MRS. RASHIDA ASAD, J.---Muhammad Amir and Pervaiz Shah appellants were tried by learned Judge, Anti- Terrorism Court No. IV, Karachi (Special Cases Nos. 429, 429-A, 429-B of 2019). After full-dressed trial, vide judgment dated 25.11.2019, appellants were convicted under sections 324/353/34, P.P.C., and sentenced to 03 years' imprisonment each and to pay fine of Rs.10,000/- each. In case of default in payment of fine, they were ordered to suffer 04 months' imprisonme nt. Appellants were also convicted under section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to 02 years' imprisonment each and to pay fine of Rs. 5000/-. In case of default in payment of fine, they were ordered to suffer 02 months' imprisonment. However , appellants were acquitted from the charge under section 7(h) of Anti-T errorism Act 1997. All the sentences were ordered to run concurrently .
Appellants were extended benefit of Section 382-B, Cr .P.C.
2. Brief facts of the prosecution case relevant for disposal of the instant appeals are that on 29.06.2019 at about 0200 hours, complainant ASI Qurban Ali along with his subordinate staff was on patrolling duty, when reached at Malir Nadi Band, near Agha Town, Hamal Goth, Qaidabad, Malir , Karachi, saw two persons in suspicious manner , riding on a motorcycle. They signaled them to stop, but both persons started firing upon the police party with intention to kill them. Police party also fired in retaliation/self defence, which hit one culprit, who fell down on the ground, whereas his companion tried to escape but police successfully apprehended him. On inquiry , the injured accused disclosed his name as Amir, 30 bore, unlicensed pistol, rubbed number along with magazine loaded with two live bullets and one bullet in chamber so also Rs.200 were recovered from his possession. From possession of other accused, namely Pervaiz Shah one unlicensed 30 bore pistol along with magazine loaded with two live bullets, one bullet in chamber , with written words on its barrel "CAL 30 MAUSER MADE AS CHINA BY NORINCO", so also cash of Rs.300/- were recovered. On failure to produce the documents, the motorcycle was also taken into possession under Section 550, Cr.P.C. Complainant/ ASI collected empties of SMG and 30 bore pistols from the place of incident and prepared such memo of arrest, recovery and seizure in presence of the mashirs and sealed the property at the spot. Thereafter ASI Qurban Ali brought both the accused at police station from where injured Amir was referred to JPMC for treatment. Complainant/ ASI Qurban Ali lodged FIR bearing No.393 / 2019 against accused persons under sections 353/324/186/34 P.P.C. read with section 7 Anti-T errorism Act, 1997, FIR No. 394/ 2019 under section 23(1)(a) Sindh Arms Act 2013 against accused Amir and FIR 395/ 2019 under section 23(1)(a)
Sindh Arms Act 2013 against accused Pervaiz Shah on behalf of state.
3. Inspector Suhail Iqbal for investigated the case and inspected the place of wardat on the pointation of complainant/ ASI Qurban Ali and prepared such Mashirnama in presence of mashirs. He recorded statements of prosecution witnesses under Section 161 Cr.P.C., sent pistols and empties to Ballistic Expert for report. I.O. also interrogated accused. On conclusion of the usual investigation, challan was submitted against accused Amir and Pervaiz Shah under the above referred sections.
4. Learned Trial Court amalgamated the aforesaid connected cases with main case bearing Crime No. 393/2019 for joint trial, in terms of Section 21-M of Anti-T errorism Act, 1997.
5. Trial Court framed the Charge against both accused under the above referred Sections at Ex.4. Accused pleaded not guilty and claimed to be tried.
6. In order to substantiate the charge, prosecution has examined P.W-01 ASI Qurban Ali at Ex. 5, P.W702 PC Mubarak Ali at Ex.6, P.W-03 Dr. Aijaz- Ahmed, MLO, JPMC at Ex.7, P.W-04 Sanaullah Khan, Polio worker at Ex.8 and P.W-05 Inspector Suhail Iqbal at Ex.9, who produced the relevant documents at trial. Thereafter , prosecution closed its side vide statement at Ex.10.
7. Statements of accused were recorded under Section 342, Cr.P.C. at Ex.11 and 12 respectively , in which they denied the prosecution allegations and professed their innocence by stating that they were picked up by Rangers from their houses on 26.6.2019 in odd night hours. And to this effect accused Pevaiz Shah has also placed on record a copy of application, moved by his sister to the Additional I.G. Police . Accused declined to examine themselves on oath in disproof of the prosecution allegations and did not lead evidence in their defence.
8. Trial Court, after hearing learned counsel for the parties and assessment of the evidence, vide judgment dated 25.11.2019, convicted and sentenced the appellants as stated above hence these appeals. All these appeals arise out of same judgment and incident, with a common thread are being decided through this single judgment.
9. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 25.11.2019 passed by the Trial Court therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.
10. We have heard learned counsel for the parties, the extensive arguments of learned Advocates for the parties are not reflected separately but shall be reflected in the judgment.
11. Close scrutiny of the evidence reflects the prosecution story to be unnatural and unbelievable as according to prosecution an encounter took place at Malir Nadi Band Karachi on 29.06.2019 at 0200 hours, between accused and police.party said to be a case of cross-firing, with sophisticated weapons wherein one accused was caught hold in injured condition. It is quite unbelievable, for the reason that alleged encounter continued for considerable time, with sophisticated weapons but not a single injury/scratch was caused to any police official, any passerby or to police mobile, even to the motorcycle of accused persons; and it hits to the appellant Muhammad Amir while. selecting his leg. Even no blood was found at the place of incident. Besides this we observed glaring contradictions, coupled with the conduct of the complainant. Qurban Ali complaina nt during his cross-examination stated that accused Amir sustained bullet injury on back side of his left leg, which is in diametrical conflict with the position taken by him in his crime report as well as in the memo of arrest and recovery wherein the injury was shown to be received by accused Amir at his right foot. Confusion is further compounded by the statement of P.W- 03 Dr. Aijaz Ahmed MLO who vide his report dated 29.06.2019, noted that the injury was caused to the appellant at his right leg at its lower third. ASI Qurban Ali in FIR has mentioned that from the place of incident, injured accused Amir was directly shifted to JPMC through Chippa Ambulance, whereas, he in his evidence stated that no ambulance was called at the place of incident and the accused were first brought at the police station and thereafter , injured accused Amir was shifted to JPMC for medical treatment. It is further noticed that complainant in his examination-in-chief deposed that he himself prepared the memo of arrest and recovery however , in the next breath, in his cross-examination he deposed that the same was prepared by PC Asif on his dictation. Admittedly , there is joint mashirnama of recoveries as well as arrest, pertaining to three FIRs including the main case and such practice has time and again been deprecated by this Court as well as the honourab le Supreme Court of Pakistan in various pronouncements.
12. We have carefully perused the memo of arrest and recovery as well as FIR No.394/2019, and observed that nowhere the color of pistol allegedly recovered from the possession of accused Amir was mentioned, whereas, it is surprising to note that pistol which was produced before the Court was of silver color with black handle. As far as recovery from accused Pervaiz Shah is concerned, perusal of mashirnama of arrest and recovery , reveals that 30 bore pistol allegedly recovered from the possession of appellant Pervaiz Shah showing words "CAL 30 MAUSER MADE AS CHINA BY NORINCO", but in the FSL report available on record at Ex.9/I in the column of description the above said words are not mentioned and said alleged weapon was shown as 30 bore pistol with rubbed number . Therefore, under these circumstances, no reliance could safely be place d on FSL report for maintaining the conviction of the appellants on the basis of contradictory evidence.
13. It is further observed that as per record, the weapons allegedly recovered from the appellants on 29.06.2019, but the same were received to the office of the Assistant Inspector General of Police, Forensic Division, Sindh, Karachi, on 02.07.2019 after delay of about two (2) days for which no explanation has been furnished by the prosecution. Moreover , the pistols and bullets were retained by whom during this intervening period has also not been explained by the prosecution. For the sake of arguments, if it is assumed that the case property was lying in the Malkhana then no report/entry of the Malkhana has been produced to corroborate the version of prosecution.
No official from Forensic Division has been examined in this case. I.O. nowhere has deposed about safe custody of the empties and pistol at Police Station and their safe transmission to the Ballistic Expert, as such positive report of FSL would not improve the case of prosecution. Law is well-settled by now that prosecution is under legal obligation to prove the safe custody of the recovered weapon and its safe transmission to the Forensic Science laboratory as held by the honourable Supreme Court in the case of Kamal Din alias Kamala v. The State (2018 SCMR 577). In the present case appellant Amir received injury whereas neither any police personnel or police mobile received any bullet when it is asserted by P.W PC Mubarak Ali that accused made straight fires upon them from front side. Based on the evidence led, we are of the view that the prose cution story regarding a police encounter does not appeal to logic and the benefit of the doubt must go to the accused.
14. 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, desir able 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."
15. Evidence of police officials as discussed above in the above stated circumstances, required independent corroboration, which is lacking in this case. The defence pleas raised by the accu sed that they were picked up by the law enforcement agencies from their houses prior to the incident and weapons were foisted upon them in fake police encounter appear to be plausible. However , the learned trial court disbelieved the same without assigning any reason. In these circumstances and after an independent evaluation of evidence available on record, we have no manner of doubt in our minds that the prosecution has not been able to prove its case against the appellants 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 ).
16. For the above stated reasons, we have come to the conclusion that prosecution has miserably failed to bring home the guilt of appellants/accused. Resultantly , conviction recorded by the learned Trial Court vide judgment dated 25.1 1.2019 is not sustainable under the law and is also liable to be set aside.
17. In the above stated circumstances and reasons, captioned Appeals are allowed. Consequently , impugned judgment dated 25.11.2019 passed by learned Judge, Anti-T errorism Court No. IV, Karachi Division in Special Cases No.429, 429-A and 429-B of 2019 arising out of Crimes No. 393, 394 and 395 of 2019, registered at P.S. Shah Latif Town, Karachi under sections 353/324/186/34, P.P.C., read with section 7 of Anti-T errorism Act 1997 and 23(1)(a) of Sindh Arms Act stand set aside. Appellants are acquitted from the aforesaid charges and they shall be released forthwith, if not required in other case. These are the detailed reasons for the short order announced on 07th April 2020.