Judgment Sheet
THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANO
Criminal Jail Appeal No.D-47 of 2021
Criminal Jail Appeal No.D-48 of 2021
Criminal Jail Appeal No.D-49 of 2021
(Muhammad Siddique Brohi and another Vs. The State)
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Date Of Hearing |
Order with Signature of Hon’ble Judge |
1. For office Objections at Flag “A”
2. For hearing of main case
Before:
Mr. Justice Muhammad Saleem Jessar,
Mr. Justice Nisar Ahmed Bhanbhro,
Appellants: 1. Muhammad Siddique
2. Usman both sons of Eid Muhammad Brohi.
Through Mr. Muhammad Afzal Jagirani, Advocate.
Respondent: The State:
Through Mr. Ali Anwar Kandhro,
Additional Prosecutor General, Sindh.
Date of hearing: 06.05.2025
Date of Order: 06.05.2025
JUDGMENT
-.-.-.-.-
Nisar Ahmed Bhanbhro, J. We propose to decide the fate of these appeals through this common Judgment as the Appellants were tried in three separate offences in an amalgamated charge and convicted by Learned Judge Anti-Terrorism Court, Shikarpur through a common judgment dated 17.11.2021 (impugned judgment) passed in Special Case No.40/2021 (Re- The State v/s. Muhammad Siddique and another), Special Case No.40-A of 2021 (Re-The State v/s. Muhammad Siddique Brohi) and Special Case No.40-B/2021 (Re-The State v/s. UsmanBrohi)in the following manner:
(a) Accused Muhammad Siddiq and Usman Brohi are convicted for an offence punishable under section 4(b) Explosive Substances Act 1908 r/w section 120 – B and 34 PPC and sentenced to suffer R.I for 07 (seven) years.
(b) Accused Muhammad Siddiq and Usman Brohi are further convicted for an offence punishable under section 7(1), (f), of Anti Terrorism Act 1997 and sentenced them to suffer R.I for 14 (Fourteen) years.
(c) Accused Muhammad Siddiq Brohi is also further convicted for an offence punishable under section 23(i) – A Sindh Arms Act 2013 and sentenced to suffer R.I for 10 (Ten) years and to pay Rs 30,000 (Thirty Thousand) fine. In case of default to pay fine amount he shall further undergo S.I for six months more.
(d) Accused Usman Brohi is also further convicted for an offence punishable under section 23(i) – A Sindh Arms Act 2013 and sentenced to suffer R.I for 10 (Ten) years and to pay Rs 30,000 (Thirty Thousand) fine. In case of default to pay fine amount he shall further undergo S.I for six months more.
2. The facts of the prosecution case as unfolded in FIR are that Station House Officer (SHO) Police Station (PS) Sultan Kot received spy information that terrorist Abdullah Brohi’s brothers Muhammad Siddique and Usman both sons of Eid Muhammad Brohi were plotting for terrorism activity in Shikarpur city. SHO PS Sultan Kot conveyed such information to SHO of PS Lodra, SHO of PS Hamayun and SHO of PS Jahan Wah, who also reached at Police Station Sultan Kot. The police party left police station with private persons namely Ahsan Abbas Jafferi and Nizamuddin Buriro for place of information. The police party reached in village Ahmed Ali Brohi at 1400 hours, found two persons standing at Lundo Wah. The suspects tried to slip away, but by applying tricks, they were apprehended, on personal search T.T.Pistol of 30 bore with five live bullets was recovered from Appellant Muhammad Siddique and T.T.Pistol of 30 bore with five live bullets was recovered from Appellant Usman. Complainant saw fresh mud in the nearby land, which was dug and found two IEP readymade bombs, two Hand grenades, two 12 Volt batteries from there. On enquiry both Appellants disclosed that they were working with a banned organization and buried the explosive material to use in terrorist activity in Shikarpur city. Complainant prepared mashirnama of recovery and arrest in presence of private mashirs Ahsan Abbas Jaffery and Nizamuddin Buriro, sealed the secured pistols and brought the arrested accused and recovered explosive substances at police station Sultan Kot where three separate FIRs No.05/2021 for offence under sections 3/4 Explosive Substance Act, 1908, 120-B, 34 P.P.C, and 6/7 of Anti-Terrorism Act, 1997,Crime No.06/2021 for offence under sections 23(1)(a) Sindh Arms Act, 2013 and Crime No.07/2021 for offence under section 23(1)(a), Sindh Arms Act, 2013, were registered against arrested accused.
3. Investigation Officer during investigation visited the place of occurrence, recorded 161 CrPC statements of witnesses, secured samples from the bomb disposal incharge, dispatched the samples of explosive material to Punjab Forensic Science Agency, Lahore for forensic analysis and sent the recovered arms and ammunition to Forensic Science Laboratory, Larkana. On receipt of chemical report,he furnished report under section 173 Cr.P.C. before Trial Court.
4. During trial prosecution moved an application under section 21-M of ATA, 1997 for joint trial of Appellants in all three cases, which was accepted and amalgamated charge was framed, in which Appellants pleaded not guilty and claimed trial.
5. To prove its case, prosecution examined P.W-1 Inspector Badar-ud-din Shaikh, Incharge Bomb Disposal Squad, Shikarpur; P.W-2 ASI Muhammad Paryal Sanjrani; P.W-3 PC Shabir Ahmed Pathan; P.W-4 Complainant/SHO Ghulam Sarwar Buriro; P.W-5 SHO Muhammad Bux Naich, P.W-6 SHO Muhammad Nawaz Korai; P.W-7 Ahsan Abbas Jafferi; P.W-8 I.O/Inspector Syed Hajan Shah and P.W-9 WHC Mukhtiar Ali Ghanghro, Incharge Malkhana of Police Station Sultan Kot. The prosecution closed its side for evidence.
6. Statements of Appellants under sections 342 Cr.P.C. were recorded, they professed innocence; they claimed enmity over sectarian affairs; however,they did not examine themselves on oath, nor produced any witness in defense. The Learned Trial Court after hearing Prosecution and Defense convicted Appellants as aforementioned.
7. Learned counsel for the Appellants argued thatno recovery of explosive substances and T.T. Pistols was made from the Appellants, arms and ammunition were foisted upon them due to sectarian issues. The police were inimical to appellants astheir brother was killed in staged encounter, Appellants were pursuing the said case, therefore, police implicated them in the instant false case. He further contended that there is joint recovery memo which is inadmissible in evidence, though per prosecution case, initially only pistols were recovered from possession of Appellants and explosive material was found buried in the nearby land. The land from where the explosive material was allegedly recovered did not belong to Appellants; and it was located away from the village of Appellants. Both the private witnesses belonged to Shia community and their presence at the police station at the time of information did not appeal to mind, they failed to establish for what purpose they appeared at police station and why they accompanied police party for the purpose of alleged recovery. He further contended that witnesses of alleged recovery namely P.W-3 Ghulam Sarwar, who is S.H.O and complainant of case and mashir Nizamuddin were closely related to each other. He contended that prosecution witnesses have contradicted each other on mode, manner of recovery andplace of recovery, which created dent in prosecution case and benefit of the same should be given to the Appellants. He prayed for acquittal of Appellants.
8. Learned Additional Prosecutor General contended that huge explosive material was recovered from possession of Appellants; there is no enmity of prosecution witnesses with Appellants to falsely involve them in this case. He contended that recovered material was sent to the laboratory for forensic analysis and reports confirmed that recovered substance was explosive material, and arms were found in working condition. He prayed for dismissal of appeal and maintaining the conviction.
9. Heard learned counsel for parties and examined material available on record.
10. It is the case of prosecution that they received spy information that Appellants were preparing to commit an act of terrorism in Shikarpur city and for said purpose they had concealed the explosive material in their village; police party proceeded to village of Appellants, both were apprehended in way and allegedly pistols were recovered from their possession. The explosive material was also allegedly recovered from nearby land. Scanning of evidence on record transpired that the witnesses have contradicted each other on material points. Prosecution was burdened to prove its case beyond shadow of doubt but prosecution witnesses P.W-4 S.H.O Ghulam Sarwar Buriro, P.W-5 Muhammad Bux, P.W-6 Muhammad Nawaz and P.W-7 Ahsan Abbas Jafferi, have contradicted and improved their version over place of incident as P.W-Muhammad Nawaz and P.W-Ahsan Abbas Jafferi deposed that place of incident was Choi Shakh whereas P.W-Ghulam Sarwar Buriro deposed that place of recovery is at Lundo Wah. P.W-Ghulam Sarwar deposed that place of recovery was near National Highway and village of Appellants was about half kilometer away from place of recovery, whereas P.W Muhammad Bux, P.W-Ahsan Abbas and P.W- Muhammad Nawaz deposed that place of recovery was away from National Highway, which came after crossing village of Appellants. Complainant Ghulam Sarwar in his cross examination admitted that he did not associate any private mashir from place of recovery; as none was available there. Complainant deposed that there was no path over Lundo Wah for driving vehicle, arrest of Appellants allegedlywas made from Lundo Wah,then how three vehicles were driven to place of incident. whereas P.W Muhammad Bux Naich deposed that there was a watercourse near place of recovery and path was available from where they drove their vehicles and crossed village Ahmed Ali Brohi. He confirmed that many persons passed by during recovery proceedings, but they were not associated as Mashir. Complainant deposed that he dug mud with iron rod and found explosive material, PW Mohammed Bux Naich deposed that mud was dug with spade and shovel, whereas P.W Ahsan Abbas Jafferi, who is a private witness of recovery, deposed that mud was dug with hands by S.H.O. Ghulam Sarwar Buriro. He deposed that there were three watercourses near place of incident and stated that place of incident was away from National Highway and they came through path of Choi Shakh, which was the place of incident. He deposed that lundo Wah was in the eastern side of place of incident. The statements of complainant/ PW Ghulam Sarwar and the other witnesses are suffering from dishonest improvements and material contradictions rendering their testimony doubtful.These contradictions in the prosecution evidence hit at the roots of the case and leave with an inference that the witnesses were telling cookedup story and they did not actually witness the recovery proceedings.
11. Honorable Supreme Court of Pakistan in the case of Muhamad Akhtar and others Versus the State reported in 2025 S C M R 45 has held as under:
“12. The statements of complainant/ PW. 14, PW.16 Muhammad Akhtar and the injured witness (PW.15) are suffering from dishonest improvements and material contradictions rendering their testimony doubtful.
13. The infirmities in the case of the prosecution and the contradictory statements of the prosecution witnesses, which are also suffering from dishonest improvements, have created reasonable doubt in the case of the prosecution. According to settled principle of law, benefit of reasonable doubt has to be extended in favour of accused.
14. On reappraisal of the evidence available on record, it is concluded that the prosecution has failed to prove the charge against the appellant Muhammad Akhtar and acquitted accused beyond reasonable doubt. It is further concluded that the acquittal of co-accused by the Appellate Court is not suffering from any illegality or irregularity.”
12. Honorable Supreme Court of Pakistan in the case of Muhammad Riaz and others Versus The State reported in 2024 SCMR 1839 has held as under:
“13. From the above-stated facts and circumstances, it is abundantly clear that in this particular case, the prosecution version is burdened/ loaded with major discrepancies, which create serious doubts about its authenticity. The prosecution version with regard to the manner of killing, the medical evidence and the recoveries, contradict each other on material points creating serious cracks in the prosecution version. The prosecution has failed to bring on record any convincing material to establish that it was the appellants who had committed the occurrence. It is an established principle of law that to extend the benefit of the doubt it is not necessary that there should be so many circumstances. If one circumstance is sufficient to discharge and bring suspicion in the mind of the Court that the prosecution has faded up the evidence to procure conviction then the Court can come forward for the rescue of the accused persons as held by this Court in Daniel Boyd (Muslim Name Saifullah) and another v. The State (1992 SCMR 196); Gul Dast Khan v. The State (2009 SCMR 431); Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652); Abdul Jabbar and another v. The State (2019 SCMR 129); Mst. Asia Bibi v. The State and others (PLD 2019 SC 64) and Muhammad Imran v. The State (2020 SCMR 857). As the prosecution has failed to prove its case, we find there is no need to ponder the plea of alibi raised by the appellants in the defense.”
13. The TT pistols and explosives are alleged to have been recovered from the possession of appellants, for which a joint recovery memo was prepared, which is not admissible in evidence.No where it has been mentioned that from whose possession the alleged recovery of TT pistol was made first and who led to the discovery of explosive substances buried in the land. This dents the prosecution story, more so the explosive material was not sealed at place of incident. It was not defused at place of incident and taken to police station where after about four hours of recovery, incharge Bomb Disposal Squad came and defused it. In prosecution evidence, no material worth reliance was produced on record to believe that explosive substance was defused at police station as no memo of defusal of explosives was prepared. A technical report sent by Incharge Bomb Disposal Squad dated 05.05.2021 was produced in evidence by PW Badar Uddin Shaikh, whereas per prosecution story, explosive substance was defused on 02.05.2021, which also created doubt in the prosecution story. Recovered material viz. Two Hand Grenade ARGE-S69, two silver pots IED (Desi Sakhta Bomb) were stated to be defused and technical report of Bomb Disposal Unit opined in its result as follows:
“Two Hand grenade ARGE-S69 alive were diffused, Two IED (Desi Sakhta Bomb) & explosive (white color High Explosive) and 04 electric detonators in IEDs & 3 kg & 690 gms explosives Disposed off, it was very dangerous material.”
No document has been produced in evidence that explosives were defused on the very day of recovery, it is very surprising that complainant received spy information that huge explosive substances were hidden by appellants but he did not obtain the services of Bomb Disposal Squad for defusing the explosives at spot, and allegedly recovered explosives were taken to police station, where Bomb Disposal squad came and defused the explosives, in between if the explosives had exploded, they would have caused severe damage. Recovered material was sent for chemical analysis with a reasonable delay, samples of explosive material were sent to Punjab Forensic Science Agency, Lahore with delay of about 23 days, for which no reasoning was given. Explosive material was referred to Forensic Science Laboratory, Larkana, initially, which could not form any opinion regarding nature of the explosive material; therefore, it was sent to Punjab Forensic Science Agency, Lahore on 25.05.2021. P.W/ I.O Syed Hajan Shah deposed that he initially dispatched explosive material for forensic analysis to Forensic Science Laboratory, Larkana, but it was returned back without assessment, therefore, he sent material to Punjab Forensic Science Agency, Lahore on 25.05.2021.The prosecution has also failed to demonstrate safe custody of sample parcels, that during intervening period, such substance was kept and its safe custody or not. The person in whose possession the sample was not examined to establish its safe custody and transmission. Punjab Forensic Science Agency, Lahore in its report has opined that explosive material contained mixture of potassium chlorate and sugar which was an improvised explosive mixture. The safe custody of recovered explosive material and arms has not been established, which created serious doubts in the prosecution case, and reports of forensic laboratories lose worth. Similar is the position of forensic report regarding TT pistols and 5 bullets recovered from both the appellants.
14. Honorable Supreme Court of Pakistan in the case of Muneer Malik Versus The State reported in 2022 SCMR 1494 has held as under:
“So far as the conviction of the appellants under section 13(e) of the Arms Ordinance is concerned, we have noted that recovery memo and site plan reveal that on 27.05.2007 accused persons while in Police custody jointly led to the recovery of weapons of offence i.e. one Kalashnikov and a T.T. Pistol from a fish pond of one Muhammad Hanif Malik, which in all eventualities is an open place. Nothing has been mentioned as to which of the appellant had first led to the recovery or pointed out the place of recovery and in absence of the same, joint recovery of weapons of offence is of no evidentiary value. Furthermore, the record shows that eight empties of Kalashnikov and six empties of T.T. pistol were recovered from the scene of occurrence on the same day i.e. 17.05.2007 through recovery memo but the said crime empties were neither kept in safe custody nor sent to Chemical Examiner immediately after recovery. The weapons of offence and the crime empties were jointly sent to the office of Chemical Examiner after a delay of more than two months i.e. on 13.07.2007 for which no plausible explanation has been given by the prosecution. In these circumstances, the recoveries are inadmissible in evidence and cannot be relied upon to sustain conviction of the appellants. We, therefore, set aside the conviction of the appellants under section 13(e) of the Arms Ordinance.”
15. The evidence of independent witness Mohsin Abass loses credibility on the account that he was a chance witness, he deposed that he was student of M.Phil in Shah Abdul Latif University, his presence at Police Station at the relevant time created doubt, for what purposes he went to police station when he was not the resident of same area, on query he deposed that he went there by chance to meet his friend. The evidence of chance witness needs strong corroboration in legal parlance, he was required to prove his presence at place of recovery through concrete proof but he failed, thus his evidence cannot be safely relied upon.
16. Honorable Supreme Court of Pakistan in the case of Mst. Sughra Begum versus Qaiser Pervez reported in 2015 SCMR 1142 has held as under:
'14. A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt.'
17. Analysis of the evidence and its appreciation manifested that the prosecution has failed to bring home the guilt of appellants beyond reasonable doubt for the reasons that prosecution evidence was contradictory, did not inspire confidence, it baffles the wisdom of a prudent mind that appellants would carry the explosive material during broad day light and burry the same in a land near National Highway wherefrom heavy traffic plied, and then would wait for the police to come and apprehend them. More so nothing has come on record showing that the accused were involved in terrorist activities, or had any link with any terrorist/ proscribed organization.they were previous convicts or hardened criminals, all the witnesses in the case were police officials excepting mashir Mohsin Abass who in his evidence admitted sectarian differences with the appellants and even he contradicted the police officials on the place of recovery, manner of recovery as such his evidence cannot be safely relied upon.
18. It is settled notion of law that conviction cannot be recorded based on mere assumptions and presumptions, surmises and conjectures, unless it is established purely following the law. Benefit of doubt if any in the prosecution case would tilt in favor of accused, it is a well-settled principle of law that the accused is a blue-eyed child of criminal law and benefit of even the slightest doubt should be extended to him, provided the doubt should be reasonable.Under the criminal trial, prosecution is duty bound to prove its case beyond shadow of doubt through confidence inspiring oral or documentary account, which they failed.The crux of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as a matter of right and not of grace. It has repeatedly been observed by the courts of this Country that there need not to be many circumstances creating doubts, a single circumstance creating reasonable doubt about the guilt of accused in a prudent mind is sufficient to discredit prosecution story.
19. Honorable Supreme Court of Pakistan in the Case of Abdul Qadeer Versus the State reported in 2024 SCMR 1146 has been pleased to hold as under:
22. All the above circumstances have created reasonable doubt in the case of the prosecution but benefit of same has not been extended to the petitioner by the courts below. According to settled principle of law even if a single circumstance creates a reasonable doubt in a prudent mind about the guilt of an accused he/she shall be entitled to such benefit not as a matter of grace and concession but as of right.
23. According to settled principles of law the prosecution has to stand on its own legs and if it fails to prove its case beyond reasonable doubt, the entire edifice of the prosecution would crumble down.
24. On reappraisal of the evidence available on the record, we have come to the conclusion that the prosecution has failed to prove the charge against the petitioner beyond reasonable doubt.
20. For what has been discussed herein above, we are of the considered view that prosecution has failed to prove its case beyond shadow of doubt, the Trial Court has failed to appreciate the evidence in accordance with the parameters and guidelines settled by Honorable Apex Court, there is serious misreading and nonreading of evidence requiring interference by this Court. Consequently Criminal Jail Appeal No.D-47 of 2021, Criminal Jail Appeal No.D-48 of 2021 & Criminal Jail Appeal No.D-49 of 2021 are allowed and impugned common Judgment dated 17.11.2021 stands set aside. The appellants are acquitted of the charge of the Special Case No.40/2021 (Re- The State v/s. Muhammad Siddique and another), Special Case No.40-A of 2021 (Re-The State v/s. Muhammad Siddique Brohi) and Special Case No.40-B/2021 (Re-The State v/s. Usman Brohi).
21. The appellants were acquitted of the charge by a short order dated 06.05.2025reproduced hereinbelow and these are the reasons for the same:
“Heard learned counsel for the appellant as well as learned Addl. P.G for the State.
For reasons to be recorded separately, instant criminal jail appeal is allowed. The impugned judgment dated 27.11.2021 passed by learned Special Judge, Anti-Terrorism Court, Shikarpur, in Special Case No.40/2021 re-The State v. Muhammad Siddique & others (Crime No.05/2021, PS Sultan Kot, u/s 3/4 of Explosive Substance Act, 120-B, 34 P.P.C & 6/7, ATA) is set aside. Resultantly, appellants Muhammad Siddique and Usman both sons of Eid Muhammad Brohi, are acquitted of the charge. They shall be released forthwith if not required to be detained in any other case.”
Judge
Judge
Manzoor