THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Jail Appeal No. 124 of 2023

Present: Naimatullah Phulpoto, J

Irshad Ali Shah, J

Appellant : Javed Shah through Mr. Khuda Dino Sangi advocate

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

Date of Hearing : 12.09.2024

Date of judgment : 12.09.2024

JUDGMENT

NAIMATULLAH PHULPOTO, J.- It is the case of the prosecution that SIP Ghulam Hussain along with his subordinate staff left for patrolling on 06.08.2022. During patrolling, police party received spy information that two suspected persons were present near Liyari Railway Station, Maripur Road. Police party proceeded to the pointed place and reached there at 0200 hours and saw two persons in suspicious manner, who on seeing police party started firing, police also fired in self defence, resultantly, appellant sustained fire arm injury and co-accused ran away from the spot. In the incident, no injury was caused to the police officials. Police arrested the appellant, on enquiry he disclosed his name as Jawaid Shah. Police recovered one unlicensed 30 bore pistol without number and four live bullets from his possession; mashirnama of arrest and recovery was prepared in presence of mashirs namely PCs Gulsher and Muhammad Aslam. Thereafter, appellant was referred to the Hospital and SIP Ghulam Hussain came at the police station and lodged two FIRs bearing Crime No.237/2022 for offences punishable under Sections 353, 324, 186, 34 PPC read with Section 7 of ATA 1997 and Crime No. 238/2022 for offence punishable under Section 23(1)(a) of Sindh Arms Act 2013 at P.S Kalri, Karachi on behalf of State.

2. During investigation, crime weapon 30 bore pistol, bullets and empties 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.

3. At trial, both cases one relating to police encounter and another relating to the recovery of unlicensed pistol of 30 bore from appellant were jointly tried in terms of Section 21-M of Anti-Terrorism Act 1997.

4. Trial Court framed Charge against the appellant, he pleaded not guilty and claimed to be tried. In order to substantiate the charge, prosecution has examined 04 P.Ws who produced the relevant documents at trial. Thereafter, prosecution side was closed.

5. Trial Court recorded statement of accused under Section 342 Cr.P.C, 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.

6. Trial Court, after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 15.06.2023 convicted the appellant under Section 7(h) of ATA 1997 read with section 353 PPC and sentenced to undergo 05 years R.I and to pay fine of Rs.5000/-. In case of default, he was directed to undergo 03 months S.I. Appellant was convicted under Section 7(h) of ATA 1997 read with section 324 PPC and sentenced to undergo 05 years R.I and to pay fine of Rs.5000/-. In case of default, he was directed to undergo 03 months S.I. Appellant was also convicted under Section 23(1)(a) of Sindh Arms Act 2013 and sentenced to undergo 05 years R.I and to pay fine of Rs.3000/-. In case of default, he was directed to undergo 03 months S.I. All the sentences were directed to run concurrently. Appellant was also extended benefit of section 382(b) Cr.P.C. Thereafter, appellant filed instant Appeal.

7. Learned advocate for the appellant has mainly contended that prosecution story is highly unnatural and unbelievable; that it was night time incident but source of light on which mashirnama of arrest and recovery was prepared has not been mentioned; that description of the pistol allegedly recovered from the possession of the appellant has not been mentioned; that though it was the case of cross firing with sophisticated weapons but not a single injury was caused to any police official. Learned advocate for the appellant pointed out that Doctor, who examined the appellant, opined that injury No.2 on the person of the appellant was 03 to 04 days old, whereas, according to the prosecution case, soon after the incident, appellant in injured condition was referred to the Hospital but no where injury No.2 was on the person of injured appellant has been mentioned. 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 case reported as Zahid Sarfaraz Gill vs. The State (2024 SCMR 934).

8. On the other hand learned, Addl. P.G Sindh contended that evidence of police official is reliable and confidence inspiring; that appellant was arrested on spot in injured condition and an unlicensed pistol was recovered from his possession. Prosecution has succeeded to prove its’ case against the appellant and prayed for dismissal of the appeal.

9. 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.

10. 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 person. It is the prosecution evidence that there was cross-firing with the sophisticated weapons but neither police official sustained firearm injury nor damage was caused to police mobile which appears to be unbelievable. On the other hand, appellant had sustained fire shot injury on his right leg. So far injury No.2 on the person of the appellant is concerned, record reflects that it has been suppressed by the police. According to the Doctor, injury No.2 was 03 to 04 days old and was caused to the appellant with hard blunt substance. Addl. P.G could not explain injury No.2 that how that was sustained by the appellant. On the other hand, advocate for appellant has contended that it is a case of false police encounter and appellant was arrested by police 04 days prior to registration of cases. Element of terror or panic is missing in the case. Conviction and sentence under section 7 of the Anti-Terrorism Act, 1997 was also not sustainable. Police officials did not record or took photographs when search, seizure and arrest of the appellant was made. It was night time incident, source of light is not mentioned by the police officials in their evidence and mashirnama of arrest and recovery is also silent on this aspect of the case. So far description of the pistol is concerned, in the mashirnama of arrest and recovery, description has been mentioned, but evidence of police officials is silent on this respect. Addl. P.G could not explain such omission in the prosecution evidence. Safe custody and safe transmission of the pistol used in crime has not been established before the trial Court, for the reason that prosecution failed to examine Incharge Malkhana of concerned police station. The Investigation officer failed to preserve the finger prints of the accused and on pistol during course of encounter. There are also major contradictions in the evidence of prosecution witnesses on material particulars of the case.

11. 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 matter of right. Reliance in this respect can be made upon the case of Muhammad Mansha v. The State (2018 SCMR 772).

12. For what has been discussed above, we find that prosecution has failed to prove its’ case against the appellant beyond any reasonable doubt to sustain conviction. Consequently, this appeal is allowed and impugned judgment is set aside, appellant Javed Shah son of Niaz Muhammad Shah is acquitted of the offences, for which he was charged, tried and convicted by learned trial Court and he be released forthwith, if not required to be detained in any other custody case.

13. These are the reasons for our short order announced on 12.09.2024, whereby instant Special Criminal Anti-Terrorism Jail Appeal was allowed.

JUDGE

JUDGE