IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Acquittal Appeal No.D-210 of 2019

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE.

Present:

Mr. Justice Naimatullah Phulpoto.

Mr. Justice Zulfiqar Ali Sangi.

Appellant: The State through, Syed Sardar Ali Shah, D.P.G.

Date of hearing: 22.01.2020 .

Date of decision: 22.01.2020.

J U D G M E N T

ZULFIQAR ALI SANGI, J:- Through this acquittal appeal the appellant/State has impugned the judgment dated 22.10.2019 passed by Judge, Anti-Terrorism Court, Naushehro Feroze in Spl. case No.64/2018 arising out of crime No.85/2018 U/s 4/5 Explosive Substance Act, r/w Section 6/7 ATA, 1997 registered at Police Station, Johi whereby the respondents Naseer Ahmed and Mukhtiar were acquitted by extending them the benefit of the doubt.

2. Brief facts of the prosecution case are that on 03.10.2018 at 2200 hours ASI Ghulam Rasool Gopang got registered the FIR at Police Station, Johi stating therein that he along with his subordinate staff left Police Station vide Roznamcha entry No.17 at 1815 hours for patrolling purpose. After visiting different places when they reached at link road leading from Johi to Chhini beside D/2 Shakh at 2100 hours, they on the light of the official vehicle saw about 4/5 persons coming from the western side of the main road. The complainant party stopped the vehicle, got down and asked them to stop, but they tried to escape towards the eastern side, on which Police party skillfully encircled them and apprehended one person while other accused persons fled away due to darkness. On inquiry arrested accused disclosed his name as Naseer Ahmed son of Mohammad Ibrahim Abro, resident of Chhato Wahan Taluka Baqrani, district Larkana and disclosed names of escaped away accused persons to be Mukhtiar Ali Almani, Mushtaque Ali Bijarani, and Rafique Umrani. Complainant arrested accused Naseer Ahmed Abro under section 54 Cr.P.C. During his search complainant found one blue colour shopper from his side pocket, containing white colour explosive material and one white colour shopper containing some ball barring and from yellow shopper one red colour wire explosive cord duly packed, from another side of pocket found one CNIC bearing No.43201-3451454-9 and Rs.1170. Complainant weighed explosive material which became 110 grams, which was sealed at the spot on the light of government vehicle in presence of official witnesses and obtained their signature on the memo. Complainant party then brought arrested accused and recovered property at Police Station and lodged FIR.

3. After completing the investigation, Investigation officer submitted the challan against accused/respondents before the trial court where after completing all the formalities trial court framed the charge against the accused Naseer Ahmed and after recording evidence of some of the witnesses another accused namely Mukhtiar Ali was arrested and charge was amended and all the witnesses already examined were recalled.

4. To substantiate the charge against the accused/respondents prosecution has examined PW-1 complainant ASI Ghulam Rasool Gopang who produced roznamcha entry No.17 at Ex.12-A, memo of arrest and recovery at Ex.12-B, FIR at Ex.12-C and attested copy of entry No.19 at Ex.12-D. PW-2 HC Dost Ali Lund examined who produced a memo of inspection of the place of incident at Ex.13-A and memo of de-sealing property and securing sample of white colour powder at Ex.13-B. PW-3 HC Intizar Hussain Soomro examined who produced entry No.6 at 14-A. PW-4 PC Imam Ali Gopang examined. Thereafter one accused was arrested and the amended charge was framed at Ex.17. Thereafter, PW-1 complainant, ASI Ghulam Rasool Gopang was again examined at Ex.20. PW-2 HC Dost Ali at EX.21. PW-3 HC Intizar Hussain at Ex. 22. PW.4 PC Imam Ali Gopang was examined at Ex.23. PW-5 I.O/Inspector Nazir Ahmed Mallah examined at Ex.24 who produced entry No.5 at Ex.24-A, entry No.35 at EX.24-B and letter addressed to SSP Dadu at Ex.24-C. PW-6 PC Ahmed Ali Chandio examined at EX.25 who produced a memo of the formal arrest of accused Mukhtiar Ali at Ex.25-A. PW-7 I.O. Inspector Ali Akbar Panhwar examined at Ex.26 who produced the letter of SSP Dadu addressed to DIGP Hyderabad Range at Ex.26-A, letter of DIGP Hyderabad Range addressed to Secretary Home Department Government of Sindh at Ex.26-B.Permission letter to Home Secretary Government of Sindh at Ex.26-C and report of Punjab Province Forensic Science Agency about the powder at Ex.26-D. Then learned APG for State closed the side of the prosecution.

5. Accused Naseer Ahmed was examined under section U/s 342 Cr.P.C, in which he stated that he was kidnapped by some unknown persons who were in private dresses in Govt: vehicle on 4-9-2017 from Bakrani when he was going for labor. His brother Ghulam Hussain filed such a petition which he produced at Ex. 28/A, then he was handed over to Johi police and was falsely involved in the present case. Whereas Mukhtiar Ali in his statement under section 342 Cr.P.C has simply stated that he is innocent and falsely been involved in the case.

6. Heard learned Deputy Prosecutor General perused the material available on the record with his able assistance.

7. Learned Deputy Prosecutor General submits that the prosecution proved the case against the respondents by producing oral as well as documentary evidence; that recovery has been proved by the prosecution; that all the witnesses of prosecution supported the case and no major contradiction is available in the evidence which creates any doubt in the case of prosecution; that judgment of the trial Court is not in accordance with law. Lastly, he prays that acquittal appeal may be allowed and respondents may be convicted.

8. It is well settled by now that the scope of appeal against acquittal is very narrow and there is a double presumption of innocence and that the Courts generally do not interfere with the same unless they find the reasoning in the impugned judgment to be perverse, arbitrary, foolish, artificial, speculative and ridiculous as was held by the Supreme Court in the cases of State Versus Abdul Khaliq and others (PLD 2011 SC 554), the same is reproduced as under:-

From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced that the scope of interference in appeal against acquittal is most narrow and limited because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.

9. We have carefully considered the material available on record and have gone through the impugned judgment and found that the reasons given by the learned trial court are based on the principles of appreciation of evidence. Learned trial court assigned reasons in paragraph 18 of the judgment the same are, therefore, reproduced as under:-

18. It is the case of the prosecution that white colour powder weighing 110 grams secured from the possession of accused Naseer Ahmed Abro, but when above property was de-sealed on the request of learned Counsel for the accused, powder was not found in parcel, but surprisingly white piece of material like soap was found from it. The star witness HC Intizar Hussain head of Bomb Disposal Squad Dadu has admitted that he is not degree holder, but he has appeared in ¾ training courses. He did not identify type of powder secured from possession of accused; even he failed to give details of basic items for preparation of the bomb. Learned Counsel for the accused pointed out several material contradictions in evidence of witnesses and he has relied upon case of Intekhab Ahmed Abbasi and others v. The State and others reported in 2018 SCMR 495. Placitum-D, P=501 of judgment is reproduced as under;

“Another vital aspect of the case is that potassium chloride allegedly recovered from the accused, was described as explosive substance, however, the chemical formula of explosive substance is potassium nitrate/black powder, sulphur, phosphorus nitrate, powder aluminum or grain dust, potassium,, chlorate and many other chemicals if are mixed together, would constitute high intensity explosive substance to cause massive destruction/devastation through explosion therefore, a question arises as to whether potassium chloride recovered in this case is a sole ingredient, which could be termed high intensity and of velocity explosive substance to destroy a well-fortified building/structure and cause destruction of both life and property. The report of the incharge BDS thus appears to be inconclusive and it cannot be categorized to be a right opinion on the subject”.

10. Besides the above findings of the trial court, we found from the evidence following defects in the prosecution case which creates very serious doubt in the prosecution case.

(a). The incident took place on 3-10-2018 and the complainant showed the place of wardat to investigation officer on 05-10-2018.

(b). Recovery was shown effected on 03-10-2018 and the samples were taken by BDU expert on 19-10-2019.

( c ). On the request of counsel of accused case property was de-sealed in open court where the alleged recovered white colour powder was not found in the sealed parcel, such fact was also admitted by PW-2 Dost Muhammad during cross-examination who stated that ‘No white colour powder was found in the sealed parcel’.

(d). Recovered property was not exhibited in the evidence though it was available in the court.

(e). PW-2 Dost Muhammad admitted during cross-examination that his signature over the memo Ex. 13/A is different than other signatures over the memos.

11. Based on the above discussion, We have found that the acquittal of the respondents does not suffer from any illegality to call for interference by this court with the impugned judgment. Based on the law concerning an appeal against acquittal and the fact that the learned trial Judge has advanced valid and cogent reasons for passing a finding of acquittal in favor of the respondents and we see no legal justification to disturb the same as such the appeal against the acquittal against the respondents is dismissed in Limini.

12. These are the reasons for our short order dated: 22-01-2020 announced in court.

JUDGE

JUDGE