2018 PLP 289 (YLRN)

ABDUL MAALIK GADDI, J.

Appellant Sher Zaman was tried by the learned Judge, Anti-Terrorism Court No.VI, Karachi, under Sections 4/5 of Explosive Substances Act, 1908 read with Section 6(2)(ee) and Section 7 of Anti-Terrorism Act, 1997 in Special Case No.A-93 of 2014 (Re: The State v. Sher Zaman), arising out of Crime No.316 of 2013 registered at Police Station CID, Sindh, Karachi. By judgment dated 29.12.2015, the appellant was convicted under Section 265(H)(ii) and sentenced him to suffer R.I. for 14 years and forfeiture of his property. Benefit of Section 382-B Cr.P.C. was also extended to the accused.

2. The brief facts of the prosecution case leading to the filing of this appeal are that on 02.04.2013, SIP Tassaduq Munir of Police Station CID, Sindh, Karachi, lodged aforesaid FIR under above referred sections alleging therein that on the said date, he was on patrolling duty in the area. During patrolling, he received spy information regarding two culprits on motorcycle, who were involved in various crimes including murder of police personnel. Upon receiving such information, police party reached at Star Ground near Swati Mohallah and tried to apprehend them, but they on seeing the police party opened indiscriminate fires upon the police party. At the same time, one pedestrian also fired upon the police party. In retaliation, police party also fired upon the accused in self defence, encircled the accused and apprehended two accused persons. The apprehended accused disclosed their names as Sher Zaman @ Dora son of Mir Zaman and another as Murad Ali @ Tachi. On personal search of present appellant Sher Zaman, police recovered 9MM pistol loaded with one live bullet in its chamber and seven live bullets in its magazine from the right hand. From his further search, one 30 bore pistol loaded with five live bullets and two magazines containing five live bullets each, which were stashed with the fold of his shalwar of the (Nefa) were recovered as well as one rifle grenade No.YMG-K20-07(33) recovered from the right side pocket of the accused in presence of mashirs namely Inamullah, PC Umer Gul Bangash and PC Ameer Muhammad Niazi. Thereafter, the accused and case properties were brought at police station.

3. It also appears from the record that after registration of FIR, the investigation was carried out by Inspector Sohail Ahmed Khan, who after recording the statements of PWs under Section 161 Cr.P.C. and after completing all the formalities, submitted the final report against the appellant in the Court of law.

4. The charge was framed on 08.08.2015 against the accused by the learned trial Court, to which accused pleaded not guilty and claimed to be tried.

5. At trial, in order to establish accusation against the appellant/accused, prosecution had examined the following witnesses:-- (i) PW-1/complainant SIP Tasaduq Munir at Ex.6, who produced Entry No.65, memo of arrest and recovery, FIRs, entries, memo of inspection at Ex.6/A to Ex.6/F respectively; (ii) PW-2 Sub-Inspector Muhammad Amir of Bomb Disposal Unit at Ex.7, who produced entry, clearance certificate and inspection report of rifle grenade at Ex.7/A to Ex.7/C respectively; (iii) PW-3 PC Umar Gul at Ex.8; (iv) PW-4/I.O. Inspector Sohail Ahmed Khan at Ex.9, who produced entries No.68 and 12, Order of Home Department, statements of two persons at Ex.9/A to Ex.9/H respectively. These witnesses were cross-examined by the counsel for accused. Thereafter, learned DDPP closed the prosecution side vide Statement at Ex.10.

6. Statement of accused was recorded under Section 342, Cr.P.C.at Ex.11, in which he has denied the allegations as levelled by the prosecution by stating that he is innocent and nothing was recovered from him. He further stated that all the prosecution witnesses are interested and they have falsely deposed against him at the instance of higher police officials. However, accused neither examined himself on Oath nor led any evidence in his defence.

7. Learned counsel for the appellant has argued that complainant as well as mashirs of this case are police officials and their evidence cannot be believed without corroboration of independent evidence, which is lacking in this case; thus, according to him, there is violation of Section 103, Cr.P.C. He further argued that nothing was recovered from him and alleged recovery of rifle grenade was foisted upon him by the police in order to show their efficiency, but learned trial Court has not appreciated the defence version. He also argued that the evidence of complainant and mashirs on record are contradictory to each other on material particulars of the case. During the course of arguments, he has highlighted the number of contradictions in between the evidence of prosecution witnesses, as such, he was of the view that on the basis of contradictory evidence, no conviction can be safely relied upon for maintaining conviction, thus, according to him, under the above mentioned facts and circumstances, the appellant is entitled for his acquittal. In support of his contention, learned counsel for the appellant has relied upon the following case laws:- (i) Muhammad Yasin v. The State reported as 1984 SCMR 866; (ii) Abdul Qadir v. The State reported as 2012 MLD 957; (iii) Shah Nawaz v. The State reported as 1994 PCr.LJ 682; (iv) Muhammad Uzair v. The State reported as 2005 YLR 1533;

8. Conversely, learned DPG has argued that complainant as well as mashirs including investigating officer have supported the prosecution case and case is proved against the accused beyond the shadow of doubt. He has also argued that defence counsel has not been able to create any dent/defect in the prosecution case and the offence has been proved against the appellant and accused was arrested from the spot and hand grenade was recovered from him in presence of private mashir namely Inamullah and PC Umar Gul Bangash as well as PC Ameer Niazi, who have no inimical terms with the appellant; therefore, according to him, prima facie, the appellant is involved in this case, which is serious and heinous in nature.

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

10. After hearing the learned counsel for the parties, we have come to the conclusion that prosecution has failed to prove its' case against the appellant for the reasons that it was the case of spy information, despite this fact, complainant/SIP Tassaduq Munir did not bother to associate with him any independent person of the locality from the place of information i.e. Sherpaow Colony, Quaidabad, Landhi, Karachi, although, it has been brought on record that place of information was a thickly populated area. 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. It is alleged that when police party reached to the pointed place i.e. Star Ground near Swati Mohallah to arrest the wanted accused, who upon seeing the police party, started firing upon them and in retaliation, police party also fired upon them with sophisticated weapons, but surprisingly during this encounter, nobody received any injury from either side. Even no bullet was hit to police vehicle. Mashirnama of arrest and recovery showing the names of mashirs as Inamullah (private mashir), PC Umar Gul Bangash and PC Ameer Muhammad Niazi, but the prosecution has failed to produce said Inamullah in witness box for his evidence, who was private/ independent mashir of arrest and recovery proceedings. In our view, the evidence of said Inamullah was necessary to have been produced to corroborate the prosecution case, particularly, with regard to nature of said recovery, but no such evidence was produced. Even otherwise, no explanation in this behalf has been tendered by prosecution to justify the non-production of this witness. The act of withholding of most material witness would create an impression that the said witness if would have been brought into witness box, he might not have supported the prosecution case and in such an eventuality, the prosecution must not be in a position to avoid the consequences; hence, a dent has been caused to the case of the prosecution. Therefore, false implication of the appellant in this case could not be ruled out.

11. We have gone through the evidence and documents available on record with the able assistance of the parties' counsel and find the same are contradictory to each other on material particulars of the case. For instance, it is alleged in the FIR that one rifle grenade bearing No.YMG K20-07 (33) was recovered from the appellant, while charge was framed describing the number of rifle grenade as YMG-K20, which does not match with the number mentioned in FIR and mashirnama. Perusal of face sheet of challan sheet showing the number of rifle grenade allegedly recovered from the appellant as 07(23)AIG-K-20, which is also quite different. Not only this, complainant/SIP Tassaduq Munir in his evidence at Ex.6 described the number of rifle grenade as K20733. Moreover, SIP Muhammad Amir of Bomb Disposal Unit in his evidence at Ex.7 produced clearance certificate at 7/B, which do not show any number of said rifle grenade. It is pertinent to mention here that the alleged rifle grenade was recovered from the appellant on 02.04.2013 at 0200 hours, but as per inspection report produced by SIP Muhammad Amir of Bomb Disposal Unit at Ex.7/C, showing that same was inspected at about 1700 hours at police station, after the delay of fourteen hours; therefore, the possibility of tampering with the alleged rifle grenade at police station could not be ruled out. Prosecution has also failed to establish safe custody of rifle grenade at police station and under the circumstances, trial Court has failed to establish that act of the accused created sense of terror. No evidence was led on this point, hence, we are of the view that the element of terrorism is also missing in this case, but the trial Court has not appreciated all these aspects of the case and convicted the accused without considering the defence plea.

12. It may be mentioned here that as per mashirnama of arrest and recovery, beside rifle grenade, one 9MM pistol and one 30 bore pistol along with live bullets were also recovered from the appellant, but nothing on record to show whether appellant was separately challaned for aforesaid offences or the alleged recovered weapons along with live bullets were sent to the Forensic Laboratory for examination and report or not. When confronted this fact with the learned DPG, he has not replied satisfactorily.

13. Admittedly, incident took place in the midnight time. Source of identification has not been mentioned that under what source police prepared the mashirnama of arrest and recovery. In this case, there are number of infirmities/lacunas, which have created serious doubt in the prosecution case. It is settled principle of law that for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez v. The State reported as 1995 SCMR 1345, wherein the Hon'ble Supreme Court has held as under:- "The concept of benefit of doubt to an accused persons is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

14. For the above stated reasons, while respectfully relying upon the above cited authorities, we have no hesitation to hold that prosecution has failed to prove its' case against the appellant beyond any shadow of reasonable doubt. Consequently, Appeal is allowed, conviction and sentence awarded by the learned Judge, Anti-Terrorism Court No.VI, Karachi vide judgment dated 29.12.2015 are set-aside. Appellant Sher Zaman shall be released from custody forthwith, if he is not wanted in any custody case. JK/S-17/Sindh Appeal allowed.