HIGH COURT OF SINDH AT KARACHI

Special Cr. Anti-Terrorism Appeal Nos.237 of 2015

Special Cr. Anti-Terrorism Appeal Nos.238 of 2015

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Rasheed Ahmed Soomro

Appellants: Zubair Ahmed alias Ladu son of Siddique Ahmed, through Mr. Muhammad Ilyas Awanm, advocate

Respondent: The State through Mr. Ali Haider Saleem, Deputy Prosecutor General Sindh.

Date of Hearing : 22.08.2017

Date of Judgment : 29.08.2017

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Zubair Ahmed alias Ladu was tried by learned Judge Anti-Terrorism Court-VI, Karachi in Special Cases Nos.164(III)/2014 and 165(III)/2014. By judgment dated 29.08.2015, the appellant was convicted u/s 23(1)(a) of Sindh Arms Act, 2013 and sentenced to 7 years R.I. and to pay of Rs.10,000/-, in case of default in payment of fine, he was ordered to suffer S.I. for 4 months more. Appellant was also convicted under sections 4/5 of the Explosives Substance Act, 1908 read with 7(1)(ff) of the Anti-Terrorism Act, 1997 and sentenced to 14 years R.I., and to pay fine of Rs.10,000/- and in case of default in payment of fine he was ordered to suffer SI for 4 months more, forfeiture of property was also ordered. Benefit of section 382-B, Cr.PC was extended to accused.

2. Brief facts of the prosecution case as disclosed in F.I.R. are that on 14.05.2014 SI Ghulam Muhammad of P.S. Garden Karachi lodged F.I.R. No.109/2014 on behalf of the State under sections 4/5 of the Explosives Substance Act, 1908 and F.I.R. No.108/2014 and under section 23(1)(a) of the Sindh Arms Act, 2013, alleging therein that on 14.05.2014 he was posted at P.S. Garden in Operation Wing. On the said date, at 22:10 hours he along with his subordinate staff left police station for patrolling duty in the Government mobile. While patrolling when police party reached at “My Choice street”, near Pan House, where four personnel of Rangers on two motorcycles accompanied them for joint patrolling within the territorial jurisdiction of police station. When they reached at Khajoor Mosque street, they found a person standing there in a suspicious manner, he was carrying a weapon like KK. Police and rangers finding him in suspicious manner caught him hold. It alleged that KK loaded with 10 bullets in its magazine was recovered from the accused. However, on further personal search of the accused one rifle grenade was also recovered from the left side of his paint. One purse which containing CNIC, Visa Cards, a Zong SIM and cash amount of Rs.200/- were also recovered from possession of accused. On inquiry, accused disclosed his name as Zubair Ahmad alias Ladu. Accused was asked for license of the arms and ammunitions carried by him to which he replied that the same were without license. Accused was arrested at spot in presence of mashirs, namely, SIP Ghulam Muhammad, ASI Rasool Bux and PC Muhammad Iqbal. Thereafter, accused and case property were brought to the police station Garden where SIP Ghulam Muhammad, lodged two FIRs against accused on behalf of the State bearing FIRs Nos.108/2014 under section 23(1)(a) of the Sindh Arms Act, 2013 and 109/2014 u/s 4/5 of the Explosives Substance Act, 1908.

3. Investigation of the cases was assigned to Inspector Muhammad Asif Munawar, he visited the place of vardat on the pointation of SIP Ghulam Muhammad in presence of mashirs ASI Rasool Bux and PC Muhammad Iqbal. He prepared such mashirnama and recorded 161 Cr.PC statements of the prosecution witnesses. IO sent weapons to the experts for report and received final report from BDU and clearance certificate. On the completion of investigation, he submitted final reports in the aforesaid cases before the competent Court of law.

4. Both cases were entrusted to learned Judge, Anti-Terrorism Court-III, Karachi for disposal according to law. Learned trial court amalgamated case under section 23(1)(a) of the Sindh Arms Act, 2013 with main case under section 4/5 of Explosives Substance Act, 1908 in terms of Section 21-M of the Anti-Terrorism Act, 1997 and held joint trial.

5. Learned trial court framed charge against the accused under the above referred sections at Ex.4. Accused pleaded not guilty and claimed to be tried.

6. In order to substantiate the charge against the accused, prosecution examined five prosecution witnesses, namely, PW-1 ASI Rasool Bux at Ex-7, PW-2 PC Muhammad Iqbal at Ex.8, PW-3 SIP Ghulam Muhammad at Ex-9, PW-4 SIP (BDU) Muhammad Iqbal at Ex-10, PW-5, Inspector Muhammad Asif Munawar at Ex-12. Thereafter, prosecution side was closed at Ex-15.

7. Statements of appellant/accused was recorded u/s 342 Cr.P.C at Ex.14. Appellant claimed false implication in this case and denied the prosecution allegations. Accused did not examine himself on oath in disproof of prosecution allegations, however, he has examined two DWs, namely, Mst. Farida and Ghulam Shabbir in his defence. In a question what else he has to say, accused replied that he was picked up by the Rangers on 07.05.2014 from his house and his mother Mst. Farida moved an applications before Honourable Chief Justice, High Court of Sindh through TCS, applications were also sent to Inspector General of Police Sindh, Director General Rangers Sindh and S.H.O. P.S. Garden, Karachi. Thereafter, mother of accused filed Constitution Petition No.2480/2014 before the High Court of Sindh, Karachi on 10.05.2014. Copy of C.P. No.2480/2014 has been produced at Ex-15/A.

8. Learned trial court, on the conclusion of the trial, after hearing the learned counsel for the parties, and assessment of the evidence available on record, convicted and sentenced the appellant vide impugned judgment dated 29.08.2015 as stated above, hence these appeals are preferred by the Appellant.

9. The facts of these cases as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 29.08.2015 passed by the trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

10. Mr. Muhammad Ilyas Awan, advocate for appellant, contended that police party was accompanied by Rangers officials but Rangers officials were not examined before the trial court. As per learned counsel for the appellant material evidence was withheld deliberately. It is also contended that according to the mashirnama of arrest and recovery, case property was not sealed at the spot. It is contended that case property was tampered at the police station and safe custody of the case property has not been established at trial. Learned advocate for the appellant further contended that PW-1 SIP Rasool Bux has admitted that description of the rifle grenade has not been mentioned in the mashirnama. It is further contended that trial court failed to consider the defence evidence. According to learned counsel for the appellant, accused was picked up from his house on 07.05.2014 by the Rangers and mother of the appellant, namely, Mst. Farida approached S.H.O. P.S. Garden for registration of F.I.R. but he refused. Then she moved applications to the Inspector General of Police Sindh and Director General Rangers Sindh but without any result. Mother of the appellant filed C.P. No.D-2480/2014 on 10.05.2014, after issuance of notice to the respondents, appellant was arrested in these cases falsely. Lastly, it is contended that prosecution case was highly unbelievable but trial court did not appreciate the evidence according to the settled principles of law. In support of his contentions, learned counsel for the appellant relied upon the case of Muhammad Mansha versus The State (1997 SCMR 617).

11. Mr. Ali Haider Saleem, learned Deputy Prosecutor General Sindh, argued that the appellant was arrested on the road, KK was recovered from his possession so also one rifle grenade, heinous offence has been committed by the appellant. He has further argued that evidence of police officials was corroborated by the report of expert and trial court rightly relied upon the evidence of police officials. As regards to the contradictions in the evidence of the prosecution witnesses, learned D.P.G. argued that such contradictions are minor in nature. He prayed for dismissal of the appeals.

12. We have carefully heard the learned counsel for the parties and scanned the entire evidence available on record.

13. We have come to the conclusion that prosecution has failed to establish its case against the appellant for the reasons that it is the case of the prosecution that police officials headed by SIP Ghulam Muhammad and Rangers personnel left for joint patrolling and arrested the accused and recovered weapons from his possession but at trial Rangers personnel were not produced. It is rightly contended by defence counsel that material evidence was withheld, the presumption would be that in case Rangers personnel would have been examined before the trial court they might not have supported the case of the prosecution. PW-1 ASI Rasool Bux has admitted that description of rifle grenade has not been mentioned in the mashirnama. According to mashirnama of the arrest and recovery Ex.7/A case property was also not sealed at the spot. We agree with the learned counsel for the appellant that safe custody of the weapons / case property at police station and its safe transit

have not been established at trial. Material contradictions have been pointed out by the learned advocate for the appellant. PW.1 Rasool Bux has deposed that mashirnama of arrest and recovery was prepared by SIP Ghulam Muhammad / complainant of the case, on the same point, PC Muhammad Iqbal has deposed that such mashirnama was prepared by SIP Rasool Bux. Trial court has failed to consider the defence plea. Accused in his statement recorded under section 342, Cr.PC has stated that he was picked up from his house on 07.05.2014 by the Rangers officials and his mother Mst. Farida approached S.H.O. P.S. Garden for registration of the case but he refused, thereafter, mother of appellant moved applications to the Honourable Chief Justice High Court of Sindh, Inspector General of Police Sindh, Director General Rangers Sindh but without any response. Finding no other way, mother of appellant Mst. Farida filed C.P. No.D-2480/2014 on 10.05.2014. After issuance of notice, appellant was shown under arrest, these cases were foisted upon the appellant. Copy of C.P. No.D-2480/2014 and applications have been produced in defence evidence.

14. In view of defence theory false implication of the accused in this case could not be ruled out. Thus, accused cannot be left at the mercy of the police in such circumstances. It would be unsafe to rely upon the evidence of the police officials without independent corroboration. Arguments of the learned D.P.G. that public witnesses refused to come forward to act as mashir of the recovery because of risk to their life and liberty. We are unable to accept such arguments for the reasons that it could not absolve the police of their heavy responsibility to produce witnesses from public. We are unable to understand as to why Rangers personnel were not produced before the trial Court. We accordingly hold that evidence of police officials could not solely be accepted to be relied upon to convict the appellant without independent corroboration, which is lacking in this case. Possibility of false implication of the appellant/accused in these cases cannot be ruled out, particularly in these circumstances when mother of the appellant/accused filed Constitution Petition No.D-2480/2014 against Rangers Sindh and police officials regarding illegal detention of the appellant but investigation officer concealed this fact with ulterior motive and challaned the accused in this case. 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 thickly populated area/street where several other people who saw the recovery of weapons 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 Rangers personnel and public witnesses were abandoned without any rhyme or reason. The possibility that the appellant was implicated with some ulterior motive could not be ruled out. Reliance is placed on the case of ILTAF HUSSAIN versus The STATE (1996 SCMR 167).

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 (2005 PLD 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 extend benefit of doubt to the accused and allow the aforesaid appeals. Resultantly, conviction and sentences recorded against the appellant by the trial Court vide judgment dated 29.08.2014 are set aside and appellant Zubair Ahmad alias Ladu is acquitted of the charge. Appellant shall be released forthwith if he is not required in any other case.

J U D G E

Gulsher/PS

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.”

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 extend benefit of doubt to the accused and allow the aforesaid appeals. Resultantly, conviction and sentences awarded to the appellant by the trial Court vide judgment dated 29.08.2014 are set aside and appellant Zubair Ahmad alias Ladu is acquitted of the charge. He shall be released forthwith if he is not required in any other case.

J U D G E

Gulsher/PS