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Official Citation: 2024 SHC 3054
Court / Jurisdiction: Sindh High Court
Petitioner: Spl.Anti.Ter.A. 112/2024 (D.B.) Sindh High Court, Bench at Sukkur - Fazal Ameen & 02 others (Appellant)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2024 SHC 3054. In this matter between Spl.Anti.Ter.A. 112/2024 (D.B.) Sindh High Court, Bench at Sukkur - Fazal Ameen & 02 others (Appellant) and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Sindh High Court CASE NO: Spl.Anti.Ter.A. 112/2024 (D.B.) Sindh High Court, Bench at Sukkur CITATION: 2025 SHC SUK 3054 PARTIES: Fazal Ameen & 02 others (Appellant) ORDER DATE: 07-OCT-25 BENCH: Hon'ble Mr. Justice Khalid Hussain Shahani(Author) A.F.R: Yes ------------------------------------------------------------ Page 1 of 21
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR Spl. Anti Terr: Cr. Appeal No. D-112 of 2024
Appellants : 1) Fazal Ameen son of Momin Khan Pathan, 2) Muhammad Younis s/o Malik Haji Ghulam Habib by caste Pathan 3) Israr Ud Din s/o Minhaj Ud Din, Pathan Through Mr. Shabbir Ali Bozdar, Advocate
The State : Through Mr. Shafi Muhammad Mahar, DPG
Date of hearing : 07.10.2025 Date of Short Order : 07.10.2025 Reasons recorded on : 09.10.2025
J U D G M E N T
KHALID HUSSAIN SHAHANI, J. – This Criminal Appeal under Section 25(1) of the Anti-Terrorism Act, 1997 impugns the judgment dated 04.12.2024, whereby the learned trial Court convicted the appellants for offences punishable under Sections 3, 6, 8, 23(i) (a), 23(2), 24 of the Sindh Arms Act, 2013 and Section 7(1)(ff) of the Anti-Terrorism Act, 1997, sentencing them to concurrent rigorous imprisonment ranging from three to fourteen years along with fines. The appellants, residents of Khyber Pakhtunkhwa, challenge their conviction on multiple grounds including lack of credible evidence, material contradictions in prosecution witnesses' testimonies, non-association of independent witnesses, fatal procedural irregularities in evidence handling, and violation of their fundamental rights under Articles 4, 9, 10-A and 14 of the Constitution of the Islamic Republic of Pakistan. 2. The genesis of this prosecution traces back to FIR No.106/2023 registered on 20.09.2023 at Police Station Khanpur Mahar, District Ghotki. According to the F IR, the complainant Inspector Asghar Ali Awan, posted as SHO at PS Khanpur Mahar, along with his sta ff were allegedly conducting routine patrolling when they received confidential information from an unnamed informant regarding seven culprits present at the house of one Akbar Soomro, resident of Khanpur Mahar, who were allegedly in possession of
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modern prohibited weapons and were involved in their sale. Acting upon this tip-off, the complainant purportedly informed his superiors and proceeded to the indicated location. Upon arrival, the prosecution alleged that seven persons were present at the scene who, upon observing the police vehicle, attempted to flee. The complainant identified two of the absconding persons as Akbar Soomro and Muhammad Arif. Simultaneously, Inspector Zulfiqar Ali Mahar of the local police station also reached the spot with his team. The prosecution case is that during this operation, three persons were successfully apprehended at the scene, while Akbar Soomro, Muhammad Arif, and two other unidentified persons managed to escape. The arrested persons were identified as: (1) Fazal Ameen Pathan, (2) Muhammad Younis, and (3) Israr -ud-Din Pathan. The prosecution alleges that C NICs and some cash were recovered from their possession. According to the prosecution narrative, a subsequent search of the premises purportedly led to the discovery o f a significant cache of weaponry, including: one Anti -Aircraft Gun, one Rocket Launcher, seven Kalashnikovs (SMGs), one 9mm pistol, and a large quantity of ammunition including more than fifteen thousand bullets and magazines. The prosecution claims that during interrogation, the arrested accused allegedly disclosed that they had come to sell these weapons and ammunition to the absconding accused Akbar Soomro and Muhammad Arif Mahar. The police allegedly secured and sealed the arms and ammunition, brought the arrested accused and the confiscated property to the police station, where FIR No.106/2023 was registered on behalf of the State. 3. Following the usual investigation, a challan was submitted before the learned Anti -Terrorism Court, Ghotki. The learned pr edecessor Judge administered oath under Section 16 of the Anti-Terrorism Act, 1997 (marked as Ex.01). Police papers were supplied to the accused under receipts (Ex.02). Proceedings against the absconding accused were initiated and maintained (Ex.03 to Ex.06), wherein they were declared proclaimed offenders.
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4. Formal charge was framed against the present appellants at Ex.07, to which they did not plead guilty and claimed trial, with their pleas recorded at Ex.07/A to 07/C respectively. Mr. Shabbir Ali Bozdar, Advocate, filed his vakalatnama on behalf of the appellants (Ex.09). The prosecution examined seven witnesses in total: • PW-01 Inspector Asghar Ali Awan (Ex.10) - Complainant/SHO, who produced entry No.12, mashirnama of arrest and recovery, FIR, and roznamcha entries. • PW-02 Inspector Zulfiqar Ali (Ex.11) - Supporting witness who produced carbon copy of entry No.10. • PW-03 DSP Rabnawaz Rajpar (Ex.14) - First Investigating Officer, who produced investigation-related documents. • PW-04 PC Arbab Ali (Ex.15) - Mashir of inspection of place of wardat. • PW-05 Inspector Ghulam Mustafa Mirani (Ex.16) - Subsequent Investigating Officer who produced forensic reports. • PW-06 ASI Bashir Ahmed (Ex.20) - Deposited case property with FSL. • PW-07 HC Yar Muhammad (Ex.21) - Malkhana in-charge.
5. The learned Additional Prosecutor General gave up several other witnesses enumerated in the challan, including ASI Raza Muhammad Bullo, PC Shaukat Ali, PC Allah Diwayo, ASI Liaqat Ali Mahar, PC Baqir Hussain Pitafi, DHC Abdul Ghaffar, DPC Muhammad Abbas, PC Ayaz Ahmed, PC Muhammad Luqman, PC Imdad Hussain Korai, ASI Zahid Husain Malik, PC Ghulam Ali Mahar, PC Noor Hassan, PC Muhammad Ishaq, DPC Ahmed Ali, and PC Tanveer Ahmed (Ex.12, 13, 17, 19), and closed the pros ecution side (Ex.22). The appellants were examined under Section 342 Cr.P.C. (Ex.23 to Ex.25), wherein they denied all allegations, claimed innocence, and prayed for mercy. Appellant Fazal Ameen specifically recorded that he and his co-accused had been falsely implicated by the police, that police had taken away his Vigo vehicle along with cash amounting to Rs. Fifteen Lacs, and crucially, that the SSP held a press conference at the SP Office where all the weapons were shown de-sealed and were flashed on social media as well as print media. He produced
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photographs depicting this press conference at Ex.23/A to 23/J. Appellant Israr- ud-Din recorded that he is retired Army personnel who was arrested from the Motorway, and that the case property was foisted upon him. He produced a photocopy of his service certificate at Ex.25/A. None of the appellants examined themselves on oath under Section 340(2) Cr.P.C, nor did they examine any witness in their defence. The learned trial Court, after appraisal of the evidence , convicted the appellants vide the impugned judgment dated 04.12.2024, sentencing them as follows: i. Under Section 24 of Sindh Arms Act, 2013: R.I. for seven years with fine of Rs.20,000/-. ii. Under Section 3 punishable under Section 23(i)(a) of SAA, 2013: R.I. for ten years with fine of Rs.25,000/-. iii. Under Section 6 punishable under Section 28 of SAA, 2013: R.I. for three years with fine of Rs.30,000/-. iv. Under Section 8 punishable under Section 23(2) of SAA, 2013: R.I. for three years with fine of Rs.20,000/-. v. Under Section 6(2)(ee) punishable under Section 7(1)(ff) of ATA, 1997: R.I. for fourteen years. 6. All sentences were ordered to run concurrently, with benefit of Section 382-B Cr.P.C. extended for the period already undergone as under-trial prisoners. T he record and proceedings were transmitted to this Court as mandated under Section 25(2) of the Anti-Terrorism Act, 1997. 7. Learned counsel for the appellants have advanced the comprehensive arguments challenging the impugned judgment . The learned counsel ve hemently contended that the appellants are innocent persons who have been falsely implicated in a concocted case by the police. He submitted that there exists no credible evidence connecting the appellants to the alleged offences, and the entire prosecution case is built upon a foundation of suspicion, conjecture, and fabrication rather than solid proof beyond reasonable doubt. It was strenuously argued that all prosecution witnesses are police officials who are inter -se interested with each other, creatin g an inherent bias in their testimonies. Despite the alleged place of occurrence being in a densely populated residential area, not a single independent private witness was
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associated with the recovery proceedings. The learned counsel emphasized that this deliberate omission to associate neutral, disinterested witnesses raises serious doubts about the transparency and genuineness of the entire recovery operation. The learned counsel highlighted a fundamental flaw in the prosecution case that the weapons were allegedly recovered from the house of absconding accused Akbar Soomro, not from the exclusive or physical possession of the present appellants. He submitted that the appellants were neither found in actual physical custody of the weapons nor did they lea d the police to the recovery through point ing. The prosecution has conspicuously failed to establish any direct link between the appellants and the alleged cache of weapons. Learned counsel meticulously pointed out numerous material contradictions in the t estimonies of prosecution witnesses during cross - examination. Notably, witnesses admitted that during the SSP's press conference, only one name of an accused person was mentioned, and critically, the weapons were displayed in an unsealed, opened condition. This admission directly contradicts the claim of proper sealing and secure custody of the alleged case property, casting serious aspersions on the integrity of the chain of custody. It was forcefully contended that the complainant himself admitted during cross- examination that he did not witness any of the appellants physically handling, possessing, or selling the weapons to Akbar Soomro or any other person. The entire case rests on assumptions and inferences rather than direct, cogent evidence of criminal activity. The learned counsel emphasized that the complainant/SHO failed to involve any private witnesses in the recovery of weapons, despite the alleged recovery taking place in broad daylight in a populated area. This deliberate non -compliance with esta blished procedural norms, as envisaged under Section 103 Cr.P.C. (though not strictly mandatory in certain cases), raises serious concerns about the transparency and bona fides of the recovery procedure. The absence of independent witnesses provides
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fertile ground for manipulation and fabrication. A significant legal argument advanced by learned counsel pertains to the jurisdiction and applicability of the Sindh Arms Act, 2013 to the appellants who are residents of Khyber Pakhtunkhwa province. He contended that the appellants are not permanent residents of Sindh, and therefore, the provisions of the Sindh Arms Act should not mechanically apply to them without considering the territorial limitations and domiciliary requirements of provincial legislation. Perhaps the most damning argument presented by learned counsel relates to the photographs produced by appellant Fazal Ameen (Ex.23/A to 23/J), which irrefutably demonstrate that the SSP Ghotki held a press conference wherein the allegedly recovered weapons wer e displayed in a de -sealed, opened condition before electronic and print media. This public display of case property without maintaining the seal compromises the entire chain of custody, creates serious doubts about the possibility of tampering, substituti on, or manipulation of evidence, and violates fundamental principles of criminal evidence law which mandate secure custody and inviolate seals on case property until formal production before the Court. Learned counsel submitted that even if some evidence exists against the appellants, the numerous contradictions, omissions, procedural irregularities, and evidentiary infirmities create more than reasonable doubt about their guilt. He argued that in such circumstances, the benefit of doubt must inure to the appellants as a matter of right, not as a matter of concession or grace. In support of his contentions, learned counsel relied upon the following authoritative case law: • 2022 YLR Note 91 Principle regarding benefit of doubt. • 2022 MLD 204 (c) Recovery without independent witnesses. • 2022 P.Cr.L.J 774(c) False implication principles. • 2024 MLD 1740 (b) Evaluation of police testimony. • 2021 P.Cr.L.J Note 1 Chain of custody requirements. • 2022 SCMR 1494 (b) Joint recovery inadmissibility. • 1995 SCMR 1345 Benefit of doubt standard.
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8. The learned counsel prayed that this Court may be pleased to allow the appeal, set aside the conviction and sentence awarded to the appellants, and acquit them of all charges while extending them the benefit of doubt. 9. The learned Additional Prosecutor General appearing for the State, vigorously supported the impugned judgment and advanced the arguments in defence of the conviction . The learned APG submitted that the complainant Inspector Asghar Ali Awan and eyewitness Inspector Zu lfiqar Ali Mahar have categorically identified the present appellants during their evidence before the trial Court as the same persons who were attempting to abscond from the place of occurrence. He emphasized that both witnesses deposed consistently, stating that acting upon credible spy information, they arrived at the scene where they observed seven persons attempting to flee, successfully apprehending the three present appellants within the premises of absconding accused Akbar Soomro's house. The learned APG stressed that the recovered weaponry included highly dangerous and sophisticated arms, including an Anti-Aircraft Gun and a Rocket Launcher, which pose a serious threat to state security and public safety. He argued that common criminals do not typically possess such a substantial quantity of high -value, prohibited ammunition, and the sheer nature and quantity of the weapons recovered points unequivocally toward organized criminal activity of a serious nature. It was submitted that the defence has failed to produce any evidence indicating animosity, enmity, or ill -will between the police officials and the appellants that might suggest false implication. In the absence of any motive for the police to fabricate such a serious case involving weapons worth millions of rupees, the testimonies of police witnesses should be accepted as truthful. The learned APG highlighted that forensic reports confirm that the large quantity of weapons recovered were in working condition, indicating that the appellants w ere preparing for potential unlawful activities. The scientific verification of the functionality of these weapons lends
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credence to the prosecution's case. Addressing the defence's argument regarding contradictions, the learned APG submitted that there ar e only minor contradictions due to lapse of time, which do not go to the root of the prosecution case and cannot shatter its fundamental truthfulness. He argued that it is humanly impossible for different witnesses to narrate events in identical language, and minor variations are natural and do not affect the core consistency of the prosecution's narrative. The learned APG forcefully contended that by possessing such a massive cache of prohibited weapons including anti - aircraft guns and rocket launchers, t he appellants have created terror and panic in the locality, thereby attracting the provisions of the Anti -Terrorism Act, 1997. He submitted that the very nature of the weapons and their intended use for sale to criminal elements justifies the invocation o f anti -terrorism provisions . The learned APG prayed for the dismissal of the appeal and confirmation of the conviction recorded by the trial Court. 10. We have meticulously examined the entire record of this case, perused the impugned judgment, carefully consi dered the arguments advanced by learned counsel for the appellants and learned Additional Prosecutor General for the State, and reviewed the authoritative case law cited by both parties. After thorough deliberation, we find ourselves compelled to interfere with the conviction recorded by the learned trial Court for the following compelling reasons. 11. Before embarking upon a detailed appraisal of evidence, it is imperative to reiterate certain cardinal principles that form the bedrock of criminal jurisprudence in Pakistan. The prosecution bears the unwavering burden to prove the guilt of an accused beyond all reasonable doubt. This is not a mere technical requirement but a substantive constitutional guarantee flowing from Article 10-A of the Constitution, which enshrines the fundamental right to fair trial. An accused person is presumed innocent until proven guilty, and this
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presumption is not a hollow formality but a living, breathing protection that accompanies the accused throughout the trial. 12. The Hon'ble Su preme Court o f Pakistan in the landmark case of Muhammad Mansha v. The State (2018 SCMR 772) held with admirable clarity: “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'." 13. More recently, in Muhammad Hassan and Another Another v. The State (2024 SCMR 1427 ) the Supreme Court reinforced this principle, observing: "According to these principles, once a single loophole/lacuna is observed in a case presented by the prosecution, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused." 14. These authoritative pronouncements establish beyond any cavil that even a single reasonable doubt regarding the guilt of an accused person entitles him to acquittal as of right. The benefit of doubt is not a charitable dispensation but a legal entitlement flowing from the constitutional guarantee of fair trial. 15. Upon meticulous scrutiny of the prosecution evidence, we find that all seven witnesses examined by the prosecution are serving police officials. Not a single independent, disinterested witness from the general public was associated with the recovery procee dings, despite the prosecution's own case being that the alleged recovery took place at the house of Akbar Soomro in Khanpur Mahar, which is admittedly a populated residential area. While it is well-settled that police officials are competent witnesses and their testimony cannot be discarded merely on account of their official status, it is equally well- established that when recovery is effected in a populated area during daylight
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hours, the investigating officer has a solemn duty to associate independent witnesses from the locality to ensure transparency, minimize the possibility of false implication, and inspire public confidence in the administration of justice. 16. Article 10-A of the Constitution speaks about the fair trial of the accused, therefore, the pr osecution must demonstrate that case property allegedly recovered was safely kept and transmitted without tampering. The exclusive reliance on interested police witnesses, without any independent corroboration, seriously undermines the credibility of the r ecovery. In Muhammad Azam v. The State (PLD 1996 SC 67) [5], the Supreme Court held: “In other words, if the place to be searched is already known and is situated in a locality which is inhabited, then it becomes mandatory for the police officer to join witnesses from the locality in the investigation." In the present case, the prosecution has offered no plausible explanation for this deliberate omission. The complainant and other witnesses have failed to explain why not even a single neutral person from the locality was made a witness to the recovery of such a massive cache of weapons. This glaring omission creates a serious dent in the prosecution's case and gives rise to reasonable suspicion regarding the genuineness of the recovery.” 17. A cardinal p rinciple in cases involving recovery of contraband or prohibited articles is that the prosecution must establish exclusive possession by the accused. The mere presence of an accused in the vicinity of contraband does not, without more, establish his guilt. In the instant case, the prosecution's own narrative reveals a fundamental and fatal weakness ; the weapons were allegedly recovered from the house belonging to absconding accused Akbar Soomro, not from the actual physical possession or exclusive custody o f the
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present appellants. The complainant himself admitted during cross-examination that he did not witness any of the appellants physically handling, possessing, or selling the weapons. The appellants were allegedly apprehended while they were "attempting to flee" from the premises. However, the prosecution has failed to establish: • That the appellants were found in exclusive possession of any weapon; • That the appellants led the police to the recovery through pointing; • That any weapon was recovered from the person or immediate control of any appellant; • That the appellants made any disclosure statement leading to recovery admissible under Article 40 of the Qanun -e- Shahadat Order, 1984. 18. The recovery was made from a house belonging to a third person (absconding accused Akbar Soomro). In such circumstances, without any direct evidence connecting the appellants to the weapons found in that house, the conviction cannot be sustained on the basis of mere suspicion or proximity. The Hon'ble Supreme Court held that r ecovery from exclusive possession of an accused is sufficient to prove guilt, but conversely, absence of exclusive possession creates serious doubt about culpability.’ 19. During the course of cross -examination, several material contradictions emerged in the testimonies of prosecution witnesses, which have not been satisfactorily explained. These contradictions are not of a minor or trivial nature but go to the very root of the prosecution case. The most damaging contradiction emerges from the admissions made b y prosecution witnesses during cross - examination. PW -01 Inspector Asghar Ali Awan and other witnesses admitted that the SSP Ghotki held a press conference wherein only one name of an accused person was mentioned, and critically, the allegedly
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recovered we apons were displayed in an unsealed, de -sealed, or opened condition before electronic and print media. 20. This admission is corroborated by the photographs produced by appellant Fazal Ameen at Ex.23/A to 23/J, which irrefutably demonstrate that the case property was publicly exhibited without maintaining the seals that were allegedly affixed at the time of recovery. This is not a minor procedural lapse but a fundamental breach of evidentiary principles that completely destroys the chain of custody. The Hon'ble Supreme Court in Roshan v. The State (PLD 1977 SC 557) held that delay in sending crime empties to ballistic expert until after recovery of weapon casts serious doubt on prosecution's case. Similarly, i n Daniel Boyd etc. v. The State (1992 SCMR 196) [2], where crime empties and weapons had been kept together in police custody for over two months before being sent for forensic analysis, the Supreme Court observed that the ballistic report did not advance the prosecution case at all. 21. In the present case, the…
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