HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals Nos.42, 43 & 48 of 2017

Special Criminal Anti-Terrorism Jail Appeal No. 82 of 2017

Present

Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Maalik Gaddi

Date of Hearing : 08.11.2017.

Date of Judgment : 13.11.2017.

Appellants : Ali Nawaz appellant through Mr. Nayyer Ziauddin Advocate.

Adil appellant through Mr. Jawed Haleem Advocate.

Nemo for appellant Shahzaib.

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

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Adil, Shahzaib and Ali Nawaz apellants were tried by learned 1^st Additional Sessions Judge Karachi East/ Anti-Terrorism Court in Special case No. 360/2016 (FIR No. 25/2016 under sections 353/324/34 PPC read with Section 7 Anti-Terrorism Act, 1997), Special Case No. 361/2016 (FIR No. 26/2016 under Section 23(1)(a) Sindh Arms Act, 2013 read with Section 7 Anti-Terrorism Act, 1997), Special Case No. 362/2016 (FIR No.27/2016 under Section 23(1)(a) Sindh Arms Act, 2013 read with Section 7 Anti-Terrorism Act, 1997) & Special Case No. 363/2016 (FIR No. 28/2016 under Section under Section 23(1)(a) Sindh Arms Act, 2013 read with Section 7 Anti-Terrorism Act, 1997) registered at P.S Landh.

After full-dressed trial, by judgment dated 19.01.2017, appellants Adil Shahzaib and Ali Nawaz were convicted under Section 353 PPC and sentenced to R.I for 01 year each and to pay fine of Rs.10,000/- each, in case of default, to undergo 02 months SI more. Appellants were also convicted under Section 324 PPC read with Section 7 Anti-Terrorism Act, 1997 and sentenced to R.I 07 years each and to pay fine of Rs.10,000/- each, in case of default to undergo 02 months S.I more. All the sentences were directed to run concurrently. Benefit of Section 382(b) Cr.P.C was also extended to the accused.

2. Brief facts of the prosecution case as disclosed in the FIR are that on 21.01.2016, ASI Jasim Ali along with his subordinate staff left Police Station for patrolling duty. While patrolling at 2330 hours, police party reached near Bus Stop Landhi where it is alleged that a motorcycle on which three persons were sitting appeared there. Police signaled them to stop but the persons who were sitting on the motorcycle started the straight firing upon the police with to kill and deter them from discharging their lawful duties. Police also fired in defence. In the meanwhile, it is stated that motorcycle slipped. It is alleged that all the three accused persons sustained fire arm injuries at their legs during encounter. Accused were apprehended at spot. On inquiry, they disclosed their names as Adil, Shahzaib and Ali Nawaz. From the possession of accused Adil, ASI recovered one without number Pak made 30 bore pistol with one round in chamber and three rounds loaded in magazine. From the possession of accused Shahzaib, ASI recovered one Pak made 30 bore pistol without number, three rounds loaded in magazine and one round in chamber. From possession of accused Ali Nawaz, ASI recovered one without number Pak made 30 bore pistol, loaded with magazine along with two live rounds were recovered. Mobile phones were also recovered from them so also cash amount. All the three accused were required by the police to produce licenses to which they replied in negative. Mashirnama of arrest and recovery was prepared in presence of mashirs. Case property was sealed. Police took motorcycle bearing Registration No. KIH-4450 in custody. Accused and case property were brought to the police station where aforesaid FIRs were registered against accused on behalf of state.

3. During investigation, I.O collected 5 empties of SMG and 3 empties of 30 bore pistols from the place of incident. I.O recorded 161 Cr.P.C statements of the P.Ws. Injured accused were shifted to JPMC for their examination, treatment and certificates. On the conclusion of the investigation, Challan was submitted against accused. Learned Trial Court amalgamated the aforesaid cases for joint trial in terms of Section 21-M of Anti-Terrorism Act, 1997.

4. Learned Judge, Anti-Terrorism Court No.1, framed Charge against accused at Ex. 4 under the above referred sections. Accused pleaded not guilty and claimed their trial.

5. At the trial, prosecution examined five witnesses. Thereafter, learned ADPP closed the prosecution side vide Statement at Ex. 11.

6. Statements of accused under Section 342 Cr.P.C were recorded at Ex.2 to 14 respectively. Accused claimed their false implication in the present cases and denied the prosecution allegations. Accused did not examine themselves on oath in disproof of the prosecution allegations. No evidence was led in defence.

7. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 19.01.2017, convicted and sentenced the appellants as stated above. Separate Special Criminal Anti-Terrorism Appeals were filed by the appellants against the convictions and sentences recorded against them. We intend to decide aforesaid appeals by this single judgment as the same arise out the common judgment dated 19.01.2017.

8. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 19.01.2017 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and 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 come to the conclusion that prosecution has failed to prove its’ case against appellants for the reasons that incident had occurred at 11:30 PM near Bus Stop; source of identification of the accused has not been disclosed by the prosecution. According to the case of prosecution there was police encounter, surprisingly all the three accused sustained fire arm injuries at their legs, not a single injury/scratch was caused to the police officials. Even no bullet/damage was caused to the police mobile or motorcycle of the accused persons. From the place of incident empties were collected but we are unable to understand if prosecution case was true and all the accused had received fire arm injuries, why blood was not found at the place of incident. According to the mashirnama of arrest and recovery, all the pistols were without number but Ballistic Expert report reflects that numbers were rubbed. We asked learned Additional Prosecutor General to explain this ambiguity, but he had no reply. Medical officer Shahzad Ali has been examined by the prosecution. In the cross-examination Medical officer replied that fire arm injuries sustained by the accused appear to have been caused with small weapon and not from SMG. It means evidence of the police officials has been contradicted by the medical evidence for the reasons that according to the prosecution case police officials had official SMGs but accused had sustained injuries not from SMGs but from small weapon. Accused have raised defence pleas but the same were overlooked/ not considered by the learned Trial Court. Moreover, it was night time incident at a lonely place. Element of terrorism was missing in this case. For the above stated reasons, we have no hesitation to hold that evidence of the police officials was not confidence inspiring and it was full of doubts. 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 crates 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 race and concession but as a matter of right.”

11. In the view of above, we have come to the conclusion that the prosecution has failed to prove the aforesaid case against the appellants beyond any shadow of doubt. Therefore, we extend benefit of doubt to the appellants and allow Special Criminal Anti-Terrorism Appeals. Consequently, the conviction and sentence recorded by the Trial Court vide judgment dated 19.01.2017 are set aside. Appellants (1) Adil s/o Mehmood Khan alias Mohammad Khan, (2) Shahzaib s/o Mohammad Ishaque and (3) Ali Nawaz son of Mohammad Yaqoob are acquitted of the charges. Appellants shall be released from custody forthwith, if they are not wanted in some other custody case.

JUDGE

JUDGE