HIGH COURT OF SINDH AT KARACHI

Spl. Cr. Anti-Terrorism Appeal No.257 of 2016

Spl. Cr. Anti-Terrorism Appeal No.258 of 2016

Spl. Cr. Anti-Terrorism Appeal No.259 of 2016

Spl. Cr. Anti-Terrorism Appeal No.260 of 2016

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Rasheed Ahmed Soomro

Appellants: 1. Shahzad alias Pakora S/o Muhammad Qasim

2. Farooq Khan S/o Dilawar Khan

3. Abdul Hameed S/o Saleemullah

4. Muhammad Shakeel alias Chota S/o M. Siddiq

Through Muhammad Hanif Samma, advocate

Respondent: The State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh.

Date of Hearing : 21.08.2017

Date of Judgment : 25.08.2017

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Shahzad alias Pakora, Farooq Khan, Abdul Hameed and Muhammad Shakeel alias Chota, appellants were tried by learned Judge, Anti-Terrorism Court-V, Karachi in Special Cases Nos.113(III)/2015, 114(III)/2015, 115(III)/2015, 116(III)/2015 and 117(III)/2015. By common judgment dated 07.10.2016 all the accused were acquitted in Special Case No.113(III)/2015 in Crime No.253/2015 under sections 353, 324, 427, 34 PPC read with section 7 of the Anti-Terrorism Act, 1997 of P.S. Preedy by extending benefit of doubt, however, all the appellants were convicted under section 23(1)(a) of the Sindh Arms Act, 2013 and sentenced as under:-

(i) Accused Shahzad alias Pakora son of Muhammad Qasim was convicted under section 23(1)(a) of the Sindh Arms Act, 2013 and sentenced to undergo R.I. for 7 years and to pay fine of Rs.50,000/- and in case of non-payment of fine he was ordered to further undergo SI for six months in Special Case No.114(III)/2015, Crime No.254/2015 of P.S. Preedy.

(ii) Accused Farooq Khan son of Dilawar Khan was convicted under section 23(1)(a) of the Sindh Arms Act, 2013 and sentenced to undergo R.I. for 7 years and to pay fine of Rs.50,000/- and in case of non-payment of fine he was ordered to further undergo SI for six months in Special Case No.115(III)/2015, Crime No.255/2015 of P.S. Preedy.

(iii) Accused Abdul Hameed son of Sameeullah was convicted under section 23(1)(a) of the Sindh Arms Act, 2013 and sentenced to undergo R.I. for 7 years and to pay fine of Rs.50,000/- and in case of non-payment of fine he was ordered to further undergo SI for six months in Special Case No.116(III)/2015, Crime No.256/2015 of P.S. Preedy.

(iv) Accused Muhammad Shakeel son of Muhammad Siddiq was convicted under section 23(1)(a) of the Sindh Arms Act, 2013 and sentenced to undergo R.I. for 7 years and to pay fine of Rs.50,000/- and in case of non-payment of fine he was ordered to further undergo SI for six months in Special Case No.117(III)/2015, Crime No.257/2015 of P.S. Preedy.

Appellants were extended benefit of section 382-B, Cr.PC.

2. Brief facts of the prosecution as mentioned in the judgment of the trial Court are that SIP Arif Usman of P.S. Preedy left police station on 21.03.2015 for patrolling duty along with PCs Rashid Rehman and others in the government vehicle. At about 1215 hours he received spy information that 5/6 persons were roaming in suspicion manner at Shorab Khattak road near Rainbow Centre. SIP Arif Usman on such information called another mobile headed by SIP Saleem Nawaz. Thereafter, both police parties reached at the pointed police where they saw Alto Car bearing registration No.KHQ-309 but the persons sitting in the car while seeing the police party opened fire upon the police party with intention to kill them. Police party also fired in self defence. It is alleged that amongst five persons who were sitting in the car once succeeded in running away, however, police caught hold four accused persons. On inquiry, they disclosed their names as Shahzad alias Pakora, Abdul Hameed, Farooq and Shakeel. It is stated that Shahzad was in possession of one SMG with 13 live bulles, Farooq was carrying a rifle with eight bullets, Abdul Hameed had a repeater and 4 cartridges and Shakeel had also one pistol in his hand. All four accused persons admitted that they had no license for the weapons carried by them. SIP Arif arrested all four accused in presence of mashirs Rashid Rehman and SIP Saleem Nawaz of P.S. Preedy. On the inquiry accused disclosed that the accused who ran away was Tanveer. Weapons recovered were separately sealed on the spot under the same mashirnama. Therafter accused and case property were brought to the police station where SIP Arif Usman lodged five FIRs, F.I.R. Nos.253/2015 against all the accused on behalf State under sections 353, 324, 427, 34 PPC read with section 7 of the Anti-Terrorism Act, 1997 and FIRs Nos.254 to 257 under section 23(1)(a) of the Sindh Arms Act, 2013. Investigation was carried out by IO Hanif Khanzada, place of incident was visited by IO on the pointation of SIP Arif Usman in presence of mashirs. 161 Cr.PC statements of accused were recorded, weapons were sent to expert for opinion, report was received. On the conclusion of investigation, final reports were submitted against the accused under the above referred sections.

3. Learned Judge, Anti-Terrorism Court-V vide his order dated 28.04.2015 ordered joint trial in all the five cases as provided under section 21-M of the Anti-Terrorism Act, 1997.

4. Trial court framed charge against the accused under the above refered sections. Accused pleaded not guilty and claimed to be tried.

5. In order to prove its case, prosecution examined PW-1 Arif Usman, PW-2 Saleem Nawaz Shah, PW-3 Muhammad Ramzan, PW-4 Saleem Raza, PW-5 Muhammad Hanif, PW-6 Shehzad Ali. Thereafter, prosecution was closed at Ex-26.

6. Statements of accused were recorded under section 342, Cr.PC. They denied the prosecution allegations. Accused Shahzad alias Pakora examined in his defence his brother DW Danish, who has stated that accused Shahzad was picked up by the law enforcement agency from his house and he has been involved in this case falsely. Accused Farooq has examined DW Mst. Ruqayya Bibi and Amjad Khan. Mst. Ruqayya Bibi, the mother of accused Farooq stated that police had taken away accused Farooq from the hosue on 20.03.2015. On the next day she submitted application to the Honourable Chief Justice, High Court of Sindh. Accused Muhammad Shakeel alias Chota raised plea that he was picked up by the law enforcement agency from his house on 20.03.2015 and examined in his defence DW Muhammad Siddiq. Accused Abdul Hameed has raised plea that he was arrested from his house on 20.03.2015 and denied the allegation.

7. Learned trial Court formulated points for determination with regard to the evidence brought on record. After hearing the learned counsel for the parties and examination of evidence, acquitted accused in Crime No.253/2015, registered under sections 353, 324, 34 PPC read with section 7 of the Anti-Terrorism Act, 1997, however, the appellants were convicted under section 23(1)(a) of Sindh Arms Act, 2013 as stated above, hence these appeal are filed.

8. By this single judgment we indent to dispose of the aforesaid appeals.

9. Mr. Muhammad Hanif Sama, learned advocate for the appellants has made the following submissions:-

(i) That on same set of evidence, the appellants have been acquitted by the learned trial court in the main case bearing Crime No.253/2015 under sections 353, 324, 427, 34 PPC read with section 7 of the Anti-Terrorism Act, 1997.

(ii) That conviction and sentence recorded by the learned trial court in connected case / off-shoots on same set of evidence are not sustainable under the law.

(iii) There are material contradictions in evidence of the prosecution witnesses on the material particulars of the case.

(iv) That alleged recoveries were made on 22.03.2015, weapons were sent to the FSL, the report received from the FSL showed that weapons were examined on 19.03.2015, such ambiguity has not been resolved by the prosecution at trial.

(v) That WHC Ashraf, Incharge of Malkhana of police station was examined by the IO under section 161, Cr.PC regarding the safe custody of the weapons but he was not produced before the trial Court and was given up which has caused serious doubt in the prosecution case.

(vi) That PW Muhammad Ramzan had acted as mashir in a number of police cases and he was not reliable witness.

(vii) That accused produced news cutting of daily Ummat dated 24.03.2015 in which weapons have been shown lying on the table whereas according to prosecution case weapons allegedly recovered from the accused were sealed.

In support of his submissions, learned counsel for the appellants has relied upon the following cases:

(a) Muhammad Akram versus The State (2009 SCMR 230)

(b) Tariq Pervez versus The State (1995 SCMR 1345)

(d) Moinuddin alias Waseem versus The State (2016 YLR 523)

(e) Ishaq Ahmad versus The State through A.N.F. Police Station Airport Road, Gilgit (2017 PCr.LJ 522)

(f) Abdul Ghani and others versus The State (2007 YLR 969)

(g) Taufique Khan versus The State (2007 YLR 2953)

(h) Muhammad Shafi alias Papan vs. The State (NLR 2012 Cr. 433)

10. Mr. Muhammad Iqbal Awan, learned D.P.G. argued that prosecution had examined six PWs and they had fully supported the prosecution case. D.P.G. further argued that sophisticated weapons were recovered from the possession of the accused and the trial court for the sound and valid reasons convicted and sentenced the accused in connected case. He supported the judgment passed by the learned trial court and prayed for dismissal of appeals.

11. From the close scrutiny of the evidence, we have come to the conclusion that prosecution has failed to establish its case against the appellants for the reasons that trial court itself has disbelieved the prosecution evidence to the extent of main case and acquitted the accused in Crime No.253/2015 registered at P.S. Preedy, under sections 353, 324, 427, 34, PPC read with section 7 of the Anti-Terrorism Act, 1997. Relevant portion of the impugned judgment is reproduced as under:-

“It is an admitted position that both police parties had reached at the place of incident and then accused persons started firing. To resist the arrest does not fall within the meaning of deter police or public servants from their official duties. As I observed earlier that from cross firing by SMG, Rifle type weapon no body sustained injury. The bullet was admittedly found in the door of the car was from inside and remained in the door which means that said fire was by sitting in the car. I, therefore, came to the conclusion that the prosecution has not proved their case that they fired at the police parties with intent to kill and there was any encounter. As regards the recovery of empties in presence of Muhammad Ramzan, the defence counsel have produced documents showing that in so many cases this witness Ramzan has been witness for police and in cross-examination this witness admitted that the contents of mashirnama were not read over to him which he signed and that mashirnama was already written when he signed it. He stated that he never appeared as witness in any court whereas the defence counsel has produced FIRs in case No.112/2013 of P.S. Mubina Town wherein this witness Muhammad Ramzan is witness. The learned defence counsel also produced deposition of this witness in Sessions Case No.641/2013 wherein he is mashir of same police officer and therefore, the evidence of this witness cannot be relied upon.

The result of my above discussion is that the prosecution case against four above named accused u/s 353/324/34 PPC not proved and my findings on this point are in negative.”

12. It appears that trial court has believed the evidence of the prosecution witnesses in respect of connected / off-shoot cases without independent corroboration, which was lacking in this case. Prosecution story appears to be unnatural and unbelievable and did not inspire confidence for the reasons that there were two police parties, we are unable to believe that how one accused would succeed in running away from the police parties and no efforts were made by the police to capture the accused who ran away easily from the scene of occurrence. Police encounter episode has already been disbelieved by trial court. Mashirnama of recovery Ex-16/B reveals that number of weapons have not been described but PWs at the trial have given the description of the weapons. Learned defence counsel has argued that it was the case of tampering of the case property at the police station. It is the matter of record that weapons were deposited by the police party at malkhana of the police station Preedy with WHC namely Ashraf and investigation officer recorded 161 Cr.PC statement of said witness during investigation but surprisingly said witness was given up by the prosecution. We conclude that safe custody of the weapons at police station and safe transit to the experts have not been established at trial. Defence pleas have been raised by the accused that they were picked up by the law enforcement agencies from their houses and weapons were foisted upon them in fake police encounter. Trial court disbelieved the defence pleas without assigning the reasons. Keeping in view the defence theory and finding of trial court regarding police encounter we are unable to rely upon the evidence of the police officials without independent corroboration which is lacking in this case. Evidence of the private mashir, namely, Muhammad Ramzan is also not reliable for the reasons that police officials were questioned specifically that said Muhammad Ramzan has acted as mashir in a number of police cases but it was denied, however, accused have produced proof to show that he had acted as mashir in so many police cases. Trial court has also disbelieved his evidence.

13. Prosecution has failed to prove its cases against the accused beyond any shadow of doubt. The concept of benefit of doubt to an accused person is deep-rooted in our Country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right, as held by the Honourable Supreme Court in the case of Tariq Pervez versus the State (1995 SCMR 1345). In the present case, there are several circumstances as discussed above, which create reasonable doubt in the prosecution case.

14. As a result, therefore, of this unsatisfactory state of evidence in this case we find several circumstances, which create doubt in the prosecution case. We are unable to uphold the conviction and sentence of the appellants Shahzad alias Pakora, Farooq Khan, Abdul Hameed and Muhammad Shakeel recorded by the trial Court vide judgment dated 07.10.2016 and by giving them benefit of doubt, set aside their conviction and sentence. Appellants are acquitted of the charge. Appellants are present on bail, their bail bonds are cancelled and surety is hereby discharged.

Appeals are allowed in the above circumstances.

J U D G E

Gulsher/PS