2021 P Cr (PLP)

ABDUL MAALIK GADDI, J.

Through this common judgment, we intend to dispose of the captioned appeals, as these appeals are related to same incident, as well as arising out of common judgment dated 29.07.2019, passed by the learned Presiding Officer of trial Court.

2. By means of these appeals, the appellants have challenged the judgment dated 29.07.2019, passed by the Anti-Terrorism Court No.X, Karachi, in Special Cases Nos.269 and 269-A of 2019, emanating from Crimes Nos.46 and 47 of 2019, registered at Police Station SIU, Karachi, under sections 4/5 of Explosive Substances Act, read with section 7 of Anti-Terrorism Act, 1997 and sections 23(i)(a) of Sindh Arms Act, 2013, whereby the learned Presiding Officer of trial Court after full dressed trial, convicted and sentenced the appellant as stated in point No.3 of the impugned judgment. For the sake of convenience, it would be appropriate to reproduce the said point of the impugned judgment, which reads as under:- "POINT NO.

3. In view of my findings given in Point Nos.1, 2 and the reasons discussed above, I have come up to the conclusion that the prosecution has proved its cases against the present accused without any shadow of doubt and he is "Convicted" as follows:-

1. I, "Convict" the accused Abu Bakar alias Abu son of Abdul Samad under section 7(ff) of A.T.A., 1997 for the offence under sections 4/5, Explosive Substances Act read with section 6(2)(ee) and sentence him to undergo R.I for "14" years.

2. I, also Convict the accused Abu Bakar alias Abu son of Abdul Samad for the offence under section 23(i)(a), Sindh Arms Act, 2013 and sentence him to undergo R.I for "07" years with fine of Rs.50,000/ -. In default in payment of such fine, he shall suffer further R.I for "06" months. Both the above sentences shall concurrently. The benefit of section 382-B, Cr.P.C. is also extended to the accused from the date of his arrest."

3. The brief facts of the prosecution case are that on 07.04.2019 in between 1800 to 1815 hours, P.I Muhammad Javed of SIU, Karachi registered FIR No.46 of 2019 under sections 4/5, Explosive Substances Act, read with section 7 of Anti-Terrorism Act, 1997 and FIR No.47 of 2019 under section 23(i)(a) of Sindh Arms Act, 2013 at Police Station SIU, Karachi, alleging therein that on such day, he was on patrolling duty of the area along with his subordinate staff in official mobile No.SPM-825, vide entry No. 7 for prevention of terrorism activities and search of proclaimed offenders and during patrolling, when they reached at 4-K Chowrangi within the jurisdiction of Police Station Surjani Town, they received spy information that one person was standing near Blue Diamond Marriage Hall for transport and he was having a Hand Grenade and Weapon. On such spy information, police party rushed to the pointed place, where on the pointation of the spy/ informant at about 1630 hours, they apprehended one person on the spot, with the help of his subordinate staff, who on inquiry disclosed his name as Abu Bakar alias Abu son of Abdul Samad. Thereafter, complainant conducted personal search of the apprehended accused and recovered one "Hand Grenade" from side pocket of his kameez and ARGS-HDR-69 was written on it. Upon his further personal search, PI Muhammad Javed also recovered one 30 bore pistol from right side fold of his worn shalwar along with loaded magazine having six live rounds. The number "6483" was mentioned on such pistol and "Diamond Khyber Arms Company Peshawar, CAL 30 bore" was also mentioned on such pistol, whereas, while colored tape was wrapped over its handle. Upon his further personal search, police also recovered one Wallet having Cash of Rs.800/-, Hand-Free, one Oppo Mobile Phone Set and colored coy of CNIC of the accused from the left side pocket of his worn kameez. The complainant also inquired from the apprehended accused regarding valid license of the recovered pistol, but he failed to produce the same. Thereafter, complainant sealed the recovered pistol and live rounds, whereas the recovered hand grenade was taken by him into his custody safely. The personal search articles were also taken into custody by the complainant. PI Muhammad Javed then prepared memo of arrest and recovery, so also prepared sketch of recovered pistol and live rounds on such memo of arrest and recovery. Thereafter, accused was brought at Police Station SIU along with recovered articles.

4. On perusal of record, it reveals that these cases were amalgamated by the trial Court under section 21-M of A.T.A., 1997 as such, a joint charge was framed against the accused on 17.07.2019 at Ex-4, to which he pleaded not guilty and claimed his trial vide his pleas recorded at Ex.4/A.

5. At trial in order to prove the accusation against the appellants, prosecution had examined the following witnesses:- (i) PW-1 PI Ghulam Mustafa Arain of BDU at Ex.5, who produced roznamcha entry Nos.23 and 36, clearance certificate, roznamcha entry No.41, letter addressed to SSP Security, Special Branch, Karachi, Final Inspection Report at Ex.5/A to Ex.5/F respectively; (ii) PW-2 PI Muhammad Javed at Ex.6, who produced rozmancha entry No.7, memo of arrest and recovery and seizure, roznamcha entry No.10, FIRs, roznamcha entry, memo of inspection of place of wardaat at Ex.6/A to Ex.6/G respectively; (iii) PW PC Muhammad Akram was given by the prosecution vide statement at Ex.7; (iv) PW-3 HC Shahbaz Ali at Ex.8; (v) PW-4 PI/IO Tabassum Ahmed at Ex.9, who produced roznamcha entry Nos.12 and 15, letter addressed to the AIGP Forensic Division Sindh, Karachi, letter addressed to SSP SIU, Karachi, Permission issued by the Home Department, Government of Sindh, Karachi, FSL examination report, letters addressed to the CRO/CIA, Karachi, CRO record of the accused at Ex.9/A to Ex.9/H respectively. These witnesses were cross-examined by the Counsel for the appellant at length and thereafter learned APG for the State closed the prosecution side vide statement at Ex.10.

6. Statement of accused namely Abu Bakar alias Abu was recorded under section 342, Cr.P.C. at Ex.11, wherein he denied prosecution allegations levelled by the prosecution and has stated that he is innocent and has been falsely implicated in the present cases. Nothing was recovered from his possession and the alleged recoveries of hand grenade and one 30 bore pistol were foisted against him. However, he did not examine himself on oath, nor he produced any witness in his defence.

7. Mr. Muhammad Imran Kalmati, learned Counsel for the appellant contended that appellant is innocent and has been falsely implicated in these cases with mala fide intentions and ulterior motives by the police; that nothing was recovered from the possession of appellant and the alleged recoveries of hand grenade and pistol have been foisted upon him by the police in order to show their efficiency; that no private/independent person was cited as witness for the arrest and recovery proceedings though the incident took place in a thickly populated area and based upon spy information; that the evidence of prosecution witnesses are found to be contradictory to each other on material particulars of the case and during the course of arguments, he has pointed out some contradictions, therefore, on the basis of contradictory evidence, the conviction and sentence could not be maintained; that the judgment passed by the trial Court is bad in the eyes of law and there are illegalities and irregularities in the impugned judgment; hence, prayed for allowing these appeals. In support of his contentions, learned Counsel has relied upon the following case laws:- (i) Muhammad Umair and another v. The State and another reported as 2017 MLD 1097 [Sindh]; (ii) Yameen v. The State reported as 2019 YLR 422; (iii) Muhammad Zaman and another v. The State reported as PLD 2008 Karachi 348.

8. In contra, Mr. Abrar Ali Khichi, Additional Prosecutor General, Sindh while supporting the impugned judgment submits that the prosecution has fully established its case against the appellant beyond reasonable doubt by producing consistent/convincing and reliable evidence and the impugned conviction and sentenced awarded to the appellant is the result of proper appreciation of evidence brought on record, which needs no interference. Lastly, he prayed that these appeals may be dismissed.

9. Arguments advanced from both sides have been heard. We have also minutely gone through the record available on file with the able assistance of learned Counsel for the parties. It is an established principle of law that each criminal case has its own peculiar facts and circumstances and the same seldom coincide with each other on salient features. The allegations against the appellant is that at the time of alleged incident, he was apprehended and during his personal search, one hand grenade No.ARGES HDR 69 embossed on it and one .30 bore pistol No.6483 KAC and words DIOMAND KHYBER ARMS COMPANY PESHAWAR CAL .30 BORE embossed on it, were recovered in presence of mashirs namely, HC Shahbaz Ali and PC Muhammad Akram, but this fact has been denied by the appellant in his statement recorded under section 342, Cr.P.C.

10. On evaluation of record, it reveals that complainant along with his subordinate staff was on patrolling duty vide departure entry No.7 dated 07.04.2019 at about 1500 hours in official mobile No.SPM-825 and apprehended the present appellant in presence of mashirs namely, HC Shahbaz Ali and PC Muhammad Akram, but it is shocking to note that aforesaid departure entry No.7 does not show the names of accompanied subordinate staff, including mashirs, who were accompanied along with complainant on the relevant date and time of incident. It is also surprising to note that arrival entry No.10 dated 07.04.2019 at 1800 hours, which was made at police station also does not show the names of police official/ subordinate staff, including mashirs of the case. This aspect of the case creates serious doubt in the prosecution story.

11. Moreover, as per prosecution story, police party was on patrolling duty and during patrolling when they reached within the jurisdiction of Surjani Town, they received spy information about the availability of present appellant along with hand grenade and illicit armed at opposite side of Blue Diamond Marriage Hall. On such information police party reached there and apprehended the appellant with alleged hand grenade and pistol, but it is surprising to note that appellant despite having weapon and hand grenade, was arrested easily without causing any resistance. Moreso, the alleged incident took place on 07.04.2019 at about 1630 hours (evening time) and it had already been brought in the evidence that it was thickly populated area, which was surrounded by shops, houses and peoples were available there, but it is astonishing to note that despite availability of peoples, complainant failed to obtain the services of any independent person to witness the event. No doubt the evidence of police officials are as good as the other citizens, but when the whole case of the prosecution hinges upon the evidence of police officials, therefore, their evidence is to be examined minutely. On scrutiny of the evidence on record, it reveals that the same are contradictory with material particulars of the case to each other. For instance, as per memo of arrest and recovery at Ex.6/B, the alleged hand grenade allegedly recovered from the appellant was of brown colored, while contradicting this fact, Inspector Ghulam Mustafa Arain in his examination-in-chief at Ex.5, deposed that the alleged recovered hand grenade was of green colored. Not only this, clearance certificate issued by Bomb Disposal Unit dated 08.04.2019 at Ex.5/C and Inspection Report of hand grenade at Ex.5/F showing that the alleged hand grenade was of green colored. Moreso, memo of arrest and recovery at Ex.6/B showing the description of alleged hand grenade as "ARGES HDGR 69" embossed on it, but it is surprising to note that clearance certificate issued by the Bomb Disposal Unit at Ex.5/C and Inspection Report of hand grenade at Ex.5/F showing different descriptions of the hand grenade allegedly recovered from the appellant. Furthermore, as per memo of arrest and recovery at Ex.6/B, one .30 bore pistol bearing No.6483 KAC was allegedly recovered from the appellant and word DIOMAND KHYBER ARMS COMPANY PESHAWR CAL .30 BORE was embossed on it, whereas, FSL report issued by the office of the Assistant Inspector General of Police Forensic Division, Sindh Karachi, shows incomplete description of the pistol, which makes the prosecution story to be doubtful. Therefore, false implication of the appellant in these cases could not be ruled out.

12. Apart from the above, memo of arrest and recovery at Ex.6/B and FIR 6/E, shows the alleged pistol and hand grenade were allegedly recovered from the appellant on 07.04.2019, but alleged pistol was received by the forensic department for examination on 09.04.2019, after the delay of about two (2) days and alleged hand grenade was inspected by the Bomb Disposal Unit on 08.04.2019 after the delay of about twenty two (22) hours, for which no satisfaction has been furnished. Moreso, the alleged weapon and hand grenade were retained by whom during this intervening period has also not been explained by the prosecution that after its recoveries under whose custody, these were lying. For the sake of arguments, if it is assumed that these case properties were lying in the Malkhana then no report/entry of the Malkhana has been produced to corroborate the version of prosecution. Therefore, under the circumstances, no reliance could safely be placed on FSL report and inspection report of hand grenade for conviction of the appellant on the basis of contradictory evidence. We have also noted that the alleged hand grenade was admittedly without detonator, it means that the same was useless and harmless, therefore, it appears that section 7 of Anti-Terrorism Act, 1997 has wrongly been applied in this case just to create jurisdiction of Anti-Terrorism Court.

13. In addition to above, on perusal of memo of arrest and recovery at Ex.6/B, it appears that sketch of alleged recovered pistol was also made on it, which shows that perhaps it was prepared on haphazard manner. It was the duty of complainant that sketch of alleged recovered pistol was supposed to be prepared on separate paper, but the same was not done in this case. Nothing on record that the appellant remained indulge in such type of activities in past. When confronted all these facts and circumstances of the case to learned Additional Prosecutor General, Sindh for reply, he has not replied satisfactorily.

14. As observed above that these cases are riddled with many lacunas and loopholes as listed above, but the learned trial Judge has utterly failed to consider and appreciate these aspects of the case in its true perspective, therefore, in the given circumstances, benefit of doubt must go in favour of the appellant, therefore, the impugned judgment cannot be maintained. In this regard, we are supported with the case of Tariq Pervez v. The State reported as 1995 SCMR 1345, wherein the Hon'ble Supreme Court has held as under:- "The concept of benefit of doubt to an accused person 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 creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

15. Keeping in view of the above, we are of the firm view that Presiding Officer of the learned trial Court acted erroneously, in the matter, with misconception and misinterpretation and convicted and sentenced the appellant purely on non-appreciation and non-application of the required norms of law and that of justice. Consequently, we allow these special criminal anti-terrorism appeals, set-aside the impugned judgment dated 29.07.2019 and acquit the appellant Abu Bakar alias Abu son of Abdul Samad from the above charges. He is in custody, therefore, jail authorities are directed to release him forthwith from the above cases, if he is not required in any other custody case.

16. The instant appeals were allowed by us through short order dated 14.07.2020 and these are the detailed reasons thereof. JK/A-91/Sindh Appeal allowe