THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No. 178 of 2022

Special Criminal Anti-Terrorism Appeal No. 179 of 2022

Special Criminal Anti-Terrorism Appeal No. 180 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellants : Aamir and Waseem through Mr. Dur Muhammad Mallah advocate

Respondent : The State through Mr. Muhammad Iqbal Awan Addl. P.G

Date of Hearings : 13.02.2023 & 14.02.2023

Date of judgment : 14.02.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Aamir and Waseem appellants were tried by learned Judge, Anti-Terrorism Court-II, Karachi in Special Cases No. 109, 109-A and 109-B of 2021 (FIRs No. 10/2021 u/s 353/324/34 PPC r/w Section 7 of ATA, FIR No. 11/2021 u/s 23(1)(a) of Sindh Arms Act 2013 and FIR No. 12/2021 u/s 23(1)(a) of Sindh Arms Act 2013 registered at PS Gulberg, Karachi). After regular trial, vide judgment dated 29.10.2022, appellants were convicted and sentenced as under:

1. Both the accused are convicted for offence u/s 7 (h) of Anti-Terrorism Act, 1997 R/w section 353 PPC and sentenced to undergo R.I for 5 (five) years and fine of Rs.5000/- each (Five thousand only) in default of payment of fine the convicts shall further undergo S.I for 3 (Three) months.

2. Both the accused are convicted for offence u/s 7(h) Anti-Terrorism Act, 1997 and sentenced to undergo R.I for 5 (Five) years and fine of Rs.5000/- each (five thousand only) in default of payment of fine the convicts shall further undergo S.I for 3 (three) months.

3. Accused Aamir is convicted for offence U/s 23(1)(a) of Sindh Arms Act 2013 and sentenced to suffer R.I for 5 (five) years and fine of Rs.3000/-, in default of payment of fine the convict shall suffer further S.I for three months.

4. Accused Waseem is convicted for offence punishable U/s 23(1)(a) of Sindh Arms Act, 2013 and is sentenced to suffer R.I for 5 (five) years and fine of Rs.3000/-, in default of payment of fine the convict shall suffer further S.I for three months.

All the sentences were ordered to run concurrently. Appellants were also extended benefit of Section 382(b) Cr.P.C.

2. Brief facts lead to the filing of the appeal are that on 07.01.2021 ASI Rizwan Ahmed of PS Gulberg after receiving information regarding police encounter, left PS along with his subordinate staff and reached at street near Umair General store, Block-12, F.B.Area, Karachi. It is alleged that PCs Asif Zaman, Shoaib, Amjad and Abdul Rehman disclosed to ASI Rizwan Ahmed that they were on patrolling in the area, two persons on the motorcycle appeared, they were signaled to stop but they accelerated speed but slipped, They started firing at police party, police also fired, in the result of cross firing appellant Aamir sustained fire arm injury on his right ankle. From the possession of the appellant Aamir 30 bore pistol was recovered and from the possession of appellant Waseem one TT pistil 32 bore was recovered. Three separate FIRs, one in main case bearing Crime No. 10/2021 u/s 353/324/34 PPC r/w Section 7 of ATA and other FIRs regarding recovery of unlicensed weapons bearing Crime No. 11/2021 u/s 23(1)(a) of Sindh Arms Act 2013 and Crime No. 12/2021 u/s 23(1)(a) of Sindh Arms Act 2013 were registered at PS Gulberg, Karachi, on behalf of the state.

3. All the cases were proceeded jointly be trial court and appellants were convicted and sentenced as detailed above. Hence, the appellants have filed separate appeals against their convictions and sentences.

4. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 29.10.2022 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

5. Learned counsel for the appellant mainly contended that prosecution case was highly doubtful; there was cross firing between parties and the police party was armed with sophisticated weapons but only fire hit to the appellant Aamir; no harm was caused to co-accused; that no police officials received any scratch; that crime weapons were sent to the Ballistic Expert after delay of three days for which no plausible explanation has been furnished; Lastly, it is submitted that Head Moharer has not been produced to prove safe custody and safe transmission of the pistols recovered from the appellants. In support of his contentions, reliance has been placed upon the cases reported as Tariq Pervez vs. The State (1995 SCMR 1345).

6. Learned Addl. P.G argued that appellants were arrested at the spot, out of whom appellant Aamir was in injured condition; that police had associated an independent person of the locality; that police officials had no enmity whatsoever with the appellants to falsely implicate them in this case. Lastly, it is argued that prosecution has succeeded to prove its case against the appellants and prayed for dismissal of the appeals.

7. According to prosecution evidence, appellant Aamir sustained firearm injury at his right ankle during encounter and co-accused did not receive any injury or scratch during encounter surprisingly from the place of incident 02 empties fired by the appellants were collected but not a single injury was caused to the police officials. Prosecution has also failed to prove safe custody of the crime weapons and empties at police station and their safe transmission to the Ballistic Expert. 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). The consistent plea of the appellant Aamir during the trial was that there was exchange of firing between two parties and he got injured in the cross firing. There is nothing on record to indicate that this plea was ever investigated instead police officer of same police station investigated the case. Evidence of P.W-02 Muhammad Ayaz is also not reliable and trustworthy for the reason that he had failed to prove his presence in the shop at the time of incident. On the other hand, he has admitted that he is not resident of the area. Moreover, no effort was made by him to rescue the injured accused at the time of incident. Learned advocate for the appellants has raised contention that P.W-02 Muhammad Ayaz has acted as witness in several police cases. In these circumstances, we are unable to rely upon his evidence without independent corroboration, which is lacking in this case. Place of occurrence is also disputed in this case for the reason that from the place of incident blood was not collected by the I.O, if it was road even then blood should have been present there but there was no sign of blood at the road.

8. We have also noticed that there are major contradictions/defects in the evidence of prosecution witnesses on material points. Police officials have deposed that pistols were without numbers, but report of Ballistic expert shows that numbers were rubbed. 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.

9. 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).

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

JUDGE

JUDGE

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