THE HIGH COURT OF SINDH AT KARACHI

 

Special Criminal Anti-Terrorism Appeal No.99 of 2020

 

Before:                                                      

Mr. Justice Mohammad Karim Khan Agha

Mr. Justice Irshad Ali Shah

 

Appellant:                                        Muhammad Ishaq alias Gul Khan son of Sher Alam Khan through Mr. Hashmat Khalid advocate

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

Date of hearing:                              30.08.2021

Date of announcement:                01.09.2021

 

J U D G M E N T

IRSHAD ALI SHAH, J- The appellant after due trial, for offence punishable under Sections 4/5 of Explosive Substances Act, 1908 read with Section 7(1)(ff) of Anti-Terrorism Act 1997, for being in possession of explosive suicide Jacket and two hand grenades with detonators was convicted and sentenced to undergo rigorous imprisonment for 14 years by learned Judge, Anti-Terrorism Court No.VII, Karachi vide his judgment dated 23rd July 2020, which is impugned by the appellant before this Court by preferring the instant Special Crl. A.T. Appeal.

2.       It is contended by learned counsel for the appellant that the appellant is originally resident of Dir, Khyber Pakhtunkhwa, he was taken from his house by the personnel of law enforcing agencies and then was involved in this case falsely at Karachi by making foistation of the alleged recovery of explosive substance upon him; that such applications were moved by his wife Mst. Shirin Gul with high-ups; that there is no independent witness to the incident and evidence of the P.Ws being doubtful in its character has been believed by the learned trial Court without assigning cogent reasons, therefore, the appellant is liable to his acquittal by extending him benefit of doubt. In support of his contentions, he relied upon cases of Ajab alias Rajab and another vs. The State (2004 MLD 180) & Shamsud Doha vs. The State and another (2005 P.Cr.L.J 310).

3.       Learned Additional P.G for the state by supporting the impugned judgment has sought for dismissal of the instant Special Criminal A.T Appeal by contending that he has rightly been convicted by learned trial Court on the basis of proper assessment of evidence, brought on record by the prosecution. In support of his contentions, he relied upon case of Muhammad Yaqoob vs. The State (2020 SCMR 853).

4.       We have considered the above arguments and perused the record.

5.       It is inter-alia stated by complainant SIP Muhammad Tahir and P.W mashir PC Syed Muhammad Kamran Khan that on 09.04.2019, they with rest of the police personnel when were busy in patrolling, received spy information that the appellant being terrorist and member of Jindullah Pakistan is coming from Sukkur to Karachi through Sukkur Express. On such information, they went at Dawood Pota Road and on pointation of spy apprehended the appellant and on search from him were secured Jacket ready to be exploded, two hand grenades with detonators, his CNIC, Railway Ticket and Rs.1500/-. A memo of arrest and recovery was prepared at the spot and then appellant was taken to PS CTD Civil Lines Karachi, there he was formally booked in the present case. The recovery of the explosive substance so made from the appellant was defused by Inspector Ghulam Mustafa, who further certified through his report the recovery to be containing the high explosive and low explosive substance. The investigation of the case was conducted by Inspector Syed Muhammad Sarfaraz, who recorded statements of the P.Ws under section 161 Cr.P.C, obtained the criminal record of the appellant and report of Punjab Forensic Science Agency with regard to the explosive substance recovered from the appellant and then submitted challan of the case against the appellant before the Court having jurisdiction. The complainant and his witnesses have stood by their version on all material points with regard to the recovery of explosive substance made from the appellant despite lengthy cross examination. Their evidence could not be disbelieved only for the reason that they are police officials. It is settled by now that the police officials are as good witnesses as others until and unless some malafide is alleged and then is proved against them. In the instant case, indeed nothing has been brought on record by the appellant which may suggest that the police officials were having reason to have involved him in this case falsely by making foistation of suicide jacket and hand grenades upon him. No doubt the appellant in his statement recorded under Section 342 Cr.P.C has taken the plea that he was taken by the personnel of law enforcing agencies from his house and his wife Mst. Shirin Gul made such applications with authorities but has not been able to bring his wife in witness box to go through the test of examination and cross-examination, such omission on his part could not be overlooked. Beside this the appellant has not been able to examine himself on oath for no obvious reason. In these circumstances, it would be hard to upset the findings of conviction against the appellant by making an unjustified conclusion that he being innocent has been involved in this case falsely by the police by making foistation of explosive substance upon him which was to be used for terrorist activities.

6.       The case law which is relied upon by learned counsel for the appellant is on different facts and circumstances. In case of Ajab alias Rajab and others (supra), the appeal was dismissed with reduction of the sentence, it was abduction case. In the instant case the minimum sentence prescribed by law for the alleged offence is 14 years, it could not be reduced. In case of Shamsud Doha (supra), the appeal was dismissed. Even otherwise it was a murder case.

7.       Prima facie, no misreading/non-reading of evidence is apparent of the record on the part of learned trial Judge, which may justify making interference with the impugned judgment. Consequently, the instant appeal is dismissed.

JUDGE

 

JUDGE