incident at Ex.6-A to Ex.6-F respectively;

(ii) Pw-2 SHO Ali Ahmed of police station Gizri at Ex.7;

(iii) PW-3 HC Mushtaq Ahmed at Ex.8;

(iv) PW-4 SI Shabeer Ahmed at Ex.9, who produced copy of entry No.25, letter of SSP Technical Special Branch, Karachi alongwith inspection of hand grenade at Ex.9-A and Ex.9-B.

(v) PC Arif had been given up by the learned Special Public Prosecutor vide statement dated 07.01.2015 at Ex.10;

These witnesses have been cross examined by the counsel for accused. Thereafter, leaned DDPP closed the prosecution side vide Statement at Ex.11.

5. Statement of accused was recorded under Section 342, Cr.P.C.in which he has denied the allegations as leveled by the prosecution and submitted that nothing was recovered from him and he isinnocent. He further stated that he was arrested by the Rangers personnel prior to date of incident from his mohalla during ceremony of “Niaz” in the month of Moharam. He did not examined himself on oath, but examined one Rashid in his defence at Ex.13. Thereafter, counsel for accused had closed its’ side vide statement at Ex.14.

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, which is lacking in this case;thus, according to him, there is violation of Section 103 Cr.P.C. He further argued that accused wasarrested by the Rangers personnel prior to date of incident from his mohalla during ceremony of “Niaz” in the month of Moharamand nothing was recovered from him and alleged recovery of grenade was foisted upon him after showing fake story.Per learned counsel, the present appellant has been acquitted in Crime No.502/2013 registered at police station Gizri, Karachi for offence under section 23(1)(a) of Sindh Arms Act, 2013, by the learned Additional District & Sessions Judge-XI, Karachi (South) vide judgment dated 11.10.2017 under same mashirnama of arrest and recovery. Per learned counsel, appellant had produced one witness to prove his defence theory and defence witnesshassupported the version of the accused, but learned trial Court did not appreciate the defence version. He also argued that the evidence of complainant and mashirs are contradictory to each other on material particulars of the case, therefore, the same could not be safely relied upon for maintaining conviction, as such, he prayed for allowing this appeal.

7. 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 point out any defect in the prosecution case, as accused was arrested from the spot and hand grenade was recovered from the appellant in presence of mashirs namely HC Mushtaq Ahmed and PC Muhammad Arif, who have no inimical terms with the appellant;therefore, according to him, prima facie, the appellant is involved in the case, which is serious and heinous in nature.

8. We have carefully heard the learned counsel for the parties and perused the record with their able assistance.

9. From the above evidence, we have come to the conclusion that the prosecution has failed to establish its’ case against the appellant for the reasons that on the relevant date, the police party headed by SI Azhar Ali alongwith subordinatestaff left police station for patrolling and during patrolling, when they reached at under pass Gizri bridge near Darwesh Hotel, the present appellant was arrested and police recovered from his possessionone hand grenade No.69-HDGR-ARGES and one Kalashnikov bearing No.48463 and No. “S.123732” was written on its wooden body.From the bare reading of the evidence of SI Azhar Ali available on record at Ex.6, showing that place of incident was thickly populated area, despite this fact, complainant had failed to join any independent person of the locality to witness the arrest and recovery proceedings, but it was not done in this case. It is the case of prosecution that at the time of arrest, accused was armed with hand grenade and Kalashnikov, it was unbelievable that the appellant without causing any harm to the police, was arrested by police. SI Azhar Ali failed to examine independent person of the locality to ascertain truth. DW Rashid, who is resident of mohalla of accused,has deposed that appellant was arrested by Rangers personnel in his presence.

10. The evidence of prosecution witnesses available on record showed number of contradictions in their evidence on material particulars of the case. For instance, complainant/SI Azhar Ali has deposed in his cross examination that the accused was caught hold by HC Mushtaq at first, while contradicting this fact, HC Mushtaq has deposed in his evidence that complainant/SI AzharAli has arrested the accused first. Not only this, complainant/SI Azhar Ali deposed in his cross examination that arrest of accused and preparation of recovery memo was completed within one hour and fifteen minutes, while contradicting this fact, PW-3 HC Mushtaq Ahmed deposed in his cross examination that such formalities were completed within 10/15 minutes. We have also noted that FIR and mashirnama of arrest and recovery showing the number of hand grenade as 69-HDGR-ARGES, whereas, clearance certificate and inspection report of hand grenade issued by Bomb Disposal Unit dated 30.11.2013 available on record at Ex.6/C and Ex.9/C respectively showing the number of hand grenade as ARGES-69, which is different from the number mentioned in the FIR and memo of arrest and recovery. Besides, clearance certificate showing the said hand grenade was with detonator, whereas, inspection report of Bomb Disposal Unit showing that said hand grenade was without detonator. These are the material contradictions, which goes to the root of the case andthe prosecution has also failed to examine the witness of Bomb Deposal Unit to ascertain the truth. Therefore, under the aforementioned facts and circumstances of the case, false implication of the appellant in this case without independent corroboration could not be ruled out.

11. Learned counsel for the appellant has placed on record the certified true copy of the judgment dated 11.10.2017 passed by the learned Additional Sessions Judge-XI, Karachi (South), whereby the appellant has been acquitted in Crime No.502/2013 registered at police station Gizri, under Section 23(1)(a) of Sindh Arms Act, 2013,which is offshoot of this case in which mashirnama of arrest and recovery was also same, but admittedly, the said judgment was not challenge by prosecution before any appellate forum; thus, it appears that the said judgment attained finality, butthis aspect of the case has also not been appreciated by the trial Court. When confronted this fact to learned DPG, he frankly stated that on same set of evidence, accused was acquitted in connected case.

12. On overall assessment of entire evidence in the case and on considering of the surrounding circumstances, we are of the considered view that the case against the appellant is doubtful in nature and the learned trial Court has failed to appreciate the contradictions, as highlighted above, as well as the defence plea put forwarded by the appellant.

13. 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.

14. While respectfully relying upon the case laws,referred 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 sentence recorded by the Judge, Anti-Terrorism Court-IX, Karachi vide judgment dated 27.05.2014are set-aside. Appellant is acquitted of the charge. The appellant shall be released forthwith, if not required in any other case.

JUDGE

Faizan A. Rathore/PA*