NAIMATULLAH PHULPOTO, J. Appellants Bashir Ahmed, Aijaz, Muhammad Kamil, Aashiq, Mashooq and Shakeel, were tried by learned Judge, Anti-Terrorism Court Khairpur Mirs, in Special Cases Nos.05, 06, 08 and 09 of 2016, arising out of Crime Nos. 100, 101, 103 and 104 of 2015, registered at P.S. Pir-Jo-Goth, District Khairpur. On the conclusion of trial, appellants were mainly convicted under Section 324, P.P.C./7 ATA, 1997 and sentenced to ten (10) years R.I. as mentioned in last para of impugned judgment dated 27.04.2022.
2. Brief facts leading to filing of the appeals as mentioned in the impugned judgment dated 27.04.2022 recorded by the learned trial Court are as under:- "Concisely, the brief facts of the prosecution case are that on 23.12.2015 at 1045 hours, complainant ASI-Barkat Ali Bhatti lodged the FIR at PS Pir-jo-goth against the present accused and others, wherein it has been alleged by the complainant that he along with his subordinate staff, while on patrolling duty received spy information regarding the presence of dacoit Zubair Zuboo Ansari with, his gang at Link toad Ghulam Ali for the purpose of committing the offence of they abduction and on receipt of such spy information they proceeded towards toe pointed out place and reached there at about 0930 hours, where they saw (10) dacoits duly armed with deadly weapons, out of them, complainant party identified nine accused, whereas one accused was unidentified.
As soon as, the police party directed the accused to surrender their weapons, whereupon all the accused made straight firing upon police party with intention to kill them. In retaliation, police party also started firing towards the accused in their self-defence. The encounter was continued for about 10 minutes, during which police party arrested accused Bashir Ahmed during along with Revolver, two other accused namely Rashid and Aijaz were also arrested in injured condition.
Police also recovered crime weapons as well as explosive substance material from their possession; whereas the other accused made their escape good. After completing all the necessary formalities at the place of incident, complainant came at PS, where he lodged the instant FIR in the main case against the accused bearing Crime No. 100/2015, under sections 324, 353, 399, 402, 148, 149, P.P.C. and 4/5 Explosive Substances Act, 23 (i) A of Sindh Arms Act read with section 7 ATA, 1997 against the present accused as narrated as above. The separate FIRs bearing Crime Nos: 101/2015 and 102/2015, under section 23(i)A of Sindh Arms Act also registered against accused Bashir Ahmed Ujjan, Rashid Ujjan and crime No.103/2015, under sections 4/5 Explosive Substances Act, 1908 was registered against accused Aijaz Bozder, in series on behalf of the State.
Thereafter, police also arrested the absconding accused Aashiq Jagirani and recovered crime weapon from his possession in presence of mashirs, hence another of shoot/connected FIR bearing Crime No.104/2015, under section 23(i)A of Sindh Arms Act also registered against the accused Aashiq Jagirani.
3. Investigation Officer completed usual investigation and submitted challan in the main case against the appellants for offences under Sections 324, 353, 399, 402, 148, 149, P.P.C. and 4/5 Explosive Substances Act, 1908 read with Section 7 ATA, 1997, in Crime No.100/2015. Investigation Officer submitted final reports against the accused separately in Crime Nos.101 and 104 of 2015 under Section 23(1)A of Sindh Arms Act, 2013 and in Crime No.103 of 2015 under Sections 4/5 Explosive Substances Act, 1908, being connected cases with the main case. Trial Court amalgamated the connected/offshoot cases with main case for joint trial of all the cases as provided under Section 21(m) of ATA, 1997 vide order dated 15.01.2016. Trial Court framed charge against the appellants under above referred sections, to which they pleaded not guilty and claimed to be tried. At the trial, prosecution examined four (04) witnesses. Thereafter, prosecution side was closed.
4. Trial Court recorded statements of the appellants/accused under Section 342, Cr.P.C. in which they claimed false implication in this case and denied the prosecution allegations. Appellants did not lead evidence in defence and declined to give evidence on oath to disproof the allegations of prosecution. Trial Court after hearing learned Counsel for the parties and examination of the evidence, convicted and sentenced the appellants Vide judgment dated 27.04.2022 as stated above, hence appellants have preferred separate appeals bearing Nos.65, 66, 69, 70 and 71 of 2022.
As all the appeals arise out of the same episode and from the connected/offshoot cases, we propose to decide all the appeals together as the same require same appreciation of evidence.
5. Evidence recorded by the trial Court finds an elaborate mention in the impugned judgment of the trial Court, hence need not to be repeated.
6. Learned advocate for the appellants mainly contended that it was day time incident and prosecution case was based on spy information despite spy information, police party headed by ASI Barkat Ali Bhatti avoided to associate with him independent persons of the locality to witness the incident. It is further submitted that prosecution story was unnatural and unbelievable; that as per prosecution story, there was police encounter with sophisticated weapons but astonishingly no police official received injury. It is further submitted that according to the case of prosecution, there was recovery of Explosive Substance and hand Grande from appellants but safe custody of the Explosive Substance from the place of recovery to the expert have not been established before the trial Court. Learned Counsel for the appellant argued that Head Muhrar of police station has also not been examined to prove die safe custody of alleged recovery at the police station besides its safe transmission to the expert. Lastly, it is also argued that report of the expert with regard to Hand Grande has also not produced before the trial Court. Reliance has been placed upon the case of Kamal Din alias Kamala v. The State reported as 2018 SCMR 577.
7. Mr. Abdul Aziz Kanhar, advocate representing the appellant Muhammad Kamil in Special Anti- Terrorism Appeal No.D-66 of 2022, at the outset, argued that appellant Muhammad Kamil had lodged FIR against one PC Abdul Ghaffar at P.S. Abdul Rehman Unar for offence under Section 365- B, P.P.C. with regard to abduction of his daughter and the police in order to take revenge had lodged this false case against appellant Muhammad Kamil and his relatives. It is argued that present incident occurred on 23.12.2015 at 09:30 am but investigation officer deposed that at 09:30 a.m. incident was reported to him by SSP concerned but in this regard, no record from the office of SSP office has been produced to satisfy the Court that investigation officer was directed by SSP to investigate the case, even call data regarding communication of Investigation Officer and SSP have not been produced before the trial Court. Material contradiction in the evidence of prosecution witnesses have also been brought on record. Lastly, it is contended by learned Counsel for the application that prosecution case is full of doubts and prayed for acquittal of the appellants.
8. Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General opposed the submissions made by learned advocate for the appellant and submitted that two appellants namely Bashir and Aijaz were arrested at the spot and two were injured and the police officials had no enmity whatsoever to falsely implicate the appellants in this case. It is also argued that the evidence of police official is as good as to any other person. Lastly, he prayed for dismissal of captioned appeals.
9. We have carefully heard learned Counsel for the parties and re-examined the prosecution evidence minutely. We have come to the conclusion that prosecution had utterly failed to prove its case against the appellants for the reasons that prosecution case was based upon spy information and the police party had sufficient time to call independent and respectable persons of locality to witness the incident but investigation officer avoided without assigning the sound reasons. Moreover, according to case of prosecution, incident had occurred at the link road, it was day time and there were possibility of presence of private persons but no private witness has been examined by prosecution. As regards to the police encounter from sophisticated weapons from both the sides, we are unable to understand that even no scratch had been caused to the police party. On the other hand, two accused persons sustained the injuries. If is argued by learned Counsel for the appellants that it was a case of half-fry and highhandedness on the part of police officials. It has come on record that the incident occurred on 23.12.2015 at 09:30 a.m. at the link road but the investigation officer PW1, in his evidence, deposed that at 9:30 a.m. he received directions from SSP regarding encounter. In order to satisfy the Court, it was duty of the prosecution to produce the record of SSP office regarding communication in between SSP and Investigation Officer but official record/entry has also not been produced before the trial Court. So far safe custody of the Explosive Substance and hand Grande are concerned from the place of recovery to the experts. No evidence has been produced before the trial Court to satisfy the Court regarding safe custody excluding possibility of manipulation. In the case of Kamal Din alias Kamala v. The State (2018 SCMR 577), the Hon'ble Supreme has held as under:-- "In this context we have pointedly observed that according to the FIR itself the firing resorted to at the spot had been made from behind some trees available near the place of occurrence and, thus, at best the injured eye-witnesses under assault could only have a fleeting glance at the assailants while the witnesses were taking shelter and were running for their lives. Muhammad Athar Farooq, DSP/SDPO (PW/8), the Investigating Officer, had specifically been asked before the trial Court as to whether the appellant had been shown to the eye-witnesses while he was in the police lock up before holding of the test identification parade or not."
One appellant Muhammad Kamil raised defence plea that police officials were inimical because he had lodged FIR against PC Abdul Ghaffar at P.S. Abdul Rehman Unar bearing Crime No.18/2015 under Section 365-B, P.P.C. regarding abduction of his daughter. Defence theory appears to be plausible. Moreover, trial Court failed to discuss the defence evidence based upon the official record of the Court. In the case of Momin Ali and others v. The State 2020 YLR Karachi 1160, it is held that in case Bomb Disposal Unit Expert has not been examined before the trial Court it would be fatal to the case of prosecution. In the present case bomb disposal unit expert has not been examined by prosecution. Moreover, it is the matter of record that incident occurred on 23.12.2015 at 09:30 a.m. at link road. Possibility of the private persons passing through the link road cannot be excluded. There is nothing on record that investigation officer made no efforts to call independent persons passing through the link road at the relevant time. Prosecution was bound to establish its case against the appellants beyond any shadow of reasonable doubt by producing trustworthy evidence but in this case prosecution utterly failed. In the case of Saifullah v. The State (1992 MLD Karachi 984), it is held as under:-- "8. The evidence of police officials cannot be discharged simply because they belong to the police. In Qasim and others v. The State reported in PLD 1967 Kar. 233, it was held:-- "A police officer is as good a witness as any other person. The standing of judging his evidence is the same on which the evidence of any other witness is judged."
However, in a case of this nature where the fate of an accused person hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at that time. Judicial approach has to be cautions in dealing with such evidence."
10. Trial Court failed to notice material contradictions and discrepancies in the evidence of Prosecution witnesses on material particulars of the case. It seems that despite absence of convincing positive evidence, appellants were convicted, which in no circumstances could be sustained. It is well settled principle of dispensation of justice in the criminal cases that the guilt against the accused must rest surely and firmly on the evidence produced in the case and plan inference of the guilt may irresistibly be drawn from the evidence on the record. The standard of proof should have been far higher as compared to any other criminal case. It was thus, desirable and even imperative that such case should have been investigated by some other agency, as police in such case, could not have been investigators of their own case. Such investigation lacks independent character and conviction cannot be based on the basis of such investigation, when it is riddled with many lacunas as discussed above.
11. The sequel of above discussion is that the prosecution has miserably failed to prove its case against the appellant/accused beyond any shadow of doubt and it is settled proposition of law that for giving benefit of doubt to an accused it is not necessary that there should be many circumstances, if there is a single circumstance which creates reasonable doubt about the guilt of the accused, then the accused will be entitled to its benefit not as a matter of grace and concession but as matter of right. In this respect, reliance can be placed upon case of Muhammad Akram v. The State (2009 SCMR 230) wherein it has been held by honourable Supreme Court that; "For giving benefit of doubt it is not necessary that there should be many circumstances creating doubts--Single--circumstance creating reasonable doubt in a prudent mind about the guilt of the accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
12. For the above stated reasons, we have come to the conclusion that prosecution had failed to bring the guilt home of the appellants. Resultantly, captioned appeals are allowed. Conviction and sentences passed against appellants by trial Court vide judgment dated 27.04.2022 are set aside.
Appellants Bashir Ahmed son of Ghulam Shabbir Ujjan, Aijaz son of Saeed Khan, Muhammad Kamil son of Saindad Burdi, Aashique son of Abdul Khaliq Jagirani, Mashooq Ali son of Muhammad Uris Shaikh and Shakeel son of Ahmed Bapar are acquitted, they shall be released forthwith if they are not required in any other criminal custody case.
12. Above are the reasons of our short order announced in Court on 07.12.2022.