HIGH COURT OF SINDH AT KARACHI
Special Criminal Anti-Terrorism Appeals No.261&262of 2016
-------------------------------------------------------------------------------------
Date Order with Signature(s) of Judge(s)
-------------------------------------------------------------------------------------
Present:NaimatullahPhulpoto, J.
Abdul MaalikGaddi, J.
Date of hearing :08.11.2017
Date of Judgment : 16.11.2017
Appellants : Sansar Ali Abro
throughMr. QamarIqbal, 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 29.09.2016.
2. By means of these appeals, the appellant has assailed the common Judgment dated 29.09.2016 passed by the learned Judge of Anti-Terrorism Court No.V, Karachi in Special Cases No.252 and 200 of 2015under Crime No.432/2014 for offence under Section 23(1)(a) of Sindh Arms Act, 2013 and Crime No.433/2014 for offence under Section 4/5 Explosive Substance Act, 1908 read with Section 7 of Anti-Terrorism Act, 1997 registered at police station CID Sindh, Karachi, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellant in point No.4 of the common judgment. For the sake of convenience, it would be advantageous to reproduce the relevant portion of findings of Point No.4, which reads as follows:-
“POINT NO.4.
On the reasons as discussed in point No.1 the accused Sansar Ali Abro son of Ranjhan Ali Abro is acquitted u/s 265-H(i)Cr.P.C. in Special Case No.251/2015 vide Crime No.431/2014 u/s 353/324/34 PPC of P.S. CID Sindh Karachi. The accused is however, proved guilty for the offence u/s 23(1)(a) of Sindh Arms Act and u/s 7(1)(ff) of ATA, 1997 accordingly the accused Sansar Ali Abro son of Ranjhan Ali Abro is convicted for the offence u/s 23(1)(a) of Sindh Arms Act, 2013 and sentenced to undergo R.I. for 07 years and to pay fine of Rs.30,000/- and in case of default in payment of fine he shall further undergo three months S.I. in Special Case No.252/2015, Crime No.432/2014 of P.S. CID Sindh Karachi, the accused Sansar Ali Abro son of Ranjhan Ali Abro is also convicted for the offence u/s 7(1)(ff) of A.T.A., 1997 and sentenced to R.I. 14 years in Special Case No.200/2015, Crime No.433/2014 of P.S. CID Sindh, Karachi.Both the sentences shall run currently. The benefit of Section 382-B Cr.P.C. shall be extended to the accused from the date of his arrest i.e. 14.11.2014.”
3. Brief facts of the prosecution case as disclosed in the FIR are that on 14.11.2014, ASI Muhammad SalehSolangi of CTD Garden Operation, received information that six terrorists belonging to a Tanzeem were present at Gulshan-e-Jamal Service Road near Expert Pizza with intent to commit offence. He alongwith his party reached at the pointed place, found six culprits there.As soon as they alighted from police mobile those culprits started firing upon them. It is alleged that ASI Muhammad SalehSolangi fired in defence from PCs Meer Hassan, Mehmood Khan from their SMGs but five culprits succeeded to run away and the present accused was apprehended. He was searched and one pistol 30 bore with magazine 03 bullets and one in chamber recovered from his fold of shalwar besides cash Rs.250/- also recovered and he disclosed the name of absconding accomplices as Irfan, Akram, Zahid, Naved and Momin. The accused was arrested at the spot under mashirnama. ASI SalehSolangi also secured six empties of 30 bore, 02 empties of 9mm and 04 empties of SMG. He registered the FIRs under above referred sections on behalf of State.The investigation was assigned to SIP Zafar Abbas whom the said ASI SalehSolangi handed over the custody of accused, case property and other papers. During interrogation, the accused volunteered to produce weapon and grenade from his house, hence, SIP Zafar Abbas took the accused in custody to his house situated near Achanak Hotel Bus Stop U-4. Accused himself opened the house and from a room, he produced one blue colored shopper which was kept behind the Almarih. The shopper was checked it contained 06 kg. explosive substance, two hand grenades, 03 meter detonator wire and two non-electronic detonator. These articles were seized by the SIP Zafar under mashirnamaand BDU was called. At police station he registered FIR No.433/2014, under Section 4/5 of Explosive Substance Act, 1908.Thereafter, investigation was entrusted to Inspector ChaudhryGhulamSafdar, who after usual investigation, submitted the challans against accused Sansar Ali Abro under above referred sections before the trial Court.
4. 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 20.01.2016 under the above referred sections. Accused pleaded not guilty and claimed his trial.
6. At the trial, prosecution had examined following witnesses:-
(i) PW-1 ASI Muhammad SalehSolangi at Ex.8, who produced copy of entry of departure, mashirnama of arrest and recovery, FIR No.431/2014 and FIR No.432/2014, entries, memo of inspection of place of incident at Ex.8/A to Ex.8/G respectively.
(ii) PW-2 PC Mir Hassan at Ex.9.
(iii) PC Mehmood Khan was given by the prosecution vide statement dated 14.03.2016 at Ex.10.
(iv) PW-3 PC Usman Ali at Ex.11, who produced memo of arrest and recovery, memo of inspection of place of incident at Ex.11/A and Ex.11/B respectively.
(v) PW-4 Sub-Inspector Zaffar Abbas at Ex.12, who produced entries No.38 and 41, FIR No.433/2014, application for CRO, letter to FSL, FSL report at Ex.12/A to Ex.12/F respectively.
(vi) PW-5 SIP Ghulam Mustafa Arain of Bomb Disposal Unit at Ex.13, who produced entry No.13, letter for examination of explosive substance, clearance certificate, inspection report at Ex.13/A to Ex.13/D respectively.
(vii) PW-6 Inspector ChaudhryGhulamSafdar at Ex.14, who produced station diaries, letter wrote of government for permission at Ex.14/A to Ex.14/C respectively.
Thereafter, leaned DDPP closed the prosecution side vide Statement dated 12.07.2016 at Ex.15.
7. Statement of accused under Section 342 Cr.P.C. was recorded at Ex.16. Accused claimed his false implication in the present cases and denied the prosecution allegations by stating that he was taken from his house by the Rangers, three days prior to lodging of FIRs, thereafter, handed over him to police, who demanded bribe from him for release, as he could not pay bribe to them, they involved him in the instant cases. He further stated that he was innocent and nothing was recovered from him.Pistol and explosive have been falsely foisted upon him. Accusedhad examined himself on oath and pleaded innocence before the trial Court.
8. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 29.09.2017, 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 29.09.2017 passed by the trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.
10. Mr. QamarIqbal, learned counsel for the appellant contended that complainant as well as mashirs of this caseare police officials and their evidence cannot be believed without corroboration of independent evidence. He has further argued that despite the fact that incident took place in a populated area, no inhabitantsof locality were made as mashir of arrest and recovery and, thus, there was violation of Section 103, Cr.P.C. He also argued that evidence of police officials was contradictory, which could not be relied upon for convicting the appellant. Per learned counsel,accused was arrested by Ranger officials from his house, three days prior to lodging of FIRs, who handed over the custody of appellant to the police, but the learned trial Judge did not addressed this aspect in the impugned common judgment. He also contended that complainant/police had booked the appellant in Crime No.431/2014 registered under Section 353/324/34 PPC read with Section 7 of Anti-Terrorism Act, 1997 at police CID, Sindh Karachi, in which he had been acquitted under the same mashirnama by the trial Court, as such, according to him, these cases are false, as the trial Court on the same set of evidence, acquitted the accused. He also contended that recovered hand grenades have been falsely foisted upon the appellant. During the course of arguments, he has taken to us towards prosecution evidence on record and pointed out number of contradictions, which has not been properly appreciated by the trial Court and awarded the conviction and sentences to the appellant, therefore, according to him,these appeals are liable to be allowed. In support of his contentions, learned counsel has relied upon the following case laws:-
(i) Hasan Abbas alias BARRE v. The State reported as PLD 1995 Karachi 322;
(ii) Sohail Ahmed v. The State reported as 1995 P.Cr.L.J. 177.
(iii) Muhammad Rashid v. The State reported 1995 MLD 1274:
(iv) Rehmat Ali v. The State reported as 1994 P.Cr.L.J. 475:
(v) Imamuddin v. The State reported as 1993 P.Cr.L.J. 1398;
11. Conversely, Mr. Mohammad IqbalAwan, learned Deputy Prosecutor General, Sindh while refuting the above contentions raised by appellants’ counsel argued that impugned common judgment is in accordance with law; appropriate appreciation of evidence was undertaken by the trial Judge. The appellants have failed to point out any animosity regarding his false involvement and also failed to bring material contradiction in ocular as well as circumstantial evidence. He further submitted that 30 bore pistol was recovered from the place of encounter whiletwo hand grenades and six kg. explosive substance were recovered from his houseat the pointation of accused in presence of mashirs and such huge quantity could not be foisted. Therefore, he prayed for the dismissal of the appeals. In support of his arguments, learned DPG has relied upon the case of Abdul Baqi @ Talaha& 2 others v. The State reported as 2014 SBLR 1472;
12. We have heard the learned counsel for the parties at a considerable length and have perused the evidence anddocuments available on record.
13. 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 though there was cross firing in between the accused and police party with the sophisticated weapons, but surprisingly, not a single injury/scratch was caused to either side. Even not a single bullet was hit to the police mobile. According to the case of prosecution, co-accused Irfan, Akram, Zahid, Naved and Momin ran away from the spot. We are unable to believe that five accused ran away easily and police remained calm without any effort to arrest them. Incident took place at Gulshan-e-Jamal service road near Pizza Spot, which is a populated area, as admitted by PW-1 ASI Muhammad SalehSolangi in his evidence at Ex.8. Therefore, the possibility/availability of private person at road could not be ruled out, but police did not make any effort to join any independent person of locality or passerby to witness the arrest and recovery proceedings of the appellant in mashirnama of Crime No.432/2014 registered under Section 23(1)(a) of Sindh Arms Act, 2013 at police station CID/OPS Sindh Karachi.Admittedly, the appellant has been acquitted in the main case under Crime No.431/2014 registeredunder Sections 353/324/34 PPC of police station CID/OPS Sindh Karachi on same memo of arrest, recovery and evidence. It appears that no legal evidence was available with the prosecution against the appellant, therefore, he had been acquitted by the trial Court from the main case, but inspite of that on the same set of evidence and circumstances, learned trial Court found the appellantSansar Ali Abro guilty, convicted and sentenced him under Section 23(1)(a) of Sindh Arms Act, 2013, without assigning any convincing reason. Therefore, on this ground false implication of the appellant in this case could not be ruled out. On perusal of record, we havealso noticed that the evidence so brought on record by the prosecution is contradictory on material particulars. For example, PW-1 ASI Muhammad SalehSolangiin his cross examination at Ex.8, deposed that the mashirnama of arrest and recovery was prepared after keeping it on bonnet of police mobile in the light of torch, whereas, PW-2 PC Mir Hassan at Ex.9 while contradicting this fact, deposed that said mashirnama was prepared by ASI Solangi on sitting on the seat of police mobile. The incident took place in midnight time and the said torch was also not produced in evidence before the trial Court. No only this, there is also contradictions in between the prosecution witnesses with regard to the route adopted by the police officials for reaching the place of incident.On perusal of mashirnama of arrest and recovery, the number of pistols allegedly recovered from the appellant is not mentioned, but FSL report showing the rubbed numbers of the said pistols. The incident had taken place on 14.11.2014, but pistols and empties were received by the Assistant Inspector General of Police, Forensic Division, Sindh Karachi on 17.11.2014, after the delay of three days. Moreover, the pistols and empties were retained by whom during this intervening period has also not been explained by the prosecution that after its recoveries under whose custody, it were lying. No official from Forensic Division has been examined in this case.Therefore, under the circumstances, no reliance can safely be placed on FSLreport for conviction of the appellant on the basis of contradictory evidence.
14. As far as, the alleged recovery of hand grenades and explosive material from the house of appellant at his pointation is concerned, it is suffice to say that the appellant has been acquitted by the trial Court through impugned common judgment in Crime No.431/2014 registeredunder Sections 353/324/34 PPC of police station CID/OPS Sindh Karachi and we have also observed hereinabove in detailedthat the case under Crime No.432/2014 registered under Section 23(1)(a) of Sindh Arms Act, 2013 on the basis of contradictory evidence is doubtful and this case is outcome of the aforesaid cases and based on same transaction of occurrence, therefore, no case of alleged recovery of explosive substance alongwith hand grenades from the house of appellant is provedfor also another reason that admittedly SIP Zafar Abbas interrogated the accused in presence of mashir PC Muhammad Arshadunder whose presence, appellant volunteered to produce the alleged hand grenades and explosive material from his house, but said PC Muhammad Arshad has not been examined in this case. He was best witness to corroborate the version of SIP Zafar Abbas, but he was kept away from the witness box. In our view, non-production of this material witness of occurrence before trial Courtwould create an impression that had such witness been brought in witness box, he might not have supported the prosecution case.
15. Admittedly, the house of appellant is situated near Achanak Hotel Bus Stop U-4, which is a thickly populated area as admitted by Investigation Officer namely SIP ZafarAbbas, who further deposed in his evidence at Ex.12 that the said house consists of doubt storey.Investigating Officerhad sufficient time to call the independent and respectable persons of the locality to witness the recovery proceedings, but it was not done in this case. No reason has also been assigned as to why Investigating Officer did not make efforts to joinany independent person from the place of recovery in this case.No doubt, evidence of police officials isas good as of other witnesses, but in this case, the whole case of prosecution is based upon evidence of police officials. Appellant has raised plea that he has been picked up by the law enforcement agencies from his house.Therefore, under thesepeculiar circumstance, evidence of independent person was necessary, which is lacking in this case; hence, false implication of appellant in this case could not be ruled out.It is pertinent to mention here that lady police was also not associated with the Investigating Officer at the time of searching of the house of appellant, as at the time of searching, wife of appellant was available in house. Moreover, Investigating Officer as well as mashir have not disclosedthe numbers of hand grenades and its’ descriptions in their evidence, but inspection report as well as clearance certificate issued by the Bomb Deposal Unit at Ex.13/C and Ex.13/D, showing the numbers of hand grenades as RGD-1 and ARGES-69.From the bare reading of memo of arrest and recovery at Ex.11/A, it appears thatthe number of one hand grenade is mentioned as ARGES hdGr, whereas, no number of another hand grenade is mentioned in the said memo.The hand grenade number mentioned in memo of arrest and recovery at Ex.11/A also does not match with the numbers mentioned in clearance certificate and inspection report. We have gone through the cross examination of SIP Ghulam Mustafa Arain of B.D.U. Sindh, on record at Ex.13 in which he deposed that when he reached at police station he saw that the case property was not in sealed condition, meaning thereby that there was possibility of tampering with the case property already lying at police station. Theseaspects of the case create doubt in the prosecution case, but in the impugned common judgment, these aspects of the case have not been considered/addressed by the trial Court.
16. 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.
17. 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.
18. 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, the appealsare allowed. The conviction and sentences recorded by the Judge, Anti-Terrorism Court-V, Karachi vide judgment dated 29.09.2016 are set-aside. Appellant is acquitted of the charge. He is in jail, therefore, jail authorities are directed to release the appellantSansar Ali Abro forthwith, if he is not required in any other case.
JUDGE
JUDGE
Faizan A. Rathore/PA*