2024 PLP 862 (MLD)

Amjad Ali Bohio, J.

These appeals are directed against the consolidated judgment, dated o 29.04.2023, passed in Special Case No. 309-A of 2022 (arising out of FIR No. 501/2022 registered at Police Station Pakistan Bazar, Karachi under Sections 324,353,34, P.P.C. read with Section 7 of the Anti-Terrorism Act, 1997) and Special Case No. 309-C of 2022 (arising out of FIR No. 503/2022, registered at the said Police Station under Section 23(1)(a) of the Sindh Arms Act, 2013), whereby the Anti-Terrorism Court No. IV, Karachi ("the trial Court") has convicted the appellant/accused and sentenced him, as under: a. Accused Muhammad Ali son of Ghulamullah Jilani is found guilty for the offences under section 324/34, P.P.C, he is convicted and sentenced to suffer imprisonment for two years, and fine of Rs. 5,000/- (Rupees five thousand), in case of default of payment of fine, he shall further suffer imprisonment for one month. b. Accused Muhammad Ali son of Ghulamullah Jilani is found guilty for the offence under section 353, P.P.C, he is convicted and sentenced to suffer imprisonment for two years, and fine of Rs. 5,000/- (Rupees five thousand), in ca of default of payment of fine, he shall further suffer imprisonment for one month, c. Accused Muhammad Ali son of Ghulamullah Jilani is found guilty for the offence punishable under section 23 (1)(a) of the Sindh Arms Act 2023, he is convicted and sentenced to suffer imprisonment for three years, and fine of Rs. 5,000/- (Rupees five thousand), in case of default of payment of fine, he shall further suffer imprisonment for two months.

2. It is alleged that, on 07.06.2022 at 03:00 a.m., a police party led by SIP Shoukat Ali reached during course of patrolling near under-construction Qatar Hospital in Gulshan-e-Zia, Sector 11-1/2, Orangi Town, Karachi where accused Muhammad Anwar and Muhammad Ali/ appellant riding on a motorcycle, in furtherance of their common intention, fired on police party with intention to kill and deterred them from performing their lawful duties. In retaliation, police party also opened fire. Resultantly, both the accused fell down and apprehended by the-police party. On search, a steel body 30-bore pistol bearing No. HAC-3346, with a magazine containing two live bullets, was recovered from co-accused Muhammad Anwar and a 30-bore pistol, rubbed number, with a magazine loaded with two live bullets, was recovered from appellant. The accused failed to produce licences for the recovered pistols. Motorcycle bearing registration No. KCK-5340, Super Star, black color-70, with chassis number BE.024055, was also seized. The recovered arms were sealed on the spot; such Memo of Arrest and Recovery was prepared in the presence of mashirs, and the accused persons were booked in aforementioned FIRs.

3. After usual investigation, police submitted reports under Section 173, Cr.P.C. The case of the appellant proceeded separately being a juvenile offender from the case of co-accused Muhammad Anwar. The trial Court amalgamated the aforesaid cases under Section 21-M of the Anti-Terrorism Act, 1997 and framed the charge against the appellant on 22.08.2022, to which he pleaded not guilty and opted for a trial.

4. At the trial, in order to substantiate the charge, prosecution examined PW-1 SIP Shoukat Ali (Complainant) at Exh. 6; PW-2 PC Sohail (Mashir) at Exh. 7; PW-3 Dr. Sir Chand (MLO) at Exh. 9; PW-4 HC Abdullah Shah (Head Moharar) at Exh. 10; PW-5 PC Mohsin at Exh. 11 and PW-6 Inspector Muhammad Ashraf (I.O) at Exh.

12. They produced relevant documents, recovered articles and exhibited them before the trial Court. The statement of appellant was recorded under Section 342, Cr.P.C, at Exh. 14, wherein he denied the prosecution case and claimed to be innocent by alleging that his brother Abdullah was absconder in a case, police raided at his house and took the motor-cycle and licensed pistol of his father and then booked him falsely in these cases. The appellant did not opt to be examined on oath as his own witness; however, he produced his father Ghulamullah Jilani as defence witness, who was examined at Exh.

15. He produced copies of the applications sent to different authorities along with TCS receipt and the licence No. HKC-3346 of the 30-bore pistol. After hearing the learned counsel for the parties, the trial Court found the appellant guilty and thus convicted him vide impugned judgment.

5. Heard the learned counsel for the appellant as well as Addl. P.G. and scanned the record with their assistance.

6. Learned counsel for the appellant has argued that the appellant is innocent has falsely been implicated in the cases; that police raided at the appellant's residence, took his father's motorcycle and pistol along with the appellant, under the pretext that the appellant's brother, Abdullah, was an absconder; that the alleged encounter was fake one to justify illegal act of the police; that in fact after his unlawful arrest, the appellant was shot in the leg by the police and the police foisted licensed pistol of appellants' father on co-accused Muhammad Anwar; that the impugned judgment being result of non-reading and misleading of the evidence on record is liable to be set aside.

7. Conversely, the learned Addl. P. G. has supported the impugned judgment by maintaining that the appellant was involved in assaulting on police party, he was arrested after a police encounter and an unlicenced pistol was recovered from his possession at the spot; that the prosecution successfully proved its case beyond any reasonable doubt, thus, the trial Court rightly convicted the appellant and the present appeals are liable to be dismissed being devoid of any merit.

8. As per prosecution case, the appellant was sitting on the motorcycle when he received firearm injury and he fell down from motor-cycle. As per MLC (Exh. 9/A), the appellant received firearm penetrating wound at right thigh posterior with inverted margin (wound of entry). It is hardly believable that on such sitting position on the motor-cycle one can receive injury in hamstring muscles/posterior compartment of the thigh. Hence, medical evidence does not corroborate the ocular account of the incident. According to the evidence of the PWs, the appellant also fired upon the police party to evade his arrest. 'The distance between the police party and the accused at the time of alleged encounter, as testified by PW-2 PC Sohail, was 4/5 meters, but admittedly none from the police party sustained any injury in the encounter. So much so, the police mobile parked approximately 3/4 feet away from the police party during the alleged encounter, did not receive any bullet or even a single scratch, similarly, no scratch or bullet mark was found on the motorcycle.

11. It has been noted that PW-1 SIP Shoukat Ali (Complainant) prepared the Memo of Arrest and Recovery (Exh. 6/A) at 03:00 a.m., yet he failed to collect empties from the crime scene at that time, which he has shown recovered at 07:00 a.m. under Memo of Recovery of Empties (Exh. 6/H), which reflects that two empties of 9 MM pistol and two of 30 bore pistol were recovered from the crime scene. Entry of Malkhana Register (Exh. 10/B) does not reflect depositing of said empties in Malkhana. On the contrary, PW-4 HC Abdullah Shah (Head Moharar) has deposed that he was informed by the Koth Sentry that SIP Shoukat Ali had deposited two official 9 MM pistols and seven empties of 9 MM in PS Koth. He has further deposed that SIP Shoukat Ali handed over him four parcels containing four pistols, four empties of 30-bore two keypad mobile phones, cash amounting to Rs.220, and one motorcycle as case property in Crimes No.501, 502, and 503 of 2022. As such, the above testimony of said PW-4 regarding the deposition of seven empties of 9 MM pistol and four empties of 30-bore pistol contradicts the Memo of Recovery of Empties (Exh. 6/H) which discloses recovery of two empties of 9 MM pistol and two of 30-bore pistol from the crime scene. While, as stated above, the entry in Malkhana Register (Exh. 10/B) does not find mention about deposition of any empty. In view of such discrepancies, the prosecution has failed to prove recovery of empties from the crime scene; hence, no credibility can be attached with the Memo of Arrest and Recovery (Exh. 6/A), Memo of Recovery of Empties (Exh. 6/H) and Examination Report of Forensic Division (Exh. 12-K).

12. Based on aforementioned facts and the discussed contradictions and discrepancies in the evidence, it is evident that the prosecution's narrative lacks coherence and consistency. The recovery of pistol and empties from the crime scene has not been presented in a clear and sequential manner. It is well settled by now that the prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty casts upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and any doubt arising in the prosecution case must be resolved in favour of the accused. The Apex Court in a case of Shamoon alias Shamma v. The State (1995 SCMR 1377) held as under:- "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case. Where the prosecution succeeds in establishing its case against the accused beyond reasonable doubts, then the stage arrives for consideration of the plea of accused in defence and the question of burden of proof becomes relevant. Before the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise."

13. In light of these observations, it can be safely concluded that the conviction of the appellant is not supported by confidence inspiring evidence. Consequently, we allow these appeals by setting aside his conviction and sentence recorded vide impugned judgment and acquit him of the charges. The appellant shall be released forthwith by the jail authorities if his custody is not required by any other court in any other case/offence. MH/M-15/Sindh Appeals allowed.