HIGH
COURT OF SINDH AT KARACHI
Special Criminal Anti-Terrorism Jail Appeal No. 137 of
2015
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Maalik Gaddi
Date of Hearing
: 01.11.2017
Date of Judgment : 07.11.2017
Appellants : Shahid Hussain @ Shoaib through Ms. Tasneem Shah
Advocate.
Respondent
: The State through
Mr. Mohammad Iqbal Awan Additional Prosecutor General.
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- Shahid Hussain @
Shoaib appellant was tried by learned Judge, Anti-Terrorism Court No.VIII,
Karachi in Special Case No.B-202/2014 (FIR No. 49/2014 under Sections 4/5
Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997
registered at P.S Saeedabad). After full-dressed trial, appellant was found
guilty. By judgment dated 15.05.2015, appellant was convicted under Section 5
of Explosive Substances Act, 1908 and sentenced to R.I for 5 years and to pay
fine of Rs.50,000/-. In case of default, he was ordered to undergo 06 months
more. Appellant was extended benefit of Section 382-B Cr.P.C.
2. Brief
facts leading to the filing of this appeal are that on 01.02.2014, SIP Aijaz
Memon along with his subordinate staff left Police station for patrolling. At
1330 hours, they saw three suspicious persons appeared on motorcycle. They were
signaled to stop but they started firing upon the police party. Police also
fired in self defence. After encounter, one accused was apprehended while two
culprits made their escape good. SI conducted personal search of accused and
recovered T.T Pistol containing three bullets in magazine and one in Chamber
and one hand grenade. Accused could not produce license/permission of the
weapon and explosive carried by him. On
inquiry, accused disclosed his name as Shahid Hussain @ Shoaib. Accused
disclosed the names of co-accused who ran away as Wahid Bux and Arif.
Thereafter, accused and case property were brought at Police Station Saeedabad,
where FIR bearing Crime No. 49/2014 under Sections 4/5 Explosive Substances
Act, 1908 read with Section 7 Anti-Terrorism Act, 1997 was registered against
accused on behalf of state.
3. After
usual investigation, Challan was submitted against accused for offences under
Sections under Sections 4/5 Explosive Substances Act, 1908 read with Section 7
Anti-Terrorism Act, 1997.
4. Trial
Court framed charge against accused under the above referred sections at Ex.4.
Accused pleaded not guilty and claimed their trial.
5. At
trial, prosecution examined five witnesses, who produced relevant documents to
substantiate the charge. Thereafter, prosecution side was closed vide statement
at Ex. 11.
6. Statement
of accused was recorded under Section 342 Cr.P.C at Ex.12. Accused claimed
false implication in this case and denied the prosecution allegations. Accused
declined to examine on oath in disproof of the prosecution allegations and did
not lead evidence in defence.
7. Trial
Court after hearing learned counsel for the parties and examination of the
evidence available on record, by judgment dated 15.05.2015, convicted and
sentenced the appellant as stated above. Hence this appeal has been filed.
8. The
facts of the case as well as evidence produced before the trial Court find an
elaborate mention in the Judgment dated 15.05.2015 passed by the learned trial
Court, therefore, the same may not be reproduced here so as to avoid unnecessary
repetition.
9. Ms.
Tasneem Shah Advocate appeared on behalf of the appellant and argued that
prosecution has failed to establish its’ case against the appellant for the
reasons that SI in the cross-examination has admitted that during cross firing
not a single injury was caused to either
party. She further argued that hand grenade was recovered on 01.02.2014, but
according to inspection report of hand grenade it was sent to Bomb Disposal
Unit on 01.03.2014. There was delay of one month in sending hand grenade to the
expert. It is argued that such delay in dispatching of explosive substance has
not been explained by the prosecution. It is further argued that prosecution
has failed to establish safe custody of hand grenade at Police Station for a
period of one month. It is further argued that prosecution story is
unbelievable as two culprits easily ran away from the police party when the
police party was armed with officials arms. Lastly, it is argued that
prosecution case was highly doubtful. Learned counsel for the appellant in
support of her contentions has relied upon the case reported as Tariq Pervez vs. The State (1995 SCMR
1345).
10. Mr. Mohammad
Iqbal Awan learned Additional Prosecutor General Sindh half heartedly opposed
the appeal and admitted that explosive substance was inspected after one month
and has failed to give any explanation about such delay.
11. We have
carefully heard the learned counsel for the parties and scanned the entire
evidence.
12. Close
scrutiny of evidence reflects that SI in the cross-examination has admitted
that during cross firing not a single injury was caused to either party. Even
bullet was not hit to the police mobile. Hand grenade was recovered on
01.02.2014, but according to inspection report of hand grenade, it was sent to
Bomb Disposal Unit on 01.03.2014. There was delay of one month in sending hand
grenade to the expert. Delay in dispatching of explosive substance has not been
explained by the prosecution. Prosecution has also failed to establish safe
custody of hand grenade at Police Station for a period of one month. We are
unable to believe prosecution story that two culprits easily ran away from the
police party when the police party was armed with officials arms. In this case there
are number of infirmities/lacunas, which have created serious doubt in the
prosecution case. It is settled principle of law for extending benefit of
doubt, it is not necessary that there should be multiple circumstances creating
doubt. If a single circumstance, which creates reasonable doubt in a prudent
mind about the guilt of accused, then he will be entitled to such benefit not
as a matter of grace and concession, but as a matter of right, as has been held
in the case of Tariq Pervez vs. The
State (1995 SCMR 1345), wherein the Honourable Supreme Court has held as
under:-
“The concept of benefit of doubt to an accused persons
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 matter
of grace and concession but as a matter of right.”
13. For the above stated reasons, while
respectfully relying upon the above cited authorities, we have no hesitation to
hold that prosecution has failed to prove its’ case against the appellant
beyond any shadow of reasonable doubt. Consequently, Appeal is allowed,
conviction and sentence awarded by the learned Judge, Anti-Terrorism Court-VIII,
Karachi vide judgment dated 15.05.2015 are set aside. Appellant Shahid Hussain @ Shoaib shall be released from custody forthwith,
if he is not wanted in some other custody case.
JUDGE
JUDGE