ABDUL MODEEN LAKHO, J.---Through the captioned Special Criminal A.T. Jail Appeal, the appellants above named have assailed the impugned Judgment dated 29.07.2020 passed by the learned Anti-Terrorism Court No.VIII at Karachi in New Special Case No. 02 of 2020 (Special Old Case No.119/2020), New Special Case No. 02-A/2020 (Special Old Case No.119-A/2020) and New Special Case No. 02-B/2020 (Special Old Case No. 146/2020), whereby, trial Court convicted the Appellants namely Owais and Shahid alias Nasir Abba both sons of Bakhtiar, under section 7(1)(h) of the Anti-Terrorism Act, 1997 read with sections 353, 324, 34, P.P.C. read with section 7, A.T.A., 1997 and sentenced them to suffer R.I for 05 years each and to pay fine of Rs.20,000/- each and in default they were ordered to suffer 02 months more. They were also convicted under section 23(1)
(a) of Sindh Arms Act, 2013 and sentenced to suffer R.I for 05 years and to pay fine of Rs.20,000/- in default, they were directed to suffer 02 months more. All the sentences were ordered to run concurrently. Appellants were extended benefit of section 382-B, Cr.P.C.
2. The brief facts of the prosecution case are that on 04.05.2020 the Complainant ASI Muhammad Naeem of Police Station Jamshed Quarter along with other police officials was on patrolling in the area on official duty, when they reached at street Umer Auto leading to Teen Hati, Nishtar Road, Karachi at about 0540 hours, there appears a Motorcycle bearing No. KMJ-8147 on which three persons were riding. ASI signaled them to stop, but they did not stop and accelerated the motorcycle. Police chased them, upon seeing police party, two persons, who were sitting on the rear seat of the Motorcycle, started direct firing upon the police with intention to commit their Qatl- i-amd. Police also fired in self-defence due to which one accused sustained injury below his ankle, whereas his companions made their escape good by leaving their Motorcycle at the place of incident. Upon inquiry, injured accused disclosed his name as Owais son of Bakhtiar and disclosed the names of his companions as Shahid alias Nasir Abba son of Bakhtiar and Waqar alias Poli son of Ghulam Muhammad. Personal search of accused Owais was conducted by ASI in presence of two mashirs namely PC Syed Jawad Ali and PC Driver Azam Gujjar and recovered one 9 MM pistol bearing No.1399 loaded one round in chamber and empty magazine from the possession of injured accused, who failed to produce license of the weapon carried by him. ASI also secured 04 empties, two each of 9 MM and .30 bore pistols from the place of incident. Pistol and empties were sealed on spot. Injured accused was shifted to hospital for treatment and thereafter, FIR was lodged vide Crime No.342/2020 under sections 353/324/34, P.P.C. read with section 7, Anti-Terrorism Act, 1997 and FIR No.343/2020 under section 23(1)(a) of Sindh Arms Act, 2013 at Police Station Jamshed Quarters against accused on behalf of State.
3. After usual investigation challan was submitted against the accused under the sections 353/324/34, P.P.C. read with section 7, Anti-Terrorism Act, 1997 and under section 23(1)(a) of Sindh Arms Act, 2013.
4. On 31.05.2020 co-accused Shahid alias Nasir Abba was also arrested by the police. First Information Report No.389/2020 under section 23(1)(a) of Sindh Arms Act, 2013 was also registered against him at Police Station Jamshed Quarters on behalf of state and he was produced before the Court.
5. Learned Trial Court amalgamated the aforesaid cases for joint trial in terms of section 21-M of Anti-Terrorism Act, 1997.
6. Trial Court framed Charge against accused at Ex.12 under the above referred sections. Accused pleaded not guilty and claimed their trial.
7. At the trial, prosecution examined PW-01 Muhammad Naeem, PW-02 Syed Jawed Ali Zaidi, PW-03 Muhammad Ashraf, PW-04 Bilal Nasir, PW-05 Syed Asad Ali, PW-06 Anwaar Hussain, PW-07 Dr. Abdul Jabbar, PW-08 Syed Anwaar Hussain Bukhari, who produced the relevant documents before the trial Court. Thereafter, prosecution side was closed vide statement at Ex.26.
8. Trial Court recorded statements of accused under section 342, Cr.P.C. at Ex.27 and Ex. 28, in which accused denied the prosecution allegations and claimed their false implication. Accused did not examine themselves on oath as provided under section 340(2), Cr.P.C. Accused djd not examine witness in their defence.
9. Trial Court, after hearing learned counsel for the parties and evaluation of the evidence vide judgment dated 29.07.2020 convicted and sentenced the appellants as stated above.
10. Appellants aggrieved and dissatisfied with the judgment have filed the aforesaid appeals. Being bound by a common thread, these appeals are being decided through this single judgment.
11. The evidence produced before the Trial Court finds an elaborate mention in the judgment dated 29.07.2020, passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.
12. Learned counsel for the appellants argued that the appellant are innocent and have been falsely implicated in the present case; that neither encounter had taken place, nor appellant Owais was arrested at spot; that nothing was recovered from their possession; that the alleged recoveries have been foisted upon them by the police in order to show efficiency; that no empty of SMG was secured from the place of incident; that no blood was secured by the I.O. from the place of incident; that no private person was associated to act as mashir; that no identification of appellant Shahid alias Nasir Abba was held. He finally submitted that the prosecution has failed to prove its case beyond a shadow of doubt and prayed for their acquittal.
13. Conversely, Mr. Mohammad Iqbal Awan, learned Deputy Prosecutor General while supporting the impugned judgment argued that at the time of incident, the accused deterred the police party from discharging their lawful duties, with intention to commit their murder and police also fired in their defence and during encounter, accused Owais had received bullet injury below his ankle, whereas, co-accused Shahid alias Nasir Abba was arrested later and the empties secured from the place of incident were matched with the pistol recovered from his possession. He prayed for dismissal of the appeals.
14. We have heard the learned counsel for the parties at a considerable length and have perused the evidence and documents available on record.
15. After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial. It is the settled principle of law that burden is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view of this basic touchstone of criminal administration of justice, we have examined the prosecution evidence.
16. The prosecution story appears to be unnatural and unbelievable for the reasons that according to prosecution case on 04.05.2020 an encounter took place near Teen Hatti Bridge at 5:40 a.m. between accused and police party said to be a case of cross-firing, with automatic weapons wherein one accused was caught hold in injured condition, whereas other two accused made their escape good. It is quite unbelievable, for the reason that alleged encounter continued for A considerable time, with automatic weapons, but not a single injury/scratch was caused to any police official, any passerby or to police mobile and it hit only to the appellant Owais while selecting his ankle and except bullet injury no bruise or abrasion has been found by the Doctor though the accused Owais after receiving injury fell down on the ground from the motorcycle, which was, according to the prosecution case, in a high speed. Even no one from the police tried to chase and catch hold of other two accused, who ran away from the place of incident. Admittedly, the place of incident was a thickly populated area, but no private person was associated as witness to arrest and recovery proceedings. We have further noted that at the time of site inspection, surprisingly, no blood was found at the place of incident. It is also surprising to note here that though according to prosecution story PC Jawad fired four shots at the accused persons but not a single empty of such shots has been secured from the place of incident. Even the motorcycle allegedly used in the commission of crime by the appellants has also not been made as a case property. As regards the case of Appellant Shahid alias Nasir is concerned, he was arrested by the police on 31.05.2020 from Darband Bazar at 1700 hours and from his possession police recovered one .30 bore pistol without number along with three rounds. The arrest of the appellant Shahid was shown from the Bazar but no private person was associated to act as mashir of arrest and recovery. It is illogical that accused was armed with pistol, but he did not resist his arrest and easily surrendered himself before the police.
17. The safe custody and safe transmission of the pistols and empties have also not been proved before trial Court. It has not been explained by the prosecution that the weapons and empties were retained by whom during intervening period. 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. Investigating Officer nowhere has deposed about safe custody of the pistol at Police Station and its 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 Kamaja v. The State (2018 SCMR 577).
18. We further observe that in the case of police encounter, it is desirable and even imperative that it should have been investigated by some other agency. Police, in such 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."
19. Evidence of police officials as discussed above in the above stated peculiar circumstances, required independent corroboration, which is lacking in this case. The defence pleas raised by the accused that they were picked up by the police from their house/work place 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. Based on the evidence led, we are of the view that the prosecution story regarding a police encounter does not appeal to logic and the benefit of the doubt must go to the accused.
20. In view of the above-stated reasons, we have no hesitation to hold that there are several circumstances/infirmities in the prosecution case as highlighted above, which have created reasonable doubt about guilt of accused. In the case of Muhammad Mansha v. The State (2018 SCMR 772) the honourable Supreme Court has observed as follows:- "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 Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)."
21. For the foregoing reasons, we are of the considered view that the prosecution has miserably failed to prove its case beyond any shadow of reasonable doubt against the appellants, 'resultantly, the Special Crimnal A.T. J. A. No.146 of 2020 is allowed, conviction and sentence recorded by the learned Judge Anti-Terrorism Court-VIII, Karachi in New Special Case No. 02 of 2020 (Special Old Case No.119/2020), New Special Case No. 02-A/2020 (Special Old Case No.119- A/2020) and New Special Case No.02-B/2020 (Special Old Case No. 146/2020), arising out of FIRs Nos.' 342, 343 and 389 of 2020, registered at Police Station Jamshed Quarters, Karachi, for offences under sections 353, 324, 34, P.P.C., read with section 7 of the Anti-Terrorism Act, 1997 and section 23(1)(a) of the Sindh Arms Act, 2013. Appellants Owais son of Bakhtiar and Shahid alias Nasir Abba son of Bakhtiar are acquitted of the charges, they shall be released forthwith, if not required in some other case(s).
22. These are the reasons for the short Order announced on 23.02.2021.