HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals No. 348 and 349 of 2018

 

         Present:      Mr. Justice Naimatullah Phulpoto

                                                                Mr. Justice Irshad Ali Shah

 

 

Date of Hearing                    :              08.07.2019

 

Date of judgment                 :              08.07.2019

 

Appellant                            :                Waqar Ali through Syed Lal Hussain Shah 

    Advocate

 

 

Respondent                         :                  The State through Mr. Mohammad Iqbal

     Awan DPG.

 

 

JUDGMENT

 

NAIMATULLAH PHULPOTO, J- Waqar Ali appellant along with accused Mumtaz Ali @ Zamin (since acquitted) were tried by learned Judge, Anti-Terrorism Court No. X Karachi (Special Cases No. 145 and 145-A of 2018). After full-dressed trial, vide judgment dated 30.11.2018, appellant was convicted under section 7(h) of Anti-Terrorism Act, 1997 read with sections 353/186/324 PPC and sentenced to 10 years R.I and to pay fine of Rs.100,000/-. In case of default in payment of fine, he was ordered to suffer 06 months R.I more. Appellant Waqar Ali was also convicted under section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to 07 years R.I and to pay fine of Rs.50,000/-. In case of default in payment of fine, he was ordered to suffer 06 months R.I more. All the sentences were ordered to run concurrently. Appellant was extended benefit of Section 382-B Cr.P.C.

 

2.         Brief facts of the prosecution case as reflected in the evidence of SIP Irshad Ali are that on 17.05.2016, he along with his subordinate staff PCs Sikandar Ali, Naseer, Javed and Waqas left P.S for patrolling duty. While patrolling, when the police party reached at Papen Park situated at Korangi No.6 near Jelaibi Chowk, the police party saw six persons in suspicious manner, who were coming on three motorcycles. They were signaled to stop their motorcycles, on which they fired at the police party with intention to kill. Police party also fired in retaliation/ self defence, which hit one culprit at his right leg who fell down on the ground, whereas remaining five culprits made their escape good. Complainant SIP Irshad Ali took personal search of injured culprits in presence of mashirs PCs Sikandar and Waqas Ali and recovered one unlicensed 30 bore pistol from his right hand, it was loaded with three live bullets in its’ magazine and one live bullet in chamber. SIP Irshad also recovered Rs.300/- so also one Q Mobile model CE-682 set from injured accused. On enquiry, injured accused disclosed his name as Waqar Ali son of Wilayat Ali. Complainant/SIP collected empties of SMG and 30 bore pistol from the place of incident and prepared such memo of arrest, recovery and seizure in presence of the mashirs and sealed the property at the spot. Thereafter SIP Irshad Ali arranged ambulance and referred injured accused to JPMC for treatment. After returning back from Jinnah Hospital at police station, complainant/SIP Irshad lodged FIR bearing No. 254/2016 against accused persons under sections u/s 353/324/186/34 PPC read with section 7 Anti-Terrorism Act, 1997 and FIR No.255/2016 u/s 23(1)(a) Sindh Arms Act 2013 against accused Waqar Ali on behalf of state.   

 

3.         After registration of the FIRs, investigation was entrusted to Inspector Imtiaz Hussain for further investigation, who inspected place of wardat on the pointation of complainant/ SIP Irshad and prepared such Mashirnama in presence of mashirs. SIO recorded 161 Cr.P.C statements of P.Ws, sent pistol and empties to Ballistic Expert for report. I.O interrogated accused Waqar Ali who disclosed the names of co-accused as Manthar, Bilal, Mumtaz, Javed and one unknown person. On the conclusion of the usual investigation, challan was submitted against accused Waqar Ali and Mumtaz Ali @ Zamin under the above referred sections.

 

4.         Learned Trial Court amalgamated the aforesaid connected cases with main case bearing Crime No. 254/2016 for joint trial, in terms of Section 21-M of Anti-Terrorism Act, 1997.

 

5.         Trial Court framed Charge against both accused under the above referred Sections at Ex.8. Accused pleaded not guilty and claimed to be tried.

 

6.         In order to substantiate the charge, prosecution has examined P.W-01 SIP Irshad Hussain Lodhi, P.W-02 PC Sikandar Ali at Ex.12, P.W-03 HC Allah Ditta at Ex.13, P.W-04 PI/IO Imtiaz Hussain Memon at Ex.15, who produced the relevant documents at trial. Thereafter, prosecution side was closed vide statement at Ex.16.

 

7.         Statements of accused were recorded under Section 342 Cr.P.C at Ex.17 to 18 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 and interested. Accused declined to examine themselves on oath in disproof of the prosecution allegations and did not lead evidence in their defence.

 

8.         Trial Court, after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 30.11.2018 convicted and sentenced the appellant as stated above whereas, co-accused Mumtaz Ali @ Zamin was acquitted of the charge. Thereafter, appellant has preferred these appeals. Both appeals arise out of same judgment and incident, with a common thread are being decided through this single judgment.

 

9.         The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 30.11.2018 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 in the judgment.

 

11.       We have come to the conclusion that that prosecution has miserably failed to prove its’ case against appellant for the reasons that alleged encounter had taken place at Papen Park Korangi No.6, Karachi on 17.05.2016 at 2120 hours and it was case of cross-firing in between accused and police party with sophisticated weapons which continued for about 05 months as is evident from the evidence available on record. Surprisingly, none of the members of the police party, police mobile or any other property or vehicle was injured or hit in the encounter. It is matter of record that offence had occurred during night time, the source of light has not been disclosed by any of the witness at trial. P.Ws No.1 and 2 have deposed that appellant was arrested in the injured condition but evidence of these prosecution witnesses had no support/corroboration of medical evidence. Medical officer who had examined injured accused was not examined at trial, to determine the nature of the injury and weapon used. In the mashirnama of arrest and recovery of the pistol no where it is mentioned that Butt of the pistol was broken. Prosecution could not resolve such ambiguity at trial. We have also observed that in the mashirnama of recovery of the pistol it is mentioned that pistol was without number but Ballistic Expert in his report at Ex.15/E has reported that its’ number was rubbed. Prosecution has failed to establish safe custody of the weapon 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 is held in the case of KAMAL DIN alias KAMALA versus The STATE (2018 SCMR 577). In these circumstances, possibility could not be excluded that alleged pistol has been foisted upon the appellant. P.W-1 Irshad Ali has deposed at trial that private persons were present at the place of incident but neither they were examined during investigation nor produced at trial. At the time of arrest of accused, Q Mobile model No.CE-682 was recovered from the possession of the accused as alleged by the prosecution, but I.O did not bother to collect its’ data for production before the Court. According to the case of prosecution, in all there were six accused persons and police party was in police mobile. It is surprising that five accused persons drove away and police officials could not arrest them at spot.

 

12.       Impugned judgment reflects that appellant was tried under the provisions of Anti-Terrorism Act, 1997, it was night time incident. Absolutely, not a single prosecution witness has deposed that appellant intended 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 appellant/accused. Resultantly, conviction recorded by the learned Trial Court vide judgment dated 30.11.2018 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. Conviction and sentence recorded by learned Judge, Anti-Terrorism Court No. X, Karachi vide judgment dated 30.11.2018 are set aside. Appellant Waqar Ali son of Wilayat Ali is acquitted of the charges in Special Case No.145/2018 (old case No.1307/2016) (FIR No.254/2016 u/s 353/324/186/34 PPC read with section 7 Anti-Terrorism Act, 1997) and Special Case No. 145-A/2018 (old case No.1308/2016) (FIR No.255/2016 u/s 23(1)(a) Sindh Arms Act 2013) registered at P.S Awami Colony, Karachi. Appellant shall be released forthwith, if he is not required in some other case. These are the reasons for the short order announced today on 8th July 2019 which reads as follows:

“Heard arguments. For reasons to be recorded later on, appeals are allowed. Conviction and sentence recorded by learned Judge, Anti-Terrorism Court No. X, Karachi vide judgment dated 30.11.2018 are set aside. Appellant Waqar Ali son of Wilayat Ali is acquitted of the charges in Special Case No.145/2018 (old case No.1307/2016) (FIR No.254/2016 u/s 353/324/186/34 PPC read with section 7 Anti-Terrorism Act, 1997) and Special Case No. 145-A/2018 (old case No.1308/2016) (FIR No.255/2016 u/s 23(1)(a) Sindh Arms Act 2013) registered at P.S Awami Colony, Karachi. Appellant shall be released forthwith, if he is not required in some other case.” 

 

 

JUDGE

 

 

                                               

                                                JUDGE