HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals No.116 & 117of 2017

----------------------------------------------------------------------------------

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

----------------------------------------------------------------------------------

Present:Naimatullah Phulpoto, J.

Abdul MaalikGaddi, J.

Date of hearing :31.10.2017

Date of Judgment : 08.11.2017

Appellants : Imran @ Kala through

Mr. Nadeem Ahmed Azhar, Advocate.

Respondent : The State through Mr. Muhammad Iqbal

Awan, Deputy Prosecutor General, Sindh.

J U D G M E N T

Abdul MaalikGaddi, J.–Through this common Judgment, we intend to dispose of the captioned appeals filed by the appellant as these appeals relate to common Judgment delivered by the learned trial Court dated 24.04.2017.

2. By means of these appeals, the appellant has assailed the common Judgment dated 24.04.2017 passed by the learned Judge of Anti-Terrorism Court No.I, Karachi in Special Cases No.29 to 31 of 2016under Crime No.559/2015 for offence under Section 353/324/34 PPC read with Section 7 of Anti-Terrorism Act, 1997, Crime No.560/2015 for offence under Section 23(1)(a) of Sindh Arms Act, 2013 and Crime No.561/2015 for offence under Section 4/5 Explosive Substance Act, 1908, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellant in point No.4 of the common judgment. For the sake of convenience, it would be advantageous to reproduce the findings of Point No.4, which reads as follows:-

“POINT NO.4.

As a result of my above discussion on point No.2 and 3, it has come on screen that prosecution has proved its charges against the accused Imran @ Kala son of Muhammad Raza beyond any shadow of doubt, I therefore, convict him u/s 265-H(2) and sentence him R.I for 5 years with fine of Rs.20,000/-, for the offence punishable under section 7(h) of Anti-Terrorism Act 1997, in case of non-payment of fine, he will suffer S.I for 6 months more. I also convict and sentence him with R.I for 5 years and fine of Rs.20,000/- for the offence punishable under section 23(1)(a) of Sindh Arms Act, 2013, in case of non-payment of fine, he will suffer S.I for 6 months more. I also convict and sentence him R.I for 14 years, for the offence punishable u/s 7(ff) of Anti-Terrorism Act, 1997. All the sentences shall run concurrently. The benefit of section 382-B Cr.P.C. is also extended to him. Accused Imran @ Kala son of Muhammad Raza present in custody, is remanded back to serve out the sentences.

The case against proclaimed offenders namely Muhammad Ali @ Della son of Muhammad Mukhtiar and Naushad @ Bara Sher son of Abdul Ghafoor be kept on dormant file of this court till their arrest or surrender or till further order.”

3. Brief facts of the prosecution case as disclosed in the FIR are that on 17.09.2015 at 0200 hours to 0220 hours, the complainant ASI Shakeel Khan registered three FIRs at police station Peerabad, Karachi, being Crime No.559/2015, under Sections 353/324/34 PPC, read with Section 7 of Anti-Terrorism Act, 1997, Crime No.560/2015, under Section 23(1)(a) of Sindh Arms Act, 2013 and Crime No.561/2015, under Section 4/5 Explosive Substance Act, stating therein that he along with subordinate staff was on patrolling duty. During patrolling at about 0030 hours, when they reached at road of Paracha Graveyard, Muhammadpur Qasba, Karachi, they saw three persons while coming on one motorcycle in suspicious condition from front side. It is alleged that complainant for checking purpose, gave them signal to stop. Meanwhile, all three accused persons fired upon the police party with intention to commit their murder. Police party also fired in their defence. During encounter, two accused fled away on the motorcycle through narrow streets, whereas, one of them fell down and police apprehended him. On inquiry, he disclosed his name as Imran @ Kala son of Muhammad Raza. He disclosed the names of co-accused as Muhammad Ali @ Della son of Muhammad Mukhtiar and Naushad @ Bara Sheroo son of Abdul Ghafoor. From personal search of apprehended accused, police recovered one 30 bore pistol with three live bullets from his right hand. Police also recovered one rifle grenade/avon bomb from his possession. Accused disclosed that he had kept rifle grenade for the firing from the rifle of his accomplice to create terror in the society. Accused failed to produce license of pistol, as such, he was arrested under memo of arrest and recovery after sealing the pistol on the spot. The rifle grenade was kept in safe custody. Police also recovered two empties of 30 bore pistol and three empties of SMG from place of incident. Accused and case property were brought at police station Peerabad, where above said three FIRs were registered separately bearing Crime No.559/2015, under Section 353/324/34 PPC read with Section 7 of Anti-Terrorism Act, 1997, Crime No.560/2015, under Section 23(1)(a) of Sindh Arms Act, 2013 and Crime No.561/2015, under Section 4/5 Explosive Substance Act, 1908 at police station Peerabad.

4. After usual investigation, challan was submitted against accused Imran @ Kala under above referred sections, wherein co-accused have been shown as absconder. Learned trial Court amalgamated the aforesaid cases with main case for joint trial, in terms of Section 21-M of Anti-Terrorism Act, 1997.

5. Trial Court framed Charge against accused on 04.08.2016 under the above referred sections. Accused pleaded not guilty and claimed his trial.

6. At the trial, prosecution examined four witnesses. Thereafter, leaned DDPP closed the prosecution side vide Statement at Ex.11.

7. Statement of accused under Section 342 Cr.P.C. was recorded at Ex.12. Accused claimed his false implication in the present cases and denied the prosecution allegations and stated that on 09.09.2015, he was apprehended by some unknown persons at 11:00 p.m., while he was coming back to his house from Noman Autos and illegally detained. On 17.09.2015, he was booked falsely in these cases. Hisfathernamely Muhammad Raza filed application about his missing at police station Pakistan Bazar, but said application was not received. Later on his father had submitted application to this Court.In this regard, he produced copy of application and death certificate of his father at Ex.12/A and Ex.12/B respectively.Accused neither examined himself on oath nor led any evidence in his defense.

8. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 24.04.2017, convicted and sentenced the appellant as stated above. Hence, these appeals have been filed by the appellant.

9. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 24.04.2017 passed by the trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

10. Mr. Nadeem Ahmed Azhar, learned counsel for the appellant contended that appellant is innocent and has been falsely implicated in the present cases. There are major contradictions in the evidence of witnesses, examined by the prosecution. Per learned counsel, neither any police official nor accused sustained fire arm injury during the alleged encounter. It is further contended that on 09.09.2015, appellant was taken away by some unknown persons at 11:00 p.m., while he was coming back to his house from Nauman Autos and kept him under illegal detention and later on he was booked falsely in the present cases. The father of accused had filed application about his missing at police station Pakistan Bazar, but his application was not considered, as such, he submitted application before this Court. He further contended that 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, as such, entire case of prosecution became doubtful, hence, appellant is entitled to be acquitted by giving him benefit of doubt.

11. Conversely, Mr. Mohammad Iqbal Awan, learned Deputy Prosecutor General argued that the appellant along with absconding accused deterred the police party from performing their lawful duties with intention to commit their murder and police also fired in their defence. In the meantime, police arrested present accused and recovered one rifle grenade and one 30 bore pistol with three bullets from his possession. Police also recovered two empties of 30 bore pistol and three empties of SMG from place of incident. He further contended that positive reports of Bomb Disposal Unit as well as FSL in respect of recovered rifle grenade and 30 bore pistol with bullets were produced before trial Court. He further contended that all the prosecution witnesses have fully implicated the accused with commission of present offence; therefore, according to him, the appeals filed by the appellants are liable to be dismissed.

12. We have heard the learned counsel for the parties at a considerable length and have perused the evidence anddocuments available on record.

13. From the scrutiny of evidence, it transpires that ASI Shakeel Khan (complainant) has deposed that on 16.09.2015, he left police station alongwith PC Rahat Ali andSI Rana Muhammad Jameel Akhtar, for patrolling in police mobile under entry No.46 at 2000 hours. During patrolling when they reached at Paracha Graveyard, Muhmmadpur Qasba, Karachi, where they saw three persons coming on motorcycle in suspicious condition. They were signaled by the police to stop, but they started firing upon police with intention to kill them. Police also fired in self defence and this encounterremained continued for 1/2 minutes. However, the present appellant was fallen down from the motorcycle, as such, he was apprehended. On enquiry, he disclosed his name as Imran alias Kala and also disclosed the names of his companions to be Muhammad Ali and Naushad, who ran away from the spot. Complainant has further deposed that he recovered one 30 bore pistol with three bullets, one rifle grenade/avon bomb from the possession of the appellant and also recovered two empties of 30 bore and three empties of SMG from the place of incident. Accused could not produce license of pistol, as such, he was arrested under memo of arrest and recovery at Ex.7/B on record, showing PC Zafar Alam and PC Rahat Ali as mashirs. Thereafter, accused and case property were brought to police station Peerabad, where three separate FIRs bearing Crime No.559/2015, under Section 353/324/34 PPC read with Section 7 of Anti-Terrorism Act, 1997, Crime No.560/2015, under Section 23(1)(a) of Sindh Arms Act, 2013 and Crime No.561/2015, under Section 4/5 Explosive Substance Act, 1908, were registered against accused. Then, he handed over copies of FIRs, case property and custody of accused to SI Rana Muhammad Jameel Akhtar for investigation, who inspected the place of incident on the pointation of complainant at 0930 hours and prepared such memo in presence of mashirs. On 19.09.2015, official of Bomb Disposal Unit came at police station and inspected rifle grenade and issued such clearance certificate and on same day, he referred one 30 bore pistol, bullets and empties to FSL through letter at Ex.9/E. On 22.09.2015, then investigation was transferred to Inspector Syed Naveed Ali for further investigation, who afterobtaining permission from high-ups, submitted the challan before the competent Court of law. The complainant and PWs in cross examination have admitted that there was cross firing in between the accused and police partyfor about 1/2 minutes.

14. From the above evidence, we have come to the conclusion that the prosecution has failed to establish its’ case against the appellant for the reasons that though there was cross firing in between the accused and police partyfor about 1/2 minutes,with the sophisticated weapons, but surprisingly, not a single injury/scratch was caused to either side. Even not a single bullet was hit to the police mobile. According to the case of prosecution, co-accused Muhammad Ali and Naushad ran away from the spot. We are unable to believe that two accused ran away easilyand police remained calm without any efforts to arrest them.Incident took place at road of Paracha Graveyard, Muhammadpur Qasba and firing was exchanged.Therefore, the possibility of private person at road could not be ruled out, police did not make any effort to join any independent person of locality or passerby to witness the arrest and recovery proceedings of the appellant.

15. We have also gone through the evidence of PW-1 SIP Shakeel Khan, he has admitted that neither the number of rifle grenade/avon bomb nor its color is mentioned in the said memo, but on perusal of clearance certificate issued by Bomb Disposal Unit, Technical Special Branch, Karachi dated 19.09.2015 at Ex.9/D on record, the number of rifle grenade is VMG-K, whereas, the FSL report on record at Ex.10/C showing receiving of one 30 bore pistol rubbed number, but memo of recovery and arrest showing the recovery of 30 bore pistol is without number. It is pertinent to mention here that none of the witness has deposed that case property was sealed at spot, but it appears from the record that when case property was produced before the learned trial Court, it was in sealed condition.We have also gone through the evidence of PW-3 first investigating officer, ASI Rana Muhammad Jameel Akhtar, who in his statement has produced the “rapat No.6” at Ex.9/A, showing the date of inspectionas 17.09.2012, which is highly doubtful and shows the fake documents were prepared for involving the appellant. We have also noticed that Ex.9/B on record produced by ASI Rana Muhammad Jameel Akhtar,containing over written the date as 17.09.2016 instead of 17.09.2015. When these overwriting with regards to dates on Ex.9/A and 9/B was confronted to learned DPG, he had no explanation. These are the material contradictions on material particulars in the case of prosecution, but the learned trial Court did not appreciate these aspects/contradictions of the case, while handing down the impugned common judgment.

16. It also reveals from the record that alleged incident took place on 17.09.2015, but the rifle grenade was inspected on 19.09.2015 at police station by Bomb Disposal Unit, Technical Special Branch, Karachi, after the delay of two days, for which no plausible explanation was furnished by the prosecution. Moreover, the rifle grenade was retained by whom has also not been explained that after its recovery under whose custody, it was lying.Prosecution has also not produced Bomb Disposal Expert for his evidence.These aspects of the case also created doubt in the prosecution case.Therefore, the false implication of the appellant in these cases could not be ruled out.

17. As observed above, this is the case based upon doubtful story. In this regard, we may say that many doubts are not needed in the prosecution case, rather any reasonable doubt arising out of prosecution evidence as happened in this case, it would be better to acquit the accused than convicting one innocent soul. Acquitting by error, would be better than convicting by error. Once substantial doubt is enough for acquittal of the accused. We have already highlighted many doubts in the prosecution case, therefore, benefit of doubt will go in favour of the appellant. In this regard, we are supported with 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.

18. 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 accordingto settled principle of law. Consequently, these appeals are allowed. The impugned common Judgment passed by the trial Court is set-aside. Resultantly, the appellant is acquitted of charge. He is in jail, therefore, jail authorities are directed to release the appellant forthwith, if he is not required in any other custody case.

JUDGE

Faizan A. Rathore/PA*