THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals Nos. 78 and 79 of 2022

Special Criminal Anti-Terrorism Jail Appeal No. 86 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellants : Ali Hassan through Mr. Intikhab Ahmed advocate

Respondent : The State through Mr. Mohammad Iqbal Awan Addl.PG.

Date of Hearing : 25.01.2023

Date of judgment : 25.01.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Ali Hassan appellant was tried by learned Judge, Anti-Terrorism Court-III, Karachi in Special Cases No.165 and 165-A of 2021. After regular trial, vide judgment dated 28.03.2022, appellant was convicted under Section 7(c) of ATA 1997 in Crime No.206/2021 of PS SSHIA and sentenced to undergo 10 years R.I and to pay fine of Rs.10,000/- in case of default to undergo 02 months S.I. Appellant was further convicted under Section 353 PPC in Crime No.206/2021 of PS SSHIA and sentenced to undergo 02 years R.I. He was further convicted under Section 23(1)(a) of Sindh Arms Act 2013 in Crime No. 207/2021 PS SSHIA and sentenced to 03 years R.I and to pay fine of Rs.10,000/- and in default to undergo 02 months S.I. All the sentences were ordered to run concurrently. Appellant was also extended benefit of Section 382(b) Cr.P.C.

2. Brief facts of the prosecution case as mentioned by the trial court in the judgment are as under:

“Brief facts of the case are that vide entry No.34 complainant ASI Manzoor Hussain of police station S.S.H.I.A along with his staff PC Saleem Doghar, PC Riaz Ahmed and Driver-PC Ghazi Khan left PS for patrolling in official mobile bearing Registration No.SPG-098. During patrolling at about 1800 hours when they reached Wazir Brohi Goth and Sindhi Momin Society near Quetta Hotel Karachi, where the ASI saw three suspicious persons coming on motorcycle, to whom he signaled to stop. The suspicious persons instead of stopping the motorcycle speeded up the motorcycle. Therefore, the police chased them. The culprits on seeing the police party coming towards them started firing upon the police party with intention to kill them. The police also fired in their defense. As a result of firing made by accused one passerby namely Hajira (Heer) W/o Abdul Wahid was injured while as a result of firing of police one bullet hit on the pistol of accused who was sitting on the pillion seat and the said bullet also hit on his body, thus his pistol got damaged and fell down on the ground. The said accused put off his jacket in order to confuse his identity and threw away his jacket. The culprits then while firing ran away in the narrow street from the place of occurrence. Sense of terror and panic was created due to firing of the accused in public at large. The ASI secured 30 bore pistol thrown by the culprits and he also checked the jacket and secured two 30 bore magazines each loaded with five live rounds and one keypad mobile phone Vigo-Tel 1-10 contained one Mobilink SIM Card. The ASI also collected 02 empty shells of 30 bore pistol, 03 empty shells of 9mm pistol and 03 empty shells of SMG. The ASI sealed the case property and prepared memo of arrest and recovery in the presence of witnesses. He then brought the case property to PS where he registered two cases against the accused.”

3. After registration of the FIRs on behalf of state, investigation was carried out and on conclusion of the investigation final reports were submitted before learned Administrative Judge, ATCs at Karachi.

4. Learned Trial Court amalgamated the offshoot cases with main case for conducting joint trial, in terms of Section 21-M of Anti-Terrorism Act, 1997.

5. Trial Court framed Charge against appellants under the above referred Sections at Ex.8, to which he pleaded not guilty and claimed to be tried.

6. At trial prosecution examined seven witnesses, who produced the relevant documents. Thereafter, learned Asstt. P.G the prosecution side vide statement at Ex.20.

7. Trial Court recorded statement of accused under Section 342 Cr.P.C at Ex.21, in which he denied the prosecution allegations and claimed his false implication in these cases. In a question what else he has to say? “Appellant replied that he was falsely implicated in these cases, nothing was recovered from his possession and no encounter was taken place. On 23.02.2021, he was coming from his workplace to New Karachi and a stray bullet hit him therefore he went to Hospital and police booked him in these cases.” Appellant neither examined himself on oath u/s 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in their defence.

8. Trial Court after hearing the learned counsel for the appellant, prosecutor and while examining the evidence minutely by judgment dated 28.03.2022, convicted and sentenced the appellant as stated above. Hence, the appellant has filed instant appeals against his convictions and sentences.

9. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 28.03.2022 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

10. Learned counsel for the appellant mainly contended that during police encounter police official did not receive firearm injury but injury was caused to the appellant by the police officials; that crime weapon was not recovered from the possession of the appellant and police has foisted weapon upon the appellant; that though the report of Ballistic Expert is positive but prosecution has failed to produce evidence with regard to its’ safe custody at P.S and safe transmission to the Ballistic Expert and even incharge of the Malkhana has not been examined by the prosecution to prove safe custody of the crime weapon at the police station. Learned advocate has pointed out that P.W-2 PC Saleem Dogar has deposed that faces of the culprits were muffled. It is also argued that during such incident one passerby namely Mst. Hajra Bibi sustained firearm injury, she has not implicated the appellant in this case. Lastly, it is submitted that it was fake police encounter and I.O had failed to interrogate as to how passerby had received injury in the incident and version of the appellant has also not been interrogated by the I.O, it is prayed for acquittal of the appellant. In support of his contentions reliance has been placed upon the cases reported as Gulfam and another vs. The State (2017 SCMR 1189), ZEESHAN @ SHANI versus THE STATE (2012 SCMR 428) and Mumtaz Ali vs. The State (2011 SCMR 70).

11. Learned Addl. P.G submitted that evidence of police officials is trustworthy and reliable; that appellant had also received firearm injury in the encounter; that weapon used by the appellant was collected from the place of incident and it was dispatched to the Ballistic Expert and report was positive. Lastly, it is argued that prosecution has succeeded to prove its case against the appellant and prayed for dismissal of the appeals.

12. After hearing learned counsel for the parties, we have re-examined the entire evidence. We have come to the conclusion that prosecution has failed to prove its’ case against the appellant for the reasons that incident had occurred on 22.02.2021 at 1800 hours and FIR of the incident had lodged on the same day at 1945 hours, against unknown persons. On the second day of the incident, appellant was arrested in injured condition from the hospital, but he was not put to identification parade through witnesses. Identification parade was necessary, such test is not only a check against false implication but is a good piece of evidence against genuine culprits. Reliance is placed upon the case of Farman Ali vs. The State (1997 SCMR 971). In this case, it is a matter of record that one passerby lady sustained firearm injury and she has not implicated the appellant before trial Court. So far as recovery of crime weapon from the place of incident, which was attributed to the appellant, is concerned, admittedly no evidence with regards to its’ safe custody at police station and its’ safe transmission to the Ballistic Expert have been established before the trial Court, which is required by law. Law is well-settled by now that prosecution is under legal obligation to prove the safe custody of the recovered weapon and its safe transmission to the Ballistic Expert as held by the Honourable Supreme Court in the case of KAMAL DIN alias KAMALA versus The STATE (2018 SCMR 577). Learned Division Bench of this Court in the case of HARCHAND and others versus THE STATE (2005 MLD 946) Karachi, more or less in similar circumstances has held that no police official has sustained injury in an encounter, prosecution has failed to prove its’ case.

13. No doubt, evidence of police officials cannot be brushed aside on the ground that they are police officials but when presence of private persons is established, this Court shall look into the evidence of independent witnesses. In this case, one passerby lady sustained firearm injury but she has not implicated the appellant in the commission of the offence by deposing that on 22.02.2021, she went out to meet a relative when she reached at Rashid Society at about 5:00 p.m., police mobile signaled three persons on motorcycle. The motorcyclists started firing on the police. The police also fired on the culprits. She received firearm injury on her right side of neck, she was taken to Abbasi Shaheed Hospital by persons of the locality where she was treated for about 15 days. It has come on record that place of incident is busy area, despite that no private person has been associated as witness by the prosecution. Appellant has raised plea of his false implication which has not been interrogated by the I.O and there are also other defects in the case of prosecution. We have also noticed that there are major contradictions in the evidence of prosecution witnesses on material points and learned Addl. P.G could not explain those contradictions. For the above stated reasons, prosecution case has been found by us to be highly doubtful. Learned trial Court failed to appreciate evidence on settled principles of law.

14. 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 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), Muhammad Zaman v. The State (2014 SCMR 749) & Muhammad Mansha v. The State (2018 SCMR 772).

15. For what has been discussed above, we find that prosecution has failed to prove its’ case against the appellant beyond any reasonable doubt to sustain conviction. Consequently, these appeals are allowed and impugned judgment is set aside, appellant Ali Hassan son of Azizullah Brohi is acquitted of the offences, for which he was charged, tried and convicted by learned trial Court and he be released forthwith, if not required to be detained in any other custody case.

JUDGE

JUDGE

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