2021 P Cr (PLP)

MRS. RASHIDA ASAD, J.

Muhammad Shakeel alias Banarsi appellant was tried by learned XVII-Anti-Terrorism Court, Karachi, in Special Cases No. B-326 and B-327/2015 arising out of FIR No. 52/2015 under sections 4/5, Explosive Substances Act read with section 7 of Anti-Terrorism Act and section 23(1)(a) of Sindh Arms Act, 2013, registered at P.S F.B. Industrial Area, Karachi, whereby the appellant was convicted under section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to suffer 10 years' R.I and to pay fine of Rs. 100,000/-. In case of default, he was ordered to suffer 01 month's S.I. Benefit of section 382-B, Cr.P.C., was also extended to him. However, appellant was acquitted in Special Case No. B-326/2015 (under sections 4/5, Explosive Substances Act read with section 7(1)(ff) of Anti-Terrorism Act, 1997).

2. Precisely the relevant facts for disposal of the instant appeal are that on .22.03.2015 at 0030 hours, complainant Inspector Javed Yousuf Zai lodged FIR at P.S F.B. Industrial area, Karachi, stating therein that he arrested accused Muhammad Shakeel alias Banarsi, who was already under custody in FIR No.62/2015, registered at Police Station Azizabad; that during interrogation, the accused disclosed that he can produce arms, ammunition and Awan Bomb launcher, buried in a park situated at Block-21, F.B. Industrial area, Karachi. Thereafter, accused led to the police towards pointed place and police recovered bags containing bullets of Kalashnikov, as well as Mouser .30 bore pistol, one Awan Bomb launcher No.77209, 15 cartridges of 12, 32 chargers and from another bag recovered 04 T.T pistols along with magazine and 05 other magazine with numbers 28343, 00940, 06079, 02463, rusted pistol of .12 bore and 1545 rounds, which were sealed in presence of mashirs and thereafter, accused and case property was brought at Police Station and lodged the FIR on behalf of State.

3. Formal charge against the accused was framed by the trial court, to which he pleaded not guilty and claimed to be tried.

4. In order to prove its case the prosecution examined P.W-01 PI Javed Ahmed and P.W-02 BDU Inspector Masab Hussain and after transfer of the case, learned Anti-Terrorism Court examined P.W-03 ASI Irshad Ali, P.W-04 PI/I.O. Tahir Ayub, who produced the relevant documents and thereafter prosecution side was closed.

5. Statement of accused was recorded under section 342, Cr.P.C., in which he denied the prosecution allegations and professed his innocence. He neither examined himself on oath nor led any evidence in his defence.

6. The learned trial Court after hearing the learned counsel for the parties and on the assessment of the entire evidence convicted and sentenced the accused/appellant in offence under section 23(1)(a) of Sindh Arms Act, 2013, whereas, acquitted him under section 4/5 Explosive Substances Act read with section 7(1)(ff) of Anti-Terrorism Act, 1997 as stated above vide impugned judgment.

7. Mr. Muhammad Imran Meo, learned Counsel for appellant contended that appellant is innocent and has been falsely implicated in this case; that the judgment passed by the trial Court is against the law and on facts; that no incriminating material/weapon was recovered from the possession of appellant and police managed to involve him in the instant case; that learned trial Court disbelieved the evidence to the extent of recovery of explosive substance and acquitted the appellant under sections 4/5, Explosive Substances Act read with section 7(1)(ff) of Anti-Terrorism Act, 1997, but surprisingly convicted him under section 23(1)(a) of Sindh Arms Act, 2013 on same set of evidence; that the evidence so produced by the prosecution is contradictory to each other on material particulars of the case, hence, no reliance can be placed on contradictory evidence for maintaining the conviction; therefore, he prayed for acquittal of the appellant from the above charge by allowing this appeal.

8. Conversely, Mr. Abdullah Rajput, learned Deputy Prosecutor General, Sindh, while opposing the aforesaid contentions submitted that the prosecution has fully established its case against the appellant under section 23(1)(a) of Sindh Arms Act, 2013 beyond reasonable doubt by producing consistent, convincing and reliable evidence and the impugned conviction and sentence awarded to the appellant is result of proper appreciation of evidence brought on record, which needs no interference. He prayed for dismissal of the instant appeal.

9. We have heard the learned counsel for the parties at a considerable length and have perused the evidence and documents available on record with their able assistance.

10. After hearing the parties, we have come to the conclusion that the prosecution has failed to prove its case against the appellant for the reasons that the evidence so brought on record by the prosecution is contradictory on material particulars of the case. The complainant in his evidence deposed that during interrogation accused, who was already under custody in crime No.62/2015, allegedly agreed to produce explosive substance as well as different weapons, buried in a park situated in Block-21, F.B. Industrial area, Karachi. As per departure entry No.48, the complainant left the police station at 2358 hours and such entry had been produced by the prosecution during the trial, nevertheless, the same is not stamped. Therefore, unstamped daily diary entry produced during trial has no evidentiary value and cannot be relied upon. Resultantly the events which occurred pursuant to suspicious departure of Police party cannot be assumed to have been proved beyond shadow of doubt. Reliance is placed upon a case reported as Salman alias Lamba and another v. The State (2018 YLR 1092), wherein this Court has disbelieved the departure entry without having stamp of the police station and held as under: "ASI has produced departure entry in his evidence as Ex.25-A, but it is without stamp of the police station. Contention has been raised that police officials had never gone to the graveyard of Tariq Road. In these circumstances, it was duty of the prosecution to have produced departure and arrival entries to the entire satisfaction of the Court but it has not been done."

11. It is further observed that though trial Court noticed a very serious aspect of the prosecution that despite of allegation of recovery of only one Bomb launcher, two bomb launchers had been produced through two prosecution witnesses, firstly through complainant P.W-01 Javed Ahmed as Article-B on 20.02.2017 and thereafter, through PW-02 Mas'ab Hussain Incharge Bomb Disposal Unit as Article-E on 19.04.2017 and while disbelieving such production of launchers the learned Trial Court acquitted the appellant from the charges of sections 4/5, Explosive Substances Act read with section 7(1)(ff) of Anti-Terrorism Act, 1997, holding such recovery shrouded in mystery, but surprisingly on the same set of evidence and circumstances, appellant was convicted and sentenced under section 23(1)(a) of Sindh Arms Act, 2013, without any convincing reason, therefore, false implication of the accused in the present case could not be ruled out. Reliance is placed upon the case reported as Sansar Ali Abro v. The State (2018 PCr.LJ Note 153), which was 'authored by one of us (Abdul Maalik Gaddi, J), wherein this Court in the similar circumstances, where appellant was acquitted in the main case, but convicted under section 23(1)(a) of Sindh Arms Act, 2013, has held as under:- "It appears that no legal evidence was available with the prosecution against the appellant, therefore, he had been acquitted by the trial Court from the main case, but inspite of that on the same set of evidence and circumstances, learned trial Court found the appellant Sansar Ali Abro guilty, convicted and sentenced him under section 23(1)(a) of Sindh Arms Act, 2013, without assigning any convincing reason. Therefore, on this ground false implication of the appellant in this case could not be ruled out."

12. It is further noted that the incident had taken place on 22.03.2015, but pistols and live cartridges were received by the Assistant Inspector General of Police, Forensic Division, Sindh Karachi on 24.03.2015, after the delay of one day. Moreover, it has not been explained by the prosecution as to with whom the pistols and cartridges were retained during this intervening period. No official from Forensic Division has been examined in this case. Therefore, under the circumstances, no reliance can safely be placed on FSL report for conviction of the appellant on the basis of contradictory evidence.

13. Admittedly, place of incident is a park, which is situated in a thickly populated area and complainant had sufficient time to call the independent and respectable persons of the locality to witness the recovery proceedings, but it was not done in this case. No reason has also been assigned as to why Investigating Officer did not make efforts to join any independent person from the place of recovery in this case. No doubt, evidence of police officials is as good as of other witnesses, but in this case, the whole case of prosecution is based upon evidence of police officials. Therefore, under these peculiar circumstances, evidence of independent person was necessary, which is lacking in this case, hence, false implication of appellant in this case could not be ruled out. These aspects of the case create doubt in the prosecution case, but in the impugned judgment, these aspects of the case have not been considered/addressed by the trial Court.

14. For the above stated reasons, there are several circumstances/infirmities in the prosecution case, which have created reasonable doubt about the guilt of the appellant.

15. In case of Tariq Pervez v. The State reported as (1995 SCMR 1345), the Hon'ble Supreme Court has observed as follows:- "It is settled law that it is not necessary that there should be many circumstances creating doubts. If there is single circumstance, which creates reasonable doubt in the prudent mind about the guilt of the accused, then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right." Similar view has also been taken in the case of Muhammad Akram v. The State reported as (2009 SCMR 230).

16. While respectfully relying upon the case laws referred to above, we have no hesitation to hold that prosecution has failed to establish its case against the appellant beyond reasonable doubt. Therefore, by extending the benefit of doubt, the appeal is allowed. The conviction and sentences recorded the Judge, Anti-Terrorism Court-XVII, Karachi vide judgment dated 29.11.2017. are set aside. Appellant is acquitted of the charge. He is in jail, therefore, jail authorities are directed to release the appellant Muhammad Shakeel alias Banarsi son of Muhammad Haroon forthwith, if he is not required in any other case. These are the detailed reasons for the short order announced on 23.04.2020. SA/M-176/Sindh Appeal allowed.