ABDUL MOBEEN LAKHO, J.---This single Judgment will dispose of both captioned Special Criminal Appeals directed against the impugned judgment dated 17-11-2018 passed by the learned Judge, Anti-Terrorism Court No. XX Karachi in Special Case No. 1089 of 2017 and Special Case No. 1090 of 2017 St. v. Noman Khan arising out of FIRs bearing Crime No.132 of 2017, Police Station Gulistan-e-Johar, Karachi, registered under Section 4/5 Explosive Substances Act read with Section 7 of Anti-Terrorism Act, 1997; and Crime No. 133 of 2017, Police Station Gulistan-e-Jauhar, Karachi, registered under Section 23(i)A Sindh Arms Act, 2013.
Whereby; appellant was convicted and sentenced to suffer imprisonment for 14 years for committing offence under section 7(ff) ATA, 1997 against possession of explosives and for ten years under section 23(i)A Sindh Arms Act, 2013 for keeping arms with fine of Rs.100,000/- and to suffer a period of S.I. for 01 year in case of default. The benefit of section 382-B, Cr.P.C. has been extended to him.
2. Briefly the facts forming the background of the captioned appeal are:- Sub, Inspector Rangers Ghulam Habib accompanied by Muhammad Nisar R-129966 and R Lance Naik Jamshed Khan and other accused persons in official vehicle No.918718, vehicle No. 879040 and two official motorcycles on which 2/2 armed rangers, on spy that huge cache of weapon and fire arms, adjacent to Safari Park GO-ASH Adventure Park University Road, Gulshan-e-Iqbal, Karachi, is dumped by Imbisat Malik, who is affiliated with MOM, london. Conducted raid there and during search from the store of the Park, following weapons were recovered which include LMG one No.1953 with linker belt with 80 bullets, SMG 16(1), SMG No.16025904, (2) SMG No.S56117164897, (3) SMG No.KK-3534, (4) SMG No. 20130099, (5) SMG No. 1219981, (6) SMG No.1988, (7) SMG without number written made in Germany, (8) SMG without number with 25 Magazine with 20300 bullets, 12 bore Repeater, 02 without number, TS 870 BD-N-12/ 76 with 62 bullets, second repeater without number 7mm Rifle 06, No.KT-859, Rifle No. AU-9658, 7mm Rifle No. BR No. Special 7mm Rifle No. AN?A-7859 and 02 7mm Rifle without number alongwith Magazine 14 bullets, 223 bore Rifle 03, 10 Magazines without number with 240 bullets, M-16 Rifle 02, without number, MP-5 one without number, 02 Magazines with 96 bullets, Pash Pasha Rifle one C1942 HA-321, 3Q bore pistol with magazine without number along with 50 bullets, hand grenade 04, colour light green numbered as ARGES HDGR 69 and Ball Bomb 10 wrapped with red colour plastic tape, with the following articles and bullets in which 02 Telescope site, 540 round G-3, 135 Round 222 bore. 50 round 44 bore. The ammunition seized on the spot in presence of Rangers Officials witnesses 1. R-129966 Lance Malik Muhammad Nisar and witness 2. R-132672 Lance Naik Jamshed Khan, the Ball Bomb and hand grenades were taken in the safe custody.
3. The appellant was arrested during investigation on 08.04.2018. The challan of the case was submitted on 30.4.2018. Accused Imbisat Malik was declared as absconder as per the statement of CW-2 vide Exs.3-A to 3/G respectively. A formal charge was framed on 19.05.2018 at Ex.7. The appellant pleaded not guilty and claimed trial at Ex.8. Prosecution to substantiate the charge examined PW-I Ghulam Habib at Ex.9, SIP Nemat Ali [complainant] at Ex.10, PW-3 Inspector Mohammad Masood at Ex.11, P.W.4 Malik Khalid Ex.12, PW-5 SIP Nazar Mohammad at Ex.13, PW-6 Inspector Mohammad Mithal Shaikh at Ex.14, PW-7 Inspector Kashif Rabbani at Ex.15; thereafter prosecution closed his side vide Ex.16.
4. Statement of accused under Section 342, Cr.P.C. was recorded the appellant claimed his innocence and prayed for his acquittal.
5. Mr. Muhammad Tamaz Khan, learned defence counsel has pleaded innocence of the appellant on the grounds that he was not found in exclusive possession of the alleged recovery. The possession of Go Ash, Park, was already taken over by Karachi Metropolitan Corporation (KMC) on 07.05.2016. 09 months before the incident took place on 21.03.2017; that appellant was working as a Manager but there was other staff members also and he was not responsible in any manner about security of the above said park. The security was with KMC even when the appellant were in possession of the part during possession of the park by them.
6. On the other hand, learned DPG and learned Special Prosecutor. Rangers have opposed contentions of learned defence counsel and have prayed for maintaining conviction and sentence of appellant, on the basis that there is sufficient material on record available with the prosecution which would connect the appellant with the commission of alleged offence that the trial court after appreciation of entire prosecution evidence, appraised the same and convicted the appellant.
7. We have gone through the entire evidence of witnesses and other material placed on record. The entire case of the prosecution is that the appellant was Manager of Go Ash Park and from the store room of the Park the alleged articles were recovered. Surprisingly at the time of raid no one was found present at the spot, prosecution has not contested the aspect that on 07.05.2016 on account of some default, possession of the said park was already taken over by KMC and it had locked the premises by putting its own lock, from where this recovery was effected. None of the prosecution whiteness have deposed that after 07.05.2016 the appellant had ever visited or used the premises in any manner till the date of the incident. In the above circumstance it would be far-fetched to connect the appellant with the recovery of alleged articles from the place which he was not in possession of for more than 09 months which does not in any manner inspire confidence. The appellant is stated to be a Manager of Go Aish Park but there is also no word in evidence in respect of any other staff or otherwise working over there to lead to his exclusive possession of the premises before dispossession. There is no evidence to show that the appellant stashed the alleged articles at the place of recovery. When asked, it was admitted by learned Law Officers during arguments that no inventory of articles available in the office was prepared by the KMC officials at the time of resuming possession of the said park. The prosecution has not brought any evidence to the effect that said premises was not used by KMC officials after taking over possession. It is also missing as to how many KMC employees had access to key of the lock over the premises or who in fact was in possession of the key and whether he or they were using the premises or not.
Abnormally/Surprisingly no one for KMC was joined in the investigation to find a reply to said questions.
8. Besides, as per record the alleged articles were not produced by the prosecution witnesses in their evidence and instead I.O. of the case PW-6 produced a copy of FIR bearing Crime No.123/2018, registered at Police Station City Court, Karachi on 31.07.2018, and deposed that alleged property which was lying in the Malkhana of City Court was burnt. A perusal of said FIR Exhibit-14/F shows herein, that simply the incident of fire and destruction of properties available in the City Court Malkhana has been reported without providing any details of the properties. No report of subsequent investigation, etc. identifying the properties burnt in, the said incident has been placed on record to confirm destruction of alleged articles in the said incident. The recovery of articles not produced in the trial has to be looked at with extra care and caution. Further, the alleged recovery was effected on 21.03.2017 but for FSL report was sent on 24.03.2017 i.e. after 03 days. No evidence has been produced as to where the case property was lying for those 03 days.
9. It is well settled principle of criminal law that it is for the prosecution to prove its case against the accused beyond a shadow of a doubt and if there is any doubt in the prosecution's case the benefit of such doubt, as set out in the case of Tariq Pervez v. The State (1995 SCMR 1345) must go to the appellant as of right as opposed to concession. However in considering this aspect of the case we are also guided by the case of Faheem Ahmed Farooqui v. The State (2008 SCMR 1572) where it was held as under as P.1576 at Para D. "it needs no reiteration that for the purpose of giving benefit of doubt to an 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 it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt." (bold added)
21. In the recent Supreme Court case of Hashim Qasim v. The State 2017 SCMR 986 (Criminal Appeals No. 115 and 116 of 2013) dated 12th April 2017 the Hon'ble Supreme Court in respect of the benefit of doubt held as under at Para 20: "Even a single doubt, if found reasonable, would .entitle the accused person to acquittal and not a combination of several doubts is bedrock principle of justice, Reference may be made to the case of Riaz Masih alias- Mithoo v. The State (1995 SCMR 1730)
10. All these lacunas discussed above and keeping the principles laid down by the superior courts discussed above the prosecution has made the case against the appellant highly doubtful, and it is well settled law that benefit of even a single circumstance leading to a reasonable doubt has to be extended to the accused.
Therefore, the appeals in hand are allowed and the appellant is acquitted of the charge. He shall be released forthwith, if he is not required in any other custody case.
The appeals stand disposed of.