HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals No. 321, 322, 324, 325 329, 334 & 335 of 2018

 

         Present:      Mr. Justice Naimatullah Phulpoto

                                                                Mr. Justice Mohammad Karim Khan Agha

 

 

Date of Hearing                    :               28.03.2019

 

Date of judgment                 :              02.04.2019

 

Appellants                          :             Imtiaz Bengali and Talha through M/s Hasnain Ali Chohan, Ghulam Fareed Baloch Advocate.

 

                                                            Nemo of appellant Saeed Muhammad @ Kaana

 

 

Respondent                         :             The State through Mr. Farman Ali Kanasro Additional Prosecutor General Sindh.

 

 

JUDGMENT

 

 

NAIMATULLAH PHULPOTO, J.- Imtiaz Bengali, Talha and Saeed Muhammad @ Kaana appellants were tried by Mr. Muhammad Khan Buriro, Judge, Anti-Terrorism Court No.X, Karachi (Special cases No.121 to 124 of 2018). After full-fledged trial, vide judgment dated 31.10.2018, appellants were convicted and sentenced as under:

 

1.      The accused Imtiaz Bengali son of Muhammad Riaz is hereby convicted for the offence U/s 7(h) of Anti-Terrorism Act, 1997, 1997 R/w S. 353/324/186 PPC and sentenced to undergo R.I for “10”years with fine of Rs.100,000/-. In default in payment of such fine, he shall suffer further R.I for “06” months.

 

2.      I also Convict the accused Imtiaz Bengali for the offence u/s 23(i)A Sindh Arms Act, 2013 and sentence him to undergo R.I for “07” years with fine of Rs.50,000/-. In default in payment of such fine, he shall suffer further R.I for “06” months.

 

3.      The accused Talha Son of Haq Nawaz is hereby, Convicted for the offence U/s 7(h) of ATA 1997 R/w S. 353/324/186 PPC and sentenced to undergo R.I for “10”years with fine of Rs.100,000/-. In default in payment of such fine, he shall suffer further R.I for “06”months.

 

4.      I, also Convict the accused Talha for the offence u/s 23(i)A Sindh Arms Act, 2013 and sentence him to undergo R.I for “07”years with fine of Rs.50,000/-. In default in payment of such fine, he shall suffer further R.I for “06”months.

 

5.      The accused Saeed Muhammad @ Kaana Son of Sabghatullah is hereby, Convicted for the offence U/s 7(h) of ATA 1997 R/w S. 353/324/186 PPC and sentenced to undergo R.I for “10”years with fine of Rs.100,000/-. In default in payment of such fine, he shall suffer further R.I for “06”months.

 

6.      I, further “Convict” the accused Saeed Muhammad @ Kaana for the offence u/s 4/5 Explosive Substance Act R/w section 6(2)(ee) and punishable u/s 7(1)(ff) of ATA 1997 and sentence him to undergo R.I for “14” years.

 

All the sentenced were ordered to run concurrently. Appellants were extended benefit of Section 382-B Cr.P.C.

 

2.         Brief facts of the prosecution case leading to the filing of these appeals are that on 11.12.2017, ASI Muhammad Azam was on patrolling duty along with his subordinate staff so also Rangers officials for prevention of crimes and terrorist activities. During patrolling, when the police party reached at Jameela street, old Haji Camp Karachi, it was about 0100 hours when police party saw three persons in suspicious condition appearing on the motorcycle. They were signaled to stop for checking purpose. Suddenly, said motorcyclists got down from the motor bike and started firing upon the police and Rangers personnel with intention to kill and deterred the officials from discharge of their lawful duties. In retaliation, according to the case of prosecution, Police/ Rangers officials fired upon the culprits. Police/ Rangers officials succeeded in apprehending the accused persons at spot. On enquiry, one accused disclosed his name as Imtiaz Bengali son of Muhammad Riaz, another accused disclosed his name as Talha son of Haq Nawaz and third accused disclosed his name as Saeed Muhammad @ Kaana son of Sabghatullah. Due to non-availability of the private persons at the place of wardat, ASI conducted personal search of the accused in presence of police mashirs and recovered from the possession of accused Imtiaz Bengali one 30 bore pistol having two rounds loaded in magazine and one round loaded in chamber. From the search of accused Talha, ASI secured one 30 bore pistol from his hand, which was loaded. From accused Saeed @ Kaana one hand grenade was recovered from the pocket of his shirt. Accused persons who were carrying the pistols were asked to produce licenses for the weapons carried by them, to which they failed. Thereafter, motorcycle was seized by the police under Section 550 Cr.P.C. Accused were arrested. Mashirnama of arrest and recovery was prepared at spot. Accused and case property were brought at police station where ASI Muhammad Azam lodged against accused on behalf of state FIR bearing Crime No.291/2017 under Sections 353/324/186/34 PPC read with Section 7 Anti-Terrorism Act, 1997. FIR No. 292/2017 under Section 23(1)(a) Sindh Arms 2013 against accused Imtiaz Bangali, FIR No. 293/2017 under Section 23(1)(a) Sindh Arms 2013 against accused Talha and FIR No. 294/2017 under Section 4/5 Explosive Substance Act, 1908 read with Section 7 Anti-Terrorism Act, 1997 against accused Saeed Muhammad @ Kaana.

 

3.         I.O sent explosive substance and pistols to the experts for reports and received positive reports. On conclusion of the usual investigation, submitted challan against accused before learned Judge, Anti-Terrorism Court under the above referred sections.     

 

4.         Learned Trial Court amalgamated the aforesaid cases for joint trial, in terms of Section 21-M of Anti-Terrorism Act, 1997.

 

5.         Trial Court framed charge against accused. All the three accused persons pleaded not guilty and claimed to be tried.

 

6.         In order to prove the cases, prosecution has examined P.W-1 ASI Syed Laiq of BDU at Ex.5, P.W-02 ASI Muhammad Azam, P.W-03, PC Muhammad Siddique and P.W-04 I.O Imtiaz Ali Kazi, who produced relevant mashirnama/ documents at trial. Thereafter, prosecution side was closed.

 

7.         Statements of accused were recorded under Section 342 Cr.P.C, in which accused claimed their false implication in these cases and denied the prosecution allegations. Accused did not lead any defence and declined to give statement on oath in disproof of the prosecution allegations.

 

8.         Trial Court after hearing the learned counsel for the parties and examination of evidence through the impugned judgment dated 31.10.2018 convicted and sentenced the appellants stated above, hence these appeals have been preferred by the appellants. We intend to decide the aforesaid appeals through this single judgment.

 

9.         We have carefully heard learned counsel for the appellants, learned Additional Prosecutor General Sindh and perused the evidence minutely.

 

10.       The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 31.10.2018 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.  

 

11.       Record reflects that ASI Muhammad Azam head of patrolling party in his evidence at Ex.6 has narrated the prosecution story as mentioned in the first paragraph of the judgment, there is no need to repeat it. In the cross-examination, he has admitted that he has not mentioned in Ex.6/A regarding presence of Rangers officials at the time of incident. He has also admitted that motor bike was not produced before the Trial Court. P.W-1 Syed Laiq of BDU had examined hand grenade but no where he has mentioned about its safe custody at the police station and safe transmission to expert. ASI Muhammad Azam has also not mentioned in evidence that pistols were safely kept in the Malkhana and were safely transmitted to the ballistic expert for report. P.W-03 PC Muhammad Siddique was member of the patrolling party. He has deposed that after encounter accused were arrested and weapons and hand grenade were recovered, but in the cross examination he replied that there was no number on the pistols. We have seen the report of Ballistic expert report at Ex. 10/E, which clearly mentions the pistols No.3103711 and 38833. It is matter of record that there was police encounter and Rangers also participated in it, but it is very strange that no one sustained injury from either side. Rangers officials are more trained force but it is surprising to note that fires made by the Rangers were also missed. Prosecution has also failed to examine Ranger officials at trial. Non-examination of these material witnesses clearly show that best evidence has been withheld by the prosecution. Presumption would be if Ranger personnel would have been examined, they might not have supported the case of prosecution. I.O had also failed to perform his statutory duty. He had not investigated/interrogated the accused/ appellants during investigation that for what purpose they were carrying explosive and pistols at mid night and where they were going. Intention of accused has not been brought on record, as it was mid night time according to the case of prosecution private persons were not available that’s why police constables were made as mashirs. In such circumstances, the application of provisions of Anti-Terrorism Act was misconceived in this case. This is a case of police encounter. The standard of proof in this case should have been far higher as compared to any other criminal case, when according to the prosecution it was a case of police encounter. It was, thus, desirable and even imperative that it should have been investigated by some other agency as has been laid down by the Honourable Supreme Court in case of ZEESHAN @ SHANI versus THE STATE (2012 SCMR 428). Relevant portion is reproduced as under:

 

“The standard of proof in this case should have been far higher as compared to any other criminal case when according to the prosecution it was a case of police encounter. It was, thus, desirable and even imperative that it should have been investigated by some other agency. Police, in this case, could not have been investigators of their own cause. Such investigation which is woefully lacking independent character cannot be made basis for conviction in a charge involving capital sentence, that too when it is riddled with many lacunas and loopholes listed above, quite apart from the after­thoughts and improvements. It would not be in accord of safe administration of justice to maintain the conviction and sentence of the appellant in the circumstances of the case. We, therefore, by extending the benefit of doubt allow this appeal, set aside the conviction and sentence awarded and acquit the appellant of the charges. He be set free forthwith if not required in any other case.”

 

12.       Evidence of police officials as discussed above in the above stated circumstances, required independent corroboration, which is lacking in this case. There are several loopholes / lacunas in the prosecution case. The same went in favour of accused. It is settled principle of law that benefit of all the favourable circumstances shall be extended to the accused as held in the case of ABDUL JABBAR and another versus The STATE (2019 SCMR 129). In these circumstances and after an independent evaluation of evidence available on record, we have no manner of doubt in our minds that the prosecution has not been able to prove its case against the appellants beyond reasonable doubt.

 

13.       For the above stated reasons, we have come to the conclusion that prosecution has miserably failed to bring home the guilt of appellants/accused. Resultantly, conviction recorded by the learned Trial Court vide judgment dated 31.10.2018 is without sufficient material, connecting the appellants with the case and it lacks cogent reasons for conviction and is based on surmises. The same is not sustainable under the law and is also liable to be set aside.

 

14.       In the above stated circumstances and reasons, appeals are allowed and impugned judgment of conviction is set aside. Appellants Imtiaz Bengali son of Muhammad Riaz, Talha son of Haq Nawaz and Saeed Muhammad @ Kaana son of Sabghatullah are acquitted of charge. They be released forthwith if not required in any other case.

 

JUDGE

 

 

JUDGE

 

 

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