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

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