2019 PLP 1117 (YLR)

RASHEED AHMED SOOMRO, J.

Through these appeals the Appellants have assailed the judgement dated 21.12.2017, whereby the learned 1st. Additional Sessions Judge, Malir and Special Judge, Anti-Terrorism, Malir, Karachi has convicted the Appellants for offence under section 324, P.P.C. read with section 7 ATA, 1997 and sentenced them to suffer ten years' R.I. each and to pay fine of Rs.5000/- each, in case of default they shall suffer two months' S.I. more and also convicted for offence under sections 353, 34, P.P.C. and sentenced them to suffer two years' R.I. each. The appellants were also convicted for the commission of offence punishable under Section 23-1(a) Sindh Arms Act, 2013 and sentenced them to suffer ten years' R.I. each.

2. The brief facts of the prosecution case are that the complainant SIP Raja Azmat Mehmood lodged FIR on 25.02.2017 at 0330 hours, stating therein that he along with his subordinate staff namely PC Mohammad Saleem, PC Mohammad Waris and others was busy in search of absconding accused in government mobile No.SPL-0720. During searching, he received spy information that one political party of some askari wing having a large quantity of arms and ammunition were going on towards the Jaffar Tayyar graveyard. On such information, they rushed at the pointed place, who while seeing the police party tried to hide themselves in Ghazi Town, Karachi. In the meanwhile, at about 0025 hours five persons, who entered into the graveyard, from whom three persons had kit bags upon the shoulders, who while seeing the police party started firing upon them with intention to kill them and to deter the police officials from performing their lawful duties. In retaliations, police also fired on the accused persons, due to encounter police apprehended three persons with kit while two persons ran away. Due to non-availability of private mashirs, PC Muhammad Saleem and PC Mohammed Azhar were acted as mashirs. On inquiry, accused disclosed their names as Anwar Hussain @ Waqas son of Ghulam Hussain, Asif Mumtaz and Khurram. From the body search of accused Anwar Hussain, secured one 30 bore pistol without number, containing magazine and two bullets, one bag in which LMG, two repeaters 12 bore and two Kalashinkov with two empty magazines, one rifle 7-MM with empty magazine and cash of Rs.250/-. From the body search of accused Asif Mumtaz, secured one 30 bore pistol loaded magazine and two live rounds and one kit bag in which two kalashinkov with empty magazine, two repeaters 12 bore, one pistol 30 bore with empty magazine, one rifle 7MM with empty magazine and cash of Rs.410/-. From the body search of accused Khurrum Shahryar, secured one 30 bore pistol without number containing magazine with three live rounds, one bag in which 25 rounds of 30 bore pistol, 50 rounds of Kalashinkov, 20 rounds 7 mm and 20 cartridges of 12 bore rifle and cash of Rs.70/-. On inquiry, accused could not produce any valid licenses of their respective weapons. Thereafter SIP prepared the mashirnama of arrested recovery on the spot in presence of mashirs. Thereafter they brought the arrested accused persons and case properties at police station where separate FIRs were lodged against them under the above referred sections.

3. After usual investigation, challan was submitted against the accused Anwar Hussain, Asif Mumtaz and Khurrum Shehryar.

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 Anwar Hussain, Asif Mumtaz and Khurrum Shehryar as Ex.4. Accused pleaded not guilty and claimed to be tried.

6. At trial, prosecution examined in all three witnesses, who produced investigation papers. Thereafter, prosecution side was closed.

7. The statements of the appellants were recorded by the trial Court under Section 342, Cr.P.C., at Exs. 9, 10 and 11, in which the accused persons have claimed their false implication in these cases and denied the recovery of arms and ammunition from their possession and stated that police officials are interested and arms and ammunition have been foisted upon them. The appellants did not lead evidence in defence and declined to give statement on oath in disproof of prosecution allegations.

8. On the conclusion of the trial, after hearing both the parties, learned trial Court vide judgment dated 21.12.2017 convicted and sentenced the appellants/ accused as mentioned above. Thereafter, these appeals have been preferred.

9. Learned counsel for the appellants contended that the impugned judgment is illegal, unlawful, arbitrary and is unwarranted by law and the learned trial Court did not consider the improvements, discrepancies and contradictions in the statements of PWs while deciding the case. He further contended that as per contents of memo of arrest and recovery, FIR/ FIRs and 161 statement of prosecution witnesses that the alleged recovered pistols are without number but as per FSL report, number is rubbed, which is very contradictory, further submitted that memo of arrest and recovery, FIR/ FIRs and 161 statement of PWs are also not showing about the shape, size colour or any identity mark of alleged recovered weapons or ammunition, which creates serious doubts, means thereby, alleged recovery has been foisted upon them by the police with mala fide intention and ulterior motives, but the learned trial Court did not consider this fact at the time of deciding the impugned judgment, hence liable to be set aside and acquit the appellants/accused. He further contended that as per contents of memo of arrest and recovery and FIR, the instant case does not fall within the ambit of Sections 6 and 7 ATA, 1997, it is submitted that per prosecution story, no person was available on the spot at the time of occurrence, no panic situation was created in the public or community or create a sense of fear or insecurity in society, it is further submitted that neither police party nor accused persons were injured in cross firing between them nor bullet hit to police mobile or any wall of graveyard surrounding the place of incident. He further contended that the trial Court committed gross illegality while passing the impugned judgment and awarded the sentence/conviction to the appellants arbitrarily and has also failed to consider very important point of recovery which was effected from the thickly populated area but no person from the locality was cited as Mashir of the arrest and the alleged recovery, and neither I.O. of this case inquired about the incident from locality or grave digger and watchman of graveyard nor cited any private witness as mashir of memo of incident. He also contended that the learned trial Court has erred in holding that the prosecution has proved the case against the appellants while there is contradictory evidence which is not trustworthy due to material contradiction and convicted the appellants illegally and the same is result of mis-reading of facts and evidence on record. Lastly, learned counsel contended that the prosecution has failed to prove its case against the appellants.

10. Learned Deputy Prosecution General argued that the evidence of the police officials is as good that as of any other person. Joint mashirnama has not caused any prejudice to the appellants. The trial Court has rightly convicted the accused on the basis of cogent and confidence inspiring evidence. He has 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. We have come to the conclusion that the prosecution has failed to prove its case against the appellants for the reasons that four cases were registered against the appellants, one case bearing No.27/2017 under Sections 353/324/34, P.P.C. 7, ATA and other cases bearing Nos. 28, 29 and 30/2017 under Section 23- 1(a) Sindh Arms Act, 2013, joint mashirnama was prepared in presence of the mashirs, all the four cases were tried and decided by the same Court. The learned trial Court believed the prosecution evidence and convicted appellants without assigning sound reasons. Learned defence counsel contended that the arms and ammunitions recovered from accused persons were sealed at spot and the same were sent to the ballistic expert along with empties for examination with the delay of seven days, which has not been explained properly by the prosecution as such prosecution case was highly doubtful.

13. It was stated by the complainant that on 24-02-2017 he was posted as SIP CTD Police Station Karachi on the same day he along with subordinate staff at about 10:15 pm left police station to arrest in search of absconding culprits during patrolling from different place when they reached at Malir 15 stop, at some distance he received the spy information that five terrorists belonging to one political party were available at Jaffar e Tayyar graveyard, Ghazi Town with intention to hide weapons in the graveyard. On such information, according to them they proceeded to the pointed place, if for the sake of argument it is believed that they proceeded to the pointed place on information then they were under lawful obligation to have associated with them independent person to witness the possible arrest and recovery, it was not done by them for no obvious reason. In that situation, their proceeding to the place of incident appeared to be doubtful. It was further stated by them that they reached to place of incident at 0025 hours, apprehended the appellants after encounter, recovered arms and ammunition, those were sealed, mushirnama of arrest and recovery was prepared at the spot. The perusal of such mushirnama reveals that it was prepared at 0030 hours, if it was so then where the time consumed in apprehending the appellants making inquiry, conducting their search and affecting the recovery gone?. No explanation to it has been offered by the prosecution, in that situation the very preparation of mushirnama of arrest and the recovery allegedly at the place of incident have become doubtful. It was further stated by them that the appellants with recovery so made from them then were taken to the police station where they were booked in the present cases formally and after usual investigation were challaned.

14. Perusal of evidence reflects that complainant in his cross-examination admitted that no arrival or departure entry was kept at Police Station Malir City. He further admitted that nobody was injured from the either side nor police mobile was damaged due to firing. He further admitted in his cross-examination that no specific marks of weapon are shown in the mashirnama. Record further reflects that the I.O. of the case admitted that near the graveyard there are many houses and Imambargah. I.O. further admitted in his cross-examination no entry of recovery and encounter was made in the roznamcha of P.S. Malir City. He also admitted that he had not secured any empty bullets from the place of incident and there is one petrol pump. He admitted that all the weapons secured from the possession of accused persons were without number and the pistol is not in working condition so also one Kilashinkov is also not in working condition.

15. Above evidence of the prosecution shows glaring contradictions, so also, the FSL report did not support the version of the prosecution, as the report shows that the recovered arms and ammunitions were not in working condition.

16. Lapse on the part of the police is clear and admitted. Wisdom behind sealing the weapons at the place of incident is to eliminate the possibility of manipulation of evidence after the recovery of the crime weapons. Sealing of weapons is essential, particularly in cases when it is alleged that weapon was used in the commission of crime and empties were secured from the vardat. In these cases, according to prosecution, huge quantity of arms and ammunitions were recovered from the possession of the appellants. In such situation, arms and ammunition were to be sent to the ballistic expert for examination and report so as to connect the appellants in the commission of crime but/I.O. of the case sent case property to the FSL on 04.03.2017 with the delay of seven days. Unfortunately, this exercise has been completed in this case with a delay of seven days and reasons of such delay have not been explained. The learned DPG could not satisfy the Court about such omission/ delay. According to the defence plea, the appellants were in custody of the police before registration of the case but such plea has been disbelieved by the trial Court without assigning cogent reason. No doubt, police officials as citizen are as good witnesses in Court proceedings as any other person yet, some amount of care is needed when they are only eye-witnesses in the case. It is not on account of an inherent defect in their testimony but due to a possibility that an individual police official and not all, might in mistaken zeal to see that the person he believes to be a culprit, is convicted, might blur line between duty and propriety. It is settled law that in the exercise of appreciation of evidence it is necessary as prerequisite, to see whether witness in question is not such an overzealous witness. In this case, on spy information police party proceeded towards pointed place, had sufficient time to call independent and respectable persons of locality to make them mashirs in this case but it has not been done. Their testimony appears to be unnatural and untrustworthy, particularly in the background of the enmity alleged with the police officials. The plea taken by the appellants that they were already arrested on 22.02.2017 by the CTD Police from their houses and such news was also published in daily newspaper "JANG", which fact also creates doubt upon the story of the prosecution. All these factors create doubt in the prosecution case. Prosecution has to prove its case against the accused beyond reasonable doubt, in these cases there are several circumstances, which create doubt in the prosecution case. In this regard, reliance can be placed on the case of Tariq Pervez v. The State reported as 1995 SCMR 1345.

17. For above stated reasons we have come to the conclusion that prosecution had failed to prove its case against the appellants beyond reasonable doubt. These Special Anti-Terrorism Appeals Nos. 18, 19, 20 and 21 of 2018 are, therefore, allowed, the conviction and sentence awarded to appellants, namely, Anwar Hussain, Asif Mumtaz and Khurram Shaheryar, vide judgment dated 21.12.2017 are set aside and they are acquitted of the charge by extending benefit of doubt. They shall be released from jail forthwith if not required to be detained in connection with any other case. These are the reasons of our short order dated 10.08.2018. JK/A-130/Sindh Appeal accepted.