THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals Nos. 166 and 167 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellant : Naveed alias Junaid through Mr. Ghulam Nabi Shar advocate

Respondent : The State through Mr. Mohammad Iqbal Awan Addl.PG.

Date of Hearing : 08.03.2023

Date of judgment : 08.03.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Naveed alias Junaid appellant was tried by learned Judge, Anti-Terrorism Court-I, Karachi in Special Cases No.538 and 538-A of 2021 (FIR No. 895/2021 and FIR No. 896/2021 u/s 353/324/34 PPC r/w Section 7 ATA of 1997 and u/s 23(1)(a) of Sindh Arms Act 2013 registered at PS Sohrab Goth Karachi). After full dressed trial, vide judgment dated 10.09.2022, appellant was convicted and sentenced as under:

(i) Convicted under section 7(h) of Anti-Terrorism Act, 1997 and sentenced to undergo R.I for five years with fine of Rs.20,000/-, in case of non-payment of fine, he was ordered to suffer S.1 for 6 months more.

(ii) Convicted under section 353 PPC and sentenced to undergo R.I for five years with fine of Rs.20,000/-, in case of non-payment of fine, he was ordered to suffer S.I for 6 months more.

(iii) Convicted under section 7(b) of Anti-Terrorism Act, 1997 and sentenced to undergo R.I for ten years with fine of Rs.50,000/-, in case of non-payment of fine, he was ordered to suffer S.1 for 6 months more.

(iv) Convicted under section 324 PPC and sentenced to undergo R.I for ten years with fine of Rs.50,000/-, in case of non-payment of fine, he was ordered to suffer S.1 for 6 months more.

(v) Convicted under section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to undergo R.I for five years with fine of Rs.20,000/-, in case of non-payment of fine, he was ordered to suffer S.I for 6 months more.

All the sentences shall run concurrently. Benefit of section 382-B Cr.P.C is also extended to appellant.”

2. Brief facts of the prosecution case as mentioned by the trial court in judgment are as under:

“2. Brief facts of the of the prosecution case are that on 22.10.2021 complainant ASI Abbas Ali Siyal left PS along with subordinates under entry No.53 on private motorcycle for patrolling. During patrolling at about 0045 hours, when they reached at Service Road, Main Super Highway, near Total Petrol Pump, Sohrab Goth, Karachi, they found two suspects on motorcycle, as such, they were asked to stop, but they accelerated the speed of their motorcycle. The complainant followed the accused persons, who stopped their motorcycle after some distance, alighted from the motorcycle and started firing upon police party with intention to commit their Qatl-e-amd and police also fired in their defence. Complainant tried to apprehend the accused persons, one of the accused became injured and fell down, while his companion escaped from place of incident on motorcycle. Complainant apprehended injured accused, who disclosed his name as Naveed @ Junaid son of Umer Zada and he disclosed name of absconding accused as Aslam @ Lali son of unknown. Complainant recovered one 9.mm pistol No.VYA89930mod910 with four live bullets. On the barrel of pistol SMITH & WESSON SPRING FILED MA USA was written. Accused failed to produce license of the pistol. On the call of the complainant ASI Turab Ali Shah along with subordinate staff reached at place of incident in police mobile and took the injured accused to Abbasi Shaheed Hospital for treatment. Complainant also secured three empties of 9.mm pistol from place of incident, one purse containing Rs.2,500/- were also recovered from accused, as such, he was arrested under memo of arrest and recovery after sealing the case property, hence, present FIRS were registered at police station Sohrab Goth, Karachi.”

3. After registration of the FIRs, investigation of both the cases was conducted, 9.mm pistol and bullets recovered from the appellant and empties collected from the place of incident were sent to the FSL, positive report was received and final reports were submitted before trial court.

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

5. Trial Court framed Charge against appellant under the above referred Sections at Ex.4, to which he pleaded not guilty and claimed to be tried.

6. At the trial prosecution examined 05 witnesses, who produced the relevant documents. Thereafter, prosecution side was closed.

7. Statement of appellant/accused was recorded under Section 342 Cr.P.C at Ex.11, in which he denied the prosecution allegations and claimed his false implication in this case. Appellant neither examined himself on oath u/s 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in his defence.

8. Trial Court after hearing the learned counsel for the appellant, prosecutor and while examining the evidence minutely by judgment dated 10.09.2022, convicted and sentenced the appellant as stated above. Hence, the appellant has filed instant appeals against his convictions and sentences. By this single judgment, we intend to decide both appeals, as same appreciation of evidence is required.

9. Learned counsel for the appellant mainly contended that present incident had occurred on 22.10.2021 at 1245 a.m. and source of light has not been disclosed in the prosecution evidence; that PC Nadeed had fired upon the appellant according to case of prosecution, he was material witness but he was not examined at trial; that his non-examination would be fatal to the case of prosecution in terms of Article 129(g) of Qanun-e-Shahadat Order, 1984. It is further argued that prosecution story appears was unnatural and unbelievable; that there was cross firing with the sophisticated weapons, not a single injury was caused to the police officials; police motorcycle was also not hit, none received injury around the place of incident; that Head Moharir of the police station has also not been examined to prove safe custody and safe transmission of the crime weapon and empties to the expert. It is submitted that with safe custody positive report of the Ballistic Expert cannot be used against the appellant. Lastly, contended that from the place of wardat, blood was not collected which showed that incident had not occurred at the place shown by the prosecution and it gave support to the defence plea that appellant was fired at PS. In support of his contentions reliance has been placed upon the cases reported as Gulfam and another vs. The State (2017 SCMR 1189), ZEESHAN @ SHANI versus THE STATE (2012 SCMR 428) and Mumtaz Ali vs. The State (2011 SCMR 70).

10. Learned Addl. P.G argued that appellant was apprehended at the spot in injured condition; crime weapon was recovered, empties were collected from the place of wardat, the same were sent to the expert and report was positive. All the prosecution witnesses have supported the case of prosecution, he therefore, prayed for dismissal of the appeals.

11. After hearing learned counsel for the parties, we have re-examined the entire evidence. We have come to the conclusion that prosecution had utterly failed to prove its’ case against the appellant for the reasons that incident had occurred on 22.10.2021 at 1245 a.m. (mid night) but source of light has not been disclosed by the prosecution. It has come on record that PC Nadeem had fired upon the appellant but he has not been examined by the prosecution, non-examination of such material witness would be fatal to the case of prosecution in terms of Article 129(g) of Qanun-e-Shahadat Order, 1984. The inference which could be drawn of his non-examination would be that he might has not supported the case of prosecution as held by Hon’ble Supreme Court in the case of Mst. Zarsheda Vs. Nobat Khan (PLD 2022 SC 21). Learned advocate for the appellant has also disputed place of incident and argued that blood was not collected from the place of incident and appellant had raised plea that he was injured by the police at PS. The circumstance of non-collection of blood from the place of wardat has created doubt in the case of prosecution. There was encounter with the sophisticated weapons but it is quite strange and unbelievable that not a single injury/scratch was caused to the police official or even motorcycle in the use of the police officials was also not damaged. Appellant has raised plea that he was fired at PS. Unfortunately I.O did not interrogate this aspect of the case. This is case of PS Sohrabi Goth and SIO of same police station has investigated the case which is against the principles laid down in the case of ZEESHAN @ SHANI versus THE STATE (2012 SCMR 428).

12. As regards to the recovery of pistol from the possession of appellant and empty from the place of wardat is concerned, we are unable to believe such piece of evidence for reasons, that prosecution has failed to prove safe custody and safe transmission of the weapon and empty to the Ballistic Expert. Head Mohrir of the police station was also not examined. Law is well-settled by now that prosecution is under legal obligation to prove the safe custody of the recovered weapon and its safe transmission to the Ballistic Expert as held by the Honourable Supreme Court in the case of KAMAL DIN alias KAMALA versus The STATE (2018 SCMR 577).

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 case of Tariq Pervez v. The State (1995 SCMR 1345).

14. For what has been discussed above, we have come to conclusion that prosecution has failed to prove its’ case against the appellant beyond any reasonable doubt. While extending benefit of doubt, these appeals are allowed and impugned judgment is set aside, appellant is acquitted of the charge and he be released forthwith, if not required to be detained in any other custody case.

15. These are the reasons for the short order announced on 08.03.2023.

JUDGE

JUDGE