2021 PLP 134 (YLRN)

ABDUL MOBEEN LAKHO, J.

Sohail alias Kashif son of Muhammad Asif appellant was tried by learned Judge, Anti-Terrorism Court No. IV, Karachi, Division in Special Case No.121/2019, (FIR No.24/2019), under sections 353, 324, P.P.C. read with section 7 of Anti-Terrorism Act, 1997 and Special Case No.121-A of 2019, (FIR No.25/2019), under section 23(1)(a) of the Sindh Arms Act, 2013 both registered at Police Station Jamshed Quarter, Karachi. On conclusion of the trial, vide judgment dated 30.10.2019, the trial Court convicted the appellant under sections 353/ 324, P.P.C. read with section 7(h) of Anti Terrorism Act, 1997 and sentenced to five years R.I. and to pay fine of Rs.20,000/-. In case of default he was ordered to suffer imprisonment for six months more. Appellant was further convicted under section 23(1)(a) of the Sindh Arms Act, 2013 and sentenced to 03 years R.I. and to pay fine of Rs.10,000/-. In case of default he was ordered to suffer imprisonment for three months more. All the sentences were directed to run concurrently. Appellant was extended benefit of section 382-B, Cr.P.C.

2. Brief facts of the prosecution case are that ASI Tanvir Abbasi along with subordinates staff namely PCs Agha Yasir, Amanullah and Driver Mazhar Hussain left PS for patrolling and when the police party reached at Lyari Expressway corner, Majeed Colony near Muhammadi Masjid, at 0030 hours, they noticed that a suspected boy was coming on Motorcycle bearing No.BRU-1283, who was signaled to stop but he started firing at police party with intention to kill which hit on front side hood of the police Mobile. In retaliation, police also fired and succeeded to apprehend accused in injured condition. On enquiry he disclosed his name as Sohail son of Muhammad Asif. ASI conducted personal search of the accused and recovered 30 bore pistol without number having magazine loaded with two live rounds and one round loaded in chamber from his right hand so also some cash and a mobile phone. The accused could not produce the license of the weapon carried by him. The pistol and bullets sealed on the spot. ASI also secured two empties of 30 bore pistol, 3 empties of 9mm pistol and 3 empties of SMG, which were sealed at the spot and prepared such mashirnama of arrest, recovery and seizure in presence of mashirs PCs Agha Yasir and Amanullah. The recovered Motorcycle was also found to have been stolen property, which was also taken into custody under section 550, Cr.P.C. Thereafter, accused and case property were brought at police station FIR No.24/2019 under sections 353, 324 read with Section 7 of Anti-Terrorism Act, 1997 and FIR No.25/2019 under section 23(1)(a) of Sindh Arms Act, 2013 were registered at Police Station Jamshed Quarters on behalf of State.

3. Inspector Malik Muhammad Akram investigated the case and received the case papers, case property as well as custody of accused. I.O. inspected the place of wardat on the pointation of complainant ASI Tanveer Abbasi and prepared such Mashirnama in presence of mashirs. He recorded statements of prosecution witnesses under section 161, Cr.P.C., sent pistol and empties to Ballistic Expert for report. On conclusion of the usual investigation, challan was submitted against accused under the above referred sections.

4. Learned trial Court amalgamated the aforesaid both the cases for joint trial, in terms of section 21-M of Anti-Terrorism Act, 1997.

5. Trial Court framed the Charge against accused at Ex.4. Upon indictment, the accused pleaded not guilty and claimed to be tried.

6. In order to substantiate the charge, prosecution has examined PW-01 Tanveer Ahmed Abbasi, PW-02 Agha Yasir PW-03 Inspector Malik Muhammad Akram/Investigating Officer, who produced the relevant documents. Thereafter, prosecution side was closed.

7. Statement of accused was recorded under section 342, Cr.P.C. as Ex.11, in which he denied the prosecution allegations levelled against him. Accused opted not to examine himself on oath as required under section 340(2), Cr.P.C. However, produced his wife namely Ms. Nadia as DW-01 as Ex.12. She stated that on 13.01.2014, her husband was picked up by officials in civil dresses and she made an application to the SHO of Police Station Jamshed Quarters regarding such detention, which she produced as Ex.12/A.

8. After hearing the arguments of learned counsel for the parties and assessment of evidence brought on record, the learned trial Court vide judgment dated 30.10.2019, convicted and sentenced the appellant as stated above.

9. The evidence produced before the trial Court finds an elaborate mention in the judgment dated 30.10.2019 passed by the trial Court, therefore, the same is not reproduced here in order to avoid duplication and unnecessary repetition.

10. Learned counsel for the Appellant argued that the accused is innocent and has falsely been implicated in these cases. He further submitted that there are material contradictions in the evidence of the prosecution witnesses. He further stated that though it is alleged by the prosecution that accused fired upon them at the distance of 15 paces, but no one from the police received any injury. Learned counsel further contended that Police Mobile was sent for FSL after four days and the same was not produced before the trial Court so also Motorcycle, which was allegedly used by the Appellant in the commission of the offence. Pistol allegedly recovered from the possession of the appellant was shown as without number but Ballistic Expert described the same as rubbed number. It is contended that no proof of safe custody of the pistol and empties was produced at trial. He further submitted that the Appellant was picked up from his house by the police on 13.01.2019, who demanded bribe for his release but on his refusal he was implicated in this false case. He further submitted that wife of the Appellant Ms. Nadia had also moved an application before SHO of Police Station Jamshed Quarters, Karachi regarding alleged arrest of her husband, which application was much prior to the incident. Lastly, it is argued that appellant deserves acquittal.

11. On the other hand, Learned Additional Prosecutor General Sindh argued that prosecution has successfully established the charge against the Appellant. Appellant was arrested on the spot and recovery was effected from him after encounter. During encounter Police Mobile also damaged from the bullet which was fired by the appellant. He further argued that there is no delay in sending pistol and empties recovered from the possession of Appellant to FSL office for examination and positive report is received. Appellant has previous criminal record which shows that accused is habitual criminal. All the PWs fully supported the version of prosecution; therefore, the instant appeal is liable to be dismissed.

12. We have heard the learned counsel for the appellant and learned Additional Prosecutor General and with their assistance perused the record and evidence recorded during the trial carefully.

13. Upon scrutiny of the evidence it transpires that the prosecution story was highly unbelievable and fraught with material contradictions as according to prosecution an encounter took place near Express way on 17.01.2019 at 12:30 a.m. (midnight), between accused and police party said to be a case of cross-firing with sophisticated weapons wherein appellant was caught hold. However, surprisingly the complainant, ASI Tanveer Ahmed in his evidence deposed that appellant fell down after sustaining the bullet injury in such encounter, whereas PW-2/mashir PC Aga Yasir has contradicted the said position and deposed that the appellant fell down due to fear from the motorcycle and in cross-examination, he categorically stated that no one from either side received any bullet injury which statement is further augmented by the fact that neither any medical certificate is produced at trial by the prosecution to substantiate the version of the complainant regarding receiving of bullet injury by the appellant nor the I.O. has also disclosed that he received the custody of injured accused. It is unbelievable that there was cross firing with sophisticated weapons, but none from either side received any fire arm injury.

14. It is further observed that number of pistol was rubbed as per report of ballistic expert, but this fact is not mentioned in the mashirnama of recovery of pistol. It has created doubt in the prosecution case. positive report of ballistic expert in the above stated circumstances would not improve the case of prosecution.

15. Evidence of police officials as disclosed above required independent corroboration, which is missing in this case. The defence pleas raised by the accused that he was picked up by the official in civil dresses from his house prior to the incident and pistol was foisted upon him and in order to prove such plea, the appellant also examined his wife who produced an application dated 14.01.2019 at Ex.12(a) also showing receiving at the police station thus involvement of the appellant in a fake police encounter appear to be plausible. However, the learned trial Court disbelieved the same without assigning any reason. Apart from above material contradictions and discrepancies, safe custody of the recovered weapon and empties at police station and their transmission to the FSL have never been proved by the prosecution at trial, thus such recoveries cannot be safely relied upon. The Honourable Supreme Court in the case reported as Kamal Din alias Kamala v. The State (2018 SCMR 577) 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.

16. 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.

17. 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).

18. For the above stated reasons, we have come to the conclusion that prosecution has miserable failed to bring home the guilt of appellant. Resultantly, conviction recorded by the learned Trial Court vide judgment dated 30.10.2019 is not sustainable under the law and is also liable to be set aside.

19. For the foregoing reasons, captioned Appeal is allowed. Consequently, impugned judgment dated 30.10.2019 passed by learned Judge, Anti-Terrorism Court No. IV, Karachi Division in Special Case No.121/2019 (arising out of Crime No.24/2019 under sections 353/324, P.P.C. read with Section 7 of Anti-Terrorism Act 1997) and Special Case No.121-A/2019 (arising out of Crime No.25/2019 under section 23(1)(a) of Sindh Arms Act 2013) both registered at Police Station Jamshed Quarter, Karachi stand set aside. Appellant is acquitted from the aforesaid charges and he shall be released forthwith, if not required in other case. These are the reasons for the short order announced on 13.01.2021. JK/S-38/Sindh Appeal allowed.