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Petitioner: MUHAMMAD UMAIR and another VS Respondent: The STATE and anothers
Court Name: Sindh High Court Judge(s): Ahmed Ali M. Shaikh, Muhammad Saleem Jessar Title: MUHAMMAD UMAIR and another vs The STATE and anothers Case No.: Criminal Special Anti-Terrorism Appeals Nos.294 to 298 of 2015 Date of Judgment:2016-11-23 Reported As: 2017 YLR 1097 Result: Appeals accepted
JUDGMENT
JUDGMENT ' MUHAMMAD SALEEM JESSAR, J.---By this common Judgment, we intend to dispose of five captioned ATA appeals, arose out of one and the same Judgment dated 24.11.2015, rendered by learned Special Judge, Anti-Terrorism Court No,X, Karachi in Special Case No,B-605/2014 emanating from Crime No, 376/2014 under sections 353, 324, 34, P.P.C. Read with section 7 ATA, 1997, Special Case No, B-606/2014 emanating from Cr. No,377/2014 under section 23(1)-A, Sindh Arms Act (hereinafter referred to as Act, 2013), Special Case No,B-607/2014 bearing Crime No,378/2014 under sections 4/5 Explosive Substances Act, 1908 (hereinafter referred as Act, 1908) read with section 7 of Anti-Terrorism Act, 1997 (hereinafter referred to as Act, 1997), Special Case No,B-608/2014 bearing Crime No,379/2014 under section 23(1)-A of Sindh Arms Act, 2013 and Special Case No, B-609/2014 under sections 4/5 Explosive Substances Act read with section 7 ATA, 1997, all registered with P.S. CID, Karachi, whereby the appellants Muhammad Umair and Muhammad Owais have been convicted for offence under sections 353, 324, 34, P.P.C. Read with 6(2) (d) punishable under section 7(b) of ATA, 1997 and sentenced to suffer R.I. For 10 years each, under sections 4/5 Explosive Substances Act read with 6(2) (ee) and 7(ff) of ATA, 1997 to suffer R.I. For 14 years each. They have also been convicted under section 23(1)-A Sindh Arms Act, 2013 and sentenced to suffer R.I. For 07 years with fine of Rs,20,000/- each, in default to suffer S.I. For six months each. However all the sentences have been ordered to run concurrently in terms of section 397, Cr.P.C. Besides, benefit of section 382-B, Cr.P.C. Has also been extended to them. The appellants being aggrieved by and dissatisfied with the common Judgment dated 24.11.2015 have assailed same before this court by means of instant appeals.
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2. The crux of prosecution case as unfolded by complainant SIP Fida Hussain Leghari are that on 09.10.2014 he along with police party left P.S. Under D.D entry No,29 at 2200 hours for patrolling during which when they reached within the jurisdiction of Shershah, he received spy information on telephone that five culprits of Lyari Gang war involved in heinous crimes are available near Tiger Kaanta Shershah Road Karachi, proceeded and reached at the pointed place at 12.30 a.m and saw 05 suspicious persons there, who on seeing police party started firing upon them with intention to commit their murder. The police party retaliated the same and then succeeded to apprehend two culprits while 03 made their escape good. On inquiry, apprehended accused disclosed their names as Umair alias Abid and other as Muhammad Umair. During personal search of accused Muhammad Umair, police recovered one Kalashankov along with loaded magazine containing 09 rounds and 01 round in the chamber as well as two Hand Grenades from pocket of his shirt/kameez. One .30 bore pistol along with loaded magazine containing 02 rounds as well as 02 Hand Grenades were recovered from accused Muhammad Owais. Both the accused failed to produce licenses for their respective weapons. They were arrested on the spot and were taken to P.S. Along with recovered property where FIRs mentioned above were registered. 3. After registration of case, police conducted investigation and after completion of legal formalities submitted charge sheet before the court having jurisdiction. Learned trial court supplied the requisite papers to appellants/convicts in terms of section 265-C, Cr.P.C. Vide receipt at Exhs.2 and 3. Learned trial court amalgamated all five cases. 4. After observing codal formalities, the learned trial court framed a joint charge against the appellants at Ex.8 to which they pleaded not guilty and claimed to be tried vide their pleas at Ex.08/A and 08/B. 5. To prove its charge, the prosecution examined P.W.1 complainant SI Fida Hussain Ex.09, who produced Roznamcha entry No,29 at Ex.09/A, Memo of arrest and recovery at Ex.09/B, copies of FIRs No,376/2014, 377/2014, 378/2014, 379/2014 and 380/2014 at Ex.9/C to Ex./09/G, roznamcha entries at Ex.9/H to 09/L, memo of inspection of place of incident at Ex.09/M, P.W.02 ASI (BDU) Syed Laeeq was examined at Ex.10, who produced letter to SSP Special branch at Ex.10/A, Clearance Certificates at Ex.10/B and 10/C, Roznamcha entry Nos.44 and 47 at Ex.10/D and 10/E, Final inspection Report of hand Grenades at Ex.10/F and 10/G,P.W.03 HC Fazal Sardar at Ex.11, P.W.04 PI/I0 Syed Waqar Ali at Ex.13, who produced Roznamcha entry No,37 and 40 at Ex.13/A and 13/B, Letter dated 11.10.2014 at Ex.13/C, letter dated 12.10.2014 at Ex.13/D, Letter to AIGP dated 30.10.2014 at Ex.13/E, letter to AIGP dated 30.10.2014 at Ex.13/F, Orders of Home Department seeking permission Explosive Substances Act at Ex.13/G and 13/H, Examination Report (laced 22.10.2014 at Ex.13/I and then closed its side vide statement Ex.14. 6. Appellants were examined under section 342, Cr.P.C. At Ex.15 and 16 whereby they have denied prosecution allegations and claimed to be innocent. They, however, did not examine themselves on oath nor led any defence evidence. 7. After full-dressed trial and having heard prosecution as well as the defence, the learned trial court vide its Judgment dated 24.11.2015 convicted and sentenced the appellants as stated above. 8. Mr. Bashir Ahmed Mirani, learned counsel for the appellants has argued that the appellants were arrested by the police after alleged encounter on 10.10.2014 although police party was equipped with automatic weapons and the appellants allegedly were also armed yet none from police party or even their vehicle had sustained scratch. He further submitted though the weapons were seizure on 10.10.2014 but were sent to Forensic Laboratory on 16.10.2014 and no plausible explanation has been furnished by the police for causing such an inordinate delay. He further submitted that complainant deposed in his statement that mashirnamas/ memos and the FIR were drafted by PC Faisal, who has not been made/cited as witness of the proceedings. Learned counsel further argued none of the police personnel had ever deposed regarding the number of fires/rounds spent
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/fired during alleged encounter. He further has drawn our attention towards 161, Cr.P.C. Statements of the P.Ws, nowhere they have disclosed that they have fired certain number of rounds. His above contention is supported by, the record particularly memo of recovery and memo of visiting of place of incident as nowhere it is mentioned that certain number of empties, besides quantity of the empties allegedly fired by the appellants, is mentioned. He further submitted Grenades allegedly secured from the possession of the appellants were without detonator and explosive substance, therefore, same being without explosive material could not have been blasted rather presumption can be drawn that the police in order to strengthen the rope of their false accusation had foisted upon them certain artificial Grenades which do not constitute any offence in terms of sections 4 and 5 of the Explosive Substances Act read with section 6(2)(ee)/7(ff) of ATA, 1997 . He has further focused that the alleged Grenades were not sealed by the complainant on spot nor specific certificate duly issued by the Armour Expert to the effect that the weapons allegedly recovered from the appellants were in working condition or not. Lastly he prayed that prosecution has miserably failed to prove its case beyond any reasonable shadow of doubt against the appellants and the trial court has not appreciated the defence version and the major discrepancies in the prosecution evidence thus has erred by awarding capital punishment to the appellants. According to him, the impugned Judgment being illegal, capricious, scandalous is liable to be set-aside therefore, he submitted that by setting aside the impugned Judgment appellants may be acquitted from all the charges as it is settled dictum of law that if slightest doubt arises in the prosecution case, same is sufficient to discard the prosecution allegations and this case is best one in which benefit of doubt can be extended. 9. Mr. Muhammad Iqbal A wan, learned A.P.G. Appearing for the State after finding such major contradictions and discrepancies in the prosecution evidence particularly . After going through the Forensic Laboratory report showing the Grenades being without substance and detonator and in absence of the particular certificate issued by the Expert, the weapons allegedly recovered were in working condition or not could not controvert the submissions advanced by learned defence counsel. However, he halfheartedly supported the impugned judgment. 10. We have heard learned counsel for the parties and scanned the record anxiously. 11. Before assessm ent of evidence as well as allegations contained in the FIRs, it will be essential to reproduce the charge as it (charge) is joint one, relating and covering main and off-shoot cases, which reads as under:-- CHARGE ' Abdullah Afzal Khan, Judge, Anti-Terrorism Court No,X Karachi, do hereby charge you:- 1. Muhammad Umair son of Meva Khan. 2. Muhammad Owais son of Mansoor Ali. ' as follows:-- That on or about 10.10.2014, at about 0030 hours near Tiger Kanta Shershah Road, Karachi you along with absconding accused persons namely Hameed Pathan son of Muhammad Munir Khan, Aamir Dollar son of Iqbal, Jamil Changa son of not known being armed with deadly weapons made direct firing upon police party headed by SIP Fida Hussain with intention to take their lives and deterred them from discharging their lawful duties and officials functions and by this act you also created terror, panic, sense of fear and insecurity in the mind of complainant as well as the general public and that thereby, you have committed an offence punishable under sections 353/ 324/34, P.P.C. Read with 6(d)/7(b) of ATA 1997 and within the cognizance of this Court. ' I, further charge you accused Muhammad Umair that on the above said date, time and place you were arrested by the same police party after the encounter and 01 unlicensed Kalashnikov along with loaded magazine containing 10 live rounds were recovered from your possession in the
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presence of mashirs as such you have committed an offence punishable under section 23(1)-A Sindh Arms Act and within the cognizance of this court. ' I, further charge you accused Muhammad Umair that on the above said date, time and place you were arrested by the same police party after the encounter and 02 Hand Grenades were recovered from your possession in the presence of mashirs for which you had no legal lawful authority to keep them or possess as such, you have committed an offence punishable under sections 4/5 Explosive Substances Act read with 6(2)(ee)/707) of ATA, 1997 and within the cognizance of this court. ' I, further charge you accused Muhammad Owais that on the above said date, time and place you were arrested by the same police party after the encounter and 01 unlicensed .30 Bore Pistol along with loaded magazine containing 03 live rounds were recovered from your possession in the presence of mashirs as such, you have committed an offence punishable under section 23(1)- A Sindh Arms Act and within the cognizance of this court. ' I, further charge you accused Muhammad Owais that on the above said date, time and place you were arrested by the same police party after the encounter and 02 Hand Grenades were recovered from your possession in the presence of mashirs for which you had no legal lawful authority to keep them or possess as such, you have committed an offence punishable under sections 4/5 Explosive Substances Act read with 6(2) (ee)/7(ff) of ATA, 1997 and within the cognizance of this court. ' And I hereby direct that you be tried by this court on the aforesaid Charges. ' Given under my hand and seal of this court, this 18th day of June, 2015. Sd/ Judge, From perusal of aforementioned charges, it will be beneficial to reply categorically to each charge. In first para of the charge, learned Judge had charged the appellants for making fires upon police party headed by SIP Fida Hussain with intention to take their lives and deterred them from their lawful duties and thereby they allegedly had created terror, panic sense, fear and insecurity in the mind of complainant as well as the general public. 12. The complained offence must have resulted in creating a sense of fear or insecurity in the society and created a serious risk to safety of the public or a section of the public or was designed to frighten the general public and thereby prevent them from coming out and carrying on their trade and daily business and disrupt their civil life. In short, if an offence of less punishment, can well fall within meaning of 'terrorism' while one of capital punishment may escape if while determination former is found to have been designed to frighten the general public thereby disrupting civil life and same is found missing in later case. Reference can well be made to the leading case(s) on this point which is: 'Shoukat Baig v. Shahid Jamali' (PLD 2005 SC 530) "11. After having gone through the provisions as contained in section 6 of the Act we are of the firm opinion that 'terrorism' means the use or threat of 'action' where the 'action' falls within the meaning of subsection (2) of section 6 of the Act and creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil life shall amount to terrorism as enumerated in section 6 of the Act. 13. Per prosecution case the alleged offence had occurred in odd hours of the night when none amongst the public was available nor had felt any fear or terrorism while observing the existence of appellants as none from public was attracted or even claimed by prosecution to have been there. Neither the appellants had displayed the alleged ammunition and explosives nor it has been established in evidence that in order to create terror and panic situation among the public, the appellants had displayed the same, thereby had committed offence in terms of ATA, 1997 (ibid). Therefore, the first part of the charge in terms of Subsection (2)(i) of the Section 6 of the Act, 1997
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had not been established by the prosecution, therefore, the appellants cannot be punished in terms of section 7(b) of the Act, 1997. 14. As regard allegation of encounter, involving attempt to commit Qatl-i-Amd and deterring police party from performing its duties, it appears that to prove this the prosecution has relied upon the statement of complainant and the P.Ws who have supported the version of FIR in toto. At this point, we would take a pause to first say that mere narrating the prosecution story in toto is never sufficient to hold the burden of a conviction because the requirement of law is always that 'no conviction could sustain unless it stands the test of being direct, natural and confidence inspiring'. Each word must always be given its due meaning and importance. A direct evidence if otherwise does not appear to be 'natural' and 'confidence inspiring or unimpeachable' shall not be sufficient to convict an accused because Criminal Administration of Justice is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted' . This appears to be the reason, which now becomes a well embedded principle of law, that 'a reasonable doubt' is always sufficient to acquit the accused'. The reliance can well be placed on the case of Muhammad Nawaz v. State 2016 SCM R 267 wherein case of Ayub Masih's case (PLD 2002 SC 1048) was referred as:-- "... It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond oar reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt, of course, must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmed (PLD 1973 SC 418) that this rule is antitheses of haphazard approach or reaching a fitful decision in a case. It will not be out of -place to mention here that this rule occupies a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prohphet (p.b.u.h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." Resuming, the discussion what is quite evident from perusal of the evidence that though the complainant narrated contents of FIR but such narration (evidence) prima facie does not appear to be 'natural or confidence inspiring' for reasons that "despite alleged claim of an encounter neither any of the police officials nor vehicle (police mobile) received a single scratch" although accused persons allegedly made firing with lethal weapons, including Kalashnikov. As per allegations, the police party was attacked upon at the hands of the appellants and in order to prove their allegations they were required to collect some tangible evidence yet they have miserably failed to bring concrete material against the appellants. The version of complainant of FIR as well as their respective memos and the statements of the witnesses, nowhere they have uttered a word that in retaliation they had fired certain number of rounds and suffice to say not a single empty spent by the complainant party has been collected by the I.O. During investigation even they have miserably failed to show that they were laced with certain particular weapons. Further to meet their accusation, the presence of the complainant party at relevant place and time was essential and in absence of any scratch or injury on their part, their allegation is baseless and the factum regarding alleged encounter has also not been proved. Besides, arrest of two of the accused persons out of five by police without being hurt/injured or having any other reason when other three under same situation made their escape good; non-recovery of empties from place of incident. These all are circumstances which do not let the prosecution story worth believing for a
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prudent mind. Therefore, charge to such an extent fails to stand well with the required test. Though, in law failure of defence has never been sufficient to hold one guilty because it is settled principle of law, it is the duty of the prosecution to prove its accusation and the prosecution could not be benefited from the failure or inability of the defence. 15. Further the complainant had deposed before trial court that mashirnamas as well as FIR was drafted by P.C. Faisal who has not been made as a witness of the occurrence. If memos were drafted by P.C. Faisal then he should had been with police party at relevant time because the memos as alleged, were prepared on spot but even the presence of PC Faisal has not been justified either in their departure entry the memos or FIR. In such situation presumption would be that no offence as alleged had taken place and they have completed all the paper formalities at their police, station or least brought serious doubt over manner of happening of the alleged incident which was brought into black and white (mashirnama of arrest and recovery). One of PWs namely H.C. Fazal Sardar who is mashir of the memos of recovery and arrest had deposed in his examination-in-chief (available at page 113 A of the paper book) as under:-- "The recovered Hand Grenades were kept by SIP Fida Hussain in his possession. The memo of arrest and recovery were prepared by SIP Fida Hussain and obtained my signature as well as signature of P.C. Muhammad Amir on it. I see Ex.9/B and say, it is same, correct and bears my signature". 16. The above version of an alleged eye-witness not only belies the version of complainant rather supports the defence plea and thus in such a situation we are of the considered view that no such incident has ever occurred in a manner as reported. The above glaring aspect of evidence clearly proves that prosecution has miserably failed to prove its charge against the appellants in terms of first para of the charge and defence, set forth by accused, appears to be having much weight. It is necessary to add here that the accused is not required to prove his plea/version as the prosecution is required therefore, even if the accused fails to establish his plea/ version to satisfaction of the Court yet the plea otherwise leaves chances of its being true if is examined in comparison with prosecution case then the same has to be accepted. Reliance is placed on the case of Inayat Ali v. Shahzada 2008 SCM R 1565 wherein it is held that:-- "It was held by this Court in the case of Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879 that all the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz. Is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case. If the answer be in affirmative, then Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonable be true, even then the Court must accept his plea and acquit or convict him accordingly. 17. Though, it is well settled principle of law that recovery, being a corroborative peace of evidence, would be relevant only where primary evidence i,e, ocular account stands well with the test of being 'confidence inspiring' which is not so in the instant matter. Reference may be made to case of Muhammad Nawaz 2016 SCM R 267. However, since prosecution came forward with independent charge for such evidence (recovery) therefore, let's examine this too although legally such recovery (off-shoot) in a joint-charge will not stand independently. The alleged weapons, recovered from possession of the appellants, were not certified by the Forensic Laboratory or any Expert whether they are in working condition or not.
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' In this regard reference can be made to the case of Rahim Bux v. The State (2010 PCr.LJ 642 (Quetta)). The relevant portion of para 4 of the Judgment of Rahim Bux (ibid) is as under:- "It is well-settled proposition of law that conviction under section 13-D of Arms Ordinance could not be maintained unless the weapons allegedly recovered were sealed at the spot and the opinion of Forensic/Ballistic Expert is produced on record to prove that the weapons so recovered were, in fact, functional and that the said weapons fell within the category of weapons exclusively triable by the Special Court S.T.A. Reference may be made to case-law reported as "Loung through Superintendent Central Prison, Hyderabad v. The State 1999 PCr.LJ 595 and Sajjan v. The State 1998 PCr.LJ 1399". ' In case of Imamuddin v. The State reported as 2005 YLR 845 (Karachi), whereby Divisional Bench of this court had also held as under:-- "12. Next, it would be seen that the KK in question was not sent for any test to ensure that it was in a working condition". ' In case of Riaz Hussain Kalhoro v. The State (2004 PCr.LJ 290) Divisional Bench of this court had also held that in absence of Expert's opinion regarding the weapon was functional or to be the weapon fell to be a Kalashnikov therefore, recovery was held doubtful. The relevant portion of Judgment (ibid) reads as under:- "It is well-settled proposition of law that the conviction under section 13-D, Arms Ordinance could not be maintained unless the weapon…
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