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 1993 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*