ABDUL MOBEEN LAKHO, J.---Through this appeal, appellant Zohaib has assailed judgment dated 02.10.2018 rendered by Special Judge, Anti-T errorism Court, Mirpurkhas Division at Mirpurk has, in Special Case No.18 of 2017 (Re: The State v. Zohaib and others ) being outcome of FIR No.02 of 2012, registered at Police Station Satellite Town, Mirpurkhas, under sections 302, 337-H(2) and 34, P.P.C. read with sections 6/7 of Anti-T errorism Act, 1997, whereby he has been convicted- and sentenced to suffer Rigorous Imprisonment for Life and to pay fine of Rs.100,000/- (Rupees One Lac) and in ease of non-payment of fine amount, he was ordered to suffer R.I for 06 months more. Appellant was also convicted for an offence under section 337-H(2), P.P.C. and sentenced to suffer R.I. for 3 years with fine of Rs.20,000/ and in default thereof, to suffer R.I. for further 03 months by enjoying benefit of section 382-B, Cr .P.C.
2. The crux of the prosecution case is that complainant SIP Muhammad Taqi Liskani was posted as SHO Police Station Satellite Town Mirpurkhas. On 03.01.2012 he along with his subordinate staff ASI Muhammad Riaz, PC Ghulam Farid, DPC Muhammad Ramzan left P.S. vide entry No.14 at about 1330 hours for patrolling purpose.
During patrolling, when they reached at Walkert Road at about 1940 hours, they heard fire shots towards Ali Talpur Town, they immediately rushed and reached in-front of Lal Masjid at about 1945 hours, where they saw that one person was lying in injured condition and was crying. On enquiry , he disclosed his name as Asif Qaimkhani and that he is Police Constable in District Police Mirpurkhas, who was also identified by the subordinate staff. The said injured further disclosed that he was going from his house to perform his duty, when he reached there, he saw Naeem Baloch and two unknown persons armed with firearm standing there, they enquired from him about his identity , he narrated that he is Police Constable and is going for his duty, on which accused Naeem Baloch made straight fire upon him with intention to kill, which hit him on his chest and he fell down on the ground, then accused Zohaib Unar also made straight fire upon him from his Pistol with intention to kill but missed. Thereafter , on seeing the police mobile all the accused persons ran away , then police took the injured in police mobile to Civil Hospital Mirpurkhas, where injured Muhammad Asif succumbed to the injures. After completing legal formalities in the hospital, complainant returned to P.S. where he lodged FIR at about 2250 hours against accused Naeem Balcoh, Zohaib Unar and two unknown accused persons.
3. After usual investigation, police submit ted challan against accused Naeem Baloch, Zohaib Unar , Nouman alias Ragoo Baloch and Javed Jatt under section 512, Cr.P.C. before the Court of Civil Judge and Judicial Magistrate-I, Mirpurkhas, who then sent case papers to the Court of Session, Mirpurkhas. During trial, learned ADPP moved an application for transfer of the case from Sessions Court to the Court of Special Judge, Anti-T errorism Court, Mirpurkhas on the pretext that complainant SIP Muhammad Taqi Liskani stated in FIR that deceased PC Muhammad Asif was murdered by the accused persons when he was going to attend his official duties. The said application was allowed and challan was submitted before the Special Judge, Anti-T errorism Court, Mirpurkhas, showing accused Zohaib Unar and Nouman alias Ragoo in custody while accused Javed Jatt as absconder , which was accepted by issuing N.B.Ws agains t absconder accused. After completing legal formalities, accused Javed Jatt was declared Proclaimed Offender under section 87, Cr.P.C. During pendency of the case, accused Naeem Baloch was killed in an encounter with Mirpurkhas Police.
4. The charge at Ex.9 was framed agains t accused Zohaib Unar and Nouman alias Ragoo, to which they did not plead guilty and claimed for trial vide their pleas at Exs.10 and 1 1. respectively .
5. In order to prove its' case, the prosecution examined P.W-1 complainant DSP Muhammad Taqi Laskani at Ex-12, PW-2 SIP Riaz Ali Laghari at Ex-13, PW-3 PC Ghulam Farid at Ex-14, PW-4 Khair Muhammad at Ex-15, PW-5 Muhammad Ashique at Ex-17 PW-6 MO Greece at Ex-18, PW-7 Tapedar Muhammad Shoaib Khan at Ex-19, PW-8 I.O. SIP Syed Muzaf far Ali Shah (First I.0.) at Ex-22, PW-9 I.O. Inspector Abdul Sattar Gurgage (Second I.0.) at Ex- 24, who produced various documents in their evidence. Thereafter , prosecution closed its' side.
6. Statement of accused was recorded under section 342, Cr.P.C. at Exs.26 and 27, wherein the accused denied the allegations of prosecution and profess ed their innocence. The accused neither examined themselves on oath in terms of section 340(2), Cr .P.C. nor led any evidence in their defence.
7. After full-dressed trial, learned trial Court, vide judgment dated 02.10.2018, convicted accused Zohaib Unar and sentenced him as stated above while co-accused Nouman alias Ragoo was acquitted of the charge by giving him benefit of doubt; hence, instant appeal has been preferred by appellant Zohaib.
8. Learned Counsel for appellant submits that deceased Muhammad Asif was killed at the hands of co-accused Naeem Baloch, who subsequently was killed in an encounter; therefore, was not brought before the Court of law.
As far as allegation against appellant Zohaib is concerned. Per oral statement of deceased he allegedly had fired upon deceased but said fire missed and did not hit the deceased; however , it was not repeated at all; that the appellant has not committed any offence, even the complainant claiming himself to be present at nearby place for patrolling had not seen any of the culprits while going away or causing injury to the deceased. Learned Counsel further submits that appellant was arres ted by the police on 06.09.2017; however , nothing incriminating was recovered from him including crime weapon. He further points out that deceased as per evidence was Police Constable but at the time of incident neither he was in official uniform as he was going for duty nor the particular purpose with regard to his duty has been mentioned as claimed by the prosecutio n witnesses. Nothing has been brought on record whether he was posted at particular police station or elsewhere. He further points out that due to odd hours of the night, nothing was available around the place of incident; hence, none from the public was attracted, which may warrant application of section 6 of the Anti-T errorism Act, 1997; therefore, according to him the case was of ordinary Court; therefore, police concerned had rightly submitted its' challan before the Court of ordinary jurisdiction; however , learned DDPP filed an application before the Court of Sessions, whereby he sought transfer of instant case from ordinary Court to Special Court (ATC Court), for which the Court of Sessions was not competent to send the case directly to the Special Court. In support of his contention, learned Counsel has placed reliance upon the case of Muhammad Akbar Khan and 3 others v. SHO Police Station Ghrhi Khairo, District Jacobabad and others (2017 PCr.LJ 1280). He also submits that trial Court has held in the impugned judgment that deceased had given dying declarati on before the complainant; but, the complainant was not competent to record dying declaration of the deceased . Though, per prosecution case deceas ed after sustaining injuries was alive upto his shifting to the hospital and succumbed to his injuries in hospital where his dying declaration was not recorded by any. MLO. He next points out that PWs Khair Muhammad and Muhammad Ashique have had their residence at Sukkur and Nawabshah and such fact is specifically mentioned by them in their 161, Cr.P.C. statements, yet the police officer for the reasons best known to him had made them witnesses by showing their presence at Mirpurkhas; hence, prosecution has not come with clean hands and has miserably failed to prove its' charge against the appellant; therefore, he prays for allowing instant appeal as well acquittal of appellant from the charge.
9. On the other hand, learned Assistant Prosecutor General representing the State opposes the appeal by making submissions that appellant was booked under Crime No.307 of 2010 of Police Station Satellite Town, Mirpurkhas for offences under sections 392 and 34, P.P.C. as well Crime No.115 of 2008 of Police Station Satellite Town, Mirpurkhas, under sections 392 and 34, P.P.C.; therefore, he has past criminal record and being criminal of the area had caused murder of the deceased and that deceased had rightly named him before the complainant at the time when he was going to be shifted to the hospital. She further submits that the appellant remained fugitive from the law for noticeable period; therefore, crime weapon could not have been recovered from him and in such situation she submits that it was due to abscondence; therefore, police was not able to recover the crime weapon.
In support of her contentions, she has relied upon the case of Bashir Ahmed Leghari v. The State (2020 SCMR 595). She; however , could not controvert the fact that appellant Zohaib had already been acquitted from the charges of aforementioned cases and he was arrested by the police on 06.09.2017. She also could not controvert the fact that last statement of deceased before the police officer cannot be termed as dying declaration because the police officer was not competent. She is also not in a position to pinpoint from the statement of accused under section 342, Cr.P.C. to the effect that trial Court had put specific question regarding his involvement in previous cases. However , she admits that Court of Sessions was not competent to transfer the case from its file directly to the Special Court.
10. We have heard learned Counsel for the appellant as well learned Assistant Prosecutor General appearing for the State and perused the material available on record.
11. No doubt the appellant is nominated in the FIR with of causing alleged fire shot injury to deceased Muhammad Asif; However , the fire shot by him missed and did not prove to be fatal to the precious life of the deceased. The main co-accused Naeem Baloch, who allegedly caused murder of the decease d, was killed in an encounter; therefore, had not been brought before the Court of law and the appellant, again st whom allegation of vicarious liability is available, cannot be held responsible for causing murder of the deceased. Even police did not establish said charge against him. As far as application of sections 6/7 of the Anti-T errorism Act, 1997 is concerned, no terror or harassment to anyone was caused at the time of incident. The alleged incident was committed in odd hours of the night, nobody from the public was attracted through which it could be deduced that the offence / action allegedly committed by the accused or it was designed or it has created sense of insecurity or fear in the mind of public at large, which is prime ingredient for applying section (6) of the Act. In this regard. reference can be made from the case of Ch. Basir Ahmad v. Naveed Iqbal and 7 others (PLD 2001 SC 521) in which the honourable Supreme Court of Pakistan has held that; "A person would commit a terrorist act if in order to, or, if the effect of his actions will be to strike terror or create a sense of fear and insecurity in the people, or any section of the people .-------- In the instant case as the facts of the case reveal, the alleged sprinkling of the spirit on the person of the victim was within the boundary walls of the appellant's house. It was not in public and, therefore, the element of striking terror or creating sense of fear and insecurity in the people, or any section of the people is not made discernible in the FIR and for that matter on flu, record of the case as a whole. Similarly the element of striking terror or creation of sense of fear and insecurity in the people or any section of the people by doing an act or thing by using bombs, dynamite or other explosive or inflammable substances etc. is a sine qua non for the attraction of the provisions of section 6 of and the Schedule to the Act (underlining is provided by us for emphasis).--- in the instant case no doubt the offence committed was certainly most heinous is nature but it does not mean that it does quality to be terrorist act within the contemplation of section 6 or the schedule to the act".
12. The learned Division Bench of this Court in the case of Umer Farooque and 2 others v. Judge, Anti- Terrorism Court, Mirpurkhas and another (sic) PCr .LJ 1052 Sindh) has also held that; "We are of the view that for purpose of attracting the provisions of any section or schedule to Anti-T errorism Act, 1997, the element of striking terror or creating of the sense of fear and insecurity in the public at large by doing any act or thing is sine qua non. Reference in this regard can be made to the judgments of the Hon'ble Supreme Court of Pakistan in the case of Ch.Bashir Ahmed Naveed Iqbal and 7 others "reported in PLD 2001 Supreme Court 21 and in the case of Mohabbat Ali and another v . The State reported in 2007 SCMR 142 .
We may further observe that the provisions of Anti-T errorism Act, 1997 are required to be construed strictly and the benefit, if any arisen in that regard, has to be extended to the accused, whereas, in the absence of the element of terrorism, sense of insecurity in public at large and gravity and seriousness of the offence as detailed in various subsections of section 6, the provisions of sections 6, 7 and 8 of Anti-T errorism Act, 1997 could not be attracted in each and every case."
13. In chain of the above principle of law, the guidance can also be taken from the latest case of Ghulam Hussain and others v. The State and others (PLD 2020 Supreme Court 61), wherein the august Supreme Court of Pakistan has exclusively defined with regard to terrorism in the society . Therefore, having taken into consideration the above guiding principles of law, no action of terrorism or insecurity in the public has been taken at the time of incident in the present case; hence, the case tried by the Anti-T errorism Court was beyond its scope.
14. Moreover , the deceased at the time of alleged incident had not disclosed that at what police station he was posted and was going to perform his duty as Police Constable, for which prosecution also failed to produce any reliable document showing that the deceased was even a police official bearing a valid badge, even the deceased was not in police uniform. It is very strange that the complainant, who is also a police officer, had not mentioned any single word in his FIR or deposed before the trial Court that deceased was posted at a specific police station; therefore, was going to perform his lawful duties and was done away with by the culprit(s); hence, in view of above legal flaw in the prosecution case; hence, trial Court had wrongly taken cognizance and subsequently tried it. The other aspect of the case is that of transfer of the case. The ordinary Court was not competent to transfer the case from its file to the Special Court directly as required by subsection (3) of section 526, Cr.P.C. Reliance can be placed upon the case of Muhammad Akbar Khan and 3 others v. SHO Police Station Ghrhi Khairo, District Jacobabad and others (supra).
15. It is also strange to note that per FIR and evidence of the complainant, two bullets were fired by co-accused Naeem Baloch and the appellant; howev er, not a single word was deposed by any of the PWs that the unknown culprits had also made fire upon the dece ased. The Investigating Officer has secured four empties from the scene of incident which show that all the four accused had allegedly fired and if the above factual aspect of the case as well as evidence adduced before the trial Court may be kept in juxtaposition, it will suggest that either the offence was not committed by the accused nominated in the FIR or was not committed in a manner as allegedly reported by the prosecution,. Even the empties allegedly secured by the police from the scene of offence were neither produced before the trial Court nor were sent to the Forensic Science Laboratory/ Ballistic Expert so as to establish that factum of fire shot made by one weapon or from different weapon. All these features germinated from the prosecution case themselves show that the prosecution has miserably failed to prove its charge against the appellant beyond reasonable doubt.
16. We have also gone through the evidence of Dr. Greece as Ex-18 available at Page-87 of paper book, which reveals that deceased had sustained two injuries on his person and both injuries are not attributed to appellant. Out of two injuries, one has been attributed to co-accused Naeem Baloch while the other one is yet to be probed as to whether it was caused by co-accused Naeem Baloch or by any of the unknown culprits or by the present appellant.
It will be presumed that if the injury was caused by either culprit then one of culprits namely Nouman alias Ragoo was booked in the charge; however , has been acquitted by the trial Court due to deficient evidence. The MLO in his cross-examination has categorically replie d that he did not know the name of police official who had handed over dead body to him and there is overwriting in police letter as well as postmortem notes. It is evident from postmortem notes that in the column of police station, the name of Police Station Shadi Pali was mentioned which later was corrected to be Satellite Town, Mirpurkhas. All these features show that the offence was not committed in a manner as has been reported. Such being major discrepancy creates lot of doubts into the veracity of prosecution evidence which always goes in favour of the accused.
17. As far the motive behind the murder of deceased is concerned, it has not been established by the prosecution whether the deceased was victim of any enmity or otherwise, it has also not been G asserted in the FIR. The motive is an essential piece of evidence, which always furnishes support to the prosecution case as to the involvement of the accused in the offence allegedly committed by him. To this effect, we have placed reliance upon the case of Safdar Abbas and others v. The State and others (2020 SCMR 219) wherein the august Supreme Court of Pakistan has observed that; "Motive cited in the crime report is non-specific; investigative conclusions were inconsistent with the case set up by the complainant. Recoveries are inconsequential Prosecution evidence, substantially found flawed, it would be unsafe to maintain the conviction without potential risk of error. Criminal Petition No.955-L/2016 is converted into appeal and allowed, impugned judgment is set aside, the petitioners/appellants shall be released forthwith, if not required to be detained in any other case."
18. Admittedly , in the case in hand, there is number of infirmities, lacunas and circumstances, which create serious doubt in the prosecution story . It is settled principle of law, that for extending benefit of doubt, it is not necessary that there should be many circumstances creating doubt but if a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of any accused, then the accused shall be entitled to such benefit as a matter of right but not as a matter of grace or concession. In this respect, reliance is placed upon the case of "Mohammad Mansha v. The State" (2018 SCMR 772), wherein the honourable Supreme Court of Pakistan has observed that; "4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tarique Parvez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Mohammad Akram v . The State 2009 SCMR 230 ) and Mohammad Zaman v . The State (2014 SCMR 749 )."
19. Similar view has also been taken by the honourable Supreme Court in the case of "Faheem Ahmed v. The State " (2008 SCMR 1572 ) by observing that: "It needs no reiteration that for the purpos e 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."
20. The upshot of the above discussion is that the prosecution has failed to prove its' charge against the appellant; as such, the impugned judgment does suffer from many infirmities as well as illegalities, which requires interference by this Court. Consequently , by a short order dated 14.10.2020 instant appeal was allowed; the impugned judgment dated 02.10.2018 was set aside and the appellant was acquitted of the charge. The appellant was in custody; therefore, was directed to be released forthwith if his custody was no more required by the jail authorities in any other custody case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.