OMAR SIAL, J.---The learned Anti-Terrorism Court No,VI at Karachi vide its judgment of 22.3.2016 convicted and sentence the Appellants as follows: a) R.I. for fourteen years and forfeiture of his property for an offence punishable under section 7(1)
(ff) of the Anti-Terrorism Act, 1997. b) R.I. of seven years and a fine of Rs,10,000 (or S.I. of four months in default) for an offence under section 23(1)(a) Sindh Arms Act, 2013.
Through the captioned appeals the Appellants have impugned the aforementioned judgment. We intend to dispose of all the appeals through this common judgment.
1. Brief facts of the prosecution case are that on 1-3-2014 a police party led by SIP Jameel .Ahmed Awan was on patrol duty when it received spy information regarding the presence of four suspicious persons on two motorcycles in the Korangi Industrial Area in Karachi. According to the spy information in the four suspicious persons were members of banned militant organizations and also involved in target killings. The informant also disclosed the names of two of the four persons as those of the Appellants. Upon reaching the Chamra Chowk in Korangi, the police party spotted the suspicious persons and a shoot-out ensued. The accused persons managed to however escape from the scene. The police registered a FIR bearing number 73 of 2014 under sections 353, 324 and 34, P.P.C. On 3-3-2014, the Appellants were arrested on spy information. Upon their personal search, the police recovered one .30 bore pistol with four bullets and one hand grenade was recovered from Appellant Mehboob whereas one .30 bore pistol with three bullets and one hand grenade was recovered from Appellant Mushtaq. Both men were arrested and the following FIRs registered against them: a) FIR Nos, 74 of 2014 and 76 of 2014 under section 23(1)(a) of the Sindh Arms Act against Appellant Mehboob and Appellant Mushtaq, respectively. b) FIR Ncs. 75 of 2014 and 77 of 2014 under sections 4 and 5 of the Explosive Substances Act 1908 against Appellant Mehboob and Appellant Mushtaq, respectively.
2. The cases against the Appellants were amalgamated under section 21-M of the Anti-Terrorism Act, 1997 and the charge against them was framed on 1-8-2015 to which they pleaded not guilty and claimed trial.
3. In order to prove its case the prosecution examined six witnesses. PW-1 ASI Jameel Ahmed Awan was the complainant of FIR No, 73/2014. PW-2, PC Muhammad Kashif was the witness to the memo of the place of incident as well as the memo of arrest and recovery. PW-3 ASI Abdul Sattar Arain was the first investigating officer as well as the complainant in FIRs 74, 75, 76 and 77 of 2014. PW-4 Sabir Khan was the Bomb Disposal Unit expert. PW-5 ASI Muneer Abbasi was the second investigating officer. PW-6 Mohammad Ameer Gondal was the third investigating officer.
4. The statements of the Appellants under section 342, Cr.P.C. were recorded on 18-2-2016 and their statements on oath under section 340(2), Cr.P.C. were recorded on 26-2-2016 and 27-2-2017. Both pleaded innocence and stated that they had been picked from their homes by officials of the CID on 1-3-2014 and these false cases registered against them. In order to support their stance, Appellant Mehboob produced DW-1 Muhammad Ashraf, DW-2 Nasir Shah and DW-3 Aashiq Ali as his witnesses. Appellant Mushtaq produced DW-4 Yasir Shah, DW-5 Sultan Mir and DW-6 Syed Raza Shah as his witnesses.
5. The impugned judgment was announced on 22-3-2016 in which the Appellants were acquitted in FIR 73/2015 (police encounter and attempted murder) but were convicted and sentenced as above for possessing unlicensed pistols and hand grenades.
6. We have heard the learned counsel for the Appellants as well as the learned APG. We have also examined the record with their able assistance. Both have basically reiterated their arguments in trial (which are contained in the impugned judgment) and therefore are not being reproduced here for the sake of brevity. Our observations are as follows:
7. The fact that the prosecution was unable to prove its case under 'section 353 and 324 of the P.P.C. for which FIR 73 of 2014 was registered against the Appellants was a set back to the entire prosecution case. According to the learned APG the State did not prefer an appeal against such acquittal which therefore has attained finality. The foundation upon which the entire prosecution case was initiated having fallen down, it cannot be said with certainty that the follow up arrests and recovery were not tainted with mala fide. We have however, looked at this aspect together with our other observations noted below to reach the judgment that we have.
8. The sketch of the pistol recovered from Appellant Mushtaq shows that the text "Cal 30 Mauser Made in China by Norinco" was written on it. This text does not find any mention in the memo of arrest and recovery nor the report of the ballistic expert who examined the weapons. The memo of arrest and recovery has no description of the seized weapons which would help in proving that the weapons seized were the same as the weapons sent for ballistic examination as well as the weapons produced in trial.
9. The prosecution witnesses and the memo of arrest and recovery shows that the pistol recovered from Appellant Mehboob was with four bullets and was seized and sealed on the spot. The report of the ballistic expert however reveals that the pistol was sent along with three bullets. This fact suggests tampering of the case property.
10. The seizure of weapons and the grenades was said to have been made on 3.3.2014. The Bomb Disposal Unit expert PW-4 Sabir Shah however deposed that he received a request for examining the seized grenades on 21-3-2014. There is no explanation given as to how and where the unsealed grenades were kept in the interim. Similarly there is no explanation for the inordinate delay in having the grenades examined. In such a situation tampering with the property cannot be conclusively eliminated.
11. While the BDU expert PW-4 Sabir Khan in his testimony during trial deposed that the grenades had 65 grams of explosive in it, the clearance certificate issued by him has a remark indicating that no explosive material was found. The learned APG argued that the expert forgot to strike out the remark on the certificate. Be that as it may, when an offence carries stringent punishment and the liberty of a person is at stake, it is more the reason that the police officials show no negligence in their duties. Such lapses have the effect of creating doubt, through which an accused benefits.
12. No effort was made by the investigating officer to establish that the accused had a design to commit terrorism. Admittedly, the grenades were without detonators and even if the accused wanted to cause damage they would have not been able to do so, Why a person would carry impotent grenades knowing fully well that if caught they could be stringently punished eludes us,
13. The FIR registered against the Appellants recorded that they were professional militants who were also target killers however the prosecution failed to produce an iota of evidence regarding any past criminal record. The assertion of the prosecution, in the circumstances, seems to be one to incorrectly strengthen its case.
14. The Appellants and the witnesses have deposed that they were picked up from their houses on 1-3-2014 i,e, two days before the prosecution claim as to when they were arrested. All documentation also shows that the arrest and recovery was made on 3-3-2014. As a final blow to the prosecution case, PW-6 Inspector Ameer Gondal in his testimony, not once but twice, deposed that the Appellants were arrested on 1-3-2014. This deposition corroborated with other facts mentioned above, cast a shadow of doubt over the entire prosecution case and upon the veracity and credibility of the prosecution witnesses.
15.When the prosecution case is put in juxtaposition with the defence version, the defence version appears to be more credible.
16. The prosection was unable to prove its case beyond reasonable doubt. The benefit of such doubt should have gone to the accused to accordance with well-established principles of law.
17. For the above reasons, we allow the appeals, acquit the Appellants of the charges and order that they be released forthwith if not required in any other case.