2023 P Cr (PLP)

ABDUL MOBEEN LAKHO J.

Appellant Ashique Ali alias Kamran has preferred the instant appeal against the judgment dated 22.10.2020, passed by the learned Anti-Terrorism Court-VIII, Karachi in (Special Old Case No. 163/2020)/New Special Case No.45/2020 arising out of FIR No.553/2020 for offence under sections 4/5 of the Explosive Substances Act, 1908 read with section 7 of the Anti-Terrorism Act, 1997, lodged at P.S Shah Latif Town, Karachi. After full-dressed trial, the appellant was convicted under section 5 of the Explosive Substances Act, 1908 and sentenced to suffer 05 years' R.I and to pay fine of Rs.50,000/-. In case of default, he was ordered to suffer 06 months' S.I more. Appellant was also extended benefit of section 382-B, Cr.P.C.

2. The brief facts of the prosecution case are that on 09.06.2020, SIP Rajab Ali along with his subordinate staff left police station for patrolling in the area. During patrolling, SIP Rajab All received spy information that a person is standing near Kacha Road Jumma Himayati Qabrastan near Railway Phatak in suspicious condition. SIP Rajab Ali reached at the pointed place at 0015 hours and apprehended a person, who, on inquiry, disclosed his name as Ashiq Ali alias Kamran. SIP Rajab Ali conducted his personal search and from his shoulder pocket, recovered one hand grenade along with its pin No.58349 in blue color shopper, cash and cell phone, which were sealed on spot and arrested the accused in presence of mashirs and such memo was prepared. Accused and case property were brought at police station where FIR was registered by SIP Rajab Ali against the accused, on behalf of state. Under above referred sections.

3. After registration of the FIR, the investigation was entrusted to Inspector Muhammad Younus Palejo. On 10.06.2020, I.0 inspected place of incident on the pointation of the complainant and prepared such memo in presence of mashirs, took photographs of the place of incident and recorded statements of witnesses under section 161, Cr.P.C. On 11.06.2020, he issued letter to the Home Department Government of Sindh, Karachi for obtaining necessary sanction. Investigating Officer received final report of Bomb Disposal Unit and after completing usual investigation submitted charge sheet for an offence under sections 4/5 of Explosive Substances Act, 1908 read with section 7 of Anti-Terrorism Act, 1997.

4. The trial Court framed charge against accused at Ex.04, to which accused, pleaded not guilty and claimed to be tried.

5. At the trial, prosecution examined SIP Syed Sajjad Hussain Kazmi (PW-01) at Ex.5, HC Muhammad Javed (PW-02) at Ex.6, SIP Rajab Ali (PW-03) at Ex.9 and Inspector Muhammad Younus Palejo Investigating officer (PW-04) at Ex.10, who produced the relevant documents at trial. Thereafter, the prosecution side was closed vide statement at Ex.11.

6. The statement of accused was recorded under section 342, Cr.P.C. at Ex.12, wherein he has totally denied the allegations levelled by the prosecution and pleaded his false implication in the present case. The accused however, did not opt to examine himself on oath in disproof of the prosecution allegations. Accused/Appellant did not lead evidence in his defence.

7. Learned trial Court after hearing the learned counsel for the parties and evaluation of the evidence produced at trial, vide its' judgment dated 22.10.2020, convicted and sentenced the appellant as stated above, hence this appeal is preferred by the appellant.

8. The evidence produced before the trial Court finds an elaborate mention in the Judgment dated 22.10.2020 passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

9. Learned counsel for the appellant argued that there are material contradictions in the evidence of the prosecution witnesses and prosecution story was highly doubtful; that there is difference in the number of the hand grenade; that there is no evidence regarding safe custody of the hand grenade at malkhana of the police, station and safe transmission to expert. Lastly, it is argued that the prosecution has failed to prove its case against the accused learned advocate for the appellant prayed for acquittal of the appellant.

10. On the other hand, learned D.P.G. contended that all four PWs have fully supported the prosecution case; that contradictions as highlighted by the defence counsel are minor in nature and evidence of the Police officials is reliable as they had no motive to falsely implicate the appellant in this case.

11. We have carefully heard the learned counsel for the parties and meticulously evaluated the entire evidence.

12. We have come to the conclusion that prosecution has failed to prove its' case against the appellant beyond shadow of doubt for the reasons that prosecution story appears to be unnatural and unbelievable. According to the prosecution story appellant was armed with hand grenade but as to why he did not use it when he saw the police party for the purpose to avoid his arrest. After arrest police officials brought the appellant and the hand grenade to the police station. The prosecution also failed to establish the safe custody of the recovered hand grenade at the police station. SIP Syed Sajjad Hussain Kazmi of BDU (PW-01) stated that ASI Tariq Mehmood brought explosive substance to P.S, which statement clearly shows that explosive substance was not kept in the police station and was kept somewhere outside the police station. Neither said ASI Tariq Mehmood nor incharge of the Malkhana have been examined by the prosecution to prove the safe custody of the hand grenade at the police station. Even perusal of arrival entry dated 09.06.2020, we did not find a single word about keeping the said property in safe custody or anywhere else either it was kept at malkhana of the police station or was handed over to anybody. SIP Rajab Ali has also failed to produce any extract of the Register to prove the custody of the hand grenade at police station. Non production of any witness concerned with such custody would certainly render the recovery unbelievable and doubtful. Rightly reliance has been placed upon the case reported as Kamal Din alias Kamal v. The State (2018 SCMR 577), wherein the Honourable Supreme Court has held as under:

4. As regards the alleged recovery of a Kalashnikov from the appellant's custody during the investigation and its subsequent matching with some crime-empties secured from the place of occurrence suffice it to observe that Muhammad Athar Farooq DSP/SDPO (PW18), the Investigating Officer, had divulged before the trial court that the recoveries relied upon in this case had been affected by Ayub, Inspector in an earlier case and, thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial court through production of any witness concerned with such custody and transmission.

13. Perusal of record transpired that spy information was received by SIP Rajab Ali (PW03) near Usmania Hotel, but no plausible explanation was offered by the prosecution why police did not associate any independent person from the place of information to witness the arrest and recovery proceedings. The I.O has also failed to interrogate the appellant that with what intention he was carrying such explosively substance. Defense plea has been raised by the appellant that he was picked up by the Rangers Personnel from his house. Investigating Officer failed to examine such plea during investigation even trial Court ignored defense evidence without assigning cogent reasons.

14. As regards to the argument of learned Deputy Prosecutor General, Sindh that appellant is involved in other criminal cases, as such, he is habitual offender and therefore, not entitled for any relief. However, we are not agreed with the learned Deputy Prosecutor General, Sindh for the reasons that mere saying that appellant remained involved in criminal cases is not enough. Nothing on record to show that present appellant was previously convicted in any such type of case. In so far as the case in hand is concerned, despite repeated queries by this Court, learned Deputy Prosecutor General, Sindh has failed to establish that the appellant was ever convicted in any case registered against him, therefore, he cannot be refused relief if otherwise under the law they become entitled for such relief. In this respect, reliance is placed upon the case reported as Jafar alias Jafri v. The State (2012 SCMR 606), wherein the Hon'ble Supreme Court has held as under; "

8. We have heard the learned Counsel for the parties and have also gone through the contents of the compromise. As at present no sufficient evidence is available on record to conclude that the accused/appellant is habitual offender, coupled with the fact that although another FIR, referred to by the learned Additional P.G., has been registered against him but it, itself is not sufficient to prove the appellant to be so, unless it is proved/established that he has been convicted in the said FIR and the said conviction has been finally maintained by the superior Courts. Therefore, we have decided to dispose of this case in terms of compromise."

15. As regards the evidence of the police officials is concerned, no doubt, evidence of the police officials cannot be discarded simply because they belong to police force; however, where the fate of the accused persons hinges upon the testimony of police officials alone, it is necessary to find out if there will any possibility of securing independent person at the relevant time. The present case was the case of spy information, it was not difficult for the police to associate a private person of the locality but the police officials deliberately avoided. Accused in his statement recorded under section 342, Cr.P.C. has specifically claimed false implication in this case by the law enforcement agencies. In these circumstances, we are unable to rely upon the evidence of police officials without independent corroboration and it would be unsafe to maintain the conviction without independent piece of evidence. Learned counsel for the appellant has rightly relied upon the case of Saifullah v. The State (1992 MLD 984 Karachi), Relevant portion is reproduced as under "

8. The evidence of police officials cannot be discarded simply because they belong to police force, In Qasim and others v. The State reported in PLD 1957 Kar. 233, It was held: "A police officer is as good a witness as any other person. The standard of judging his evidence is the same on which the evidence of any other witness is judged. However, in a case of this nature where the fate of an accused person hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing Independent persons at that time. Judicial approach has to be cautious in dealing with such evidence."

16. In these circumstances and after an independent evaluation of evidence available on record, we have no manner of doubt in our minds that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt. It is settled principle of law that benefit of all the favourable circumstances shall be extended to the accused as held in the case of Abdul Jabbar and another v. The State (2019 SCMR 129).

17. For the above stated reasons, we have come to the conclusion that prosecution has miserably failed to bring home the guilt of appellant. Resultantly, conviction recorded by the learned Trial Court vide judgment dated 20.10.2020 is not sustainable under the law and is also liable to be set aside.

18. For the foregoing reasons, captioned Appeal is allowed. Consequently, impugned judgment dated 20.10.2020 passed by learned Judge, Anti-Terrorism Court No. VIII, Karachi in (Special Old Case No. 163/2020)/ New Special Case No.45/2020 arising out of FIR No. 553/2020 for offence under sections 4/5 of the Explosive Substances Act, 1908 read with section 7 of the Anti-Terrorism Act, 1997, lodged at P.S Shah Latif Town, Karachi stand set aside. Appellant Ashique Ali alias Kamran son of Sukhio Baloch is acquitted from the aforesaid charge and he be released forthwith, if not required in other case. These are the reasons for the short order announced on 02.02.2021. JK/A-57/Sindh Appeal allowed.