HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals No. 178 & 179 of 2016

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Zulfiqar Ahmad Khan

Date of Hearing : 18.01.2018.

Date of Judgment : 19.01.2018.

Appellant : Sajid Jameel through Mr. Arshad Jamal Siddiqui Advocate.

Respondent : The State through Mr. Mohammad Iqbal Awan DPG.

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Sajid Jameel appellant was tried by learned Judge, Anti-Terrorism Court No.V, Karachi in Special Cases No. 183, 184 & 185 of 2014. After full-dressed trial, appellant was found guilty vide judgment dated 10.06.2016, he was convicted under section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to 07 years R.I and to pay fine of Rs.30,000/-. In case of default he was ordered to undergo 03 months S.I. Appellant was also convicted under Section 7(1)(ff) of Anti-Terrorism Act, 1997 and sentenced to 14 years R.I. Benefit of Section 382-B Cr.P.C was extended to him. Trial Court acquitted the appellant in police encounter case.

2. Brief facts of the prosecution case as disclosed in the FIR are that on 31.12.2014 at about 0500 hours, accused was found standing by the police party at KMC graveyard. Police party was headed by ASI Tariq Mehmood of PS Saeedabad. Accusd was accompanied by his accomplice in the suspicious condition. Police party tried to apprehend the accused persons, but they opened fires upon the police party. Police also fired in self defence. It is stated that accomplice of accused succeeded in running away, however, police caught hold present accused and conducted search in presence of mashirs and recovered from his possession 30 bore pistol with magazine containing three bullets and one hand grenade. Accused had no license for the weapon carried by him. Mashirnama of arrest and recovery was prepared. Case property sealed at spot. Thereafter, accused and case property were brought at Police Station Saeedabad, where three separate FIRs were registered against accused on behalf of state bearing FIR No. 449/2014 u/s 353/324/34 PPC read with Section 7 Anti-Terrorism Act, 1997, FIR No. 450/2014 u/s 23(1)(a) of Sindh Arms Act, 2013 and FIR No. 451/2014 u/s 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997.

3. During investigation, hand grenade and T.T Pistol were sent to the Expert for opinion. Positive reports were received. On the conclusion of the investigation, challan was submitted against accused under the above referred sections in the aforesaid cases.

4. Learned Trial Court amalgamated the aforesaid cases for joint trial, in terms of Section 21-M of Anti-Terrorism Act, 1997.

5. Trial Court framed charge against accused under Sections 7(h) of Anti-Terrorism Act, 1997 and 23(1)(a) of Sindh Arms Act, 2013 read with Section 7(ff) of Anti-Terrorism Act, 1997 at Ex.2. Accused pleaded not guilty and claimed his trial.

6. At trial, prosecution examined four witnesses, who produced relevant documents to substantiate the prosecution case. Thereafter, prosecution side was closed.

7. Statement of accused was recorded under Section 342 Cr.P.C at Ex.10. Accused claimed false implication in the case and denied the prosecution allegations. Accused examined himself on oath in disproof of the prosecution allegations and stated that it was night of 27^th/28^th December 2014 he was sleeping in his house at 3:00 am, 4/5 Ranger personnel came, searched the house and took accused with them. On 30.12.2014 after Eisha prayers he was handed over to Saeedabad Police, who lodged in these false cases. Accused also examined one Muhammad Jameel in his defence.

8. Trial Court after hearing learned counsel for the parties and examination of the evidence available on record, by judgment dated 10.06.2016, convicted and sentenced the appellant as stated above. Hence these appeals are filed. However, case against appellant under Sections 353/324 PPC was not made out.

9. Mr. Arshad Jamal Siddiqui counsel for the appellant mainly contended that description of the hand grenade and pistol have not been provided in Mashirnama of recovery and FIR; there was delay in sending hand grenade and pistol to the Expert for opinion and delay in sending such articles has not been explained. It is argued that trial Court disbelieved the evidence of the prosecution witnesses with regard to first episode of the incident regarding police encounter and ignored defence evidence. Lastly, it is submitted that prosecution case was highly doubtful. In support of his contentions, reliance has been placed upon the case reported as Tariq Pervez vs. The State (1995 SCMR 1345).

10. Mr. Mohammad Iqbal Awan, learned DPG argued that evidence of the police officials was trustworthy and confidence inspiring. Delay in dispatching of the pistol and hand grenade to the Expert would not be fatal to the case of prosecution. He prayed for dismissal of the appeals.

11. After hearing the learned counsel for the parties, we have scanned the entire prosecution evidence. We believe that evidence of police officials cannot be discarded simply because they belong to the police force. The Court should not start with any presumption against them. However, in a case of recovery of arms and hand grenade, where fate of an accused person hinges upon the testimony of police officials alone, it is essential to find out if there was any possibility of securing independent persons at the time of recovery. The conviction or acquittal of an accused person depends upon the credibility of the witnesses. It was the case of spy information, accused was arrested near KMC graveyard and adjacent the place of wardat there is Hub River Road but, no efforts at all were made by complainant ASI Tariq Mehmood to associate any independent person to witness the arrest and recovery. In such circumstances, when defence plea has been raised that his custody was handed over by Rangers to police and recovery has been foisted against him, the Court has to be very careful in weighing evidence of police officials. It is settled principle of law that judicial approach has to be cautious in dealing with such type of cases. We are conscious of the fact that provisions of section 103 Cr.P.C are not attracted to the case of personal search of a person, but in this case accused was arrested near main Road, thus omission to secure independent mashirs from the locality is significant as it was the case of spy information and cannot be brushed aside lightly by this Court.

12. PW-1 ASI Tariq Mehmood has deposed that on 31.12.2014 on spy information, he proceeded to the KMC graveyard where two persons were standing in suspicious manner. He challenged them, who fired upon the police party. Police also fired in self defence. Present accused was caught hold and another accused taking benefit of darkness made his escape good. Now question arises that what was the source of identification of the accused as it was dark night. No source of identification has been disclosed by the police. It is also unbelievable that police party was armed with officials arms and ammunitions how co-accused made his escape good from police. There was encounter with sophisticated weapons between accused and police but none received injury from either side. Even police mobile was also not hit. It has created serious doubt in the case of prosecution. Mere word of the police is not sufficient for recording conviction without independent corroboration, which is lacking in this case. Trial Court, so far first episode of the incident with regard to the police encounter is concerned, rightly acquitted the accused. According to the prosecution evidence, from the possession of the present accused one pistol with two bullets and one hand grenade were recovered but descriptions of the pistol and hand grenade have not been mentioned by ASI Tariq Mehmood in his evidence. Incident occurred on 31.12.2014 at 0500 hours, but hand grenade without detonator was defused by PW-2 Abid Farooq on 11.01.2015. Time has not been mentioned by him in his evidence. Surprisingly, description of the hand grenade/ number has been mentioned in his report at Ex.5/B. Rightly, it is contended before us that tempering of the hand grenade at Police Station could not be ruled out. Pistol was sent to the Expert and positive report was produced at Ex.7/D, such report would not help to the case of prosecution, for the reasons that no fire hit to the police officials and there was no evidence that pistol and hand grenade were kept at Police Station in a safe custody. From close examination of evidence of mashir PC Muhammad Nawaz, it transpired that pistol and hand grenade were not sealed at the spot. As such, no sanctity can be attached to such type of recovery. No doubt, the Sindh Arms Act, 2013 is enacted to curb the proliferation of arms and ammunitions and punishment for possession of any fire arm is extended to 14 years and with fine. The rule for safe administration of criminal justice is “the harsher the sentence the stricter the standard of proof”. Therefore, for the purposes of safe administration of criminal justice, some minimum standards of safety are to be laid down so as to strike a balance between the prosecution and the defence and to obviate chances of miscarriage of justice on account of exaggeration by the investigating agency. Such minimum standards of safety are even otherwise necessary for safeguarding the Fundamental Rights of the citizens regarding life and liberty, which cannot be left at the mercy of police officers without production of independent evidence. It is a known principle of appreciation of evidence that benefit of all favourable circumstances in the prosecution evidence must go to the accused regardless of whether he has taken any such plea or not. Reliance is placed on the case of Muhammad Nawaz and another v. The State and others (2005 PLD Supreme Court 40).

13. In this case, there are numbers of infirmities/lacunas, as highlighted above, which have created serious doubts in the prosecution case. It is settled principle of law that for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez vs. The State (1995 SCMR 1345), wherein the Honourable Supreme Court has held as under:-

“The concept of benefit of doubt to an accused person is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as matter of grace and concession but as a matter of right.”

14. For the above stated reasons, while respectfully relying upon the above cited authorities, we have no hesitation to hold that prosecution has failed to prove its case against the appellant beyond any shadow of doubt. Benefit of doubt is extended to the appellant. Consequently, Appeals are allowed, conviction and sentence awarded by the learned Judge, Anti-Terrorism Court-V, Karachi vide judgment dated 10.06.2016 are set aside. Appellant Sajid Jameel is acquitted of the charges. Appellant shall be released from custody forthwith, if he is not wanted in some other custody case.

JUDGE

JUDGE