HIGH COURT OF SINDH
AT KARACHI
Special Criminal
Anti-Terrorism Jail Appeals Nos.253, 254 & 255 of 2016
Present: Mr. Justice Naimatullah
Phulpoto
Mr. Justice Rasheed
Ahmed Soomro
Sameer ……………………. Appellant
versus
The State ……………………. Respondent
Date of Hearing : 18.08.2017
Date of Announcement of judgment : 22.08.2017
Mr. Ajab Khan Khatta, Advocate for the Appellant.
Mr. Muhammad Iqbal Awan, D.P.G.
JUDGMENT
NAIMATULLAH PHULPOTO, J. Appellant Sameer was tried by the learned Judge,
Anti-Terrorism Court No.IX, Karachi in Special Cases Nos.228(III), 229(III) and 230(III) of 2014 by the Judgment
dated 05.04.2016. Appellant Sameer was convicted and sentenced as under:-
“A. Upon found guilty of the charge of offence
u/s 324 PPC he is convicted and sentenced to suffer R.I. for Ten years and fine
of Rs.50,000/- in case of default he shall further suffer R.I. for four months
more.
B. Upon found guilty of the charge of
offence u/s 353 PPC he is convicted and sentenced to suffer R.I. for two years
and fine of Rs.10,000/- in case of default he shall further suffer R.I. for one
month more.
C. Upon found guilty of the charge of
offence u/s 6(2)(ee) of ATA
1997 punishable u/s 7(ff) of ATA 1997 R/W section 4/5
Explosive Substance Act he is convicted and sentenced to suffer R.I. for
fourteen years and fine of Rs.50,000/- in case of default he shall further
suffer R.I. for four months more.
D. Upon found guilty of the charge of
offence u/s 23(1)-A Sindh Arms Act he is convicted and sentenced to suffer R.I.
for seven years and fine of Rs.25,000/- in case of default he shall further
suffer R.I. for two months more.”
All the sentences were ordered to run concurrently.
Appellant was also extended benefit of Section 382-B Cr.P.C.
2. The
brief facts of the prosecution case as disclosed in the FIR are that SI Naseer Muhammad Magsi lodged the
report on 19.06.2014 alleging therein that on the same day, he alongwith his subordinate staff PCs Manzoor
Ali, Sawan, Ahsan-ul-Haq,
Tariq Aziz and Driver Siraj left police station in
Government vehicle for patrolling duty. It is alleged that during patrolling,
when police party reached at Miran Naka Chowk, Mirza Adam Khan road, it
was about 2200 hours, where it is alleged that three persons appeared on road
on motorcycle. Police signaled them to stop on which accused left their
motorcycle and started firing upon the police party with the weapons carried
out by them, with intention to commit their murders. It is alleged that police
officials also fired upon accused in their defence.
After firing one accused was apprehended and remaining two succeeded in running
away. Accused, who was caught hold, on inquiry, disclosed his name as Sameer
son of Abdul Sattar. Due to non-availability of
private persons, SI Naseer Muhammad Magsi made PC Ahsan-ul-Haq and PC
Tariq Aziz as mashirs conducted personal search of
the accused and recovered from his possession one 30 bore pistol without number
having three live rounds in its magazine and one in its chamber. Accused
admitted that it was without license. It is further alleged that one shopping
bag was also recovered from motorcycle, it contained three pieces of charas, same were weighted at spot weight was 1100 grams.
Accused Sameer had no ownership documents of motorcycle bearing No.KAR-1001
Unique Star. On personal search of the accused, one hand grenade was also recovered
from his possession. On inquiry, he also disclosed the names of co-accused, who
ran away, as Sarwar son of Ghulam
Qadir and Muavia son of
Akbar Habib. Mashirnama of
arrest and recovery was prepared at the spot in presence of above mashirs. Hand grenade and T.T. pistol were sealed at spot.
Motorcycle was also seized. After preparation of mashirnama,
accused and case property were brought to the police station, where SIP lodged
FIRs against the accused on behalf of State as Crimes Nos.164, 165 and 167 of
2014 for the offences under Sections 353/324/186/34f PPC read with Section 7 of
ATA, 1997, 23(1)-A of Sindh Arms Act, 2013 and 4/5 Explosive Substance Act,
read with Section 7 of ATA, 1997.
3. During
investigation, Investigating Officer visited place of vardaat
in presence of mashirs, collected empties and
recorded 161 Cr.P.C. statements of PWs. Weapons were
sent to the expert for the report, positive report was received, on the
conclusion of usual investigation. Challan was
submitted against the accused under Section 4/5 Explosive Substance Act u/s
324, 353 PPC read with 7 ATA and u/s 23(1)A of Sindh Arms Act 2013.
4. Case
proceeded before the learned Judge, Anti-Terrorism Court No.III,
Karachi. The cases under Section 23(1)(a) of Sindh
Arms Act, 2013, under Section 4/5 Explosive Substance Act, and under Section 7
ATA were amalgamated with main case, joint trial was ordered by the trial Court
in terms of Section 21-M of the ATA 1997.
5. Charge was
framed against the accused at Ex.4 for offences under Sections 353/324/186/34
PPC r/w 7 ATA, 4/5 Explosive Substance Act, 23(1)-A of Sindh Arms Act, 2013.
Accused pleaded not guilty and claimed to be tried.
6. At
trial, prosecution examined following witnesses:-
(i)
PW-1 SI Naseer Mohammad at Ex.6, who produced entry No.37 at
Ex.6-A, memo of arrest and recovery at Ex.6-B, copies of the FIRs at Ex.6-C to
Ex.6-E, entry No.43 at Ex.6-F, clearance certificate of hand grenade at Ex.6-G.
(ii)
PW-2 PC Tariq Aziz at
Ex.7, who produced memo of inspection of place of incident at Ex.7-A.
(iii)
PW-3 SI Mohammad Ayub Baloch at Ex.8, who produced
entries No.44, 45 and 48 at Ex.8-A, detailed inspection report of the hand
grenade at Ex.8-B.
(iv)
PW-4 Inspector Abid Hussain at Ex.9, who produced entry No.48 at Ex.9-A,
entry No.55 at Ex.9-B, Medical Receipt at Ex.6-C, Medico Legal Certificate of
accused at Ex.9-D, letter addressed to incharge FSL
at Ex.9-E, FSL report at Ex.9-F, FIR No.178/2014 of police station Kharadar at Ex.9-G, letter dated 20.08.2015 at Ex.9-H,
letter addressed to Home Department at Ex.9-I.
Thereafter, prosecution was closed its side vide
statement at Ex.10.
7. Statement
of the accused was recorded under Section 342 Cr.P.C.
in which he claimed for false implication of this case and denied the
allegations leveled against him. Accused stated that report of FSL has been
managed by the police. In a question, what else accused has to say, he replied
that he is innocent and he has been falsely implicated in this case. He runs
mobile shop. On 17.06.2014, robbery was committed from his shop. He went to
police station for lodging report, but police involved him in this case.
Accused did not lead evidence of witness in his defence
and declined to give statement on oath in order to disprove the prosecution allegations.
8. Learned
trial Court after hearing the learned counsel for the parties and assessment of
the evidence by the Judgment dated 05.04.2016 convicted and sentenced the
appellant as stated above. Hence, these appeals are filed.
9. The
facts of these cases as well as evidence produced before the trial Court find
an elaborate mention in the Judgment dated 05.04.2016 passed by the learned
trial Court, therefore, the same may not be reproduced
here so as to avoid unnecessary repetition.
10. Mr. Ajab Khan Khattak, learned
advocate for the appellant Sameer has made following submissions:-
(i) That in the mashirnama of arrest
and recovery, description of the hand grenade and pistol is not mentioned.
(ii) That in the report of the BDS so also in
his evidence, number of hand grenade is mentioned, but no such number has been mentioned
in the mashirnama of recovery of such weapons.
(iii) That complainant has admitted that mashirnama of arrest and recovery was prepared by the Munshi Muhammad Hussain but his name did not transpire in departure
entry as well as in the list of challan, which
reflects that mashirnama was not prepared at the
spot.
(iv) That
weapons were sent to FSL after delay of 15 days.
(v) Learned counsel for appellant in support of his contentions relied
upon the case law reported as 2017 YLR 1097 (Re: Muhammad Umair and another v. The State and
another).
11. Mr.
Muhammad Iqbal Awan, learned DPG argued that
prosecution has proved its case against the appellant. According to learned
DPG, appellant was caught hold at the spot. Hand grenade and T.T. pistol were
recovered from his possession. He has further submitted that weapons were sent
to the FSL and positive report was received. Lastly, he has submitted that
there is huge evidence against the appellant to connect him in this case and prayed
that appeal may be dismissed. In support of his contention learned DPG has
relied upon SBLR 2014 Sindh 1472 (Re: Abdul Baqi @
Talaha & 2 others v. The State).
12. We have
carefully heard learned counsel for the parties and scanned the entire evidence.
13. We have
come to the conclusion that prosecution has failed to prove its case against
the appellant/accused Sameer for the reasons that there was encounter on
19.06.2014 at 10:00 p.m. at Mirza Adam Khan road.
Source of identification of accused at such odd hours of night is not mentioned
in the prosecution case. It is also unbelievable that police was equipped with
arms and ammunitions, but two persons easily ran away from the police. It is
also questionable that there was encounter with the sophisticated weapons from
both sides, but none received injury in the incident. We have perused the mashirnama of arrest and recovery at Ex.6/B. In the mashirnama, description of hand grenade
and T.T. pistol have not been mentioned but in the evidence description
has been given. As such, rightly it has been contended that case property was
tampered at police station. Investigating Officer in his evidence has admitted
that hand grenade was not sealed at spot. In the cross examination, PW-3
Muhammad Ayub Baloch has
replied that he found no detonator on explosive device/material. His reply in
cross examination is as under:-
“It is correct to suggest that on
the clearance certificate there are printed words “SEARCH VISUALLY AND WITH
ELECTRONIC EQUIPMENTS. NO DETONATING OR EXPLOSIVE DEVICE / MATERIAL FOUND”. Voluntarily
says that mistakenly I had not given the cut mark to these printed lines.”
14. According
to prosecution case, mashirnama of arrest and
recovery was prepared by Munshi of police station namely
ASI Abdul Majeed, but his name did not transpire in
the departure entry of police station. This fact has been admitted by the PW-4 Abid Hussain, Inspector in his cross examination. He has
further admitted that hand grenade was not handed over to him in sealed
condition. Accused has raised plea that his father is serving in police
department as ASI and he had moved application against S.H.O., much annoyance was
caused to S.H.O. Appellant was detained at P.S as before registration of the
case and these cases were falsely registered against him. Record reflects that
according to prosecution case, accused was arrested at Miran
Naka Chowk, Mirza Adam Khan
road, but no private person was associated by S.H.O. Naseer
Ahmed to make him mashir in this case. Learned Division Bench of this Court in the case of Muhammad
Umair and another v. The
State and another reported as 2017 YLR 1097 [Sindh] has
held as under:-
“14. As
regard allegation of encounter, involving attempt to commit Qatl-e-Amd and deterring police party from performing its duties,
it appears that to prove this the prosecution has relied upon the statement of
complainant and the PWs who have supported the version of FIR in toto. At this point, we would take a pause to first say
that mere narrating the prosecution story in toto is
never sufficient to hold the burden of a conviction because the requirement of
law is always that ‘no conviction could sustain unless it stands the test of
being direct, natural and confidence inspiring’. Each word must always be given
its due meaning and importance. A direct evidence if otherwise does not appear
to be ‘natural’ and ‘confidence inspiring or unimpeachable’ shall not be
sufficient to convict an accused because Criminal Administration of Justice is
based on the maxim, “it is better that ten guilty persons be acquitted rather
than one innocent person be convicted”. This appears to be the reason, which
now becomes a well embedded principle of law, that ‘a reasonable doubt’ is
always sufficient to acquit the accused’. The reliance can well be placed on
the case of Muhammad Nawaz v. State
2016 SCMR 267 wherein case of Ayub Masih’s case (PLD 2002 SC 1048) was referred as:--
“…It is hardly necessary to
reiterate that the prosecution is obliged to prove its case against the accused
beyond any reasonable doubt and if it fails to do so the accused is entitled to
the benefit of doubt as of right. It is also firmly settled that if there is an
element of doubt as to the guilt of the accused the benefit of that doubt must
be extended to him. The doubt, of course, must be reasonable and not imaginary
or artificial. The rule of benefit of doubt, which is described as the golden
rule, is essentially a rule of prudence which cannot be ignored while
dispensing justice in accordance of law. It is based on the maxim, it is better
that ten guilty persons be acquitted rather than one innocent person be
convicted.” In simple words it means that utmost care should be taken by the
Court in convicting an accused. It was held in The State v. Mushtaq Ahmed (PLD 1973
SC 418) that this rule is antitheses of haphazard approach or reaching a
fitful decision in a case. It will not be out of place to mention here that
this rule occupies a pivotal place in the Islamic law and is enforced
rigorously in view of the saying of the Holy Prophet (p.b.u.h)
that the “mistake of Qazi (Judge) in releasing a
criminal is better than his mistake in punishing an innocent.”
Resuming, the discussion what is
quite evident from perusal of the evidence that though the complainant narrated
contents of FIR but such narration (evidence) prima facie does not appear to be
‘natural or confidence inspiring’ for reasons that despite alleged claim of an
encounter neither any of the police officials or vehicle (police mobile)
received a single “scratch” although accused persons allegedly made firing with
lethal weapons, including Kalashnikov. As per allegations, the police party was
attacked upon at the hands of the appellants and in order to prove their
allegations they were required to collect some tangible evidence yet they have
miserably failed to bring concrete material against the appellants. The version
of complainant of FIR as well as their respective memos and the statements of
the witnesses, nowhere they have uttered a word that in retaliation they had
fired certain number of rounds and suffice to say not a single empty spent by
the complainant party has been collected by the I.O. during investigation even
they have miserably failed to show that they were laced with certain particular
weapons. Further to meet their accusation, the presence of the complainant
party at relevant place and time was essential and in absence of any scratch or
injury on their part, their allegation is baseless and the factum regarding alleged
encounter has also not been proved. Besides, arrest of two of the accused
persons out of five by police without being hurt/injured or having any other
reason when other three under same situation made their escape good;
non-recovery of empties from place of incident. These all are circumstances
when do not let the prosecution story worth believing for a prudent mind.
Therefore, charge to such an extent fails to stand well with the required test.
Though, in law failure of defence has never been
sufficient to hold one guilty because it is settled principle of law, it is the
duty of the prosecution to prove its accusation and the prosecution could not
be benefited from the failure or inability of the defence.”
15. We are
unable to rely upon the evidence of police officials without independent
corroboration, which is lacking in this case for the reasons that prosecution
evidence did not inspire confident and it is full of doubts. It is a known
principle of appreciation of evidence that benefit of all favourable
circumstances in the prosecution evidence must go to the accused regardless of
whether he has taken any such plea or not. Reliance is placed on the case of Muhammad Nawaz and another v. The State and others (PLD 2005 SC 40). In the present
case there are several circumstances, which created serious doubt in the
prosecution case. We have no hesitation
to hold that prosecution has miserably failed to prove charge against the appellant
Sameer beyond reasonable shadow of doubt. Consequently, the appellant Sameer is
acquitted of the charge by extending benefit of doubt, the aforesaid appeals
are allowed. Impugned judgment dated 05.04.2016 is set-aside. Appellant shall
be released forthwith, if he is no more required in any other case.
Judge
Judge
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Faizan/PA*