2019 PLP 670 (MLD)

RASHEED AHMED SOOMRO, J.

Through these appeals the Appellant has assailed the judgment dated 31.05.2017, whereby the learned Judge, Anti-Terrorism Court No.XII, Karachi has convicted the Appellant for offence under sections 4/5 of Explosive Substances Act, 1908 read with section 6(2)(cc) 7 ATA, 1997 and sentenced them to suffer fourteen (14) years R.I. and to pay fine of Rs.10,000/-, in case of default he shall suffer six months' S.I. more. Benefit of Section 382-B of Cr.P.C. was also extended to the appellant.

2. The brief facts of the prosecution case are that on 01.07.2017, SIP Kamal Khan Khattak of P.S. Manghopir along with HC Muhammad Siddique, PC Mushtaque Hussain, PC Zameer Hussain and D.P.C. Ghulam Sarwar, boarded in official APC were busy in patrolling to curb the crime in the area. During patrolling when they reached at Surjani Town leads towards Manghopir Road in front of Al-Ghazi Villas at about 0005 hours, saw there one person in suspicious condition, who tried to escape to see the APC vehicle of police and also arrested, who disclosed his name as Samad Ali son of Shaukat Ali. On his search in presence of mashirs, one TT Pistol of .30 bore un-numbered along with loaded magazine containing four live bullets from the left fold of Shalwar and also from right side pocket of his Qamees, one hand grenade of Khaki colour, upon which 47 and on its clip 31-84y3PTM-2 was embossed. On his further search from front of his Qamees cash of Rs.1120/- in the denomination currency notes of Rs.1000+100+

20. He also failed to produce valid license of weapons. Hence FIRs/ cases under sections 4/5 of Explosive Substance Act read with Section 7 ATA, 1997 and 23(i)-A of Sindh Arms Act, 2013 were registered.

3. After usual investigation, submitted was challan against the accused Samad Ali son of Shaukat Ali.

4. Learned trial Court ordered for joint trial as provided under section 21-M of the Anti-Terrorism Act, 1997.

5. Trial Court framed the charge against accused as Exh.4. Accused pleaded not guilty and claimed to be tried vide separate plea at Exh.04/A.

6. At trial, prosecution examined in all four witnesses, who produced investigation papers.

7. The statement of the appellant was recorded by the trial Court under Section 342, Cr.P.C., at Exh. 10, in which the accused has claimed his false implication in these cases and denied the recovery of explosive substance and .30 Bore TT Pistol from his possession and stated that police officials are interested and explosive substance have been foisted upon him and declined to give statement on oath in disproof of prosecution allegation.

8. On the conclusion of the trial, after hearing both the parties, learned trial Court, vide judgment dated 31.05.2018, convicted and sentenced the appellant as mentioned above. Thereafter, these appeals have been preferred.

9. Learned counsel for the appellant contended that the inspection of the explosive substance was delayed for three days; no independent persons were cited as mashirs of arrest and recovery; Investigation Officer has failed to cite mashirs of the memo of inspection of place of vardat; there is overwriting in the 161, Cr.P.C. statement of the PWs. and mashirnama of arrest and recovery. Learned counsel further contended that the Investigation Officer has been penalized by his department for such omissions and no empties were found before the trial Court when case property was de-sealed.

10. Learned Deputy Prosecutor General has contended that the accused was arrested by the police and he was found in possession of the pistol and hand grenade. He further contended that the defence plea has not been substantiated by the accused at trial and there was no question of the defence that while sending the case property to the expert, delay was caused for maneuvering purpose and the prosecution has proved its case. He opposed the above appeals and supported the impugned judgment.

11. We have carefully heard the learned Counsel for both the parties and scanned the entire evidence available on record.

12. Record reveals that on 01.07.2017 SIP Kamal Khan Khattak of Police Station Manghopir along with his subordinate staff left P.S. in order to curb the crime in the area, and during patrolling, when police party reached at Surjani Town leading towards Manghopir Road, found appellant in suspicious condition, who on seeing the APC vehicle of police tried to escape but he was arrested and one TT Pistol of .30 bore along with 04 live bullets and one Hand Grenade from the side pocket of his shirt were recovered from his possession. It appears that there is delay of 03 days in sending the Pistol to the Laboratory (FSL) for Ballistic Expert's report for which there is no plausible explanation has been furnished. Such delay is fatal and material and it becomes significant where the circumstances of the case tend to tilt the balance in favour of accused.

13. As far as the recovery of Hand Grenade from the possession of appellant is concerned, the same was recovered on 01.07.2017 but record reflects that same was defused on 04.07.2017 and during period of 04 days where it was kept for which also there is no explanation with the prosecution.

14. That PW-3 Muhammad Siddique in his cross-examination has deposed that memo. of site inspection was not prepared at the spot nor it discloses the name of mashirs. It further appears that there is an over-writing in the month of date i.e. 04.07.2017 of Clearance Certificate issued by the Bomb Disposal Unit, which fact has also been admitted by PW 1 Abid Frooque in his cross-examination. This fact alone would render the prosecution case highly doubtful.

15. Admittedly, the place of occurrence is a thickly populated area and the persons from the public despite being present and available were not called upon to become the mashirs of recovery of pistol except police officials who are interested witnesses. As such, prosecution case suffers from independent evidence regarding recovery, which creates serious doubt in the case of prosecution, particularly in the circumstances when enmity has been alleged against police officials.

16. That mashirnama of recovery does not disclose the number of recovered pistol but the report of Laboratory (FSL) discloses as rubbed number of pistol, and such contradiction has also created serious doubt in the prosecution case.

17. Prosecution has failed to establish safe custody of weapons at Police Station and safe transit to chemical examiner.

18. The most important aspect of the case is that since very beginning the appellant has taken the defence plea that he has enmity and such applications have been moved by him against the SHO PS Surjani town and others and on the background of such enmity he has falsely been involved by foisting weapons and such applications and receipt have also been placed on record but the learned trial Court has failed to consider this aspect of the case while passing the impugned judgment, which also created serious doubt in the case of the prosecution.

19. In criminal cases the burden of proving its case lies on the prosecution and the prosecution is duty bound to prove the case against the accused through reliable evidence, direct or circumstantial and that too beyond reasonable doubt. Besides this, it is a settled principle of law, that if there is an element of doubt as to guilt of an 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 with law.

20. In presence of such lacunas in the prosecution case we are of the considered view that the conclusion drawn and reasons advanced by learned trial Court do not show fair evaluation of evidence, which is not in accordance with the settled principles in criminal cases, therefore, impugned judgment is a result of erroneous and unreasonable lines of reasoning and merits interference by this Court to erase the effect of miscarriage of justice.

21. In view of the above stated reasons, we have no hesitation to hold that there are several infirmities in the prosecution case as highlighted above, which have created doubt. In the case of Tariq Pervez v. The State (1995 SCMR 1345), the Honourable Supreme Court has observed as follows:- "It is settled law that it is not necessary that there should many circumstances creating doubts. If there is a single 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."

22. For what has been discussed above a conclusion is inescapable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. These appeals are, therefore, allowed. While extending benefit of doubt, the conviction and sentence awarded to the appellant is set aside and he is acquitted of the charge. Appellant shall be released forthwith if not required in some other case. JK/S-86/Sindh Appeals allowed.