IN THE HIGH COURT OF SINDH AT KARACHI
Special Criminal A.T. Jail Appeal
No.104 of 2015
Special Criminal A.T. Jail Appeal
No.105 of 2015
Special Criminal A.T. Jail Appeal
No.106 of 2015
Present:
Mr. Justice Naimatullah Phulpoto
Mr. Justice Rasheed Ahmed Soomro
Appellant:
Zulqarnain
alias Suleman son of Muhammad Umar through Muhammad Nadeem Khan,
advocate
Respondent: The
State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh
Date
of hearing: 06.09.2018
Date of Announcement: 14.09.2018
J U D G M E N T
Naimatullah
Phulpoto, J.- Appellant Zulqarnain
alias Suleman son of Muhammad Umar
was tried by learned Judge, Anti-Terrorism Court No.IX, Karachi, in Special
Cases Nos.122(III), 123(III) and 124(III) of 2014, registered at Police Station
Risala, Karachi. On conclusion of trial, learned trial Court vide judgment
dated 22.04.2015 convicted appellant Zulqarnain alias
Suleman and sentenced as him as under:-
A.
On found guilty of the charge of offence
under section 324, PPC accused is convicted and sentenced to suffer R.I. for
ten years and fine of Rs.40,000/- and in case of default he shall suffer R.I.
for three months more.
B.
On found guilty of the charge of offence
under section 353, PPC accused is convicted and sentenced to suffer R.I. for
two years and fine of Rs.10,000/- and in case of default he shall suffer R.I.
for one month more.
C.
On found guilty of the charge of offence under
section 427, PPC accused is convicted and sentenced to suffer R.I. for two
years and fine of Rs.10,000/- and in case of default he shall suffer R.I. for
two months more.
D.
On found guilty of the charge of offence
under section 23(1)(a) of the Sindh Arms Act, 2013 accused is convicted and
sentenced to suffer R.I. for seven years and fine of Rs.25,000/- and in case of
default he shall suffer R.I. for three months more.
E.
On found guilty of the charge of offence
under section 5 of Explosive Substances Act, 1908 accused is convicted and
sentenced to suffer R.I. for fourteen years and fine of Rs.50,000/- and in case
of default he shall suffer R.I. for four months more.
F.
On found guilty of the charge of offence
under section 7 of the Anti-Terrorism Act, 1997 accused is convicted and
sentenced to suffer R.I. for ten years and fine of Rs.30,000/- and in case of
default he shall suffer R.I. for two months more.
All
the sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.PC
was also extended to the accused.
2.
Brief
facts leading to the filing of instant appeals are that complainant ASI Mehmood
Ahmed lodged FIR on 04.04.2014 stating therein that on the same date he along
with HC Abdullah, PCs Khabib-ur-Rehman, Muhammad Abid and driver HC Syed Umair
were busy in patrolling on Government Mobile No.SP-3733 in the area. During
patrolling said ASI/Complainant received a tip-off about the presence of the
members of Suni Tehrik being armed with weapons nearby the Nigar Cinema on the
road with intention to commit some heinous crime and were making such
preparation. On such information, the police party proceeded towards the place
informed and reached there around 1400 hours’ time and on the pointation of the
spy they found two suspects available there who were encircled by the police
party and they started running. They were followed to apprehend them on which
both the extortionists/Bhatta Khor took out their pistols and started making
direct firing upon the police party with intention to commit their murders. In
result such firing the police mobile received bullet mark and the police party
narrowly escaped. The police party also returned the firing in their defence
where after one accused being armed with weapon was apprehended and other one
made his escape good. Accused on inquiry disclosed his name as Zulqarnain alias
Suleman son of Umar from whom one 30 bore pistol without number along with
three live bullets in its magazine and one in chamber being unlicensed was
recovered. On further personal search of accused one Aiwan bomb was recovered
from him which was bearing marking No.(80)(33); rupees two hundred were also
recovered. He disclosed about the absconding accused as Ibrahim son of not
known sector incharge of UC-7 Usmanabad. Four empties of 30 bore and five of
SMG were secured from the scene of offence lying over there. The weapons and
other recovered arms and ammunition were sealed on the spot and accused as such
was arrested and thereafter was brought at police station along with property
where three FIRs under separate crime numbers were registered against the
accused.
3.
After
usual investigation, challan was submitted against the accused under the above
referred sections. Co-accused was shown as absconder. Trial court declared him
as proclaimed offence and framed charge against appellant at Ex.18, to which
the appellant did not plead guilty and claimed to be tried.
4.
At trial, prosecution
examined three witnesses, who produced the relevant record. Thereafter, prosecution
side was closed.
5.
The statement of the
appellant under Section 342 Cr.P.C., was recorded at Ex-24, wherein, he denied
the prosecution allegations. Accused/appellant raised plea that he has been
involved in this case falsely, on 27.03.2014, he was going to offer Juma
Prayers and he was arrested by the Pakistan Rangers, later on, his custody was
handed over to the police, who managed the story and foisted the weapons him
and registered false cases. Accused did not examine himself on oath nor
produced any witness in his defence in disproof of prosecution allegations.
6.
Learned trial Court, after
hearing the learned counsel for the parties and assessment of evidence
available on the record, vide judgment dated 22.04.2015, convicted the
appellant as stated above, hence three separate appeals have been preferred
arising out of the same judgment.
7.
The facts
of the case as well as evidence produced before the trial Court find an
elaborate mention in the judgment dated 22.04.2015 passed by the trial court
and, therefore, the same may not be reproduced here so as to avoid duplication
and unnecessary repetition.
8.
By
single judgment, we intend to decide the aforesaid appeals as the judgment is
common.
9.
We
have carefully heard the arguments of the learned counsel for the parties and also
scrutinized the evidence minutely.
10.
Admittedly,
no police officer or anyone else was injured in the incident through it was day
time incident and place of incident was thickly populated area. Prosecution
story appears to be unbelievable. It is claimed by the police officials that
they were armed with arms and ammunitions and one accused ran away from the
police. It is the question mark about the police officials who participated in
the police encounter. We have closely examined the evidence which reflects that
appellant surrendered before the police through he was armed with pistol. Thus,
there was no question of deterring the police party from discharging their
lawful duties of causing obstruction of any sort. It is strange enough that no
private person was associated as mashir of arrest and recovery though it has
come on record that place of incident is surrounded by houses and shops. PW-1
has deposed that he brought accused and case property to the police station but
there was no evidence that one aiwan bomb and pistols were handed over to the
Incharge of Malkhana for safe custody. Safe custody of the weapons at Police
Station and safe transit have also not been established, which is requirement
of the law as held in the case of Kamaluddin
alias Kamala vs. The State [2018 SCMR 577], wherein, the Honourable Supreme
Court of Pakistan has observed as under:-
“4. As regards the alleged recovery of
Kalashinkov 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.”
11.
According
to the case of prosecution fire hit to the police mobile but said mobile was
not produced before the trial court. PW-1, the head of the patrolling party,
has stated that after recovery of aiwan bomb he communicated message for BDU to
the wireless operator of DIG Office but no evidence of such modern device has
been produced before the trial court for satisfaction. There are two versions
of the case, one given by the prosecution and another introduced by the accused
in his statement recorded under section 324, Cr.PC in which the accused has
claimed that he was arrested by the rangers while he was going to perform Juma
Prayers and his custody was handed over to the police, who foisted weapons upon
him. Unfortunately, IO failed to examine that aspect of the case. Both versions
in such a situation are to be in just opposition in the light of evidence
brought on record and it is clear that evidence of police officials did not
inspire confidence. Defence plea though was not the whole truth yet it had
dented the prosecution case. While relying upon the cases of Harchand and
others vs. the State (2005 MLD 946) and Muhammad Yusuf vs. The State (2012 YLR
1992), we have no hesitation to hold that neither any encounter had been proved
nor there is any evidence to show that attempt was made on police party to
commit their murder. Recovery of the aiwan bomb and pistol have also not been
establish though the reports were positive but the same could not improve the
case of the prosecution. Judgment of conviction and sentence recorded by
learned Judge, Anti-Terrorism Court is without reasons and the same is unsubstantial
in the law and is liable to be set aside.
12.
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 Muhammad Mansha vs. The State (2018
SCMR 772), the Honourable Supreme Court has observed as
follows:-
“4. Needless to mention
that while giving the benefit of doubt to an accused it is not necessary that
there should be many circumstances creating doubt. If there is a circumstance
which creates reasonable doubt in a prudent mind about the guilt of the accused,
then the accused would be entitled to the benefit of such doubt, not as a
matter of grace and concession, but as a matter of right. It is based on the
maxim, "it is better that ten guilty persons be acquitted rather than one
innocent person be convicted". Reliance in this behalf can be made upon
the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2
others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR
230) and Muhammad Zaman v. The State (2014 SCMR 749).”
13.
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. 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, conviction and sentence recorded by the trial court vide judgment
dated 22.04.2015 are set aside. Appellant Zulqarnain alias Suleman son of
Muhammad Umar is acquitted in FIR No.99/2014, under sections 353, 324, 427, 34
PPC read with section 7 of the Anti-Terrorism Act, 1997, FIR No.100/2014 under section 23(1)(a) of the
Sindh Arms Act, 2013 and FIR No.101/2014, under section 4/5 of the Explosive
Substances Act, 1908, registered at P.S. Risala. He shall be released forthwith
if not required in some other custody case.
J U D G E
J U D G E
Gulsher/PS