2018 P Cr (PLP)

YOUSUF ALI SAYEED, J.

The captioned Appeals under section 25 of the Anti-Terrorism Act, 1997 (the "ATA") call into question the Judgment dated 20.11.2015 passed by the Anti-Terrorism Court No. 5 at Karachi in Special Case Numbers 221 to 224 of 2014 (the "Underlying Cases"), whereby convictions were recorded against the Appellants under section 23(1)(a) of the Sindh Arms Act, 2013 (the "Arms Act") as well as section 4 and section 5 of the Explosive Substances Act, 1908 (the "Explosives Act"), read with S.7 of the ATA, and they were each awarded concurrent sentences of 14 years' rigorous imprisonment and to pay a fine of Rs.50,000/-, and, in case of non-payment, to undergo simple imprisonment for 6 months.

2. The prosecution's case is that a police party, acting on the basis of information received from an informant, encountered 5 suspicious persons at 1900 hours on 13.06.2015 opposite Ghousia Mobile Market, Shah Waliullah Road (the "Crime Scene"), within the jurisdiction of Police Station Baghdadi, Karachi. Firing ensued, and at 1905 hours the police succeeded in apprehending two of the assailants, namely the Appellants. Whilst the FIRs are silent as to how many rounds in all may have been fired, it was said that 6 empties of a .30 bore pistol, 2 empties of a 9-MM and 2 empties of a Kalashnikov were recovered from the Crime Scene. More importantly, it was said that the physical search of the Appellants was conducted on the spot in the presence of two members of the police party and that during such search one unnumbered and unlicensed 30 bore pistol loaded with one bullet in the magazine and another in the chamber was recovered from Abdul Karim, whereas, similarly, an unnumbered and unlicensed 30 bore pistol loaded with two bullets in the magazine and another in the chamber was recovered from Bakht Saeed. It is also said that during the further physical search of the Appellants, two hand grenades were recovered from each of them one per trouser pocket. FIR Nos. 173/2014 to 177/2014 were registered at P.S. CID Sindh, Karachi the same day at 2015 hours.

3. The learned trial Court charged the Appellants with offences under sections 353, 324, 34, P.P.C. read with section 7 of the ATA arising from FIR No.173/2014, which came to be the subject of Special Case Number 220 of 2014 (the "Main Case"), and, in relation to FIR Nos. 173/2014 to 177/2014, also charged each of them with offences under the Arms Act and the Explosives Act, as came to be the subject of the Underlying Cases.

4. Whilst assailing the impugned Judgment, learned counsel for the Appellants contended that neither of the Appellants has a prior criminal record, and submitted that the entire encounter was a fabrication and a case of false implication. He further submitted that the Appellants had been acquitted in the Main Case, and the prosecution in the Underlying Cases had failed to conclusively establish the factum of recovery of the munitions and explosives as alleged. He submitted that the prosecution evidence was rife with material contradictions and that, implausibly, neither any police personnel, nor the Appellants or any bystander at the Crime Scene or even any property in the vicinity was said to have been struck by a bullet during the exchange of fire. He further submitted that albeit the prosecution failing to discharge the burden of proof, the learned trial Judge misread the evidence and failed to resolve the benefit of doubt in favour of the Appellants, which runs contrary to the fundamental tenet of criminal law. He prayed that the Impugned Judgment be set aside accordingly.

5. Whilst admitting to the acquittal of the Appellants in the Main Case, being Special Case Number 220 of 2014 under sections 353, 324, 34, P.P.C., read with section 7 of the ATA, and the absence of any prior criminal record, the learned APG otherwise controverted the other submissions made on behalf of the Appellants in defense of the impugned Judgment.

6. We have considered the record and the submissions made by learned counsel for the Appellants as well as the learned APG. As per the depositions of Bakht Saeed as well as those of his family members and the father of Abdul Karim, the Appellants were arrested by the Rangers from their places of residence on 04.06.2014 and 06.06.2014 respectively. Bakht Saeed has gone on to say that he was detained for several days at an unidentifiable location and was then handed over to CID Garden police and falsely implicated in the Main Case and the Underlying Cases. From the depositions of prosecution witnesses, members of the public were said to be present at the Crime Scene at the time of the encounter. However, whilst one of the prosecution witnesses, SIP Muhammad Tahir (PW.1), puts this number at not more than 10 to 12, the approximate number is estimated by another of the prosecution witnesses, HC Muhammad Saleem (PW. 2), as being in the region of 100 persons. While the presence of a considerable number of bystanders is to be expected considering that the encounter is said to have happened at the Mobile Market at what must in all probability have been a busy time of day (i.e. 1905 hours), none were produced to bear witness to the occurrence. Although this is simply put down by the prosecution witnesses as unwillingness on the part of the members of the public to come forward, it does not explain why neither the police personnel at the Crime Scene at the time of the occurrence not the JO subsequently made the necessary effort in that regard. In fact, SIP Muhammad Tahir (PW.1) states in his deposition that he never gave notice to any person. Furthermore, Inspector Syed Bazahat Ali, the IO of the Underlying Cases, has confirmed that no previous criminal record of the Appellants was found to exist, that he did not see any bullet marks at the Crime Scene, that he did not associate any private witness albeit the Crime Scene being a populated area, and has also conceded that he had not even read the BDU Report. Needless to say, all of this detracts from the credibility of the investigation and the case of the prosecution.

7. Additionally, SIP Muhammad Tahir (PW.1) placed the informer with the police party whereas HC Muhammad Saleem (PW.2) stated that he was on a motorcycle. Moreover, whilst SIP Muhammad Tahir (PW.1) initially deposed that the munitions and explosives said to have been recovered were sealed in cloth parcels that were signed by the official mashirs, when confronted therewith at the stage of evidence, he had to concede, however, that no such signatures were visible. To our minds, these contradictions and inconsistencies are not readily reconcilable. Even otherwise, it merits consideration that the FIRs as well as the Memo of Arrest and Seizure specify that the pistols recovered from the Appellant were unnumbered. These initial documents are also bereft of any description or identifying marks or numbers on the hand grenades said to have been recovered. However, a perusal of the subsequent Examination Report dated 14.07.2014 issued by the Office of the AIG, Forensic Division, shows that one of the 30 bore pistols bears serial number FF 2608, whereas the Clearance Certificates issued by the Bomb Disposal Unit as well as the subsequent Inspection Reports of the hand grenades dated 30.06.2014 bearing Reference Nos. SB/BDU/654 and SB/BDU/655 clearly evince that the grenades also bear the description of ARGES-69 Hdgr. Additionally, it also merits consideration that the Clearance Certificate issued by the Bomb Disposal Unit, Security Special Branch, Karachi are dated 28.06.2014. It is scarcely conceivable that an explosive device would have been retained for 15 days from the alleged date of recovery without being made safe, and the answer to this perhaps lies in the fact that on examination the grenades were found to be without detonators.

8. In our view, the aforementioned factors coupled with the absence of any prior criminal record serve to create appreciable doubt as to the veracity of the prosecution's case. It scarcely requires any exposition that the standard of proof beyond a reasonable doubt is inextricably intertwined with the presumption of innocence, which is the fundamental principal of all criminal trials. Needless to say, such burden rests on the prosecution throughout the trial and never shifts to the accused. However, whilst the Appellants were entitled to the benefit of such doubt, the same was not accorded to them at trial. Moreover, the Appellants already stand acquitted in the Main Case, and admittedly the State has not seen fit to challenge such acquittal. As such, we are of the opinion that the impugned Judgment cannot be sustained.

9. These are the reasons for the short Order dictated in these Appeals in open Court on 20.04.2017 whereby the captioned Appeals were allowed and the Appellants were acquitted of the charges. JK/A-52/Sindh Appeals allowed.