2022 PLP 1557 (MLD)

ABDUL MOBEEN LAKHO, J.

Muhammad Faisal, the appellant was tried by the learned Judge Anti-Terrorism Court No.1, Karachi, in Special Cases No. 291 and 291-A of 2019 arising out of FIR No. 122 of 2019 for offences under Sections 353, 324, P.P.C. read with Section 7 Anti-Terrorism Act, 1997 and FIR No. 123/2019 for offence under Section 23(1)(a) of Sindh Arms Act, 2013, registered at P.S Bilal Colony, Karachi. The learned trial Court, vide judgment dated 29.07.2019, convicted the appellant under Section 7(b) of Anti-Terrorism Act, 1997 to suffer 10 years R.I and to pay fine of Rs.50,000/-. In case of default in payment of fine, he was ordered to suffer 06 months SI more. Appellant was convicted under Section 324, P.P.C. and sentenced to suffer 05 years' R.I and to pay fine of Rs.20,000/- and in case of default, he was ordered to suffer 03 months SI more. Appellant was convicted under Section 353, P.P.C. and sentenced to suffer 01 year R.I and to pay fine of Rs.2000/-. In case of default, he was ordered to suffer 01 month S.I more. Appellant was also convicted under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to suffer 05 years' R.I and to pay fine of Rs.20,000/-. In case of default in payment of fine he was ordered to suffer 06 months S.I more. All the sentences were directed to run concurrently and appellant was also extended benefit of Section 382-B, Cr.P.C.

2. The brief facts of the prosecution case are that on 16.04.2019, AS1 Raja Aamir Ali along with his subordinate staff was on patrolling and during patrolling at 1430 hours, when the police party reached at Chase Department Store, Sector 5/L, North Karachi, they saw one person in suspicious condition, police tried to stop him, but the accused fired upon the police patty with intention to kill them and one bullet hit to police mobile, police also fired in retaliation, resultantly, accused sustained fire arm injury. Accused was apprehended by the police and on inquiry he disclosed his name as Muhammad Faisal. Upon his personal search police recovered on 9mm pistol bearing No.126962 containing two bullets, mobile and some cash. ASI Raja Aamir Ali also secured four empties of 9mm pistol from the place of incident, which were sealed at the spot and such mashirnama was prepared in presence of mashirs. Thereafter, accused and case property were brought at police station from where accused was referred to the hospital for his treatment and certificate. ASI Raja Aamir Ali lodged FIRs against the accused at P.S Bilal Colony vide Crime No. No. 122 of 2019 for offences under Sections 353, 324, P.P.C. read with Section 7 Anti-Terrorism Act, 1997 and Crime No. 123/2019 for offence under Section 23(1)(a) of Sindh Arms Act, 2013 against the accused on behalf of State.

3. Inspector Ghulam Murtaza investigated the case. Investigating Officer inspected the place of incident and prepared such mashirnama in presence of the mashirs. He recorded 161, Cr.P.C. statements of the PWs, dispatched recovered pistol and empties for FSL and received positive report. On the conclusion of usual investigation submitted challan against accused under sections 353, 324, P.P.C. read with section 7 of the Anti-Terrorism Act, 1997 as well as under section 23(1)(a) of the Sindh Arms Act, 2013.

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

5. Upon indictment, accused pleaded not guilty and claimed to be tried.

6. At trial, prosecution examined ASI/Complainant Rana Aamir Ali (PW-01) at Ex.5, Dr. Abid Haroon Memon (PW-02) at Ex.6, PC Ameer Bux (PW-03) at Ex.7 and Inspector Ghulam Murtaza Gopang (PW-04) at Ex.8. Thereafter, prosecution side was closed vide statement at Ex.9.

7. Statement of accused was recorded under section 342, Cr.P.C. in which accused claimed his false implication in this case and denied the prosecution allegations. Accused raised plea that police demanded gratification from him, on his refusal he was involved in the present case. Accused did not lead evidence in his defence and declined to give statement on oath as provided under Section 340(2), Cr.P.C, in disproof of prosecution allegations.

8. Trial court after hearing the learned counsel for the parties and assessment of the evidence convicted and sentenced the appellant vide judgment dated 29.07.2019 as stated above, hence this appeal.

9. The evidence produced before the trial Court finds an elaborate mention in the judgment dated 29.07.2019 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

10. Learned counsel for the appellant mainly contended that prosecution case is highly doubtful. It was day time incident, thickly populated area and there was cross firing but except appellant none received injury; that ASI Raja Aamir Ali failed to produce departure entry of police station before the trial court, which cuts the roots of the prosecution case; that place of incident was situated at Chase Departmental Store, but not a single independent person of the locality has been examined by the prosecution; that ASI Raja Aamir Ali has admitted that he did not ask the private persons to act as mashir in the case; that no blood was found by the I.O at the time of inspection of place of incident; that prosecution has failed to establish the safe custody of the crime weapon at the malkhana of police station and its safe transit to ballistic expert. Finally, it is argued that appellant may be acquitted from the charges. In support of his contentions learned counsel for appellant has relied upon the case of Kamaluddin alias Kamala v. The State (2018 SCMR 577), Zeeshan alias Shani v. The State (2012 SCMR 428) and Iltaf Hussain v. The State (1996 SCMR 167).

11. Mr. Muhammad Iqbal Awan, learned Deputy Prosecutor General Sindh argued that accused was arrested in injured condition at spot; crime weapon was recovered from his possession; report of ballistic expert was positive. He has further argued that evidence of police officials was trustworthy and confidence inspiring and they had no enmity to falsely implicate the accused in this case. Learned D.P.G. prayed for dismissal of the appeal.

12. We have carefully heard the learned counsel for the parties and scanned the evidence available on record.

13. As per prosecution story the alleged encounter took place on 16.04.2019 at 1430 hours near Chase Departmental Store, a very thickly populated area and according to ASI Amir Ali, it continued for five minutes but surprisingly except accused, no injury was either caused to police party or even to the passersby. Non-production of the arrival and departure entries of police station also cut the roots of the prosecution case. Even I.O. has not found any blood while conducting inspection of the place of incident. ASI Aamir Ali admitted in his evidence that private persons were present but he did not ask them to act as mashir. As such best possible evidence was deliberately not produced. Presumption would be that in case private persons might have been examined they might have not supported the prosecution case. The argument that public witnesses do not come forward because of risk to their life and liberty. There is no dearth of citizens of strong views and character who would come out to support such like cases provided they were taken into confidence, given due respect and were ensured that full protection would be given to them. The Honourable Supreme Court in the case reported as Iltaf Hussain v. The State (1996 SCMR 167) as held as under: "The argument that public witnesses do not come forward to support such like recoveries because of risk to their life and liberty, nonetheless could not absolve the Police of their heavy responsibility to produce witnesses from public. There is no dearth of citizens of strong views and character who would come out to support such like cases provided they were taken into confidence, given due respect and were ensured that full protection would be given to them, in case, they aided the law-enforcers to curb the crimes in the best interest of the society as a whole. There may be cases where public witnesses could not be produced because of their non-availability due to odd hours of the night or the day or where the, recovery was effected from a deserted place or during the dead of night. The position in this case was just the reverse because, admittedly, recovery was effected from a populated area where several other people who saw the recovery of kalashnikov were present but no efforts were made to join them to witness the occurrence. We, accordingly, hold that evidence of Police witnesses who are, in a way, the complainant could not solely be accepted to be relied upon to convict the appellant, especially, when the aforesaid public witness was abandoned without any rhyme or reason. The possibility that the appellant was implicated with some ulterior motive could not be ruled out. For all these reasons, we have no alternative but to acquit the appellant by setting aside his conviction and sentence by giving him benefit of doubt. He is on bail and as such, shall be discharged from the liability of his bail bond. The appeal succeeds and is allowed."

14. Even the prosecution has also failed to establish the safe custody of the recovered pistol and empties at the police station as neither Incharge of the Malkhana examined nor any entry has been produced by the prosecution to prove the safe custody of the pistol and empties at the police station. Non-production of any witness concerned with such custody would certainly render the recovery unbelievable and doubtful as held by the Honourable Supreme Court in 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 Office; 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.

15. In the cases of police encounter, the standard of proof should have been far higher as compared to any other criminal case. It was, thus, desirable and even imperative that it should have been investigated by some other agency. Police, in this case, could not have been investigators of their own cause. Such investigation which is woefully lacking independent character cannot be made basis for conviction, that too when it is riddled with many lacunas and loopholes as mentioned above. The same principle has been laid down by the Honourable Supreme Court in case of Zeeshan alias Shani v. The State (2012 SCMR 428). Relevant portion is reproduced as under: "The standard of proof in this case should have been far higher as compared to any other criminal case when according to the prosecution it was a case of police encounter. It was, thus, desirable and even imperative that it should have been investigated by some other agency. Police, in this case, could not have been investigators of their own cause. Such investigation which is woefully lacking independent character cannot be made basis for conviction in a charge involving capital sentence, that too when it is riddled with many lacunas and loopholes listed above, quite apart from the afterthoughts and improvements. It would not be in accord of safe administration of justice to maintain the conviction and sentence of the appellant in the circumstances of the case. We, therefore, by extending the benefit of doubt allow this appeal, set aside the conviction and sentence awarded and acquit the appellant of the charges. He be set free forthwith if not required in any other case."

16. Defense plea has been raised by the appellant that he was picked up, by the police officials near his house on his refusal to give illegal gratification. I.O failed to examine such plea during investigation even trial Court ignored defense evidence without assigning cogent reasons.

17. Evidence of police officials as discussed above in the above stated circumstances, required independent corroboration, which is lacking in this case. In these circumstances and after an independent assessment of evidence available on record, we have come to an irresistible conclusion that prosecution has failed to prove its case against the appellant beyond reasonable doubt. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as a matter of right. Reliance is placed on case Muhammad Akram v. The State (2009 SCMR 230), in which, Hon'ble Supreme Court of Pakistan has observed in para-13 of page 236 as under:- "The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case .of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace and concession, but as a matter of right."

18. For the above stated reasons, the Special Criminal Anti-Terrorism Jail Appeal No. 248 of 2019 is allowed. Consequently, impugned judgment dated 29.07.2019 passed by learned Judge Anti-Terrorism Court No.I, Karachi, in Special Cases Nos. 291 and 291-A of 2019 arising out of FIR No.122 of 2019 for offences under Sections 353, 324, P.P.C. read with Section 7 Anti-Terrorism Act, 1997 and FIR No.123/2019 for offence under Section 23(1)(a) of Sindh Arms Act, 2013, registered at P.S Bilal Colony, Karachi stand set aside. Appellant is acquitted from the aforesaid charges and he be released forthwith, if not required in other case. These are the reasons for the short order announced on 21.01.2021 as follows: "Heard arguments of Mr. Muhammad Farooq, learned counsel for appellant, namely, Muhammad Faisal as well as Mr. Muhammad Iqbal Awan, learned Deputy Prosecutor General Sindh. For the reasons to be recorded later on, Special Criminal Anti-Terrorism Jail Appeal No.248 of 2019 is allowed. Conviction and sentence recorded by the trial court vide judgment dated 29.07.2019, in Special Cases Nos.291 and 291-A of 2019, arising out of FIRs Nos.122 and 123 of 2019, registered at P.S. Bilal Colony, Karachi, for offences under sections 353, 324, P.P.C. read with Section 7 of the Anti-Terrorism Act, 1997 and Section 23(1)(a) of the Sindh Arms Act, 2013, are set aside. Appellant Muhammad Faisal son of Abdul Kalam shall be released forthwith if not required in some other case." JK/M-58/Sindh Appeal allowed.