HIGH COURT OF SINDH AT KARACHI

 

 Special Criminal Anti-Terrorism Appeal No. 303 of 2016

Special Criminal Anti-Terrorism Appeal No. 97 of 2017

Special Criminal Anti-Terrorism Appeal No. 98 of 2017

 

 

Present: Mr. Justice Naimatullah Phulpoto

   Mr. Justice Khadim Hussain Tunio

 

 

 

Date of Hearing                 :              06.09.2017                                                           .

 

Date of announcement

of judgment                       :              06.09.2017                                                            .

 

Appellant                           :              Manzoor Elahi son of Noor Elahi through Mr. Ghulam Akber Jatoi Advocate.

 

Respondent                        :              The State through Mr. Mohammad Iqbal Awan DPG.

 

 

JUDGMENT

 

NAIMATULLAH PHULPOTO, J.- Appellant Manzoor Elahi son of Noor Elahi was tried by learned Judge, Anti-Terrorism Court No. IX, Karachi for offences under Sections 353/324 PPC read with Section 7 ATA 1997, 23(1)(a) of Sindh Arms Act 2013 and 4/5 Explosive Substance Act 1908 read with Section 7 of Anti-Terrorism Act, 1997. After full-dressed trial, by judgment dated 21.11.2016, appellant was convicted and sentenced as under:

 

01

Section 324 PPC read with Section 7 ATA 1997

To suffer R.I for ten years and fine of Rs.50,000/- and in case of default of payment in payment of fine, the accused to undergo R.I for one year more.

02

Section 353 PPC

To suffer R.I for one year

03

Section 23(1)(a) of Sindh Arms Act, 2013

To suffer R.I for seven years and fine of Rs.25,000/- and in case of default in payment of fine, the accused will have to undergo R.I for six months more.

04

Section 6(2)(ee) of ATA 1997 punishable u/s 7(ff) of ATA 1997 read with Section 4/5 Explosive Substance Act, 1908

To Suffer R.I for fourteen years with forfeiture of his property if any as required u/s 7(2) of ATA 1997

 

2.         Brief facts of the prosecution case, as disclosed in the FIR are that ASI Mohammad Mithal along with his subordinate staff namely HC Faiz Mohammad, PC Khalid Bhatti and Driver PC Shakeel Ahmed left Police Station Nazimabad for patrolling duty on 07.10.2015 at 0045 hours. While patrolling at various places when the police party reached at Happy Deal School Nazimabad, where they saw present appellant standing in suspicious manner. He was signaled to stop, but he started firing, police also fired in self defense. After firing, accused was surrendered and caught hold. On enquiry, accused disclosed his name as Manzoor Elahi. His personal search was conducted by ASI Mohammad Mithal in presence of mashirs HC Faiz Mohammad and PC Khalid and from his possession, one 30 bore pistol with magazine loaded with two live rounds and one in its chamber were recovered. On further personal search of the accused, it is alleged that one Rifle Grenade was recovered from right side pocket of his shirt. Two Samsung Mobiles were also recovered from left side pocket of his shirt. ASI informed to the Team of BDS from spot. Three empties of SMG and two of 30 bore were secured from the place of incident. Mashirnama of arrest and recovery was prepared in presence of mashirs HC Faiz Mohammad and PC Khalid. Case property was sealed at spot. Thereafter, accused and case property were brought to the Police Station Nazimabad where ASI Mohammad Mithal lodged FIRs against accused on behalf of state, which were recorded vide Crime No.329/2015 for offences under Section 353/324 PPC read with Section 7 ATA 1997. Another FIR bearing Crime No.330/2015 for offence u/s 23(1)(a) of Sindh Arms Act 2013. Third FIR was registered against accused bearing Crime No.331/2015 for offence u/s 4/5 Explosive Substance Act 1908 read with Section 7 ATA 1997.

 

3.         Investigation of these FIRs was entrusted to Inspector Zulqarnain Akthar on 07.10.2015,. Custody of accused and case property was also handed over to him. I.O inspected the place of wardat on the pointation of ASI Mohammad Mithal in presence of mashirs HC  Faiz Mohammad and PC Khalid. On the same day, ASI Abid Farooq of Bomb Disposal Unit reached at police station for inspection of Rifle Grenade recovered from the possession of the accused and it was inspected by him. 161 Cr.P.C statements of P.Ws were recorded. I.O dispatched case property on 10.10.2015, to the FSL for examination and report and collected positive report. On the conclusion of the investigation after seeking approval from the Home Department, challan was submitted against the accused before the learned Judge, Anti Terrorism Court at Karachi under the above referred sections. All the three cases were jointly ordered to be tried by the trial Court in terms of Section 21-M of the Anti Terrorism Act, 1997.

 

4.         Trial Court framed charge against accused under the above referred sections at Ex.3. Accused pleaded not guilty and claimed to be tried.

5.         At trial, prosecution examined complainant/P.W-1 ASI Mohammad Mithal at Ex.P/1, who produced memo of arrest and recovery at Ex. P-1/A, FIR No. 329/2015 of PS Nazimabad at Ex.P-1/B, DD Entry No. 46 dated 07.10.2015 of PS Nazimabad at Ex.P-1/C, Copy of FIR bearing Crime No.330/2015 at Ex.P-1/D, DD entry No. 47 dated 07.10.2015 of PS Nazimabad at Ex.P-1/E, copy of FIR bearing Crime No.331/2015 at Ex.P-1/F and copy of DD Entry No.48 dated 07.10.2015 of PS Nazimabad at Ex.P-1/G. P.W-2 HC Faiz Mohammad at Ex.P-2, who produced copy of memo of inspection of place of incident at Ex.P-2/A. P.W-3 ASI Ali Mohammad of BDU at Ex.P-3, who produced copy of Clearance Certificate in respect of explosive substance at Ex.P-3/A, copy of DD Entry No.22 and 25 (one leaf) showing his departure from and arrival at his Unit at Ex.P-3/B, copy of letter addressed to him by the I.O for issuance of Final report of explosive substance at Ex.P-3/C and final inspection report of explosive substance bearing No. 1122 dated 04.11.2015 at Ex. P-3/D. P.W-4 I.O/Inspector Zulqarnain Akhtar at Ex.P-4, who produced DD entry No.23 dated 07.10.2015 at Ex.P-4/A, DD entry No. 48 dated 07.10.2015 at Ex.P-4/B, copy of letter issued by him to FSL for examination of weapon at Ex.P-4/C, examination report of weapon and empties at Ex.P-4/D, copy of letter issued by him to the Home Secrteary, Home Department Government of Sindh for permission of trial as required under Section 7 of Explosive Substance Act at Ex.P-4/E and copy of order dated 23.11.2015 issued by the Home Department at Ex.P-4/F.

 

            Thereafter, prosecution side was closed by learned DDPP vide his statement at Ex.6.

 

6.         Statement of the accused was recorded under Section 342 Cr.P.C. at Ex.7, in which he claimed false implication in this case and denied the allegations leveled against him. Accused has stated that pistol and Rifle Grenade have been foisted against him. Regarding positive report of these weapons, he stated that the same have been managed by the police. In a question, what else he has to say, he replied that on 01.09.2015, at about 4-30 or 5 he was picked up by Rangers personnel from his house in presence of DWs Mohammad Yasin and Mohammad Yamin. He has further stated that illegal gratification was demanded from him by the police, on his refusal, these cases were registered against him. Accused examined himself on oath wherein he stated that he was picked up by the Rangers personnel on 01.09.2015 at 0430 or 5:00 am and after 30/35 days he was handed over to the Nazimabad police. Accused examined DW Mohammad Yaseen, who deposed that on 01.09.2015 at 4-45/5:00 am he heard knocking of the door of the house of accused Manzoor Elahi and he saw that Rangers personnel took away the accused in vehicle. Accused also examined DW Khan Afzal, who also deposed that the accused was taken away by the Rangers personnel on 01.09.2015 at 4-45/5:00 am from his house.

 

7.         Learned trial Court after hearing the learned counsel for the parties and assessment of the evidence, by the Judgment dated 21.11.2016, convicted and sentenced the appellant as stated above. Hence, the appellant filed separate appeals against the common judgment dated 21.11.2016 passed by trial Court.

 

8.         The facts of these cases as well as evidence produced before the trial Court find an elaborate mention in the Judgment dated 21.11.2016 passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

 

9.         Mr. Ghulam Akbar Jatoi Advocate for the appellant has mainly argued that ASI Mohammad Mithal had failed to produce departure entry before the trial Court and description of the pistol and Rifle Grenade have not been mentioned in the mashirnama of arrest and recovery. He has further argued that in the alleged encounter with the sophisticated weapons, none received a single injury. It is argued that intention of the appellant for causing harm with Rifle Grenade has also not been brought on record by the prosecution. It is pointed out that P.W-Zulqarnain Akhtar I.O has admitted that case property was not in sealed cover when it was handed over to him. It is contended that Rangers personnel had picked up the accused from house before registration of FIRs. It is submitted that defense theory was ignored by trial Court without any legal justification. Lastly, argued that prosecution case is highly doubtful and prayed for acquittal of the accused.

 

10.       Mr. Mohammad Iqbal Awan learned DPG argued that after encounter, accused was arrested and from his possession country made pistol and Rifle Grenade were recovered. Learned DPG has further argued that police officials had no enmity or motive to falsely implicate the accused in these heinous offences. Lastly, it is contended that defense theory was after thought and that was rightly rejected by the Trial Court.

 

11.       We have carefully heard learned counsel for the parties and scanned the entire evidence.

 

12.       We have come to the conclusion that prosecution has failed to prove its case against the appellant for the reasons that it was a case of police encounter with the sophisticated weapons, but none received injury in the instant case from either side. Evidence of police officials did not inspire confidence. From the perusal of the evidence of complainant ASI Mohammad Mithal, it transpires that he has admitted that he had not produced departure entry before Trial Court to satisfy the Court that police officials had actually left on 06.10.2015 for patrolling duty. It is settled law that non-production of such entry cuts roots of the prosecution case. It has also come on record that pistol which was allegedly recovered from the possession of the accused was without number but mashirnama of arrest and recovery shows its description as “CAL 30 MOUSER MADE AS CHINA BY NORINCO”. Omission on the part of ASI appears to be intentional and possibility to foist  could not be ruled out. ASI in his evidence has admitted that during encounter none received injury. P.W-2 HC Faiz Mohammad, who acted as mashir of arrest and recovery and was also member of patrolling party has admitted in his cross examination that place of incident is surrounded with population. He has also admitted that there is Fire Brigade office. He has also admitted that complainant did not try to call persons from the neighboring bungalows to make them as mashirs in this case. It is also admitted by him that there is difference in his signature on the memo of arrest and recovery and on the sealed parcel/envelope of the bullets. He has also admitted that seal parcels did not bear the date. P.W-3 ASI Abid Farooq has been examined by the prosecution as Assistant Incharge at BDU. He has admitted in cross-examination that he did not mention the digits in his Clearance Certificate. Trial Court in the note has mentioned that Rifle Grenade was examined in open Court and words/digits were written as “AR756M”. In such circumstances, expert report/certificate would not improve the prosecution case. It has also been admitted by the examiner that Rifle Grenade alone is not sufficient to be used without launcher or Rifle. Intention of accused has not been established. Cases were investigated by SIO Zulqarnain Akhtar, who has admitted that case property was not in sealed cover when it was handed over to him. From perusal of the evidence of the I.O, it appears that no efforts were made by the I.O to find out the truth and even I.O has failed to examine the staff of Fire Brigade in order to ascertain whether encounter had taken place or not. Only it appears that formality has been completed by the I.O. No record is produced by the prosecution to satisfy the Court that I.O. kept the case property in the safe custody in Malkhana of the police station. No such entry was produced before the Trial Court. Defense plea has been raised that accused was picked up by the Rangers Personnel before this incident. I.O failed to examine such plea during investigation even trial Court ignored defense evidence without assigning cogent reasons. Learned D.P.G. has argued that police officials had no enmity with the appellant to implicate him in these cases falsely. In the present case, there are several circumstances /infirmities which created serious doubt in the prosecution case. Offence under section 4/5 of the Explosives Substance Act, 1908 is serious one, but it has come on record that Rifle Grenade was recovered from the possession of the appellant, it was without Launcher/Rifle, we are unable to understand as to why appellant was carrying Rifle Grenade without Launcher/Rifle it was of no use. As regards to the recovery of pistol from the possession of the accused is concerned, no doubt the Sindh Arms Act, 2013 is enacted to curb the proliferation of arms and ammunitions. Arguments of learned D.P.G. that no one was present at the time of incident, hence no private witness from the locality associated to act as mashir of the recovery. We are unable to accept such arguments for the reasons that it has come on record that near the place of occurrence there is Fire Brigade staff is always there to attend emergency, but no one was examined by the I.O from the office of Fire Brigade. It is also unbelievable that there was cross firing but none was attracted from the Fire Brigade. It has also come on record that place of incident is thickly populated area and it is unbelievable that no person from the public was attracted at the time of firing. The argument that public witnesses do not come forward to support such like recoveries because of risk to their life and liberty, nonetheless could not absolve the Police of their heavy responsibility to produce witnesses from public. There is no dearth of citizens of strong views and character who would come out to support such like cases provided they were taken into confidence, given due respect and were ensured that full protection would be given to them as held in the case of Iltaf Hussain versus The State (1996 SCMR 167). Relevant portion is reproduced as under:

“The argument that public witnesses do not come forward to support such like recoveries because of risk to their life and liberty, nonetheless could not absolve the Police of their heavy responsibility to produce witnesses from public. There is no dearth of citizens of strong views and character who would come out to support such like cases provided they were taken into confidence, given due respect and were ensured that full protection would be given to them, in case, they aided the law‑enforcers to curb the crimes in the best interest of the society as a whole. There may be cases where public witnesses could not be produced because of their non‑availability due to odd hours of the night or the day or where the, recovery was effected from a deserted place or during the dead of night. The position in this case was just the reverse because, admittedly, recovery was effected from a populated area where several other people who saw the recovery of Kalashnikov were present but no efforts were made to join them to witness the occurrence. We, accordingly, hold that evidence of Police witnesses who are, in a way, the complainant could not solely be accepted to be relied upon to convict the appellant, especially, when the aforesaid public witness was abandoned without any rhyme or reason. The possibility that the appellant was implicated with some ulterior motive could not be ruled out. For all these reasons, we have no alternative but to acquit the appellant by setting aside his conviction and sentence by giving him benefit of doubt. He is on bail and as such, shall be discharged from the liability of his bail bond. The appeal succeeds and is allowed.”

 

13.       In this case there are number of infirmities / circumstances in the prosecution case which create doubt. It is a known principle of appreciation of evidence that benefit of all favourable circumstances in the prosecution evidence must go to the accused regardless of whether he has taken any such plea or not. Reliance is placed on the case of Muhammad Nawaz and another v. The State and others (PLD 2005 SC 40).

 

14.       In the view of above discussion, we have come to the conclusion that the prosecution has failed to prove the aforesaid cases against the accused beyond any shadow of doubt, therefore, we extended benefit of doubt to the accused and allowed Special Criminal Anti Terrorism Appeals Nos. 303 of 2016, 97 and 98 of 2017, the conviction and sentence awarded to the appellant by the Trial Court vide impugned judgment dated 21.11.2016 were set aside and consequently, appellant Manzoor Elahi son of Noor Elahi was acquitted in FIR No. 329/2015 for offences under Section 353/324 PPC read with Section 7 ATA 1997, FIR No.330/2015 for offence u/s 23(1)(a) of Sindh Arms Act 2013 and FIR No.331/2015 for offence u/s 4/5 Explosive Substance Act 1908 read with Section 7 ATA 1997, all registered at P.S Nazimabad. Appellant Manzoor Elahi son of Noor Elahi was ordered to be released forthwith, if he is not required in any other custody case.

 

15.       These are the reasons for the short order announced on 6th September 2017.

 

JUDGE

 

                                    JUDGE