IN THE HIGH COURT OF SINDH, KARACHI

Special Criminal Anti-Terrorism Appeal No.309 of 2015

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Date Order with Signature(s) of Judge(s)

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Present:

Syed Hasan Azhar Rizvi, J.

Abdul Maalik Gaddi, J.

Aqeel Ahmed alias Tiloo …………. Appellant

versus

The State …………. Respondent

Date of hearing: 08.06.2017

Mr. S. Mehmood Alam Rizvi, Advocate for the Appellant.

Mr. Muhammad Iqbal Awan, Assistant Prosecutor General, Sindh.

J U D G M E N T

Abdul Maalik Gaddi, J.– Through instant appeal, the appellant has challenged the Judgment dated 23.12.2015 passed by the learned Judge, Anti-Terrorism Court No.I, Karachi in Special Case No.A-304 of 2014 (Re: The State v. Aqeel Ahmed alias Tiloo) arising out of Crime No.425 of 2014 registered under Section 4/5 Explosive Substance Act, read with Section 7 ATA, 1997 of police station Zaman Town, Karachi, whereby the learned trial Court after full dressed trial convicted and sentenced the appellant in point No.02 of the impugned judgment. For the sake of convenience, it would be appropriate to reproduce Point No.2 of the said judgment, which reads as under:-

“In view of my findings on point No.1, the prosecution has proved its charge against the accused Aqeel Ahmed alias Tiloo son of Din Muhammad beyond any shadow of doubt, I, therefore, convict him under Section 265-H(2) and sentence him R.I. for 14 years, for the offence punishable under Section 7(ff) of Anti-Terrorism Act, 1997. The benefit of Section 382-B Cr.P.C. is also extended to him. Accused Aqeel Ahmed alias Tiloo son of Din Muhammad present on bail is taken into custody and remanded to jail to serve out the sentence.”

2. The brief facts of the prosecution case as per FIR lodged on 05.11.2014 at 1450 hours by the complainant SIP Manoomal to the effect that on the said date, he alongwith ASI Akhtar Hussain and HC Muhammad Asghar during patrolling and prevention of crimes, as per information by the informer, when reached near Noorani Graveyard Sector-48/H, Korangi No.1, Karachi at about 2.00 p.m., they saw one person coming from graveyard in suspicious condition, on the signal by the informer he apprehended him. On inquiry, he disclosed his name as Aqeel Ahmed alias Tiloo son of Din Muhammad, due to non-availability of private person he took his personal search in the presence of Mashirs and recovered one hand grenade wrapped in plastic bag from the pocket of shalwar of accused. He arrested him and prepared memo of arrest and recovery. Brought the accused and case property to the police station and register the FIR.

3. It appears from the record that after registration of FIR, the investigation was carried by Inspector Aftab Ali Rind, who after recording the statements of PWs under Section 161 Cr.P.C. and after receiving clearance certificate of Rifle Grenade from ASI Mazhar Shah as well as final report from the Bomb Disposal Unit, submitted the charge sheet against the appellant in the Court of law.

4. It also appears from the record that in order to establish accusation against the appellant/accused, prosecution had examined in all four witnesses namely SIP Manoomal as PW-1 at Ex.04, he produced copy of roznamcha entry No.13, memo of arrest and recovery, FIR, being Crime No.425/2014, under Section 4/5 Explosive Substance Act, read with Section 7 ATA, 1997, roznamcha entry regarding his arrival being entry No.15 and memo of inspection place of incident at Ex.04/A to Ex.04/E, respectively, SIP Syed Akhtar Hussain as PW-2 at Ex.05, SIP Muhammad Ayoob as PW-3 at Ex.06, he produced clearance certificate at Ex.06/A, final report and entry No.14 and entry No.16 about his arrival from police station Zaman Town at Ex.06/A to Ex.06/C respectively. Finally the prosecution examined Inspector Aftab Ali Rind as Ex.PW-04 at Ex.07, he produced order of SSP, roznamcha entry No.22 and 33, two letters addressed to Bomb Disposal Unit as well as sanction of Home Department at Ex.07/A to Ex.07/F respectively. Counsel for the appellant cross examined the prosecution witnesses. Thereafter, vide statement as Ex.08, learned Deputy District Public Prosecutor for the State closed the side of prosecution.

5. It reveals from the record that the appellant in his statement under Section 342 Cr.P.C. at Ex.09 of the R&Ps has denied the case and claim of the prosecution by stating that he is innocent and has been falsely implicated by the police in this case with malafide intention as nothing was recovered from his possession. He further stated that he was apprehended by the Rangers officials from his house and after filing Constitution Petition No.5621 of 2014 on 05.11.2014 in this Court by his father, he was handed over to police, as such, he was involved in the present case.

6. It is argued by the learned counsel for the appellant that appellant is innocent and has falsely been implicated in the present case. There are major contradictions in the evidence of the witnesses examined by the prosecution. Per learned counsel, from the bare reading of the FIR, it reflects that one hand grenade was recovered from the possession of appellant, whereas, in the charge sheet submitted by the I.O. and report of Bomb Disposal Unit reflects that one rifle grenade was recovered from the possession of appellant. Per learned counsel, the Bomb Disposal Unit has issued clearance certificate on 05.11.2014 and final report on 26.11.2014 in respect of the grenade allegedly recovered from the possession of appellant, whereas, alleged incident had taken place on 05.11.2014, which clearly reflects that the clearance certificate and report of Bomb Disposal Unit have been manipulated by the prosecution. Per learned counsel, the appellant was taken away by the Rangers Personnel on 29.10.2014 from his house at about 6.00 a.m., later on after filing constitution petition by the father of appellant, he was handed over to the police, and subsequently, he was booked in the present false case. Per learned counsel, there is violation of Section 103 Cr.P.C., as no any independent witness from the locality has been cited as witness of the incident. The entire investigation has been conducted dishonestly, therefore, appellant may be acquitted by giving him benefit of doubt.

7. Conversely, learned Assistant Prosecutor General, Sindh has supported the impugned judgment by stating that the impugned judgment has been passed by the trial Court after considering all the documents and evidence on record. Per learned APG, one hand grenade has been recovered from the possession of accused in presence of Mashirs, who have no enmity with the appellant, therefore, according to him this appeal is liable to be dismissed.

8. We have heard the learned counsel for the appellant, learned APG and scanned the available record. Perusal of FIR dated 05.11.2014 and Challan dated 12.11.2014 as well as recovery memo clearly show that one hand grenade was recovered from the appellant. However, the inspection report of Bomb Disposal Unit dated 26.11.2014 shows that SI Ayub Baloch of Bomb Disposal Unit alongwith his team reached at police station Zaman Town, Karachi and during inspection found one rifle grenade in live condition, which if used with proper technique (fire by rifle) has caused loss of lives and damage to properties. There is big difference between “hand grenade” and “rifle grenade” and perusal of FIR, challan and inspection report of Bomb Disposal Unit create doubt and suspicion as to nature and description of the alleged recovery from the appellant. There is big contradiction with regard to nature of recovery from the appellant. Therefore, on this ground, false implication of the appellant in this case cannot be ruled out. During the course of arguments, we have specifically asked the question from learned APG to explain the nature of recovery from the appellant with regard to rifle grenade and hand grenade, but he did not reply satisfactory. We noticed that learned trial Court framed the Charge against the appellant for alleged recovery of rifle grenade, which was not the basis of FIR as well as recovery memo and challan sheet. Column No.5 of Challan sheet further shows overwriting in the said column. Therefore, on this ground, the judgment of the trial Court is not sustainable in the eye of law.

9. We have gone through the case of Tariq Pervez v. The State reported as 1995 SCMR 1345, wherein it has been held that if a single circumstance creates reasonable doubt in the prudent mind about the guilt of the accused then he will be entitled to such benefit not as a matter of grace, but as a matter of right. Similar view has also been taken in the case of Muhammad Akram v. The State reported as 2009 SCMR 230.

10. It is also the case of the appellant that he was picked up by the Rangers Personnel on 29.10.2014 at about 6.00 a.m. as such, his father and other family members approached to the concerned police station and submitted application, but they refused to receive the same, as such, on 05.11.2014, his father sent application through TCS at police station Zaman Town, Karachi, which was received by him on 05.11.2014 at about 10:56:04 a.m. and also filed Constitution Petition No.5621 of 2014 before this Court. These facts are found supported with the documents available at page 75, 77 and 77 of the appeal file, but the FIR in the present case has been registered on 05.11.2014 at about 1450 hours much after the receipt of application of appellant’s father through TCS to SHO Zaman Town, Karachi. During the course of arguments, when we confronted with the above factual position to the learned APG, no plausible answer with him.

11. We have also perused the evidence and documents on record and have also considered the version of both the parties put forward by them through evidence and found that the version of the appellant seems more plausible and convincing, while the version of the prosecution is totally doubtful.

12. For our above stated reasons, we have no hesitation to hold that the prosecution has failed to prove its case against the appellant and learned trial Court did not appreciate the evidence and documents on record properly. Consequently, this appeal is allowed. The impugned Judgment passed by the trial Court is set-aside. Resultantly, the appellant is acquitted from the charge. He is in jail, therefore, jail authorities are directed to release the appellant forthwith, if he is not required in any other case.

13. This appeal was allowed by our short order after hearing the learned counsel for the parties on 08.06.2017 and these are the reasons thereof.

Karachi.

Dated: 09.06.2017.

JUDGE

Faizan A. Rathore/PA*