OMAR SIAL, J.---Through this consolidated judgment we intend to dispose off the captioned nine appeals filed by the appellants (i) Muhammad Shafiq son of Alam Zeb Khan; (ii) Gul Bahadur son of Mir Sahab Khan and (iii) Nazar Khan son of Yar Akbar against the convictions and sentences awarded to them through a common judgment of the Anti-Terrorism Court-II at Karachi in Special Case Nos. B-488, B-489, B-490, B-491, B-492, B-493 and B-494 all of the year 2015.
1. The brief facts of the prosecution case are that on 26-5-2015 a police party led by SIP Riasat Ali while on patrol duty, saw the three persons walking on foot and signaled them to stop. The persons so signaled instead of stopping opened fire on the police party. The police retaliated and subsequently arrested the three persons who identified themselves as (i) Muhammad Shafiq son of Alam Zeb Khan; (ii) Gul Bahadur son of Mir Sahab Khan and (iii) Nazar Khan son of Yar Akbar. The following FIRs were registered against the appellants: Appellant Recovery FIR lodged Muhammad Shafiq, Gul Bahadur and Nazar KhanPistols and grenadesFIR No, 181/2015 under sections 353/ 324/34 read with section 7 of the Anti-Terrorism Act, 1997 Muhammad Shafiq.30 bore pistol along with 3 live cartridgesFIR No, 182/2015 under section 23(1)
(A) of the Sindh Arms Act, 2013 Muhammad ShafiqOne hand grenade FIR No, 183/2015 under sections 4/5 of the Explosive Substances Act, 1908 Gul Bahadur .30 bore pistol along with 5 live cartridgesFIR No,184/2015 under section 23(1)
(A) of the Sindh Arms Act, 2013.
Gul Bahadur One hand grenade FIR No, 185/2015 under sections.
4/5 of the Explosive Substances Act, 1908 Nazar Khan .30 bore pistol along with 4 live cartridgesFIR No, 186/2015 under section 23(1)
(A) of the Sindh Arms Act, 2013 Nazar Khan One hand grenade FIR No, 187/2015 under sections 4/5 of the Explosive Sub- stances Act, 1908
2. All the cases were amalgamated on 24-8-2015 pursuant to section 21-M of the ATA Act, 1997 to be heard together as all the cases arose from the same set of facts and in connection with the same incident.
3. On 24-8-15 the trial court framed a charge against the appellants for offences under sections 353, 324, 34, P.P.C. and 23(1)(a) of the Sindh Arms Act, 2013 and 4/5 of the Explosive Substances Act, 1908, subsections (2), (ee), (m), (n) punishable under sections (d) and (ff) of ATA, 1997. All three appellants pleaded not guilty and claimed trial.
4. The prosecution produced four witnesses in support of its case. PW-1 was ASI Masab Hussain. He was a member of the Bomb Disposal Unit who examined the hand grenades at the police station.
PW-2 was ASI Riasat Ali. He was the complainant and the police officer who made the memo of arrest and recovery. PW-3 was constable Muhammad Aslam. He was the witness to the memo. of arrest and recovery as well as the memo. of site inspection. PW-4 was Inspector Najamuddin Ahmed Siddiqui, the investigating officer of the case.
5. All three appellants in their section 342, Cr.P.C. statements denied the allegations leveled by the prosecution. Muhammad Shafiq said that he was picked up from his house on 7-5-2015 by the Rangers and kept in confinement for seventeen days, after which he was handed over to the police. The police demanded Rs, 200,000 from him as illegal gratification and upon him being unable to pay them, he was booked in these false cases. Appellant Gul Bahadur also recorded a similar statement. Appellant Nazar Khan recorded a similar statement but said that he was up by the Rangers from his house on 6-5-15 and that police had demanded Rs, 100,000 from him as illegal gratification. All three appellants produced two witnesses each in support of their defence.
6. On 21-4-2016, the trial court pronounce the judgment, and convicted and sentenced the appellants as follows: Each of the appellants: 3 years' RI for offences under section 353, P.P.C.
Each of the appellants: 7 year with fine of Rs, 25,000 for offence under, section 23(1)(a) of the Sindh Arms Act, 2013. Upon failure to pay another 6 Months imprisonment.
Each of the appellants: 14 years' R.I. for offence under section 7(ff) of ATA, 1997.
The benefit of section 382-B, Cr.P.C. was extended to the appellants. Hence these appeals.
7. We have heard the learned counsel for the appellants and the learned APG and have also examined the record with their able assistance. Our observations are as follows.
8. It is alleged that the appellants fired six rounds directly at the police party from a relatively short distance and an admitted position that five members of the police party discharged one hundred and one (101) rounds directly at the appellants. Surprisingly, none of the members of the police party, the appellants, the police mobile or any other property or vehicle was injured or hit in this police encounter. Further, though the A prosecution gives an exact number of bullets fired, yet it recovers only ten empties discharged from the weapons of the police party. Based on the evidence led, we are of the view that the prosecution story regarding a police encounter does not appeal to logic and the benefit of the doubt must go to the accused.
9. The Bomb Disposal Unit in its reports states that all three recovered grenades were without detonators whereas one out of the three was also rusted. PW3 Muhammad Aslam when shown the grenades in his evidence admitted that two out of the three grenades "seems to be rusted". It does not appeal to logic that three people in the middle of the night would be roaming around with rusted hand grenades in their pockets which in all probability would also not explode even if used as all were without detonators.
10.The FSL report states that the parcel marked as "A" sent to it for examination contained a .30 bore pistol with three cartridges recovered from appellant Muhammad Shafi whereas parcel marked "D" contained a .30 bore pistol with four cartridges recovered from appellant Nazar Khan.
When the case property was de-lealed in the trial court during the evidence of PW-1 Riasat, a hand grenade came out of parcel "A" which Riasat said was recovered from appellant Muhammad Shafiq; whereas from the parcel marked "D" a pistol and three cartridges came out which the witness said was recovered from Muhammad Shafiq. Further, Article B (which contained the grenade recovered from Gul Bahadur) was presented in the trial court in a de-sealed condition. It also appears that parcel marked "C" (which ostensibly should have contained the grenade recovered from appellant Nazar Khan) was also not sealed when produced in court. The FSL in its report states that three, .30 bore test empties were also sealed and sent back to the investigating officer. However, none of the witnesses have produced this parcel in their evidence. This creates a disparity between the weapons allegedly recovered and the weapons produced in evidence and creates a doubt in the prosecution case.
11. The PW-3 Aslam has admitted in his testimony that the pistols and the grenades were of different colors and some also had identification marks on them. Yet, the make, model, color or any identification mark of the seized pistols or the grenades was not written in the memo. of arrest and recovery or the grenades.
12.The police party admittedly returned to the police station at 0140 hours, yet it was not till 1224 hours that the Bomb Disposal Unit was summoned to the police station to examine the recovered grenades. The prosecution has not been able to explain this delay or where and how the hand grenades were kept during this period. This delay has given rise to the inference that the occurrence, if any, did not take place in the manner projected by the prosecution and the time was consumed in making effort to give coherent attire to the prosecution case.
13.The Hon'ble Supreme Court in Faheem Ahmed Farooqui v. The State (2008 SCM R 1572) - which was a terrorism case - has observed that "For the purpose of giving benefit of doubt to the accused person more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful. Merely because the burden is on the accused to prove his innocence does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt. The same principle is reiterated by the Hon'ble Supreme Court in Wajahat Ahmed v. The State (2016 SCM R 2073) in which it has observed that "it is the basic and established principle of criminal justice that it is the prosecution which has to prove the guilt of the accused beyond any reasonable shadow of doubt. Once the court entertains reasonable doubt/doubts in the prosecution case, its benefit must be extended to the*accused not as a grace but as of right.".
14.The father of appellant Nazar Akbar on 5-6-2015 had written a letter to the Hon'hle Chief Justice of Sindh and the Director General Sindh Rangers that his son had been picked up by the Rangers in the night between 6 and 7 May 2015 and is now in the custody of Police Station Ittehad Town. As this letter was written after the date of the FIRs registered, we have not given it much consideration. However, we do note that this letter and evidence of the six defence witnesses has rather hurriedly been brushed aside by the trial court crediting the benefit of all doubt in favour of the prosecution rather than to the accused.
15.An extremely doubtful police encounter; a story that does not inspire confidence; none of the parties or property having suffered even a scratch; non-recovery of empties; rusted grenades.
(without detonators); doubts over whether the property presented in trial was actually the property seized; non-production of the complete case property in trial; no description of the weapons and grenades seized in the memo. of arrest and recovery; unexplained delay in summoning the BDU for examining the grenades; contradictory statements of the prosecution witnesses regarding whether there were buses parked at the scene of offence and whether the pistol sketches were made at the spot or not at all; no site map being made; no past criminal record of the appellants and not giving any weight to the defence witnesses by the trial court makes us of the view that the appellants should have been given the benefit of doubt, a principle laid down by numerous judgments of the Hon'ble.
16. In view of the above discussion, we are of the view that the prosecution had failed to prove its case beyond reasonable doubt entitling the appellants to be acquitted.
The above are the detailed reasons of our short order dated 23-1-2017 in which the appeals were allowed and the appellants were ordered to be released from jail if not required in any other case.