IN THE HIGH COURT OF SINDH AT KARACHI

Special Criminal A.T. Jail Appeal No.104 of 2015

Special Criminal A.T. Jail Appeal No.105 of 2015

Special Criminal A.T. Jail Appeal No.106 of 2015

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Rasheed Ahmed Soomro

Appellant: Zulqarnain alias Suleman son of Muhammad Umar through Muhammad Nadeem Khan, advocate

Respondent: The State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh

Date of hearing: 06.09.2018

Date of Announcement: 14.09.2018

J U D G M E N T

Naimatullah Phulpoto, J.- Appellant Zulqarnain alias Suleman son of Muhammad Umar was tried by learned Judge, Anti-Terrorism Court No.IX, Karachi, in Special Cases Nos.122(III), 123(III) and 124(III) of 2014, registered at Police Station Risala, Karachi. On conclusion of trial, learned trial Court vide judgment dated 22.04.2015 convicted appellant Zulqarnain alias Suleman and sentenced as him as under:-

A. On found guilty of the charge of offence under section 324, PPC accused is convicted and sentenced to suffer R.I. for ten years and fine of Rs.40,000/- and in case of default he shall suffer R.I. for three months more.

B. On found guilty of the charge of offence under section 353, PPC accused is convicted and sentenced to suffer R.I. for two years and fine of Rs.10,000/- and in case of default he shall suffer R.I. for one month more.

C. On found guilty of the charge of offence under section 427, PPC accused is convicted and sentenced to suffer R.I. for two years and fine of Rs.10,000/- and in case of default he shall suffer R.I. for two months more.

D. On found guilty of the charge of offence under section 23(1)(a) of the Sindh Arms Act, 2013 accused is convicted and sentenced to suffer R.I. for seven years and fine of Rs.25,000/- and in case of default he shall suffer R.I. for three months more.

E. On found guilty of the charge of offence under section 5 of Explosive Substances Act, 1908 accused is convicted and sentenced to suffer R.I. for fourteen years and fine of Rs.50,000/- and in case of default he shall suffer R.I. for four months more.

F. On found guilty of the charge of offence under section 7 of the Anti-Terrorism Act, 1997 accused is convicted and sentenced to suffer R.I. for ten years and fine of Rs.30,000/- and in case of default he shall suffer R.I. for two months more.

All the sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.PC was also extended to the accused.

2. Brief facts leading to the filing of instant appeals are that complainant ASI Mehmood Ahmed lodged FIR on 04.04.2014 stating therein that on the same date he along with HC Abdullah, PCs Khabib-ur-Rehman, Muhammad Abid and driver HC Syed Umair were busy in patrolling on Government Mobile No.SP-3733 in the area. During patrolling said ASI/Complainant received a tip-off about the presence of the members of Suni Tehrik being armed with weapons nearby the Nigar Cinema on the road with intention to commit some heinous crime and were making such preparation. On such information, the police party proceeded towards the place informed and reached there around 1400 hours’ time and on the pointation of the spy they found two suspects available there who were encircled by the police party and they started running. They were followed to apprehend them on which both the extortionists/Bhatta Khor took out their pistols and started making direct firing upon the police party with intention to commit their murders. In result such firing the police mobile received bullet mark and the police party narrowly escaped. The police party also returned the firing in their defence where after one accused being armed with weapon was apprehended and other one made his escape good. Accused on inquiry disclosed his name as Zulqarnain alias Suleman son of Umar from whom one 30 bore pistol without number along with three live bullets in its magazine and one in chamber being unlicensed was recovered. On further personal search of accused one Aiwan bomb was recovered from him which was bearing marking No.(80)(33); rupees two hundred were also recovered. He disclosed about the absconding accused as Ibrahim son of not known sector incharge of UC-7 Usmanabad. Four empties of 30 bore and five of SMG were secured from the scene of offence lying over there. The weapons and other recovered arms and ammunition were sealed on the spot and accused as such was arrested and thereafter was brought at police station along with property where three FIRs under separate crime numbers were registered against the accused.

3. After usual investigation, challan was submitted against the accused under the above referred sections. Co-accused was shown as absconder. Trial court declared him as proclaimed offence and framed charge against appellant at Ex.18, to which the appellant did not plead guilty and claimed to be tried.

4. At trial, prosecution examined three witnesses, who produced the relevant record. Thereafter, prosecution side was closed.

5. The statement of the appellant under Section 342 Cr.P.C., was recorded at Ex-24, wherein, he denied the prosecution allegations. Accused/appellant raised plea that he has been involved in this case falsely, on 27.03.2014, he was going to offer Juma Prayers and he was arrested by the Pakistan Rangers, later on, his custody was handed over to the police, who managed the story and foisted the weapons him and registered false cases. Accused did not examine himself on oath nor produced any witness in his defence in disproof of prosecution allegations.

6. Learned trial Court, after hearing the learned counsel for the parties and assessment of evidence available on the record, vide judgment dated 22.04.2015, convicted the appellant as stated above, hence three separate appeals have been preferred arising out of the same judgment.

7. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 22.04.2015 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. By single judgment, we intend to decide the aforesaid appeals as the judgment is common.

9. We have carefully heard the arguments of the learned counsel for the parties and also scrutinized the evidence minutely.

10. Admittedly, no police officer or anyone else was injured in the incident through it was day time incident and place of incident was thickly populated area. Prosecution story appears to be unbelievable. It is claimed by the police officials that they were armed with arms and ammunitions and one accused ran away from the police. It is the question mark about the police officials who participated in the police encounter. We have closely examined the evidence which reflects that appellant surrendered before the police through he was armed with pistol. Thus, there was no question of deterring the police party from discharging their lawful duties of causing obstruction of any sort. It is strange enough that no private person was associated as mashir of arrest and recovery though it has come on record that place of incident is surrounded by houses and shops. PW-1 has deposed that he brought accused and case property to the police station but there was no evidence that one aiwan bomb and pistols were handed over to the Incharge of Malkhana for safe custody. Safe custody of the weapons at Police Station and safe transit have also not been established, which is requirement of the law as held in the case of Kamaluddin alias Kamala vs. The State [2018 SCMR 577], wherein, the Honourable Supreme Court of Pakistan has observed as under:-

“4. As regards the alleged recovery of Kalashinkov 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.”

11. According to the case of prosecution fire hit to the police mobile but said mobile was not produced before the trial court. PW-1, the head of the patrolling party, has stated that after recovery of aiwan bomb he communicated message for BDU to the wireless operator of DIG Office but no evidence of such modern device has been produced before the trial court for satisfaction. There are two versions of the case, one given by the prosecution and another introduced by the accused in his statement recorded under section 324, Cr.PC in which the accused has claimed that he was arrested by the rangers while he was going to perform Juma Prayers and his custody was handed over to the police, who foisted weapons upon him. Unfortunately, IO failed to examine that aspect of the case. Both versions in such a situation are to be in just opposition in the light of evidence brought on record and it is clear that evidence of police officials did not inspire confidence. Defence plea though was not the whole truth yet it had dented the prosecution case. While relying upon the cases of Harchand and others vs. the State (2005 MLD 946) and Muhammad Yusuf vs. The State (2012 YLR 1992), we have no hesitation to hold that neither any encounter had been proved nor there is any evidence to show that attempt was made on police party to commit their murder. Recovery of the aiwan bomb and pistol have also not been establish though the reports were positive but the same could not improve the case of the prosecution. Judgment of conviction and sentence recorded by learned Judge, Anti-Terrorism Court is without reasons and the same is unsubstantial in the law and is liable to be set aside.

12. 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 Muhammad Mansha vs. The State (2018 SCMR 772), the Honourable Supreme Court has observed as follows:-

“4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).”

13. 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, conviction and sentence recorded by the trial court vide judgment dated 22.04.2015 are set aside. Appellant Zulqarnain alias Suleman son of Muhammad Umar is acquitted in FIR No.99/2014, under sections 353, 324, 427, 34 PPC read with section 7 of the Anti-Terrorism Act, 1997, FIR No.100/2014 under section 23(1)(a) of the Sindh Arms Act, 2013 and FIR No.101/2014, under section 4/5 of the Explosive Substances Act, 1908, registered at P.S. Risala. He shall be released forthwith if not required in some other custody case.

J U D G E

J U D G E

Gulsher/PS