HIGH COURT OF SINDH AT KARACHI

 

Special Criminal Anti-TerrorismAppeals No.155 & 156 2017

 

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

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Present:NaimatullahPhulpoto, J.

            Abdul MaalikGaddi, J.

 

Date of hearing     :        10.11.2017

 

Date of Judgment :       21.11.2017

 

Appellants            :         Muhammad Shahnawaz @ Shannothrough

Mr.Nadeem Ahmed Azhar, Advocate.

 

 

Respondent          :         The State through Mr. Ali HaiderSaleem,

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 12.06.2017.

 

2.       By means of these appeals, the appellant has assailed the common Judgment dated 12.06.2017 passed by the learned Judge of Anti-Terrorism Court No.IX, Karachi in Special Cases No.399and 400 of 2016, under Crime No.16/2016 for offence under Section 4/5 of Explosive Substance Act, read with Section 7 of Anti-Terrorism Act, 1997 andCrime No.17/2016 for offence under Section 23(1)(a) of Sindh Arms Act, 2013,registered at police station Eidgah, Karachi, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellant. For the sake of convenience, it would be appropriate to reproduce the relevant portion of the impugned common judgment, which read as follows:-

 

“In view of the above facts and circumstances I have come to the conclusion that the prosecution has been able to prove its cases against the accused beyond any reasonable doubt and therefore, I have decided to convict him accordingly and he is convicted as under:-

 

Section                                     Conviction

 

01.        Section 23(1)(a) SAA       to suffer R.I. for seven years

and fine of Rs.50,000/- and in case of default of payment of fine, the accused will have to undergo R.I. for six months, more.

 

02.     Section 6(2)(ee) of ATA

          1997 Punishable u/s

          7(ff) of ATA 1997 r/w

          Section 4/5 Explosive

          Substance Act                to suffer R.I. for fourteen                                                 years with forfeiture of his                                   property if any as required

                                                u/s 7(2) of ATA 1997.

 

The benefits of section 382-B Cr.P.C. are however allowed to be extended in favour of the accused.”

 

3.       Brief facts of the prosecution case as disclosed in the FIR are that on 03.02.2016 SIP Wali Khan was on patrolling duty in the company of his subordinate staff and during such patrolling as and when they reached at Nishtar Road opposite Quba Mosque, where they found two suspects to be available there. They arrested them, who disclosed their names as Mohammad Shahnawaz and Taimoor. The personal search of the accused Shahnawaz led to the recovery of a rifle grenade and an unlicensed pistol of 30 bore along with magazine loaded with four live bullets from his possession. The personal search of accusedTaimoor led to the recovery of an unlicensed pistol of 30 bore along with magazine loaded with four live bullets from his possession. The accused and the case property were brought at police station, where separate FIRs were registered against the accused.

 

4.       After usual investigation, challan was submitted against accused under above referred sections. Learned trial Court amalgamated the aforesaid caseswith main case for joint trial, in terms of Section 21-M of Anti-Terrorism Act, 1997. During the course of trial, co-accused Taimoor was acquitted under Section 265-K Cr.P.C by the trial Court vide order dated 28.05.2016.

 

5.       Trial Court framed Charge against accused on 28.09.2016 under the above referred sections. Accused pleaded not guilty and claimed his trial. 

 

6.       In order to prove the accusation against the appellant,prosecution had examined following witnesses:-

 

(i)           PW-1 SIP Wali Khan at Ex.6, who produced entry No.23 dated 23.02.2016, memo of arrest and recovery, copy of FIRs No.16/2016 & 17/2016, clearance certificate of rifle grenade and memo of inspection of place of incident at Ex.6/A to Ex.6/F respectively;

 

(ii)          PW-2 Inspector Saeed Akhtar at Ex.7, who produced letter addressed to SSP Technical Branch dated 12.02.2016, FSL report and order of Home Department as required under Section 7 of Explosive Substance Act at Ex.7/A to Ex.7/C respectively;

 

(iii)        PW-3 PC Mohammad JavedJamali at Ex.9;

 

(iv)         PW-4 Inspector Syed Tanveer Hussain Shah at Ex.10, who produced entries No.20, 30, 15 and 17 dated 03.02.2016 andletter dated 04.02.2016 addressed to Incharge FSL at Ex.10/A to Ex.10/E respectively;

 

(v)          PW-5 ASI Syed Laeeq of BDU at Ex.11, who produced entries No.40 and 41 dated 03.02.2016 and final inspection report of rifle grenade at Ex.11/A to Ex.11/B respectively.

 

These witnesses have been cross examined by the counsel for accused. Thereafter, leaned DDPP closed the prosecution side vide Statement at Ex.12.

 

7.       Statement of accused under Section 342,Cr.P.C. was recorded at Ex.13. Accused claimed his false implication in the present cases and denied the prosecution allegations. Appellant further stated that nothing was recovered from his possession and during intervening night falling in between 15.01.2016 and 16.01.2016, he alongwith his family members sleeping in the house of Taimoor, his cousin when some Rangers personnel came there and picked up them forcibly from the house and put the piece of cloth over their eyes and on 27.01.2016, they were handed over to the police, who falsely involved them in these cases. Appellant 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 12.06.2017, 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 12.06.2017 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 appellantcontended that appellant is innocent and has been falsely implicated in the present cases. Per learned counsel, co-accused Taimoor has been acquitted by the trial Court on the same set of evidence andmashirnama of arrest and recovery was the same. He further argued that whole case of prosecution based upon evidence of police officials and no independent witness has been cited to witness the arrest and recovery proceedings; that nothing was recovered from the possession of appellant as well as the alleged recoveries have been foisted upon him by the police to show their efficiency. During the course of arguments, he has taken to us towards the evidence on record and has pointed outvarious contradictions in evidence of prosecution witnesses; therefore, according to him, no reliance could be placed on contradictory evidence. Per learned counsel, during intervening night falling in between 15.01.2016 and 16.01.2016, appellant alongwith his family members was sleeping in the house of co-accused Taimoor, his cousin and it was about 05:00 am or 05:30 am when some Rangers personnel came there and they picked them forcibly from the house and they put a piece of cloth on their eyes and took them to some unknown place and on 27.01.2016, both were handed over to the Eidgah police, who involved them in these cases, but the learned trial Court has failed to appreciate all these legal aspects and passed the impugned common judgmentwithout appreciating evidence according to settled principles of law, as such, he has prayed for allowing these appeals while relying upon the case of Tariq Pervez v. The Statereported as1995 SCMR 1345.

11.     Conversely, Mr. Ali HaiderSaleem,learned Deputy Prosecutor General while supporting the impugned judgment argued that complainant as well as mashirs including investigating officer have supported the prosecution case and case is proved against the accused beyond the shadow of doubt. He has also argued that defence counsel has not been able to create any reasonable dent and defect in the prosecution case and the offence has been proved against the appellant, therefore, according to him, these appeals may be dismissed.

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

13.     After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial. It is the settled principle of law that burden is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view of this basic touchstone of criminal administration of justice, we have examined the ocular evidence as well as circumstantial evidence, alongwith impugned common judgment.

14.     From the above evidence, we have come to the conclusion that prosecution has failed to establish its’ case against the accused for the reasons that co-accused Taimoor, who was arrested alongwith present appellant and one unlicensed 30 bore pistol along with magazine loaded with four live bullets was allegedly recovered from his possession, has been acquitted on same set of evidence and under same mashirnama on record at Ex.6/B produced by PW-1 SIP Wali Khan, under Section 265-K, Cr.P.C. vide order dated 28.05.2016 by the trial Court. Therefore, the conviction and sentences of the appellant in these cases was unwarranted under the law without independent corroboration. We have gone through the evidence of the prosecution witnesses and documents on record and found the multiple contradictions on material particulars of the case; therefore, conviction cannot be maintained on such type of evidence. For example, it is stated in the FIR as well as in mashirnama of arrest and recovery that one rifle grenade was recovered from the possession of the appellant, but PW-1 SIP Wali Khan in his evidence at Ex.6, deposed that one Avon Bomb/Gola was recovered from the appellant. FIR and mashirnama of arrest and recovery do not show the number of rifle grenade, but clearance certificate at Ex.6/E on record shows the number of rifle grenade as VMG-K2-09(33). Evidence of PW-1 SIP Wali Khan and mashirnama on record at Ex.6/B do not show that alleged Avon Bomb/Gola was sealed on spot. The evidence of PW-5 ASI Syed Laeek of B.D.U at Ex.11 deposed that the explosive substance available in Court having two colors, but on perusal of clearance certificate as well as final report, the color of Avon Bomb are not mentioned. He further admitted in cross examination that Avon Bomb cannot be used without rifle.

15.     We have noticed that FIR as well asmashirnama of arrest and recovery do not show the number of pistol, while FSL report on record at Ex.7/B shows the rubbed number of pistol.Not only this, as per mashirnama, two pistols were recovered from each accused, but Investigating Officer dispatched only one pistol to FSL for examination and one pistol retained with him at police station without any legal justification. It is pertinent to mention here that PW-1 SIP Wali Khan in his cross examination at Ex.6 had admitted that his Statement under Section 161, Cr.P.C. was recorded at police station Eidgah, but he also admitted that in his Statement under Section 161, Cr.P.C. it is mentioned that same was recorded at police station Docks. When confronted with the contradiction and discrepancies in the statement of prosecution witnesses, learned DPG has not replied satisfactorily. On our query, learned DPG submits thatnothing on record to show that the present appellantis previously convicted or he ever remained indulged in such type of activities in past.

16.     In view of above, we have also considered the version of both the parties put forward by them through evidence and put the same in juxtaposition then we found that the version of the appellant seemsto be more plausible and convincing while the version of the prosecution appears to be doubtful.

17.     All the above circumstances have proved that neither the incident as alleged, had taken place, nor the recoveries, as shown, were effected from the possession of appellant. It is settled principle of law that to extend benefit of doubt there is no necessity to gather many circumstances but even if slightest doubt arises out of prosecution case, is sufficient to extend the benefit of doubt to the accused. In the instant case in view of the discussion whatever discussed hereinabove and the material placed before us has constrained to hold that the prosecution has miserably failed to prove its charge against the appellant beyond any reasonable shadow of doubt.Consequently, these appeals are allowed. The impugned common Judgment passed by the trial Court is set-aside. Resultantly, the appellant is acquitted of the charge. Appellant is in custody, therefore, jail authorities are directed to release the appellant forthwith, if he is not required in any other cases.

 

 

JUDGE

 

 

                                                                                                                    JUDGE

 

 

Faizan A. Rathore/PA*