THE
HIGH COURT OF SINDH AT KARACHI
Special Criminal
Anti-Terrorism Appeals Nos. 44 and 45 of 2022
Special Criminal
Anti-Terrorism Jail Appeal No. 101 of 2022
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Shamsuddin Abbasi
Appellants : Ayub Khan through Mr. Saifullah
advocate
Nemo
for appellant Waliullah @ Nadeem
Respondent : The State through Mr. Mohammad
Iqbal Awan Addl.PG.
Date of Hearing : 24.01.2023
Date of judgment : 24.01.2023
JUDGMENT
NAIMATULLAH PHULPOTO, J.- Ayub
Khan and Waliullah @ Nadeem appellants were tried by learned Judge,
Anti-Terrorism Court-II, Karachi in Special Cases No. 64, 64-A & 64-B of
2021. After full dressed trial, vide judgment dated 07.02.2022, appellants were
mainly convicted and sentenced under section 397, 353 read with 7
Anti-Terrorism Act, 1997.
2. Brief
facts of the prosecution case as mentioned by the trial court in the aforesaid
judgment are as under:
“That he resides with his family in House No.65, Street No.03,
Gosht Market, Quaidabad, Karachi and works in a private company. On the fateful
day i.e. 26.11.2020, he went to Block-09 Gulistan-e-Jauhar, Bakhtawar Goth to
meet his friend Shahid, while leaving his friend, he reached Gulistan-e-Jauhar
around 09:40 p.m. in the middle of Block No. 5 & 6 near Dubai house all of
sudden, two unknown persons came on a motorcycle, over powered him with show of
fire arm, snatched cash amount of Rs.2000/- and one mobile phone containing Sim
No. 03122238177 from him and tried to escape, in the meanwhile police party
headed by ASI Mumtaz Ali, came at the moment, complainant narrated whole story,
upon which police tried to stop for their arrest, but the culprits on seeing
the police party, started firing with intention to kill them. In retaliation
police had also fired in their self-defense, as a result both had fallen down
from motorcycle and were arrested on the spot. One of the accused, the blood was
oozing from his left side calf, on enquiry, who disclosed his name as Nadeem
s/o Ali Muhammad and found one unlicensed pistol of 30 bore from his right
hand, loaded magazine with two live rounds and one in chamber. From his bodily
search Rs.2300/- and Mobile Nokia of white colour was also recovered from his
possession. From the personal search of the other accused Ayoub s/o Painda
Khan, one 30 bore pistol, without number, loaded magazine with one live bullet
and one in chamber recovered from him, which were sealed on the spot. Both
failed to produce license of the pistols as well as license of the Motorcycle
No. KJM-8473 Maker United of black colour was seized by the police u/s 550
Cr.P.C. Police also secured two empties of 30 bore pistol, two empties of 9mm
pistol and three empties of SMG, thereafter injured accused Nadeem was shifted
to Jinnah Hospital through Chippa ambulance. SIP Imtiaz Junejo prepared
such mashirnama of arrest, recovery and
seizure, sealed the pistols separately and brought them at PS where FIR was
lodged by Complainant Ghulam Murtaza s/o Shah Nawaz vide Crime No.866/2021 u/s
397/353/324/186/34 PPC r/w Section 7 ATA, 1997 and on the recovery of
unlicensed pistols SIP Imtiaz had also lodged two FIRs against them vide Crime
Nos.867/2020 and 868/2020 u/s 23(1)(a) of Sindh Arms Act, 2013 separately at PS
Gulistan-e-Jauhar, Karachi.”
3. After
registration of the FIRs on behalf of state, in the main case as well as in the
offshoot cases investigation was started. During investigation, crime weapons
were sent to ballistic expert, positive report was received. On the conclusion
of the investigation, final report was submitted against the appellants under
the above referred sections before learned Administrative Judge, ATCs at
Karachi.
4.
Learned Trial Court amalgamated
the offshoot cases with main case for conducting joint trial, in terms of
Section 21-M of Anti-Terrorism Act, 1997.
5. Trial
Court framed Charge against appellants under the above referred Sections at Ex.3,
to which they pleaded not guilty and claimed to be tried.
6. At
trial prosecution examined seven witnesses, who produced the relevant documents.
Thereafter, learned Asstt. P.G the prosecution side vide statement at Ex.14.
7. Statements
of accused were recorded under Section 342 Cr.P.C at Ex.15 & 16
respectively, in which they denied the prosecution allegations and claimed their
false implication in this case. Both the appellants examined themselves on oath
u/s 340(2) Cr.P.C in disproof of the prosecution allegations. However, they did
not lead any evidence in their defence.
8. Trial Court after hearing the learned counsel for the
appellants, prosecutor and while examining the evidence minutely by judgment
dated 07.02.2022, convicted and sentenced the appellants as stated above.
Hence, the appellants have filed instant appeals against their convictions and
sentences.
9. The facts of the case as well as evidence produced before
the Trial Court find an elaborate mention in the judgment dated 07.02.2022
passed by the Trial Court and therefore, the same may not be reproduced here so
as to avoid duplication and unnecessary repetition.
10. Learned counsel for the appellant mainly contended
that there was police encounter and both the parties, according to the case of
prosecution, fired with sophisticated weapons, but neither a single injury was caused
to the police party nor police mobile was hit; that description of the robbed
articles as well as description of the crime weapons have not been mentioned by
the police officials; that it was night time incident and the complainant has
failed to disclose source of identification of the appellants at night time;
that the weapons recovered from the possession of the appellants were sent to
the Ballistic Expert and report was positive but safe custody of the weapons at
P.S and their safe transmission to the Ballistic Expert have not been proved;
that even incharge of the Malkhana
has not been examined by the prosecution to prove safe custody of the weapons
at the police station; that incident had occurred on the main road and
possibility of the private persons at that time could not be excluded and that
appellants in the statements recorded u/s 342 Cr.P.C have claimed false
implication in this case and denied the prosecution allegations. Lastly, it is
submitted that prosecution has failed to prove its’ case against the
appellants, hence he prayed for their acquittal. In support of his contentions
reliance has been placed upon the cases reported as Gulfam and another vs. The State (2017 SCMR 1189), ZEESHAN
@ SHANI versus THE STATE (2012 SCMR 428) and Mumtaz Ali vs. The State (2011 SCMR
70).
11. Learned
Addl. P.G submitted that after encounter appellants were arrested and crime
weapons were recovered from their possession, which were sent to Ballistic
Expert and positive report was received, evidence of police officials was
trustworthy, he therefore, prayed for dismissal of the appeals.
12. After hearing learned counsel for the parties, we have re-examined
the entire evidence. We have come to the conclusion that prosecution has failed
to prove its’ case against the appellants for the reasons that in police
encounter not a single injury was caused to police party, even scratch was not caused
to the police mobile. Complainant Ghulam Murtaza deposed that on 26.11.2020, he
was going by road to Dubai House, Gulistan-e-Jauhar, Karachi where two persons,
present appellants, appeared on the motorcycle, out of them one was armed with pistol,
both snatched from the complainant one Nokia mobile phone and cash of Rs.2000/-.
Complainant raised cries, police mobile came there and accused/appellants while
seeing the police mobile opened fires at mobile, police also fired in self
defence, in the result, one of the appellant sustained firearm injury and he
fell down from the motorcycle. Police arrested both the accused and recovered
from their possession pistols, cash of Rs.2000/- and one Nokia mobile snatched
from the complainant. Thereafter, complainant lodged FIR against accused
bearing Crime No. 866 of 2020. In the cross-examination complainant relied that
there was police encounter for about 2/3 minutes. He further replied that
accused had run away after snatching mobile and cash from him. From the
evidence of the complainant, it transpired that the complainant has not mentioned
time of incident whereas FIR shows that alleged incident had occurred on
26.11.2020 at 2140 hours. Complainant has failed to mention source of light as
it was night time. Story narrated by the complainant also appears to be highly
doubtful as according to him both the accused opened fires at police but neither
a single injury was caused to the police nor any scratch was caused to the
police mobile, though they fired with sophisticated weapons, on the other hand
appellant Waliullah @ Nadeem sustained fire arm injury. Contention has been
raised on behalf of the appellants that it was a fake encounter. In support of
his contentions rightly reliance has been placed upon the case of Gulfam and another (supra). So far snatching of articles from the complainant is
concerned, complainant has failed to give description of the robbed articles
which were snatched from him. After arrest of the appellants, weapons were sent
to the Ballistic Expert and a positive report was received but we are unable to
rely upon such positive report as safe custody of the crime weapons at police
station and their transmission to the Ballistic Expert have not been
established before the trial Court, which is required by law. Law is
well-settled by now that prosecution is under legal obligation to prove the
safe custody of the recovered weapon and its safe transmission to the Ballistic
Expert as held by the Honourable Supreme Court in the case of KAMAL DIN alias KAMALA versus The STATE
(2018 SCMR 577). Learned Division Bench of this Court in the case of HARCHAND and others versus THE STATE (2005
MLD 946) Karachi, more or less in similar circumstances has held that no police official has
sustained injury in an encounter, prosecution has failed to prove its’ case.
13. In
the case of police encounter, the standard of proof should have been far higher as compared to any other criminal case. It was,
thus, desirable and even imperative that it should have been investigated by
some other agency. Police, in this case, could not have been investigators of
their own cause. Such investigation which is woefully lacking independent
character cannot be made basis for conviction, that too when it is riddled with
many lacunas and loopholes as mentioned above. The same principle has been laid
down by the Honourable Supreme Court in case of ZEESHAN @ SHANI versus THE STATE (2012 SCMR 428).
14. Despite occurrence having taken place near
Dubai house, middle of Blocks 5 & 6 Gulistan-e-Jauhar, Karachi and police
functionaries fired in the police encounter, no body from the public reached
the spot. During encounter, no police functionary received any injury. Plea of
appellant Waliullah @ Nadeem that police had fired at him was never
investigated, instead investigation was conducted by the same police. In absence
of independent investigation, prosecution case is not free from doubt. Rightly
reliance has been placed upon the case of Mumtaz Ali (supra). Relevant portion is produced as under:
“5. Having heard the learned counsel for the
parties and having reappraised the evidence with their assistance, we find that
admittedly the occurrence took place at a public place and according to
Muhammad Umar, SIP (P.W.1), he fired 45 shots in the alleged police encounter
but surprisingly, neither during occurrence nor after the occurrence any one
from public reached the spot. The statement of the other witness namely Akhtar
Hussain, HC (P.W.2) does not improve the prosecution case in any manner and a
bare reading of the same, would show that neither in his statement nor in that
of P.W. 1 there is allegation that appellant fired at the police party. Their
statements are to the effect that after the encounter they reached the spot and
found a person lying dead, one decamped and appellant was lying injured.
Although according to the prosecution, three accused fired at the police party
but surprisingly no member of the police party was injured nor any bullet hit
police vehicle. The consistent plea of the appellant during the trial was that
there was exchange of firing between two parties and he got injured in the
cross firing. There is nothing on record to indicate that this plea was ever
investigated instead the complainant police officer himself investigated the
case. The non-production of medical evidence particularly with regard to injury
received by the appellant is a serious infirmity in the prosecution case as in
absence of that it would not be free from doubt to hold that the appellant
received the injury on account of firing by police party or those were caused
by cross firing between the two parties. Even if the prosecution story is
admitted to be true that there was firing from the side of the accused the
possibility that it was the deceased Shafoo or the absconding accused who fired
at the raiding party, could not be ruled out.”
15. No
doubt evidence of police officials is as
good as of private persons but when presence of private persons is established,
pleas raised by the appellants regarding their false implication and there are
other defects in the case of prosecution, the Court would look into independent
corroboration, which is lacking in this case. We have also noticed that there
are major contradictions in the evidence of prosecution witnesses on material
points and learned Addl. P.G could not explain those contradictions. For the
above stated reasons, prosecution case has been found by us to be highly
doubtful. Learned trial Court failed to appreciate evidence on settled
principles of law.
16. 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
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), Muhammad Zaman
v. The State (2014 SCMR 749) & Muhammad Mansha v. The State (2018 SCMR 772).
17. For
what has been discussed above, we find that prosecution has failed to prove
its’ case against the appellants beyond any reasonable doubt to sustain
conviction. Consequently, these appeals are allowed and
impugned judgment is set aside, appellants Ayub
Khan son of Painda Khan and Waliullah @ Nadeem son of Ali Muhammad are acquitted of the offences, for which they were charged, tried and
convicted by learned trial Court and they be
released forthwith, if not required to be detained in any other custody case.
JUDGE
JUDGE
..