Special Criminal Anti-Terrorism
Jail Appeal No.227 of 2017
Special Criminal Anti-Terrorism
Jail Appeal No.228 of 2017
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Zulfiqar
Ahmad Khan
Appellant: Muhammad
Sagheer son of Muhammad Nazeer through Mr. Qadir Hussain Khan, Advocate
Respondent: The
State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh.
Date of Hearing : 12.01.2018
Date of Judgment : 15.01.2018
JUDGMENT
NAIMATULLAH PHULPOTO, J.--- Appellant Muhammad Sagheer along with Naqash Gul was tried by learned IInd
Additional Sessions Judge/Anti-Terrorism Court, South Karachi in Special Cases
Nos.77/2016 (F.I.R. No.477/2016, registered at P.S. Clifton, Karachi under sections
392, 353, 324, 34 PPC) 78/2016
and 79/2016 (F.I.Rs. Nos.478 and 479 of 2016, registered at P.S. Clifton, Karachi
under section 23(1)(a) of the Sindh Arms Act, 2013).
By judgment dated 14.09.2017, accused Muhammad Sagher
and Naqash Gul were
convicted under section 353 PPC and sentenced to one year R.I. and to pay fine
of Rs.3000/- each, in case of default in payment of fine, they were ordered to
suffer 15 days S.I. Both the accused were also convicted separately under
section 23(1)(a) of the Sindh Arms Act, 2013 and sentenced to one year R.I. and
to pay fine of Rs.5000/- each, in case of default in payment of fine, they were
ordered to suffer S.I. for one month. Benefit of Section 382-B Cr.PC was
extended to accused.
2. Brief facts of the prosecution case as discussed
in the F.I.R. are that on 18.09.2016 at 2215 hours SIP Muhammad Ramzan Javed, serving in traffic
branch was performing his duty at Abdul Sattar Edhi Avenue road where it is alleged that accused on
gunpoint snatched from him his official pistol No.AAHP/781/9MM.
In the meanwhile, Clifton police came there and the accused while seeing the
police party fired upon them with intention to kill. Said police party was
headed by SIP Abdul Lateef. In the retaliation, police also made fires upon the
accused in self defence. Thereafter, accused were arrested and unlicensed
pistols were recovered from their possession. Mashirnama of arrest and recovery
was prepared. Both the accused were brought to the police station where F.I.R.
bearing Crime No.477/2016, registered at P.S. Clifton, Karachi under sections
392, 353, 324, 34 PPC registered against them and separate cases under section
23(1)(a) of the Sindh Arms Act, 2013 were also registered against them. After
usual investigation, challan was submitted against the accused.
3. Learned IInd
Additional Sessions Judge, Anti-Terrorism Court, South Karachi amalgamated
offshoot cases with the main case in terms of Section 21-M of the
Anti-Terrorism Act, 1997 for joint trial. Charge was framed against the accused
on 19.12.2016 under Sections 392, 353, 324, 34 PPC and Section 23(1)(a) of the Sindh Arms Act, 2013. Both the accused pleaded
not guilty and claimed to be tried.
4. At trial, prosecution examined seven (7) prosecution
witnesses. Thereafter, prosecution side
was closed.
5. Statements of accused were recorded under
section 342, Cr.PC in which accused claimed false implication in these cases
and denied the prosecution allegations. Both the accused declined to examine
themselves on Oath under section 340(2) in disproof of prosecution allegations.
No evidence in defence was produced.
6. Trial court after hearing the learned counsel for the parties and assessment
of evidence come to the conclusion that from evidence ingredients of sections 324,
392 PPC and 7 of the Anti-Terrorism Act, 1997 were not attracted. However,
accused were convicted only under sections 353, PPC and 23(1)(a) of the Sindh
Arms Act, 2013 and the trial court sentenced the appellant and co-accused Naqash Gul as stated above.
7. The facts of the case as well as evidence produced before
the trial Court find an elaborate mention in the judgment dated 14.09.2017
passed by the trial court and, therefore, the same may not be reproduced here
so as to avoid duplication and unnecessary repetition.
8. Mr. Qadir Hussain Khan, learned
counsel for the appellant, mainly contended that prosecution evidence with
regard to the main offences under sections 392 and 324, PPC and section 7 of
the Anti-Terrorism Act, 1997 has already been disbelieved by the trial court.
He has further submitted that ingredients of section 353, PPC are not satisfied
from the evidence available on record. It is further contended that prosecution
story was unnatural and unbelievable as none had received fire arm injury
during the incident from either side. It is also argued that the complainant
had received injuries in the incident but no bloodstained earth was collected
from the place of wardat. It is also contended that prosecution has failed to
examine any private witness through the incident had occurred on the main road.
Lastly, it is contended that prosecution case is highly doubtful.
9. Mr. Muhammad Iqbal Awan, learned D.P.G. argued that evidence of the police
officials was trustworthy and reliable. He has further contended that trial
court has rightly appreciated the evidence. However, he has admitted that
during encounter not a single injury was caused to either side. He has opposed
the appeals.
10. We have
carefully heard the learned counsel for the parties and scanned the evidence
available on record.
11. We have come
to the conclusion that prosecution has failed to prove its case against
appellant for the reasons that evidence of PWs SIP Muhammad Ramzan
Javed, Muhammad Amin and Abdul Latif
was not trustworthy and confidence inspiring for the reasons that SIP Muhammad Ramzan Javed has admitted that
there was cross-firing with sophisticated weapons but not a single injury was
caused to either party. Evidence reveals that not a single bullet hit the
vehicle. Source of identification of accused has also not been disclosed in the
evidence. SIP Muhammad Ramzan Javed
has deposed that he had received injuries on his head and
nose but neither blood was found on his clothes nor blood was collected by the
Investigation Officer from the place of wardat. Learned D.P.G. has
admitted that ingredients of section 353 are not satisfied from the evidence,
which is available on the record. We have also found that there was no cogent
evidence against the accused. Trial Court has already come to the conclusion
that ingredients of sections 324, 392 PPC and section 7 of the Anti-Terrorism
Act, 1997 are not satisfied from the evidence available on record. Accused have
raised plea that they have been falsely implicated in this case. In such
circumstances, evidence of independent witnesses was required for recording
conviction against the accused. It has come on record that SIP was checking
vehicles on the main road but no private persons has been examined by the
prosecution to prove its case. We are unable to rely upon the evidence of the
police officials without independent corroboration, which is lacking in this
case. In this case there are several circumstances which have created doubt. In the case of Tariq Pervez V/s. The State (1995 SCMR 1345), the Honourable
Supreme Court has observed as follows:-
“It is settled law that
it is not necessary that there should many circumstances creating doubts. If
there is a single 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 a matter of grace and concession but as a matter of right.”
12. For the above
stated reasons, we have come to the conclusion that prosecution has failed to
prove its case against the appellant. Therefore, while extending the benefit of
doubt, appeals are allowed and the conviction and sentence recorded by the
trial Court are set aside and appellant is acquitted of the charges. Appellant
shall be released forthwith if not required in some other custody case.
J U D G E
J
U D G E
Gulsher/PS