HIGH COURT OF SINDH AT KARACHI

Spl. Criminal Anti-Terrorism Appeal No.111 of 2017

Spl. Criminal Anti-Terrorism Appeal No.112 of 2017

                        Present:         

Naimatullah Phulpoto, J.

Rasheed Ahmed Soomro, J.

Appellant:                      Ameenullah son of Muhammad Nazeer through Mr. Shah Imroz Khan, Advocate

Respondent:                   The State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh. 

Date of hearing:              10.08.2018

Date of announcement: 17.08.2018

J U D G M E N T

NAIMATULLAH PHULPOTO, J.- Appellant Ameenullah was tried by learned 1^st Additional Sessions Judge/Anti-Terrorism Court-I, Karachi East in Special Cases Nos.833 and 834 of 2016. On conclusion of the trial, vide judgment dated 15.04.2017, the appellant was convicted and sentenced as under:-

(i) Accused is sentenced to R.I. for 7 years with fine of Rs.10,000/- (Ten Thousand). In default thereof he shall further undergo S.I. for three months for committing offence under section 324, PPC.

(ii) Accused is sentenced to R.I. for 1 year for committing offence under section 353, PPC.

(iii) Accused is sentenced to R.I. for 7 years with fine of Rs.10,000/- (Ten Thousand). In default thereof he shall further undergo S.I. for three months for committing offence under section 7(1)(h) of the Anti-Terrorism Act, 1997.

(iv) The accused was charged under section 23(1)(a) of the Sindh Arms Act, 2013 but he was not charged for committing offence under section 25 of the Sindh Arms Act, 2013 but the Court is empowered under section 337, Cr.PC to charge the accused with one offence but he can be convicted for other offence if appears in evidence that he committed a different offence for which may have been charged under the provision of that section, therefore, he may be convicted for offence which he is shown to have committed although he was not charged with it. Consequently the accused is charged with section 23 Sindh Arms Act, 2013 but from evidence it appears that he committed offence under section 25 of Sindh Arms Act, 2013, therefore, I found him guilty for committing offence under section 25 of Sindh Arms Act, 2013 and convict him under section 265-H(ii) Cr.PC and sentence to R.I. for 5 (five years) with fine of Rs5000/- (Five thousand). In default thereof he shall further undergo S.I. for three months.

2. Facts of the prosecution case in nutshell are that on 02.04.2016, ASI Qurban Ali along with HC Asghar Niqazi, PCs Muhammad Yaseen and Syed Riaz Hussain Shah left police station for patrolling duty. Police party reached near Memon Goal Masjid at 01:10 p.m. Where it is alleged that two persons appeared on motorcycle in suspicion manner, police signaled them to stop but it is alleged that both persons started firing upon the police party, police also fired in self defence. In cross firing, both accused sustained fire arm injuries. Police surrounded and caught them hold. On inquiry, one accused disclosed his name as Ameenullah, 30 bore T.T. with two live rounds in the magazine were recovered from his possession. From possession of another accused namely Mehmood (now dead) 30 bore T.T. pistol with two rounds were recovered. Both accused had no licenses for the weapons carried by them. Motorcycle in the use of accused was also seized. Mashirnama of arrest and recovery was prepared in presence of the mashirs. Accused were referred to the hospital for their examination, treatment and certificate where accused Mehmood succumbed to injuries. ASI Qurban Ali lodged FIR against the accused at P.S. Ferozeabad vide Crime No.112/2016 under sections 324, 353, 186, 34 PPC. Separate FIRs vide Crimes Nos.113 and 114 of 2016 under section 23(1)(a) of the Sindh Arms Act, 2013 were registered against both the accused on behalf of the State.

3. Inspector Muhammad Fareeduddin investigated the case. IO inspected the place of wardat, took the photographs, prepared such mashirnama in presence of the mashirs. He recorded 161 Cr.PC statements of the PWs, collected CRO of the accused, dispatched recovered pistols and empties for ballistic report, and received positive report. IO had also sent clothes of the deceased to the chemical examiner and handed over the dead body to the mother of the deceased; collected reports from experts. On the conclusion of usual investigation submitted challan against accused Ameenullah under section 353, 324, 128, 34, PPC read with section 7 of the Anti-Terrorism Act, 1997 and under section 23(1)(a) of the Sindh Arms Act, 2013.

4. Learned trial court ordered for joint trial as provided under section 21-M of the Anti-Terrorism Act, 1997.

5. Trial court framed charge against accused Ameenullah at Ex.4. Accused pleaded not guilty and claimed to be tried.

6. At trial, prosecution examined in all five prosecution witnesses, who produced investigation papers and positive reports of the experts. Thereafter, prosecution side was closed.

7. Statement of accused was recorded under section 342, Cr.PC in which accused claimed false implication in this case and denied the prosecution allegations. Accused raised plea that police demanded money from him, on his refusal cases were foisted upon him. Appellant/accused did not lead evidence in his defence and declined to give statement on oath in disproof of prosecution allegations.

8. Trial court after hearing the learned counsel for the parties and assessment of the evidence convicted and sentenced the appellant vide judgment dated 15.04.2017 as stated above, hence this appeal.

9. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 15.04.2017 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

10. Mr. Shah Imroze Khan, learned advocate for the appellant mainly contended that prosecution case is highly doubtful. It was day time incident and there was cross firing but none received injury from either side; that ASI Qubran Ali failed to produce arrival and departure entries of police station before the trial court, which cuts the roots of the prosecution case’ that place of incident was situated near Goal Masjid but not a single independent person of the locality has been examined by the prosecution. It is also argued that complainant ASI Qurban Ali has admitted that he did not ask the private persons to act as mashir in the case; that description of the crime weapons mentioned in the mashirnama of arrest and recovery is different from the description given by the complainant in evidence before the trial court. It is argued that prosecution has failed to establish the safe custody of the crime weapons at the malkhana of police station and its safe transit to ballistic expert. Lastly, it is argued that in fake encounter police officials committed murder of an innocent person and caused fire arm injury to appellant. In support of his contentions learned advocate for appellant has relied upon the case of Wazir Ali and others vs. The State (SBLR 2018 Sindh 768) and Kamaluddin alias Kamala vs. The State (2018 SCMR 577)

11. Mr. Muhammad Iqbal Awan, learned Deputy Prosecutor General Sindh argued that accused was arrested in injured condition at spot; crime weapon was recovered from his possession; report of ballistic expert was positive. He has further argued that evidence of police officials was trustworthy and confidence inspiring; they had no enmity to falsely implicate the accused in this case. Learned D.P.G. prayed for dismissal of the appeal.

12. We have carefully heard the learned counsel for the parties and scanned the evidence available on record.

13. Close scrutiny of the evidence reflects that prosecution story appeared to be unnatural and unbelievable for the reason that according to prosecution case encounter took place on 02.04.2016 at the distance of 11/14 yards from Goal Masjid at 01:10 p.m. and accused were caught hold in injured condition. We are unable to rely upon the evidence of the police officials with regard to police encounter for the reason that there was cross-firing for about 2 to 3 minutes but no injury/scratch was caused to police party, even to the passersby; police mobile and motorcycle of the accused were also not damaged. Blood was also not found at the place of incident. ASI Qurban Ali (PW-1) has admitted in the cross-examination that private persons were present but he did not ask them to act as mashir. It is also admitted by the complainant ASI Qurban Ali that on the barrel of the pistol, number 11 was written and some words were written in Chinese language but said descriptions have not been mentioned in the mashirnama of arrest and recovery. Non-production of the arrival and departure entries of police station also cut the roots of the prosecution case. Investigation officer had also failed to conduct the fair investigation in this case as no independent person of locality was examined in order to ascertain truth. IO had deposed that during investigation co-accused Mahmood who was injured expired in the hospital. In the cross-examination, investigation officer has replied that he had received information about the incident through wireless operator. No evidence of modern devices to that extent has been produced by the prosecution before the trial court. Prosecution failed to prove that appellant assaulted or used criminal force to police officials to deter from discharge of their duty. Appellant had been convicted under section 324, PPC was without any evidence. From the prosecution evidence available on record, offence had no nexus with the object of Anti-Terrorism Act, 1997 as contemplated under sections 6 and 7 of the Anti-Terrorism Act, 1997. Therefore, evidence available on record makes it clear that encounter had not taken place. Above stated circumstances created doubt about the happening of the encounter. The standard of the proof in this case should have been far higher as compared to any other criminal case when according to the prosecution it was case of police encounter. It was desirable that it should have been investigated by some other agency. Such dictum has been laid down by the Honourable Supreme Court in the case of Zeeshan alias Shani versus the State (2012 SCMR 428). Relevant portion is reproduced as under:-

“11. The standard of proof in this case should have been far higher as compared to any other criminal case when according to the prosecution it was a case of police encounter. It was, thus, desirable and even imperative that it should have been investigated by some other agency. Police, in this case, could not have been investigators of their own cause. Such investigation which is woefully lacking independent character cannot be made basis for conviction in a charge involving capital sentence, that too when it is riddled with many lacunas and loopholes listed above, quite apart from the afterthoughts and improvements. It would not be in accord of safe administration of justice to maintain the conviction and sentence of the appellant in the circumstances of the case. We, therefore, by extending the benefit of doubt allow this appeal, set aside the conviction and sentence awarded and acquit the appellant of the charges. He be set free forthwith if not required in any other case.”

14. Prosecution has also utterly failed to prove safe custody of the crime weapons at the malkhana of the police station and its safe transit to expert. Delay in sending weapons to the forensic division has also not been explained, as such, no sanctity can be attached to the positive report. With regard to safe custody of the weapon at police station and its safe transit, the Honourable Apex Court in the case of Kamaluddin alias Kamala vs. The State (2018 SCMR 577) has held as under:

“4. As regards the alleged recovery of Kalashnikov from the appellant’s custody during the investigation and its subsequent matching with some crime-empties secured from the place of occurrence suffice it to observe that Muhammad Athar Farooq DSP/SDPO (PW18), the Investigating Officer, had divulged before the trial court that the recoveries relied upon in this case had been affected by Ayub, Inspector in an earlier case and thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial court through production of any witness concerned with such custody and transmission.”

15. In view of the above stated reasons, we have no hesitation to hold that there are several circumstances/infirmities in the prosecution case as highlighted above, which have created reasonable doubt about guilt of accused. 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.”

16. For the above stated reasons, we have come to the conclusion that prosecution has utterly failed to prove its case against the appellant, trial court failed to appreciate the evidence according to settled principles of law. In this case co-accused Mahmood sustained fire arm injuries at the hands of police officials and succumbed to the injuries in the hospital. False implication of appellant could not be ruled out in this case. While relying upon the above cited authorities, we hold that prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt. Resultantly, the appeal is allowed and conviction and sentence recorded by the trial Court vide judgment dated 15.04.2017 are set aside and appellant is acquitted of the charges. Appellant shall be released forthwith if not required in some other custody case.

17. Before parting with this judgment, it is observed that Inspector General of Police Sindh shall take action against ASI Qurban Ali, HC Asghar Niazi and Inspector Muhammad Fareeduddin, wherever they are posted now in accordance with law, within two months, under intimation to this Court. Let copy of this judgment be sent to the Inspector General of Police Sindh for information and compliance. A copy of judgment be sent to Dr. Shabana Waheed, 1^st Additional Sessions Judge, wherever she is posted for future guidance with advice to be careful in future.

J U D G E

J U D G E

Gulsher/PS