HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No.98 of 2016

Special Criminal Anti-Terrorism Appeal No.99 of 2016

Special Criminal Anti-Terrorism Appeal No.100 of 2016

Special Criminal Anti-Terrorism Appeal No.105 of 2016

Special Criminal Anti-Terrorism Appeal No.106 of 2016

Special Criminal Anti-Terrorism Appeal No.107 of 2016

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Maalik Gadi

Appellants: Zubair Ahmed Shaikh son of Shaikh Badaruddin through Mr. Raza Muhammad Raza, Advocate

Raja Israr sonof Haji Razaq through Mr. Naveed Ali, Advocate.

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

Date of Hearing : 16.11.2017

Date of Judgment : 22.11.2017

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellants Zubair Ahmed Shaikh son of Shaikh Badaruddin and Raja Israr son of Haji Razzak were tried by learned Judge, Anti-Terrorism Court-II, Karachi for offences under sections 353, 324, 34, PPC, 23(1)(a) of the Sindh Arms Act, 2013 and 4/5 of the Explosive Substances Act, 1908. After full dressed trial, by judgment dated 02.03.2016, appellants were convicted under section 353, PPC and sentenced to suffer 3 years R.I., under section 7(ff) of Anti-Terrorism Act, 1997 sentenced to suffer 14 years R.I. Both the appellants/accused were convicted under section 23(1)(a) of the Sindh Arms Act, 2013 sentenced to suffer 14 years R.I. and to pay fine of Rs.25,000/- each, in failure to pay the fine, to suffer six months. All the sentences were ordered to run concurrently. Appellants were extended benefit of section 382-B, Cr.PC.

2. Brief facts of the prosecution case as disclosed in the F.I.Rs are that SIP Ahmed Nawaz of P.S. Khawaja Ajmer Nagri lodged F.I.R. No.327/2014 on 09.12.2014 at 0710 hours, alleging therein that he along with his subordinate staff left police station in the Government vehicle/mobile, driven by ASI Haji Bumbraishe, while patrolling when the police party reached at katcha pacca service road, near Nursery, Sector 4/A, North Karachi, where it is alleged that two persons appeared on motorcycle MNH-4464, they were in suspicious manner. Police signaled them to stop for checking purpose but accused persons started firing upon the police with intention to kill, police also fired in self defence. It is alleged that PCs Bashir Ahmed and Wahid Bukhsh fired at the accused, they fell down from the motorcycle; both the accused were apprehended by the police. On inquiry, they disclosed their names as Zubair Ahmed Shaikh son of Shaikh Badaruddin and Raja Israr son of Haji Razzak. Personal search of the accused was conducted. From search of accused Zubair Ahmed Shaikh one hand grenade and one 30 bore pistol loaded, one bullet in chamber and two in magazine and from accused Raja Israr, one hand grenade and one 30 bore pistol loaded, one bullet in chamber and one in magazine. Both accused were inquired about licenses for the weapons carried by them to which they disclosed that they have no licenses. Accused were arrested, mashirnama of arrest and recovery was prepared. Pistols were sealed at the spot. Thereafter accused and case property were brought to the police station where F.I.R. bearing Crime No.327/2014 was registered against the accused on behalf of the State under sections 353, 324, 34 PPC at P.S. Khawaja Ajmer Nagri. Four separate FIRs regarding recovery of the hand grenades and 30 bore pistols were lodged bearing Crimes Nos.328, 329, 330 and 331 of 2014.

2. After registration of aforesaid crimes/cases against the appellants/accused, investigation was entrusted to IO Abdul Wahab Shaikh. IO dispatched hand grenades and pistols for examination and report. IO recorded 161 Cr.PC statements of the PWs. On the conclusion of the investigation, challan was submitted against the accused under the above referred sections.

3. Learned Judge, Anti-Terrorism Court-II, Karachi amalgamated connected cases with the main case beaering F.I.R. No.327/2014 under sections 324, 353, 34, PPC read with section 7 of the Anti-Terrorism Act, 1997 in terms of Section 21-M of the Anti-Terrorism Act, 1997. Learned Judge, Anti-Terrorism Court-II framed charge against the accused under the above referred sections. Both the accused pleaded not guilty and claimed to be tried.

4. In order to substantiate the charge, prosecution examined PW-1 Inspector Masab Hussain at Ex.P/1, PW-2 SIP Ahmed Nawaz at Ex.P/7, PW-3 SIP Munir Ahmed at Ex.P/17, PW-4 Inspector Abdul Wahab Shaikh at Ex.P/18. Thereafter, prosecution side was closed at Ex.25.

5. Statements of accused were recorded under Section 342 Cr.P.C at Ex-26 and 27, in which both the accused claimed false implication in these case and denied the prosecution allegations. Accused Raja Israr raised plea that on 06.12.2004 at 03:30 hours he was picked up from his house and false cases were registered against him. Accused Zubair Ahmed Shaikh in a question what else he has to say? replied that he was picked up from his house on 06.12.2014 at 03:30 hours and hand grenade ad pistol were foisted upon him. Both accused did not examine themselves on oath in disproof of prosecution allegations. Accused Raja Israr did not examine in his defence. However, accused Zubair Ahmed Shaikh has examined in his defence DW Umair Ali, who deposed that on the night of 6^th/7^th December, 2014, accused Zubair Ahmed Shaikh was picked up from his house in his presence.

6. Trial court after hearing the learned counsel for the parties and assessment of evidence available on record, convicted and sentenced the appellants/accused as stated above.

7. The facts of these cases as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 02.03.2016 passed by the trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. The extensive arguments of learned advocates for appellants and Deputy Prosecutor General Sindh are not recorded separately but same shall be reflected during the course of recording findings in this case.

9. From the close scrutiny of the evidence, we have come to the conclusion that prosecution has failed to prove its case against the appellants/accused for the reasons that according to the evidence of the complainant SIP Ahmed Nawaz, police had recovered from possession of accused Zubair Ahmed Shaikh, 30 bore pistol, it was loaded, one bullet was in chamber and two in magazine, one hand grenade was also recovered from him. He has further deposed that from possession of accused Raja Israr, one 30 bore pistol, loaded with bullet in its chamber and one in magazine, so also one hand grenade were recovered. Mashir has also deposed on same line but evidence of complainant and mashir have been contradicted with report of FSL. Inspector Abdul Wahab Shaikh has produced the report of Ballistic Expert at Ex.P/22, which reflects that there was one 30 bore pistol bearing No.AR1373, it was sent to the expert for examination and report and another 30 pistol, its number was rubbed. According to the prosecution case, both the pistols were without number. FSL report reflects that pistol recovered from accused Raja Israr was 30 bore bearig No.AR1373 and 30 bore pistol recovered from accused Zubair Ahmed Shaikh, its number was rubbed but in the mashirnama of arrest and recovery as well as evidence of the complainant and mashirs both the weapons were without number. It has also come on record that there was police encounter and there was cross firing with sophisticated weapons but not a single injury was caused to any of the parties. There are also material contradictions in the evidence of PWs, with regard to the number of fires made by the police officials and empties collected from the place of wardat. Defence plea has been raised by the accused that they were picked up by the police from the house before this incident, such plea has not been considered by the trial court. In these circumstances, we are unable to rely upon the evidence of the police officials without independent corroboration, which is lacking in this case. Report of the expert falsifies the version of the police officials. Evidence of police officials did not inspire confidence and prosecution story appears to be unnatural and unbelievable. According to the case of prosecution, accused had fired upon the police party. Investigation should have been conducted by some other agency.

10. No doubt, the Sindh Arms Act, 2013 is enacted to curb the proliferation of arms and ammunitions and punishment for possession of any fire arm is extended to 14 years and with fine. The rule for safe administration of criminal justice is; the harsher the sentence the stricter the standard of proof. Therefore, for the purposes of safe administration of criminal justice, some minimum standards of safety are to be laid down so as to strike a balance between the prosecution and the defence and to obviate chances of miscarriage of justice on account of exaggeration by the investigating agency. Such minimum standards of safety are even otherwise necessary for safeguarding the Fundamental Rights of the citizens regarding life and liberty, which cannot be left at the mercy of police officers without production of independent evidence.

11. As regards to the recovery hand grenade from the possession of accused is concerned, all the police officials have deposed that hand grenade were recovered but the description/numbers of the hand grenade have not been mentioned in mashirnama of arrest and recovery and FIRs. When these hand grenades were sent to Bomb Disposal Unit expert with the delay of 18 days, it is reflected in the report that these hand grenades had numbers and those numbers have been mentioned as ARGES69 and ARGES-69, S. No.H/89, which clearly shows that there was tampering with the case property and no reliance can be placed upon such type of recoveries. Surprisingly, trial court failed to examine the defence plea, deeply. Trial court has utterly failed to examine the evidence according to the settled principles of law. Trial court did not bother to see the punishment of section 353, PPC, which is punishable upto two years but trial court has awarded sentence of three years, such sentence is not sustainable under the law.

12. In these cases, there are circumstances as highlighted above which have created serious doubt in the prosecution case. Under the law, a single circumstance which creates doubt is sufficient to extend benefit of doubt in favour of the accused as held in the case of in the case of Tariq Pervez V/s. The State (1995 SCMR 1345). Relevant portion is reproduced as under:-

“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. On overall assessment of entire evidence in the case and on considering of the surrounding circumstances, we are of the considered view that case against the appellants is doubtful in nature. Accordingly, we extend benefit of doubt to accused and acquit appellants/accused Zubair Ahmed Shaikh son of Shaikh Badaruddin and Raja Israr son of Haji Razak from the charge. The conviction and sentence recorded against the appellants are set aside. The appellants shall be released forthwith if not required in any other case.

J U D G E

Gulsher/PS