2020 P Cr (PLP)

AFTAB AHMED GORAR, J.

The captioned Special Criminal Anti-Terrorism Appeal(s) are interconnected as well as arising out of one and the same judgment dated 10-04-2018 delivered by the learned Judge, Anti-Terrorism Court No. XVI, Karachi whereby; appellants were convicted and sentenced. We therefore, would like to dispose of the same altogether through this common judgment.

2. The sum and substance of the prosecution story as is envisaged in the FIR through ASIP Ghufran [complainant] Police Station, Shareefabad are that:- "On 04-05-2017 he was posted as ASI at Police Station Shareefabad. On that day he left Police Station along with his subordinate staff namely HC Haji Mehmood, PC Yasin, PC Shakeel and PC Ashfaque in police mobile-II No.SPD-057 at about 0805 hours vide entry No.02 for patrolling purpose. After patrolling at different places when they reached at inside road Siraj-u-Dola College, F.C. Area, Shareefabad, Karachi at about 0945 hours, where found two persons on a motorcycle in a suspicious condition and stopped them. When checked they disclosed their names as (1) Muhammad Ahsan Kamal son of Kamal Ahmed, (2) Abdul Hameed alias Asif son of Abdul Qadir, due to non-cooperation of private witnesses they were searched in presence of police witnesses. The person who was sitting on back seat of motorcycle namely Muhammad Ahsan Kamal, who was holding one Mourser .30 bore wrapped with cloth, black colour, on which body written in English as CAL .30 bore pistol made USA, with 04 rounds was recovered and from his pant right side pocket one Awan Bomb silver colour was also recovered and from further search one Q-Mobile touch screen, one CNIC in the name of accused and cash Rs.750/= were also recovered. From the possession of accused Abdul Hameed alias Asif one T.T. Pistol of .30 bore loaded with three live bullets in Magazine, plastic handle of pistol was broken without number was recovered and from his further search one Awan Bomb, ATM card, card of Anjuman Godra, cash Rs.1100/= were also recovered. When ASI demanded licenses of the recovered weapons they failed to produce the same, the recovered weapons were taken into police custody seized at the spot. The act of both accused persons falls under sections 4/5, Explosive Substances Act read with section 7, A.T.A. and 23(1)(a) of Sindh Arms Act, 2013 and both accused were arrested accordingly. Accused failed to produce the license and permission to keep the weapon and explosive substance in their possession. He also recovered one motorcycle. Accused were also failed to produce registration book of the motorcycle, therefore, ASI also seized the motorcycle under section 550, Cr.P.C. Thereafter ASI made the arrest of accused and prepared the memo of arrest and recovery. Then he brought the accused and the case property at PS where he lodged FIR bearing Nos.78/2017 and 79 of 2017 under sections 4/5, Explosive Substance Act, 1908 read with 7 Anti-Terrorism Act, 1997, and under section 23(1)(a) of Sindh Arms Act, 2013; against the accused according to law."

3. After the case was challaned before the competent court of Law. Compliance of section 265-C, Cr.P.C. were carried out and such receipt vide Exhibit-2. A formal charge at Ex.5 was framed and read over to the accused to which accused pleaded not guilty vide Ex.5 and 5/A respectively.

4. Prosecution was able to proven the charge examined PW-1 Inspector Masab Hussain [BDU] at Ex.7; PW-2 SIP Ghufran [complainant] at Ex.8, PW-3 PC Ashfaque [mashir] at Ex.9, PW-4 Inspector Sarfaraz Ali Khawaja [Investigation Officer] at Ex.10; prosecution closed his side vide Ex.11. The statement of accused as provided under section 342, Cr.P.C. was recorded vide Ex.12 but appellant did not choice to put themselves into witnesses box in disprove of the charge neither intend to adduce evidence through defence witnesses as provided under section 340(2), Cr.P.C.

5. Mr. Mumtaz Ali Khan Deshmukh, Advocate, representing the appellant Muhammad Ahsan Kamal in Spl.Crl. A.T.As. Nos. 131 and 132 of 2018 contended that all the prosecution witnesses are police personnel are interested witnesses in absentia of an independent corroboration; per learned counsel for appellant that appellant is quite innocent and has been falsely implicated in the present case only to show efficiency nothing else; per learned counsel the impugned judgment is the result of misreading and non-reading of entire evidence so as produced by the prosecution; per learned counsel learned trial court has totally ignored the major contradictions as are evident from the record; per learned counsel PW-1 has admitted that rifle grenade cannot be operated except Launcher; per learned counsel PW-1 admitted that time as alleged has been shown in all the cases regarding clearance certificate is one and the same; per learned counsel there are major contradictions in the evidence of prosecution witnesses as otherwise once PW-2 SIP Ghufran Ali being complainant deposed that he handed over FIR, memo of arrest and recovery, custody of accused as well as case property to Inspector Sarfaraz Khawaja, on the other hand Inspector Sarfaraz Ahmed Khawaja stated that memo of arrest and recovery, case property, custody of accused was handed over to him by SHO Akram Arain for conducting investigation; there are glaring contradictions in the handing and taking over of accused as well as mashirnama and the case property; per learned counsel there is no isolated and specific role of commission of act which attributed to the appellant; per learned counsel the appellant is government employee and is serving since last six years; per learned counsel learned trial court has only awarded sentence and conviction only upon assumption and presumption therefore the impugned judgment may be set aside, the instant Criminal Anti-Terrorism Appeal(s) may be allowed and appellant may be acquitted from the charged offence.

6. Mr. Jawaid Ahmed, Advocate, represent appellant in Special Criminal Anti-Terrorism Appeal(s) Nos. 133 and 134 of 2018 opt the arguments advanced by the learned counsel for the appellant in Spl. Crl. A.T.As. Nos.131 and 132 of 2019 and further contended that through the impugned judgment the sentence and conviction awarded to the appellant is not the result of appreciation of entire evidence of the prosecution so as brought on record; per learned counsel in the impugned judgment several glaring contradiction are very much predict but learned trial court has over looked all the lacuna's on the part of the prosecution; per learned counsel in all the FIRs the time of seizure and arrest of accused recovery of alleged property is one and the same, therefore it gives presumption that same has been foisted upon the appellant; per learned counsel after evaluating all the major contradictions, the instant Special Criminal Anti-Terrorism Appeal(s) may be allowed and appellant may be acquitted from the charged offence.

7. Mr. Sagheer Ahmed Abbassi, Assistant Prosecutor General Sindh representing the State contended that the impugned judgment is well reasoned and is the result of evidences which had come on record against the appellant(s) went proven against the appellant; per learned APG there was odd hours of the night and no source of an independent witnesses was never available at the scenario; per learned APG learned trial Court has rightly sentenced and convicted the appellant(s); per learned APG there is no such defence plea taken by the appellant in the statement provided under section 342, Cr.P.C. or to bring defence evidence by producing defence witnesses in disprove of the charge as provided under section 340(2), Cr.P.C.; per learned APG there is nothing wrong with the impugned judgment which requires interference; per learned APG this is a common crime which is against the spirit of society public at large; per learned APG the sentence and conviction so recorded by the learned trial Court in the impugned judgment is good in the eyes of law and same may be upheld.

8. We have heard learned counsel(s) representing the appellants and learned Assistant Prosecution General Sindh at length and perused the entire record available.

9. It is now by well settled provision of criminal law that this court has to reappraise the entire evidence for safe administration of justice. PW-1 Inspector Masab Hussain of BDU at Ex.7 admitted in the cross-examination that" "It is correct to say that the rifle grenade cannot operate without launcher. It is correct to say that I have mentioned timing over clearance certificates about 1930 hours to 2030 hours in all three certificates of crimes Nos. 78/2017, 79/2017 and 80/2017 of Police Station Shareefabad. I received three rifle grenades of same Police Station of crimes Nos.78/2017, 79/2017 and 80/2017 therefore I have mentioned checking time from 1930 hours to 2030 hours. It is correct to say that I have not produced carbon copy of entries before this court during my examination in chief I received three rifle grenades of all three cases from ASI Muhammad Pervaiz." PW-2 SIP Ghufran [complainant] admitted in the cross-examination as follows:- "It is correct to say that in the entry of departure I have not mentioned about the police mobile registration number. It is correct to say that I have not produced carbon copy of roznamcha entries during my examination-in-chief. It is correct to say that such facts of broken handle of mouser has not been mentioned in the memo and FIR. It is correct to say that in my statement recorded under section 161, Cr.P.C., FIR and memo that mouser recovered from the possession of accused Ahsan Kamal was with close butt. It is correct to say that over the mouser some words VINCHESTER are mentioned but such words are not mentioned in the memo, FIR and my statement recorded under section 161, Cr.P.C. It is correct to say that in the service card of accused Ahsan Kamal his designation has been mentioned as Executive Engineer of KMC. It is correct to say that in the memo of arrest and recovery as well as my statement recorded under section 161, Cr.P.C. it has not been mentioned that from where we came at the place of arrest and recovery. It is correct to say that some number are mentioned over the Awan bombs but I have not mentioned the same number in the memo of arrest and recovery, FIR and in my statement recorded under section 161, Cr.P.C. It is correct to that petrol pump and main gate of college are situated at a distance of 50/60 yards from the place of arrest and recovery is a busy area. It is correct to say that I have not prepared the sketch of the Awan bomb over the memo. PI Sarfaraz also tried to call privates person to act as mashir of inspection of place of incident but no private person stopped there." PW-3 PC Ashfaque admitted in the cross-examination as follows:- "It is correct to say that as per my statement recorded under section 161, Cr.P.C. by PI Sarfraz it has been mentioned that after inspection of the place of incident I and ASI Ghafran signed over the memo but memo produced at Ex.8/E my name as co-mashir has not been mentioned and HC Haji Mehmood has signed over the memo as co-mashir. It is correct to say that number VMG-50-07(33) over Awan Bomb neither has been mentioned in the memo nor in my statement. It is correct to say that pistol and mouser produced in the court which it has been mentioned words call-30 bore the pistol made in china by Norinco and in mouser as words WINCHSTER are written but the same words are not mentioned in my statement recorded under section 161, Cr.P.C. It is correct to say that hand grip of the mouser is also broken but such facts has not been mentioned in the memo. It is correct to say that cloth in which mouser was kept at the time of recovery is not present with case property. We arrested accused at a distance of about 20/25 paces from Total Petrol Pump. ASI did not try call any private person to act as mashir of arrest and recovery from petrol pump and other place." PW-4 Sarfraz Khuwaja, Inspector [Investigation Officer] at Ex.10 admitted in the cross-examination as follows:- "It is correct to say that in the FIR No. 79/2017 timing of lodging of FIR has been mentioned as 11:20 a.m., when I received hand grenade of both cases at that time these were not sealed in the plastic jar. It is correct to say that the number of hand grenades have not been mentioned in the challans/charge sheets as well as statements of PWs recorded under section 161, Cr.P.C. During inspection of place of arrest and recovery I made inquiry from the private person but they did not cooperate with me. It is correct to say that in the statement of PW HC Haji Mehmood recorded under section 161, Cr.P.C. it has not been mentioned that Inspector Sarfraz inspected the place of arrest and recovery in his presence. It is correct to say that such facts I have not mentioned in the final charge sheet of both cases. It is correct to say that in Ex.10/E order of Home Department in which recovery of hand grenade has not been mentioned. It is correct to say that in Ex.10/B in the column of recovery one mouser 30 bore of black colour with four live bullets has not been mentioned while in the contents of the letter one T.T. Pistol of 30 bore black and three live bullets have been mentioned. It is correct to say that in Ex.10/B there is overwriting in the timing 11-20 a.m. It is correct to say that during examination in chief I have not produced entry in respect of deposited case property in the malkhana of register No.19 of Police Station Shareefabad."

10. We have carefully scrutinized like microscope manner entire evidences as has been brought on record as well cross-examination of the prosecution witnesses minutely and have been convinced that there are series of major contradictions in the evidence of prosecution witnesses which cannot be overlooked.

11. The FIRs and memo of arrest and recovery shows number engraved on the recovered hand-grenades but the Bomb Disposal Unit (BDU) report and clearance certificate could not show number engraved on the alleged recovered grenade. The appellant and co-accused were not confronted about question of .30 bore rifle in their statements under section 342, Cr.P.C. which causes apparent flaw which goes in favour of appellant and his co-accused. It is worth mentioning that in the evidence of PWs the recovered .30 bore pistol mouser was broken butt, but FIR could not contain it whether it was broken butt or otherwise, such question is also missing in the statement recorded under section 342, Cr.P.C. It is pertinent to mention here that in number of cases the Hon'ble Supreme Court of Pakistan has held that all the incriminating pieces of evidence which if not put to accused at the time of recording of his statement under section 342, Cr.P.C., the same could not be used against him. In this respect reliance may be placed to the cases reported as Imtiaz alias Taj v. The State and others (2018 SCMR 344), Qaddan v. The State (2017 SCMR 184), Muhammad Nawaz v. State (2016 SCMR 267) and Muhammad Shah v. The State (2010 SCMR 1009).

12. It is also crystal clear from the record that there is two days delay in sending the Awan bomb to the Senior Superintendent Technical Branch Karachi as per Ex.7/D and 8/D respectively. As per evidence recovery of rifle grenade from the possession of appellants is concerned, same was recovered on 04.05.2017 and record reflects that same were examined by the Bomb Disposal Unit on 05.05.2017 at about 1930 to 2030 hours, after delay of twelve hours of arrest, so also .30 bore pistol was also examined on 05.05.2017 by the Forensic Division Sindh Karachi there is no plausible explanation furnished by the prosecution about the delay in sending the case property. Be that as it may, the report of incharge Bomb Disposal Squad could not reflects about number engraved on the recovered rifle grenade. PW-1 admitted in the examination in chief that I have mentioned checking time from 1930 hours to 2030 hours but it is not clear that how much time was consumed upon which recovered property and no such entries either original or the carbon has been produced.

13. Exhibit 10/C examination report of Forensic Division Sindh Karachi disclosed one 30 bore rifle without number as otherwise Ex.8/B disclosed number of .30 bore mouser of black colours, the English words "CAL-30 Bore Pistol Made in USA", therefore such contradiction/infirmity has also created serious dent in the prosecution case.

14. The evidence of police officials in this case was not trustworthy and reliable and required independent corroboration, it was lacking in this case. Reliance in this regard may be placed on the case reported as PLD 2004 Supreme Court 39 (The State v. Muhammad Shafique alias Pappo), in which, the Honourable Supreme Court has observed as under:- "

13. It has been established by the evidence of Muhammad Saeed Abid C. W. that the respondents were neither the owners of said house nor tenants. It being so, it is very hard to believe that they were occupying it B and were living therein. Learned High Court specifically noted that despite the fact that it was known to the prosecution that the house belonged to aforesaid witness, yet, no evidence was collected to show that the respondents were in its possession. Neither Chowkidar nor labourers nor neighbours were joined by the investigating agency to demonstrate that ever any of them was seen entering or coming out from it. The alleged recoveries of explosive substances, weighing about 30 kgs a kalshankov with 25 live rounds loaded in the magazine from under the mattress of respondents Abdul Jabbar and a wooden box from under said bed of respondent Muhammad Shafique, containing 10 detonators 10 igniters, a T. T pistol loaded with six live rounds, do not inspire confidence, as so C much could not be concealed under said mattresses. Besides, Mashir of recovery namely Muhammad Usman, as right held by High Court, was stock witness of the prosecution, as in the cases related to FIRs Nos.58, 59, 61, 62, 68 of 1998 and 16 of 1999 he was cited as prosecution witness of recovery. IT is a strong circumstances, which creates doubt about credibility of this witness, particularly when other witness Mushir Abdur Rehman was not examined."

15. 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 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.

16. In presence of such lacunas in the prosecution case we are of the considered view that the conclusion drawn and reasons recorded by the learned trial Court do not show fair evaluation of evidence, which is not in accordance with the settled principle in circumstances, therefore, impugned judgment is a result of erroneous and unreasonable lines of reasoning and merits interference by this Court owing to the fact of miscarriage of justice.

17. In light of discussion held supra there are several circumstances/infirmities in the prosecution case as highlighted above, which created reasonable doubt about guilt of accused. In the case of Tariq Pervaiz v. The State 1995 SCMR 1345, the Hon'ble Supreme Court has observed as follows:- "It is settled law that it is not necessary that there should be many circumstances creation doubt, if there is a single circumstance which creates doubt in the prudent mind about the guilt of accused then the accused will entitled to benefit not as a matter of grace ad concession but as matter of right."

18. The upshot of above discussions is that prosecution has failed to prove its case against the appellants beyond reasonable doubt. Resultantly, while extending benefit of doubt, these appeals are allowed. Conviction and sentence recorded by the trial court vide impugned judgment dated 10.04.2018 are set aside. Appellants are acquitted of the charge. Appellants shall be released forthwith, if not required in any other case. These are the reasons of short order dated 19-02-2019. JK/M-49/Sindh Appeals allowed.