IN THE HIGH COURT OF SINDH AT KARACHI

Special Criminal AT Appeal No. 34 of 2018

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Rasheed Ahmed Soomro

Appellant: Kamran Kazi son of Rahat Hussain through Mr. Muhammad Raees Siddiqui, Advocate

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

Date of hearing: 26.09.2018

Date of Announcement: 01.10.2018

J U D G M E N T

Naimatullah Phulpoto, J.- Kamran Kazi, appellant, was tried by learned II Additional Sessions Judge / Special Judge, Anti-Terrorism Court, Karachi Central, in Special Case No.45 of 2016, in FIR No.199/2015, registered at P.S. Bilal Colony, Karachi, for offences under sections 353, 324, 34, PPC read with Section 7 of the Anti-Terrorism Act, 1997. After full-dressed trial, trial court vide judgment dated 20.01.2018, convicted appellant Kamran Kazi under Section 7 of the Anti-Terrorism Act, 1997 and sentenced to 10 years R.I. and to pay fine of Rs.20,000/-, in case of default in payment of fine he was ordered to suffer S.I. for one month. Appellant was also convicted under section 324, PPC and sentenced to 10 years R.I. He was also convicted under Section 353, PPC and sentenced to 2 years R.I. All the sentences were ordered to run concurrently. Appellant was extended benefit of Section 382-B, Cr.PC.

2. Brief facts of the prosecution case as disclosed in the FIR are that on 05.10.2015 at 1920 hours, ASI Tariq Javed received spy information that absconding accused of Crime No.294 and 295 of 2015 were present at Sector 5-J, New Karachi. On such information, ASI Tariq Javed along with his subordinate staff left police station vide Roznamcha Entry No.26 at 1815 hours in the Government vehicle. Spy informer was with the police party. It is alleged that police party reached at pointed police at 07:10 p.m. where saw two persons sitting on the motorcycle. Both accused persons while seeing the police party fired straight upon police, in the result of fires it is alleged that PC Waseem received fire arm injuries at his legs. PCs Farhad and Hanif on the directions of ASI Tariq Javed fired upon the accused, however, none received injury. Accused left motorcycle at spot and succeeded in running away through narrow streets due to darkness. Injured PC Waseem was taken to Abbasi Shaheed Hospital for treatment. FIR of the incident was lodged vide Crime No.199/2015 for offences under sections 353, 324, 34, PPC, read with Section 7 of the Anti-Terrorism Act, 1997.

3. During investigation, ASI Mushraf, investigation officer, called ASI Tariq Javed and PC Hanif and proceeded to the place of wardat for inspection. Investigation officer recorded statements of witnesses under section 161, Cr.PC. On 21.11.2015, SIO P.S. Bilal Colony called ASI Tariq Javed and PC Muhammad Hanif where accused Kamran was confined. Accused Kamran admitted his guilt and led the police party and pointed out the place of incident. Investigation officer collected medical certificate. On the conclusion of usual investigation, challan was submitted against accused Kamran for offences under sections 353, 324, 34, PPC read with section 7 of the Anti-Terrorism Act, 1997.

4. Trial court framed charge against appellant Kamran at Ex.2. to which accused pleaded not guilty and claimed to be tried.

5. At trial, prosecution examined 9 witnesses. Thereafter, prosecution side was closed.

6. The statement of appellant under Section 342 Cr.P.C., was recorded at Ex-21, wherein, he denied the prosecution allegations. Accused raised plea that he was arrested from Islamabad and he has been falsely implicated in this case. Accused declined to examine himself on oath and did not lead evidence in his defence 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 20.01.2018, 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 20.01.2018 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Mr. Muhammad Raees Siddiqui, learned counsel for the appellant has mainly argued that there was darkness at the time of incident and source of light has not been disclosed by the prosecution. He has argued that allegations were generalized in nature; that after arrest of the accused, identification parade was not held. Identification of appellant before the trial court was unsafe for conviction. In support of the contentions, reliance has been placed upon the judgment of Lal Khan and others vs. Qadeer Ahmed and others (2018 SCMR 1590).

10. Mr. Muhammad Iqbal Awan, Deputy Prosecutor General, has argued that prosecution witnesses have fully supported the case of the prosecution. Learned D.P.G. further argued that appellant was identified by injured PC Waseem before trial court and clearly stated that appellant had fired upon him. Learned D.P.G. Lastly, prayed for dismissal of appeal.

11. We have carefully heard the learned counsel for the parties and perused the entire evidence available on record.

12. According to the case of prosecution, it was spy information case. Incident had occurred at 07:10 p.m. in the street. It has come on record that accused ran away through the narrow streets because of the darkness but source of light has not been disclosed by the PWs in their evidence at trial. There were two accused persons, who fired upon injured PC Waseem, it has not come on record. In other words, allegations were general in nature. If prosecution story would have been true, there would have been some blood at the place of incident but no blood stained earth was found by the investigation officer at the place of incident. Empties were also not collected from the place of wardat. Accused was arrested in another case after one month of the incident but he was not put to identification parade through the alleged eye witness. Identification of appellant before the trial court was unsafe for conviction purpose for the reasons that complainant party was the police and accused was confined at police station. Prosecution could not answer as to how another accused ran away from police force. Prosecution story appears to be unnatural and unbelievable. There was no evidence that the appellant used criminal force to deter the police party from discharge of the official duty. Circumstances of the case clearly indicate that after arrest of the accused in some other case, some engineering had been resorted to by the prosecution so as to cook up a story. Learned counsel for the appellant has relied upon the case of Lal Khan (supra). Relevant portion is reproduced as under:

“3.         There are certain facts which are not disputed in this case and they include the facts that the place of occurrence was the house of Qadeer Ahmed respondent and his deceased brother Ijaz, it was the police party which had gone to that house to conduct a raid and the said party surprised the respondent and his deceased co-accused who were otherwise peacefully present in their own house, upon seeing the police party it were the respondent and his deceased co-accused who had started firing at the police party which fires had hit Muhammad Akram, S.I. leading to his death and in retaliation of such firing at the police party the police had fired back at Ijaz co-accused who after receipt of firearm injuries at the hands of the police died at the spot. There was a serious infirmity in this story of the prosecution and that was that if, according to the prosecution itself, the initial firing at the police had been resorted to by Qadeer Ahmed respondent and his deceased co-accused namely Ijaz and if through such firing one member of the police force had been critically injured at the spot then what was expected was that the police party would fire back at both the present respondent and his deceased co-accused rather than choosing the said co-accused as the only target of the police response. The places of presence of the accused party and the police party at the spot shown in the site-plan of the place of occurrence clearly established that if the police party wanted to target Qadeer Ahmed respondent as well then there was nothing to stop it from causing injuries to him. This shows that the police party had not fired at Qadeer Ahmed respondent which is a clear indication of a real possibility that it was only the respondent's co-accused namely Ijaz who had fired at the police party and in response the police party had fired back at him and that Qadeer Ahmed respondent had not fired at the deceased at all and that is why he was not hurt by the police party. It may be true that four crime-empties secured from the place of occurrence had matched with the pistol statedly recovered from the custody of Qadeer Ahmed respondent at the time of his surrender before the police party at the spot but it cannot be lost sight of that the said pistol had been recovered at the spot and it was not difficult for the police party to manufacture as many crime-empties from the said recovered pistol as it wanted so as to strengthen its case against Qadeer Ahmed respondent. These factors available on the record of this case cannot be treated as conjectures because they are not purely speculative. We find that such circumstances lead to inferences which can be drawn on the basis of the facts available on the record. It is trite that a conjecture has no place in criminal law whereas an inference plays an important role because the same is based upon a logical deduction from circumstances available on the record. The circumstances becoming clear to us upon a proper appreciation of the evidence available on the record go a long way in convincing us that Qadeer Ahmed respondent had not fired at the police party at all and that is why he was not harmed by the police party at the spot and also that he had surrendered before the police without causing any harm to anybody and after his surrender some engineering had been resorted to by the prosecution so as to cook up a story qua the respondent's role and to bolster the same through contrived circumstances.”

13. For what has been discussed above, we are of the considered view that the prosecution has utterly failed to establish its case against the appellant. 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 single 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).

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

J U D G E

J U D G E

Gulsher/PS