ZULFIQAR ALI SANGI J. Being aggrieved and dissatisfied with the judgment dated 29.02.2020 passed by learned Judge, Anti-Terrorism Court No.X, Karachi in Special Cases Nos.142/2019, 142- A/2019, 142-B/2019, 143/2019, 144/2019 and 144-A/2019 arising out of crimes bearing FIR No.48/2019 under section 4/5 Explosive Substances Act read with 7 ATA, 1997, FIR No.48/2019 under section 23(i)A Sindh Arms Act, 2013, FIR No.49/2019 under section 23(i)(A) Sindh Arms Act, 2013, FIR No.50/2019 under section 4/5 Explosive Substances Act read with 7 ATA, 1997, FIR No.51/2019 under section 4/5 Explosive Substances Act read with section 7 ATA, 1997 and FIR No.52/2019 under section 23(i)(A) Sindh Arms Act, 2013, all FIRs of PS Korangi, Karachi; whereby the appellants were convicted and sentenced as follows:- i) The accused Jawed Akhtar alias Baba son of Mureed Hussain is hereby "Convicted" in Crime No.48/2019 for the offence under sections 4/5 Explosive Substances Act read with section 6(2)(ee) and punishable under section 7(1)(ff) of ATA, 1997 and sentenced to undergo R.I for '14" years. ii) The accused Jawed Akhtar alias Baba son of Mureed Hussain is convicted in Crime No.48/2019 for the offence under section 23(i)(A) Sindh Arms Act, 2013 and sentenced him to undergo R.I for "05" years with fine of Rs. 50,000. In case of default in payment of fine he shall suffer further R.I for "06" months. iii) The accused Jawed Akhtar alias Baba son of Mureed Hussain is also convicted In Crime No.49/ 2019 for the offence under section 23(i)A Sindh Arms Act, 2013 and sentenced him to undergo R.I for "05" years with fine of Rs. 50,000. In case of default in payment of fine, he shall suffer further R. I. for "06" months. iv) The accused Irfanullah Pathan son of Azizullah is convicted in Crime No.50/ 2019 for the offence under sections 4/5 Explosive Substances Act read with section 6(2)(ee) and punishable under section 7(1)0 of ATA, and sentenced to undergo R.I for "14" years. v) The accused Abdul Sattar son of Kaloo Khan is convicted in Crime No.51/2019 for the offence under sections 4/5 Explosive Substances Act read with section 6(2)(ee) and punishable under section 7(1)(fi) of ATA, 1997 and sentenced to undergo R.I for "14" years. vi) The accused Abdul Sattar son of Kaloo Khan is also convicted in Crime No.52/2019 for the offence under section 23(i)A Sindh Arms Act, 2013 and sentenced him to undergo R.I for "05" years with fine of Rs. 50,000. In case of default in payment of fine, he shall suffer further R.I for "06" months.
All sentences were ordered to run concurrently; however, the benefit of Section 382-B Cr.P.C. was extended to the appellants.
2. Brief facts of the case as described in the FIR are that on 29.01.2019 ASI Zulfiqar Gill was on patrolling duty along with his subordinate staff in Police Mobile-II of P.S Korangi, Karachi. During patrolling duty in the Area, ASI Zulfiqar Gill received information regarding the availability of 03 suspicious persons heavily armed in 02 cars viz. Honda Civic and Charade at link road, Sector 32-A, behind Labour Square Flat Korangi No.11/2, Karachi. On such information at about 0930 hours the police reached the spot and saw 02 cars standing over there wherein 03 persons were available.
The police encircled them and managed to apprehend them, who on the query, disclosed their tames as Jawed Akhtar alias Baba son of Mureed Hussain, Irfanullah Pathan son of Azizullah and Abdul Sattar son of Kaloo Khan. The accused Jawed Akhtar alias Baba was sitting in a car bearing No.S 0648 (as per Annexure 8/A) produced by PW Muhammad Akmal, who was the eye-witness of the incident, Charade and upon his search, police secured one hand grenade lying in a plastic shopper kept by him in his lap in presence of mashirs. On his further search, the police party also secured one unlicensed 30-bore pistol along with a loaded magazine having 07 rounds including 02 live rounds from inside the said shopper. On his further detailed search, the police party also secured one unlicensed SMG along with a loaded magazine having 28 live rounds lying on his feet in presence of mashirs. As far as accused Irfanullah Pathan is concerned he was also sitting in said Charade and when the police party conducted his search they secured one hand grenade from the right side pocket of his worn pant. Accused Abdul Sattar was sitting in a car bearing No.AFR-052 make Honda Civic and upon his search the police party secured one hand grenade from the right side pocket of his worn kameez and one unlicensed 9 MM pistol along with a loaded magazine having 06 live rounds from left side fold of his worn shalwar. ASI Zulfiqar Gill also inquired from the apprehended accused persons regarding the valid license of the recovered weapons but they failed to produce the same. As regards the SMG secured from the accused Jawed Akhtar alias Baba on query he disclosed that on 10.01.2019 he was under treatment at JPMC Karachi during which he had snatched said SMG from one police official and ran away from the hospital.
Accordingly, the recovered weapons and live rounds were sealed by the Head of the Police Party on the spot separately in sealing parcels whereas the hand grenades were taken into custody by the police. The BDU concerned was also informed regarding the recovery of hand grenades in order to defuse them. The accused persons were also asked by the police to produce the Registration Papers of the cars but they could not produce the same. Accordingly, AS! Gill prepared the memo of arrest, recovery and seizure and obtained the signatures of mashirs. Thereafter, the police party returned to the police station where instant FIRs were registered.
3. After completing usual investigation, the case was challaned before the Court having jurisdiction. After completing all legal formalities which include the supply of copies of papers to the accused, the charge was framed against them, to which they pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case examined 03 Prosecution Witnesses and exhibited various documents and other items. The statement of the accused was recorded under Section 342 Cr.P.C in which they denied all allegations levelled against them. After appreciating the evidence on record, the learned trial Court convicted and sentenced the appellants as mentioned above; hence, the appellants have filed these appeals against their convictions.
5. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 29.02.2020 passed by the learned trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.
6. Learned counsel for the appellants have contended that the appellants are innocent and have falsely been implicated in this case; that the prosecution has miserably failed to prove the charges against the appellants; that the learned trial court while pronouncing the judgment did not assess the evidence properly; that the whole story has been concocted by the complainant in connivance with his subordinates; that all the PWs were police officials and interested witnesses, although the alleged recovery was effected on spy information but the prosecution failed to associate any private person of the locality, which is apparently a thickly populated area; that there are so many dents and doubts in the prosecution case, therefore, the benefit of the doubt should be given to the appellants; that there are many contradictions in the statements of PWs. They lastly pray for the acquittal of the appellants. They have placed reliance on the cases of Muhammad Zakir and another v. The State (2022 MLD 204), Javed and others v. The State (2021 PCr.LJ 576), Hashim Raza alias Taaro v. The State (2020 PCr.LJ Note 22), Asif Khan v. The State (2018 YLR 661), Muhammad Shafiq and 2 others v. The State (2018 MLD 1377), Mukhtar Ahmed alias Atatoo v. The State (2018 YLR Note 203), Sansar Ali Abro v. The State (2018 PCr.LJ Note 153), Muhammad Akram v. The State (2009 SCMR 230) and Tariq Pervez v. The State (1995 SCMR 1345).
7. On the other hand, learned Addl. P.G. Sindh has fully supported the impugned judgment by contending that the prosecution has successfully proved its case by examining the P.Ws, who had no enmity or ill-with the appellants; that there is sufficient evidence available on record to connect the appellants with the commission of the offence and prove that they had committed the offences for which they had been charged beyond a reasonable doubt and that there appeals should be dismissed. He has placed reliance on the case of Afzul-ur-Rehman v. The State (2021 SCMR 359).
8. We have heard the learned counsel for the appellants in both the appeals as well as learned Addl. P.G. Sindh and perused the material available on record with their able assistance.
9. The case of the prosecution as per the memo of arrest and recovery so also as per the FIR is that on the search of Charade car the police recovered one hand grenade on whose clip ALGES was prescribed along with one pistol .30 bore having a magazine loaded with 07 rounds one SMG without number having magazine Waded with 28 rounds, mobile phones of different companies details mentioned in the memo. Further as per the memo of recovery one hand grenade was recovered from the pocket of the pant of the accused Irfanullah and the right side pocket of the kameez (shirt) of accused Abdul Sattar one hand grenade was recovered so also from his left side fold of shalwar one 9mm pistol having magazine loaded with 06 live bullets was recovered. It reflects that all three hand grenades which were recovered from the Charade car, one from accused Irfanullah and the others from the possession of accused Abdul Sattar which became three in total. The said memo was attested by the witnesses mashirs including PW-2. Mohammad Akmal and the same has been exhibited by PW-2 in his evidence. PW-2 Muhammad Akmal during his evidence before the trial Court has not supported the case of the prosecution and deposed that on the information when they reached the place where two white colour cars were standing, they encircled both the cars on directions of ASI Zulfiqar Gill and from one car, two persons came out and they disclosed their names to be Javaid Akhtar alias Baba and Abdul Sattar and from another car one person came out who disclosed his name to be Irfanullah Pathan. As per his evidence, ASI Zulfiqar Gill searched both the cars and from one car Charade secured one Kalashnikov along with loaded magazines having 28 rounds, 02 hand grenades lying under the back seat as well as one pistol having magazine loaded with 07 rounds and 06 mobile phones also recovered from the back seat of the said car. He further deposed that ASI Zulfiqar Gill also searched another car and secured 02 hand grenades from the case of the driving seat's door including one pistol having a magazine loaded with 06 live bullets and the same were sealed on the spot. From the evidence of PW-2, it appears that from both cars 04 hand grenades were recovered and the other weapons were also recovered from the cars. Nothing was recovered from the accused persons as alleged in the memo of arrest and recovery. No other witness of recovery has been examined.
10. The descriptions of the recovered weapons were not mentioned in the memo of arrest; however, as per the report of BDU, recovery was effected on 29.01.2019 at 0930 hours and hand grenades were handed over to BDU on 30.01.2019 from 1400 to 1500 hours, as such, the question of safe custody of the grenades/weapons arises as to where these grenades/weapons were kept for more than 17/18 hours for which no explanation is furnished by the prosecution. Further, the report of BDU reflects that the incident took place on 27.01.2019 which as per the prosecutor is a typographical mistake however, we examined this fact and found that the same date has been mentioned in all three reports filed by the prosecution, which also creates serious doubts on the prosecution story and make the BDU report doubtful as one date might be a mistake but not all three.
11. On reassessm ent of the entire evidence as discussed above we find no substance against the appellants which connects them with the commission of the offence and there are other major contradictions in the statement of prosecution witnesses. However keeping in view the principle of giving benefit of doubt to the accused it is not necessary that there be many doubts in the prosecution case and only a single doubt will lead to an acquittal. After considering and re- assessing the material produced by the prosecution before the trial Court, we are of the view that the trial Court has not appreciated the evidence of the prosecution 'properly and has not followed the correct principles of appreciation of evidence. The entire case set up by the prosecution after the evidence of PW-2 as discussed above has become doubtful. The rule of giving the benefit of doubt to an accused person is essentially a rule of caution and prudence and is deep-rooted in our jurisprudence for the safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted." While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (peace be upon him): "Avert punishments (hudood) when there are doubts" and "Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him accused, let him have his way, because the leader's mistake in pardon is better than mistake in punishment." The Hon'ble Supreme Court has quoted probably the latter part of the last-mentioned saying of the Holy Prophet (peace be upon him) in the case of Ayub Masih v.
The State (PLD 2002 SC 1048) "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
12. The upshot of the above discussion is that the prosecution has failed to bring home the guilt of the appellant beyond a reasonable doubt and as such the appellants are acquitted of the charge by extending them the benefit of the doubt. In this respect, reliance be placed upon the case of Muhammad Mansha v. The State reported in 2018 SCMR 772, wherein the Hon'ble Supreme Court of Pakistan has held 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 be 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 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)."
13. Resultantly, the Spl. Criminal Anti-Terrorism Jail Appeals Nos.14 and 61 of 2021 are allowed and the Judgment dated: 29.02.2020 passed by learned Judge, Anti-Terrorism Court No. X, Karachi in Special Cases Nos.142/2019, 142-A/2019, 142-B/2019, 143/2019, 144/2019 and 144-A/2019 arising out of crimes bearing FIR No.48/2019 under sections 4/5 Explosive Substances Act read with 7 ATA, 1997, FIR No.48/2019 under section 23(i)A Sindh Arms Act, 2013, FIR No.49/2019 under section 23(i)(A)
Sindh Arms Act, 2013, FIR No.50/2019 under sections 4/5 Explosive Substances Act read with 7 ATA, 1997, FIR No.51/2019 under sections 4/5 Explosive Substance Act read with 7 ATA, 1997 and FIR No.52/2019 under section 23(i)(A) Sindh Arms Act, 2013, all FIRs of PS Korangi, Karachi are set aside and the appellants are acquitted of the charges. They shall be released forthwith if they are not required to be detained in some other custody case.
14. Both appeals are disposed of in the above terms.