2025 PLP 499 (YLR)

Naimatullah Phulpoto, ACJ.

Appellants Zubair Ahmed and Saleh Muhammad were tried by learned Judge, ATC-X, Karachi. After regular trial, vide judgment dated 19.08.2023, the appellants were convicted under Section 324/34 P.P.C. and sentenced to undergo 07 years R.I. each and to pay fine of Rs.50,000/- each, in case of default, they were directed to undergo 01 year R.I. Appellants were further convicted under Sections 353/34 P.P.C. and sentenced to undergo 02 years R.I each and to pay fine of Rs.20,000/- each, in case of default, they were directed to undergo 06 months R.I. They were also convicted under Section 427/34 P.P.C. and sentenced to 02 years R.I each and to pay fine of Rs.20,000/- each, in case of default, they were directed to undergo 06 months R.I. Appellant Zubair Ahmed was also convicted under Section 25 read with section 23(1)(a) of Sindh Arms Act 2013 and sentenced to undergo 07 years R.I and to pay fine of Rs.50,000/-, in case of default, he was directed to undergo 01 year R.I. All the sentences were directed to run concurrently. Appellants were extended benefit of Section 382-B Cr.P.C. FACTUAL ASPECTS

2. Brief facts leading to the filing of the appeals are that on 09.10.2021, SIP Dharmendar of PS AVLC, City Division, Karachi left police station along with his subordinate staff for patrolling duty. While patrolling at various places, held Naka Bandi between Chilghazi Mazaar and Northern Bypass at 0255 hours. It is alleged that a motorcycle on which two persons were sitting appeared on the road. Police signaled the said motorcycle to stop but rider of the motorcycle did not stop, the motorcycle slipped and both accused persons fell down on the ground. Rider of the motorcycle started firing upon the police party, police also fired in retaliation. During cross-firing, it is alleged that not a single injury was caused to the police officials. However, appellant Zubair sustained fire arm shot on his leg. Police nabbed both the accused persons. On inquiry, injured accused disclosed his name as Zubair, from his personal search police secured unlicensed 30 bore pistol one bullet loaded in the magazine and one bullet loaded in its chamber and cash of Rs.400/-. On inquiry, another accused disclosed his name as Saleh Muhammad and from his possession police recovered cash of Rs.300/- and his NIC so also secured a motorcycle without number used by the accused in the commission of offence. Police also collected 03 empties of 30 bore pistol and 04 empties of SMG from the place of incident in presence of mashirs ASI Shabbir Azam and HC Allah Ditta. Injured accused Zubair was referred to medical officer for his examination and certificate. Thereafter, co-accused Saleh Muhammad and case property were brought to the police station where FIRs bearing Crime No. 1026/2021 for offences punishable under Sections 353, 324, 427, 34 P.P.C. read with Section 7 ATA of 1997 and Crime No. 1027/2021 for offence punishable under Section 23(1)(a) of Sindh Arms Act, 2013 were lodged on behalf of State.

3. During investigation, crime weapon 30 bore pistol, bullets and empties were dispatched to the Ballistic Expert, positive report was received. On the conclusion of the usual investigation, challan was submitted against accused under the above referred sections.

4. At trial, both cases one relating to police encounter and another relating to the recovery of unlicensed pistol of 30 bore from appellant Zubair Ahmed were jointly tried in terms of Section 21-M of Anti-Terrorism Act, 1997.

5. Trial Court framed charge against accused, they pleaded not guilty and claimed to be tried. In order to substantiate the charge, prosecution has examined 07 P.Ws who produced the relevant documents at trial. Thereafter, prosecution closed its' side.

6. Trial Court recorded statements of accused under Section 342 Cr.P.C, in which they denied the prosecution's allegations and claimed false implication in this case. Accused declined to examine themselves on oath in disproof of the prosecution allegations and did not lead evidence in their defence.

7. Trial Court, after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 19.08.2023 convicted and sentenced the Appellants as stated above. Thereafter, appellants have preferred these appeals. Hence, through this common judgment, we intend to dispose of instant appeals.

8. Heard arguments at length and re-examined the entire evidence. ANALYSIS OF EVIDENCE

9. It is the prosecution evidence that there was cross-firing with the sophisticated weapons but no police official sustained firearm injury or even scratch during alleged encounter which appears to be unbelievable and does not appeal to the prudent mind. On the other hand, appellant Zubair Ahmed had sustained fire shot injury on his right leg, which according to appellant Zubair Ahmed has been caused to him by the police officials in a fake encounter. From the deep scrutiny of evidence, it transpires that no damage was caused to the motorcycle used by the appellants in the commission of alleged crime. Police officials did not record or took photographs when search, seizure and arrest of the appellants was made. Now-a-days, every police official carries cellular phone. Article 164 of Qanun-e-Shahadat Order, 1984 specifically permits the use of any evidence that may have become available because of modern devices or techniques and its Article 165 overrides all other laws as observed in the case of Zahid Sarfaraz Gill v. The State (2024 SCMR 934). It was night time incident, source of light is not mentioned by the police officials in their evidence and mashirnama of arrest and recovery is also silent on this aspect of the case. In the mashirnama of arrest and recovery at Ex.8/C, description of the 30 bore pistol is mentioned as "NEW BORDER SPECIAL MODIFIED CAL 30 BORE", but report of the Ballistic Expert is silent about description and it is mentioned in the report that 30 bore pistol was rubbed number. Additional Prosecutor General could not explain such omission in the prosecution evidence. Safe custody and safe transmission of the pistol used in crime has not been established before the trial Court, for the reason that prosecution failed to examine Incharge Malkhana of concerned police station. The Investigation officer failed to preserve the finger prints of the accused and on weapons during course of encounter. P.W-01 Muhammad Bilal Saeed from whom it was alleged that motorcycle was snatched by the appellants was examined by the prosecution, he deposed before trial Court that one accused was wearing helmet whereas, another accused was wearing mask at that time, as such, he could not identify them. According to the evidence of P.W-02 SIP Dharmendar, appellant Saleh Muhammad is a disabled person, he was empty handed at the time of police encounter. There is no evidence that appellant Muhammad Saleh who was empty handed used criminal force to deter police party from discharge of its duty. Involvement of disabled person in the present case clearly shows false implication of appellant Muhammad Saleh. False implication of appellant Zubair Ahmed, who was injured also cannot be ruled out as according to the case of prosecution, he fired several shots upon the police but not a single fire hit to the police party. We have also observed that PW-02 SIP Dharmendar as well as P.W-07 I.O. failed to interrogate the appellants about their presence at the place of incident at such odd hours of night. There are also major contradictions in the evidence of prosecution witnesses on material particulars of the case particularly, the places of patrolling and actual incident. Appellants in their statements recorded under Section 342, Cr.P.C have claimed false implication in this case. In such circumstances, when incident has been shown at thickly populated area, no private person was associated as mashir of the arrest and recovery, independent corroboration was essential, which is lacking in this case. Trial Court failed to appreciate the evidence of police officials on the settled principles of law.

10. No doubt, evidence of the police officials cannot be discarded simply because they belong to police force. Where, however, the fate of the accused persons hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at the time. It would be unsafe to rely upon the evidence of the police officials without independent corroboration. Judicial approach has to be cautious in dealing with such evidence, as held in 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 1967 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."

11. In the case of police encounter, the standard of proof should have been far higher as compared to any other criminal case for the reason that it is police 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.

12. For the above stated reasons, prosecution case has been found by us to be highly doubtful. Learned trial Court failed to appreciate evidence properly on settled principles of law.

13. Needless to mention that while giving the benefit of doubt to an accused 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 the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as matter of right. Reliance in this respect can be made upon the case of Muhammad Mansha v. The State (2018 SCMR 772).

14. For what has been discussed above, we find that prosecution has failed to prove its' case against the appellants beyond any reasonable doubt to sustain conviction. Consequently, these appeals are allowed and impugned judgment is set aside, appellants Zubair Ahmed son of Muhammad Azeem and Saleh Muhammad son of Sher Muhammad are acquitted of the offences, for which they were charged, tried and convicted by learned trial Court and they he released forthwith, if not required to be detained in any other custody case.

15. These are the reasons for our short order announced on 27.08.2024, whereby instant Special Criminal Anti-Terrorism Appeals were allowed. SA/Z-12/Sindh Appeals allowed.