THE HIGH COURT OF SINDH AT KARACHI
Special Criminal Anti-Terrorism Appeal No.45 of 2020
Special Criminal Anti-Terrorism Appeal No.46 of 2020
Special Criminal Anti-Terrorism Appeal No.47 of 2020
Special Criminal Anti-Terrorism Appeal No.48 of 2020
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Date Order with Signature(s) of Judge(s)
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Present: Mr. Justice Abdul Maalik Gaddi
Justice Mrs. Rashida Asad
Appellants (in Spl. : (1) Yaqoob Khan son of Maroof Khan,
Cr. A.T.A. No.45 (2) Sheraz son Wali Muhammad,
of 2020) (3) Sheriyar son of Wali Muhammad
through Mr. Muhammad Faisal Bukhari,
Advocate.
Appellant (in Spl. : Yaqoob Khan son of Maroof Khan, through
Cr. A.T.A. No.46 Mr. Muhammad Faisal Bukhari, Advocate.
of 2020)
Appellant (in Spl. : Sheraz son of Wali Muhammad, through
Cr. A.T.A. No.47 Mr. Muhammad Faisal Bukhari, Advocate.
of 2020)
Appellant (in Spl. : Sheriyar son of Wali Muhammad, through
Cr. A.T.A. No.48 Mr. Muhammad Faisal Bukhari, Advocate.
of 2020)
Respondent : The State through Mr. Ali Haider Saleem,
Deputy Prosecutor General, Sindh.
Date of hearing : 19.5.2020
Date of Judgment : 19.5.2020
J U D G M E N T
Abdul Maalik Gaddi, J.– Through this common Judgment, we intend to decide the captioned appeals filed by the appellants as these appeals relate to same incident as well as common Judgment delivered by the learned trial Court dated 25.2.2020.
2. By means of these appeals, the appellants have assailed the common Judgment dated 25.2.2020 passed by the Anti-Terrorism Court No.II, Karachi in Special Cases No.529, 529-A, 529-B and 529-C of 2019, arising out of Crimes No.291, 292, 293 and 294 of 2019, registered at police station NKIA, under Sections 353/324/34, PPC read with Section 7 of A.T.A., 1997 and Section 23(i)(a) of SAA, 2013, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellants as stated in point No.5, paragraph No.39 of the impugned common judgment. For the sake of convenience, it would be appropriate to reproduce the said point of the impugned common judgment, which read as follows:-
“Point No.5.
39. In view of my findings on above Points the charge leveled against accused Yaqoob Khan son of Maroof Khan, Sheeraz son of Wali Muhammad and Shehryar son of Wali Muhammad stands proved. They had encounter with police to deter them in discharging their duties they are awarded Rigorous Imprisonment for five years U/s 353 of PPC. They are also convicted and sentenced to suffer R.I for Five years U/s 23(i)A. S.A.A keeping the unlicensed weapons by each. All the punishments will run concurrently. The benefit of Section 382-B is extended to the accused persons. The case against absconding accused will be decided as and when they are arrested.”
3. Brief facts of the prosecution case as disclosed in the FIR are that on 6.8.2019, complainant ASI Amjad Hussain along with police party namely, PC Rehan (Buckle No.44772), Driver Jawed Iqbal (Buckle No.22541) in Government Mobile Bucktar Band (APC) No.SPE-103 in search of terrorists and criminals when he received spy information that one Car No.AUT-496 Corolla Grey Color in which five (5) criminals wanted in many cases are present near Allah Wali Road, G-23 Bus stop, opposite Baraf Depo, Sector 5/F, New Karachi, coming for some big crime. On such information, he along with PC Faraz (Buckle No.37230) and PC Akram (Buckle No.18396) left and at about 0530 hours reached at the pointed place and saw two persons inside the car and few persons outside the car, who seeking the police party coming towards them started firing and police party in self defence also got retaliated whereupon two (2) persons who were sitting in the car escaped towards Ahsabad, whereas, three (3) persons were surrounded and apprehended. They disclosed their names as Yaqoob Khan son of Maroof Khan, Sheeraz son of Wali Muhammad and Shehryar son of Wali Muhammad. Their personal search were conducted in presence of mashirs and police recovered one 30 bore pistol steel body and on its body, CAL 30 BOKE FIGHTER HAMALIA ARMS COMPANY was written, along with loaded magazine with two rounds, one in chamber and one wallet black containing photocopy of CNIC No.4250156152437 and cash amount of Rs.1300/- from accused Yaqoob Khan. From accused Sheeraz, police recovered one 9mm pistol steel body on which, TURKIYS.T06201H1314 F)TISAZIGANA was written, along with two rounds, one in chamber and brown color wallet containing CNIC No.4520147222591 and cash of Rs.1650/-, whereas, from accused Shahryar, police recovered one 30 bore pistol, on which, PAKISAN PESHAWAR 30 BORE 01 AMOND SPESIAL BORE MADE IN 30 was written with loaded magazine two rounds, one in chamber and Rs.1900/-. Thereafter, apprehended accused also disclosed the names of absconding accused as Muhammad Tahir Khan son of Firdous Khan and second driver was Zahid @ Katchi @ Katchkol. From the place of incident, one parashoot bag was also recovered in which Registration Book of Corolla Car No.AUT-496, 16 mobile phones amongst which six were touch screen, two were Samsung, two were moto, two Q-mobile VINKO China, ten keypad mobile phones, three wrist watches, one Fauji Cap on the bag was written in BASF and one 9mm pistol was also found on the earth with three rounds belongs to absconder accused Zahid Katchi @ Kathkol. Accused also failed to produce any permit or license of aforesaid pistols, as such, they were arrested in presence of mashirs and after completing all formalities, they were brought at police station, where aforesaid FIRs were lodged against them.
4. On perusal of record, it reveals that these cases were amalgamated by the trial Court under Section 21-M of ATA 1997 as such a joint charge was framed against the accused persons on 02.11.2019, to which they pleaded not guilty and claimed their trial vide their pleas.
5. At trial, the prosecution has examined the following witnesses:-
(i) PW-1 ASI Syed Amjad Hussain at Ex.P/1, who produced departure entry No.31, memo of arrest and recovery, arrival entry No.45, five FIRs No.291 to 295 of 2019, memo of inspection and sketch of place of incident at Ex.P/2 to Ex.P/11 respectively;
(ii) PW-2 PC Rehan at Ex.P/12;
(iii) PW-3 I.O./Inspector Syed Zafar Ahmed at Ex.P/13, who produced entry No.28 for receiving investigation, arrival entry No.33, entry No.43, letter to FSL, report of FSL, letter for CRO, CRO of accused Yaqoob Khan and Sheeraz, letter to Excise Taxation Department, Report of Vehicle, delivery of car to Zahid Khan, letter to FSL of APC and its report, complete report of mobiles, photographs of APC, letter to DC East about weapons and fire arms and ammunitions register at Ex.P/14 to Ex.30 respectively;
These witnesses have been cross examined by the Counsel for the appellants. Thereafter, leaned APG for the State closed the prosecution side vide Statement at Ex.31.
6. Statements of accused under Section 342, Cr.P.C. were recorded at Ex.32 to Ex.34, wherein they denied the prosecution allegations and prayed for justice. However, they neither examined themselves on oath nor led any evidence in their defense.
7. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 25.02.2020, convicted and sentenced the appellants as stated supra. Hence, these appeals have been filed by the appellants.
8. Mr. Muhammad Faisal Bukhari, learned Counsel for appellants contended that appellants are innocent and have been falsely implicated in these cases; that whole case of prosecution is based upon evidence of police officials and no independent witness has been cited to witness the arrest and recovery proceedings though place of incident was thickly populated area, which is surrounded by shops, house and bus stops, as such, the police has violated the requirement of Section 103, Cr.P.C.; that nothing was recovered from the possession of appellants as well as the alleged recoveries have been foisted upon them by the police to show their efficiency; that during the alleged encounter, neither police official received any injury, nor accused received any injury. During the course of arguments, he has taken to us towards the evidence of prosecution witnesses on record and has pointed out various contradictions in their evidence; therefore, according to him, no reliance could be placed on contradictory evidence for maintaining the conviction, as such, he has prayed for allowing these appeals.
9. Conversely, Mr. Ali Haider Saleem, learned Deputy Prosecutor General, Sindh while supporting the impugned common judgment submits that the prosecution has fully established its case against the appellants beyond reasonable doubt by producing consistent/convincing and reliable evidence and the impugned conviction and sentenced awarded to the appellants is the result of proper appreciation of evidence brought on record, which needs no interference. Lastly, he prayed that appeal may be dismissed.
10. We have heard the learned counsel for the parties at a considerable length and have perused the evidence and documents available on record.
11. After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the decision of appeal. It is the settled principle of law that burden is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view of this basic touchstone of criminal administration of justice, we have examined the ocular evidence and documentary evidence, alongwith impugned common judgment.
12. After hearing the parties, we have come to the conclusion that prosecution has failed to establish its’ case against the appellants for the reasons that all the pieces of evidence so brought by the prosecution in these cases against the appellants are weak in nature. As per prosecution story, on the relevant date and time, police party left police station for patrolling in the area vide Entry No.31 of 2019, which is on record at Ex.P/2 of R&Ps, but on perusal of said entry, the number of police mobile has not been mentioned. It is the case of prosecution that police party was on patrolling duty and during patrolling, they received spy information about the availability of appellants near Allah Wali Road, G-23, Bus Opposite Ice Depo, Sector 5/F, New Karachi. On such information, when police party reached at pointed place, the present appellants along with their companions upon seeing police party, started firing upon them and in retaliation, police party also made firing upon them. This encounter was continued for few minutes with sophisticated weapons, but admittedly, during this encounter neither appellants, nor accused or any passerby or anybody from the public was injured.
13. It is also the case of prosecution that during said encounter, only police mobile bearing Registration No.SPE-103 had received two wholes of fire arms, but departure entry No.31 of 2019 does not show the said police mobile registration number under which police party left police station for patrolling, but surprisingly, arrival entry No.45 showing the police mobile registration number. This aspect also gives serious jolt to the prosecution story. On perusal of evidence and documents on record, it reveals that two companions of present appellants were available inside the Toyota Corolla Car bearing Registration No.AUT-496, but it is surprising to note that said two companions of appellants were fled away from the spot and police party did not make any efforts to arrest them. It is admitted by the complainant in his evidence that when that car was escaped away, he did not inform on wireless to anyone to catch the said car. This fact also creates doubt in the prosecution case.
14. It is also the case of the prosecution that at the time of arrest of appellants, apart from alleged recovery of weapons, sixteen (16) mobile phones, three (3) wrist watches, photocopies of CNICs, one cap on which BASF was written, wallets and some cash amounts were also recovered from their possession in presence of police officials, but this fact has been denied by the appellants in their statements recorded under Section 342, Cr.P.C. and stated that nothing was recovered from them and these cases were out of the result of enmity as the appellant Yaqoob Khan filed Constitution Petition bearing No.S-1721 of 2017 against the police officials, therefore, their false implication in these cases could not be ruled out. In order to reach at correct conclusion, we have perused the evidence of complainant ASI Syed Amjad Hussain available on record, who in his cross examination has admitted that he has not given detailed description of the items allegedly recovered from the appellants in the memo of arrest and recovery; however, for the sake of convenience, the relevant piece of cross examination of the complainant is reproduced herein below, which reads as under;
“It is correct to suggest that I had not seized the articles U/s 550 of Cr.P.C. It is correct to suggest that I will not be able to say that the black wallet or brown wallet was recovered from which accused. It is correct to suggest that it is not written in my statement U/s 154 that mufflers were also found from the bag. It is correct to suggest that I had not given the details of the wrist watches of which company they were. It is correct to suggest that I had not given the names of those persons whose photocopies of CNICs were found from the bag. It is correct to suggest that neither in the FIR nor in my examination in chief I had given descriptions about the sixteen mobiles phones. It is correct to suggest that I have not mentioned the plastic shopper in the FIR or in my examination in chief. Vol. says we have put the recovery in that shopper. It is correct to suggest that in the FIR or in my statement U/s 154, I did not say that recovery of yellow bag was put in the shopper. It is correct to suggest that I had not given the description/denomination of the money recovered from each accused in my memo of arrest and recovery. It is correct to suggest that the cap produced in the Court has digits which is not mentioned in the FIR. It is correct to suggest that I have also not mentioned either in my examination in chief or in my FIR that the colour of cap denotes which force it is.”
All the above admissions of complainant made in his cross examination clearly shows that investigating officer of the case has not properly conducted the investigation. Investigating officer not only failed to dig out source from whom appellants snatched these wallets and mobile phones as alleged, but also failed to trace out the record to whom these mobile phones belong. Needless to say that investigating officer was duty bound to collect all relevant evidence pertaining to the allegation of crime in issue so as to dig out truth enabling and facilitating the Court to administer the justice, however, in instant case, investigating officer also failed to discharge his duty in the manner as provided under the law.
15. Apart from the above, the alleged incident took place in thickly populated area, which is surrounded by shops, houses and bus stops, and alleged encounter was continued for some considerable time, but complainant had failed to obtain the services of any independent person to witness the event. We have noted that complainant in his cross examination, admitted that despite of availability of the private persons, he did not obtain the services of private witness. The relevant portion of the cross examination of complainant is reproduced as under;
“It is correct to suggest that I had not made any private persons as mushir from illaqa from where the accused persons were arrested.”
16. Since the whole prosecution case revolves around the evidence of police officials. No doubt, evidence of police officials are as good as another citizen, however, their evidence must be scrutinized with a greater degree of circumspection for the reason that in a society with the level of moral value that we unfortunately have, a subordinate officer is seldom expected to tell the truth in deviation of the express or implied instructions of his superior, therefore, under the circumstances, it was proper and even imperative that the case in hand being police encounter should have been investigated by some other agency to maintain the transparency and to curb the false implication. We have also perused the evidence of prosecution witnesses, but did not find to be trustworthy and confidence inspiring which too contradictory with each other on material particulars of the case, therefore, in the given circumstances, their evidence cannot be safely relied upon for maintaining the conviction. We have also gone through the case of Zeeshan @ Shani v. The State reported in 2012 SCMR 428; in this authority, it has been observed 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 after thoughts 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.”
17. It has vehemently been argued by learned Deputy Prosecutor General, Sindh that these appellants were remained involve in other criminal cases, as such, they are habitual offenders and therefore, they are not entitled for any relief. We have, however, not felt persuaded to agree with the learned Deputy Prosecutor General, Sindh for the reasons that mere saying that appellants remained involve in such type of activity in past is not enough. Nothing on record that present appellants were previously convicted in any such type of cases. In our humble opinion prior to conviction, it is presumed that every accused is innocent. Insofar as the case in hand is concerned, despite repeated queries by this Court, learned Deputy Prosecutor General, Sindh has failed to establish that the appellants were ever convicted in any case registered against them, therefore, they cannot be refused relief if otherwise under the law they become entitled for such relief. In this respect, we are fortified by the case of Jafar @ Jafri v. The State reported in 2012 SCMR 606, wherein the Hon’ble Supreme Court has held as under;
“8. We have heard the learned Counsel for the parties and have also gone through the contents of the compromise. As at present no sufficient evidence is available on record to conclude that the accused/appellant is habitual offender, coupled with the fact that although another F.I.R., referred to by the learned Additional P.G., has been registered against him but it, itself is not sufficient to prove the appellant to be so, unless it is proved/established that he has been convicted in the said F.I.R. and the said conviction has been finally maintained by the superior Courts. Therefore, we have decided to dispose of this case in terms of compromise.”
18. As observed above that these cases are riddled with many lacunas and loopholes as listed above, but the learned trial Judge has utterly failed to consider and appreciate these aspects of the case in its true perspective, therefore, in the given circumstances, benefit of doubt must go in favour of the appellants, therefore, the impugned common judgment cannot be maintained. In this regard, we are supported with the case of Tariq Pervez v. The State reported as 1995 SCMR 1345, wherein the Hon’ble Supreme Court has held as under:-
“The concept of benefit of doubt to an accused person is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a 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.”
19. After considering and appreciating the case evidence, we are of the considered opinion that the learned trial Court did not analyze the prosecution evidence in its true perception and in accordance with the principles laid down by the superior courts for dispensation of criminal justice. The learned trial Court has fallen into legal error by recording conviction of the appellants, therefore, we accept these appeals, set-aside the impugned common judgment of conviction and acquit them of the charge leveled against them. They be set free forthwith, if not required or wanted in any other criminal case.
20. These appeals were allowed by us on 19.5.2020 after hearing the parties through our short order and these are the detailed reasons thereof.
JUDGE
JUDGE
Faizan A. Rathore/PA*