HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals Nos.103 & 104 of 2017

Present

Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Maalik Gaddi

Date of Hearing : 27.11.2017.

Date of Judgment : 30.11.2017.

Appellants : Muhammad Suleman Punjabi @ Bina through Mr.Nazeer A. Shaikh Advocate.

Respondent : The State through Mr. Mohammad Iqbal Awan Additional Prosecutor General.

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Muhammad Suleman Punjabi @ Bina appellant was tried by learned Judge, Anti-Terrorism Court No.1, Karachi under Sections 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997 and under Section 23(1)(a) of Sindh Arms Act, 2013. By judgment dated 28.03.2017, appellant was convicted under Section 7(ff) of Anti-Terrorism Act, 1997 and sentenced to 14 years R.I. Appellant was also convicted under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to 05 years R.I and fine of Rs.20,000/- in case of default in payment of fine, he was ordered to suffer S.I for 6 months more. Both the sentences were ordered to run concurrently. Benefit of Section 382-B Cr.P.C was also extended to accused.

2. Brief facts of the prosecution case are that on 16.09.2016, complainant SIP Abdul Qadir left Police Station along with his subordinate staff for patrolling. While patrolling when the police party reached at Bank No.5 of Malir River, they saw accused in the suspicious manner there. Accused tried to hide himself behind bushes. He was surrendered and caught hold. On enquiry, accused disclosed his name was Muhammad Suleman Punjabi @ Bina son of Abdul Mubeen. Personal search of the accused was conducted, during search two hand grenades were recovered from his pocket wrapped in newspaper so also one 30 bore pistol containing 06 bullets from the fold of his Shalwar. It is alleged that cash of Rs.230/- was also recovered from him. Accused was enquired about the license for the pistol, he replied in negative. Accused was arrested in presence of mashirs. Mashirnama of arrest and recovery was prepared. Thereafter, accused and case property were brought to Police Station where two separate FIRs bearing Crime No. 809/2016 under Section 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997 and Crime No. 810/2016 under Section 23(1)(a) of Sindh Arms Act, 2013 were registered against accused on behalf of state.

3. Investigation of aforesaid FIRs was entrusted to Inspector Arif Razzaq, who inspected the place of wardat on the pointation of complainant in presence of mashirs, SIP Abdul Qadir and HC Shamsuddin, I.O recorded statements of witnesses under Section 161 Cr.P.C, despatched pistol and bullets to the FSL. Hand Grenades were examined by Bomb Disposal Unit such report was issued. I.O obtained necessary permission from the Home Department. On the conclusion of usual investigation, challan was submitted against accused in the above referred sections.

4. On the application of the prosecution, both cases/crimes were amalgamated in terms of Section 21-M of Anti-Terrorism Act, 1997 for joint trial.

5. Trial Court framed Charge against accused at Ex. 4 under the above referred sections. Accused pleaded not guilty and claimed their trial.

6. At the trial, prosecution examined three witnesses. Thereafter, learned ADPP closed the prosecution side vide Statement at Ex. 08.

7. Statement of accused under Section 342 Cr.P.C was recorded at Ex.9. Accused claimed his false implication in the present cases and denied the prosecution allegations. Accused raised plea that hand grenades and pistol have been foisted upon him. Accused further stated that on 09.09.2016, at mid night in between 2.30 am to 3.00 am, he was sitting outside his house due to load shedding of electricity, at that time, four persons appeared, on motorcycles in the civil dresses and picked-up the accused and demanded Rs.500,000/- for his release, on his refusal, he was severely beaten and his custody was handed over to the K.I.A PS. It is alleged that false cases were registered against him. Accused has further raised plea that his sister Zohra Khatoon had made applications regarding his illegal detention to the higher officials. Accused examined himself on oath under Section 340(2) Cr.P.C and examined DWs (1) Mst. Zohra Khatoon and (2) Abdul Qadir in his defence.

8. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 28.03.2017, convicted and sentenced the appellant as stated above. Separate Special Criminal Anti-Terrorism Appeals were filed by the appellant against the convictions and sentences recorded against him. We intend to decide aforesaid appeals by this single judgment as the same arise out the common judgment dated 28.03.2017.

9. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 28.03.2017 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

10. The extensive arguments of learned counsel for the parties are not recorded separately but the same shall be reflected in discussion.

11. We have come to the conclusion that evidence of police officials was not trustworthy and reliable for the reasons that prosecution story appears to be unnatural and unbelievable. There is no reliable evidence that as to why police officials were patrolling in the evening time in bushes. It is observed that police patrolling is normally on the roads or sometimes on spy information at the secret places, but was not the case of the prosecution that there was spy information that accused was present in the bushes. It is the case of the prosecution as deposed by P.W-1 Abdul Qadir that two hand grenades and 30 bore pistol with six bullets were recovered from the possession of the accused, but description/ numbers of the hand grenades and pistol have not been mentioned by SIP Abdul Qadir in his evidence. It is very difficult for us to believe prosecution evidence that accused was armed with hand grenades and pistol, he easily surrendered before the police, without causing any harm to the police officials. Complainant has admitted that he had not produced entry of Register No.19 about deposit of the case property at police station with the Incharge of Malkhana. It clearly shows that safe custody of the pistol and hand grenades have not been established at trial. SI Abdul Qadir, head of the Police party has admitted that he has not disclosed description of the weapon in the Mashirnama of arrest and recovery. In the cross-examination he replied that figure 69 was mentioned on hand grenades, but such figure has not been mentioned by him in the Mashirnama of arrest and recovery. It has also been admitted by P.W.No.1 that number of the pistol was rubbed but this fact has not been mentioned by him in the Mashirnama of arrest and recovery. P.W-2 ASI Shams Din had acted as mashir of arrest and recovery. He has also deposed that accused was arrested from the bushes, but there is no plausible explanation as to how police party went into the bushes. PW-3 Inspector Arif Razzaq Investigating officer has deposed that on 16.09.2016, aforesaid cases/FIRs, custody of the accused and case property were handed over to him for investigation. He inspected place of wardat, dispatched pistol to the Expert, got hand grenades inspected by Bomb Disposal Unit and collected reports. In the cross-examination, he has admitted that Ibrahim Panhwar Village is situated at the distance of 400/500 yards away from the place of incident, but he did not call independent persons from the village to ascertain truth about incident. I.O had also not enquired from the accused what was his intention to carry the hand grenades. I.O was also not aware about the applications submitted by the sister of the accused to the higher officials regarding arrest of the accused before registration of these cases. We have also perused the defence evidence DW-1 Mst. Zohra, Khatoon sister of the accused she has deposed that on 09.09.2016, accused was sitting outside of his house along with Mohallah people due to load shedding of electricity, four persons came in the street and took her brother and lodged false cases against him. She submitted applications to the Honourable Chief Justice of Sindh High Court, I.G. Police Sindh and others and produced Photostat copies of the applications and receipts of courier service. D.W-2 Abdul Qadir has deposed that on 09.09.2016 at night time, he was sitting outside of his house along with accused due to load shedding, four persons came and took away accused and lodged false cases against him. It appears from the evidence available on record that fair investigation has also not been conducted in this case. It was duty of I.O to investigate/interrogate about applications made by DW-1 Zohra Khatoon, sister of the accused to the higher officials. I.O had also failed to examine villagers of village Ibrahim Panhwar Village situated at the distance of 400/500 yards from the place of incident in order to ascertain whether incident had taken place or not. Safe custody of weapons at police station and safe transit to expert has also not established. Prosecution has utterly failed to prove it’s 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 persons 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.”

12. In the view of above, we have come to the conclusion that the prosecution has failed to prove the aforesaid case 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 28.03.2017 are set aside. Appellant Muhammad Suleman Punjabi @ Bina is acquitted of the charges. Appellant shall be released from custody forthwith, if he is not wanted in some other custody case.

JUDGE

JUDGE