ABDUL MAALIK GADDI, J.---Through instant appeal, the appellants have challenged the common Judgment dated 15.06.2016 passed by the learned Judge, Anti-Terrorism Court No,II, Karachi in Special Cases Nos,B-908 to B-912 of 2015 arising out of Crime No,377/2015 under Sections 353/324/34, P.P.C. read with Section 7 of Anti-Terrorism Act, 1997, Crime No,378/2015 under Section 23(1)(a) of Sindh Arms Act, 2013, Crime No,379/2015 under Sections 4/5 Explosive Substances Act, 1908 read with Section 7 of Anti-Terrorism Act, 1997, Crime No,380/2015 under Sections 23(1)(a) of Sindh Arms Act, 2013 and Crime No,381/2015 under Sections 4/5 Explosive Substances Act, 1908 read with Section 7 of Anti-Terrorism Act, 1997 registered at police station Ittehad Town, Karachi, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellants in point No,3 of the impugned judgment. For the sake of convenience, it would be appropriate to reproduce the Point No,3 of the said judgment, which read as under:-- "POINT NO.3.
52. The charge leveled against the accused namely Muhammad Shahid son of Muhammad Ghani and Abdullah son of Sher Ali that had encounter with police stands proved. They are convicted and sentenced to suffer R.I. for 3 years under section 353 of P. P . C.
53. As to the recovery of unlicensed pistol .30 bore from accused Muhammad Shahid is also proved. He is convicted and sentenced to suffer R.I. for 7 years under section 23-1-A of S.A.A as well as recovery of hand grenade from him is also proved. He is convicted and sentenced to suffer R.I. for 7 years under sections 4/5 Explosive Substances Act, 1908.
54. As to the recovery of unlicensed pistol .30 bore from accused Abdullah is also proved. He is convicted and sentenced to suffer R.I. for seven years under section 23-I-A of S.A.A as well as recovery of rifle grenade from him is also proved. He is convicted and sentenced to suffer R.I. for 7 years under section 4/5 of Explosive Substance Act, 1908. All the punishments will run concurrently. The benefit of Section 382(b) of Cr.P.C. is also given to them."
2. The brief facts of the prosecution case leading to the filing of this appeal are that on 16.09.2015, ASI Altaf Hussain of police station Ittehad Town, was on patrolling along with his subordinate staff namely PCs Aslam, Zoved Muhammad, Shahzado and Driver PC Raheem, in Government Mobile No,SP-4325 and when they reached at main road near last stop of 20 number Bus, Nawab Colony, Baldia Town, Karachi, it was 0030 hours and police party saw that two persons going on foot. For checking, they were stopped but to avoid their arrest, it is alleged that accused started straight firing upon police party. ASI had also in self defence ordered to retaliate the firing, which had taken place for about three to four minutes and then they succeeded to arrest both the accused. One accused on enquiry disclosed his name as Muhammad Shahid son of Muhammad Ghani and the other as Abdullah son of Sher Ali. The search was taken in presence PC Zoved Muhammad and PC Shahzado and from accused Muhammad Shahid was recovered .30 bore pistol without number, one bullet stuck in the chamber and three bullets in the magazine and Hand Grenade No,U3PPM-2- 583 from the right side pocket of his kameez. From accused Abdullah was also recovered from his right hand a pistol of .30 bore without number, whereas, one bullet stuck in the chamber and two bullets in the magazine, whereas, from the right side pocket of kameez was recovered Rifle Grenade No, VMG-K-(33)2009. It is alleged that the grenades were to be used for creating terrorism. The accused could not produce the license or permit. The firearms/explosive substances were sealed separately and to defuse the bombs, Disposal Squat was called. The accused and case properties were brought to police station, where separate FIRs were registered under above referred sections.
3. It appears from the record that after registration of FIR, the investigation was carried out by Inspector Najamuddin Ahmed, who after recording the statements of PWs under Section 161, Cr.P.C. and after completing all the formalities, submitted the final report against the appellants in the Court of law.
4. In order to establish accusation against the appellants/accused, prosecution had examined the following witnesses alongwith the documents produced in evidence by them:-
(i) PW-1 is ASI Abid Farooq at Ex.P/1, who produced entry No,25 by which he had departed from his office as Ex. P12; he reached at police station Ittehad Town to defuse the Hand Grenade made it safe and given clearance certificate of FIR No,379/2015 which he produced at Ex.P/3; FIR No,381/2015 at Ex.P/4; Entry No,26 at Ex.P/5; Final Report at Ex.P/6 and FIR No,379/2015 at Ex.P/7;
(ii) PW-2 ASI Altaf Hussain Soomro at Ex.P/8, who produced entry No,36 at Ex.P/9; memo. of arrest and recovery at Ex.P/10; Entry No,44 at Ex.P/11; copy of FIR No,377/2015 at Ex.P/12; two copies of FIRs No,378/2015 and 379/2015 at Ex.P/13 and Ex.P/14 respectively; two copies of FIRs No,380/2015 and 381/2015 at Ex.P/15 and Ex.P/16 respectively; memo of site inspection at Ex.P/17; (iii)PW-3 PC Zoved Muhammad at Ex.P/18; (iv)PW-4 Inspector Najamuddin Ahmed ai Ex.P/19, who produced departure entry at Ex.P/20; sketch of place of incident at Ex.P/21; entry No,5 at Ex.P/22; copy of order of SP investigation at Ex.P/23; letter sent to FSL at Ex.P/24; FSL report at Ex.P/25; two letters sent to Expert Bomb Disposal at Ex.P/26 and Ex.P/27 respectively; permission order of Home Department at Ex.P/28 and Ex.P/29 respectively.
These witnesses have been cross examined by the counsel for accused. Thereafter, leaned DDPP closed the prosecution side vide Statement at Ex.P/30.
5. Statement of accused was recorded under Section 342, Cr.P.C. separately at Ex.31 and Ex.32, in which they have denied the allegations as leveled by the prosecution and have submitted that nothing were recovered from them and they are innocent. Accused Shahid in his statement further stated that he was picked up on 11.09.2015 from the Cattle Mandi behind the Sohrab Goth in the evening and at that time, he had Rs,25,000/-, which was given to him by his friend Naveed and they had gone to buy the animals for sacrifice, when two peoples in plain clothes had come, put cloth over him and made him to sit in the mobile and snatched Rs,25,000/-. However, he did not examine himself on oath nor led any evidence in his defence. Similarly, accused Abdullah in his statement stated that he was also picked up on 11.09.2015 from Mandi of Cattle behind Sohrab Goth alongwith his neighbor Manzoor Hussain nd police challaned him falsely in these cases after snatching from him Rs,22,000/-. However, in support of his case, he examined himself on oath at Ex.33 and also examined Manzoor Hussain and Sher Ali in his defence at Ex.34 & Ex.35 respectively.
Thereafter, counsel for accused had closed its' side vide statement at Ex.36.
6. Learned counsel for the appellant has argued that complainant as well as mashirs of this case are police officials and their evidence cannot be believed without corroboration of independent evidence, which is lacking in this case; thus, according to him, there is violation of Section 103, Cr.P.C. He further argued that accused were arrested on 11.09.2015 when they had separately gone few days before Eid-ul-Azha for buying scarifying animals from Cattle Mandi behind Sohrab Goth and nothing were recovered from them and alleged recoveries of pistols and grenades were foisted upon them after showing fake encounter, although, during alleged encounter, nobody had received any injury from either side, even no bullet was hit to police mobile. Per learned counsel, accused Abdullah had examined himself on oath as well as produced two witnesses to prove his version and defence witnesses have supported the version of the accused, but learned trial Court did not appreciate the defence version. He also argued that the evidence of complainant and mashirs are contradictory to each other on material particulars of the case, therefore, the same cannot be safely relied upon for maintaining conviction, as such, under the above mentioned facts and circumstances, the appellants are entitled for their acquittal from the said cases and this appeal may be allowed.
7. Conversely, learned DPG has argued that complainant as well as mashirs including Investigating Officer have supported the prosecution case and case is proved against the accused beyond the shadow of doubt. He has also argued that defence counsel has not been able to create any reasonable dent and defect in the prosecution case and the offence has been proved against the appellants, as both accused were arrested from the spot and hand grenades and .30 bore pistols were recovered from the appellants in presence of mashirs namely PC Zoved Muhammad and PC Shahzado, who have no inimical terms with the appellants; therefore, according to him, prima facie, the appellants are involved in these cases, which are serious and heinous in nature.
8. We have carefully heard the learned counsel for the parties and scanned the evidence and documents on record.
9. We have come to the conclusion that prosecution has failed to prove its' case against the appellants for the reasons that all the pieces of evidence produced by prosecution are weak in nature. According to the case of prosecution that on 16.09.2015, complainant ASI Altaf Hussain of police station Ittehad Town, was busy in patrolling alongwith his subordinate staff namely PCs Aslam, Zoved Muhammad, Shahzado and Driver PC Raheem, in Government Mobile No,SP-4325 and when they reached at main road near last stop of 20 number Bus, Nawab Colony, Baldia Town, Karachi and saw that present accused were going by foot, for checking purposes, they were stopped but to avoid their arrest, they had started straight firing upon police party with intention to kill them. Police also fired in self defence with sophisticated weapons and this encounter remained continued for about three to four minutes, but surprisingly not a single injury/scratch was caused to either side. Even not a single bullet was hit to police mobile. Admittedly, incident took place at main road near last stop of 20 number Bus, Nawab Colony, Baldia Town, Karachi and firing was exchanged, therefore, the possibility of private persons at road could not be ruled out, but police did not make any effort to join any independent person of the locality or passerby to witness the arrest and recovery proceedings of the appellants. Omission to secure independent mashirs under the facts and circumstances of this case cannot be brushed aside lightly by this Court. In this case, it is also the case of prosecution that accused were armed with hand grenades and pistols, it was unbelievable that appellants without causing any harm to police were arrested by the police.
10. We have gone through the evidence of prosecution witnesses with the able assistance of the parties' counsel and found the same contradictory on material particulars of the case. For example, PW-1 ASI Farooq of Bomb Disposal Unit in his evidence at Ex.P/1 produced inspection report at Ex.P/6 and Ex.P/7 showing the numbers of hand grenades and out of which one was rifle grenade, whereas, PW-2 ASI Altaf Hussain Soomro in his evidence at Ex.P/8 had not disclosed/ mentioned the numbers of alleged hand grenade or rifle grenade. We have noticed that Charge against the appellants was framed on 12.12.2015 by the trial Court showing that hand grenades were recovered from each accused without numbers and descriptions and the evidence brought on record by the prosecution in this regard, showing to improve its' case beyond the scope of Charge, which is not tenable under the law. In our view, Charge being foundation of trial is precise formulation of specific accusation made against a person who is entitled to know its nature at the earlier stage, which he is required to defend. Chapter XIX of the Cr.P.C. contains provisions with regard to the Charge in criminal cases. Sections 221 to 240 specify different provisions regarding Charge. The subject of Charge in criminal cases is of utmost importance as the entire edifice of a criminal case is built upon framing of a correct Charge. Since the Charge framed by the trial Court is silent with regard to the numbers, descriptions of the hand grenades and other necessary particulars of case, therefore, no reliance can be placed safely on the evidence of PW-1 ASI Abid Farooq of Bomb Disposal Unit and its reports. We have gone through the evidence of PW-2 ASI Altaf Hussain Soomro at Ex.P/8, who deposed that on 16.09.2015, he was posted at police station Itehad Town and his duty hours were from 8:00 a.m. to 8:00 p.m., whereas, admittedly the incident had taken place at 12:30 a.m., it appears that either he was not on his duty at the relevant time or he was deposed falsely. We have also gone through the evidence of PW-3 PC Zoved Muhammad at Ex.P/18, who deposed that some coins were also recovered from the accused at the time of their search, but in the mashirnama of arrest and recovery at Ex.P/10, there is no mention of coins. Not only this, investigating officer of the case namely Najamuddin Ahmed in his evidence at Ex.P/19 had disclosed wrong number of FIR as 37/2015, but no such crime number is mentioned in this case, which shows that perhaps the incident had not taken place in a fashion as alleged. Moreover, PW-2 ASI Altaf Hussain Soomro, in his evidence also deposed that electric poles were available at the place of incident, but there is no mention of electric pole in mashirnama of vardaat. We have also noted that FIR as well as mashirnama of arrest and recovery showing the recovery of .30 bore pistols were without numbers, but FSL report at Ex.P/25 produced by PW-4 SIO Najamuddin Ahmed, showing the rubbed number of one pistol and another pistol is without number. Therefore, false implication of the appellants in this case could not be ruled out. Despite these' contradictions, learned Presiding Officer of trial Court has not appreciated these legal aspects of the case and also surprisingly, trial Court failed to examined the defence plea deeply. Trial Court has utterly failed to examine the evidence according to the settled principle of law. Trial Court did not bother to see the punishment of Section 353, P.P.C., which is punishable upto two years, but trial Court has awarded sentence of three years, such sentence was erroneous and is not sustainable under the law. When confronted the above facts and legal position with the learned DPG, he was not able to controvert the same.
11. In view of above, we have also considered the version of both the parties put forward by them through evidence and put the same in juxtaposition then we found that the version of the appellants seem to be more plausible and convincing while the version of the prosecution appears to be doubtful.
12. For the above stated reasons, there are several circumstances/infirmities in the prosecution case, which have created reasonable doubt about the guilt of the appellants.
13. In case of Tariq Pervez v. The State reported as 1995 SCM R 1345, the Hon'ble Supreme Court has observed as follows:-- "It is settled law that it is not necessary that there should many circumstances creating doubts. If there is single circumstances, 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 SCM R 230.
14. 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 appellants beyond reasonable doubt.
Therefore, by extending the benefit of doubt, this appeal is allowed. The conviction and sentences recorded by the Judge, Anti-Terrorism Court-II, Karachi vide judgment dated 15.06.2016 are set- aside. Appellants are acquitted of the charge. The appellants shall be released forthwith, if not required in any other case.