HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Jail Appeals No. 07 & 11 of 2024

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Irshad Ali Shah

Appellant : Muhammad Ahmed through Mr. Muhammad Riaz advocate

Respondent : The State through Mr. Abrar Ali Khichi Additional Prosecutor General Sindh

Date of Hearing : 05.08.2024

Date of judgment : 05.08.2024

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Muhammad Ahmed was tried by learned Judge, Anti-Terrorism Court No. XIII, Karachi in Special Case No.335/2023 (FIR No.114/2023 for offences under Sections 324, 353, 427, 411, 34 PPC read with Section 7 of ATA 1997) and Special Case No. 335-A/2023 (FIR No. 115/2023 for offence under Section 23(1)(a) of Sindh Arms Act 2013). After full dressed trial, vide judgment dated 06.11.2023, appellant was convicted under Section 324 PPC and sentenced to suffer R.I for 10 years and to pay fine of Rs.50,000/- and in case of default in payment of fine he was ordered to suffer R.I for 06 months. The property of appellant was forfeited to the Government. Appellant was convicted under Section 353 PPC and sentenced to suffer R.I for 02 years; appellant was convicted under Section 427 PPC and sentenced to suffer R.I for 02 years and to pay fine of Rs.10,000/-. In case of default he was ordered to suffer R.I for one month. Appellant was also convicted under Section 7(h) of ATA 1997 and sentenced to suffer R.I for 10 years and to pay fine of Rs.50,000/-. In case of default he was ordered to suffer R.I for 06 months. Appellant was convicted under Section 23(1)(a) of Sindh Arms Act 2013 and was sentenced to suffer R.I for 07 years and to pay fine of Rs.20,000/-. In case of default he was ordered to suffer R.I for 02 months. All the sentences were ordered to run concurrently. Appellant was extended benefit of Section 382-B Cr.P.C.

2. Brief facts leading to the filing of the appeals are that on 16.06.2023, SIP Shah Baig of PS Nabi Bux left police station along with his subordinate staff for patrolling duty. During patrolling at 2:00 a.m. police party reached near police headquarter Garden Karachi where spy information was received that appellant was present at Jhangir Patangi road with intention to commit some crime. On such spy information, police party proceeded there and found appellant standing there. As soon as appellant saw the police party in police mobile, he started straight firing upon the police, police also fired in self defence. Resultantly, appellant received fire arm injury at his leg and he fell down. He was arrested by SIP Shah Baig in injured condition in presence of mashirs PCs Zeeshan Ahmed and Syed Hasnain Shah and from his possession 30 bore pistol with two live bullets, one cellular phone and motorcycle were recovered. Mashirnama of arrest and recovery was prepared. Thereafter, appellant and case property were brought to the police station where FIR was lodged in the main case bearing Crime No.114/2023 for offences under Sections 324, 353, 427, 411, 34 PPC read with Section 7 of ATA 1997 and in connected case FIR bearing Crime No.115/2023 for offence under Section 23(1)(a) of Sindh Arms Act 2013. Appellant was referred to the medical officer for his examination and certificate.

3. During investigation, crime weapon 30 bore pistol and bullets were dispatched to the Ballistic Expert, positive report was received. On the conclusion of the usual investigation, challan was submitted against accused under the above referred sections.

4. Learned Trial Court amalgamated the aforesaid connected case with main case 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 at Ex.4. Accused pleaded not guilty and claimed to be tried. In order to substantiate the charge, prosecution has examined 06 P.Ws who produced the relevant documents at trial. Thereafter, prosecution closed its’ side.

6. Trial Court recorded statement of accused under Section 342 Cr.P.C at Ex.15, in which he denied the prosecution’s allegations and claimed false implication in this case. Accused declined to examine himself on oath in disproof of the prosecution allegations and did not lead evidence in his defence.

7. Trial Court, after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 06.11.2023 convicted and sentenced the appellant as stated above. Thereafter, appellant has preferred these appeals. Hence, through this common judgment, we intend to dispose of instant appeals.

8. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 06.11.2023 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 the appellant has contended that appellant is innocent and has been falsely implicated in this case by the police; that firearm injury was inflicted upon the appellant by the police when he refused to pay bribe to them; that pistol, mobile phone and motorcycle were foisted upon him; that there are major contradictions in the prosecution evidence which render prosecution case unreliable; that no police officer was injured during so called encounter; that prosecution has failed to prove safe custody and safe transmission of the pistol allegedly used in the crime. Lastly, it is submitted that appellant is entitled to the acquittal by extending him benefit of doubt. In support of his contentions reliance is placed upon the cases reported as Zeeshan @ Shani vs. The State (2012 SCMR 428), Tariq Pervez v. The State (1995 SCMR 1345), Kamal Din alias Kamala vs. The State (2018 SCMR 577) and Zahid Sarfaraz Gill vs. The State (2024 SCMR 934).

10. On the other hand learned Addl. P.G Sindh contended that evidence of police official is reliable and confidence inspiring; that it was odd hours of night, private persons were not present; that appellant was arrested on spot in injured condition and an unlicensed pistol was recovered from his possession. As regards to the application of 7 of ATA 1997, Addl. P.G frankly submitted that ingredients of Section 7 of ATA 1997 are not attracted in this case. However, Addl. P.G prayed for dismissal of the appeals.

11. We have heard arguments of learned Advocate for the appellant, Addl. P.G and have gone through the entire evidence, which has been read out by learned Advocate for the appellant and the impugned judgment and have considered the relevant law cited at bar.

12. After re-assessment of the evidence, we have come to the conclusion that prosecution has miserably failed to prove its’ case against the appellant for the reasons that it was a case of spy information, incident had occurred on a road in thickly populated area, but no efforts were made by the police to associate private persons. Despite cross firing with sophisticated weapons, not a single injury/scratch was caused to the police officials in the incident. On the other hand, appellant sustained fire arm injury at his right leg. It is alleged that damage was caused to police mobile, it was never produced at trial. Prosecution’s story appears to be quite unnatural and unbelievable. It was un-understandable as to why police officials did not record or took photographs when search, seizure and/or arrest of the appellant in injured condition. Now-a-days every police official carries cellular phone. Article 164 of Qanun-e-Shahadat Order 1984 specifically permits the use of any evidence that may have become available because of modern devices or techniques and its Article 165 overrides all other laws as observed in the case of Zahid Sarfaraz Gill vs. The State (2024 SCMR 934). In the mashirnama of arrest and recovery at Ex.5/D, description of the 30 bore pistol is mentioned as “CAL 30 Bore Crown Hamalia Arms Company”, but in the report of the Ballistic Expert, no such description is mentioned, which clearly shows that there was tampering with the case property. Safe custody and safe transmission of the pistol to Ballistic Expert has not been established before the trial Court for the reason that prosecution failed to examine Incharge Malkhana. It is case of prosecution that appellant sustained fire arm injury in the cross firing, but memo regarding inspection of place of wardat Ex.5/J shows that no blood was found at the place of occurrence. This circumstance also goes against the prosecution.

13. It is settled principle of law that for extending 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 matter of right. In this case there are several circumstances as mentioned above which have created reasonable doubt. Rightly reliance has been placed upon the case of Tariq Pervez v. The State (1995 SCMR 1345).

14. For the above stated reasons, we have no hesitation to hold that prosecution has failed to prove its’ case against the appellant beyond any reasonable doubt to sustain conviction. Consequently, these appeals are allowed and impugned judgment is set aside. Appellant Muhammad Ahmed is acquitted of the offences, for which he was charged, tried and convicted by learned trial Court and be released forthwith, if not required to be detained in any other custody case.

15. These are the reasons for our short order announced on 05.08.2024, whereby instant Special Criminal Anti-Terrorism Jail Appeals were allowed.

JUDGE

JUDGE