Special Criminal Anti-Terrorism
Jail Appeal No.164 of 2016
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Zulfiqar
Ahmad Khan
Appellant: Muhammad
Ajaz alias Tona son of
Muhammad Jawaid through Mr. Muhammad Ilyas Awan, advocate.
Respondent: The
State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh.
Date of Hearing : 16.01.2018
Date of Judgment : 17.01.2018
JUDGMENT
NAIMATULLAH PHULPOTO, J.---
Appellant Muhammad
Ajaz alias Tona was tried
by learned Judge, Anti-Terrorism Court-V, Karachi in Special Cases Nos.151(III)
and 152(iii) of 2015. By judgment dated 29.04.2016, accused Muhammad Ajaz alias Tona was convicted
under section 7(i)(ff) of
the Anti-Terrorism Act, 1997 and sentenced to 14 years R.I. He was also
convicted separately under section 23(1)(a) of the Sindh
Arms Act, 2013 and sentenced to 10 years R.I. and to pay fine of Rs.20,000/-,
in case of nonpayment of fine he was ordered to undergo SI for six months more.
Both the sentences were ordered to run concurrently. 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 01.04.2015 ASI Fakhar Owais was on patrolling duty in the area of P.S. Nabi Bux, when at 12:30 a.m. he
received spy information that one person was standing in suspicious condition
in front of Café Mubarak, Garden Road, Karachi. On the said information, it is
stated that said ASI along with his subordinate staff reached there and on the
pointation of spy information, apprehended the present accused. A bag was hanging
on his shoulder, when his bag was searched, one Awan Grenade wrapped in Khaki
paper and one mini-rifle No.PAW-4264 with magazine containing six rounds were recovered. On the inquiry, he disclosed that weapon was
unlicensed. Accused was arrested. Mashirnama of arrest and recovery was
prepared. Thereafter, accused and case property were brought to the police
station where two FIRs bearing Crimes Nos.151/2015, under section 4/5 of the Explosive
Substances Act, 1908 read with section 7 of the Anti-Terrorism Act, 1997 and
152/2015 under section 23(1)(a) of the Sindh Arms Act,
2013 were registered against the accused on behalf of the State. Investigation
was entrusted to Inspector Hasibullah Qureshi. Custody of accused and case property was also
handed over to him.
3. After usual investigation, challan was
submitted against the accused under the above referred sections.
4. Both the cases were jointly tried in
terms of Section 21-M of the Anti-Terrorism Act, 1997 by the trial Court.
5. Charge was framed against the accused under
section 7(i)(ff) of the
Anti-Terrorism Act, 1997 and section 23(1)(a) of the Sindh Arms Act, 2013. The accused
pleaded not guilty and claimed to be tried.
6. At trial, prosecution examined four (4) prosecution
witnesses. Thereafter, prosecution side
was closed.
7. Statement of accused was recorded under
section 342, Cr.PC in which accused claimed false implication in this case and
denied the prosecution allegations. The accused raised plea that he was picked
up by Rangers officials on 04.03.2015 and he was detained at Mitha Ram Hostel fromwhere his
custody was handed over to P.S. Nabi Bux on 28.03.2015. Accused stated that he belonged to the
political party MQM and he has been involved in this false case. In disproof of
prosecution allegation, on oath he reiterated the same plea.
8. Trial court after hearing the learned counsel for the parties and assessment
of evidence convicted and sentenced the appellant as stated above. Hence this appeal.
9. 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.
10. Learned
counsel for the appellant, mainly contended that it was the case of spy
information, it was not difficult for the police officials to associate the
independent and respectable persons of the locality to witness the recovery
proceedings. It is also argued that the description of the rifle 10AKLOV-33 and
grenade have not been mentioned in the mashirnama of arrest and recovery.
Learned counsel for the appellant further argued that there was overwriting in
the marshirnama of arrest and recovery, which showed
that it was prepared at the police station. It is also contended that safe
custody of the rifle and grenade have not been established at the police
station. Lastly, it is argued that trial court has failed to consider the
defence plea. In support of his contentions he relied upon the cases of Tariq
Pervez V/s. The State (1995 SCMR 1345).
11. Mr. Muhammad Iqbal Awan, learned D.P.G. argued that prosecution has proved its case
against the appellant. He argued that evidence of the police officials is
supported by the report of the Expert, however, he
admitted that there is overwriting in the mashirnama of arrest and recovery
Ex.6/B and discrepancy in the number of rifle and hand grenade.
12. We have
carefully heard the learned counsel for the parties and perused the entire evidence
minutely.
13. We have come
to the conclusion that record reflects that the prosecution case is highly
doubtful for the reason that PW-1 ASI Fakhar Owais has deposed that on 31.03.2015 he was performing his
patrolling duty. He received spy information that a person was standing in
front of Café Mubarak, Garden Road, Karachi in suspicious manner. Police party
proceeded there at 12:30 a.m. where they found the appellant standing; he was
surrounded and caught hold. A bag was hanging on his shoulder. It was opened by
ASI in presence of mashirs. Awan Grenade wrapped in Khaki paper and one
Mini-Rifle No.PAW-4264 with magazine were recovered.
Such mashirnama of arrest and recovery was prepared and produced in evidence as
Ex.6/B. From the close examination of mashirnama of arrest and recovery Ex.6/B
it appears that there is overwriting in the date of preparation of mashirnama.
In the said mashirnama number of rifle has not been mentioned but subsequently
ASI Fakhar Owais has
mentioned its number as 4264 in his evidence. Said ASI has not furnished any
explanation with regard to overwriting in the mashirnama of arrest and recovery
Ex.6/B. PW-2 Muhammad Iqbal has deposed that on 01.04.2015 he received spy
information that explosive substance has been recovered but he proceeded to
police station at 09:30 a.m. Time is not mentioned, at what time he inspected
it, whereas explosive was recovered according to the case of the prosecution on
01.04.2015 at 0035 hours. There is no explanation during that period where hand
grenade was kept. In the cross-examination, PW-2 had replied that No.24 was
written on hand grenade but we have perused the report of the Expert, its number
is not mentioned. This has created doubt in the prosecution case and tampering
with the case property could not be ruled out. Safe custody of grenade and
rifle at police station has not been established so also safe transit to export
for report. In such circumstances, expert report would not improve the case of
the prosecution. Inspector Hasibullah Qureshi had investigated the case. He was examined by the
prosecution as PW-4. In the cross-examination he has admitted that PWs had not
mentioned number of rifle in their 161, Cr.PC statements. Investigation Officer
had failed to interrogate/investigate the case on the point of plea raised by
the accused that he was picked up by the Rangers and was detained at Mitha Ram Hostel as such Investigation Officer has only
completed the formality. In this case, we have noticed several infirmities in
the prosecution case as highlighted above, 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.”
14. 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 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