THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No. 188 of 2023

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Omar Sial

Appellant : Arshad through Mr. Muhammad Farooq advocate

Respondent : The State through Mr. Ali Haider Saleem Addl. P.G

Date of Hearing : 06.06.2024

Date of Judgment : 06.06.2024

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Arshad appellant was tried by learned Judge, Anti-Terrorism Court No.XIII Karachi in Special Case No. 333/2023. After regular trial, vide judgment dated 17.10.2023, appellant was convicted under section 4(b) of Explosive Substances Act 1908 and sentenced to undergo 14 years R.I and to pay fine of Rs.50,000/-, in case of default, he was ordered to undergo 04 months R.I. The property of the appellant was also forfeited to the Government. Appellant was also convicted under Section 7(ff) of ATA 1997 and sentenced to undergo 14 years R.I and to pay fine of Rs.50,000/-, in case of default he was ordered to undergo 06 months R.I. All the sentences were ordered to run concurrent. Appellant was extended benefit of section 382(b) Cr.P.C.

2. Brief facts leading to the filing of the appeal are that on 13.06.2023, SIP Rana Muhammad Nadeem of PS Rizvia Society left P.S vide Roznamcha entry No. 25 along with his subordinate staff for patrolling duty, when police party reached near Jamia Masjid Ibrahim at 0210 hours, the present accused was found standing in suspicious manner, he was apprehended and questioned. On enquiry, he disclosed his name as Arshad son of Sikandar. SIP Rana Muhammad Nadeem in presence of police mashirs conducted personal search of the accused and recovered one live hand grenade No. 69. SIP informed the Liaquat Base. Thereafter contacted Inspector Abid Farooq Incharge BDU. Cellular phone was also recovered from the possession of the accused. Mashirnama of arrest and recovery was prepared. Accused and case property were brought to the police station where FIR vide Crime No. 232/2023 for offences under Sections 4/5 Explosive Substances Act 1908 read with Section 7 of ATA 1997 was registered on behalf of State. Investigation was entrusted to Inspector Tariq Mehmood.

3. The recovered hand grenade was handed over to Inspector Abid Farooq Incharge Bomb Disposal Unit Karachi West for report. The report was received. After usual investigation, challan was submitted against the appellant under Sections 4/5 Explosive Substances Act 1908 read with Section 7 of ATA 1997.

4. The appellant pleaded not guilty and claimed trial. At trial, prosecution examined five witnesses and positive report of the Bomb Disposal Unit was produced in evidence. Thereafter, prosecution side was closed.

5. Trial Court recorded statement of accused/appellant under Section 342 Cr.P.C at Ex.11. Appellant claimed his false implication in the present case and denied the prosecution allegations. Appellant raised plea that he was arrested by the police from his house on 09.06.2023 and was detained at PS Pak Colony. He alleged that the hand grenade has been foisted upon him by the police. Appellant neither examined himself on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in his defence.

6. Trial Court after hearing the learned counsel for the appellant and the learned prosecutor and while examining the evidence by judgment dated 17.10.2023, convicted and sentenced the appellant as stated above. Hence, the appellant being dissatisfied with the judgment of conviction against him has filed instant appeal.

7. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 17.10.2023 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. Learned advocate for the appellant mainly argued that prosecution story appears to be unnatural and unbelievable; that there are material contradictions in the evidence of prosecution witnesses; regarding presence of private persons that there is overwriting in the Roznamcha entry No.29 produced by P.W-01; that prosecution has failed to examine material witness SIP Muhammad Hussain, who had handed over hand grenade to the Incharge Bomb Disposal Unit. It is argued that there was conversation of head of police party with Liaquat Base and Bomb Disposal on cellular phone but no record of such conversation was produced before trial Court. Lastly, it is submitted that prosecution has failed to prove safe custody and safe transmission of the hand grenade to the expert before trial Court and prayed for acquittal of the appellant. Learned advocate for the appellant in support of contentions has relied upon the case reported as Muhammad Hazir vs. The State (2023 SCMR 986).

9. Mr. Ali Haider Saleem Addl. P.G argued that evidence of police officials is confidence inspiring, hand grenade was recovered from the possession of the appellant, report of the expert was positive. As regards to contradictions, Addl. P.G submitted that such contradictions are minor in nature; prosecution has succeeded to prove its’ case and trial Court has rightly appreciated the evidence and convicted the appellant in this case. Addl. P.G prayed for dismissal of the appeal.

10. After hearing learned counsel for the parties, we have re-examined the entire prosecution evidence. SIP Rana Muhammad Nadeem deposed in his cross-examination that private persons were present at the time of arrest and recovery but on the same point PC/mahsir Jamal has deposed that no private person was present. In the present case police personnel had cell phones with inbuilt camera soon after the recovery of hand grenade, matter was reported to Liaquat Base as well as Incharge BDU but neither record of mobile phones was produced before trial Court nor photographs of such seizure and arrest were taken. We have failed to understand why police officials failed to produce call data and as to why photographs of such seizure / arrest were not taken. Article 164 of Qanun-e-Shahadat Order 1984 specifically permits the use of any evidence that may have become available because of modern devices or techniques and its Article 165 overrides all other laws as held by the Apex Court in unreported order dated 22.11.2023, passed in Criminal Petition No. 1192 of 2023 (Zahid Sarfaraz Gill Vs. The State). So far conviction of the appellant under Section 7(ff) of ATA 1997 is concerned, in the present case it is alleged by the prosecution that hand grenade was recovered from the possession of the appellant at mid night, no private person was present around place of arrest and recovery. To constitute an offence of a terrorism, it is necessary that; firstly, the action must fall within the ambit of sub-section (2) of section 6 of the ATA of 1997; and secondly, the intent, motivation, object, design and purpose behind the said act has any nexus with the ingredients of clauses (b) and (c) of section 6(1) of the ATA of 1997. To formulate an opinion whether or not such offence is an act of terrorism, the allegations made in the FIR, material collected during the investigation and the evidence available on the record have to be considered on the touchstone of section 6 of the ATA of 1997, as a whole. In the absence of any of the ingredients of section 6 of the ATA of 1997, any action, irrespective of its heinousness, causing terror or creating sense of fear and insecurity in the society, does not fall within the ambit of terrorism. As such conviction recorded by trial Court under Section 7(ff) of ATA 1997 is not sustainable under the law.

11. Prosecution has also utterly failed to establish the chain of safe custody and safe transmission of hand grenade to Bomb Disposal Unit for safe and secure report of Bomb Disposal Unit at Ex.4/F which enjoys very critical and pivotal importance. In the present case, according to evidence of Inspector Abid Faroq Incharge Bomb Disposal Unit Karachi West, SIP Muhammad Hussain of PS Rizvia handed over hand grenade to him for examination and report. It has also come on record that hand grenade was handed over to Incharge BDU by SIP Muhammad Hussain and his name transpires in the calendar of the challan but he has not been examined by the prosecution. As such material evidence was withheld by the prosecution in this case. The inference which could be drawn of his non-examination under Article 129(g) of the Qanun-e-Shahadat Order, 1984, would be that he might not has supported the case of prosecution as held by Apex Court in the case of Mst. Zarsheda Vs. Nobat Khan (PLD 2022 SC 21). Non-examination of SIP Muhammad Hussain on the point of safe custody and safe transmission of hand grenade would be fatal to the case of prosecution. The prosecution, therefore, was required to establish that the chain of custody has remained unbroken, safe, secure and indisputable in order to be able to place reliance on the report of the expert. The facts of the present case reveal that the chain of custody has been compromised. Therefore, reliance cannot be placed on the report of the Bomb Disposal Expert to support conviction of the appellant. Reliance is rightly placed upon the case of Muhammad Hazir vs. The State (2023 SCMR 986).

12. Apart from above, appellant raised plea that at the time of arrest he was already detained at PS Pak Colony in other case and his mother had also submitted applications to this Court. I.O had failed to interrogate this aspect of the case. Admittedly, defence version has not been considered by the trial Court. Overall, putting two versions in juxtaposition allows a more comprehensive examination and can be powerful tool for the courts to makes their observation more effectively. Unfortunately it was not done by the trial Court. There are major contradictions in the evidence of prosecution witnesses with regard to presence of private persons at the time of arrest and recovery. Learned Addl. P.G failed to controvert the contradictions highlighted in the evidence of prosecution witnesses. We have also observed that there is overwriting in the Roznamcha Entry No.29 and it is fatal to the case of prosecution. It is well settled that for the purposes of extending the benefit of doubt to an accused, it is not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt. A single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession but as a matter of right. Reliance in this regard may be placed on the case reported as Tajamal Hussain v. the State (2022 SCMR 1567).

13. For what has been discussed above, we have come to the conclusion that the prosecution has failed to prove its’ case beyond a reasonable doubt against appellant and appellant is entitled to benefit of doubt. Consequently, instant appeal is allowed and conviction and sentence passed by learned trial Court vide judgment dated 17.10.2023 are hereby set aside and the appellant Arshad son of Sikandar Khan is acquitted of the charges. He shall be released forthwith, if not required to be detained in any other custody case.

14. These are the reasons of our short order dated 06.06.2024.

JUDGE

JUDGE