THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Jail Appeal No. 84 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellant : Kashif @ Shahnawaz through Mr. Habib-ur-Rehman advocate

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

Date of Hearing : 26.01.2023

Date of judgment : 26.01.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Kashif @ Shahnawaz appellant was tried by learned Judge, Anti-Terrorism Court-XX, Karachi in Special Case No.186/2021 (FIR No. 103/2021 u/s 353/324/186/34 PPC r/w Section 7 ATA, lodged at PS Tipu Sultan) and Special Case No. 186-A/2021 (FIR No. 104/2021 u/s 23(1)(a) of Sindh Arms Act 2013 lodged at P.S Tipu Sultan). After regular trial, vide judgment dated 29.03.2022, appellant was convicted under Section 324 PPC read with section 7 ATA of 1997 and sentenced to undergo R.I for 05 years and to pay fine of Rs.20,000/- and in case of default, he was directed to undergo R.I for 06 months more; he was also convicted under Section 353 PPC and sentenced to undergo 01 year R.I and he was further convicted under section 23(1)(a) of Sindh Arms Act 2013 and sentenced to undergo 05 years R.I and to pay fine of Rs.20,000/- and in case of default he was directed to undergo 06 months S.I. All the sentences were ordered to run concurrently. Appellant was also extended benefit of Section 382(b) Cr.P.C.

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

“The facts of the prosecution case are that on 13.03.2021, complainant ASI Amir Shahzad was on patrolling duty along with his subordinate staff and during such patrolling when they reached at near to Drainage (Ganda Nala) Darul Aman Housing Society Block 7/8 Karachi, when it was about 0015 hours they saw two culprits on motorcycle coming towards them, they signaled them to stop but the culprits, who after seeing police party accelerated their motorcycle and started making fire shots at police party with an intention to commit their murder and in response to such fire shots made by the accused the police also made fire shots in their defence and during such cross-firing one of the accused persons received fire arm injuries and fell down on the ground and another accused fled away while leaving his motorcycle on the spot, later injured accused was apprehended on the spot. On an inquiry the injured accused disclosed his name as Kashif @ Shahnawaz and he was found to be injured and received fire arm injuries on his right arm. The personal search of the injured accused was conducted which led to the recovery of a pistol of 30 bore loaded with two live bullets in its magazine and one live bullet in its chamber from his possession. His further personal search was also conducted which led to the recovery of one mobile phone touch screen Samsung, one black colour mobile phone, G-five mobile phone, simple mobile phone and Rs.110/-. The accused failed to produce any license of the weapon. During exchange of firing the police constable Muhammad Owais had also received fire arm shot on his bullet proof jacket. The police also secured three empties of 30 bore, six empties of 9mm bore and one empty of SMG from the place of incident. The motorcycle bearing No. KDQ-1451 was also seized u/s 550 Cr.P.C by the police at the spot. Thereafter, his arrest was made by the police accordingly.”

3. After registration of the FIRs on behalf of state, investigation was carried out, unlicensed pistol recovered from the appellant was sent to the Ballistic Expert, positive report was received and on conclusion of the investigation final reports were submitted before learned Administrative Judge, ATCs at Karachi.

4. Learned Trial Court amalgamated the offshoot cases with main case for conducting joint trial, 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 trial prosecution examined six witnesses, who produced the relevant documents. Thereafter, learned Asstt. P.G the prosecution side vide statement at Ex.13.

7. Trial Court recorded statement of accused under Section 342 Cr.P.C at Ex.14, in which he denied the prosecution allegations and claimed his false implication in these cases. 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 29.03.2022, convicted and sentenced the appellant as stated above. Hence, the appellant has filed instant jail appeal against his conviction and sentence recorded by the trial Court.

9. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 29.03.2022 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

10. Learned counsel for the appellant mainly argued that incident had occurred on 13.03.2021 at 0015 hours (midnight) at Ganda Nala, Dar-ul-Aman Society Block 7/8, Karachi and source of light has not been mentioned by the prosecution witnesses; that there was indiscriminate firing from both the sides but only appellant sustained injury at his right arm, not a single injury was caused to the police officials; that according to the prosecution case, one culprit ran away from the police party safely which made the case of prosecution doubtful; that unlicensed pistol was recovered from appellant on 13.03.2021, but it was dispatched to the Ballistic Expert after 02 days and Head Moharir was also not examined before trial Court to prove safe custody of the crime weapons and its’ safe transmission to the Ballistic Expert. It is argued that positive report of Ballistic Expert cannot be used against the appellant. Lastly, it is submitted that it was fake police encounter and I.O had failed to interrogate version of the appellant, it is prayed for acquittal of the appellant. In support of his contentions reliance has been placed upon the cases reported ZEESHAN @ SHANI versus THE STATE (2012 SCMR 428) and Mumtaz Ali vs. The State (2011 SCMR 70).

11. Learned Addl. P.G submitted that evidence of police officials is trustworthy and reliable; that appellant had also received firearm injury in the encounter; that during encounter PC Owais had also received bullet on his bullet proof jacket; that crime weapon was recovered from the possession of the appellant and it was dispatched to the Ballistic Expert and report was positive. Lastly, it is argued that prosecution has succeeded to prove its case against the appellant and prayed for dismissal of the appeal.

12. After hearing learned counsel for the parties, we have re-examined the entire evidence. We have come to the conclusion that prosecution has failed to prove its’ case against the appellant for the reasons that alleged encounter took place on 13.03.2021 at 0015 hours (midnight) but source of light has not been disclosed by prosecution witnesses. It came on record that during encounter only appellant received injury on his right arm and P.C Owais received bullet in his jacket. The pistol, empties and bullet proof jacket were sent to the Ballistic Expert after delay of 02 days for which no plausible explanation has been furnished. Admittedly no evidence with regards to safe custody of weapon at police station and its’ safe transmission to the Ballistic Expert have been established before the trial Court, which is required by law. Even Head Moharir has also not been examined by the prosecution. 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). Learned Division Bench of this Court in the case of HARCHAND and others versus THE STATE (2005 MLD 946) Karachi, more or less in similar circumstances has held that no police official has sustained injury in an encounter, prosecution has failed to prove its’ case.

13. According to prosecution evidence, appellant sustained firearm injury at his right arm during encounter and surprisingly no injury was caused to any police official and even no scratch to police mobile was caused. According to prosecution evidence another culprit ran away from the police, escape of another accused from the police, has created serious doubt in the case of prosecution. Original departure and arrival entries were also not produced before the trial Court, which cut the roots of the prosecution case. It has also come on record that after arrest of the appellant, cellular phones were recovered from him but their call data was not collected by the I.O. Investigating officer had also failed to interrogate the appellant with regard to his intention to go armed at midnight. Prosecution has also failed to prove safe custody of the crime weapon, empties and bullet proof jacket at police station and their safe transmission to the Ballistic Expert. Rightly reliance has been placed upon the case of Mumtaz Ali (supra). Relevant portion is produced as under:

“5. Having heard the learned counsel for the parties and having reappraised the evidence with their assistance, we find that admittedly the occurrence took place at a public place and according to Muhammad Umar, SIP (P.W.1), he fired 45 shots in the alleged police encounter but surprisingly, neither during occurrence nor after the occurrence any one from public reached the spot. The statement of the other witness namely Akhtar Hussain, HC (P.W.2) does not improve the prosecution case in any manner and a bare reading of the same, would show that neither in his statement nor in that of P.W. 1 there is allegation that appellant fired at the police party. Their statements are to the effect that after the encounter they reached the spot and found a person lying dead, one decamped and appellant was lying injured. Although according to the prosecution, three accused fired at the police party but surprisingly no member of the police party was injured nor any bullet hit police vehicle. The consistent plea of the appellant during the trial was that there was exchange of firing between two parties and he got injured in the cross firing. There is nothing on record to indicate that this plea was ever investigated instead the complainant police officer himself investigated the case. The non-production of medical evidence particularly with regard to injury received by the appellant is a serious infirmity in the prosecution case as in absence of that it would not be free from doubt to hold that the appellant received the injury on account of firing by police party or those were caused by cross firing between the two parties. Even if the prosecution story is admitted to be true that there was firing from the side of the accused the possibility that it was the deceased Shafoo or the absconding accused who fired at the raiding party, could not be ruled out.”

14. We have also noticed that there are major contradictions in the evidence of prosecution witnesses on material points and learned Addl. P.G could not explain those contradictions. For the above stated reasons, prosecution case has been found by us to be highly doubtful. Learned trial Court failed to appreciate evidence on settled principles of law.

15. 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).

16. For what has been discussed above, we find that prosecution has failed to prove its’ case against the appellant beyond any reasonable doubt to sustain conviction. Consequently, this appeal is allowed and impugned judgment is set aside, appellant Kashif @ Shahnawaz is acquitted of the offences, for which he was charged, tried and convicted by learned trial Court and he be released forthwith, if not required to be detained in any other custody case.

JUDGE

JUDGE

..