HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No.246 of 2018

Special Criminal Anti-Terrorism Appeal No.247 of 2018

Special Criminal Anti-Terrorism Appeal No.248 of 2018

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Irshad Ali Shah

Appellant : Syed Rehan Zaidi @ Ali Buddha

through Mr. Naeemullah Bhutto, Advocate.

Respondent : The State through Mr. Muhammad

Iqbal Awan, Deputy Prosecutor General, Sindh.

Date of hearing : 04.07.2019

J U D G M E N T

Irshad Ali Shah, J. The appellant by way of captioned appeals has impugned the judgment dated 31.08.2018 passed by the learned Judge, Anti-Terrorism Court No.X, Karachi, whereby he has been convicted and sentenced as under;

“In view of my findings on Point No.1 and 2 and the reasons discussed above, the prosecution has proved its charges against the accused namely Syed Rehan Zaidi @ Ali Buddha son of Syed Muhammad Abbas Zaidi. I, therefore, “Convict” him for the offence U/s 7(h) of ATA, 1997 R/w section 353/324 PPC and sentence him to undergo R.I for “10” years with fine of Rs.100,000/-. In default in payment of such fine, he shall suffer further R.I for 06 months. I, further “Convict” him for the offence U/s 7(ff) of ATA, 1997 and sentence him to undergo R.I for “14” years. Accused Syed Rehan Zaidi is also “Convicted” for the offence U/s 23(i)A SAA, 2013 and sentence him to undergo R.I for “05” years with fine of Rs.50,000/-. In default in payment of such fine, he shall suffer further R.I for 06 months more.”

2. Facts in brief necessary for disposal of instant appeals are that the appellant allegedly was apprehended by police party of police station Mochko, Karachi led by SIP Khadim Hussain after encounter and on search from him were secured one unlicensed 30 bore pistol bearing No.612-H along with magazine containing one live bullet and one hand grenade, for that he was booked and challaned accordingly.

3. At trial accused did not plead guilty to the charge and prosecution to prove it examined PW-1 SIP Ghulam Mustafa Arain of BDU (Ex.6). He produced roznamcha entry No.7 (Ex.6/A), clearance certificate (Ex.6/B), roznamcha entry No.24 (Ex.6/C), DO letter (Ex.6/D), final inspection report (Ex.6/E). PW-2 SI Khadim Hussain (Ex.7). He produced roznamcha entry No.26 (Ex.7/A), memo of arrest, recovery and seizure (Ex.7/B), roznamcha entry No.11 (Ex.7/C), FIRs (Exs.7/D, 7/E and 7/F), memo of inspection of place of wardaat (Ex.7/G), of PW-3 HC Ali Sher (Ex.8). PW-4 PI/IO Muhammad Younus (Ex.10). He produced roznamcha entry No.15 (Ex.10/A). Thereafter, learned APG for the State closed the prosecution side vide statement (Ex.11).

4. The appellant in his statement recorded under Section 342 Cr.P.C. (Ex.12) denied the allegations as leveled against him by the prosecution and stated that he has falsely been implicated in these cases by the police. In order to prove his innocence, he examined himself on oath (Ex.13) and DWs namely Syed Qamar Abbas (Ex-14), Khaliq-ur-Rehman (Ex.15) in his defence.

5. It was stated by the appellant in his statement on oath that;

“on 10.09.2017, I was sitting on chowk of our mohallah along with other mohallah people. I was studying in the light of street poll, because my examination were to be held. At about 10:30 p.m., two Rangers mobile appeared and they called me and put me inside the mobile and they kept cloth on my face. There was another person, already inside the Rangers mobile, who was also muffled face. I along with other man were taken to some unknown place. I was student of Mono-Technic Institute situated at Urdu Nagar. I produced Registration Card issued by Sindh Board of Technical Education, Karachi, so also Admit Card of Sindh Board of Technical Education, Karachi, DAE, First year Annual Examinations, 2016 (Evening), College Card issued by principle Government Mono-Technical Institute Malir, Admit Card issued by Sindh Board of Technical Education, Karachi, Second Year Annual Examinations, 2017 (Evening), so also statement of Marks of First Year (Evening) Annual Examination 2016 issued by SBTE as Ex.13/A to Ex.13/E respectively and say that these are same and correct. The Rangers officials kept him in their confinement for about twenty five (25) days, thereafter, they handed over him to police of police station Mochko. Sir, I am innocent and I have been falsely implicated in these cases. I pray for justice.”

6. DWs namely Syed Qamar Abbas, Khaliq-ur-Rehman during the course of their examination supported the appellant in his defence.

7. On evaluation of evidence, so brought by the prosecution, the appellant was convicted and sentenced by learned trial Court as stated above by way of judgment dated 31.08.2018, which is impugned by the appellant before this Court by way of captioned appeals, as stated above.

8. It is contended by the learned Counsel for the appellant that appellant was apprehended by the Rangers personnel and kept confined illegally for about one month and then was got involved in these cases falsely through police by making foistation of pistol and grenade upon him; the memo of arrest and recovery do not contain time of arrest and recovery; and the appellant has been convicted and sentenced on the basis of improper assessment of evidence. By contending so, he prayed for acquittal of the appellant.

9. Learned DPG sought dismissal of captioned appeal by supporting the impugned judgment by stating that it is well-reasoned.

10. We have heard the argument of learned Counsel for the appellant and learned DPG for the State and perused the record.

11. It was stated by SIP Khadim Hussain and PW/Mashir Ali Sher that on 02.10.2017, they with rest of police personnel were conducting patrolling when reached at Hub River Road, there they found going the appellant in suspicious condition he was asked to stop, on that he made fires at them with intention to commit their murder. In self defence, they also made some fires in air and thereafter, they succeeded to arrest the appellant. On person search from the appellant were secured 30 bore pistol along with magazine containing one bullet, and one hand grenade; such memo of arrest and recovery was prepared at spot in presence mashirs. Thereafter, the appellant was taken to police station Mochko, there he was booked accordingly. Memo of arrest and recovery so prepared by them allegedly at the place of incident after encounter does not contain time of its preparation. Such omission could not be overlooked. Admittedly none sustained fire shot injury as result of such encounter, though, it took place within range of 15/20 yards, which approximately has made the very allegation of encounter to be doubtful one. As per SIP Ghulam Mustafa Arain, detonator was not attached to the hand grenade allegedly secured from the accused. Serial numbers of alleged pistols and hand grenade, which he has disclosed obviously are different to the one, which are disclosed in memo of arrest and recovery. The change of serial numbers of the pistol and hand grenade have made the very recovery to be doubtful. No independent witness was examined by SIO/Inspector Muhammad Younus during the course of investigation to ascertain about the character and status of the appellant. It was obviously table investigation In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt.

12. In the case of Tariq Pervez v. The State reported as 1995 SCMR 1345, the Hon’ble Supreme Court has held that

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

13. These are the reasons for our short order dated 04.07.2019, whereby these appeals were allowed, which reads as under;

“Heard arguments. For reasons to be recorded later on, appeals are allowed. conviction and sentence recorded by learned Judge, Anti-Terrorism Court No.X, Karachi vide judgment dated 31.08.2018 are set-aside. Appellant Syed Rehan Zaidi @ Ali Buddha is acquitted of the charges in Special Case No.AJ-1895/2017 (FIR No.163/2017 under Section 353/324 PPC read with Section 7, Anti-Terrorism Act, 1997), Special Case No.AJ-1896/2017 (FIR No.164/2017 under Section 23(i)(a) of Sindh Arms Act, 2013) and Special Case No.AJ-1897/2017 (FIR No.165/2017 under Section 4/5 Explosive Substance Act, 1908 read with Section 7, Anti-Terrorism Act, 1997) registered at Police Station Mochko Karachi. Appellant shall be released forthwith if he is not required in some other case.”

JUDGE

Karachi. JUDGE

Dated: 09.07.2019

Faizan A. Rathore/PA*