HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals No. 167 & 168 of 2023

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Irshad Ali Shah

Appellant : Haji Muhammad through Mr. Mallag Assa Dashti advocate

Respondent : The State through Mr. Ali Haider Saleem Additional Prosecutor General Sindh

Date of Hearing : 21.08.2024

Date of judgment : 21.08.2024

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Haji Muhammad was tried by learned Judge, Anti-Terrorism Court No. II, Karachi in Special Case No.420 and 420-A of 2022 (FIR No.435/2022 for offences punishable under Sections 353, 324, 34 PPC read with Section 7 of ATA 1997 and FIR No. 436/2022 and for offence punishable under Section 23(1)(a) of Sindh Arms Act 2013). After full dressed trial, vide judgment dated 25.09.2023, appellant was convicted under Section 7(h) of ATA read with section 353 PPC and sentenced to suffer 05 years R.I and to pay fine of Rs.5000/- and in case of default, he was ordered to suffer 03 months S.I. Appellant was further convicted under Section 7(h) of ATA read with section 324 PPC and sentenced to suffer 05 years R.I and to pay fine of Rs.5000/-. In case of default he was ordered to suffer 3 months S.I. Appellant was also convicted under Section 23(1)(a) of Sindh Arms Act 2013 and was sentenced to suffer 05 years R.I and to pay fine of Rs.3000/-. In case of default he was ordered to suffer 3 months S.I. 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 27.06.2022, SIP Amir Azam along with his subordinate staff left P.S for patrolling, when police party reached at main road Ship Owner College, North Nazimabad and started snap checking, it was 1930 hours, where it is alleged that two persons appeared on a motorcycle, they were found in suspicious condition by the police and they were signaled to stop, but instead they started firing at police party, police also fired in self defence. During cross firing one bullet of the police hit to the appellant Haji Muhammad and another culprit who was sitting on the rear seat of motorcycle succeeded to run. Appellant was arrested in injured condition in presence of mashirs Muhammad Atif and Anas Ashfaq and from his possession 30 bore pistol with rubbed number, with three live bullets, one cellular phone and motorcycle were recovered. Mashirnama of arrest and recovery was prepared. After incident, appellant in the injured condition was shifted to hospital for his examination and certificate and FIRs for the offences were lodged by SIP Amir Azam on behalf of state.

3. During investigation, 30 bores pistol and bullets were dispatched to the Ballistic Expert, positive report was received. On the conclusion of the usual investigation, challan was submitted against the accused for his trial for offences punishable under sections 353, 324, 34 PPC read with Section 7 of ATA 1997 and under Section 23(1)(a) of Sindh Arms Act 2013.

4. Learned Trial Court amalgamated the aforesaid connected 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 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.14, 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 the same.

8. Learned advocate for the appellant has contended that according to the evidence of prosecution witnesses, police party started snap checking on the orders of SSP and DIG but no record of such directions was produced before the trial Court; that despite cross firing with the sophisticated weapons, no police official received any injury and injury which was caused to the appellant was managed by the police; that P.W Anas Ashfaq was a chance witness has failed to explain his presence at the time of incident. P.W-02 Anas Ashfaq in his evidence has deposed that pistol which was recovered from the possession of the appellant had some English words written on its barrel but report of Ballistic Expert is silent to that extent. Lastly, learned advocate for the appellant argued that trail Court has failed to appreciate the evidence according to settled principles of law and prayed for acquittal of the appellant by extending him benefit of doubt. In support of his contentions reliance is placed upon the cases reported as Samiullah and others vs. The State (2024 MLD 44), Abdullah and others vs. The State (2024 MLD 134) and Tariq Pervez v. The State (1995 SCMR 1345).

9. On the other hand learned Addl. P.G Sindh contended that evidence of police official is reliable and confidence inspiring; that prosecution has also examined one P.W-02 Anas, who is private person and he had no enmity to falsely implicate the appellant in this case.

10. 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.

11. 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 according to prosecution case there was cross-firing but not a single fire shot injury was caused to the police officials or even to police mobile. It does not appeal to the prudent mind that one culprit according to prosecution story ran away at the time of encounter from the police party, who was armed with arms and ammunitions. It has come on record that snap checking was started by the police officials on the orders of SSP and DIG but no record of such directions was produced by the prosecution at trial. In the mashirnama of arrest and recovery as well as in the evidence of P.W-02 Anas Ashfaq descriptions of the pistol recovered from the appellant are mentioned that some English words were written on its barrel. Report of the Ballistic Expert is silent on this point. As regards to the evidence of P.W-02 Anas Ashfaq is concerned we are unable to rely upon his evidence for the reason that he was chance witness and could not explain his presence at the relevant time. Even he has not disclosed the location exactly.

12. 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. Reliance in that respect could be placed upon the case of Tariq Pervez v. The State (1995 SCMR 1345).

13. 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 Haji Muhammad 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.

14. These are the reasons for our short order announced on 21.08.2024, whereby instant Special Criminal Anti-Terrorism Appeals were allowed.

JUDGE

JUDGE