IN THE HIGH COURT OF SINDH AT KARACHI

Special Criminal AT Appeal No. 155 of 2018

Special Criminal AT Appeal No. 156 of 2018

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Rasheed Ahmed Soomro

Appellant: Muhammad Yousuf son of Muhammad Nawaz through Mr. Muhammad Dawood Narejo and Muhammad Sharif Dars, advocates

Respondent: The State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh

Date of hearing: 24.09.2018

Date of announcement: 12.10.2018

J U D G M E N T

Naimatullah Phulpoto, J.- Muhammad Yousuf appellant was tried by learned Judge, Anti-Terrorism Court No.XIX, Karachi, in Special Case No.108/2017 and Special Case No.109/2017, in FIRs No.242/2017 under sections 4/5 of the Explosive Substances Act, 1908 read with Section 7 of the Anti-Terrorism Act, 1997 and FIR No.243/2017 under section 23(1)(a) of the Sindh Arms Act, 2013, registered at Police Station Preedy, Karachi. On conclusion of trial, vide judgment dated 08^th May, 2018, appellant was convicted for offence punishable under Sections 4/5 Explosive Substance Act, 1908 read with Section 7(ff) of Anti-Terrorism Act, 1997 and sentenced him to fourteen [14] years R.I. with forfeiture of his property as required under section 7(2) of the Anti-Terrorism Act, 1997. Appellant was also convicted under Section 23(1) (a) of the Sindh Arms Act, 2013 and sentenced to seven [07] years R.I. and to pay fine of Rs.50,000/-, in case of default of in payment of fine, the appellant was ordered to suffer one year’s R.I. more. Both the sentences were ordered to run concurrently. Appellant was extended benefit of Section 382-B, Cr.PC.

2. Brief facts of the prosecution case are that on 05.06.2017 SIP Muhammad Afzal of P.S. Preedy along with his subordinate staff left police station vide roznamcha entry No.29 at 3000 hours for patrolling duty. When police party reached at Dawoodpota Road at about 03:00 a.m., present accused was found in suspicious manner. He was directed to stop but it is alleged that accused drew out hand grenade from his pocket and issued threat to the police for blast. However, accused was surrounded and caught hold. It is alleged that hand grenade was recovered from his possession. On further search of accused, SIP Muhammad Afzal recovered one 9MM pistol from the fold of his shalwar, it contained five live bullets. On inquiry, accused disclosed that said pistol was without license. Accused was arrested in presence of mashirs PCs Noman and Ghulam Mustafa. Pistol was sealed at the spot, such mashirnama was prepared. Thereafter, accused and case property were brought to the police station where SIP Muhammad Afzal lodged two separate FIRs were lodged on behalf of the State being FIR No.242/2017 under sections 4/5 of the Explosive Substances Act, 1908 read with Section 7 of the Anti-Terrorism Act, 1997 and FIR No.243/2017 under section 23(1)(a) of the Sindh Arms Act, 2013 against the appellant.

3. Investigation was handed over to investigation officer Aurangzeb, copies of FIRs, custody of the accused and case property were handed over to him. Investigation officer visited the place of incident in presence of mashirs, recorded statements of PWs under section 161, Cr.PC. On 07.06.2017 investigation officer sent case property viz. pistol for FSL for examination and report, collected CRO of accused. He got explosive substance defused through BDU. On the conclusion of usual investigation, he submitted challan against accused under the above referred sections. Learned trial court vide order dated 07.08.2017, ordered for joint trial of both the cases as provided under Section 21- M of the Anti-Terrorism Act, 1997.

4. Trial court framed charge against the accused at Ex.4. Accused pleaded not guilty and claimed to be tried.

5. At trial, prosecution examined four prosecution witnesses. Thereafter, prosecution side was closed.

6. The statement of accused was recorded under Section 342 Cr.PC. Accused claimed false implication in this case and denied the prosecution allegations. In a question, do you want to say anything else? Accused replied as under:

“I am innocent and I was arrested on 02.06.2017 from eastern garments factory by police along with my brother Bakhat Ali thereafter police falsely implicated us in false cases. I pray for justice. My father moved application to DIG on 03.06.2017. I produce copy of same. I also produce attendance sheet of garments factory. I produce copy of judgment of case of my brother.”

Accused did not lead any evidence in defence and declined to give statement on oath in disproof of prosecution allegations.

7. Learned trial Court, after hearing the learned counsel for the parties and assessment of evidence available on the record, vide judgment dated 08.05.2018, convicted and sentenced the appellant as stated above, hence this appeal.

8. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 08.05.2018 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Learned advocate for appellant contended that prosecution story was highly unnatural and unbelievable. It is further contended that accused was arrested at midnight, element of terrorism was missing in the case. Description of 9 MM Pistol and explosive substance have not been mentioned in the mashirnama of arrest and recovery as well as in the evidence. Learned advocate for appellant argued that actually accused was arrested on 02.06.2017, father of the appellant had submitted an application to DIG on 03.06.2017 in which he had stated that his son has been picked up by unknown persons near garments factory in presence of Yousuf and Bakhat Ali. It is submitted that safe custody of pistol and hand grenade at police station have not been established. It is also argued that safe transmission of pistol to the chemical examiner has also not been proved. Lastly, it is argued that appellant had produced an application moved by his father to DIG on 03.06.2017, copy of attendance sheet of the garments factory and copy of judgment in the case of his brother but these documents were not exhibited by the trial court in his statement recorded under section 342, Cr.PC and the defence of the appellant was prejudiced. In support of his contentions reliance has been placed upon the case of Kamaluddin alias Kamala vs. The State [2018 SCMR 577].

10. Mr. Muhammad Iqbal Awan, Deputy Prosecutor General, argued that prosecution had examined four witnesses and they have fully supported the case of the prosecution. He has further submitted that FSL report was positive. BDU report is also on record. Learned D.P.G. prayed for dismissal of appeal.

11. We have carefully heard the learned counsel for the parties and perused the evidence minutely.

12. SIP Aurangzeb of P.S. Preedy in his examination-in-chief has repeated the same facts/prosecution case as narrated in first paragraph of the judgment. However, in the cross-examination admitted that description of the pistol and hand grenade have not been mentioned in the memo of arrest and recovery. SIP has further admitted that number of pistol is also not mentioned in the mashirnama of arrest and recovery. He has admitted that at the same police station a case under section 23(1)(a) of the Sindh Arms Act, 2013 vide Crime No.244/2017 was registered against the brother of the accused, namely Bakhat Ali, however, he has denied the suggestion for lodging false cases against the accused.

13. PW-1, SIP Muhammad Afzal has also deposed the same facts about episode. We avoid repetition. He was also cross-examined by the defence counsel and admitted that description of the hand grenade and pistol are not mentioned in the mashirnama of arrest and recovery. He has also admitted that some words are written on the pistol but those words have not been incorporated /written in the mashirnama of arrest and recovery.

14. PC Ghulam Mustafa PW-2 was the member of patrolling party and acted as mashir of arrest and recovery. He has also given the same facts of the incident. In cross-examination, he replied that nothing was written on the pistol.

15. SIP Ghulam Mustafa PW-4 deposed that on 06.06.2017 he was posted at BDU, he inspected hand grenade and found that it was without detonator. In the cross-examination, he admitted that hand grenade cannot be used without detonator.

16. We have come to the conclusion that prosecution has miserably failed to prove its case against the appellant for the reasons that prosecution story appears to be highly unnatural and unbelievable. During investigation, investigation officer could not ascertain that what was the intention of the appellant for carrying hand grenade and pistol at midnight. At the place of arrest of accused at said odd hours of the night public was not present, as such, element of terrorism was missing. SIP Muhammad Afzal PW-1 has failed to bring on record the suspicious condition in which he arrested the accused. Intention of the accused for carrying the explosive substance and pistol have also not come on record. There is no evidence that object and purpose of such acts of appellant was to terrorize the society or to put it under constant fear. It has also come on record that same police at same police station had arrested the brother of the appellant, namely, Bakhat Ali under section 23(1)(a) of the Sindh Arms Act, 2013, who has been acquitted by the competent court of law. Accused raised plea in his statement under section 342, Cr.PC that he was arrested on 02.06.2017 near Garments Factory along with his brother Bakhat Ali, police foisted these cases against them and his father has moved application against the police before the DIG on 03.06.2017. Accused had also produced attendance sheet of the garments factory and judgment in the case of his brother. Unfortunately, Mr. Zahid Hussain Maitlo, learned Judge, Anti-Terrorism Court-XIX, Karachi failed to exhibit the same. Comments of Mr. Maitlo, learned Judge, Anti-Terrorism Court-XIX , Karachi were called. Learned defence counsel has rightly argued that defence of the appellant was prejudiced and trial court has unfortunately ignored the defence plea without legal justification. Documents produced by the accused are available in the R and Ps.

17. Descriptions of the hand grenade and 9 MM Pistol have also not been mentioned in the mashirnama of arrest and recovery as such false implication of appellants could not be ruled out. Safe custody of the weapons at Police Station and safe transit have also not been established by cogent and confidence inspiring evidence, which is requirement of the law as held in the case of Kamaluddin alias Kamala vs. The State [2018 SCMR 577], wherein, the Honourable Supreme Court of Pakistan has observed as under:-

“4. As regards the alleged recovery of Kalashinkov from the appellant’s custody during the investigation and its subsequent matching with some crime-empties secured from the place of occurrence suffice it to observe that Muhammad Athar Farooq DSP / SDPO (PW18), the Investigating Officer, had divulged before the trial court that the recoveries relied upon in this case had been affected by Ayub, Inspector in an earlier case and thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial court through production of any witness concerned with such custody and transmission.”

18. It is very unfortunate that the learned trial Court ignored the defence plea without assigning the sound reasons. Plea has been raised by the accused that he has been involved falsely in these cases as father of the appellant had moved an application before the DIG on 03.06.2018 against the police officials. In these circumstances, in our considered view, that it was the duty of the prosecution to have examined independent and responsible persons of the locality but prosecution lacked independent evidence. In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt. Reliance is placed on the case of NADEEM-UL-HAQ and others vs. The STATE (1985 SCMR 510).

19. After careful reappraisal of the evidence discussed above, we are entertaining no amount of doubt that the prosecution has failed to bring home guilt to the accused as the evidence furnished at the trial is full of factual, legal defects and is bereft of legal worth/judicial efficacy. Therefore, no reliance can be placed on the same.

20. 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 a 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) and Muhammad Zaman v. The State (2014 SCMR 749).

21. For the reasons discussed above, appeals are allowed by extending benefit of doubt. Conviction and sentence recorded by the trial court against the appellant are set aside. Appellant shall be released forthwith if not required in some other custody case.

22. Let the copy of this judgment be sent to Mr. Zahid Hussain Maitlo, Anti-Terrorism Court-XIX, Karachi through learned Registrar of this Court with direction to be careful in future.

J U D G E

J U D G E

Gulsher/PS