HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals No. 205, 206 & 210 of 2017

Present

Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Maalik Gaddi

Date of Hearing : 08.12.2017.

Date of Judgment : 15.12.2017.

Appellants : Mushtaq Ahmed through Mr. Ajab Khan Khattak Advocate.

Shah Nawaz @ Guro and Abdul Khalid through Mr. Muhammad Daud Narejo Advocate.

:

Respondent : The State through Mr. Mohammad Iqbal Awan DPG.

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Shahnawaz @ Guro, Mushtaque Ahmed and Abdul Khalid appellants were tried by Mr. Muhammad Jawaid Alam, Judge, Anti-Terrorism Court No. V Karachi in Special Case No. 2724/2016, Special Case No.2725/2016 and Special Case No. 2726/2016. After full-dressed trial, by judgment dated 22.09.2017, appellants were convicted and sentenced as under:-

a) Accused Shah Nawaz @ Guro s/o Muhammad Ishaque is convicted u/s 7(i)(ff) of A.T.A in Crime No. 240/2016 of P.S Gadap and sentenced to undergo 14 years.

b) Accused Mushtaque Ahmed s/o Nooruddin is convicted u/s 7(i)(ff) of A.T.A 1997 in Crime No. 241/2016 of PS Gadap and sentenced to undergo 14 years R.I.

c) Accused Abdul Khalid s/o Murad Baloch is convicted u/s 7(i)(ff) of A.T.A 1997 in Crime No. 242/2016 of PS Gadap and sentenced to undergo 14 years R.I.

Benefit of Section 382-B Cr.P.C was also extended to accused.

2. Brief facts leading to the filing of the appeals are that ASI Mehboob Ali left Police Station along with his subordinate staff on 12.12.2016 for patrolling duty. While patrolling, when the police party reached at Baqai Chowk, main Superhighway, it was 3:00 am, where it is alleged that a car appeared on the Superhighway, it was in suspicious manner, it was stopped by the police. Vehicle was checked, three persons were sitting in the vehicle. They disclosed their names as Shahnawaz, Mushtaque and Abdul Khalid. ASI Mehboob Ali conducted personal search of accused Shahnawaz in presence of mashirs HC Maher Ali and PC Rasool Bux and recovered from the pocket of accused Shahnawaz, one hand grenade, cash and mobile phone. From the pocket of accused Mushtaque, one grenade so also mobile phone and cash were recovered. From accused Abdul Khalid 45 ball Barings, 150 grams explosive powder were recovered. Mashirnama of arrest and recovery and seizure of the car bearing No. AKV006 Indus Corolla was prepared. Thereafter, accused and case property were brought to Police Station Gadap City, Karachi, where it is alleged that FIR bearing Crime No. 240/2016 under Section 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997 was registered against accused Shahnawaz @ Guro, FIR bearing Crime No. 241/2016 under Section 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997 was registered against accused Mushtaque Ahmed and FIR bearing Crime No.242/2016 under Section 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997 was registered against accused Abdul Khalid.

3. Investigation was entrusted to Inspector Faisal Latif on 13.12.2016. It is alleged that I.O visited place of wardat on the pointation of the complainant in presence of mashirs and prepared such Mashirnama. I.O sent the explosive substance and hand grenades to the expert for opinion. Positive report was received. On the conclusion of usual investigation, challan was submitted against the accused under the above referred sections.

4. Learned Trial Court amalgamated the aforesaid cases for joint trial, in terms of Section 21-M of Anti-Terrorism Act, 1997.

5. Learned Trial Court framed charge against accused under Section 4/5 Explosive Substances Act 1908 read with Section 7 Anti-Terrorism Act, 1997. All the three accused pleaded not guilty to charge and claimed trial.

6. In order to substantiate the charge, prosecution examined six witnesses. Thereafter, prosecution side was closed at Ex.18.

7. Statements of accused were recorded under Section 342 Cr.P.C at Ex.19 to 21 respectively. Accused claimed false implication in the case and denied the prosecution allegations. Accused Shahnawaz raised plea that he was arrested by the Rangers on 01.12.2016 from Landhi No.4 when he was going with his family and accused Mushtaque to Thatta. Accused has examined in defence D.Ws Mst. Haleema and Mst. Maryam. Accused Mushtaq has also raised same plea that he was arrested on 01.12.2016 by the Rangers from Landhi No.4, when he was going with the family of Shahnawaz to Thatta. Accused Mushtaque examined DWs. Accused Abdul Khalid has raised plea that he was arrested by Rangers on 04.12.2016 from Landhi. Thereafter, his custody was handed over to the police and explosive weapon was foisted against him. Accused Abdul Khalid examined DW Muhammad Sohail. All the three accused examined themselves on oath in disproof of the prosecution allegations in which they reiterated the same pleas. Accused Shahnawaz in his statement on oath has produced copy of his police custody remand at Ex.22/A in which accused Shahnawaz has raised plea before learned Administrative Judge, ATCs Karachi Division that he has been picked up by the law enforcement agency on 01.12.2016 and false case has been registered against him. DW- Mst. Haleema mother of accused Shahnawaz has deposed that her son was picked up by the Rangers on 01.12.2016 from Landhi No.4 and false case has been registered against accused. She has further deposed that she wanted to file Constitutional Petition and for that purpose, she appeared before this Court and sworn affidavit before Assistant Registrar, Affidavit and Identification Branch, but she could not file Petition as she received threat call from law enforcement agency that in case she filed petition, harm would be caused to her son.

8. Learned Trial Court, after hearing the learned counsel for the parties and examination of the evidence available on record, convicted and sentenced the appellant as stated above, hence this appeal is filed.

9. The facts of these cases as well as evidence produced before the trial Court find an elaborate mention in the Judgment dated 22.09.2017, passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

10. M/S. Ajab Khan Khattak and Muhammad Daud Narejo Advocates for the appellants mainly argued that it was the case of spy information, place of arrest of the accused was Superhighway and adjacent to the place of arrest, there is patrol pump and Baqai University, but no private person was associated as mashir. It is further contended that according to the evidence of the PW-1 ASI Mehboob, Mashirnama of arrest and recovery was prepared by Head Mohrar Muhammad Ashfaq but his name did not transpire in the departure Roznamcha entry Ex.10/A. It is argued that it is clear from Ex.10/A that Mashirnama of arrest and recovery was prepared at the police station. It is further argued that description/numbers of the hand grenades were not mentioned in the Mashirnama of arrest and recovery; that safe custody of the hand grenades at police station and their safe transmission to the expert have not been established; that according to the record, two times case property was sent to the expert and no reason for that exercise has been assigned by the prosecution. It is also argued that there are material contradictions in the evidence of PW-1 ASI Mehboob Ali and PW-2 with regard to the members of the police party, who were on patrolling. Lastly, it is argued that appellants were in the custody of the Rangers since 01.12.2016. Mother of the appellant Shahnawaz had sworn affidavit for filing of the petition, but she was restrained by the Rangers. Trial Court failed to consider defence vidence. Learned counsel for the appellants in support of their contentions has relied upon the case reported as of Tariq Pervez vs. The State (1995 SCMR 1345) and Muhammad Hafeez vs. The State (SBLR 2017 Sindh 2231).

11. Mr. Mohammad Iqbal Awan, learned Addl. PG could not controvert the contention of the defence counsel that descriptions/numbers of the hand grenades have not been mentioned in the Mashirnama. Learned Addl. P.G. admitted that in the departure entry Ex.10/A, name of Head Mohrar Muhammad Ashfaq has not been mentioned, but P.W-1 Mehboob Ali deposed that he had prepared Mashirnama of arrest and recovery. However, learned Addl. P.G argued that evidence of police officials has been rightly relied upon by the trial Court as police officials had no enmity with the appellants to foist hand grenades upon them. He prayed for dismissal of the appeals.

12. We have carefully heard learned counsel for the parties and scanned the entire evidence. We have come to the conclusion that prosecution story appears to be unnatural and unbelievable for the reasons that from perusal of evidence of PW-1 Mehboob Ali and other P.Ws, it transpired that on spy information police party caught hold accused persons who were going in a car at the Superhighway and from their possession two hand grenades and explosive substance were recovered from their pockets. We are unable to rely upon the evidence of the police officials for the reasons that it was 3:00 am night, PW-1 ASI Mehboob Ali failed to disclosed the source of identification and source on which Mashirnama of arrest and recovery was prepared. It has come on record that place of arrest and recovery is surrounded by patrol pump and Baqai University but no effort was made by ASI Mehboob Ali for calling private persons for making them as mashirs of the arrest and recovery. Admittedly, descriptions/numbers of the hand grenades have not been mentioned in the Mashirnama of arrest and recovery. PW-1 ASI Mehboob Ali has deposed that Mashirnama of arrest and recovery was prepared by Head Mohrar Muhammad Ashfaq, but departure entry produced before Trial Court at Ex.10/A reflects that name of Muhammad Ashfaq Head Mohrar in the police party has not been mentioned. Head Mohrar Muhammad Ashfaq was also examined by the prosecution. He has also not deposed that he was one of the member of the police party when accused were arrested at the Superhighway from a car. It is unbelievable that police caught hold accused without any resistance of accused who were armed with hand grenades and explosive substance. As regards safe custody of the hand grenades and explosive substance at the police station and safe transmission to the expert, no evidence at all has been produced by the prosecution. Specific question was put by the defence counsel that no entry regarding safe custody of hand grenades and explosive substance at police station have been produced. Prosecution witness replied that it has not been produced. There was also unexplained delay in sending hand grenades and explosive substance to the expert for report. Appellants have raised defence plea that Shahnawaz @ Guro and Mushtaq Ahmed were arrested on 01.12.2016 by law enforcement agency and appellant Abdul Khalid was arrested on 04.12.2016 by the Rangers from Landhi No.4. It is on record that after registration of the cases, accused were produced before learned Administrative Judge, Anti-Terrorism Courts Karachi for police custody remand on 14.12.2016, accused complained before Court that they were in the custody of Rangers since 01.12.2016. In order to substantiate the defence theory, accused examined themselves on oath before trial Court and produced copy of police custody remand and orders passed on it. Mother of accused Shahnawaz namely Mst. Haleema was also examined. She stated that she intended to file Petition regarding illegal detention of accused by the Rangers and she had sworn affidavit before Assistant Registrar of this Court on 02.12.2016, but she received threat from the law enforcement agency that in case she filed petition, harm would be caused to the appellants and due to fear she could not file. Unfortunately, trial Court did not consider the defence plea and in the cursory manner rejected defence plea. We have also noticed that on the conclusion of the trial, learned Judge, Anti-Terrorism Court called for original departure entry of police station, as departure entry Ex.10/A produced before the Trial Court was without stamp of the concerned Police station. Another departure entry of the same date and time was produced before the trial court at Ex.29/A, in which names of the police party were different. Unfortunately, trial Court failed to record finding on second departure entry knowingly because names of members of police party were almost different in both departure entries and this aspect of the case which goes to the roots of the case was also not considered by the trial Court. It is elementary principle of law that prosecution has to prove its’ case but prosecution has failed to establish its’ case. We are unable to believe the evidence of the police officials without independent corroboration, which is lacking in this case. Moroever, at the time of recovery of hand grenade and ball Barings substance from the pockets of accused on 13.12.2016 at 0300 hours from car, investigation officer did not call Bomb Disposal Unit for examination of explosive weapons at spot. Hand grenades were examined by Bomb Disposal Unit on 14.12.2016 at 1450 hours. Delay in examination has not been explained. Safe custody of hand grenades and Ball Barings at PS, during that period have not been established by cogent evidence. As such tempering with case property could not be ruled out. No question was put to accused persons in their statements recorded under Section 342 Cr.P.C regarding positive report of Bomb Disposal Unit produced before the Trial Court at Ex.14/C. Report issued by the Bomb Disposal Unit dated 04.01.2017 is reproduced as under:-

“As per possible & readable observation that the above mentioned 01 in number Rifle Grenade is EOD Device (Explosive Ordinance Device), if it use with proper technique (Fire by Rifle/Launcher) given loss of life and damage their property. The said Rifle Grenade made safe, packed sealed and handed over to SHO/PI Malik Faisal of PS Airport for case property alongwith clearance certificate signed by BD team and with the advised for safe handling.”

Trial Court has failed to put such material question to the accused for explanation. Omission on the part of the trial Court has caused serious dent in the prosecution case. It is by now settled law that every incriminating piece of evidence has to be put to the accused in his statement u/s 342 Cr.P.C to seek his explanation thereon. In this case hand grenades were recovered from accused but no question regarding positive report of expert was put. In our view, this omission has caused serious blow to the case of prosecution as held in the case of Muhammad Hafeez vs. The State (SBLR 2017 Sindh 2231). Relevant portion is reproduced as under:-

“6. We have considered submissions of the parties and perused the material available on record. In this case the allegations of the prosecution are that from the appellant one rifle grenade was recovered on 03.06.2015 at 0310 hours. In recovery of the alleged grenade from the appellant and its examination by Bomb Disposal Unit on 12.7.2015, there is a gap of 12 days, the prosecution case is silent about the fact qua where during that period the alleged grenade was available and whether it was kept in safe custody or not, since in these circumstances the falsification cannot be ruled out. The record reflects that at the time of recovery the I.O did not call bomb disposal unit to examine the alleged grenade at the spot. Only on 12.07.2015 after almost 12 days of the incident for the first time the alleged rifle grenade recovered from the appellant was handed over to the Bomb Disposal Unit for examination and report. The said report is available as exhibit 8/B (page 85 of the paper book) which shows that after examination, the alleged grenade was packed in plastic bottle and sealed and thereafter handed over to second I.O. Inspector Dhani Bux Mari being the case property. When the evidence of first I.O. P.W-1 Inspector Abdul Khaliq was recorded the said property was not de-sealed to show him for the purpose of identification that it was the same grenade which was recovered from the appellant.

7. Apart from above anomalies we have seen that the statement of the appellant under section 342 Cr.P.C has not been recorded properly. It is by now a settled law that every incriminating piece of evidence has to be put to the accused in his statement under section 342 Cr.P.C to seek his explanation thereon. In the present case the main evidence is that from the appellant a rifle grenade was recovered and to establish that recovered article was in fact a rifle grenade the report of the Bomb Disposal Unit is relevant but surprisingly the said report was not put to the appellant at the time of recording his statement under section 342 Cr.P.C. In our view, this omission has dealt a serious blow to the case of prosecution and in these circumstances the conviction and sentence cannot be maintained.”

13. We have noted a number of infirmities in the prosecution case as highlighted above and have come to the conclusion that prosecution has utterly failed to establish its’ case against appellants. 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.”

14. 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 sentences recorded by the Trial Court vide judgment dated 22.09.2017 are set aside. Appellants Shahnawaz @ Guro, Mushtaque Ahmed and Abdul Khalid are acquitted of the charges. Appellants shall be released forthwith, if they are not wanted in some other custody case.

15. Before parting with this judgment, we are shocked and disturbed to observe that in the case of this nature, accused have been convicted by learned Judge, Anti-Terrorism Court No. V, Karachi in cursory manner without appreciating evidence according to settled principles of law. This phenomena is growing tremendously. Thus cannot be lightly ignored. Learned Judge ATC was only required to sift grain from the chaff in order to reach at just conclusion.

16. Let copy of this judgment be sent to Mr. Muhammad Jawaid Alam, learned Judge ATC through Registrar of this Court for information and future guidance.

JUDGE

JUDGE

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