2017 PLP 273 (YLRN)

NAIMATULLAH PHULPOTO, J.

Appellants Siddique Ali Khan, Asif Sattar and others were tried by the learned Judge Anti-Terrorism Court/IVth Additional Sessions Judge Karachi South in Special Case No.A-06/2013 by judgment dated 12.08.2014. Accused Abdullah and Hayyat Khan were acquitted whereas appellants Siddique Ali Khan and Asif Sattar were convicted and sentenced as under:-

1. The accused Siddique Ali Khan and Asif Sattar are convicted and sentenced to suffer R.I. for two (02) years for committing an offence under 353, P.P.C.

2. The accused Siddique Ali Khan and Asif Sattar are convicted and sentenced to suffer R.I. for seven (07) years for committing an offence under section 324, P.P.C. and they both are also directed to pay fine of Rs.30,000/- each or in default in payment of fine, they both will also suffer S.I. for three months more.

3. That accused Siddique Ali Khan and Asif Sattar are convicted and sentenced to suffer R.I. for three (03) years for committing an offence under section 337-F(iii), P.P.C. and they both are directed to pay the Daman of Rs.20,000/- each which is to be paid to the injured complainant/inspector Akhtar Bungash.

4. The accused Siddique Ali Khan and Asif Sattar are convicted and sentenced to suffer R.I. for three (03) months for committing an offence under section 186, P.P.C.

5. The accused Siddique Ali Khan and Asif Sattar are convicted and sentenced to suffer R.I. for Ten (10) years for committing an offence under section 7(i)(c) of the Anti-Terrorism Act, 1997 and they both are also directed to pay the fine of Rs.20,000/- each or in default they will also suffer S.I. two months more. All the sentences were ordered to run concurrently.

2. Brief facts of the prosecution case leading to the appeal are that S.H.O./ Inspector Akhtar Shah Bangash along with his subordinate staff left the police station for duty on 11.12.2012 and was busy in checking and search of the wanted persons. It is alleged that S.H.O. received information/call from C-Tracker Company that a car bearing registration No.AXV-777 has been snatched within the area of P.S. New Town, Karachi and said car was having the tracker system. The location of said car indicated that it was near Chamra Factory Chowrangi, within the territory of P.S. Korangi, Karachi. Inspector was informed that said car was passing from the pointed place. Thereafter; S.H.O. along with staff proceeded there. Police party saw that accused persons were removing the original number plates of a car and affixing fake number plate AWF-379. It is further stated that police kept the car under observation. At 18:00 hours, four persons appeared in the car bearing Registration No.AXR-541, it was stopped by the police and two persons alighted from the car. S.H.O. claimed that he had identified those accused persons by faces as they were arrested, their names were Siddique Ali and Asif. S.H.O.has further stated that as soon as he got down from his car accused persons while deterring the police party from discharge of their duty fired upon them and one fire hit him at the right palm. Damage was also caused to the wind screen of the car. It is further alleged that police also fired in retaliation and chased the culprits but they made escape good from the scene of occurrence. Thereafter, FIR was lodged by the S.H.O. on behalf of the State. It was recorded vide crime No.1089/2012 under sections 353/324/ 186/337A(i)/34, P.P.C. r/w section 7 of the Anti-Terrorism Act, 1997, at P.S. Korangi Industrial Area, Karachi East.

3. During investigation, accused were arrested and after completion of the investigation challan was submitted against them under the above referred sections.

4. Charge was framed by trial Court against four accused at Ex.3 but they pleaded not guilty to the charge and claimed to be tried.

5. In order to substantiate the charge against the accused persons, prosecution has examined the following witnesses at trial:

1. PW-1/PC Rizwan Shah at Ex.4, who produced the memo of securing the car under section 550 Cr.P.C. at Ex.4/A

2. PW-2/PC Basheer Ahmed at Ex.6, who produced an entry No.26 at Ex.6/A, attested copy of memo securing the car at Ex.6/B and copy of notice under section 160 Cr.P.C. at Ex.6/C.

3. PW-3 / Judicial Magistrate Mr. Sohail Ahmed at Ex-7, who produced an application moved by the I.O. at Ex-7/A and two memos of ITP at Ex.7/B and 7/C.

4. PW-4/ASIP Altaf Ahmed at Ex.8, eye-witness of the incident as well as witness of ITP. He testified the memos already produced on record at Ex.7/B and 7/C.

5. PW-5/Inspector Akhtar Shah at Ex.10, who being the complainant produced the entry No.31 at Ex.10/A, his 154, Cr.P.C. statement at Ex.10/B and FIR at Ex.10/C.

6. PW-6/SIP Mohammad Ashique at Ex.11, who being the author of FIR testified the statement under section 154, Cr.P.C. and FIR already produced at Ex.10/A and 10/B to be the same documents.

7. PW-7/PC Ghulam Sarwar at Ex.13, an eye-witness of the incident.

8. PW-8/ASIP Bhai Khan at Ex.14, who testified the memos of ITP already produced at Ex.7/B and 7/C to be the same documents. He also produced the memo of place of incident/recovery at Ex.14/A.

9. PW-9/ASIP Mohammad Hanif at Ex-15, who produced the thumb impression report along with the sample of finger prints at Ex.15/A, FSL report at Ex.15/B, copy of mobile record at Ex.15/C/1 to 15/C/2, attested copies of memo of arrest/recovery at Ex.15/D and memo of pointation at Ex.15/E.

10. PW-10/MLO. Dr. Jagdesh Kumar at Ex.16, who produced medico legal certificate at Ex.16/A, final medical report at Ex.16/B and police letter at Ex.16/C.

11. PW-11 Shamsuddin at Ex.17, who is a mashir of pointation of place of incident by present accused persons therefore, he produced such memo at Ex.17/A.

12. PW-12/Inspector Mohammad Siddique Abbasi at Ex.19, who produced the sketch of place of incident at Ex.19/A, copy of the letter addressed to FSL for report of empties at Ex.19/B, three entries at Ex.19/C, 19/D and 19/E, memo of formal arrest of accused persons at Ex.19/F, other two entries at Ex.19/G and 19/H, copy of notice, FSL report at Ex.19/J, 11 entries from Ex.19/K to 19/U and another FSL repot at Ex.19/V.

6. Thereafter, learned SPP appearing on behalf of the State closed the prosecution side vide his statement at Ex.21.

7. Statements of accused/appellants Siddique Ali Khan and Asif Sattar were recorded under section 342 Cr.P.C., in which they claimed false implication in this case and denied the prosecution allegations. Both the appellants declined to give statement on oath under section 340(2), Cr.P.C. and did not lead evidence in defence.

8. Learned trial Court after hearing the learned counsel for the parties and upon assessment of the entire evidence convicted the appellants/accused and acquitted the remaining accused by judgment dated 12.08.2014. Appellants have impugned the aforesaid judgment before this Court.

9. The sole point for determination is, whether the appellant/accused persons have been rightly convicted by the trial Court for the offences with which they were charged?

10. Mr. Fazl-ur-Rehman Awan, learned counsel for the appellants/accused contended that S.H.O. has failed to produce arrival and departure entries. No identification parade of accused was held, S.H.O. has failed to bring on record that as to how he knew the accused persons. It is also argued that firing continued for five months with sophisticated weapons but none received injury except S.H.O. at his palm. It is argued that in the connected cases under section 13(d) Arms Ordinance, 1965, both the accused have been acquitted and no appeal against the acquittal has been filed by the State. Lastly, it is submitted that on same set of evidence, co-accused have been acquitted by trial Court. In support of his contentions reliance has been placed on Tariq Pervez v. The State (1995 SCMR 1345) and Abdul Sattar and others v. The State (2002 PCr.LJ 51).

11. Mr. Abrar Ali Khichi, learned A.P.G. argued that S.H.O. has received injury at his palm and S.H.O. knew the accused persons prior to the incident. Case of acquitted accused was distinguishable. Prosecution has proved its case against the appellant, trial Court has rightly convicted accused and prayed for dismissal of the appeal.

12. After hearing the learned counsel for the parties, we have scanned the entire prosecution evidence. Trial Court in its judgment has observed that neither the injured nor the witnesses have deposed whose fire hit to the S.H.O. Certainly it's benefit shall be extended to the accused. In this case there was exchange of fires for about 5 minutes with sophisticated weapons but none received injury in the incident except S.H.O. which is also at his palm. We are unable to believe as to how S.H.O. received injury at his palm in indiscriminate firing and no other person received injury in the incident. S.H.O. has failed to explain satisfactorily as to how he knew the accused persons prior to the incident. Occurrence took place on 11.12.2012 and accused were arrested on 23.12.2012 as such it was essential to hold the identification parade but it was not held in this case. S.H.O. has also failed to produce arrival and departure entries. Non-production of such entries cuts the roots of the prosecution case. In the case of the case of Abdul Sattar and others v. The State (2002 PCr.LJ 51) it has been observed as under: "

3. Admittedly, in neither of the cases in hand Roznamcha entry was produced by the prosecution in order to prove that the police, in fact, proceeded to the place of scene to recover the alleged weapons. This lapse on the part of prosecution has cut the root of the case of prosecution, thus, rendering the entire episode shrouded by doubt. This fact by itself was enough to disbelieve the prosecution version. Reference can be made to the case of Fareed Ahmed Langra v. The State reported in 1998 PCr.LJ 1368 and another Division Bench judgment in Qalandaro's case reported in 1997 MLD 1632."

13. Learned trial Court on same set of evidence has acquitted co-accused Abdullah and Hayat Khan, relevant portion of judgment dated 12.08.2014 is reproduced as under:-- "So far, the case of accused Hayat and Abdullah is concerned, they are neither nominated in FIR nor in the 161 Cr.P.C. statements of PWs and even no facial description of these accused were mentioned in those documents. According to the prosecution case, accused were four in number, two alighted from the car (meaning thereby two remained seated in the car) and they went over to parked car and then fired upon the police injuring the S.H.O./complainant. No specific role of seated accused was put forth by PWs nor even they have stated in their 161, Cr.P.C. statements that they had seen these accused and could be identified if seen again. Such fact has been admitted by the PWs and IO in their evidence. The PWs ASIP Bhai Khan, ASIP Altaf and PC Basheer have identified these two accused during the course of ITP which was held on 07.01.2013 after 15 days of the initial arrest of these accused and their arrest was affected on 24.12.2012 by the ACLC police which is the same police station where the PWs of ITP namely ASIP Bhai Khan, ASIP Altaf and PC Basheer were also posted. It is also matter of record that it has also been brought in the evidence of learned Judicial Magistrate that the accused Abudullah had complained before the learned Judicial Magistrate at the time of ITP that the witnesses of ITP have seen them in police lock up. In such situation, it would be out of question to believe that PWs should not have seen the accused at all. On this point, I drive strength from the case laws reported in Lal Pasand v. State PLD 1981 SC 142, Abdul Sattar and another v. State PLD 1981 SC 142 and 2005 YLR

980. Thus, the case of the prosecution against the accused Abdullah and Hayat Khan is doubtful."

14. In the present case, after perusal of evidence, we have come to the conclusion that evidence showed that appellants might have been present at the time of occurrence but there is no evidence that convicted accused caused injury to S.H.O. at the time of incident. Offence is not proved by cogent evidence. Appellants could not be convicted without corroboration, which was not available, therefore, appellants were entitled at least to benefit of doubt. It is also settled law if there is slightest apprehension regarding the prosecution case being not true its benefit shall be extended to the accused. The concept of benefit of doubt to an accused person is deep-rooted in our Country. For giving 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, as held by the Honourable Supreme Court in the case of Tariq Pervez v. The State (1995 SCMR 1345). In the present case, there are several circumstances as discussed above, which create reasonable doubt in the prosecution case. Moreover, both the accused on the evidence of the same prosecution witnesses have been acquitted by the concerned Judicial Magistrate in 13(d) Arms Ordinance, 1965, cases.

15. As a result, therefore, of this unsatisfactory state of evidence in this case we find several circumstances, which create doubt in the prosecution case. Rightly reliance has been on the above cited authorities. We are unable to uphold the conviction and sentence of the appellants recorded by the trial Court and by giving them benefit of reasonable doubt, vide our short order dated 29.04.2015 we have set aside their conviction and sentence and directed that they shall be set at liberty/released if not wanted in any other case.

16. These are the reasons for our short order dated 29.04.2015, passed in the instant appeal. ZC/S-53/Sindh Appeal allowed.