HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals No. 280, 281, 282, 283 of 2018

Special Criminal Anti-Terrorism Appeals No. 292, 293, 294, 295, 296, 297 of 2018

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Date of Hearing : 12.04.2019

Date of judgment : 25.04.2019

Appellants : Imtiaz and Saeed through Mr. Qaim Ali Memon Advocate

Ghulam Abbas through Mr. Muhammad Muneer Ahmed Advocate

Syed Irfan Ali through Mr. Sajjad Gul Khatri Advocate

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

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Imtiaz, Ghulam Abbas, Syed Irfan Ali and Saeed appellants were tried by Mr. Muhammad Khan Buriro, Judge, Anti-Terrorism Court No. X Karachi (Special Case Nos. 129 to 136 of 2018). After full-dressed trial, vide judgment dated 27.09.2018, appellants were convicted and sentenced as under:

1. The accused Imtiaz son of Meer Ahmed is hereby convicted for the offence u/s 7(h) of ATA, 1997 r/w S. 353/324 PPC and sentenced to undergo R.I for “10” years with fine of Rs.100,000/-. In default in payment of such fine, he shall suffer further R.I for “06”months.

2. I, further convict the accused Imtiaz for the offence u/s 4/5 Explosive Substance Act R/w section 6(2)(ee) and punishable u/s 7(1)(ff) of ATA, 1997 and sentence him to undergo R.I for “14”years.

3. I also convict the accused Imtiaz for the offence U/s 23(i) A Sindh Arms Act, 2013 and sentence him to undergo R.I for “07”years with fine of Rs.50,000/-. In default in payment of such fine, he shall suffer further R.I for “06” months.

4. The accused Ghulam Abbas son of Wali Dad Khan Niazi is hereby convicted for the u/s 7(h) of ATA, 1997 r/w S. 353/324 PPC and sentenced to undergo R.I for “10” years with fine of Rs.100,000/-. In default in payment of such fine, he shall suffer further R.I for “06”months.

5. I, further convict the accused Ghulam Abbas for the offence u/s 4/5 Explosive Substance Act R/w section 6(2)(ee) and punishable u/s 7(1)(ff) of ATA, 1997 and sentence him to undergo R.I for “14”years.

6. I also convict the accused Ghulam Abbas for the offence U/s 23(i) A Sindh Arms Act, 2013 and sentence him to undergo R.I for “07”years with fine of Rs.50,000/-. In default in payment of such fine, he shall suffer further R.I for “06” months.

7. The accused Syed Irfan Ali son of Syed Rasheed Ali is hereby convicted for the u/s 7(h) of ATA, 1997 r/w S. 353/324 PPC and sentenced to undergo R.I for “10” years with fine of Rs.100,000/-. In default in payment of such fine, he shall suffer further R.I for “06”months.

8. I, further convict the accused Syed Irfan Ali for the offence u/s 4/5 Explosive Substance Act R/w section 6(2)(ee) and punishable u/s 7(1)(ff) of ATA, 1997 and sentence him to undergo R.I for “14”years.

9. I also convict the accused Syed Irfan Ali for the offence U/s 23(i) A Sindh Arms Act, 2013 and sentence him to undergo R.I for “07”years with fine of Rs.50,000/-. In default in payment of such fine, he shall suffer further R.I for “06” months.

10. The accused Saeed son of Hakeem Aziz ur Rehman Bengali is hereby convicted for the offence 7(h) of ATA 1997 R/w 353/324 PPC and sentenced to undergo R.I for “10”years with fine of Rs.100,000/-. In default in payment of such fine, he shall suffer further R.I for “06”months.

11. I also convict the accused Saeed for the offence U/s 23(i) A Sindh Arms Act, 2013 and sentence him to undergo R.I for “07”years with fine of Rs.50,000/-. In default in payment of such fine, he shall suffer further R.I for “06” months.

All the sentences were ordered to run concurrently. Appellants were extended benefit of Section 382-B Cr.P.C.

2. Brief facts of the prosecution case as reflected in the evidence of ASI Muhammad Siddique of P.S Kharadar are that on 27.12.2017, he along with his subordinate staff PCs Abdul Sattar, Muhammad Nawaz, Muhammad Rafiq and Driver PC Masood-ur-Rehman left police station for patrolling. While patrolling, when the police reached at Old Dispensary Road, it was 1245 hours, where ASI Muhammad Siddique received spy information that 04 suspects armed with weapons were standing at Old town Kaagzi Bazar, near Shaan Footwear. On receiving such information, he along with his subordinate staff proceeded towards the pointed place and reached at 1250 hours. The spy informer pointed out the culprits, the police party tried to apprehend the accused persons, but accused persons started firing at the police party with intention to kill. Police party also fired in retaliation. The police party encircled the accused persons and apprehended them. On inquiry, the accused persons disclosed their names as Imtiaz son of Meer Ahmed, Ghulam Abbas son of Wali Dar, Syed Irfan Ali s/o Syed Rasheed Ali and Saeed son of Hakim Aziz-ur-Rehman. ASI recovered one 30 bore pistol along with loaded magazine having two rounds from his right hand, one hand grenade (silver and brown colored) from side pocket of accused Imtiaz. From the personal search of accused Ghulam Abbas, ASI recovered 30 bore pistol along with loaded magazine having 01 round from his right and one hand grenade (silver, brown) from side pocket of his shirt. From personal search of accused Syed Irfan Ali, ASI recovered one 30 bore pistol along with loaded magazine having 02 rounds from his right hand and one hand grenade (silver and brown) from his right side pocket and from the personal search of accused Saeed, ASI recovered one 30 bore pistol along with loaded magazine having 02 rounds from his right hand. Accused persons failed to produce licenses of the pistols. Pistols and grenades were sealed at spot. ASI prepared such mashirnama in presence of mashirs PCs Abdul Sattar and Muhammad Nawaz. ASI informed Akbar Base about recovery of 03 hand grenades, so that BDU could be informed. ASI returned to the Police Station, where he lodged FIRs against accused on behalf of state vide Crime No. 533/2017 u/s 353/324/34 PPC read with 7 Anti-Terrorism Act, 1997 (main case), FIR No.534/2017 u/s 23(1)(a) of Sindh Arms Act 2013, FIR No. 535/2017 u/s 4/5 Explosive Substance Act, 1908 read with Section 7 Anti-Terrorism Act, 1997, FIR No. 536/2017 u/s 23(1)(a) of Sindh Arms Act, 2013, FIR No. 537/2017 u/s 4/5 of the Explosive Substance Act, 1908 read with 7 Anti-Terrorism Act, 1997, FIR No.538/2017 u/s 23(1)(a) of Sind Arms Act, 2013, FIR No. 539/2017 u/s 4/5 of the Explosive Substance Act, 1908 read with 7 Anti-Terrorism Act, 1997 and FIR No. 540/2017 u/s 23(1)(a) of Sindh Arms Act, 2013 respectively.

3. After registration of the FIRs, investigation was entrusted to Inspector Abid Hussain for further investigation, who inspected place of wardat on his pointation and prepared such Mashirnama. SIO recorded 161 Cr.P.C statements of P.Ws, sent pistols and empties to Ballistic Expert. BDU examined explosive. SIO collected reports from experts. On the conclusion of the usual investigation, challan was submitted against accused under the above referred sections.

4. Learned Trial Court amalgamated the aforesaid connected cases with main case bearing Crime No. 533/2017 for joint trial, in terms of Section 21-M of Anti-Terrorism Act, 1997.

5. Trial Court framed Charge against accused under the above referred Sections at Ex.4. Accused pleaded not guilty and claimed to be tried.

6. In order to substantiate the charge, prosecution has examined P.W-01 SIP Muhammad Amir of BDU at Ex.5, P.W-02 ASI Muhammad Siddique at Ex.7, P.W-03 PC Muhammad Nawaz at Ex.9, P.W-04 PI/IO Abid Hussain Ansari at Ex.10. Thereafter, prosecution side was closed vide statement at Ex.11.

7. Statements of accused were recorded under Section 342 Cr.P.C at Ex.12 to 15 respectively, in which they denied the prosecution allegations and claimed false implication in this case. Accused raised plea that P.Ws have deposed against them falsely as they are police officials. Accused Ghulam Abbas, Syed Irfan Ali and Saeed declined to examine themselves on oath in disproof of the prosecution allegations and did not lead evidence in their defence. Accused Imtiaz examined himself on oath u/s 340(2) Cr.P.C at Ex.16 and raised defence plea that he was in police custody before registration of these cases.

8. Trial Court, after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 27.09.2018 convicted and sentenced the appellants as stated above. Thereafter, appellants have preferred these appeals. Hence, through this common judgment, we intend to dispose of instant appeals.

9. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 27.09.2018 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

10. We have heard learned counsel for the parties, the extensive arguments of learned Advocates for the parties are not reflected separately but shall be reflected from the judgment.

11. We have come to the conclusion that that prosecution has failed to establish its’ case against appellants for the reasons that it was the case of spy information. Incident had occurred at old town kaagzi bazar. According to the case of the prosecution, appellants fired upon police party with intention to kill. P.W-01 has admitted in cross-examination that place of incident was thickly populated area and firing continued for 5 to 7 minutes, distance between the police and appellants was hardly 5 to 6 paces, but it is strange and unbelievable not a single injury was caused to either party. Even buildings surrounding to the place of incident were not damaged so also police mobile. As we have mentioned that it was a case of spy information, despite prior information, no efforts were made by ASI Muhammad Siddique, the head of the police party, to call independent person from Bazar to associate them as mashirs in this case. I.O had also failed to examine the persons of the surrounding area in order to satisfy that there was an encounter and cross firing as alleged by the prosecution. We have found that prosecution evidence is contradictory on the point of description of the weapons and explosive substance allegedly recovered from the accused persons. In the Mashirnama of arrest and recover at Ex.7/B, marks and other descriptions have not been mentioned but P.W-01 SIP Muhammad Amir of BDU has mentioned description of rifle grenade. BDU has also mentioned the numbers of grenades at Ex.5/C, 5/D and 5/E respectively, but such numbers/descriptions are not mentioned in the Mashirnama of arrest and recovery. We have also noticed that prosecution has utterly failed to establish safe custody of the weapons at Police Station and their safe transit to the expert. For want of the evidence of safe custody and safe transmission, positive reports of the FSL and BDU would not improve the case of prosecution as held in the case of KAMAL DIN alias KAMALA versus The STATE (2018 SCMR 577).

12. Impugned judgment reflects that appellants were tried under the provisions of Anti-Terrorism Act, 1997, it was night time incident what kind of terror was created by the appellants and to whom has not been established at trial. Absolutely not a single prosecution witness has deposed that appellants had intention to create terror and insecurity in the area. Prosecution evidence is silent regarding application of the provision of Anti-Terrorism Act, 1997. Even otherwise, in the police encounter cases, the standard of proof should have been far higher as compared to any other criminal case, when according to the prosecution it was a case of police encounter. It was, thus, desirable and even imperative that it should have been investigated by some other agency. Police, in this case, could not have been investigators of their own cause. Such investigation which is woefully lacking independent character cannot be made basis for conviction. We are guided by the principle laid down in the case of ZEESHAN @ SHANI versus THE STATE (2012 SCMR 428). Relevant portion is reproduced as under:

“The standard of proof in this case should have been far higher as compared to any other criminal case when according to the prosecution it was a case of police encounter. It was, thus, desirable and even imperative that it should have been investigated by some other agency. Police, in this case, could not have been investigators of their own cause. Such investigation which is woefully lacking independent character cannot be made basis for conviction in a charge involving capital sentence, that too when it is riddled with many lacunas and loopholes listed above, quite apart from the afterthoughts and improvements. It would not be in accord of safe administration of justice to maintain the conviction and sentence of the appellant in the circumstances of the case. We, therefore, by extending the benefit of doubt allow this appeal, set aside the conviction and sentence awarded and acquit the appellant of the charges. He be set free forthwith if not required in any other case.”

13. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as matter of right. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted.” Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230), Muhammad Zaman v. The State (2014 SCMR 749) & Muhammad Mansha v. The State (2018 SCMR 772).

14. For the above stated reasons, we have come to the conclusion that prosecution has miserably failed to bring home the guilt of appellants/accused. Resultantly, conviction recorded by the learned Trial Court vide judgment dated 27.09.2018 is not sustainable under the law and is also liable to be set aside.

15. In the above stated circumstances and reasons, Appeals are allowed. Impugned judgment of conviction is set aside. Appellants Imtiaz son of Meer Ahmed, Ghulam Abbas son of Wali Dad Khan Niazi, Syed Irfan Ali son of Syed Rasheed Ali and Saeed son of Hakeem Aziz-ur-Rehman are acquitted of the charges. They be released forthwith if not required in any other custody case.

16. Before parting with this judgment, we observe that investigation of this police encounter case has been conducted by same police, the Honourable Supreme Court in the case of ZEESHAN @ SHANI versus THE STATE (2012 SCMR 428) has held that in the police encounter cases, it is imperative that such cases should be investigated by some other agency. Therefore, the I.G. Police Sindh Karachi is directed to comply with the said directions. Let copy of the judgment be sent to I.G Police Sindh Karachi for information and compliance.

JUDGE

JUDGE