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