HIGH COURT OF SINDH AT KARACHI

Spl. Criminal Anti-Terrorism Appeal No.272 of 2017

Spl. Criminal Anti-Terrorism Appeal No.273 of 2017

Spl. Criminal Anti-Terrorism Appeal No.274 of 2017

Spl. Criminal Anti-Terrorism Appeal No.275 of 2017

                        Present:         

Naimatullah Phulpoto, J.

Rasheed Ahmed Soomro, J.

Appellants:                      Qamar Iqbal alias Chingchi son of Muhammad Qudoos through Mr. Mumtaz Ali Khan Deshmukh, Advocate

Aman Iqbal son of Muhammad Iqbal through Ms. Humaira Nadeem Rana, advocate

Respondent:                   The State through Mr. Abdullah Rajput, Deputy Prosecutor General Sindh.

Date of hearing:              31.08.2018

Date of announcement: 03.09.2018

J U D G M E N T

NAIMATULLAH PHULPOTO, J.- Appellants Qamar Iqbal alias Chingchi and Aman Iqbal were tried by learned Judge, Anti-Terrorism Court-VI, Karachi in Special Cases Nos.1313, 1314, 1415 and 1316 of 2017. On conclusion of the trial, vide judgment dated 12.12.2017, the appellants were convicted and sentenced as under:-

(i) Accused Qamar Iqbal alias Chingchi and Amaan Iqbal were sentenced to 2 years R.I. each with fine of Rs.5,000/- (Five thousand) each. In default thereof they shall further undergo S.I. for two months for committing offence under section 353, PPC.

(ii) Accused Qamar Iqbal alias Chingchi and Amaan Iqbal were sentenced to 5 years R.I. for committing offence under section 324, PPC.

(iii) Accused Qamar Iqbal alias Chingchi was sentenced to 14 years R.I. and forfeiture of his property for committing offence under section 7(1)(ff) of the Anti-Terrorism Act, 1997.

(iv) For committing offence under section 23(1)(a) of the Sindh Arms Act, 2013, accused Qamar Iqbal alias Chingchi and Amaan Iqbal were sentenced to 7 years R.I. and to pay fine of Rs.10,000/- each, in case of default in payment of fine, they were ordered to suffer S.I. for four months more.

All the sentences were ordered to run concurrently and the appellants were extended benefit of 382(b), Cr.PC.

2. Brief facts of the prosecution case are that on 19.05.2017 at 1500 hours, a police party headed by SIP Kashif Khan of P.S. Iqbal Market while patrolling reached at graveyard of Orangi Town, situated in Iqbal Market at 1510 hours. It is alleged that two persons were found by the police in suspicious manner on the road. Police tried to catch them hold but they fired upon the police party with the intention to kill, police also fired in self defence. Resultantly, it is stated culprits surrendered before the police. SIP Kashif Khan conducted personal search of accused Qamar Iqbal in presence of mashirs and recovered one 30 bore pistol with three life bullets, loaded in the magazine in the left packet of his pant and one hand grenade, one Q-Mobile and cash of Rs.210/-. From the possession of accused Amaan Iqbal it is alleged that two repeater rifles with magazines containing eight cartridges of 12 bore and 3 pistols and 12 bullets of 30 bore and one Q-Mobile, copy of CNIC and amount of Rs.480/- were also recovered. SIP Kashif Khan inquired from both accused persons about licenses of weapons (rifles and pistols) carried by them but they replied in negative. Accused were arrested on 19.05.2015 at 15.50 hours in presence of mashirs. It is stated that from the place of wardat six empties of 30 bore and 5 empties of SMG were collected. Such mashirnama was prepared. Case property was sealed at the spot. Accused and case property were brought to the police station where four separate FIRs being FIR No.130/2017 under section 353/324/34, PPC, read with section 7 of the Anti-Terrorism Act, 1997; FIR No.131/2017, under section 4/5 of the Explosive Substances Act, 1908 read with section 7 of the Anti-Terrorism Act, 1997 and FIRs Nos.132 and 133 of 2017 under section 23(1)(a) of the Sindh Arms Act, 2013 were registered against the accused persons at P.S. Iqbal Market on behalf of the State.

3. Investigation of the aforesaid crimes was carried by Inspector Rooh-ul-Ameen. After usual investigation, challan was submitted against the accused under the above referred sections.

4. Learned trial court ordered for joint trial as provided under section 21-M of the Anti-Terrorism Act, 1997.

5. Trial court framed charge against the accused on 28.07.2017. Both the accused pleaded not guilty and claimed to be tried.

6. At trial, prosecution examined in all four prosecution witnesses, who produced investigation papers and positive reports of the experts. Thereafter, prosecution side was closed.

7. Trial court after hearing the learned counsel for the parties and assessment of the evidence, convicted and sentenced the appellants vide judgment dated 12.12.2017 as stated above, hence these appeals.

8. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 12.12.2017 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Heard learned counsel for the appellant and learned Deputy Prosecutor General Sindh and perused the evidence minutely.

10. Prosecution has examined PW-2 SIP Kashif Khan of P.S. Iqbal Market. He deposed that on 19.05.2017 he was on patrolling duty along with his subordinate staff, when the police party reached at graveyard of Orangi Town, situated in Iqbal Market at 1510 hours, where police saw the appellants on road standing in suspicious manner. Police directed them to stop but they fired upon the police and police also fired in self defence. Thereafter, both the accused were apprehended. SIP Kashif Khan has further deposed that accused Qamar Iqbal was carrying 30 bore pistol with 3 live bullets and he had one hand grenade, one Q-Mobile and another accused Amaan Iqbal had a big bag hanging on his shoulder. It contained two rifles with magazines containing eight cartridges of 12 bore, 3 pistols, 12 bullets of 30 bore and Q-Mobile. Both accused had no licenses for weapons carried by them. Accused were arrested, mashirnama of arrest and recovery was prepared in presence of mashirs. Both the accused were brought by him to police station and FIRs were registered against them. PW-3 PC Shahid was the member of patrolling party and also acted as mashir of recovery. PW-4 IO Inspector Rooh-ul-Ameen conducted investigation in these cases. He had sent weapons and explosive substance to the ballistic expert for the reports and produced the same in the evidence at Ex.12/E. He had also collected report from BDU and produced before the trial court at Ex.12/F.

11. Learned advocate for appellants mainly contended that prosecutor story was unnatural and unbelievable: that despite cross-firing with sophisticated weapons not a single injury was caused to the either party. It is further argued that despite contentions of the defence counsel arrival and departure entries of the police station were not produced by PW-2 SIP Kashif Khan before trial court. It is also argued that there was no evidence of the safe custody of the weapons and safe transit to the ballistic expert. Lastly, argued that appellants were in the police custody before registration of cases against them, such application was submitted by the brother of appellant Qamar Iqbal before SHO P.S. Mominabad but trial court wrongly ignored the defence theory.

12. Learned D.P.G. argued that evidence of police officials was trustworthy and reliable. It is further argued that evidence of police officials was corroborated by positive report of ballistic expert and prayed for dismissal of appeals.

13. From the perusal of evidence, it transpires that there was cross-firing but not a single injury was caused to either party, even police mobile was not hit. It has also come on record that houses are situated near the place of incident but efforts were not made by SIP Kashif Khan to call the independent persons from the houses for making them as mashirs in these cases. PW-1 has admitted that he had not produced arrival roznamcha entries of P.S. Iqbal Market of 19.05.2017, which cuts the roots of prosecution case. Evidence of PW-3 PC Shahid reflects that there was cross-firing for 5 to 10 minutes, however, he admitted that not a single injury was caused to either party. His evidence is contradictory to the evidence of PW-2 who deposed that place of incident house are situated near the place of incident whereas HC Shahid deposed that it is abundant area. We have also noticed that report of the ballistic expert at serial 5 and 7, the numbers of pistol and short-gun have been mentioned but evidence of PWs 2 and 3 is silent about the description of the weapons. There was also delay in dispatch of these weapons to the expert. According to the case of prosecution, weapons were recovered from the possession of the accused on 19.05.2017 but the same were received by the ballistic expert on 24.05.2017. Accused have examined DW Muhammad Farhan at Ex.17, who has deposed that on 16.05.2017 he had received telephonic call from his sister-in-law that brother of Muhammad Farhan has not returned home from his work. He went to the police station and orally informed the SHO about the disappearance of his brother Qamar and on 18.05.2017 he submitted application before the SHO. On 19.05.2017 he was watching television, news was telecasted that his brother Qamar Iqbal and another person, namely, Amaan Iqbal have been arrested by SHO P.S. Iqbal Market. DW-1 had submitted application before the SHO P.S. Mominabad on 18.05.2017 which shows stamp/receipt of SHO P.S. Mominabad. It was the duty of the IO to have interrogated/investigated this aspect/version of the case but investigation officer failed to conduct a fair investigation. We have also noticed that safe custody of the weapons and safe transmission to ballistic expert have not been established at trial. Investigation officer had also not examined Incharge of the Malkhana of police station regarding the safe custody of the weapons recovered at P.S. Roznamcha; entries of Malkhanan were also not produced before trial court. There was also delay in dispatch of the weapons to the ballistic expert. In the view of above, we are unable to rely upon the evidence of police officials without independent corroboration, it is lacking in this case. Reliance is placed on the case of Kamaluddin alias Kamala vs. The State (2018 SCMR 577). Relevant portion is reproduced as under:

“4. As regards the alleged recovery of Kalashnikov from the appellant’s custody during the investigation and its subsequent matching with some crime-empties secured from the place of occurrence suffice it to observe that Muhammad Athar Farooq DSP/SDPO (PW18), the Investigating Officer, had divulged before the trial court that the recoveries relied upon in this case had been affected by Ayub, Inspector in an earlier case and thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial court through production of any witness concerned with such custody and transmission.”

14. In view of the above stated reasons, we have no hesitation to hold that there are several circumstances/infirmities in the prosecution case as highlighted above, which have created reasonable doubt about guilt of accused. In the case of Tariq Pervez V/s. The State (1995 SCMR 1345), the Honourable Supreme Court has observed as follows:-

“It is settled law that it is not necessary that there should many circumstances creating doubts. If there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.”

15. For the above stated reasons, we have come to the conclusion that prosecution has utterly failed to prove its case against the appellant, trial court failed to appreciate the evidence according to settled principles of law. False implication of appellant could not be ruled out in this case. While relying upon the above cited authorities, we hold that prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt. Resultantly, the appeals are allowed and conviction and sentence recorded by the trial Court vide judgment dated 12.12.2017 are set aside and appellants are acquitted of the charges. Appellants shall be released forthwith if not required in some other custody case.

J U D G E

J U D G E

Gulsher/PS