2021 PLP 2019 (MLD)

ABDUL MOBEEN LAKHO, J.

Appellant Ayaz was tried by the learned Judge Anti-Terrorism Court No.X, in Special Case No.1253/2018 arising out of an FIR No.424 of 2018 registered at Police Station Mominabad, Karachi, for offences under Sections 324, 353 and 34, P.P.C. read with Section 7 of Anti-Terrorism Act, 1997. After regular trial, the learned trial court vide judgment dated 17.12.2019, convicted and sentenced the appellant under Section 7(h) of Anti-Terrorism Act, 1997 read with sections 353/324, P.P.C. and sentenced to R.I for 05 years with fine of Rs.20,000/-. In default in payment of fine, he was ordered to suffer R.I for 06 months more. However, the appellant was extended benefit under Section 382-B, Cr.P.C.

2. Precisely, the facts necessary, as divulged in the statement of Aijaz Hussain (P.W-01) are that on 28.11.2018, he left Police Station along with PCs Rahim Dino, Ahmed Ali, Naseem Taqi and Aijaz on private motorcycles vide entry No.10 for patrolling duty. During patrolling duty, when police party reached in front of Shell Petrol Pump Touheed Colony, Faqeer Colony Mominabad, Karachi at about 5:30 PM, they saw 03 persons coming on 125 motorcycle in suspicious condition. Police signaled them to stop. The culprits stopped their motorcycle one culprit got down from the motorcycle. The complainant / police party inquired his name, who disclosed his name as Sajjad. When PC Aijaz started conducting his personal search, the two culprits started direct firing upon the police party with intention to commit their murder. In retaliation, police also made firing upon the culprits, in self defence. During such encounter, two police constables namely Rashid Taqi and Rahim Dino sustained firearm injuries. The culprits succeeded to flee away from the crime scene leaving behind motorcycle. The injured police constables were taken to Abbasi Shaheed Hospital for treatment. Thereafter, complainant / PC Aijaz came back to P.S. where he lodged FIR No. 424/2018 under Sections 353/324/34, P.P.C. read with Section 7 of Anti-Terrorism Act, 1997 against unknown persons on behalf of State.

3. On 29.11.2018, investigation was entrusted to Inspector Raja Jahangir Ahmed, who received FIR and other relevant documents. On the same day, at about 1645 hours, I.O inspected the place of incident on the pointation of PC Aijaz, from where, he secured 06 empty shells of 30 bore pistol, one empty shell of SMG and. Honda 125 motorcycle, without number. I.O also prepared sketch of the place of incident. The empties were sealed at the spot and such mashirnama was prepared in presence of mashirs. On same date, I.O received information regarding police encounter within the territorial jurisdiction of PS Dhabeji District Thatta. I.O along with PCs Aijaz (complainant) and PC Ahmed Ali went at PS Dhabeji where SHO showed him the pictures of deceased accused, who were identified by the complainant / PC Aijaz as culprits of the present crime. On 03.12.2018, the I.O sent empties to the Ballistic Expert for report and received positive report. During investigation, SHO PS Khandar, Nawabshah informed the I.O that he had arrested absconding accused Ayaz. Upon such information, the I.O along with PC Aijaz and PC Ahmed Ali went to P.S Khandar Nawabshah, on 05.12.2018 for interrogation of accused Ayaz. Accused Ayaz was arrested by the I.O. in presence of mashirs and such mashirnama of arrest was prepared by him. After usual investigation Challan was submitted against accused before the learned Judge, A.T.C concerned for offences under Sections 324, 353 and 34, P.P.C. read with Section 7 of Anti-Terrorism Act, 1997.

4. Upon indictment, the accused Ayaz pleaded not guilty and claimed his trial.

5. At the trial, prosecution examined PC Aijaz Hussain (PW-01), PC Rashid Taqi (PW-02), Dr. Muhammad Pervaiz Anwar (PW-03), Inspector Raja Jahangir Ahmed (PW-04), who produced the relevant documents. Thereafter, learned APG closed the prosecution side.

6. Statement of accused was recorded under Section 342, Cr.P.C at Ex. 15, in which he denied the prosecution allegations and claimed his innocence. He neither examined himself on oath under Section 340(2), Cr.P.C in disproof of the prosecution allegations nor led any evidence in his defence.

7. Learned trial Court after hearing the learned counsel for the parties and assessment of the evidence produced at trial, convicted and sentenced the appellant as stated above, hence this appeal is preferred by the appellant.

8. The evidence produced before the trial Court finds an elaborate mention in the judgment dated 17.12.2019, passed by learned trial Court, therefore, the same is not reproduced herein in order to avoid unnecessary repetition.

9. Mr. Abdul Ghaffar Khan learned counsel for the appellant argued that applicant has been falsely implicated in the present case; that the prosecution failed to prove the case; that there are material contradictions in the evidence of the prosecution witnesses; that no description of the appellant has been mentioned in the FIR; that no fire arm injury has been attributed to the appellant; that though the alleged encounter took place in the broad day light but police failed to apprehend any culprit who fled away from the scene of offence on foot; that the appellant was not put to identification parade through the injured P.Ws. It is argued that one injured P.W identified the appellant before the trial Court; which is unsafe to maintain conviction; that according to prosecution case, the motorcycle used in the commission of crime belonged to appellant but I.O has failed to verify during investigation regarding ownership of the said motorcycle. He further submitted that the empties were allegedly recovered on the next day from a busy place, which created doubt in the prosecution case. Therefore learned advocate for the appellant prayed for acquittal of the appellant. In support of his submissions, reliance has been placed upon the cases reported as Iltaf Hussain v. The State (1996 SCMR 167), Said Ahmad v. Zammured Hussain (1981 SCMR 715), Majeed alias Majeedi and others v. The State and others (2019 SCMR 301) and Zeeshan alias Shani v. The State (2012 SCMR 428).

10. On the other hand, learned Deputy Prosecutor General Sindh argued that prosecution has successfully established the charge against the Appellant; that co-accused who were involved in the present crime have expired in an encounter which took place within the remit of P.S Dhabeji Thatta. He further submitted that the motorcycle used in the commission of crime belonged to appellant. Learned D.P.G lastly argued that all the PWs have fully supported the prosecution case and prayed for dismissal of the appeal.

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

12. Prosecution has utterly failed to prove its case against the appellant for the reason that prosecution story on the face of it appears to be unnatural and unbelievable. It was day time incident after encounter police officials failed to chase the appellant who according to the prosecution case went running on foot. After his arrest identification parade was not held. There are material contradictions in the evidence of the prosecution witnesses with regard to the actual occurrence. We have also perused the memo of inspection of the place of wardat and as per prosecution case, alleged encounter took place inside street but surprisingly no mark of bullet was noticed by the I.O. on any wall of the street. As per prosecution story, the alleged encounter took place in a thickly populated area, but not a single independent person from the locality or any employee of petrol pump was cited as witness. As such, best possible evidence was deliberately withheld and not produced. Presumption would be that in case private persons, if examined might not have supported the prosecution case. The argument that public witnesses do not come forward because of risk to their life and liberty, nonetheless could not absolve the Police of their heavy responsibility to produce witnesses from public. There is no dearth of citizens of strong views and character who would come out to support such like cases provided they were taken into confidence, given due respect and were ensured that full protection would be given to them. The Honourable Supreme Court in the case reported as Iltaf Hussain v. The State (1996 SCMR 167) as held as under: "The argument that public witnesses do not come forward to support such like recoveries because of risk to their life and liberty, nonetheless could not absolve the Police of their heavy responsibility to produce witnesses from public. There is no dearth of citizens of strong views and character who would come out to support such like cases provided they were taken into confidence, given due respect and were ensured that full protection would be given to them, in case, they aided the law-enforcers to curb the crimes in the best interest of the society as a whole. There may be cases where public witnesses could not be produced because of their non-availability due to odd hours of the night or the day or where the, recovery was effected from a deserted place or during the dead of night. The position in this case was just the reverse because, admittedly, recovery was effected from a -populated area where several other people who saw the recovery of kalashnikov were present but no efforts were made to join them to witness the occurrence. We, accordingly, hold that evidence of Police witnesses who are, in a way, the complainant could not solely be accepted to be relied upon to convict the appellant, especially; when the aforesaid public witness was abandoned without any rhyme or reason. The possibility that the appellant was implicated with some ulterior motive could not be ruled out. For all these reasons, we have no alternative but to acquit the appellant by setting aside his conviction and sentence by giving him benefit of doubt. He is on bail and as such, shall be discharged from the liability of his bail bond. The appeal succeeds and is allowed."

13. The appellant was arrested on 06.12.2018, but after his arrest no identification parade was held. Injured P.C. Rashid Taqi deposed that in fact there were three accused persons but injured P.C. had not described the features of the appellant in his 161, Cr.P.C. statement and he identified the accused before the trial Court, which is unsafe to maintain conviction. Reliance is rightly placed upon the case reported as Majeed alias Majeedi and others v. The State and others (2019 SCMR 301), wherein the Honourable Supreme Court has held as under:

5. The prosecution had also maintained that during the trial the appellant had been identified by the eye-witnesses before the trial court but this Court has repeatedly held that identification of a culprit before the trial court during the trial is generally unsafe because the members of the complainant party get many opportunities to see the accused persons before the trial court on many previous occasions before making their depositions.

14. We have also minutely examined the evidence injured P.C. Rashid Taqi and found it unreliable as in the examination-in-chief, he deposed that the accused present in Court, fired upon them and ran away however, in the next breath during cross-examination he stated that accused present in Court did not make any fire shot. Such contradiction on the part of the injured P.C Rashid Taqi cannot be ignored as another injured P.C Rahim Dino could not be examined at trial due to his natural death. It is settled law that injured witness, would not be relied upon ipso facto, because of injuries but is to be examined that whether the evidence is trustworthy and confidence inspiring. Rightly reliance is placed upon the case of Said Ahmad v. Zammured Hussain (1981 SCMR 795), wherein it has been held as under:- "It is correct that the two eye witnesses are injured and the injuries on their person do indicate that they were not self-suffered. But that by itself would not show that they had, in view of the afore-noted circumstances, told the truth in the court about the occurrence; particularly, also the role of the deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely related to the deceased while the two other eye-witnesses mentioned in the FIR, namely, Abdur Rashid and Riasat were not examined at the trial. This further shows that the injured eye-witnesses wanted to withhold the material aspects of the case from the court and the prosecution was apprehensive that if independent witnesses are examined, their depositions might support the plea of accused."

15. In the cases of police encounter, the standard of proof should have been far higher as compared to any other criminal 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. The same principle has been laid down by the Honourable Supreme Court in case of Zeeshan alias Shani v. The State (2012 SCMR 428). Relevant portion is reproduced as under: "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. We, therefore, by extending the benefit of doubt allow this appeal, set aside the conviction and sentence awarded and acquit the appellant of the charges. He be set free forthwith if not required in any other case."

16. As regards to the seizure of un-numbered motorcycle, which according to the prosecution was allegedly used in the commission of the crime is concerned, in the FIR it has been mentioned that complainant checked the motorcycle through CPLC from where it was informed that the said motorcycle belonged to Ayaz son of Rafat Hussain which was purchased by him on 11.11.2018 from Showroom at Saeedabad Karachi, however, on the other hand, the I.O during his cross-examination has totally belied the statement of the complainant by stating that record for the motorcycles "applied for registration" is not available in CPLC and when there is no record available in the CPLC as to how complainant / police came to know about the owner, its date of purchase and the name of show-room, which clearly suggests that complainant was not only known to the appellant but also was aware about the date and place from where the said motorcycle was purchased. Thus, the use of the said motorcycle in the commission of alleged encounter is fraught with doubts and prosecution's failure is inescapable.

17. Evidence of police officials as discussed above in the above stated circumstances, required independent corroboration, which is lacking in this case. In these circumstances and after an independent assessment of evidence available on record, we have no hesitation to hold that the mode and manner in which the incident took place remained shrouded in mystery and the prosecution has failed 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 miserably failed to bring home the guilt of appellant. Resultantly, conviction recorded by the learned Trial Court vide judgment dated 17.12.2019 is not sustainable under the law and is also liable to be set aside.

19. For the foregoing reasons, while extending benefit of doubt captioned Appeal is allowed. Consequently, impugned judgment dated 17.12.2019 passed by learned Judge, Anti-Terrorism Court No. X, Karachi Division in Special Case No.1253/2018 arising out of an FIR No. 424 of 2018 registered at Police Station Mominabad, Karachi, for offences under Sections 324, 353 and 34, P.P.C. read with Section 7 of Anti Terrorism Act, 1997 stand set aside. Appellant is acquitted of the aforesaid charges and he be released forthwith, if not required in other case. JK/A-56/Sindh Appeal allowed.