THE HIGH
COURT OF SINDH AT KARACHI
Special
Criminal ATA No.272 of 2018
along with
Special Criminal ATA Nos. 273 & 274 of 2018
DATE
ORDER WITH SIGNATURE OF JUDGE
Present: Mr.Justice Naimatullah Phulpoto
Mr.Justice
Irshad Ali Shah
Appellant : Muhammad
Sultan @ Musa through Mr.
Hashmat Khalid, Advocate.
Respondent : The
State through Mr. Abdullah Rajpar, DPG.
Date
of hearing : 24.07.2019
J U D G M E
N T
IRSHAD ALI SHAH, J.:
The appellant by way of captioned appeals has impugned
the judgment dated 29.09.2018, passed by the learned Judge Anti-Terrorism-IV,
Karachi, whereby he has been convicted and sentenced for the offences
punishable under Sections 324/353 PPC, read with Section 7 Anti-Terrorism Act,
1997, to suffer R.I. for five years and fine of Rs.10,000/- (Rupees Ten
Thousand), in case of default, to further suffer R.I. for six years more (which
in fact should have been six months), for the offence punishable under Section 23(1)(a)
of Sindh Arms Act, 2013, to suffer R.I. for five years and fine of Rs.5,000/-
(Rupees Five Thousand), in case of default, to further suffer R.I. for four
months, and for offence punishable under Sections 4/5 of Explosive Substance Act,
read with Section 6(2) (ee), and 7 (ff) of Anti-Terrorism Act, 1997, to suffer
R.I. for fourteen years and fine of Rs.50,000/- (Rupees Fifty Thousand), in
case of default, the Appellant had to further suffer R.I. for six months more. All
the conviction and sentences awarded to the appellant were ordered to run concurrently
with the benefit of Section 382(b) Cr.P.C.
2. Facts
in brief necessary for disposal of the captioned appeals are that the police
party of P.S Docks, Karachi, led by ASI Munawar Hussain while on patrolling when
reached at Dockyard Road, West Wharf Road, “Mai Kolachi” Road, Karachi, there they
found the appellant standing in suspicious condition, he was asked to stop, on
that he opened fire upon the said police party with intention to commit their murder.
The police party also fired at the Appellant and consequently he was
apprehended at the spot and on search from him, were secured
a un-lisenced T.T. Pistol of 30 Bore with magazine containing two live bullets and
a hand grenade. Mashirnama of arrest and recovery was prepared at the spot. The
appellant and the recovery so made from him there were taken to Police Station
Docks, Karachi and there he was booked and challaned accordingly.
3. At
trial, the appellant did not plead guilty to the charge and prosecution to
prove it, examined DW-1 complainant ASI Munawar Hussain Bajwa (Exhibit-6). He
produced Roznamcha entries, Memo of arrest and recovery, FIRs of the present crimes
and memo of place of incident. PW-2/PC Muhammad Saleh (Exhibit-7), PW-3 SIP Muhammad
Aamir (Exhibit-8). He produced Roznamcha entries and report of ballistic expert.
PW-3 PC Ghulam Abbas (Exhibit-9) and PW-5 Inspector/SIO Saeed
Alam (Exhibit-10). He produced Roznamcha entries and certain documents
relating to the investigation and then prosecution closed its side.
4. The
appellant in his statement recorded under Section 342 Cr.P.C denied the
prosecution allegations by pleading innocence by stating that he was picked up by
Law Enforcement Agencies. His mother Mst. Afzaal-ul-Nisa moved an application
for his release with various authorities and then he was involved in these cases
falsely by the police. In order to prove his innocence appellant also examined
his mother Mst. Afzaal-ul-Nisa in his defence, but did not examine himself on
oath to disprove the prosecution’s allegation against him.
5. On
evaluation of evidence, so produced by the prosecution, the learned trial Court
convicted and sentenced the appellant as detailed above.
6. It
is contended by learned Counsel for the appellant that the appellant being
innocent has been involved in this case by the police by foisting false un-licensed
T.T. pistol and grenade upon him only to save from legal consequence as the
appellant was taken up by them much before his involvement in the present cases;
the encounter took place within the close range, yet it had proved to be ineffective
one; there is no independent witness to the incident and learned trial Court
has convicted and sentenced the appellant on the basis of improper evaluation of
prosecution’s evidence. By contending so, he sought for acquittal of the
appellant.
7. Learned
Deputy Prosecutor General by supporting the impugned Judgment has sought for
dismissal of the captioned appeals.
8. We
have considered the above arguments and perused the record.
9. It
has been stated by complainant ASI Munawar Hussain, PWs PC Ghulam Abbas and PC Saleh
Muhammad that on 13.05.2018, they with rest of the police personnel were conducting
patrol duty, when reached at ‘Lakargodi’, near Railway Phattak, Muhammadi Colony,
Dockyard Road, Karachi, there at about 02:00 A.M, they found the appellant
standing in suspicious condition he was asked to stop, on that he fired at them
with intention to commit their murder. On retaliation, the appellant was also
fired at. Consequently, the appellant was apprehended at the spot and from him were secured un-licensed TT Pistol with magazine containing two
live bullets and hand grenade. Such encounter proved to be ineffective one,
which appears to be significant. As per the complainant such encounter continued
for about ten minutes. As per PW/Mashir PC Saleh Muhammad it continued for
about one hour. Such inconsistency with regard to the time consumed in encounter
has made the very encounter to be doubtful one.
10. As
per Inspector/SIO Saeed Alam, he recorded 161 Cr.P.C statements of PWs and
after usual investigation, submitted challan of the case. In that respect he was
belied by PW Mashir PC Ghulam Abbas by stating that his 161 Cr.P.C statement
was recorded by complainant ASI Munawar Hussain. In that situation, no much reliance
could be placed upon evidence of Inspector/SIO Saeed Alam. In these
circumstances, it could be concluded safely that the prosecution has not been able
to prove its case against the appellant beyond the shadow of doubt.
11. In
the case of Tariq Pervez v. The State reported as (1995 SCMR 1345), the
Hon’ble Supreme Court has held that:
“for giving benefit of
doubt to an accused it is not necessary that there should many circumstances
creating doubts. If a simple circumstance creates reasonable doubt in a prudent
mind about the guilt of accused, then he will be entitled to such benefit not
as a matter of grace and concession but as matter of right”.
12. Above
are the reasons for the short order dated 24.07.2019, whereby captioned appeals
are disposed of which reads as under:
“For the reasons to be recorded later on, Special
Criminal Anti-Terrorism Appeal Nos.272, 273 and 274 of 2018, are allowed.
Conviction and sentence accorded by learned Judge ATC-IV, Karachi in Special
Cases Nos. 699/2018, 700/2018, 701/2018, (FIR Nos.217/2018 under Sections 353/324
PPC R/w Section 7 of ATA, 1997, (FIR No.218/2018, under Section 23 (1)(a) of
Sindh Arms Act) and (FIR No.219/2018 under Section 4/5 Explosive Substance Act,
R/w Section 7 ATA, 1997) all registered at P.S Docks, Karachi respectively, are
set-aside. Consequently, appellant Muhammad Sultan @ Musa son of Muhammad
Ramzan is acquitted of the charge. He be released
forthwith if not required in some other case.”
J U D G E
Karachi.
Dated: .07.2019
Hyder/PA*