HIGH COURT OF SINDH AT KARACHI
Spl. Criminal
Anti-Terrorism Jail Appeal No.169 of 2016
Present:
Naimatullah Phulpoto, J.
Rasheed Ahmed Soomro,
J.
Appellant:
Hashim Raza alias Taaro son of Nawab Haider through Mr. Umar Farooq, Advocate
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Respondent: The State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh.
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Date of
hearing:
06.08.2018
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J U D G M E N T
NAIMATULLAH
PHULPOTO, J.- Appellant
Hashim Raza alias Taaro was tried by learned Judge, Anti-Terrorism Court-VI,
Karachi in Special Cases Nos.25(ii) of 2014 and 05 of 2014. On conclusion of
the trial, vide judgment dated 30.04.2016, the appellant was convicted under
section 7(I)(ff) of the Anti-Terrorism Act, 1997 and
sentenced to undergo 14 years R.I. and forfeiture of his property; in FIR
No.437/2013 under section 23(1)(a) of the Sindh Arms Act, 2013 sentenced to
undergo 7 years R.I. with fine of Rs.10,000/-, in case of default in payment of
fine, to suffer S.I. for four months and in FIR No.440/2013 under section
23(1)(a) of the Sindh Arms Act, 2013 sentenced to undergo 7 years R.I. with
fine of Rs.10,000/-, in case of default in payment of fine, to suffer S.I. for
four months. Benefit of section 382-B, Cr.PC was
extended to accused and all the sentences were ordered to run concurrently.
2.
Brief facts of the prosecution case leading to
the filing of the appeal are that on 04.12.2013, ASI Muhammad Ishaq of P.S. Kharadar lodged FIR
bearing Crime No.437/2013 under section 23(1)(a) of the Sindh Arms Act, 2013,
alleging therein that on 04.12.2013 he was on patrolling duty along with SIP
Bashir Ahmed, PCs Shafiullah and Nadeem.
It is alleged that ASI Muhammad Ishaq received spy
information regarding presence of three accused persons of gang war at Gaoo Gali with intention to
commit some crime. Police party reached at the pointed place whereas police
apprehended accused Hashim Raza
and conducted his personal search, one 30 bore pistol with three loaded
magazines were recovered from his possession. Out of them one magazine
contained 4 live bullets, other contained 3 live bullets and third magazine
contained 3 live bullets. Accused was arrested, case property was sealed at
spot, mashirnama of arrest and recovery was prepared
in presence of the mashirs. FIR was lodged on behalf
of the State. It is further alleged that above named accused during
interrogation admitted that he had concealed some explosive substance in his
house. On 04.12.2013, SIP Malik Muhammad Imtiaz of
P.S. Kharadar Karachi lodged FIR No.329 of 2013 under
section 4/5 of the Explosive Substances Act, 1908 read with Section 6(2)(ee) Section 27-A punishable
under subsection (I)(ff) of Section 7 of the
Anti-Terrorism Act, 1997, alleging therein that on 04.12.2013 he was posted as
SIP at P.S. Kharadar Karachi. On the same day, he was
called by SHO to reach at P.S. Kharadar as to
interrogate the accused Hashim Raza
alias Taaro, who was already confined at P.S. Kharadar in connection with FIR No.437 of 2013 under
section 23(1)(a) of the Sindh Arms Act, 2013. He reached at P.S. Kharadar and interrogated accused Hashim
Raza. During interrogation, accused Hashim Raza disclosed that one KK
and four hand grenades were lying at his Dera (Kholi) and he can get recover the same from his Kholi. He called SI Bashir Ahmed at P.S. Kharadar as to leave P.S. for pointed place of the accused.
P.C. Shafiullah, P.S. Aijaz
and SI Bashir Ahmed were also with him. They then left P.S. and on the pointation of accused Hashim Raza, reached at Liaquat Colony,
where the accused got stopped the police mobile and further led the police
party in a narrow street towards his Dera, which was
more like a (kholi room). Subsequently, he took out a
key from hole of wall attached with the door. Thereafter, accused opened the
lock with key, and he entered inside the Kholi. One
Kalashnikov, 10 live bullets and four hand grenades green coloured
were also recovered, which were lying under the blanket. The accused could not
produce any valid license of the arms and ammunition. The accused was arrested
accordingly. He prepared the memo of arrest and in presence of mashirs namely SI Bashir Ahmed, PC Shafiullah
and PC Aijaz. He then returned to PS along with
accused and case property. He then registered the FIR No.440 of 2013 at PS Kharadar. He then handed over the case papers to inspector Aijaz Hussain Mughal for further
investigation. Thereafter, he came to know through SI AIjaz
Hussain Mughal that he had lodged FIR wrongly at P.S.
Kharadar as such the jurisdiction of such case was
within P.S. Kalri. His FIR No.440/2013 was declared
as C-Class. Subsequently, he recorded his statement under section 154, Cr.PC for registration of FIR regarding incident dated
04.12.2014. Thereafter, his FIR 329 of 2013 was registered at P.S. Kalri. After usual investigation challan
was submitted against the accused under the above referred sections. Both cases
were ordered to be tried together in terms of Section 21M of the Anti-Terrorism
Act, 1997.
3.
Learned Judge, Anti-Terrorism Court-III, Karachi framed charge against
the accused. The accused pleaded not guilty and claimed to be tried.
4.
At trial, prosecution examined in all seven prosecution witnesses, who
produced copies of the mashirnamas of arrest and
recovery. FIRs of the aforesaid crimes, report of FSL. Thereafter, prosecution side was closed.
5.
Trial court recorded statement of accused under section
342, Cr.PC in which accused claimed false implication
in this case and denied the prosecution allegations. The accused raised plea
that his elder brother was the member of MQM, subsequently he joined MQM Haqiqi, he was inspector in KMC. His another brother Aijaz Haider was SSP Jail, his both brothers were murdered in the
year 2015. Appellant has claimed false implication in this case for the
political reasons. Accused produced before the trial court copies of two applications
dated 25.11.2013 and 05.12.2013, submitted by the wife of the appellant before
the Honourable Chief Justice, High Court of Sindh,
regarding illegal detention of the appellant by police.
6.
Trial court after hearing the learned counsel for the parties and
assessment of the evidence available on record vide judgment dated 30.04.2016
convicted and sentenced the appellant as stated above.
7.
The facts of the case as well as
evidence produced before the trial Court find an elaborate mention in the judgment
dated 30.04.2016 passed by the trial court and, therefore, the same may not be
reproduced here so as to avoid duplication and unnecessary repetition.
8.
Mr. Muhammad Farooq, learned advocate for the appellant mainly contended
that it was the case of spy information, police officials had sufficient time
to associate the private persons at the time of personal search of accused and
the search of his house but the police officials deliberately failed to join
the independent persons of the locality. It is further argued that the
investigation officer failed to collect the evidence regarding ownership of the
house of the appellant. It is also contended that explosive substance was
recovered on 04.12.2013 from the house of the accused but after 13 days it was
sent to ballistic expert, no plausible explanation was submitted by the
prosecution for such delay. Lastly argued that appellant is victim of political
enmity. In support of his contentions, learned counsel relied upon the cases reported
in PLD 2004 Supreme Court 39 (The State
vs. Muhammad Shafique alias Pappo)
and 2011 PCr.LJ 298 (Muhammad Qasim Vs. The State).
9.
Mr. Muhammad Iqbal Awan, learned D.P.G. on the
query of the Court informed that co-accused were arrested by the police and
T.T. pistols were recovered from their possession but joint trial was not held
before learned Judge Anti-Terrorism Court under the provisions of the Anti-Terrorism
Act, 1997. Mr. Awan further argued that pistol was
recovered from the possession of the appellant, it was sent to ballistic expert
and report was positive. He has also argued that on the same day accused led
the police to his house and from his house explosive substance/hand grenades
were recovered. However, it has been admitted by the learned D.P.G. that these
hand grenades were sent to the ballistic expert after 13 days of the recovery.
Learned D.P.G. opposed the appeal.
10.
We have carefully heard
the learned counsel for the parties and perused the entire evidence.
11.
We have come to the
conclusion that prosecution has failed to prove its case against the appellant beyond
reasonable doubt for the reasons that in the FIR/mashirnama
it is mentioned that from the possession of the appellant one 30 bore pistol
was recovered. The report of ballistic expert at Ex.16/E reflects that pistol
had No.31034614 but number has not been mentioned by the ASI in his evidence.
Omission would be fatal to the case of the prosecution; tempering with case
property could not be ruled out. Scrutiny of the prosecution evidence reveals
that hand grenades were produced by the accused from his house, investigation
officer failed to establish that the house from which the explosive substance
was recovered belonged to accused. There is also nothing on record that said
house was in exclusive possession of accused. According to prosecution
evidence, house of appellant was situated in narrow streets but no efforts were
made by the police to associate some independent persons of the locality. Safe
custody of pistol and hand grenades at police station and safe transit to
experts have also not been established. Head muharir of police station has also not been examined by the
prosecution. Unfortunately, trial court had totally ignored the defence plea. Accused had raised plea that his two brothers
were murdered for the political reasons by one political party and he has been falsely
implicated in this case for political reasons. Appellant along with his
statement recorded under section 342, Cr.PC placed on
record two copies of applications submitted to the Honouorable
Chief Justice by the wife of the appellant alleging therein that the appellant
had been picked up from his house before registration of the case and was
illegally detained at police station. Defence plea
appeared to be plausible. Evidence of police officials was not trustworthy and
required independent corroboration, it was lacking in this case. Rightly
reliance has been placed on the case reported as PLD 2004 Supreme Court 39 (The State vs. Muhammad Shafique
alias Pappo), in which the Honourable
Supreme Court has observed as under:-
13.
It has been established by the evidence of Muhammad Saeed
Abid C.W. that the respondents were neither the
owners of said house nor tenants. It being so, it is very hard to believe that
they were occupying it B and were living therein. Learned High Court
specifically noted that despite the fact that it was known to the prosecution
that the house belonged to aforesaid witness, yet, no evidence was collected to
show that the respondents were in its possession. Neither Chowkidar
nor labourers nor neighbours
were joined by the investigating agency to demonstrate that ever any of them
was seen entering or coming out from it. The alleged recoveries of explosive
substances, weighing about 30 k.gs. a kalashnikov with 25 live rounds loaded in the magazine from
under the mattress of respondent Abdul Jabbar and a
wooden box from under said bed of respondent Muhammad Shafique,
containing 10 detonators 10 igniters, a T.T pistol loaded with six live rounds,
do not inspire confidence, as so C much could not be concealed under said
mattresses. Besides, Mashir of recovery namely,
Muhammad Usman, as rightly held by High Court, was
stock witness of the prosecution, as in the cases related to F.I.Rs. Nos. 58,
59, 61, 62, 68 of 1998 and 16 of 1999 he was cited as prosecution witness of
recovery. It is a strong circumstance, which creates doubt about credibility of
this witness, particularly when other witness Mushir Abdur Rehman was not examined.
12.
In view of the above
stated reasons, we have no hesitation to hold that there are several infirmities
in the prosecution case as highlighted above, which have created doubt. In the case of Tariq Pervez V/s. The State (1995 SCMR 1345), the Honourable Supreme
Court has observed as follows:-
It is settled law that
it is not necessary that there should many circumstances creating doubts. If
there is a single 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.
For the above stated
reasons, instant appeal is allowed and conviction and sentence recorded by the
trial Court are set aside and appellant is acquitted of the charges. Appellant
shall be released forthwith if not required in some other custody case.
14.
These are the reasons
for our short dated 06.08.2018.
J U D G E
J
U D G E
Gulsher/PS