Special Criminal Anti-Terrorism Appeal
No.2 of 2012
Before:
Mr. Justice Naimatullah Phulpoto
Mr. Justice Zulfiqar Ahmad Khan
Appellants: Rizwan
son of Abdul Ghafoor and Attaullah son of Haji Yaar Muhammad through Mr. Mamoon
A.K. Sherwani, Advocate
Respondent: The
State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh.
Date of Hearing : 07.02.2018
JUDGMENT
NAIMATULLAH PHULPOTO, J.--- Appellants Rizwan son of Abdul Ghafoor and Attaullah son of Haji Yaar
Muhammad
were tried by learned Judge, Anti-Terrorism Court-II, Karachi in Special Case
No.64 of 2011 (F.I.R. No.279/2011,
registered at P.S. Kharadar under sections 147, 148, 149, 452, 395, 436, 353,
324, PPC read with section 7 of the Anti-Terrorism Act, 1997). By judgment
dated 31.01.2012, appellants were convicted under section 7(h) of the
Anti-Terrorism Act, 1997 and sentenced to 5 years R.I. and under section 13(d)
Arms Ordinance, 1965 for 5 years R.I. Benefit of Section 382-B Cr.PC was
extended to the accused.
2. Brief facts of the prosecution case as discussed
in the F.I.R. are that on 08.07.2011 Zeeshan, the complainant in this case, had
gone out of his house to Imam Bargah for offering prayers. He received
information on his cell number that at about 02:45 p.m. 40 to 45 armed persons
set his house on fire and took away the household articles including ornaments
and a licensed Repeater. On hearing this news, complainant went to his home
where he saw armed persons, who were making fires. In the meanwhile, some
persons entered the house of the complainant while taking patrol with them,
soon his house was set on fire. He telephoned police of the area. In the
meanwhile, police and rangers appeared on the scene. It is alleged that the accused
persons started firing upon the police, police also fired in self defence. It
is alleged that two persons were caught hold by the police near that street at
1530 hours. On inquiry, those persons disclosed their names as Rizwan son of Abdul Ghafoor and Attaullah son of Haji Yaar
Muhammad. According to the prosecution case, ASI secured one KK No.1954-8927 from
the possession of accused Rizwan and from the possession of accused Attaullah one 9MM pistol with 10 live rounds. Mashirnama of
arrest and recovery was prepared. Accused and case property were brought to the
police station where F.I.R. No.279/2011 was recorded under sections 147, 148,
149, 452, 395, 436, 353, 324, PPC read with section 7 of the Anti-Terrorism
Act, 1997. Two separate F.I.Rs. were also registered against accused. F.I.R.
No.280/2011 was registered against accused Rizwan and
F.I.R. No.281/2011 was registered against accused Attaullah under section 13(d)
of the Arms Ordinance, 1965 on behalf of the State. After usual investigation,
challan was submitted against the accused under the above referred sections.
3. Learned Judge, Anti-Terrorism Court-II, 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 27.09.2011 under the above referred sections. Both the accused pleaded not
guilty and claimed to be tried.
4. At trial, prosecution examined five (5) 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 prosecution’s allegations. Accused raised plea that they have been
falsely implicated in these cases and recoveries have been foisted upon them
for political reasons.
6. Trial court after hearing the learned counsel for the parties and assessment
of evidence available on record, convicted and sentenced the appellants as
stated above, hence this appeal was filed.
7. The facts of the case as well as evidence produced before
the trial Court find an elaborate mention in the judgment dated 31.01.2012
passed by the trial court and, therefore, the same may not be reproduced here
so as to avoid duplication and unnecessary repetition.
8. During
pendency of the appeal, accused Attaullah expired and proceedings were abated
against him vide order dated 21.04.2017.
9. Mr. Mamoon A. K. Sherwani, learned
counsel for the appellant Rizwan mainly argued that no PW had seen appellant Rizwan setting the house of the complainant on fire; that
despite police encounter none received injury in the incident; that complainant
in his evidence has deposed that the real culprit was one individual called “Fahad”, and complainant had been declared hostile by the
prosecution. It is also argued that there is discrepancy in the
description/number of the KK recovered from the possession of appellant Rizwan
in the mashirnama of arrest and recovery and the report of Ballistic Expert. It
is also contended that house in question was situated in a thickly populated
area but not a single person of the locality has been examined by the
prosecution as eye witness or mashir in this case. Lastly it is argued that
prosecution has failed to prove its case beyond any reasonable doubt. In
support of his contentions, reliance has been placed upon the case of Tariq
Pervez versus the State (1995 SCMR 1345).
10. Mr. Muhammad
Iqbal Awan, learned D.P.G. argued that prosecution examined five witness in support
of its case and they have fully implicated the accused in the commission of
offence. He has argued that complainant did not implicate the appellant as he
was under fear. However, learned D.P.G. admitted that there was no eye witness
of actual incident so also of police encounter.
11. We have
carefully heard the learned counsel for the parties and scanned the evidence
available on record.
12. Record
reflects that it was day time incident. Not a single witness has deposed that
he had seen appellant Rizwan setting the house of the complainant on fire.
Despite police encounter, none received injury. As regards to recovery of KK
from the possession of appellant Rizwan is concerned, in the mashirnama the
number of KK is mentioned as 1954-8927 whereas in the report of Ballistic
Expert it is mentioned as 1954-Fuk-8927. Learned D.P.G. could not explain the
discrepancy/number of KK allegedly recovered from the possession of appellant
Rizwan. Complainant has been declared hostile. Complainant has categorically
deposed that one “Fahad” was involved in the
commission of offence. Therefore, false implication of appellant Rizwan could
not be ruled out. It is the case of the prosecution that police and Rangers
arrived at the place of occurrence and there was encounter but not a single
injury was caused to either party even persons of the locality were not injured
though incident took place in thickly populated area. Prosecution has failed to
examine any independent person of locality as witness. It is not believable for
prudent mind to rely upon such type of prosecution evidence which required
independent corroboration which is lacking in this case. Accused have raised
plea that they have been involved in these cases for the political reasons. In
such circumstances, we are unable to maintain the conviction awarded by the
trial court, without independent corroboration which his 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.”
13. 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, appeal is allowed and the conviction and sentence recorded by the trial court
are set aside and appellant Rizwan son of Abdul Ghafoor 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