ABDUL MAALIK GADDI, J.---Through these Special Criminal Anti-T errorism Appeals, the appellant namely , Baptist has challenged the legality and propriety of the judgment dated 09.01.2020 passed by the learned Presiding Officer of the Anti-T errorism Court No.VI, Karachi in Special Cases Nos.71 1 and 712 of 2017 arising out of Crimes Nos.365 and 366 of 2015, registered at Police Station PIB Colony , Karachi, under sections 353/324/34, P.P.C. and section 23(i)(a) of Sindh Arms Act, 2013, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellant as stated in the findings of point No.5 of the impugned judgment. For the sake of convenience, it would be appropriate to reproduce the relevant portion of the findings on point No.5 is reproduced as under:-- "POINT NO.5.
In the result of above discussion, I have reached to the conclusion that the prosecution have proved its case against accused Baptist son of George Khushi beyond any shadow of doubt as such he is proven to be guilty of an offence under sections 353/324/34, P.P.C., read with section 7(1) (h) of Anti-T errorism Act 1997, and under section 23(1)(A) Sindh Arms of 2013, therefore, he is convicted under section 265(H) (2), Cr . P. C. as under:- 1) Accused Baptist is guilty of an offence under section 353, P.P.C., read with section 6(2)(m), punishable under section 7(1)(h) of Anti-T errorism Act, 1997, bearing Crime No.365/2015 and he is convicted and sentenced to suffer R.I. for five years and fine Rs.20,000/- and in default, he shall serve SI four months more.
2) Accused Baptist is also guilty of an offence under section 324, P. P. C., read with section 7(1) (b) of Anti- Terrorism Act, 1997, bearing Crime No.36 5/2015 and he is convicted and sentenced to suffer R.I. for 10 years and fine Rs.20,000/- and in default, he shall serve S.I. four months more.
3) Accused Baptist is also guilty of an offence under section 23(1)(a) of Sindh Arms Act, 2013, bearing Crime No.366/2015 and he is convicted and sentenced R.I. for seven years and fine Rs.20,000/- in default, he shall serve R.I. four months more.
All the sentences of accused Baptist shall run concurrently except the payment of fine. The benefit of section 382(b), Cr .P.C. is extended to him."
2. The brief facts of the prosecution case in nutshell are that on 08.12.2015, complainant ASI Meer Khan along with his subordinates namely , PC Raja Naeem, PC Babar Khan, PC Sheroz in official mobile-I, whereas, PC Shahid and PC Shahzaib on motorcycle, were busy in patrolling in the area for prevention of crime. During patrolling, complainant received information through spy informer that inside Essa Nagri Graveyard near Sir Shah Suleman Road, Purani Sabzi Mandi, Karachi, some persons were present having arms. On such information at 2110 hours, police party reached there, where the accused persons were present. On seeing them, accused started firing upon police with intention to kill them. In retaliation, police also fired upon the accused persons and during this encounter , one accused got injured, whereas, other accused escaped from the crime scene. Thereafter , police apprehended the injured accused. On inquiry , the injured accused disclosed his name as Baptist son of George Khushi and also disclosed the names of absconding accused as Adnan alias Laqwa son of unknown, Abdul Kabeer alias Sunny son of Doraiz Khan and Kashif son of unknown. On personal search, police recovered one 30 bore pistol without number loaded magazine with two live rounds and one in its chamber and Rs.120/- from the possession of appellant. As accused could not produce any license or permit for possession of pistol, he was arrested on spot under memo of arrest and recovery in presence of mashirs namely , PC Raja Nacem and PC Babar Khan. Thereafter , appellant in injured condition sent to hospital for treatment and case property were brought at police station.
3. On perusal of record, it reveals that these cases were amalgamated by the trial Court under section 21-M of A.T.A., 1997 as such, a joint charge was framed against the accused on 05.07.2019 at Ex.6 to which he pleaded not guilty and claimed his trial vide his plea recorded at Ex.6/A.
4. At trial in order to prove the accusation against the appellants, prosecution had examined the following witnesses:-
(i) PW-1 SIP Meer Khan at Ex.7, who produced entry No.28, memo of arrest and recovery , FIR bearing No.365/2015, FIR bearing No.366/2015, entries regarding lodgment of FIRs and memo of inspection of place of incident at Ex.7/A to Ex.7/G respectively;
(ii) PW -2 PC Raja Muhammad Naeem at Ex.8;
(iii) PW-3 Doctor/Senior MLO Shahid Nizam at Ex.9, who produced provisional Medico Legal Certificate, supplementary/final Medico Legal Report and police letter at Ex.9/A to Ex.9/C respectively;
(iv) PW-4 SIP Syed Aslam Shah at Ex.10, who produced letter for conducting CRO of accused Baptist, letter to FSL for examination of the case property , FSL report, letter for depositing the case property in Malkhana and FIR along with entry for blaze that occurred in Malkhana in which case property was destroyed at Ex.10/A to Ex.10/F respectively;
(v) PW -5 PI Fareeduddin at Ex.1 1.
These witnesses were cross-examined by the Counsel for the appellant and thereafter learned APG for the State closed the prosecution side vide statement at Ex.12.
5. Statement of accused was recorded under section 342, Cr.P.C. at Ex.13, wherein he denied the allegations levelled against him by the prosecution and has stated that he is innocent and has been falsely Implicated in the present cases; that police shot him in the police station and staged fake encoun ter; that nothing was recovered from him; that all the prosecution witnesses are interested; that Pakistan Rangers arrested him then handed over his custody to the police, who shot him in the police station, foisted weapon and staged fake encounter . However , appellant neither examined himself on oath nor produced any witness in his defence.
6. Mr. G.M. Korai, learned Counsel for the appellant contended that appellant is innocent and has been falsely implicated in these cases with mala fide intentions and ulterior motives by the police; that nothing was recovered from his possession and the alleged recovery of pistol has been foisted upon him by the police in order to show their efficiency; that no private/independent person was cited as witness for the arrest and recovery proceedings though the incident took place in a thickly populated area; that the evidence of prosecution witnesses are found to be contradictory to each other on material particulars of the case and during the course of arguments, he has pointed out some contradictions, therefore, on the basis of contradictory evidence, the conviction and sentence could not be maintained; that the judgment passed by the trial Court is bad in the eyes of law and there are illegalities and irregularities in the impugned judgment; that the co-accused namely Ghulam Kabeer alias Sunny almost on same set of evidence has been acquitted by the trial Court through impugned judgment. Hence, prayed for allowing these appeals.
7. In contra, Mr. Ali Haider Saleem, Additional Prosecutor General, Sindh while supporting the impugned judgment submits that the prosecution has fully established its case against the appellant beyond reasonable doubt by producing consistent/convincing and reliable evidence and the impugned conviction and sentenced awarded to the appellant is the result of proper appreciation of evidence brought on record, which needs no interference. Lastly , he prayed that these appeals may be dismissed.
8. It is noted that whole case of the prosecution hinges upon the evidence of police officials. No doubt the evidence of police officials is as good as private witness, but when the whole of prosecution rests upon the evidence of police officials, who are interested in the matter, therefore, their evidence are required to be minutely scrutinized at the time of trial.
9. On perusal of evidence with the able assistance of the parties Counsel, we have noted number of contradictions as stated herein below:- i. PW-1 complainant Meer Khan in his cross-examination at Ex.7 deposed that an encounter took place for about 2/3 minutes, whereas, while contradicting this fact, PW-2 PC Naeem Raja in his cross-examination at Ex.8 deposed that an encounter took place for about 10/15 minutes, which creates doubt in the prosecution case; PW-1 complainant Meer Khan in his cross-examination at Ex.7 deposed that it took 10 to 20 minutes to complete the formalities at the place of incident, while contradicting this fact, PW-2 PC Naeem Raja in his cross-examination at Ex.8 deposed that it took one hour to one and half hour to complete the formalities at the place of incident. iii. According to PW-1 complainant Meer Khan in his evidence at Ex.7 deposed that he has taken the accused at Abbasi Shaheed Hospital and after his treatment, the accused and the case property were at police station and he lodged FIRs and as per time of FIRs the time of lodging are 10:30 p.m. and 10:40 p.m., whereas, while contradicting this fact, PW-3 Dr./MLO Shahid Nizam in his evidence at Ex.9 deposed that at about 10:40 p.m. injured Baptist son of George was brought by the complainant AS1 Meer Khan. This fact also gives serious jolt to the prosecution story as it is impossible for complainant to be present at two places in one time and this fact also shows that perhaps the incident had not taken in a fashion as stated in FIR or otherwise; iv. PW-2 PC Naeem Raja in his examination-in-chief at Ex.8 deposed that their 161, Cr.P.C. statements were recorded at police station, while contrad icting this fact, in cross-examination, he deposed that their 161, Cr.P.C. statements were recorded by ASI Aslam Shah at place of incident at about 11:15 p.m. This fact also creates doubt in the prosecution story .
When all these contradictions, lacunas and infirmities were confronted to learned Deputy Prosecutor General, Sindh for reply , he has no answer with him.
10. The case and claim of the prosecution is that police party headed by complainant PW-1 Meer Khan along with his subordinates was on patrolling duty and during patrolling, they received spy information with regard to availability of the present appellant along with his companions near Essa Nagri Graveyard near Sir Shah Suleman Road, Purani Sabzi Mandi, Karachi, but it is surprising to note that why the complainant did not associate with them any independent person from the place of information to witness the event. Not only this, it has also been brought in the prosecution evidence that the place of incident from where the present appellant arrested was a thickly populated area and at the time of inciden t admittedly many people were available there, but they have not been joined as witness of the recovery proceedings. We are of the cognizant of the fact that section 34 of Sindh Arms Act, has not expressly excluded the provision of section 103, Cr.P.C. but on the contrary, section 34 has provided a legal cover that police officials also can act as witnesses of recovery besides the private persons. The proviso of section 34 of Sindh Arms Act, provides that any police officer or person present on the spot can be witnessed of search and recovery , therefore, it was prime duty of the police to prefer a private witness if available at the spot to maintain transparency and fairness of the alleged recovery . It is the prime duty of Courts to ensure during the course of the administration of justice that there must be a plausible explanation for non-association of witnesses from public. Adverting to the merits of the case in hand, no valid reason or plausible explanation has been furnished by the prosecution for non-association of independent witnesses by the police when independent people were available at the place of recovery , which was a thickly populated area. Therefore, on this ground false implication of the appellant in this case could not be ruled out.
11. We have also noticed that at the time of incident police party was equipped with sophisticated weapons, despite this fact, the companions of the appellant namely , Adnan alias Luqwa, Abdul Kabeer alias Sunny and Kashif were fled away easily from the spot and police did not make any efforts to arrest them. This aspect of the case also makes the prosecution story to be doubtful one.
12. It is pertinent to mention here that it was alleged against the co-accused Ghulam Kabeer that at the time of incident, he was also available at the place of incident and made firing upon the police, but trial Court on the basis of same set of evidence/witnesses acquitted him through impugned judgment, but convicted the appellant without assigning any valid reason, therefore, under the circumstances, we are of the considered opinion that when prosecution witnesses if disbelieved for co-accused, could not be relied upon with regard to the present appellant, unless he was corroborated by evidence which came from unimpeachable indepe ndent source which is lacking in this case. In this regard, we are supported with the case of Muhammad Asif v. The State reported in 2017 SCMR 486.
13. All discussed above leads us to an irresistible conclusion that the prosecution remained fail to prove the case against the appellant beyond the shado w of reasonable doubt while there is no, cavil to the proposition that responsibility to prove its case is squarely rest upon the shoulders of the prosecuti on that has not been discharged successfully in this case and it is settled law that benefit of each and every doubt is to be extended to the accused and that only a single reasonable doubt qua the guilty of the accused is suf ficient to acquit him of the charge.
Even as per saying of the Holy Prophet (P.B.U.H.) the mistake in releasing a criminal is better than punishing an innocent person. Same principle was also followed by the Hon'ble Supreme Court of Pakistan in the case of Ayub Masih v . The State reported in PLD 2002 SC 1048 , wherein, at page 1056, it was observed as under:- "It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H.) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
14. In view of the above, we accept/allow these Special Criminal Anti-T errorism Appeals, set-aside the conviction and sentence recorded by the learned Presiding Officer of the trial Court through impugned judgment and acquit the appellant Baptist son of George from the above charges. He is in custody , therefore, jail authorities are directed to release him forthwith, if he is not required in any other case.
These appeals were heard and allowed by us through our short order after hearing the arguments of learned Counsel for the parties on 28.07.2020 and these are the detailed reasons thereof.