HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No.87 of 2019

Special Criminal Anti-Terrorism Appeal No.88 of 2019

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Irshad Ali Shah

Appellant : Ashraf @ Hashoo son of Ahmed Khan

through M/s. Ajab Khan Khattak & Fida Hussain, Advocates for Appellant.

Respondent : The State through Mr. Muhammad

Iqbal Awan, Deputy Prosecutor General, Sindh.

Date of hearing : 11.07.2019

J U D G M E N T

Irshad Ali Shah, J. The appellant by way of captioned appeals has impugned judgment dated 22.03.2019 passed by the learned Judge, Anti-Terrorism Court No.X, Karachi, whereby he has been convicted for the offences under Section 7(h) of ATA, 1997 read with Section 6(2)(m), (n) of ATA, 1997 and 353/324, PPC and sentenced to undergo R.I. for ten (10) years with fine of Rs.100,000/-. In default in payment of such fine, it was further ordered that he shall suffer further R.I. for six (6) months, for offence under Section 25 of Sindh Arms Act, 2013, convicted and sentenced to undergo R.I. for seven (7) years with fine of Rs.50,000/-. In default in payment of such fine, it was further ordered that he shall suffer further R.I. for six (6) months.

2. Facts in brief necessary for disposal of instant appeals are that the appellant with rest of the culprit under took an encounter with police party of police station Manghopir, who was led by SIP Rana Muhammad Naseem. As a result of such encounter, police mobile sustained damage. Consequently, the appellant was apprehended when he fell down on the ground from his motorcycle, and from him was secured unlicensed rifle of 222 bore containing six live bullets in its magazine, for that he was booked and challaned accordingly.

3. At trial, appellant did not plead guilty to the charge and prosecution to prove it examined PW-1 complainant SIP Rana Muhammad Naseem (Ex.7). He produced roznamcha entries, memo of arrest, recovery and seizure, and FIR of the present case, letter addressed to the MLO, Abbasi Shaheed Hospital, Karachi and memo of place of wardaat. PW-2 PC Muhammad Nasir (Ex.8). PW-3 PI Nasir Ahmed (Ex.11). He produced roznamcha entries, sketch of place of wardaat, etc. PW-4 Dr. Muhammad Nadeem-ud-din (Ex.4). He produced medical certificate in respect of injuries sustained by the appellant and then prosecution closed its side vide statement (Ex.13).

4. Appellant in his statement recorded under Section 342 Cr.P.C. (Ex.14) denied the prosecution allegations and pleaded innocence by stating that he has been involved in this case by the police at the instance of Tanker Mafia. The appellant did not examine himself on oath or anyone in his defence.

5. On evaluation of evidence, so brought by the prosecution, trial Court found the appellant guilty for the above said offences and convicted and sentenced him accordingly by way of judgment dated 22.03.2019, which the appellant has impugned before this Court by way of captioned appeals.

6. It is contended by the learned Counsel for the appellant that appellant being innocent has been involved in this case falsely by the police; there is no independent witness to the incident; it was night time incident; the encounter by the appellant with police proved to be ineffective and trial Court has convicted and sentenced the appellant on the basis of improper assessment of evidence. By contending so, he sought for acquittal of the appellant.

7. Learned Deputy Prosecutor General, Sindh for the State sought for dismissal of captioned appeals by contending that the appellant has been arrested by the police after encounter and on arrest from him has been secured unlicensed rifle of 222 bore with six live bullets.

8. We have considered the above argument and perused the record.

9. As per complainant SIP Rana Muhammad Naseem and PW/Mashir, they along with rest of the police personnel went to the place of incident on spy information that the appellant with rest of the culprit have committed dacoity at Water Hydrant. If for the sake of arguments, it is believe that they went at place of incident on information then they were under obligation to have associated with them independent person to witness the possible arrest of the appellant and recovery of unlicensed weapon from him. It was not done by them for the obvious reason, which has made the very proceedings by them to the place of incident to be doubtful one. At place of incident, as per them, there arose encounter between them and the appellant. Surprisingly, such encounter proved to be ineffective. It is claimed by the complainant and his witnesses that the police mobile sustained damage, but it was never produced before learned trial Court, its non-production has made the allegation of damage to police mobile to be doubtful. The appellant as per complainant and his witnesses was apprehended by them on account of his fall from the motorcycle on ground and from him was secured unlicensed rifle of 222 bore with magazine containing six live bullets. Surprisingly, the appellant was not charged for such recovery. As per charge so framed against the appellant from him said to have been secured unlicensed 222 bore pistol. Such omission on the part of learned trial Court could not be overlooked. No independent witness was examined by the SIP Rana Muhammad Naseem during the course of investigation to ascertain about the correctness of incident. Such omission on his part reflects that it was table investigation, which he allegedly conducted during the course of 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.

10. 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.”

11. These are the reasons for our short order dated 11.07.2019, whereby these appeals were allowed, which reads as under;

“Heard arguments, for reasons to be recorded later on, Special Criminal Anti-Terrorism Appeals No.87 and 88 of 2019 are allowed. Conviction and sentence recorded by learned Judge, Anti-Terrorism Court No.X, Karachi vide judgment dated 22.03.2019 are set-aside. Appellant Ashraf @ Hashoo son of Ahmed Khan is acquitted of the charges in FIR No.433/2018 under sections 353/324/427/34 PPC read with section 7 Anti-Terrorism Act, 1997 and FIR No.434/2018 under section 23(1)(a) of Sindh Arms Act, 2013 registered at PS Manghopir, Karachi. Appellant shall be released forthwith, if he is not required in some other case.”

JUDGE

Karachi. JUDGE

Dated: .07.2019

Faizan A. Rathore/PA*