IN THE HIGH COURT OF SINDH, KARACHI
Special Criminal Anti-Terrorism Appeal No.173of 2016
Special Criminal Anti-Terrorism Appeal No.174of 2016
Special Criminal Anti-Terrorism Appeal No.175of 2016
Special Criminal Anti-Terrorism Jail Appeal No.192of 2016
Special Criminal Anti-Terrorism Jail Appeal No.193of 2016
----------------------------------------------------------------------------------
Date Order with Signature(s) of Judge(s)
----------------------------------------------------------------------------------
Present:Naimatullah Phulpoto, J.
Abdul MaalikGaddi, J.
Date of hearing: 26.10.2017
Mr. Qaim Ali Memon, Advocate for the Appellants.
Mr. Muhammad Iqbal Awan, Deputy Prosecutor General, Sindh.
J U D G M E N T
Abdul MaalikGaddi, J.–Throughthis common Judgment, we intend to dispose of the captioned appeals filed by the appellantsas these appeals relate to common Judgment delivered by the learned trial Court dated 28.05.2016.
2. By means of these appeals, the appellantshave assailed the legality and propriety of the common Judgmentdated 28.05.2016passed by the learnedJudge ofAnti-Terrorism Court No.VII, Karachi in Special Cases No.23/2014 (B-192/2014), 24/2014 (B-193/2014), 25/2014 (B-194/2014), 26/2014 (B-195/2014), 27/2014 (B-196/2014), 28/2014 (B-197/2014)and 29/2014 (B-198/2014respectively,in casesbearing CrimeNo.14/2014, under Section 353/324/34 PPC read with 7 ATA, Crime No.15/2014, under Section 23(1)(a) of Sindh Arms Act, 2013, Crime No.16/2014, under Section 4/5 Explosive Substance Act, Crime No.17/2014, under Section 23(1)(a) of Sindh Arms Act, Crime No.18/2014, under Section 4/5 Explosive Substance Act, Crime No.19/2014, under Section 23(1)(a) of Sindh Arms Act and Crime No.20/2014, under Section 4/5 Explosive Substance Act, registered at police station CID, Sindh, whereby the learned trial Court after full dressed trial,convicted and sentenced the appellantsin 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 reads as follows:-
“Point No.3.
For the foregoing reasons the accused Jahangir alias Lal s/o Allah Dino (02) Wajid alias Waja s/o Abdul Waheed (03) Hashim alias Hashu s/o Muhammad Hashim are therefore, convicted and sentenced for offence u/s: 7 (h) of ATA, to undergo rigorous imprisonment for a period of five (05) years and to pay fine of Rs.5,000/- each & in default thereof to undergo simple imprisonment for a period of one month. The recovery of hand grenades from possession of above named accused stands proved. The above named accused are convicted and sentenced for offence u/s: 7 (ff) of ATA, to undergo rigorous imprisonment for a period of fourteen (14) years each. The Kalashnikov loaded with 15 rounds stands proved to have been recovered from possession of accused Hashim. Pistol loaded with two rounds from the possession of accused Wajid alias Waja stands proved. Likewise pistol recovered from accused Jahangir loaded with three rounds also stand proved, which is an offence u/s: 23(1)(a) of SAA, 2013. The accused above named are therefore, convicted and sentenced to under to undergo rigorous imprisonment for a period of five (05) years and pay fine of Rs.5,000/- and in default thereof to undergo simple imprisonment for further period of one month. The sentences awarded to accused on different accounts shall run concurrently. The accused are present in custody. They are remanded back to custody to serve out the sentences. The accused Sufyan is acquitted u/s: 265/H1 Cr.P.C. from the charge of an encounter with police. He may be released forthwith, if not required in any other case. Since there is no evidence against above mentioned as absconding accused therefore, they also stand acquitted u/s: 265/H1 Cr.P.C. from the charge of police encounter. The R&P be submitted to Honorable High Court in compliance of section 25(2) ATA.”
3. The facts of the prosecution case in nutshell as alleged in the FIRs are that on 15.01.2014 S.I. Mehar Mumtaz of CID Garden left CID cell at about 10:00 p.m. vide entry No.29 alongwith HC Rizwan, PC Shoukat, PC Yasir, PC Waqar Raza, PC Jaan Sher and other officials in police mobile in search of proclaimed offenders. At about 11:30 when they reached within the jurisdiction of police station Sher Shah, they received spy information about presence of terrorists belonging to Lyari Gangwar near Pankha Hotel. On receiving such information, S.I. Mumtaz Ahmed alongwith police party reached at the pointed place at about 0030 hours, where he found seven persons near Pankha Hotel. The mobile was stopped and in order to apprehend the culprits they tried to encircle the culprits, upon which culprits started firing on the police with intention to cause their death and deter them from performing their duties. The police also fired in their defense and succeeded in apprehending three persons, whereas four persons made their escape good. SIP Meher Mumtaz then enquired about the names of apprehended persons, who disclosed their names as Hashim alias Hashu son of Muhammad Qasim and on his search he was found holding one K.K. without number loaded with magazine 1/14. On further search two hand grenades were secured from his right side pocket. The other person disclosed his name as Jahangir alias Lal son of Allah Dino. He was found holding one 30 bore pistol without number loaded with magazine 1/2 rounds. On further search one hand grenade was secured from his right side pocket. The third apprehended person disclosed his name as Wajid alias Waja son of Abdul Waheed. From his hand one 30 bore pistol loaded with 1/1 rounds was secured and on further search from the right side of his shirt one hand grenade was secured. The accused then arrested and from the place of occurrence four empty shells of K.K., six of 30 bore and four of 9mm were collected. The weapons and empty shells were sealed separately. The apprehended culprits disclosed the names of their accomplices, who made their escape good as Saleem alias Dollar, Janu Grenade and Sohail alias Sunny. Memo of arrest and recovery was prepared in presence of HC Rizwan and PC Shoukat Ali. The accused and property were then brought to police station, where separate cases under different laws were registered against accused. Hence, these FIRs.
4. The investigation was entrusted to Inspector Behzat Ali, who visited the place of incident in presence of mashirs namely SIP Meher Mumtaz, HC Rizwan Hyder and PC Shoukat Hayat and prepared such memo of place of incident as well as sketch. He also recorded statements of the witnesses under Section 161 Cr.P.C. After completing the usual investigation, challan was submitted before the Court of law under the above referred sections.
5. Above cases were amalgamated with main case and joint trial was ordered by the learned Judge, Anti-Terrorism Court in terms of Section 21M of the Anti-Terrorism Act, 1997.
6. In order to establish accusation against theappellants, prosecution had examined in all five witnesses:-
(i) PW-1 complainant SIP Mumtaz Ahmed at Ex.P/05, who has produced entry of departure at Ex.5/A, memo of arrest and recovery at Ex.5/B, entry of arrival at Ex.5/C, FIRs of these cases as Ex.P/5D to P/5J; entry of arrival at Ex.5/K, memo of inspection at Ex.5/L.
(ii) HC Rizwan Hyder at Ex.P/06;
(iii) ASI Syed Laiq of Bomb Disposal Unit at Ex.P/07; he produced letter dated 21.01.2014 of inspection, entry No.26 of departure at Ex.7/B, clearance certificates at Ex.7/C to Ex.7/E, FIR No.76/2014 registered at CID Sindh Karachi at Ex.7/F, inspection reports of hand grenades at Ex.7/G to Ex.7/I.
(iv) Inspector Shabbir Hussain at Ex.P/08; he produced memo of arrest at Ex.P/8A and memo of pointation of place of occurrence at Ex.P/8B.
(v) Vide statement at Ex.09, learned Deputy Public Prosecutor has given up PC Shoukat Ayaz;
(vi) Investigating Officer, Inspector Behzat Ali at Ex.P/10, who produced roznamcha entries No.39 and 41 at Ex.10/A & Ex.10/B, copy of CRO at Ex.10/C, copies of letters to DIGP dated 29.01.2014 at Ex.10/D to Ex.10/F, copies of three ordersof Home Department at Ex.10/G to Ex.10/I, letter to FSL at Ex.10/J,FSL report at Ex.10/K, entries No.40 at Ex.10/L and entries at Ex.10/M to Ex.10/Q.
Thereafter, prosecution closed its side vide statement dated 28.03.2016 at Ex.11.
7. The statements of the appellantswerealso recorded under Section 342 Cr.P.C. in all cases separately at Ex.12to Ex.15, in which they have denied all the allegations as leveled by the prosecution and have stated that the cases against them are false andnothing incriminating was recovered from them. However, neither they examined themselves on oath nor led any evidence in their defense.
8. Mr. Qaim Ali Memon, learned advocate for appellants contended that appellants are innocent and have been falsely implicated in these cases due to malafide and ulterior motives; no sufficient iota of evidence was available to award conviction to them, hence, judgment of trial Court is completely departure from mandatory provisions of law; no offence of terrorism was made out, inspite of that trial Court has convicted the appellants. Per learned counsel, the appellants were arrested by the police after alleged encounter on 16.01.2014 at about 0035 hours, although, police party was equipped with automatic weapons and the appellants allegedly were also armed, yet none from either side received any injury even no bullet was hit to police mobile. He further submitted though the weapons were sealed on 16.01.2014, but were sent to Forensic Laboratory on 07.02.2017, after the delay of about twenty one days, for which no plausible explanation has been furnished for causing such inordinate delay, therefore, according to him, such inordinate delay in sending weapons to FSL renders the positive report doubtful and of no help to prosecution.Likewise, hand grenades allegedly recovered from the possession of accused wereinspectedon 25.01.2017, after the delay of nine days and during this intervening period, the hand grenades were retained by whom has also not been explained by the prosecution.This aspect of the case also creates serious doubt in the prosecution case and false implication of the appellants in these cases could not be ruled out. During the course of arguments, various contradictions in between the statements of prosecution witnesses were highlighted by defense counsel.In support of his contentions, learned counsel for appellants has relied upon the following case laws:-
(i) Muhammad Umair & others v. The State reported as SBLR 2017 Sindh 1247;
(ii) Muhammad Nawaz & others v. The State & others reported as 2016 SCMR 267;
(iii) Rahim Baksh v. The State reported as 2010 P.Cr.L.J. 642;
(iv) Haji Inayat Ali v. Shahzada & others reported as 2008 SCMR 1565
(v) Riaz Hussain Kalhoro v. The State reported as 2004 P.Cr.L.J. 290;
9. Conversely, Mr. Muhammad Iqbal Awan, 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 their false involvement and also failed to bring material contradiction in ocular as well as circumstantial evidence.
10. We have heard learned counsel for parties at a considerable lengthand perused the evidence and documents on record.
11. 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.It appears from the record that it is a case of spy information and the complainant Mumtaz Ahmed received spy information on his phone at 11:30 a.m. on 15.01.2014 with regard to availability of the present appellants alongwith co-accused belonging to Lyari Gangwar with weapons within the jurisdiction of police station Sher Shah near “Pankha Hotel”, as such complainant alongwith his subordinates staff namely HC Rizwan Hyder, PC Shoukat Hayat, PC Yasir and PC Waqar,reached to pointed place at about 0030 hours on 16.01.2014 to arrest the culprits, who after seeing 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. However, finally police party succeeded in apprehending three persons, whereas four persons made their escape good. The apprehended accused disclosed their names as Hashim alias Hashu and on his search he was found holding one K.K. without number loaded magazine 1/14. On further search two hand grenades were secured from his right side pocket. The other person disclosed his name as Jahangir alias Lal, he was found holding one 30 bore pistol without number loaded with magazine 1/2 rounds. On further search one hand grenade was secured from his right side pocket. Whereas third apprehended person disclosed his name as Wajid alias Waja and from his hand, one 30 bore pistol loaded with 1/1 round was secured and on further search, from the right side of his shirt, one hand grenade was secured. The accused were then arrested and from the place of occurrence, four empty shells of Kalashnikov, six of 30 bore and four of 9mm were collected. According to prosecution, the weapons and empties shell were sealed separately. Such mashirnama was prepared in presence of mashirs namely HC Rizwan Hyder and PC Shoukat Hayat. Their evidence have been perused, but found contradictory on material particulars as well as documents on record. Besides, it has been brought on record that place of incident is a thickly populated area and it was a case of spy information and no private person was associated as mashir. For the sake of convenience, it would be advantageous to reproduce the relevant portion of cross examination of complainant Mumtaz Ahmed, which reads under:-
“After departure from CTD cell, we went to Habib Bank Chowrangi, Site area. After Habib Bank Chowrangi, we went to Semens Chorangi. The informer had informed me at my personal mobile phone. My personal number is provided to my office. The distance between Ghani Chowrangi and place of occurrence is about 2 to 2.05 K.Ms. It is correct that Pankha Hotel is situated in a thickly populated area. The informer had shown the suspicious persons at the hotel. I did not record the statement of informer. The hotel was closed at that time and no other person was present all around due to law and order situation. The culprits were sitting outside the hotel. It is correct that these days the hotel remains open round the clock. When the firing was exchanged the culprits were at the distance of 15/20 feet. It is correct that nobody was injured from either side nor the police mobile was damaged as a result of exchange of firing.”
After going through the above piece of evidence, it reveals that though the incident took place at night time, but it has been brought on record that incident took place in populated area near Pankha Hotel from where the possibility to secure the services of independent person to act as mashir cannot be ignored, despite this fact, police did not bother to avail the services of independent person of the locality to witness the recovery proceedings. No plausible explanation was offered by prosecution why they did not cite any independent person to witness the recovery proceedings. This aspect of the case creates doubt in the case of prosecution. We have gone through the memo of arrest and recovery showing that alleged incident took place on 16.01.2014 at about 0035 hours and recovery was effected. It also appears that Kalashnikov and pistols were allegedly secured from the possession of appellants and empties were sealed on spot on the said date, but these weapons and empties were sent to Forensic Laboratory for examination on 07.02.2014 after the delay of twenty one days, for which no plausible explanation was furnished for causing such an inordinate delay. It is pertinent to mention here that in mashirnama of arrest and recovery,pistols and Kalashnikov allegedly recovered from the possession of appellants were without numbers, whereas, examination report (FSL) of these weapons issued by the office of Assistant Inspector General of Police, Karachi dated 26.02.2014 at Ex.10/K of R&Ps showing the numbers of said weapons. This aspect of the case also creates serious doubt in the prosecution case and question arises if the weapons numbers are not mentioned in the mashirnama, then how these numbers have been assigned/provided in the FSL report.
12. We have also gone through the mashirnama of arrest and recovery available on record at Ex.5/B showing that two hand grenades allegedly recovered from accused Hashim alias Hashu from his right side pocket of trouser; whereas, one hand grenade each recovered from accused Jahangir alias Lal and Wajid alias Waja, but in the FIR and mashirnama, no hand grenades numbersare mentioned, but surprisingly, the inspection reports of hand grenades dated 27.01.2014 at Ex.7/G to Ex.7/I showing the hand grenades numbers and further showing that description of hand grenades as plastic bodies without detonators. It reveals from the inspection reports that these hand grenades were without detonators and explosive substance, therefore, same being without explosive material could not have been blast rather presumption can be drawn that police in order to strengthen the rope of their false accusation had foisted upon them. Moreover, the hand grenades were retained by whom has also not been explained by the prosecution that after its recovery under whose custody, they were lying. It reveals from Ex.7/G to Ex.7/I on record that experts from Bomb Disposal Unit had inspected hand grenades on 25.01.2014 though the same were recovered on 16.01.2014 and from 16.01.2014 to 25.01.2014 that is the period of nine days is also questionable and all above circumstances has proved that neither the incident as alleged has taken place nor the recoveries, as shown were effected from the possession of the appellants and all above exercise carried by the police themselves itself shows to be fake, fabricated and engineered one.
13. As observed above, this is the case based upon doubtful story. In this regard, we may say that many doubts are not needed in the prosecution case, rather any reasonable doubt arising out of prosecution evidence as happened in this case, it would be better to acquit the accused than convicting one innocent soul. Acquitting by error, would be better than convicting by error. Once substantial doubt is enough for acquittal of the accused. We have already highlighted many doubts in the prosecution case as supra, therefore, benefit of doubt will go in favour of the appellants.
14. For our above stated reasons, we have no hesitation to hold that the prosecution has failed to prove its case against the appellants and learned trial Court did not appreciate the evidence and documents on record properly. Consequently, these appealsare allowed. The impugned common Judgment passed by the trial Court is set-aside. Resultantly, the appellantsare acquitted from the charge.They are in jail, therefore, jail authorities are directed to release the appellants forthwith, if theyare not required in any other cases.
JUDGE
JUDGE
Faizan A. Rathore/PA*