Full Judgment Text & Judicial Ruling

2022 P Cr. L J Note 73 [Sindh] Before Nazar Akbar and Zulfiqar Ahmad Khan, JJ MEHTAB alias KALA and another---Appellants Versus The STATE---Respondent Special Criminal Anti-Terrorism Jail Appeal No. 349 of 2019, decided on 1st December, 2020. (a) Penal Code (XLV of 1860)--- ----Ss. 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his public duty, common intention, possession of unlicensed weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of pistols from the possession of accused---Reliance---Scope---Prosecution case was that when the culprits were signalled to stop, they made firing upon the police party and in retaliation one of them got injured and were arrested---Record reflected that two .30 bore pistols, empties and live cartridges etc. were recovered from the possession of the accused at the time of incident i.e. 01.01.2019, which were received by the Ballistic Expert for examination on 02.01.2019, who had opined that pistols were in working condition and two .30 bore crime empties were fired from each pistol---Report of Ballistics Expert showed that two .30 bore pistols allegedly had been recovered from the accused but their description had never been given in the entire evidence and in their statements under S. 161, Cr.P.C. that the pistols were rubbed number, which created serious doubt in the prosecution case---No evidence of modern devices to that extent had been produced by the prosecution before the Trial Court---Mashirnama of recovery did not disclose the number of recovered pistols but the report of Forensic Science Laboratory disclosed rubbed number of pistols---Such contradiction/infirmity had also created serious doubt in the prosecution case---No explanation of not sending the official SMG for forensic examination to identify whether the bullet hit the injured accused was fired from the official weapon or not---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his public duty, common intention, possession of unlicensed weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that when the culprits were signalled to stop, they made firing upon the police party and in retaliation one of them got injured and were arrested---Record showed that the prosecution failed to prove that accused assaulted or used criminal force to Police Officials to deter them from discharge of their duty---Circumstances suggested that accused had been convicted under S. 324, P.P.C., without any evidence---Evidence available on record showed that offence had no nexus with the objects of Anti-Terrorism Act, 1997, as contemplated under Ss. 6 & 7 of the Anti-Terrorism Act, 1997, hence, evidence available on record made it clear that encounter had not taken place---Said circumstances created doubt about the very commencement of the encounter---Allegedly, there was cross-firing for about 05 minutes but no injury/scratch was caused to the police party---Distance between Police Officials and accused was 10 feet at the time of encounter and none from the police party sustained any bullet injury and bullet marks on the police mobile also---Non-production of the arrival and departure entries of police station also cut the roots of the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his public duty, common intention, possession of unlicensed weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Standard of proof---Scope---Prosecution case was that when the culprits were signalled to stop, they made firing upon the police party and in retaliation one of them got injured and were arrested---Record showed that the Investigating Officer had failed to examine an independent witness in order to ascertain the truth beyond any reasonable doubt about the encounter---Standard of the proof in such a 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---Desirably, such case should have been investigated by some other agency---Such circumstances created doubt---Appeal against conviction was allowed, in circumstances. Zeeshan alias Shani v. The State 2012 SCMR 428 rel. (d) Criminal trial--- ----Witness--- Police Official as witness--- Reliance--- Scope---Police Officials were as good witnesses in court proceedings as any other person, yet some amount of care was needed when they were the only eye-witnesses in the case. (e) Criminal trial--- ----Recovery---Sealing of recovered weapon---Scope---Wisdom behind sealing of weapons at the place of incident was to eliminate the possibility of manipulation of evidence after the recovery of the crime weapon. The State v. Muhammad Shafique alias Pappo PLD 2004 SC 39 rel. (f) Criminal trial--- ----Benefit of doubt---Principle---If there was a circumstance which created a 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. Tariq Pervez v. The State 1995 SCMR 1345; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Zaman v. The State 2014 SCMR 749 rel. (g) Penal Code (XLV of 1860)--- ----Ss. 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his public duty, common intention, possession of unlicensed weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Official weapons were not sent for forensic examination---Effect---Prosecution case was that when the culprits were signalled to stop, they made firing upon the police party and in retaliation one of them got injured and were arrested---Admittedly official weapon was used and empties were also collected from the place of incident, however, official weapons were not sent for forensic examination to ascertain that in fact official weapons and bullets allocated to the Police Officials were used at the crime scene---Empties and weapons allegedly recovered from the accused persons were sent for forensic examination next day after the arrest of the accused persons---Positive report of the Agency was of no avail to the prosecution and was inconsequential, in circumstances---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances. Muhammad Amin v. State 2019 SCMR 2057; Muhammad Ashraf alias Acchu v. State 2019 SCMR 652; Haleem v. State 2017 SCMR 709; Khuda-e-Dad alias Pehlwan v. State 2017 SCMR 701 and Muhammad Irshad v. Allah Ditta 2017 SCMR 142 rel. Appellants are in jail custody. Ms. Rahat Ahsan, Additional Prosecutor General Sindh for the State. Date of hearing: 1st December, 2020. JUDGMENT ZULFIQAR AHMAD KHAN, J.---Appellants Mehtab and Naveed were tried by learned Judge, Anti-Terrorism Court-XX, Karachi in Special Case No. 62/2019, [Crime No. 01/2019 under sections 353/ 324/34, P.P.C. read with section 7 of A.T.A., 1997], Special Case No. 62-A/2019 [Crime No. 02 of 2019 under section 23(1)(a) of the Sindh Arms Act, 2013] and Special Case No. 62-B/2019 under section 23(1)(a) of the Sindh Arms Act, 2013] registered at Police Station Steel Town, Karachi. On conclusion of the trial, vide judgment dated 30.09.3019, the appellants were convicted and sentenced under section 265-H, Cr.P.C. as under:- a. For the offences under section 324, P.P.C. read with section 7(h) of A.T.A., 1997 and sentenced to undergo for five years with fine of Rs.20,000/-. In default in payment of such fine, he shall suffer further R.I. for six months more. b. For the offences under section 353, P.P.C. and sentenced to undergo R.I. for one year. c. For the offences under section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to undergo R.I. for five years with fine of Rs.20,000/-. In default in payment of such fine, he shall further suffer R.I. for six months. All sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was also extended to accused persons. 2. The prosecution story unfolded in the crime report is that on 01.01.2019 complainant ASI Asdullah was on patrolling duty and at about 0010 hours near Kacha Ravenda Road Soomar Goth Near Al-khiddmat Hospital Malir they signaled to stop the culprits who were coming on a motorcycle from the side of Gulshan-e-Hadid, but they started firing at police party and in retaliation one of them got injured and were arrested and disclosed their names as Mehtab alias Kala, who was having a T T Pistol of .30 bore loaded with four live bullets in its magazine and one live bullet in its chamber, which was secured by the police from his possession along with one cellular Nokia phone, copy of his CNIC and 500 cash while they secured from other accused namely Naveed alias Nao one T T Pistol of 30 bore along with magazine loaded with three live bullets and one live bullet in its chamber; while they failed to produce any license of the weapons. Motorcycle bearing No. KJT-6264 was also seized by the police at the spot. Hence the FIRs. 3. After usual investigation, challan was submitted against the accused under the above referred sections. All the cases were amalgamated by the trial court under section 21-M of the Anti-Terrorism Act, 1997, vide order dated 29.1.2019. 4. Trial court framed charge against the accused at Exh.04 in all the cases, to which accused pleaded not guilty and claimed to be tried. 5. At trial, prosecution examined five witnesses. Thereafter, prosecution side was closed. 6. Statements of accused under section 342, Cr.P.C were recorded at Exhs. 12 and 13, wherein the accused denied all the incriminating pieces of prosecution evidence brought against them on record and claimed false implication in these cases. Accused Mehtab stated in reply to a question that he was picked by police on 01.01.2019 at about 06.30 p.m. when he was returning back to his home from the garment factory where he was working as Operator, and took him to Police Station Steel Town and demanded bribe from him of Rupees One lac and on refusal they took him to Police Station Gulshan-e-Hadid area and shot at his right thigh at about 11.0 p.m. and sent him to Jinnah Hospital for treatment. Whereas accused Naveed replied that on 01.01.2019 at about 3.00 p.m. when he was returning from the cattle form, where he was working, he was picked by police of Police Station Steel Town and demanded bribe of Rupees Forty thousand. On failure to fulfill their demand they implicated them in these false cases and further stated that they are innocent and prayed for acquittal. 7. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 30.09.2019 convicted and sentenced the appellants as stated above. Hence this appeal. 8. The grounds taken in the appeal are that the impugned judgment is illegal, unlawful, arbitrary and is unwarranted by law and that the learned trial Court did not consider the improvements, discrepancies, and contradictions in the statements of PWs while deciding the case, that appellants/accused were booked by the police in these cases falsely by foisting arms upon them and the FIRs of encounter was lodged by the complainant falsely, none from the police officials sustained bullet injury and according to prosecution, from the possession of the accused persons police recovered T.T. pistols of 30 bore without number while in FSL examination it is mentioned as "rubbed number" and the official weapons of police were not sent for FSL which makes the whole story doubtful and the alleged recovered weapons were sent for FSL with inordinate delay without any explanation and the learned trial Court has erred in holding that the prosecution has proved the case against the appellants while there was contradictory evidence which is not trustworthy due to material contradictions and conviction handed down to the appellants is illegal and the same is result of mis-reading of facts and evidence on record and they are innocent and have falsely been implicated in these managed cases of encounter and pistols by the police and that appellants/accused were booked by the police in these cases falsely by foisting arms upon them and the learned trial Court has miserably failed to appreciate the evidentiary value of evidence and also failed to prove the case beyond the shadow of doubt and only one accused has sustained bullet injury and no police official or mobile was hit by any bullet which sole ground is sufficient to create doubts in the prosecution story. Lastly, the appellants in their appeal have prayed for acquittal. 9. Learned Additional Prosecutor General has argued that the prosecution has examined five PWs and they have fully implicated the accused in the commission of offence. He further argued that police officials had no enmity to falsely implicate accused in these cases and trial court has rightly convicted the accused. He however completely showed in indifference with the assertions of the appellants that police arrested them as there were unable to grease their palms. Learned Additional Prosecutor General prayed for dismissal of the present appeal. 10. We have carefully heard the learned Counsel for both the parties and scanned the entire evidence available on record. 11. At the trial, prosecution examined P.W.1 ASI Asadullah Gopang who deposed that on 31.12.2018 he was accompanied with HC Shafique, PC Raj Ahmed and PC Sain Bux who were patrolling in the area and had also setup a picket nearby Al-Khidmat situated at Gulshan-e-Hadid. At about 12.10 a.m. they saw two suspicious persons on a motorcycle and upon interruption they started firing upon them and during exchange of fire, one accused Mehtab received firearm injury and they apprehended both the accused and secured one T.T. Pistol 30 bore with three live bullets in magazine and one in chamber from accused Mehtab and one T.T. Pistol 30 bore with 3 live bullets in magazine and one in chamber from other accused Naveed. 12. PW-03 HC Shafiq ur Rehman has stated that on 01.01.2019 he left the P.S. under the supervision of ASI Asaddullah Gopang under entry No. 33 at about 11.00 p.m. and during patrolling when they reached at Al-Khidmat Hospital situated at Gulshan-e-Hadid, they started conducting snap checking, in the meanwhile they saw two suspicious persons riding a motorbike, upon signaled them to stop, they started firing on police party. In his cross-examination he admitted that they remained present at the place of incident for about 45 minutes and ASI Gulzar Ali reached at the place of incident within 15 minutes after receiving such information. The contents of memo of arrest and recovery were written by ASI Asadullahd Gopang and he also drew the sketch of pistol and bullets. The firing lasted for about five minutes where he made four fire shots. 13. PW-04 ASI Gulzar Ahmed in his examination-in-chief deposed that after receiving such information he left his P.S. at about 0018 hours viz. 01.01.2019 under the roznamcha Entry No. 32 and reached at the place of incident where ASI Asadullah Gopang was busy in formal proceedings. 14. PW-05 SIP Zulfiqar Ali Bajwa in his examination-in-chief has deposed that on 01.01.2019 at about 1405 hours he had gone to the place of incident along with the complainant ASI Asadullah, HC Shafiq ur Rehmen, P C Sain Bux, PC Raj Muhammad and PC Karim Dad under the roznamcha Entry No. 12 and he conducted inspection of place of incident on the pointation of ASI Asadullah Gopang and collected 05 empties of SMG and 04 empties of 30 bore pistol from the place of incident. 15. Record reflects that recovered weapons viz. two .30 bore pistols (one rubbed number and other having No. A3104), empties and live cartridges etc. were recovered from the possession of the appellants at the time of incident i.e. 01.01.2019, which were received by the Ballistic Expert for examination on 02.01.2019, who has opined that pistols are in working condition and two 30 bore crime empties were fired from each pistol. 16. The above report of Ballistics Expert shows that two .30 bore pistols (one rubbed number and other having No. A3104) allegedly had been recovered from the accused but their description has never been given in the entire evidence and in their 161, Cr.P.C. statements that the pistols were rubbed number, which creates serious doubt in the prosecution case. No evidence of modern devices to that extent has been produced by the prosecution before the trial court. Mashirnama of recovery does not disclose the number of recovered pistols but the report of Laboratory (FSL) discloses rubbed number of pistols, and such contradiction/infirmity has also created serious doubt in the prosecution case. There is no explanation of not sending the official SMG for forensic examination to identify whether the bullet hit the injured accused was fired from the official weapon or not. 17. Prosecution failed to prove that appellants assaulted or used criminal force to police officials to deter from discharge of their duty. In our view, appellants had been convicted under section 324, P.P.C. without any evidence. From the prosecution evidence available on record, offence had no nexus with the objects of Anti-Terrorism Act, 1997 as contemplated under sections 6 and 7 of the Anti-Terrorism Act, 1997. Therefore, evidence available on record makes it clear that encounter had not taken place. Above stated circumstances created doubt about the very commencement of the encounter. 18. It appears that the Investigation officer to conduct fair investigation in this case has failed as no independent person was examined in order to ascertain the truth beyond any reasonable doubts. The above stated circumstances in our view created serious doubts about the very occurrence of the encounter. The standard of the proof in such a 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 desirable that it should have been investigated by some other agency. Such dictum has been laid down by the Honourable Supreme Court in the case of Zeeshan alias Shani v. The State (2012 SCMR 428). Relevant portion is reproduced 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 afterthoughts 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." 19. According to the statements of accused under section 342, Cr.P.C., they were picked up by police on 01.01.2019 when they were returning from their places of work, and police demanded bribe from them and on failure to fulfill their demand, police implicated them in these false cases but such plea has been disbelieved by the trial Court without assigning and reason. No doubt, police officials as citizen are as good witnesses in Court proceedings as any other person yet, some amount of care is needed when they are the only eye-witnesses in the case. It is not on account of an inherent defect in their testimony, but due to the possibility that an individual police official in mistaken zeal to see that the person he believes to be a culprit is convicted, might blur line between duty and propriety. It is settled law that in the exercise of appreciation of evidence it is necessary as prerequisite, to see whether witness in question is not such an overzealous witness. It is alleged that the appellants were on motorbike bearing Registration No. KJT-6264, though the claim of the appellants was that they were not on the motorbike, while the police has failed to identify the ownership of the motorbike and has not produced the motorbike before the trial Court either. Such non-production of the vehicle of "terror-spread" puts last nail in prosecution's coffin. 20. Hence, we are also unable to rely upon the evidence of the witnesses with regard to police encounter for the reason that there was cross-firing for about 05 minutes but no injury/scratch was caused to the police party. The distance between police officials and accused was 10 feet at the time of encounter and none from the police party sustained any bullet injury and bullet marks on the police mobile also. Non-production of the arrival and departure entries of police station also cut the roots of the prosecution case. Accordingly, the prosecution has failed to bring home guilt to the accused as the evidence furnished at the trial is full of factual, legal defects and is bereft of legal worth/judicial efficacy. Therefore, no reliance can be placed on the same, in all fairness. 21. Omissions are always fatal to the case of the prosecution and tempering with case property could not be ruled out where the same was not sealed or the same were sent for chemical examination with a delay. Lapse on the part of the police is clear and admitted. Wisdom behind sealing the weapons at the place of incident is to eliminate the possibility of manipulation of evidence after the recovery of the crime weapons. In the circumstances at hand evidence of police officials does not appear to be trustworthy thus required independent corroboration, which is lacking in this case. Reliance is placed on the case reported as PLD 2004 Supreme Court 39 (The State v. Muhammad Shafique alias Pappo). 22. Needless to mention that while giving the benefit of doubt to an accused, it is not necessary that there should be countless 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". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749). 23. No doubt, the Sindh Arms Act, 2013 is enacted to curb the proliferation of arms and ammunitions and punishment for possession of any fire arm is extended to 14 years and with fine and rule for safe administration of criminal justice is "the harsher the sentence the stricter the standard of proof", therefore, for the purposes of safe administration of criminal justice, some minimum standards of safety are to be available so as to strike a balance between the prosecution and the defence and to obviate chances of miscarriage of justice on account of exaggeration by the investigating agency. Such minimum standards of safety are even otherwise necessary for safeguarding the fundamental rights of the citizens regarding life and liberty, which cannot be left at the mercy of police officers without production of independent evidence. It is therefore held that it would be unsafe to rely upon the evidence of police officials without independent corroboration which is lacking in this case. Consequently, in view of our above discussion, we form a view that appellants were picked up earlier by the police and later implicated in these bogus…

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