THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Jail Appeal No. 129 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellant : Gul Bahar through Mr. Habib-ur-Rehman Jiskani advocate

Respondent : The State through Mr. Ali Haider Saleem Addl. P.G

Date of Hearing : 10.02.2023

Date of judgment : 10.02.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Gul Bahar appellant was tried by learned Judge, Anti-Terrorism Court-X, Karachi in Special Case No.514/2021 (FIR No.510/2021 under Section 353/324/34 PPC read with section 7 Anti-Terrorism Act, 1997, registered at PS Taimooria, Karachi) and Special Case No.514-A/2021 (FIR No.511/2021 u/s 23(1)(a) Sindh Arms Act 2013 registered at PS Taimooria Karachi). After regular trial, vide judgment dated 23.04.2022, appellant was convicted under Section 7(1)(h) of ATA 1997 read with Section 353/324 PPC and sentenced to undergo R.I for 05 years with fine of Rs.50,000/- and in case of default in payment of fine, he was ordered to suffer S.I for 03 months, he was further convicted under section 25 read with Section 23(1)(a) of Sindh Arms act 2013 and sentenced to undergo R.I for 05 years with fine of Rs.50,000/- and in case of default in payment of fine, he was ordered to suffer S.I for 03 months. Both the sentences were ordered to run concurrently. Appellant was also extended benefit of Section 382(b) Cr.P.C.

2. Brief facts lead to the filing of the appeal are that HC Muhammad Danish along with his subordinate staff during patrolling on 24.05.2021 when reached to 2-K bus stop, two persons on the motorcycle appeared, they were signaled to stop but they accelerated speed, there was cross-firing, in the result appellant sustained fire arm injury and co-accused succeeded in running away. From the possession of the appellant 30 bore pistol was recovered. Two separate FIRs, one in main case bearing Crime No. 510/2021 under Section 353/324/34 PPC read with section 7 Anti-Terrorism Act, 1997 and another FIR regarding recovery of unlicensed pistol bearing Crime No. 511/2021 u/s 23(1)(a) Sindh Arms Act 2013 were registered at PS Taimooria Karachi, on behalf of the state.

3. Both the cases were proceeded and appellant was convicted and sentenced as detailed above. Hence, the appellant has filed instant jail appeal against his conviction and sentence.

4. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 23.04.2022 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

5. Learned counsel for the appellant mainly contended that prosecution case was highly doubtful; there was cross firing between them and the police party with sophisticated weapons but only fire hit to the appellant; that police officials and co-accused, who ran away, did not receive any scratch; that no private person from the locality was attracted at the time of incident; that incident had occurred at 4:30 a.m; that source of light has not been mentioned by the police officials; that appellant was injured in the incident, but Medical Officer who examined him has not been examined by the prosecution. Lastly, it is submitted that Head Moharer of the police station has not been examined to prove safe custody and safe transmission of the pistol recovered from the appellant. In support of his contentions, reliance has been placed upon the cases reported as Tariq Pervez vs. The State (1995 SCMR 1345), Mumtaz Ali vs. The State (2011 SCMR 70) and Asmatullah and others vs. The State (2018 P.Cr.L.J 1042).

6. Learned Addl. P.G argued that appellant was arrested in injured condition at spot; police officials had no enmity whatsoever with the appellant to falsely implicate him in this case. However, learned Addl. P.G frankly conceded that evidence with regard to safe custody and safe transmission of the weapon from the place of recovery to expert has not been established. Lastly, it is argued that prosecution has succeeded to prove its case against the appellant and prayed for dismissal of the appeal.

7. After hearing learned counsel for the parties, we have re-examined the entire evidence. There are several circumstances in this case, which have created reasonable doubt in the case of prosecution. Firstly, incident had occurred on 25.05.2021 at 4:30 a.m. and source of light has not been disclosed by the prosecution witnesses in their evidence. It is the case of prosecution that there was exchange of fires from the close ranger but during encounter not a single injury was caused to the police officials. We are also unable to believe the case of prosecution that absconding accused easily ran away from the place when police officials were armed with sophisticated weapons. It has come on record that after arrest of the appellant pistol was revered from him and empties were collected from the place of wardat, but there is no evidence that pistol and empties were handed over to the Head Moharer of the police station for safe custody and its safe transmission to the Ballistic Expert. No doubt report of the Ballistic Expert is in positive, but since safe custody and safe transmission of the pistol have not been proved through Head Moharer of the police station, positive report of Ballistic Expert would not improve the case of prosecution and the same cannot be used against the appellant. 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.

8. We have also observed that as per case of prosecution there was exchange of firing between two parties and the appellant got injured in the cross firing. There is nothing on record to indicate that this plea was ever investigated by the I.O. 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. Rightly reliance has been placed upon the case of Mumtaz Ali vs. The State (supra), relevant portion is reproduced as under:

“……..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………”

9. 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. Prosecution has also failed to prove safe custody of the crime weapon and empties at police station and their safe transmission to the Ballistic Expert.

10. 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.

11. 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).

12. 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 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.

13. These are the reasons for the short order announced on 10.02.2023.

JUDGE

JUDGE