2017 PLP 1097 (YLR)

Ss. 324, 353 & 34

Anti-Terrorism Act (XXVII of 1997), S. 7

Sindh Arms Act (V of 2013), S.23(1)-A

Explosive Substances Act (VI of 1908), Ss. 4/5

Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of duty, common intention, act of terrorism, possessing unlicensed arms, possessing explosives with intend to endanger the life or property

Appreciation of evidence

Benefit of doubt

Allegation against the accused persons was that they made firing upon police party with the intention to commit their murder, which subsequently converted into encounter and thereby they allegedly had created terror, panic sense, fear and insecurity in the mind of complainant as well as the general public

Prosecution had alleged that offence had occurred in odd hours of the night

Circumstances suggested that none amongst the public was available nor had felt any fear or terrorism while observing the existence of accused persons as none from the public was attracted or even claimed by prosecution to have been there

Neither the accused persons had displayed the alleged ammunition and explosives nor it had been established in evidence that in order to create terror and panic situation among the public, the accused had displayed the same

Prosecution, therefore failed to establish that accused persons created terror by committing the alleged offence

Complainant and prosecution witnesses had supported the version of FIR but such narration, prima facie, did not appear to be natural or confidence inspiring for the reasons that despite alleged claim of an encounter, neither any of the police officials nor vehicle received any scratch

No empties were recovered from place of incident

No empty allegedly spent by the complainant party was collected by the Investigating Officer during investigation

Prosecution failed to show that they were having any particular weapons

In the absence of some tangible evidence, the allegation of encounter had not been proved

Complainant had deposed that FIR and memos of recovery and arrest were drafted by police official but the said police official had not been made as witness of the occurrence

Presence of police official who prepared the memos on the spot had not been justified through departure entry

Attending circumstances suggested that no offence as alleged had taken place and police party had completed all the paper formalities at the police station

Attending circumstances had created doubt about the veracity of the prosecution case, benefit of which resolved in favour of accused

Accused were acquitted by setting aside conviction and sentences recorded by the Trial Court. Shoukat Baig v. Shahid Jamali PLD 2005 SC 530 rel.

Burden of proof

Principle

Prosecution was duty bound to prove its accusation

Prosecution could not be benefited from the failure or inability of the defence.

Recovery of weapon of offence

Evidentiary value

Recovery, being a corroborative piece of evidence, would be relevant only where primary evidence i.e. ocular account stood well with the test of being confidence inspiring.

Ss. 324, 353 & 34

Anti-Terrorism Act (XXVII of 1997), S. 7

Sindh Arms Act (V of 2013), S.23(1)-A

Explosive Substances Act (VI of 1908), Ss. 4/5

Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of duty, common intention, act of terrorism, possessing unlicensed arms, possessing explosives with intent to endanger the life or property

Appreciation of evidence

Recovery of weapon of offence

Reliance

Benefit of doubt

Kalashnikovs and hand grenades were allegedly recovered from the possession of accused persons

Weapon of offence (Kalashnikovs) were not certified by the Forensic Science Laboratory or any Expert as to whether they were in working condition or not

Record showed that weapons as well as hand grenades were sent for firearm examination after six days of their recovery

Prosecution had no explanation for keeping the ammunition in their custody for about six days although the Forensic office was situated in the same city

Forensic report was negative--Admittedly hand grenades were without detonators and having no explosive substance

Weapons of offence and hand grenades allegedly recovered from the possession of accused persons were doubtful in circumstances and could not be made basis for sustaining conviction

Accused persons were acquitted in circumstances by setting aside conviction and sentences recorded by Trial Court. Muhammad Nawaz v. State 2016 SCMR 267; Ayub Masih's case PLD 2002 SC 1048 and Inayat Ali v. Shahzada 2008 SCMR 1565 rel.

Assertion of complainant

Evidentiary value

Mere saying of word from the mouth of the complainant did not constitute any offence unless corroborated by tangible evidence.

Benefit of doubt

Principle

Not necessary to gather many circumstances to extend benefit of doubt

Slightest doubt created in the prosecution case was sufficient to extend the benefit of doubt to the accused.