HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals No. 240, 241, 242, 243, 244, 245, 246, 247 & 248 of 2016

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Maalik Gaddi

Date of Hearing : 20.11.2017

Date of Judgment : 24.11.2017

Appellants : Ashraf Ali and Rehmat Shah through Mr.Khaleeq Ahmed Advocate.

: Muhammad Hanif and Zahid Hussain through Mr. Nadeem Ahmed Azar .

Respondent : The State through Mr. Mohammad Iqbal Awan Additional Prosecutor General.

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Muhammad Hanif @ Nadeem Kala, Rehmat Shah, Ashraf Ali @ Chotoo and Zahid Hussain appellants were tried by learned Judge, Anti-Terrorism Court No.VI, Karachi in Special Case No.146/2016 (FIR No.07/2016 under Sections 353/324/34 PPC read with Section 7 Anti-Terrorism Act, 1997), Special Case No.147/2016 (FIR No.08/2016 under Section 23(1)(a) of Sindh Arms Act, 2013), Special Case No.148/2016 (FIR No.09/2016 under Section 23(1)(a) of Sindh Arms Act, 2013), Special Case No.149/2016 (FIR No.10/2016 under Section 23(1)(a) of Sindh Arms Act, 2013), Special Case No.150/2016 (FIR No.11/2016 under Section 23(1)(a) of Sindh Arms Act, 2013), Special Case No.151/2016 (FIR No.12/2016 under Section 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997), Special Case No.152/2016 (FIR No.13/2016 under Section 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997), Special Case No.153/2016 (FIR No.14/2016 under Section 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997) & Special Case No.154/2016 (FIR No.15/2016 under Section 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997) registered at Police Station Defence, Karachi. After full-dressed trial, appellants were found guilty. By judgment dated 28.09.2016, appellants were convicted and sentenced as under:-

(i) I hereby convict the accused persons namely Muhammad Hanif @ Nadeem Kala, Rehmat Shah, Ashraf Ali and Zahid Hussain for the offence u/s 353 PPC, hence they shall suffer R.I two (2) years each with fine of Rs.5,000/- each and in case of failure to pay the fine each accused person shall suffer SI two months more.

(ii) I also hereby convict the accused persons namely Muhammad Hanif @ Nadeem Kala, Rehmat Shah, Ashraf Ali and Zahid Hussain for the offence u/s 324 PPC, hence they shall suffer R.I five (5) years each.

(iii) I also hereby convict the accused persons namely Muhammad Hanif @ Nadeem Kala, Rehmat Shah, Ashraf Ali and Zahid Hussain for the offence u/s 6(2)(m) and punishable u/s 7(1)(h) of 7 ATA 1997 and they are sentenced to go R.I five (5) years to each accused person.

(iv) I also hereby convict the accused persons namely Muhammad Hanif @ Nadeem Kala, Rehmat Shah, Ashraf Ali and Zahid Hussain for the offence u/s 6(2)(n) and punishable u/s7(1)(h) of ATA 1997, hence they shall suffer R.I five (5) years to each accused person.

(v) I also hereby convict the accused persons namely Muhammad Hanif @ Nadeem Kala, Rehmat Shah, Ashraf Ali and Zahid Hussain for the offence u/s 6(2)(ee), 27-A and punishable u/s7(1)(ff) of 7 ATA 1997, hence they shall suffer R.I Fourteen (14) years to each accused person and forfeiture of their property.

(vi) I also hereby convict the accused persons namely Muhammad Hanif @ Nadeem Kala, Rehmat Shah, Ashraf Ali and Zahid Hussain for the offence u/s 23-1-A SAA of 2013, hence they shall suffer R.I seven (7) years and fine of Rs.10,000/- each and in case o failure to pay the fine each accused person shall suffer SI four months more.

All the sentences were ordered to run concurrently. Benefit of Section 382-B Cr.P.C was also extended to the appellants.

2. Brief facts leading to the filing of these appeals are that on 05.01.2016 complainant SIP Saleem Khan left Police station along with his subordinate staff for patrolling. When police reached at Kala Pull, complainant received spy information regarding presence of four accused near Defence office situated at DHA Phase-I. At 0400 hours, when police reached at the pointed place, they found four persons there in suspicious condition. Police tried to apprehend them, but the accused fired upon the police. Police also fired in self defence. Thereafter, police succeeded to catch hold the accused persons. On inquiry, accused disclosed their names as Muhammad Hanif @ Nadeem Kala, Ashraf, Zahid and Rehmat Shah. From personal search of accused Muhammad Hanif @ Nadeem Kala, one 30 bore pistol loaded with two live bullets in its magazine and one live bullet in its chamber, one black color bag containing detonator in envelope and polythen bag containing nails, nut bolts, battery in white envelope and explosive substance were recovered. From accused Ashraf Ali, one 30 bore pistol loaded with one live bullet in its magazine and one live bullet in its chamber, one mobile phone, amount of Rs.2210/-, one blue color bag having detonator in envelope and polythen bag containing nails, nut bolts, ball Barings, battery in white envelope and explosive substance were recovered. From accused Zahid Hussain, one 30 bore pistol loaded with one live bullet in its magazine and one live bullet in its chamber, one mobile phone, amount of Rs.500/-, one green color bag containing detonator in envelope, one polythen bag containing nails, nuts and ball Barings, battery in white envelope and explosive substance were recovered. From accused Rehmat Shah, one 30 bore pistol loaded with two live bullets in its magazine, one live bullet in its chamber, one mobile phone, amount of Rs.600/-, one dark blue color bag, containing detonator in envelope and one polythen bag containing nails, nuts, Ball Barings and battery in white envelope and explosive substance were recovered. Mashirnama of arrest and recovery was prepared at spot in presence of mashirs. Thereafter, accused and case property were brought at Police Station where aforementioned FIRs were registered against accused on behalf of state.

3. After usual investigation, Challan was submitted against accused for offences under Sections under Sections 353/324/34 PPC read with Section 7 Anti-Terrorism Act, 1997, 23(1)(a) Sindh Arms Act, 2013 and under Section 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997.

4. Trial Court framed charge against accused under the above referred sections at Ex.3. Accused pleaded not guilty and claimed their trial.

5. At trial, prosecution examined five witnesses, who produced relevant documents to substantiate the charge. Thereafter, prosecution side was closed vide statement at Ex. 14.

6. Statements of accused were recorded under Section 342 Cr.P.C at Ex.15 to 18 respectively. Accused claimed false implication in this case and denied the prosecution allegations. Accused declined to examine themselves on oath in disproof of the prosecution allegations and did not lead evidence in defence.

7. Trial Court after hearing learned counsel for the parties and examination of the evidence available on record, by judgment dated 28.09.2016, convicted and sentenced the appellants as stated above. Hence, these appeals have been filed. By this single judgment, we intend to decide the aforesaid appeals.

8. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the Judgment dated 28.09.2016 passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

9. The extensive arguments of learned counsel for the parties are not recorded separately but the same shall be reflected in discussion.

10. We have carefully heard the learned counsel for the parties and scanned the entire evidence.

11. We have come to the conclusion that prosecution has failed to establish it’s case against appellants for the reasons that it was case of spy information, police officials had sufficient time to call independent and respectable persons of the locality to witness recovery proceedings, but it was not done. It has come on record that there was encounter between the parties with the sophisticated weapons. It is totally unbelievable that during encounter with sophisticated weapons, not a single injury was caused to either side. Even scratch was not caused. There are also material contradictions in the evidence of the SI Saleem Khan P.W-1 on material particulars of the case. SI Saleem Khan has deposed that all the three accused were caught hold by the police officials collectively. PW-2 HC Shabbir Ahmed has deposed that other police officials aimed their weapons at the accused and only SI Saleem Khan caught hold of them. SI Saleem Khan deposed that police officials had made aerial firing at the time of incident. P.W HC Shabbir Ahmed has deposed that straight fires were made by the police party. It appears that description of the explosive substance and pistols have not been mentioned in the Mashirnama of arrest and recovery. Simply, it has been mentioned that weapons were without numbers but FSL report reflects that numbers of the pistols were rubbed. Prosecution has no explanation to clarify such position. It is the matter of record that accused produced copies of the applications submitted before District Judge regarding detention of the accused persons by Ranger officials before registration of the cases. Unfortunately, trial Court failed to examine the defence plea and relied upon the evidence of police officials without application of judicial mind. It appears that no evidence was produced before trial Court with regard to the safe custody of the explosive substance and weapons at the police station. No entry of Malkhana to that extent was produced before the Trial Court. Evidence of police officials was not trustworthy and confidence inspiring. In this case there are number of infirmities/lacunas, which have created serious doubt in the prosecution case. It is settled principle of law 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 persons 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.”

12. For the above stated reasons, while respectfully relying upon the above cited authority, we have no hesitation to hold that prosecution has failed to prove its’ cases against the appellant beyond any shadow of reasonable doubt. Consequently, Appeals are allowed, conviction and sentence awarded by the learned Judge, Anti-Terrorism Court-VI, Karachi vide judgment dated 28.09.2016 are set aside. Appellants Muhammad Hanif @ Nadeem Kala, Rehmat Shah, Ashraf Ali @ Chotoo and Zahid Hussain are acquitted of the charges. They shall be released from custody forthwith, if they are not wanted in some other custody case.

JUDGE

JUDGE