THE HIGH COURT OF SINDH AT KARACHI
Special Criminal
Anti-Terrorism Appeal No. 78 of 2014
Present:
Mr.
Justice Naimatullah Phulpoto
Mr. Justice Khadim
Hussain Tunio
Date
of Hearing : 13.09.2017 .
Date
of announcement
of judgment : 18.09.2017 .
Appellant : Mohammad
Jameel through Mr. Tahir Raheem Advocate.
Respondent : The State through Mr. Mohammad
Iqbal Awan DPG.
J
U D G M E N T
NAIMATULLAH
PHULPOTO, J.-
Appellant
Mohammad Jameel was tried by learned Jude,
Anti-Terrorism Court No.1, Karachi in Special Case No.A-29/2013. By judgment
dated 29.09.2014, appellant was convicted under Section 7(ff)
of Anti-Terrorism Act, 1997 and sentenced to suffer 14 years R.I. Appellant was
also convicted under Section 7(c) of Anti-Terrorism Act, 1997 and sentenced to
suffer 10 years R.I and to pay fine of Rs.100,000/-
and in case of default in payment of fine, he was ordered to suffer 6 months
S.I more. All the sentences were ordered to run concurrently. Benefit of
Section 382-B Cr.P.C was also extended to the
appellant.
2. Brief facts of the prosecution case, as
disclosed in the FIR are that SIP Mohammad Riaz was
posted as Incharge of police post Abbas Town, PS Sachal, Karachi. On 13.11.2012, he had left police station
for patrolling along with PC Ali Dino and PC Javed
Iqbal and when the police party reached in village Abdulah
Palari at about 1:10 am, police heard bomb blast.
Police party proceeded to the police post Abbas Town, where it is alleged that at
Al-Asif Police post, HC Mukhtiar
Ali and PC Altaf Ali were lying injured in the Police
Post. SIP Mohammad Riaz was informed that two
culprits had thrown hand grenade upon the police post which caused injuries to
the above named police constables. Both the injured constables were shifted to
Patel Hospital for their treatment. FIR was lodged by SIP Mohammad Riaz on behalf of state at Police Station Sachal. It was recorded vide Crime No. 692/2012 for
offences under sections 324/334/34 PPC & 4/5 Explosive Substances Act, 1908
read with 7 of Anti-Terrorism Act, 1997.
3. After registration of the FIR,
investigation was entrusted to Inspector Pir Bux. He inspected place of incident on 13.11.2012 in
presence of mashirs and prepared such mashirnama. I.O recorded 161 Cr.P.C
statements of the P.Ws. On 28.02.2013, accused Jameel
who was already confined at PS Schal was arrested by
him and interrogated in this case. I.O produced accused before Judicial
Magistrate-IV Malir Karachi for identification parade
on 15.03.2013. Accused was identified and was remanded to jail. Police obtained
permission from the Home Department for trial. I.O collected final medical
certificates from the Medico Legal Officer and two reports from Bomb Disposal
Unit. After usual investigation, challan was
submitted against accused under Section 324/334/34 PPC read with Section 3/4
Explosive Substance Act, 1908 read with Section 7 of Anti-Terrorism Act,
1997. Accused Sher
Alam, Zubair Masood and Pervaiz Masood were shown as absconders and they were declared as
Proclaimed Offenders. After completion of the necessary formalities, case was
ordered to proceed against the present accused.
4. Trial Court framed charge against
accused Mohammad Jameel at Ex.6 under the above
referred Sections. Accused pleaded not guilty and claimed to be tried.
5. At trial
prosecution examined 10 witnesses. Thereafter, prosecution side was closed by
the learned DDPP vide his statement at Ex. 17.
6. Statement of accused was recorded under Section 342 Cr.P.C. at Ex.18. Accused has claimed his false implication
in this case and denied the prosecution allegations. As regards to the
identification of the accused through HC Riasat Ali
and PC Mohammad Akhtar, accused has replied that they
were not the eye witnesses of the incident. Accused has further replied that
P.Ws were police officials, interested and they have
deposed against him falsely. Accused did not examine himself on oath in
disproof of the prosecution allegations. No evidence was adduced in defence.
7. Trial
Court after hearing the learned counsel for the parties and assessment of the
evidence, by judgment dated 29.09.2014, convicted and sentenced the appellant
as stated above and case of the Proclaimed Offenders was kept on dormant file.
8. Learned
counsel for the appellant mainly contended that names of the eye witnesses are
not mentioned in the FIR; that incident was un-witnessed; that it was night
time incident, source of identification of the accused has not been disclosed
by the prosecution; that appellant was arrested in other case on 28.02.2013 but
identification parade was held with the delay of 14 days. It is also argued
that prosecution has failed to prove its case against accused and Trial Court
failed to bring the evidence according to settled principles of law. In support
of his contentions, reliance is placed upon the case of Tariq Pervez vs. The State (1995 SCMR
1345).
9. Mr.
Mohammad Iqbal Awan, learned DPG argued that no doubt actual incident was
un-witnessed, but accused were seen by P.Ws PC Mohammad Akhtar
and HC Riyasat Ali soon after the incident when they
were returning after taking cup of tea. Learned DPG further argued that appellant
was identified by P.Ws in the identification parade held before the Judicial
Magistrate, Malir Karachi. Lastly, it is submitted
that prosecution has proved its case against appellant and prayed for dismissal
of the appeal.
10. From
perusal of the evidence it transpires that HC Mukhtiar
Ali and PC Altaf had sustained injuries in the
incident. HC Mukhtiar has deposed that on 13.11.2012
he was sleeping along with PC Altaf after performing
his duty at Police Post Abbas Town of PS Sachal. At
1:10 am, there was bomb blast and he received injuries so also PC Altaf. Injured witness categorically stated that he had not
seen the culprits of the incident. PC Altaf has also
deposed that he had not seen the culprits of incident. In this case ASI Riyasat Ali has claimed to be eye witness of the case, who
deposed that on 13.11.2012, he was posted as Head Constable at Police Station Sachal. He along with PC Muhammad Akhtar
left police station for Bakhar village and they had
taken tea at Sardar Hotel. After taking tea they were
proceeding to Bakhar village and at 1:10 am, they
found 4 persons on motorcycles, who had thrown something on the Police Post and
there was a bomb blast. Accused persons drove away on their motorcycles.
Thereafter, HC Mukhtiar and PC Altaf
were found lying injured in the police post. Evidence on the same line has been
given by PW-7 HC Mohammad Akhtar. We are unable to
believe the evidence of these eye witnesses for the reasons that they were the
chance witnesses and they have not given sufficient explanation for their
presence around place of incident at mid night time. Moreover, both of them
were not eye witnesses of actual incident. We have several reasons to
disbelieve their evidence firstly they have not disclosed source of
identification of the accused at mid night time, secondly it is unbelievable
that these police officials made no efforts to catch hold accused persons or at
least they could have fired upon the culprits who had thrown bomb at police
post. There was nothing on record that accused persons were previously known to
the police officials on account of their criminal background. Contention of
learned DPG that accused were previously known to the police officials remained
unproved and unsubstantiated when neither criminal background nor involvement
of the appellant has been proved on record, how could the prosecution witnesses
identify accused at odd hours of night without disclosing the source of
identification is a question which went unanswered during trial. Incident had
occurred on 13.11.2012 at 0110 hours, but it was reported to police station at
0320 hours. Distance was 7/8 K.M, delay in lodging of the FIR would also give
rise to the inference that the occurrence has not taken place in the manner
projected by the prosecution and that this time was consumed in making an
effort to give a coherent attire to the prosecution case, which hardly proved
successful. This delay is more fatal when the police station is situated at the
distance of 7/8 K.M from the place of occurrence. Such delay would also
militate against the veracity of the prosecution witnesses when it is not their
case that they had no vehicle to reach the police station soon after
occurrence. Prosecution evidence appears to be unnatural and unbelievable. The standard
of proof should have been far higher as compared to any other criminal case when according to prosecution, it was a police case. It was thus, desirable
and even imperative that such case should have been investigated by some other
agency, as police in such case, could not have been investigators of their own
cause. Such investigation lacks independent character and conviction cannot be
based on the basis of such investigation, when it is riddled with many lacunas
as discussed above. Honourable Supreme Court of
Pakistan in the case reported as Zeeshan @ Shani vs. The State (2012 SCMR 428), has held as under:
10. Escape
of the complainant and the prosecution witnesses also raises serious doubts
about their presence at the spot when according to the prosecution the
assailant fired as many as six shots. The complainant who was sitting next to
the deceased could not have escaped unhurt. Yes, coincidence cannot be ruled
out but in the matrix of this case we would be stretching its arm too long by
attributing his escape to that. Even escape of the assailant does not fit in
with the surrounding when the deceased, complainant and the P.Ws. were
admittedly armed and there is nothing on the record to show as to what
restrained them to retaliate with immediacy, after the assailant fired the
first shot. In the absence of any explanation the story so narrated would not
appear to be credible from any angle it is looked at.
11. 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.
11. As
regards to identification parade through these witnesses is concerned, no
reliance can be placed upon such identification parade held before Mr. Naveed Asghar Civil Judge &
Judicial Magistrate on 15.03.2013 for the reasons that in the cross-examination
Magistrate has avoided to reply that he had granted remand of the accused in
police custody prior to the holding of the identification parade in 13(d) Arms
Ordinance case. Magistrate has also avoided to reply
that face of the accused was muffled when accused was produced before him for
the remand purpose. Moreover, identification parade was not held according to law.
After arrest of the accused nothing incriminating was recovered from him in
this case. It appears that appellant was charged under section 324 PPC read
with Section 7 of Anti-Terrorism Act, 1997, but no trustworthy evidence to prove
its case has been brought on record. Trial Court failed to appreciate prosecution
evidence according to settled principles of law. Evidence of police officials
did not inspire confidence. It would be unsafe to maintain conviction on such
evidence.
12. In this case there are number of infirmities / circumstances
in the prosecution case which create doubt. 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 grace and concession but as a matter of right.”
13. In the view of above, we have come to the
conclusion that the prosecution has failed to prove the aforesaid case against
the appellant Mohammad Jameel beyond any shadow of
doubt. Therefore, we extend benefit of doubt to the appellant Mohammad Jameel and allow Special Criminal Anti-Terrorism Appeal No
78 of 2014. Consequently, the conviction and sentence recorded by the Trial
Court vide judgment dated 29.09.2014 are set aside. Appellant Mohammad Jameel is acquitted of the charges. Appellant shall be
released forthwith, if he is not wanted in some other custody case.
JUDGE
JUDGE
..