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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