THE
HIGH COURT OF SINDH AT KARACHI
Special
Criminal Anti-Terrorism Appeals No. 140 and 141 of 2023
Present: Naimatullah
Phulpoto, Acting Chief Justice
Irshad Ali Shah, J
Appellants : Zubair Ahmed and Saleh Muhammad
through Ms. Shabana Chohan advocate
Respondent : The State through Mr. Ali Haider
Saleem Additional Prosecutor General Sindh
Date of Hearing : 27.08.2024
Date of judgment : 27.08.2024
JUDGMENT
NAIMATULLAH PHULPOTO, ACTING
CHIEF JUSTICE.-
Appellants
Zubair Ahmed and Saleh Muhammad were tried by learned Judge, ATC-X, Karachi.
After regular trial, vide judgment dated 19.08.2023, the appellants were
convicted under Section 324/34 PPC and sentenced to undergo 07 years R.I each
and to pay fine of Rs.50,000/- each, in case of default, they were directed to
undergo 01 year R.I. Appellants were further convicted under Section 353/34 PPC
and sentenced to undergo 02 years R.I each and to pay fine of Rs.20,000/- each,
in case of default, they were directed to undergo 06 months R.I. They were also
convicted under Section 427/34 PPC and sentenced to 02 years R.I each and to
pay fine of Rs.20,000/- each, in case of default, they were directed to undergo
06 months R.I. Appellant Zubair Ahmed was also convicted under Section 25 read
with section 23(1)(a) of Sindh Arms Act 2013 and sentenced to undergo 07 years
R.I and to pay fine of Rs.50,000/-, in case of default, he was directed to
undergo 01 year R.I. All the sentences were directed to run concurrently. Appellants
were extended benefit of Section 382-B Cr.P.C.
FACTUAL ASPECTS
2. Brief facts leading to the filing of
the appeals are that on 09.10.2021, SIP Dharmendar of PS AVLC, City Division,
Karachi left police station along with his subordinate staff for patrolling
duty. While patrolling at various places, held Naka Bandi between Chilghazi
Mazaar and Northern Bypass at 0255 hours. It is alleged that a motorcycle on
which two persons were sitting appeared on the road. Police signaled the said
motorcycle to stop but rider of the motorcycle did not stop, the motorcycle
slipped and both accused persons fell down on the ground. Rider of the
motorcycle started firing upon the police party, police also fired in retaliation.
During cross-firing, it is alleged that not a single injury was caused to the
police officials. However, appellant Zubair sustained fire arm shot on his leg.
Police nabbed both the accused persons. On inquiry, injured accused disclosed
his name as Zubair, from his personal search police secured unlicensed 30 bore
pistol one bullet loaded in the magazine and one bullet loaded in its chamber
and cash of Rs.400/-. On inquiry, another accused disclosed his name as Saleh
Muhammad and from his possession police recovered cash of Rs.300/- and his NIC
so also secured a motorcycle without number used by the accused in the
commission of offence. Police also collected 03 empties of 30 bore pistol and
04 empties of SMG from the place of incident in presence of mashirs ASI Shabbir
Azam and HC Allah Ditta. Injured accused Zubair was referred to medical officer
for his examination and certificate. Thereafter, co-accused Saleh Muhammad and
case property were brought to the police station where FIRs bearing Crime No.
1026/2021 for offences punishable under Sections 353, 324, 427, 34 PPC read
with Section 7 ATA of 1997 and Crime No. 1027/2021 for offence punishable under
Section 23(1)(a) of Sindh Arms Act 2013 were lodged on behalf of State.
3. During investigation, crime weapon 30
bore pistol, bullets and empties were dispatched to the Ballistic Expert,
positive report was received. On the conclusion of the usual investigation,
challan was submitted against accused under the above referred sections.
4.
At trial, both cases one relating
to police encounter and another relating to the recovery of unlicensed pistol
of 30 bore from appellant Zubair Ahmed were jointly tried in terms of Section
21-M of Anti-Terrorism Act 1997.
5. Trial Court framed Charge against
accused, they pleaded not guilty and claimed to be tried. In order to
substantiate the charge, prosecution has examined 07 P.Ws who produced the
relevant documents at trial. Thereafter, prosecution closed its’ side.
6. Trial Court recorded statements of
accused under Section 342 Cr.P.C, in which they denied the prosecution’s
allegations and claimed false implication in this case. Accused declined to
examine themselves on oath in disproof of the prosecution allegations and did
not lead evidence in their defence.
7. Trial Court, after hearing learned
counsel for the parties and assessment of the evidence vide judgment dated 19.08.2023
convicted and sentenced the appellants as stated above. Thereafter, appellants
have preferred these appeals. Hence, through this common judgment, we intend to
dispose of instant appeals.
8. Heard arguments at length and
re-examined the entire evidence.
ANALYSIS OF EVIDENCE
9. It is the prosecution evidence that
there was cross-firing with the sophisticated weapons but no police official sustained
firearm injury or even scratch during alleged encounter which appears to be
unbelievable and does not appeal to the prudent mind. On the other hand,
appellant Zubair Ahmed had sustained fire shot injury on his right leg, which
according to appellant Zubair Ahmed has been caused to him by the police
officials in a fake encounter. From the deep scrutiny of evidence, it
transpires that no damage was caused to the motorcycle used by the appellants
in the commission of alleged crime. Police officials did not record or took
photographs when search, seizure and arrest of the appellants was made. Now-a-days,
every police official carries cellular phone. Article 164 of Qanun-e-Shahadat
Order 1984 specifically permits the use of any evidence that may have become
available because of modern devices or techniques and its Article 165 overrides
all other laws as observed in the case of Zahid
Sarfaraz Gill vs. The State (2024 SCMR 934). It was night time incident,
source of light is not mentioned by the police officials in their evidence and
mashirnama of arrest and recovery is also silent on this aspect of the case. In
the mashirnama of arrest and recovery at Ex.8/C, description of the 30 bore
pistol is mentioned as “NEW BORDER SPECIAL MODIFIED CAL 30 BORE”, but report of
the Ballistic Expert is silent about description and it is mentioned in the
report that 30 bore pistol was rubbed number. Addl. P.G could not explain such
omission in the prosecution evidence. Safe custody and safe transmission of the
pistol used in crime has not been established before the trial Court, for the
reason that prosecution failed to examine Incharge Malkhana of concerned police
station. The Investigation officer failed to preserve the finger prints of the
accused and on weapons during course of encounter. P.W-01 Muhammad Bilal Saeed
from whom it was alleged that motorcycle was snatched by the appellants was examined
by the prosecution, he deposed before trial Court that one accused was wearing
helmet whereas, another accused was wearing mask at that time, as such, he
could not identify them. According to the evidence of P.W-02 SIP Dharmendar,
appellant Saleh Muhammad is a disabled person, he was empty handed at the time
of police encounter. There is no evidence that appellant Muhammad Saleh who was
empty handed used criminal force to deter police party from discharge of its
duty. Involvement of disabled person in the present case clearly shows false
implication of appellant Muhammad Saleh. False implication of appellant Zubair
Ahmed, who was injured also cannot be ruled out as according to the case of
prosecution, he fired several shots upon the police but not a single fire hit
to the police party. We have also observed that PW-02 SIP Dharmendar as well as
P.W-07 I.O failed to interrogate the appellants about their presence at the
place of incident at such odd hours of night. There are also major
contradictions in the evidence of prosecution witnesses on material particulars
of the case particularly, the places of patrolling and actual incident. Appellants
in their statements recorded under Sections 342 Cr.P.C have claimed false
implication in this case. In such circumstances, when incident has been shown
at thickly populated area, no private person was associated as mashir of the
arrest and recovery, independent corroboration was essential, which is lacking
in this case. Trial Court failed to appreciate the evidence of police officials
on the settled principles of law.
10. No
doubt, evidence of the police officials cannot be discarded simply because they belong to police force. Where,
however, the fate of the accused persons hinges upon the testimony of police
officials alone, it is necessary to find out if there was any possibility of
securing independent persons at the time. It
would be unsafe to rely upon the evidence of the police officials without
independent corroboration. Judicial
approach has to be cautious in dealing with such evidence, as held in the case
of SAIFULLAH V. THE STATE (1992
MLD 984 Karachi). Relevant portion is reproduced as under:-
“8. The
evidence of police officials cannot be discarded simply because they belong to
police force. In Qasim and others v. The State reported in PLD 1967 Kar. 233,
it was held:
“A police officer
is as good a witness as any other person. The standard of judging his evidence
is the same on which the evidence of any other witness is judged.”
However, in a case of this nature where the fate of
an accused person hinges upon the testimony of police officials alone, it is
necessary to find out if there was any possibility of securing independent
persons at that time. Judicial approach
has to be cautious in dealing with such evidence.”
11. In the case of police encounter, the
standard of proof should have been far higher as
compared to any other criminal case for the reason that it is police 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.
12. For the above stated reasons, prosecution
case has been found by us to be highly doubtful. Learned trial Court failed to
appreciate evidence properly on settled principles of law.
13. 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. Reliance in this respect can be
made upon the case of Muhammad Mansha v.
The State (2018 SCMR 772).
14. 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 Zubair Ahmed son of
Muhammad Azeem and Saleh Muhammad son of Sher 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.
15. These are the
reasons for our short order announced on 27.08.2024, whereby instant Special
Criminal Anti-Terrorism Appeals were allowed.
ACTING CHIEF JUSTICE
JUDGE