2019 PLP 613 (YLR)

OMAR SIAL, J.

The appellants have impugned a judgment dated 28-2-2017 passed by the learned Anti-Terrorism Court and 2nd Additional Sessions Judge, Karachi East. In terms of the said judgment the appellants were convicted and sentenced as follows: (i) To rigorous imprisonment of ten years and a fine of Rs.10,000 (or suffer a further period of three months simple imprisonment) for an offence under section 392, P.P.C. (ii) To rigorous imprisonment of seven years and a fine of Rs.10,000 (or suffer a further period of three months simple imprisonment) for an offence under section 324 P.P.C. (iii) To rigorous imprisonment of one years for an offence under section 353, P.P.C. (iv) To rigorous imprisonment of seven years and a fine of Rs. 10,000 (or suffer a further period of three months simple imprisonment) for an offence under section 7(1)(h) ATA, 1997. (v) To rigorous imprisonment of five years and a fine of Rs. 5,000 (or surfer a further period of three months simple imprisonment) for an offence under section 25 of the Sindh Arms Act, 2013. (vi) All sentences were to run concurrently. The benefit of section 382-B, Cr.P.C. was extended to them.

2. The prosecution case is that on 5.3.2014 at about 2230 hours, the appellants along with one another came on a motorcycle, duly armed, and robbed Rs. 7000 and a mobile phone from two off duty policemen; namely, Inspector Matiullah and P.C. Ayazuddin, while they were sitting in their car waiting for colleague to join them. First, a shoot out occurred between the appellants and the two off duty police men, subsequently a shoot out occurred between the appellants and a police party in a mobile which had arrived on the scene hearing the earlier gun fire. The end result of the encounter was that both appellants sustained fire arm injuries and were arrested whereas their third accomplice made his escape good. Unlicensed pistol were also recovered from the two injured appellants. The following FIR's were registered at the Gulshan-e-Iqbal Police Station: (i) FIR No. 94 of 2014 under sections 392, 324, 353 and 34, P.P.C. read with section 7 of the ATA, 1997. (ii) FIR No. 95 of 2014 under section 23(1)(a) of the Sindh Arms Act, 2013 against appellant Rizwan. (iii) FIR No. 95 of 2014 under section 23(1), (a) of the Sindh Arms Act, 2013 against appellant Abid.

3. On 5-12-2016 the prosecution moved an application order section 21-M of the ATA, 1997 praying that the cases arising out of the above three FIRs be consolidated and a joint trial held. The application was allowed and a charge framed against the appellants the same day, to which they pleaded not guilty and claimed trial.

4. Inspector Matiullah Khan was the first prosecution witness. He was one of the two off duty policemen whose wallet with Rs. 5,000 was robbed by the appellants. He testified that after they had been deprived of their valuables and the accused were leaving the spot, his colleague Police Constable Ayazuddin resisted the accused persons, upon which resistance the accused opened fire on them. On hearing the gun fire a nearby police mobile came to the spot and the accused then opened fire on that mobile. The police retaliated the firing and as a consequence the appellants were injured. On the spot, the police recovered the stolen Rs.7,000 and mobile phone from the injured appellants whereas their accomplice escaped. The police also seized two pistols from the appellants, whose licenses the appellants could not produce. He testified that the police collected six empties of SMG and 5 empties of .30 bore pistols from the scene. In his cross-examination he admitted that he had shot four or five rounds at the accused while sitting in his car but that the police had recovered no empty of the bullets fired by him from inside the car. He further admitted that his wallet was produced in an unsealed condition at trial. He admitted that although six live bullets were seized by the police, eight live bullets had been produced at trial.

5. Police Constable Ayazuddin, who accompanied PW-1, was examined as the second prosecution witness. He testified on the same lines as Inspector Matiullah and admitted that Matiullah's car was not hit by any bullet which the accused fired at them.

6. Sub-Inspector Ejaz Ahmed was the third prosecution witness. He testified that he had received investigation of the case on 5.3.2014. After completing his investigation, he had submitted a challan before a court of normal jurisdiction which returned the same to him on the ground that the Anti-Terrorism Court had jurisdiction to hear the case. The charge sheet was then given to Inspector Balaghat Hussain to submit before the relevant terrorism court. This witness testified that it is correct that wallet, cash and mobile phone was received by me in an unsealed condition while rest of property was received in a sealed condition."

7. Inspector Balaghat Hussain was the fourth prosecution witness. His role in the case was confined to submitting the challan in the terrorism court.

8. The fifth prosecution witness was a man named Mohammad Nadeem. He claimed that on 5-3-2014 he was going to New Karachi in a rickshaw when the rickshaw broke down. He then decided to catch a bus to his destination and while he was waiting at the bus stop the whole incident unfolded in front of him. He was a witness to the memo of arrest and recovery. He testified that the shoot out between the police and the accused had continued for ten minutes but that no one else but the appellants were injured in the same. He admitted that he had no document with which he could prove his identity.

9. Sub-Inspector Mohammad Akram Warraich was the sixth prosecution witness. He testified that on 5-3-2014 he was the duty officer at the Gulshan-e-Iqbal police station. He received a call at 2240 hours from A.S.I. Hakeem that an encounter had ensued on Rashid Minhas Road and that two dacoits had been injured in it. He reached the spot and saw that the appellants were lying on the ground in an injured position and that a huge crowd had gathered there. Warraich first recorded the statement of Inspector Matiullah and then arrested the two appellants, from whose personal search he recovered two pistols, the stolen mobile phone and the money. He then prepared the memo of arrest and recovery. The appellants were then dispatched to the hospital and he returned to the police station and registered the FIR. The investigation was then handed over to S.I.P Ejaz Ahmed Qureshi.

10. The seventh prosecution witness was Dr. Mohammad Kaleem Shaikh. He testified that his colleague Dr. Jagdesh Kumar was the Medico-legal Officer who had examined the injured appellants. He verified Dr. Kumar's signature in the medical certificates pertaining to the appellants.

11. Police Constable Faqir Mohammad was the eighth prosecution witness to be examined. He was a member of the police party that had reached the spot after having heard shots. He testified that during patrolling he saw three persons snatching valuables from two occupants of a car. As soon as the accused saw the police party they began shooting at them from a distance of 10 to 12 steps. The police retaliated and injured two of the three accused. Two minutes later S.I. Akram Warraich came to the spot and arrested the accused. He admitted that he had not produced an entry of the station diary showing the departure of the police party for patrolling.

12. We have heard the learned counsel for the appellants as well as the learned DPG and have examined the record. Our observations are as follows.

13. We do not believe the police version that three accused fired directly at the occupants of the car and then at the police mobile from a relatively short distance, yet did not manage to damage the complainant's car or the police mobile or any nearby property nor did they manage to hit the person of either occupant or the police party. Doubt is also raised when inspector Matiullah's version was that a gunfight had erupted between him and the accused in which he shot four to five rounds before the police party arrived whereas Police Constable Faqir Mohammad testified that the accused were still in the process of looting the occupants of the Car when they saw the police mobile and started shooting at the police party.

14. Warraich and the witness to the memo of arrest and recovery, Nadeem, both testified that the case property was sealed on the spot by Warraich. Indeed the memo of arrest and recovery also states the same. That these witnesses were being dishonest is proved by the fact that the first investigating officer testified that when he received the case property from Warraich the same was in an unsealed condition except the pistols. Inspector Matiullah also testified that the wallet and cash looted from him was produced at trial in an unsealed condition. We also find it rather unbelievable that after having been shot and injured by the police party on patrol, and perhaps by the complainant himself, the injured would be lying on the ground with their respective pistols in their hands and the looted valuables in their pocket until Warraich arrived on the scenes. Further, the memo of arrest and recovery shows that 6 live bullets were recovered from both the appellants. The FSL report also shows that 6 live bullets were sent to it. It was admitted by Inspector Matiullah at trial when the case property was exhibited that "it is correct that total 8 live bullets are available as case property before the court." How did 8 live bullets emerge at trial from the case property was never explained when the memo and the FSL both show that 6 live bullets were seized and examined. In these circumstances the possibility of the case property being tampered with cannot be conclusively ruled out and the recovery made is shrouded in doubt.

15. Another aspect that we are not satisfied about is the timing of the various steps taken in this case. The firing started at approximately 10:30 p.m. and according to witness account continued for 10 minutes. Warraich, while he was in the police station was informed after the firing of the encounter (at 10:40 p.m. according to his testimony). He made an entry in the station diary and left for the scene of incident. He arrested and searched the appellants. He prepared the memo of arrest and recovery at 11:00 p.m. He also recorded the statement under section 154, Cr.P.C. of the complainant on the spot at 11:15 p.m. after which he is said to have sent the appellants to the hospital. We are not convinced that Warraich could have done all these activities in the time frame given by the prosecution. Further doubt is cast when the medical record reveals that the two injured appellants were brought to the Jinnah Hospital from Gulshan-e-Iqbal at 11:00 p.m.

16. No person, apart from the appellants, being injured in the claimed police encounter, when it was claimed that the appellants shot from a short distance of 10 to 12 steps with the intention to kill; no damage to any vehicle or property as a consequence of the firing; case property not being sealed despite record to the contrary; 8 instead of 6 live bullets being produced at trial; 2 empties sealed in the bag by FSL not emerging at trial; evidence of property being tampered with; record showing that the appellants were brought to the hospital at a time when the prosecution claimed they were still lying on the ground in an injured condition at the place of incident; a remarkably hastened process of initial investigation casting doubt on its veracity

are all factors that make us form the view that the prosecution was unable to prove its case beyond reasonable doubt.

17. In view of the above, the appeals are allowed. The appellants are acquitted of the charge(s) and should be released forthwith if not required in any other custody case. JK/A-90/Sindh Appeals allowed.