THE HIGH COURT OF SINDH AT KARACHI

 

Special Criminal ATA No.272 of 2018

along with

Special Criminal ATA Nos. 273 & 274 of 2018

 

DATE          ORDER WITH SIGNATURE OF JUDGE               

 

                                       Present: Mr.Justice Naimatullah Phulpoto

                                                    Mr.Justice Irshad Ali Shah 

 

Appellant              :         Muhammad Sultan @ Musa through                                      Mr. Hashmat Khalid, Advocate.

 

Respondent          :         The State through Mr. Abdullah Rajpar,                                 DPG.

 

Date of hearing     :         24.07.2019

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J.: The appellant by way of captioned appeals has impugned the judgment dated 29.09.2018, passed by the learned Judge Anti-Terrorism-IV, Karachi, whereby he has been convicted and sentenced for the offences punishable under Sections 324/353 PPC, read with Section 7 Anti-Terrorism Act, 1997, to suffer R.I. for five years and fine of Rs.10,000/- (Rupees Ten Thousand), in case of default, to further suffer R.I. for six years more (which in fact should have been six months), for the offence punishable under Section 23(1)(a) of Sindh Arms Act, 2013, to suffer R.I. for five years and fine of Rs.5,000/- (Rupees Five Thousand), in case of default, to further suffer R.I. for four months, and for offence punishable under Sections 4/5 of Explosive Substance Act, read with Section 6(2) (ee), and 7 (ff) of Anti-Terrorism Act, 1997, to suffer R.I. for fourteen years and fine of Rs.50,000/- (Rupees Fifty Thousand), in case of default, the Appellant had to further suffer R.I. for six months more. All the conviction and sentences awarded to the appellant were ordered to run concurrently with the benefit of Section 382(b) Cr.P.C.

 

 

2.                Facts in brief necessary for disposal of the captioned appeals are that the police party of P.S Docks, Karachi, led by ASI Munawar Hussain while on patrolling when reached at Dockyard Road, West Wharf Road, “Mai Kolachi” Road, Karachi, there they found the appellant standing in suspicious condition, he was asked to stop, on that he opened fire upon the said police party with intention to commit their murder. The police party also fired at the Appellant and consequently he was apprehended at the spot and on search from him, were secured a un-lisenced T.T. Pistol of 30 Bore with magazine containing two live bullets and a hand grenade. Mashirnama of arrest and recovery was prepared at the spot. The appellant and the recovery so made from him there were taken to Police Station Docks, Karachi and there he was booked and challaned accordingly.

 

 

3.                At trial, the appellant did not plead guilty to the charge and prosecution to prove it, examined DW-1 complainant ASI Munawar Hussain Bajwa (Exhibit-6). He produced Roznamcha entries, Memo of arrest and recovery, FIRs of the present crimes and memo of place of incident. PW-2/PC Muhammad Saleh (Exhibit-7), PW-3 SIP Muhammad Aamir (Exhibit-8). He produced Roznamcha entries and report of ballistic expert. PW-3 PC Ghulam Abbas (Exhibit-9) and PW-5 Inspector/SIO Saeed Alam (Exhibit-10). He produced Roznamcha entries and certain documents relating to the investigation and then prosecution closed its side.

 

 

4.                The appellant in his statement recorded under Section 342 Cr.P.C denied the prosecution allegations by pleading innocence by stating that he was picked up by Law Enforcement Agencies. His mother Mst. Afzaal-ul-Nisa moved an application for his release with various authorities and then he was involved in these cases falsely by the police. In order to prove his innocence appellant also examined his mother Mst. Afzaal-ul-Nisa in his defence, but did not examine himself on oath to disprove the prosecution’s allegation against him.

 

 

5.                On evaluation of evidence, so produced by the prosecution, the learned trial Court convicted and sentenced the appellant as detailed above.

 

 

6.                It is contended by learned Counsel for the appellant that the appellant being innocent has been involved in this case by the police by foisting false un-licensed T.T. pistol and grenade upon him only to save from legal consequence as the appellant was taken up by them much before his involvement in the present cases; the encounter took place within the close range, yet it had proved to be ineffective one; there is no independent witness to the incident and learned trial Court has convicted and sentenced the appellant on the basis of improper evaluation of prosecution’s evidence. By contending so, he sought for acquittal of the appellant.

 

 

7.                Learned Deputy Prosecutor General by supporting the impugned Judgment has sought for dismissal of the captioned appeals.

 

 

8.                We have considered the above arguments and perused the record.

 

9.                It has been stated by complainant ASI Munawar Hussain, PWs PC Ghulam Abbas and PC Saleh Muhammad that on 13.05.2018, they with rest of the police personnel were conducting patrol duty, when reached at ‘Lakargodi’, near Railway Phattak, Muhammadi Colony, Dockyard Road, Karachi, there at about 02:00 A.M, they found the appellant standing in suspicious condition he was asked to stop, on that he fired at them with intention to commit their murder. On retaliation, the appellant was also fired at. Consequently, the appellant was apprehended at the spot and from him were secured un-licensed TT Pistol with magazine containing two live bullets and hand grenade. Such encounter proved to be ineffective one, which appears to be significant. As per the complainant such encounter continued for about ten minutes. As per PW/Mashir PC Saleh Muhammad it continued for about one hour. Such inconsistency with regard to the time consumed in encounter has made the very encounter to be doubtful one.

 

 

10.              As per Inspector/SIO Saeed Alam, he recorded 161 Cr.P.C statements of PWs and after usual investigation, submitted challan of the case. In that respect he was belied by PW Mashir PC Ghulam Abbas by stating that his 161 Cr.P.C statement was recorded by complainant ASI Munawar Hussain. In that situation, no much reliance could be placed upon evidence of Inspector/SIO Saeed Alam. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellant beyond the shadow of doubt.

 

 

11.              In the case of Tariq Pervez v. The State reported as (1995 SCMR 1345), the Hon’ble Supreme Court has held that:

“for giving benefit of doubt to an accused it is not necessary that there should many circumstances creating doubts. If a simple circumstance 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 matter of right”.

 

12.              Above are the reasons for the short order dated 24.07.2019, whereby captioned appeals are disposed of which reads as under:

“For the reasons to be recorded later on, Special Criminal Anti-Terrorism Appeal Nos.272, 273 and 274 of 2018, are allowed. Conviction and sentence accorded by learned Judge ATC-IV, Karachi in Special Cases Nos. 699/2018, 700/2018, 701/2018, (FIR Nos.217/2018 under Sections 353/324 PPC R/w Section 7 of ATA, 1997, (FIR No.218/2018, under Section 23 (1)(a) of Sindh Arms Act) and (FIR No.219/2018 under Section 4/5 Explosive Substance Act, R/w Section 7 ATA, 1997) all registered at P.S Docks, Karachi respectively, are set-aside. Consequently, appellant Muhammad Sultan @ Musa son of Muhammad Ramzan is acquitted of the charge. He be released forthwith if not required in some other case.”

 

 

 

                                                                                J U D G E

                                                J U D G E

 

 

 

 

Karachi.

Dated:         .07.2019

Hyder/PA*