HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No.63 of 2023

Special Criminal Anti-Terrorism Appeal No.64 of 2023

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Irshad Ali Shah

Appellant : Mohammad Sameer son of Haq Nawaz through Mr. Shafquat Gul Malik, advocate

Respondent : The State through Mr. Abrar Ali Khichi Additional Prosecutor General Sindh

Date of Hearing : 08.08.2024

Date of judgment : 08.08.2024

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Mohammad Sameer son of Haq Nawaz was tried by learned Judge, Anti-Terrorism Court No.XIII, Karachi in Special Case No.71/2023, arising out of FIR No.1329/2022, registered at P.S. Zaman Town, Karachi, for offences under Sections 324, 353, 186, 34, PPC read with Section 7 of the Anti-Terrorism Act, 1997 and Special Case No.71-A/2023, arising out of FIR No.1330 of 2022, registered at P.S. Zaman Town, for offences under section 23(1)(a) of the Sindh Arms Act, 2013. After full dressed trial, vide judgment dated 31.03.2023, appellant was convicted under Section 324 PPC and sentenced to suffer R.I for 10 years and to pay fine of Rs.50,000/- and in case of default in payment of fine he was ordered to suffer R.I for 04 months more. The property of appellant was forfeited to the Government. Appellant was convicted under Section 353 PPC and sentenced to suffer R.I for 02 years; appellant was convicted under Section 427 PPC and sentenced to suffer R.I for 02 years. Appellant was convicted under Section 23(1)(a) of Sindh Arms Act 2013 and was sentenced to suffer R.I for 07 years and to pay fine of Rs.20,000/-. In case of default he was ordered to suffer R.I for 02 months. Appellant was also convicted under Section 7(h) of ATA 1997 and sentenced to suffer R.I for 10 years and to pay fine of Rs.50,000/-. In case of default he was ordered to suffer R.I for 04 months. All the sentences were ordered to run concurrently. Appellant was extended benefit of Section 382-B Cr.PC.

2. Brief facts leading to the filing of the appeals, as narrated by PW-1 before the trial Court, are that on 25.12.2022 ASI Faiyaz Ahmed was posted at P.S. Zaman Town, he left the police station along with PCs Zulfiqar Ali, Kashif, Umair, Zubair and DPC Salman Qureshi for patrolling in government mobile. After patrolling at different places when police party reached at Chakra Goth, Korangi No.1, where the police noticed three persons on motorcycle in suspicious condition. Accused persons while seeing the police party made straight fires on police party, PC Zulfiqar also fired upon accused person in their self defence from his 9mm pistol. Resultantly, it is stated that one accused sustained firearm injury at his leg. He was caught hold and on inquiry he disclosed his name as Muhammad Sameer. It is stated that remaining two accused succeeded to run away by taking the benefit of dark night. Thereafter, appellant and case property were brought to the police station where FIR was lodged in the main case bearing Crime No.1329/2022, registered at P.S. Zaman Town, Karachi, for offences under Sections 324, 353, 186, 34, PPC read with Section 7 of the Anti-Terrorism Act, 1997 and in connected case FIR bearing Crime No.1330/2022 for offence under Section 23(1)(a) of Sindh Arms Act 2013. Appellant was referred to the medical officer for his examination and certificate. Thereafter, investigation of these cases was conducted by PI Tufail Ahmed Chandio of PS Sachal. On conclusion of investigation challan was submitted against the present appellant, while showing accused Haroon and Wajid as absconders.

3. Learned Trial Court amalgamated the aforesaid connected case with main case for joint trial, in terms of Section 21-M of Anti-Terrorism Act, 1997.

4. Trial Court, on conclusion of trial, after hearing learned counsel for the parties and assessment of the evidence, vide judgment dated 31.03.2023 convicted and sentenced the appellant as stated above. Thereafter, appellant has preferred these appeals. Hence, through this common judgment, we intend to dispose of instant appeals.

5. Learned advocate for the appellant mainly contended that there was cross-firing for about 2/3 minutes but not a single injury or scratch was caused to the police official or police mobile; on the other hand appellant was made victim by the police by causing firearm injury at his leg. It is further submitted that there are material contradictions in the evidence of prosecution witnesses. He referred to the evidence of PW-1. According to the counsel for appellant, PW-1 had deposed that he did not collect the blood from the place of wardat, on the same point PWs 2 and 3 had deposed that blood was collected from the place of incident. It is contended that safe custody and safe transmission of 30 bore pistol have not been established at trial, positive report of ballistic expert would not improve the case of the prosecution; that two accused escaped good though there were six police officials armed with weapons, it was unbelievable. Lastly, it is argued that the prosecution had failed to prove its case against the appellant beyond any shadow of doubt and prayed for acquittal of appellant.

6. Learned Additional Prosecutor General Sindh could not controvert the contentions advanced by the counsel for appellant. However, he argued that appellant has criminal record and opposed the appeals.

7. We have re-examined the entire evidence with the able assistance of the learned counsel for the parties and came to the conclusion that the prosecution has utterly failed to prove its case against the appellant for the reasons that PW-1, who was the head of police party, clearly deposed that blood was not collected from the place of wardat whereas PWs 2 and 3 had deposed that blood was collected from the found at the place of incident, in these circumstance place of incident is doubtful. It is unbelievable that two absconding accused succeeded to run away when the police party was consisting upon six police officials armed with weapons, no plausible explanation has been furnished in this regard. Moreover, it is the case of the prosecution that entire episode was witnessed by police officials on the torch light and said torch light was not produced at trial. PW-1 had deposed that after spot investigation, he brought accused and case property at police station but no-where it is mentioned that he handed over the case property to the Incharge of Malkhana. In these circumstances, prosecution has failed to prove the safe custody and safe transmission of the pistol, as such, positive report of ballistic expert would not improve the prosecution case. There are material contradictions in the evidence of prosecution witnesses on material particulars of the case. Prosecution case is doubtful.

8. It is settled principle of law that for extending benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt, if there is a single 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. In this case there are several circumstances as mentioned above which have created reasonable doubt. Rightly reliance has been placed upon the case of Tariq Pervez v. The State (1995 SCMR 1345).

9. For the above stated reasons, we have no hesitation to hold that prosecution has failed to prove its’ case against the appellant beyond any reasonable doubt to sustain conviction. Consequently, these appeals are allowed and impugned judgment dated 31.03.2023 is set aside. Appellant Mohammad Sameer is acquitted of the offences, for which he was charged, tried and convicted by learned trial Court and be released forthwith, if not required to be detained in any other custody case.

10. These are the reasons for our short order announced on 08.08.2024, whereby instant Special Criminal Anti-Terrorism Jail Appeals were allowed

J U D G E

J U D G E

Gulsher/PS