HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals No. 233, 234 & 235 of 2015

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Zulfiqar Ahmad Khan

Date of Hearing : 22.01.2018.

Date of Judgment : 24.01.2018.

Appellant : Ali Raza through M/s. Tahir Rehman and Mamoon A.K. Sherwani Advocates.

Respondent : The State through Mr. Mohammad Iqbal Awan DPG.

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Ali Raza appellant was tried by learned Judge, Anti-Terrorism Court No. II, Karachi in Special Cases No. B-558/2014 (FIR No.88/2014 u/s 353/324/34 PPC), B-559/2014 (FIR No. 89/2014 u/s 23(1)(a) of Sindh Arms Act, 2013) and B-560/2014 (FIR No.90/2014 u/s 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997) registered at P.S C.I.D Sindh. After full-dressed trial, appellant was found guilty vide judgment dated 31.08.2015, he was convicted under section 4/5 Explosive Substances Act, 1908 and sentenced to 14 years R.I. Appellant was also convicted under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to 7 years R.I. He was also convicted under Section 353 PPC and sentenced to 2 years R.I. Benefit of Section 382-B Cr.P.C was also extended to him.

2. Brief facts of the prosecution case as disclosed in the FIR are that on

24.08.2014, ASI Muhammad Saleem along with his subordinate staff was on patrolling duty for arrest of proclaimed offenders. When police party reached within the territorial jurisdiction of PS Pak Colony, it is alleged that ASI Muhammad Saleem received spy information through Military Intelligence Wing that 6/7 suspected persons namely Ali Raza s/o Abdul Raheem, Ghulam Hyder alias Kara s/o Ghulam Hussain alias Pasha, Naseeruddin Bangali s/o Shafiur Rehman Bangali, Aaamir alias Dollar s/o Iqbal, Awais s/o Parvaiz, Tanveer alias Aunti s/o Iqbal belonging to Aman Committee Lyari Gang were present at Benazir Park with intention to commit some heinous crime. On such information, police party proceeded to the pointed place and reached there at 0040 hours. It is alleged that 6/7 persons were found standing there and they started firing upon the police party. Police also fired in self defence. It is alleged that police succeeded to catch hold one accused. On enquiry, he disclosed his name as Ali Raza. Due to non-availability of private witnesses as night was dark, accused was arrested in presence of mashirs namely PCs Rasheed Qayyum and Ejaz Afzal and from his possession 30 bore pistol was secured. On his further personal search two hand grenades were recovered from the fold of his shalwar. Accused had no license for the weapons carried by him. On enquiry he disclosed the names of co-accused as Ghulam Hyder alias Kara s/o Ghulam Hussain alias Pasha, Naseeruddin Bangali s/o Shafiur Rehman Bangali, Aaamir alias Dollar s/o Iqbal, Awais s/o Parvaiz, Tanveer alias Aunti s/o Iqbal. Thereafter, accused and case property were brought at Police Station C.I.D. Sindh where FIR No.88/2014 u/s 353/324/34 PPC, FIR No. 89/2014 u/s 23(1)(a) of Sindh Arms Act, 2013 and FIR No.90/2014 u/s 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997 were registered.

3. After usual investigation challan was submitted against accused under the above referred sections. Accused Naseeruddin and Ghulam Hyder were declared as proclaimed offenders on 31.10.2014.

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 under the above referred sections. Accused pleaded not guilty and claimed his trial.

6. At trial, prosecution examined four witnesses, who produced relevant documents to substantiate the prosecution case. Thereafter, prosecution side was closed.

7. Statement of accused was recorded under Section 342 Cr.P.C at Ex.23. Accused claimed false implication in the case and denied the prosecution allegations. Accused has raised plea that he was picked up from the house by Rangers before the incident. Accused declined to examine himself on oath in disproof of the prosecution allegations, however he examined D.W Faisal in his defence.

8. Trial Court after hearing learned counsel for the parties and examination of the evidence available on record, by judgment dated 31.08.2015, convicted and sentenced the appellant as stated above. Hence these appeals are filed.

9. Learned counsel for the appellant mainly contended that there was cross firing between the appellants and accused but not a single injury was caused to either party, even no damage was caused to the police mobile. It is further contended that Mashirnama of arrest and recovery Ex.P/3 was prepared by ASI Muhammad Saleem in presence of mashirs Rasheed Qayoom and Ejaz Afzal but name of Ejaz Afzal did not transpire in the departure entry produced in evidence at Ex.P/2. It is further argued that hand grenades and pistol were recovered from the possession of the accused on 24.08.2014 at 0040 hours, but the same was inspected on 26.08.2014. Lastly, it is submitted that there are many circumstances in the prosecution case which have created doubt. In support of their contentions, they have relied upon the cases reported as Tariq Pervez vs. The State (1995 SCMR 1345) & Muhammad Umair and another vs. The State and another (2017 MLD 1097).

10. Mr. Mohammad Iqbal Awan, learned DPG argued that evidence of the police officials was trustworthy and confidence inspiring and there was no inherent defect in the prosecution case. He supported the impugned judgment and prayed for dismissal of the appeals.

11. After hearing the learned counsel for the parties, we have scanned the entire prosecution evidence. We have come to the conclusion that prosecution has failed to establish its case against appellant for the reasons that ASI Muhammad Saleem left P.S on 23.08.2014 along with his subordinate staff in the police mobile for patrolling and arrest of the proclaimed offenders vide Roznamcha entry No. 28. In the said entry name of PC Rasheed Qayoom has been mentioned. He has further deposed that he received intelligence report that some terrorists of Lyari were standing near Benazir Park for committing some crime. Police party proceeded there and firing started from both the sides, but none received injury. Present accused was caught hold and his accomplices made their escape good. We are unable to believe evidence of ASI Muhammad Saleem and others for the reasons that despite firing with the sophisticated weapons none received injury from either side. It was night time incident. ASI has also not disclosed source of identification of accused. According to the case of prosecution, ASI had received intelligence report, no such evidence was preserved in the modern device for the satisfaction of the court. ASI Muhammad Saleem has failed to give description of the hand grenades and pistol in his evidence before the Trial Court. Name of co-mashir PC Ejaz Afzal did not transpire in the departure Roznamcha entry. We have also noticed overwriting in the Clearance Certificate produced by PW-2 PC Ejaz. It is also unbelievable that 5/6 culprits ran away from the place of incident when police party was armed with official arms and ammunitions. There was no evidence that hand grenades and pistol were kept in safe custody at police station, as such tempering with such weapons at Police Station could not be ruled out. There is another aspect of the case that pistol was not sealed at spot. It is well-settled principle of law that mere words of police official would not constitute offence unless corroborated by some tangible evidence. In defence evidence it is stated that accused was picked up by the Rangers before the incident, we are unable to rely upon the evidence of the police officials without independent corroboration, which is lacking in this case. It is the matter of record that ASI had received intelligence based information during patrolling inspite of that no private person was associated in recovery proceedings although so could have been done very easily. It was police encounter case, investigation should have been conducted by some other Agency/ I.O, but it was not done in this case. Evidence of police officials in above circumstances is tainted with doubts and did not inspire confidence. Learned Division Bench of this Court in the case of Muhammad Umair and another v. The State and another reported as (2017 YLR 1097 (Sindh) has held as under:-

“14. As regard allegation of encounter, involving attempt to commit Qatl-e-Amd and deterring police party from performing its duties, it appears that to prove this the prosecution has relied upon the statement of complainant and the PWs who have supported the version of FIR in toto. At this point, we would take a pause to first say that mere narrating the prosecution story in toto is never sufficient to hold the burden of a conviction because the requirement of law is always that ‘no conviction could sustain unless it stands the test of being direct, natural and confidence inspiring’. Each word must always be given its due meaning and importance. A direct evidence if otherwise does not appear to be ‘natural’ and ‘confidence inspiring or unimpeachable’ shall not be sufficient to convict an accused because Criminal Administration of Justice is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. This appears to be the reason, which now becomes a well embedded principle of law, that ‘a reasonable doubt’ is always sufficient to acquit the accused’. The reliance can well be placed on the case of Muhammad Nawaz v. State 2016 SCMR 267 wherein case of Ayub Masih’s case (PLD 2002 SC 1048) was referred as:--

“…It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt, of course, must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance of law. It is based on the maxim, it is better that ten guilty persons be acquitted rather than one innocent person be convicted.” In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmed (PLD 1973 SC 418) that this rule is antitheses of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) that the “mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent.”

Resuming, the discussion what is quite evident from perusal of the evidence though the complainant narrated contents of FIR but such narration (evidence) prima facie does not appear to be ‘natural or confidence inspiring’ for reasons that despite alleged claim of an encounter neither any of the police officials or vehicle (police mobile) received a single “scratch” although accused persons allegedly made firing with lethal weapons, including Kalashnikov. As per allegations, the police party was attacked upon at the hands of the appellants and in order to prove their allegations they were required to collect some tangible evidence yet they have miserably failed to bring concrete material against the appellants. The version of complainant of FIR as well as their respective memos and the statements of the witnesses, nowhere they have uttered a word that in retaliation they had fired certain number of rounds and suffice to say not a single empty spent by the complainant party has been collected by the I.O. during investigation even they have miserably failed to show that they were laced with certain particular weapons. Further to meet their accusation, the presence of the complainant party at relevant place and time was essential and in absence of any scratch or injury on their part, their allegation is baseless and the factum regarding alleged encounter has also not been proved. Besides, arrest of two of the accused persons out of five by police without being hurt/injured or having any other reason when other three under same situation made their escape good; non-recovery of empties from place of incident. These all are circumstances when do not let the prosecution story worth believing for a prudent mind. Therefore, charge to such an extent fails to stand well with the required test. Though, in law failure of defence has never been sufficient to hold one guilty because it is settled principle of law, it is the duty of the prosecution to prove its accusation and the prosecution could not be benefited from the failure or inability of the defence.”

12. In another case reported as Muhammad Parvaiz vs. The State (2005 SCMR 1038), the Honourable Supreme Court has held as under:-

“9. It is evident that no private person was associated in recovery proceedings, although so could be done very easily. The evidence of both above named police officials does not inspire confidence and is tainted with doubts. A Police Officer is supposed to give entire facts and not to conceal them. The reply of material questions in the words "I do not know, in fact, tantamounts to conceal the facts deliberately. It is very hard to believe that so many times the raids were made at the house of the petitioner, yet, he was not known to the police officials, especially when his brothers and mother were well known to them. Recovery of above articles has not been proved satisfactorily.”

13. Prosecution has utterly failed to prove its case against accused. There are several circumstances in the case, which created doubt in prosecution case, but Trial Court failed to appreciate the evidence according to the settled principles of law. It is well-settled principle of law that for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez vs. The State (1995 SCMR 1345), wherein the Honourable Supreme Court has held as under:-

“The concept of benefit of doubt to an accused person is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which crates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as matter of race and concession but as a matter of right.”

14. In the view of above, we have come to the conclusion that the prosecution has failed to prove the aforesaid cases against the appellant beyond any shadow of doubt. Therefore, we extend benefit of doubt to the appellant and allow the Special Criminal Anti-Terrorism Appeals. Consequently, the conviction and sentence recorded by the Trial Court vide judgment dated 31.08.2015 are set aside. Appellant Ali Raza is acquitted of the charges. Appellant shall be released from custody forthwith, if he is not wanted in some other custody case.

JUDGE

JUDGE