2018 P Cr (PLP)

OMAR SIAL, J.

Through this consolidated judgment we will dispose off the captioned appeals filed by the appellants against the conviction and sentence awarded to them by the Anti-Terrorism Court No. IX at Karachi through its common judgment dated 31-3-2015 in Special Case Nos. 188(III)/2014, 189(III)/2014 and 190(III)/2014.

1. The brief facts of the prosecution case as contained in the FIR are as follows: (a) On 15-1-2015 the appellants were riding a motorcycle when they were signaled to stop by a police party. Instead of stopping the appellants started firing directly at the police party with the intention to kill them. Further down the road two Rangers vehicles also tried to stop the appellants but the appellants fired at them with the intent to kill them too. The Rangers fired in self defence and both the appellants fell down from their motorcycle in an injured condition. The appellants were apprehended and upon their search a .30 bore pistol with a magazine containing 2 bullets and 1 bullet in the chamber of the pistol were recovered from appellant Muhammad Hasan whereas a .30 bore pistol with a magazine containing 1 bullet and 1 bullet in the chamber of the pistol was recovered from appellant Umair. Both the appellants were arrested and the following FIRs were registered against them: (i) FIR No. 15 of 2014 against both appellants under sections 353, 327 and 34, P.P.C.; (ii) FIR No. 16 of 2014 against appellant Muhammad Hasan under section 23(1)(a), Sindh Arms Act, 2013; (iii) FIR No. 17 of 2014 against appellant Umair under section 23(1)(a), Sindh Arms Act, 2013;

2. Initially the appellants were sent for trial before the Court of the Additional District Judge, Karachi South but subsequently the case was transferred to the Anti-Terrorism Court on 21-4-2014.

3. Charge against the appellants was framed on 23-10-2014 which charge also included an offence punishable under section 427 of the P.P.C. for damaging a government vehicle belonging to the Rangers. The appellants pleaded not guilty and the trial commenced.

4. The prosecution examined seven witnesses. PW-1 was SI Zulfiqar Ali who was the complainant and the person who made the memo of arrest and recovery and a witness to the memo of site inspection. PW-2 was Hawaldar Ashfaq was a Rangers official who was a witness to the memo of arrest and recovery. PW-3 was a Rangers official namely Hasrat Khan who was an eye-witness to the incident. PW-4 was SI Allah Ditta who arrived after the incident and took the accused to the hospital for medical treatment. PW-5 was Dr. Nisar Ali Shah, the MLO who examined the injured accused. PW-6 was SI Sabz Ali Yousufzai was the investigating officer. PW-7 was DSP Zafar Iqbal was the second investigating officer whose only seems to be that he deposited the police report under section 173, Cr.P.C. before the trial court.

5. The statement under section 342, Cr.P.C. of both the appellants was recorded on 10-3-2015. Both said that they were innocent and that false cases had been made against them. Both said that they had been picked up by the Rangers earlier and then handed over to the police who shot them in the legs at the police station.

6. On 31-3-2015 the trial court pronounced its judgment and convicted and sentenced both the appellants as follows: For offence under section 324, P.P.C.: R.I. of 10 years and a fine of Rs. 50,000, 4 months' R.I more in default; For offence under section 353, P.P.C.: R.I. for 2 years and a fine of Rs. 10,000, in default 2 months' R.I. more; For offence under section 427, P.P.C. R.I. 2 years' and a fine of Rs. 10,000, in default 2 months' R.I. more. For offence under section 23(1)(a), Sindh Arms Act, 2013: R.I. of 7 years and a fine of Rs. 30,000, in default 3 months' R.I. more; For offence under section 7 of the Anti-Terrorism Act, 1997: R.I. of 10 years and a fine of Rs. 50,

000. In default 6 months more. Hence these appeals.

7. We have heard the learned defence counsel and the learned APG and have also examined the record. Our observations are as follows.

8. At the outset, we have observed that the evidence in this case is replete with contradictions on the part of the prosecution. The learned trial court has failed to address important issues and, seems to have not applied its mind in reading the evidence before it and has given all the benefit of doubt to the prosecution.

9. Needless to say no identifying features of the pistols seized are stated in any document. Only the stereotyped description of .30 bore pistol is given. PW-1 Zulfiqar Ali is who was the complainant and the main witness in this case had categorically stated in the FIR and the memo of arrest and recovery and to a question in his cross-examination that the pistols seized were both without numbers. The same position is taken by the witnesses cited in the memo. To the contrary, the FSL report shows that one of the pistols sent to it for examination has the number BBP-14277 embossed on it.

10. PW-1 Zulfiqar Ali stated in his evidence that only the person sitting at the rear of the motorcycle had started firing on the police party with the intent to kill them. He also stated that subsequently the appellants also fired at the Rangers personnel. It is an admitted position that none of the members of the police party or the Rangers officials were injured in the alleged direct firing of the appellants at them. The police mobile was also not damaged. It is alleged that one bullet fired by the appellants hit one of the Rangers vehicle at the rear top of the vehicle. The FIR does not mention that the Rangers vehicle was hit, PW-1 Zulfiqar Ali in his cross-examination stated that "the jeep of the Ranger had received a bullet mark from its back side and this fact I have not mentioned in my memo." Interestingly, the memo of arrest and recovery he produced in evidence does state that a bullet mark exists on the vehicle No. 916788. A perusal of the memo of arrest and recovery appears to show that this fact has been added as an after thought on the side of the memo. It does not also appeal to common sense that the Rangers vehicle which ostensibly had the bullet mark which was admittedly followed by a mobile of the Rangers and then the appellants on the motorcycle could be hit in such a position by the firing of the appellants. It is pertinent to mention that contrary to Zulfiqar's statement, PW-2 Ashfaque stated that the Rangers mobile was ahead and the jeep behind it. PW-2 Ashfaque also admitted that he had not mentioned in his section 161, Cr.P.C. statement that the jeep was hit by a bullet. The investigating officer of the case PW-6 Sabz Ali who produced photographs of the bullet hit jeep admitted in his cross-examination that he had not taken the photos of the jeep. Be that as it may, the vehicle with the alleged bullet hole was never produced in evidence during trial.

11. The motorcycle used by the appellants in the crime, though seized, was never produced as evidence in trial. The investigation officer did not even deem it fit to inquire as to who the owner of the said motorcycle was.

12. PW-1 Zulfiqar Ali admits in his cross-examination that the memo of arrest and recovery was written by a police constable by the name of Aman. The witness to the memo PW-2 Muhammad Ashfaq and PW-3 Hasrat Khan both stated in their evidence that it was PW-1 Zulfiqar Ali who made the memo himself.

13. PW-1 Zulfiqar Ali in his examination in chief stated that appellant Umair received an injury on the right leg whereas appellant Hassan received an injury on his left leg. Subsequently, in his cross-examination he stated that both appellants had received injuries on their right legs.

14. PW-1 Zulfiqar Ali stated in his evidence that he sealed the pistols on the spot and that he affixed 4 seals on each parcel. The FSL report reveals that the parcels received by it had 2 seals each.

15. PW-1 Zulfiqar Ali and PW-3 Hasrat Khan both stated that the appellants blood was on the scene of the incident but no document contains this detail. In fact the memo of site inspection specifically stated that there were no blood marks at the scene of the incident. PW-4 Allah Ditta who is the police office who picked the injured and took them to the hospital in his evidence stated that he saw no blood on the spot.

16. By all accounts only the person sitting at the passenger seat of the motorcycle made the fire. This fact is specifically stated by the witnesses and this fact makes sense because it would be difficult for the driver of the motorcycle to ride the bike through apparently heavy contingent of police party and also fire at them. Interestingly, the weapons seized and the empties recovered from the appellants show by virtue of the FSL report that fires were made from both pistols. PW-2 Ashfaque who is a witness to the memo of arrest and recovery confirms that 5 empties were recovered and sealed by PW-1 Zulfiqar on the spot in his presence, yet, during his cross-examination stated that he does not remember how many empties were recovered from the scene as he had got counted them. Interestingly, PW-3 Hasrat Khan said to be an eye-witness to the incident categorically states that "noting was secured from the spot by the police".

17. PW-2 Ashfaque and.PW-3 Hasrat Khan both stated in their evidence that the police party arrived at the scene after the incident. If their version is correct then PW-1 Zulfiqar Ali's narration of facts regarding the firing is mere hearsay which he has tried to pass off as having occurred before him.

18. By all accounts it was between 6:15 p.m. and 6:30 p.m. that the appellants crossed the police party where they were directed to stop. Prosecution's own story is that the firing incident occurred even later. That the recoveries of the weapons and empties scattered on a busy main road was made and a mashirnama also prepared on the site. Yet, the MLO certificate shows that the injured were brought to the hospital at 6:40 p.m. To a prudent mind this timing does not make sense. It is pertinent to mention that P.W-3 Hasrat Khan stated in his evidence that about 25/30 minutes were taken by the police on the spot to fulfill all formalities.

19. The pistol used by PW-2 Ashfaque to fire at the appellants was not seized on the spot. It was handed over to the investigating officer 8 days after the incident by a Ranger official. When the same was sent for FSL examination, a specific question was asked as to how long ago was the weapon used. The FSL report remained silent on this question. While five empties of the bullets discharged by the appellants were found from the site of incident. No empty of the shots discharged by the Ranger personnel were found from the scene.

20. PW-1 Zulfiqar Ali and PW-2 Ashfaque, both supposedly eye-witnesses to the incident also contradict each other as to the identity of the appellant who made the fires. PW-1 Zulfiqar stated that it was Umair who made the fires while PW-2 stated that it was Hassan.

21. As noted above there are material contradictions and improvements in the prosecution case; the jeep hit by the appellants bullet was not produced in evidence; the motorcycle used in the incident was not produced in evidence; the weapon from which the appellants were injured was not seized on the spot instead was handed over to the investigating officer by an unconnected Ranger officials eight (8) days later claiming that it was the weapon used, the pistols seized were without numbers but the FSL report stated otherwise with respect to one of the pistols; no blood stains were found at the site of incident; no empties were recovered of the rounds discharged by the Ranger official; witnesses contradict each other as to the identity and number of appellants who fired; the complainant admits that somebody else made the memo of arrest of recovery; pistols seized were without identification marks yet the FSL report proves otherwise; the; no evidence was produced to prove that the bullet which hit the jeep was fired from the pistols seized; no person from the police or the Rangers was injured or even got a scratch, in spite of claims of direct firing with the intent to kill by the prosecution; doubts whether any police official even witnessed the occurrence; doubts in the timing of the incident and the arrival of the injured in hospital and numerous other contradictions in the witness statements lead us to believe that substantial doubt had been created and that the prosecution had not only failed but miserably failed to establish its case beyond reasonable doubt.

22. The above are the detailed reasons for the short order dated 16-2-2017 in terms of which the appeals were allowed and the appellants were acquitted of the charges. JK/M-122/Sindh Appeals allowed.