ABDUL MAALIK GADDI, J.---Through this single judgment, we intend to dispose of the captioned appeals, as these appeals relate to same incident, as well as arising out of common judgment dated 20.09.2019, passed by the learned Presiding Officer of trial Court.
2. By means of these appeals, the appellant has assailed the legality and propriety of the judgment dated 20.09.2019, passed by the learned Presiding Officer of the Anti-Terrorism Court No.XIX, Karachi, in Special Cases No.14 and 14-A of 2019, emanating from Crimes No.327 and 328 of 2018, registered at police station Kalri, Karachi, under Section 353/324, Pakistan Penal Code, read with Section 7 of Anti-Terrorism Act, 1997 and Section 23(1)(a) of Sindh Arms Act, 2013, whereby the learned Presiding Officer of trial Court after full' dressed trial, convicted and sentenced the appellant as stated in point No.2 of the impugned judgment. For the sake of convenience, it would be appropriate to reproduce the said point of the impugned judgment, which reads as under:- "POINT NO.2.
In view of the above facts and circumstances, I have come to the conclusion that the prosecution has been able to prove its cases against the accused Shahzaib beyond any reasonable doubt, and therefore, I have decided to convict accused accordingly and he is convicted as under; 1 Section 7(h) of ATA, 1997 read with sections 353/324, P.P.C.to suffer R.I for five (05) years and fine of Rs.50,000/ and in case of default of payment of fine, the accused will have to under R.I for one year more.
2. Section 23(i)(a) of Sindh Arms Act, 2013to suffer R.I for five (05) years and fine of Rs.50,000/ - and in case of default of payment of fine, the accused will have to under R.I for six months more.
The benefit of section 382-B, Cr.P.C., is extended in favour of the accused...."
3. The brief facts of the prosecution case are that on 09.11.2018, police party of Police Station Kalri headed by ASI Rashid Rehman, along with subordinate staff on police mobile No.SPE-193, were busy in the patrolling and on the receiving of spy information reached at about 1925 hours at Mirza Adam Khan road near street No.H-9 near Rahmania Mosque, Aghra Taj Colony, Kalri, where they noticed one person was standing in suspicious condition tried to apprehend by make an encircle but the culprit took out the pistol and started firing upon police party to cause their murder. It is also alleged in the FIR that in retaliation, police also fired upon culprit and during cross firing accused received fire arm injury and was apprehended. On inquiry, accused disclosed his name as Shahzaib son of Muhammad Anwar Baloch and from his personal search, police recovered one 30 bore pistol without number loaded with three live rounds. As accused could not produce the license or any permit for keeping such weapon, therefore, he was arrested on spot under memo of arrest and recovery and all completing all codal formalities, accused was shifted to hospital for treatment.
4. 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 17.12.2018 at Ex.3 to which he pleaded not guilty and claimed his trial vide his plea recorded at Ex.3/A.
5. At trial in order to prove the accusation against the appellants, prosecution had examined the following witnesses:- PW-1 complainant SIP Rashid-ur-Rehman at Ex.5, who produced departure entry No.26, memo of arrest and recovery, two FIRs being Crimes No.327/2018, under Sections 353/324, P.P.C. and 328/2018, under Section 23(1)(a) of Sindh Arms Act, of Police Station Kalri, two daily diary entries Nos.42 and 43 regarding registration of both FIRs and memo and sketch of inspection of place of incident at Ex.5/A to Ex.5/H respectively;
(ii) PW-2 HC Abdul Rasheed at Ex.6;
(iii) PW PC Mumtaz Ali was given up by the prosecution vide statement at Ex.7;
(iv) Learned APG for State filed application under Section 540, Cr.P.C. to call witness AST Ghulam Hussain at Ex.8;
(v) PW-3 SIP Ghulam Hussain at Ex.9, who produced departure entry No.38 to shifted to accused for his first aid at hospital, letter to MLO for first aid and arrival entry at Ex.9/ A to Ex.9/C respectively.
(vi) PW-4 Doctor Muhammad Aijaz-ul-Haq at Ex.10, who produced Medico Legal Certificate at Ex.10/A;
(vii) PW-5 IO/Inspector Nisar Ahmed at Ex.11, who produced departure entry No.44 regarding visiting place of incident, arrival entry No.46 at police station, letter addressed to Incharge FSL of weapons and empties, letter addressed to Incharge CRO/CIA, FSL report regarding weapons and empties, CRO of accused at Ex.11/A to Ex.11/F respectively; 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.
6. Statement of accused namely Shahzaib was recorded under Section 342, Cr.P.C. at. Ex.14, wherein he denied prosecution allegations leveled by the prosecution and has stated that he is innocent and has been falsely implicated in the present cases. He further stated that he was taken away by the Rangers, tortured and fired on his leg, thereafter, handed over his custody to police station Kalri, who implicated him in this false cases. Nothing was recovered from his possession and the alleged recovery of 30 bore pistol was foisted against him. However, he did not examined himself on oath, but want to examine his father Muhammad Ansar in his defence, thereafter, learned Counsel for appellant filed application for given up his father as he was expired.
7. Mr. Raja Masood Ahmed Qazi, 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 and at the time of alleged incident peoples were available there; 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, according to him, on the basis of contradictory evidence, the conviction and sentence could not be maintained, therefore, he was of the view that these appeals may be allowed by acquitting the appellant.
8. In contra, Mr. Hussain Bux Baloch, 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:
9. Arguments advanced from both sides have been heard. We have also minutely gone through the record available on file with the able assistance of learned Counsel for the parties. It is an established principle of law that each criminal case has its own peculiar facts and circumstances and the same seldom coincide with each other on salient features. The allegations against the appellant is that at the time of alleged incident, when police party of Police Station Kalri was busy on patrolling duty in the area and during patrolling, they received spy information about the availability of present appellant at Mirza Adam Khan road near street No.H-9 near Rahmania Mosque, Aghra Taj Colony, Kalri. On such information, they reached there and tried to apprehend him, but appellant upon seeing police party, started firing upon them and in retaliation, police party also fired upon him and this encounter was took place for some time and due to this encounter appellant was received one bullet injury in his right leg thigh and thereafter, police party succeeded in apprehending the appellant and recovered one 30 bore pistol without number silver colored having loaded magazine containing two live rounds and on round in chamber under memo of arrest and recovery in presence of mashirs namely, HC Abdur Rasheed and PC Mumtaz Ali, but it is surprising to note that no police person during this encounter had received any fire arm injury despite the fact that encounter was took place with sophisticated weapons for considerable time, even no bullet hit to the police mobile. This fact creates doubt in the prosecution case.
10. On evaluation of record, it reveals that it was the case of spy information, despite this fact, complainant ASI Rashid-ur-Rehman, did not bother to associate with him any independent person of the locality from the place of information or from the place of incident, although, it has been brought on record that place of incident i.e. Mirza Adam Khan road near street No.H-9 near Rehmania Mosque Aghra Taj Colony, Karachi, was a thickly populated area, which is surrounded by shops, houses, mosque and many peoples were available there. No doubt the evidence of police officials is as good as the other citizens, but when the whole case of the prosecution hinges upon the evidence of police officials, therefore, their evidence is to be examined minutely. No plausible explanation was offered by the prosecution why police did not associate any independent person from the place of information and incident to witness the arrest and recovery proceedings. In our view, provision of Section 103, Cr.P.C. is mandatory in nature and cannot be ignored without any proper justification. The prime object of the above provision is to ensure the transparency and fairness on the part of police during the course of recovery, curb the false implication and minimize the scope of foisting of fake recovery upon the accused.
11. We have also gone through the evidence so brought by the prosecution and found number of contradictions in between them on material particulars of the case. For instance, as per memo of arrest and recovery at Ex.5/B, it reveals that it was prepared on 09.11.2018 at about 2010 hours, while contradicting this fact, PW-4 MW Dr. Aijaz-ul-Haq in his examination-in-chief at Ex.10 deposed that on the relevant day, he received the injured appellant at about 08:00 p.m. as brought by the complainant ASI Abdul Rashid of police station Kalri for his examination, treatment and certificate.
Then question arises that how the appellant was brought before MLO/Dr. prior to incident or arrest of appellant. This fact also gives serious jolt to the prosecution case. Apart from that, as per memo of arrest and recovery at Ex.5/B and FIR at Ex.5/D, one 30 bore pistol without number loaded with three live rounds was allegedly recovered from the appellant at the time of his arrest, but FSL report available on record at Ex.11/E showing that the said pistol was rubbed number. This fact also shows that perhaps the incident had not taken place in a fashion as stated in FIR or otherwise and therefore, false implication of the appellant in this case with due deliberation and consultation could not be ruled out.
12. As observed above that it was an alleged encounter in between police and the appellant and the whole prosecution case revolves; around the evidence of police official. No doubt, evidence of police official is as good as another citizen, however, their evidence must be scrutinized with a greater degree of circumspection for the reason that in a society with the level of moral value that we unfortunately have, a subordinate officer is seldom expected to tell the truth in deviation of the express or implied instructions of his superior, therefore, under the circumstances, it was proper and even imperative that it should have been investigated by some other agency to maintain the transparency and to curb the false implication. We have also perused the evidence of prosecution witnesses, but did not find to be trustworthy and confidence inspiring which too contradictory with each other on material particulars of the case, therefore, in the given circumstances, their evidence cannot be safely relied upon for maintaining the conviction. In this respect, we have also gone through the case of Zeeshan alias Shani v. The State reported in 2012 SCMR 428; in this authority, it has been held as under: "11. 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 after thoughts 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." 11 As observed above that these cases arc riddled with many lacunas and loopholes as listed above, but the learned trial Judge has utterly failed to consider and appreciate these aspects of the case in its true perspective, therefore, in the given circumstances, benefit of doubt must go in favour of the appellant, therefore, the impugned common judgment cannot be maintained. In this regard, we are supported with the case of Tariq Pervez v. The State reported as 1995 SCMR 1345, wherein the Hon'ble Supreme Court has held as under:- "The concept of benefit of doubt to an accused persons is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
14. Keeping in view of the above, we are of the firm view that the Presiding Officer of the learned trial Court acted erroneously in the matter with misconception, misinterpretation, misreading and non- reading of evidence on record and convicted the appellants purely on non-appreciation and non- application of the required norms of the law and that of justice. Consequently, we allow these appeals, set-aside the impugned common judgment and acquit the appellant from the above charges. He is in custody, therefore, jail authorities are directed to release him forthwith from the above cases, if he is not required in any other criminal case. Since these appeals are allowed, therefore, the listed applications are also disposed of having become infructuous.
15. These appeals were allowed by us on 28.07.2020 after hearing the parties through our short order and these are the detailed reasons thereof.