IN THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Jail Appeal No. 14 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellant: Ramesh Kumar through Mr. Habib-ur-Rehman Jiskani, Advocate

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

Date of hearing: 08.02.2023

Date of judgment: 08.02.2023

J U D G M E N T

NAIMATULLAH PHULPOTO, J.- This Special Crl. Anti-Terrorism Jail Appeal is directed against judgment dated 14.12.2021, passed by learned Judge, Anti-Terrorism Court-XII, Karachi in Special Case No.344 of 2021 (FIR No.187/2021 u/s 4/5 Explosive Substance Act, 1908 r/w Section 7 of ATA 1997 PS Airport, Karachi). After regular trial, appellant was convicted under section 4 of the Explosive Substances Act, 1908 and sentenced to undergo 07 years R.I, he was further convicted under Section 5 of the Explosive Substances Act, 1908 and sentenced to undergo 07 years R.I.

2. Brief facts leading to the filing of the appeal are that on 12.07.2021, SHO Kaleem Khan Moosa of PS Airport left PS vide Roznamcha No.34 at about 1715 hours along with subordinate staff for patrolling when police party reached at Bhitai Abad, main Bazar at about 2320 hours, where police officials received spy information that one person was standing at Funnel area, Airport in suspicious condition. Police party on said information proceeded to the pointed place where saw present accused. He was carrying a black color school bag and was apprehended at 2330 hours. On inquiry, appellant disclosed his name as Ramesh Kumar s/o Ram Chand. Due to non-availability of private persons, SIP Syed Muhammad Shoaib and WHC Malik Zaheer Awan were made as mashirs and personal search of the school bag was conducted. From the bag, two hand grenades were recovered, one was bearing No. 65-2006 and another 80-2006. Explosive material in the shape of white color powder was also recovered, it was 1280 grams. Mashirnama of arrest and recovery was prepared. Thereafter, accused and case property were brought to the police station where FIR bearing Crime No.187/2021 u/s 4/5 Explosive Substance Act, 1908 r/w Section 7 of ATA 1997 PS Airport, Karachi was registered against the appellant on behalf of the state. BDU team was called for defusing the explosive material at police station.

3. Case property was handed over to Head Moharer at Malkhana of police station. In the morning, at about 0805 hour, I.O inspected place of incident and prepared such mashirnama in presence of mashirs. I.O recorded 161 Cr.P.C statements of the P.Ws. Explosive substance was defused by BDU. On conclusion of usual investigation, final report was submitted against the appellant/accused under the above referred sections.

4. Trial court framed charge against the appellant/accused at Ex.3, he pleaded not guilty and claimed to be tried.

5. At trial, prosecution examined five P.Ws, who produced report of the expert and relevant record. Thereafter, prosecution side was closed.

6. Trial court recorded statement of accused under section 342, Cr.PC at Ex.10, in which, appellant claimed his false implication in this case and denied the prosecution allegations. Accused raised plea that he was arrested from Hope Garment Factory Korangi Karachi. Appellant neither examined himself on oath u/s 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in his defence.

7. Trial Court after hearing the learned counsel for the parties and assessment of evidence vide judgment dated 14.12.2021, convicted and sentenced the appellant as stated above. Hence, the appellant has filed instant appeal against his conviction and sentence recorded by the trial Court.

8. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 14.12.2021 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Learned advocate for the appellant mainly argued that it was case of spy information and police officials had sufficient time to call independent and respectable persons of the locality at the time of arrest and recovery of the hand grenades from him; that it was night time incident, source of light is not mentioned and element of terrorism is missing in this case; that Head Moharer of police station has been examined but he has failed to produce relevant Roznamcha entry of the malkhana to prove safe custody and safe transmission of the explosive substance to the expert; that there is overwriting in the date of Clearance Certificate of BDU. Lastly, it is submitted that prosecution has failed to prove its’ case against the appellant and prayed for acquittal of the appellant. In support of his contentions, reliance has been placed upon the cases reported as Shahnawaz and another vs. The State (2020 P.Cr.L.J 134) and Tariq Pervez vs. The State (1995 SCMR 1345).

10. Mr. Muhammad Iqbal Awan, Additional Prosecutor General, argued that prosecution has proved its’ case against the appellant and no material contradiction in the evidence of the P.Ws has been brought on record; that police officials had no enmity whatsoever against the appellant to falsely implicate him in this case. As regards to the overwriting in the date of Clearance Certificate, it is submitted that overwriting is there but no malafide could be attributed to the BDU. Lastly, it is submitted that evidence with regard to the safe custody and safe transmission of explosive substance has not been produced before trial Court. However, Addl. P.G has prayed for dismissal of the appeal.

11. We have carefully heard the learned counsel for the parties and re-examined the entire evidence available on record.

12. We have come to the conclusion that prosecution has failed to prove its’ case against the appellant for the reasons that SHO had failed to associate with him private persons to witness recovery proceedings. It is case of the prosecution that hand grenades were handed over to the Incharge Malkhana of the police station but he has failed to produce entry of Malkhana to satisfy the Court that in fact he had kept hand grenades at the Malkhana in safe custody, explosive substance was sent to the expert after 03 days without explaining the delay. Record reflects that hand grenades were handed over to ASI Amanat Ali, he has also not been examined by the prosecution. Clearance Certificate produced by the prosecution at Ex4/D, there is clear overwriting in the date. Learned Addl. P.G could not explain about the overwriting in date. On our minute examination, the prosecution has utterly failed to establish safe custody of the explosive substance at police station and its safe transmission to the expert. Honourable Supreme Court in the case of KAMALUDDIN alias KAMLA versus The STATE (2018 SCMR 577) has laid down the following principle:

“4. As regards the alleged recovery of a 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.

13. As regards the evidence of the police officials is concerned, no doubt, evidence of the police officials cannot be discarded simply because they belong to police force; however, where the fate of the accused persons hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at the time. In the present case, SHO had prior information, it was not difficult for him to call independent persons but he deliberately avoided. No reliance can be placed upon the evidence of the police officials without independent corroboration, which is lacking in this case, particularly, when appellant/accused in his statement recorded under Section 342, Cr.P.C. has claimed false implication in this case. In these circumstances, evidence of the police officials without independent corroboration would be unsafe for maintaining the conviction. Judicial approach has to be cautious in dealing with such evidence, as held in the case of SAIFULLAH V. THE STATE (1992 MLD 984 Karachi). Relevant portion is reproduced as under:-

“8. The evidence of police officials cannot be discarded simply because they belong to police force. In Qasim and others v. The State reported in PLD 1967 Kar. 233, it was held:

“A police officer is as good a witness as any other person. The standard of judging his evidence is the same on which the evidence of any other witness is judged.”

However, in a case of this nature where the fate of an accused person hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at that time. Judicial approach has to be cautious in dealing with such evidence.”

14. After careful re-appraisal of the evidence discussed above, we are entertaining no amount of doubt that the prosecution has failed to bring home guilt to the accused as the evidence furnished at the trial is full of factual, legal defects and is bereft of legal worth/judicial efficacy. Therefore, no reliance can be placed on the same.

15. 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).

16. For the reasons discussed above, appeal is allowed by extending benefit of doubt. Conviction and sentence recorded by the trial court against the appellant are set aside. Appellant shall be released forthwith if not required in some other custody case.

J U D G E