SANWAL @ CHARYA S/O RANA MUHAMMAD ISHAQUE (Appellant) VS THE STATE (Respondent)

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CERTIFICATE OF THE COURT IN REGARD TO REPORTING

9p L. h'i a 3171' tu '519 ^/^ t "-5 t'-*-, r\ "1 (t'-E tt <"*.*-^l v! 7L..

HIGH COURT OF SINDH

Composition of Bench: sd./D. B

Mr. Justice Mohammad Karim Khan Agha, M" 7., [, z'-17y, of, -(*tr.'

Date(s) of Hea ring

Decide on: ? l l\ -2019

(a)Judgment approved for reportinS: Yes t17

CERTIFICATE

certified that the judgment*/order is based upon or enunciates a principle of law */ decides a question of law which is of first impression / distinguishes,/ over- rules / reverses / explains a previous decision.

* Strike out whichever is not applicable

NOTE (i) This slip is only to be used when some action is to be taken.

(ii)lf the slip is used, the Reader must attach it to the top of the first page of the iudgment.

(iii)Reader must ask the Judge writing the Judgment whether the ludgment is approved for reportinE.

{iv) Those directions which are not to be used should be deleted.

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q?i'j I\ TIIT- HON'ITI,E HIGH C]OTiRl'OF SIND H

A'I'KARACIII

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\1.\\.T L ..1.I-IAS CHARYA

so R-\\{ }tuHAt\t\tAD tst{..\Q \!=- ::.,rdLrll. presently C:-:l::,1 rt Ccntral Jail.

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I IHF STATL

2- IIOYI]LE ANTI TI,]ITRORIST,T COURT NO. VI,

[{R.{CH I--------- LESPONDIN.IS

(l ) sPL.c.{Str :\iO .-190 (iii)i2it 5 r.- t No.259i2012 trs 302/-1,t PPC lu\l Section 7 ATA t 997 I'.S. Srdda r Kn rach i

,\I'I'IIAI, T]\DER: SECTION 25 OF

ANTI TERROITI SN,I ACT. I997

l- -; rggricved and dissalisfied hy the judgment datcd 2l Oct 20lB :: thr., ,.\nti i!-rrorisrn CoLfl No VI KARACIII. lr is mosr --. praved on behalt ol thu appellarrt, abovc nanlcd. that this C..-:i nla) br' pl"'ased to :et aside rl.rc judgnrenr I)arrrl :l O( T l0l li ie \nti-lerrorisnl Courl No 06 .Karachi ln Snecial Case No F, i-:Cer section 302,'i1 I,l,C ltlw 7 AIA 1997 I,.S Saddur ti.: ll the appcllant rindcr the l'act and circumstances t- t

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IN T}IE HON'BLE HIGH COIJRT Ot. SINDH 79r:N A't I(AR{CHI SPh('lAL A IA Apt,EAL NO ot:ulE

SAN}V.,lL ALIAS CIIA R'I,A

.S() ]LINA [IUHA}ITIAD ISHAQ

l\fuslim.,rdulr, pr<scnrlr Corfi ned,rr Cenrral .leii. Karachi-------------- APPIiI,I,ANT

v I ti.s t.rs

I TIJI. ST,,\ I'[

2 HON'BLE ANII TERRORISl\,1 (]0I I{1 \o. vl, I

K Afu\C IJ I RIiSPOND[.N'l S

(l)SPL. Case No.3 t 8 (iii) /20 r5 FIR NO.2l6 i2015 U/S 4r5 llxplosive Subsrance Act R/w Section7AIA 1997 P,S.CTD/OpS, Karachi Sindh APPEA r.tNn I]R SECT ION 25 OF

AN'[I T ERROIII S]VI ACT 1997

Ileing ag,{r'ierecl lrrtl dissuristlcd hv the.iudgrnetrt thrcrl l--l Ocr l0lS nassed by the Anri fouorisn (.ourt No \l Kr\ltAClll. Ir is nrosr respectfully praycd on behalf ol the appellant, above named. fiat rhis Hon'ble Coun may be pleased to set aside thejudgncnt Dated 23 OCT ?Ol8 Passed by the Anti-Tenorisnt Court ).lo 06 ,Karachi In Spccial Case Case l{o 318(iii)i2015, under section 4r,5 Explosive substance act RnV. Section 7 fA 1997, P.s. CTD/OPS, Karachi Sindh and acquit the appellant untlcr facl and circuntstances mentiolrcd bclow:-

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IN THE HON'BI,E HTGTI COURT OF SINDH

Z\T KARACHI

SPI:CIAL .A IA APPI:AL NO 3 /Ll oF l0l 8

SANWAL ,{LIAS CHAITYA

S/O RANA IlIUHA}I}IAD ISIIAQ Nlustirn. adult. plesentll- Confined at Central Jail, .\ t,Pl..l-l.AN l- I Karachi-------------- .l*'.

VTRSL S

I.TIIESlATt

2.IION'BLE AN1'I TERRORISNl (]OLJR T NO' \'I, KARAC I ll---------- ---------'------------RnsP()NDENTS

(l)SPL. Case NO 3l9 (iii) i2015 FtR NO.l l,(/2015 t.trS 23 (l) A S.A.A.

P.S.CTD/OPS. Karachi Sirtdh

APPEAI, UNDIlR SEC TI()\ 25 OF ANTI TI]ITROIIIS N'I AC'r. 1997

Ileing aggricverl and dissalisl'iecl by thc judgmcnt dated 2l Oct 20'18 pessed by the Anti 'terrorism Coun No VI KARACHI' It is most

rspectl'ully prayed on bchalf 'rf the appellant' above named' that this lbn'ble CoLrrt ma,,- be plcased to set aside the judgment Dated 23 OCT ed br' the Anti-Terrorism Court No 0(i .Karacl'ti ln Special Casc No 9(iii)i2015 under section :i(l) A.S.A.A PS C'tD'OPS Katachi Sindh acquit the appellant under the lact and circumstances mentioned

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on jrcE olj Tlll, lul)cl . ANl l-ThRR ()lt tstvl c()u B r I!o: vi.xa84cuL Nor ArC-VI/ K-DIV/ J;iz or:otu Kara.hi (iatcd: 2i l0-2018 To, tNllaRc 1Ct The Registlar BQAi.tC r.l Honorable High Court of Sindh Dt\t -.Q.

Kara(hi. :'.-,i:.. i .. , .;11,/

subiecE- REFERENCE FOR CONFIRMATION OF DEATH SENTENCE u/s 374 CRPC IN SPECIAL CASE NO 3eO (Irl) OF 201s, rln No' 259 or zols, uts 302/34 I',PC OF PS SADDAR, KARACHI'

Respected Sir, \{ith refercnce to thc above notcd subie't mattcr, I have the honor k) submit that in the Special case No.390 (lll) crt 2015, FIR No'259 oI 2015' u/s 302/34 PPC oI PS Saddar Karachi, iudgment passed thercon b,v the undersigned vide judgment clated 23'J O.tober 2018, against accuseJ namelir Sanr"v'al alias Charya s/o Rana Muhammad Ishaque, who has becn convicted and scnte[ced a5 under:-

1.Accused Sania'al alias Charya s/o Rana Muhammad Ishaque is convicted u/s 7(lxa) ATA 1997, r/w section 302 (b) Prc and he is awarded derth sentencc, to be harrged till to his death, lvith comPensation ol Its 2tl0'000'/' (T\a'o Lacs) to be Paid to the legal heirc oi the victim 2. Accusecl Sanrval alfus Charya s/o Rana vluhammad Ishaque is also cLrnvified u,/s 4/5 exPLosive substance act l9t|8, r/w se'hon 6(2)(ee) and punishable u/s 7(1)(fi) oi Anti-Ierrorism Act 1997 & 7 (2) of Anti- Terrorism Act 1997 and he is sentenced to under8o RiSorous lmprisonnent of l4 years and forfejture of his prc'pcrq ' 3- Acctrsed Sanwal alias Charya s/o I(ana Muhammad lshaque is rlstr convicted u/s 23(1)(A) Sindh Arrns Act of 2013 anLl he is sentcncetl to unrJerg,o for I(.1 07 vears and with firrc of Rs.10,000/- ancl in casc of rlclault in Paynlcnt of the fine lhen he shall suffer a Sirnple ImPrisonment ol another 6 ulonths Thc recotd arrci the proceetlings of th!' cas(: are submitted lor (]harva as required conJirmation o[ dcath scntence ot accused Sallwal aiias u,/ s 374 Clr.P C

i Karachi, D.rte!1:-23 10-2{llli (MUNIR I'AKHSH BHUTTO) Judge i Arlti- lcrrorism Coult No_VI, Karnchi

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IN THE HICH C OURT OF SINDH AT KARACHI

Special Cr. Anti- lerr()rism Appeal No 312 of 2018 Spc.ialCr. Anti-Tcrrorism APPeal No.3lj of 2018 Special Cr Anti-Terrorism APPeal No.ll4 t)f 2011] ( onlirrnrtron Case No l5 of 2ll'18

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,\lohdrrntni Knti111 illr. Iutti.e Z l5.rrr.'i

Apt)cilant Sanvral alias CtDrya through Mr. Qadir H'rss.1in KIan, Advtxrate

Itcsp(,nrlent I he State through Mr. Saleem Akhtar Buriro, Additional Prosecutor C;cneral Sin(lh

Date ol heaflnli: li 11.2019 and 14.tl 2019 llate 0i nnn()un.crrlont: :/ 11.201(l

JUDGMENT

Mohlmmad Karim Khan Agha, J.- Appellant Sanwal alias Charya son of Rana Muhammad Ishaque has preferred the above apPeals against thc impugned judgment dated 23.10.2018 passed by the learned ludge AntF Terrorism Court No.vl, Kara.hi in SPecial Case N(,.390(lll) of 2015, F I lt Na]25gl2ll'l2 tt/s.302/31PPC r/w section 7of ATA. 1997, n"gistered at ItS Sadtlar, Karachi, SPecial Case No.B-318(lll) of 2015 F'l.R No216/2015 u/s.4/5 Explosive Substance Act read with s(ti(,n 7 oI ATA, 1997 registered at IrS CTD/OI5, Karaclx Sildh, and SP€cial Cnse No B-319(tll) of 2015 FIR No.2l5l2015 Lrls.23(1)-A, Sindh Arnrs Act of 2013, rcgistercd at I'S CI D/ol's, Karachi Sintlh u'hereby the appcllarrt has been convidcd and scntenced as underi

i)Accused Sanwal alias (:harya s/o Rana Nluhammad Ishdque is convicted u/s.7(1xa) ATA 1997, r/w Section 302 (b) PI'C and he is awarded death sentence subje.t to c()nJirmation by this court with comPensation of Rs.2,00,000 (T\a'o lacs) to trc paid to the legal heirs oi the f i.tim.

A.cused Sanwalalias Charya s/o Rana lvluhammad lshaquc ls convicted u/s.4/5 ExPlosive Substance Act, 1908, r/w section 6(2)(ee) and Punishable u/s 7(1)(ffl of Anti- I errorism Act 1997 & 7 (2) of Anti-Tern)risnr Act 1997 and he is sentencetl to undergo RiP'prous ImPrisonment for 14 't Vears and forfeitue o[ fus proPerty.

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iii)Accused Sanu'al alias Charya s/o Rana Mulrammad lsha<1uc is corrvicted u/s. 23(1XA)Sindh Arms Act ol 2013 arrd he is sentencetl lo undcrgo R.l. for 07 yeals and raith fine ()i Rs.10,000/- and in case oi default in paynrent of the iinc thcn hc shall sulfer simplc imprisonment oi anolher 06 months.

AII thc s( ntcn(r$ bv r^,.1v of imprisonmtl)t shall

2.lhe bricl facts of the prosccution.asc wilh r€llard to murdcr are that \^'ith refcren(e to roznamacha entsy 37, ASI/Duty Olficer Tariq l\,lefunood after conducting the proceedings u/s.174. Cr'P.C recordcd the statement u/s. 154 Cr.lJ.C of .omplainant l"'lst. Tahseen Fatima tv/o Jahanglr Hussain, which was incorPorated in FIR 1.\o 259 of 2012 at about fi)30 hours, stating therein that she is a housewife, rcsiding in House No.A/299, Blotk IL North Nazimabad, Karachi and bel("rgs t(, Shia sc.t She rvas prcsent rn her hr.rme, at about 2145 when she was inlornred bl' Jinnah Hospital over mobile Phone that her hustrar,d had been shot t1ear1 bv unkiown per$)n (Persons) antl his tlead body Was lving al linn,rh Hospital, Karachi On receiving such injormation, she arrived at mortuarv of Jinnah Hospital, where the dead body was lying. tler husband worked in the Summit Bank, I. I Chundrigar t{oad, Karachi and uscd a mok,rcycle for conveyance. She furth$ came to know that uhile returning home from the bank at 2100 hours, some person/persctns had killed hinr by firing a shot in his head. Her claim is against unknctlvn Ixrson/PeIslrr1s for conuritting the murder of her husband Jahangir }lassan. ASI Tariq Mchmood met \/ith MLO/ Dr Kaleem, after getting Permi\sion, .onducted the proceedings Q/t. 174 at.PC, obtained PM NO%3/12, cause oI death, sealcd bundle of parchaiat, blood stained earth alrd other articles. ASI'laliq Mehmood handcd over the dcacl trod,,- of tht deceased to the complaina^t and then the FIR was lodBed. AJter rcgistration of thc case, the iritial invcstigation lvas enirusted to I'I/SIO Nluhammad Riaz, who.rbtained the paPers, Prh-eedings u/s 17'l Cr'P.C., Plvl rePort, rneml' of seizure, blood stained motorcycle No.KBD-5173, one emPty and helmct of the dereaserl, which $'ere se.u.ed/sealed by ASI Tariq Mehmcx ' PI/SIO },l'rh&ntmad Riaz prepared visual sketch of tle place of incident and took photograPhs of the deccased and the place oi incirient' lle als'-t lecorded statements u/s 161 Cr.I'.C of the P!Vs. On 10.10.2012 hc stnt thc parchajnt ol the deceaserl .tnd blood soaked carth lcr

4zt

analysis/report. On 15.10.2012, he hancled over thc motorcycle ot the deceased to Abdul Razzak s/o Muhammad Ramzan. He also obtained the nrobile data of thc dc(eas€d as well as the chemical and FSL rePorts. Alter that he submitted thc report under clas,s A. On 10.07 2015, Inspector Saiiad Ali, intcrogatetl the accuse<l San,,r'al alias Charya, the a.cuse(l disclosed hin involvement in various cimcs ()t different Poli(e stations t'l Sajjad inforr[ed those police stations over telePhone.

3.On 12,07,2015, lnspector lavcd llultsain Shaikh intcrrogated accused s€nu'al alias Clurya, who disclosed his guilt in the instant offen.e, therefore, he u'as formally trfiested in the instant erime on 13.07.2015, PI Javetl Hussain Shaikh tiled an apPlication befor€ Court oi IVth Civil Judge & rudicial Ntagistrate for reoPening thc crime bca ng No.259l2012, which was accorded. On 15.07.2015, the l.O lrad visited the place of incident on the pointation ol the accuserl and preparcd such mcmo. On .10.07.2015, the investigation lvas entrusted to l.O,/ Pl Imtiaz Alrmcd vide order (iat€d 31.07.2077 He obtained the Ct{O o[ accusecl san'wal alias Charl'a and sent a letter to FSL for the PurPose of matchirr8 empty with weapons ret-overed from accused Sanra'al alias Charya Hc obtained the rcport of FSL as similar \a'ith the retovercd wcaPon bearing No.CAG-29502 of FIR No.215/2015. AJter comPletion of investigation, ht submitted the challan t,etbre the Court of Ialv against the accused Sartwal alias Chart_a so as wcll against co-accused Rohan Ali alias Bhatti Silo Mubarak Ali and Rashid Qadri S/o. urrknown ta'as Put in column numb€r tra'o \a'ith blue ink, v,hich was accePted on 19.1t| 2015

4.The bricffa.ts of the prosecution case oI FIli No.2I5 and 216 ot 2015 drc th.rt 5lP Muhamnrnd Sdlecnl lo(ltscd FIR No.2l5 and 216 of 2015 u/s 4/5 Explosive Substancc A.t, 19m and u/s 23-'1-4, Sindh Arms Act, 2013 at CTD/oPS, Karachi, stating therein that on 10.07 2015 he during invcstigation oI accused Sanwal aliac Char,ya. who was already under anest in FIR No.201/201'5 u/ s353/324/?A PPC and FIR No 20212015 u/s l2-1-A, Snrdh arms Act,2013 of PS CTD Carden Simlh, Karachi during interogation accused Sanwal alias Charya dis.losed that he was affiliated with thc banncd organization Sunni Tehre€k and had buried arms and ammunition belonging to Suni l-ehreck in a PMT R(x)m (,I KF-s -: and (outd prl.,Llurr the On su(h dis.losure of the accuscrl,

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the complainant alon8 h'ith his staif, took the accused in polire mr)bile SIa3337 and on lhe pointation ot the accused the Policc arrived rn the jurisdiction of I5 Risala Meat Market near |anria Masiid'e-Khizra (Haree Masjid), on 10.07.2015 at about 0010 hours, wl,ere the Police mobile was asked to stop by lhe accuscd.'lhe accused then led tht' Police party inside a room ol KESC and took out a ke)', hidden underneath a watcr PiPe, unlocked the dnor and entered into the room, where PMT/ transfornrer laid on the ll(xrr. After rcmoving a.emented slab, fron1 space like du(t shape, two feet u,ide and three feet in deplh, a kit-bag green and golden (olorcd, whidr contained, 1) 12 bore repeated irlscribsl "EXI'ER'I NI-ilV MODEI- KHYBER ARtvIS CO. PFSHAWAR", 2) 12 bore rePeateJ inscribed "sguire!, Bingham", "12 CA2 CHAMBER 'IASIID" & "sQUIRIS BTNCHA\,{ MFTD BY AITMS COR]TRATION OF THE PHILIPPINESS", 3) 12 L,orc repeatcd inscribed "TRANS PAK", {) 12 borc rcpeater ias.ribed "Supcr Shahcen (N9)", 5) 222 bore tifle number 87167278,6) 222bote rifle 2712,7) 8 MM rifle number '1510673, 8) 'rumber rifle without magazine, number 39286), 9) 30 bore mouser h'ithout numbcr irscribed "MADF. tN PAKSITAN CAL 7'6llviNl 30 PISTAL", 10) 30 bor€ pistol numbcr CAC 29502, 11) 30 bore pistol r4'itltout number wrapped in blue lears labric w€rc recoverc-d 1) 4{ bore rifle semiautomatic, number FKK tt90080, 2) Kalashniko! rurnber 1975G3300i, without maSazine and oPening cover, 3) 222 rifle scmiaufomatic numlrcr A-9 9, 4), Kalashnikov number 19t5K8855, 5) Kalashnikov numbcr 10652, 617 MM rifle ra'ithout nr:mL.r-'r anti magazine markcd

"CAL TN1M

PAK MADI Semi Auto Automatic SPecial Giff',7) 1m live rounds of Kalashnikov, 22 live rounds of 44 bore, 30 live rounds of 3lJ bore, 50 live rounds of 12 bore rePcatel and one hand grcnade, embossed the words "22-851'3pr]ro-2" on its clip, were rec(,vered Due to n(tr1-avnilabilit) ('t privah,witnesses, SIP Ayaz Ahlned alrd I'C Khurshced w'ere nrade mushirs ol r€covcry and arrcst. fhereafter, thtr arms ind ammunltion wcre sealeLl separntel) in tv'o bags.lhe hand grenade tvas also takcn into safe rustody and mashir[ama o[ seizlrrc ol aboi'e n!flrs ammunition and arrest of accused rvas PrePared at the sPot. Subsequcntly, accused and case proPerq' werc taken to I+ and IIRS were registered. After registration of cases bearing FIR No.215 and 216 of 2015 the invcstigati(,n was entrusted to Pl Saijad Ali. lle inspectcd the Place ol recovcry and recorcted thc statement u/s 161 Cr'PC. of PWs He als() called the tsDU

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expert and obtained the report of BDU. He also irrterrogated atcuserl Sanwal alias Charya, the accused admitted re8arding the instant re(ovcry antl further disclosed his affiliation with Sunni Iekeck and involvement in murder, kidnapping and other heinous offences hidrin locat limits ol different police station-i. Ile iniormed such disclosures to thosc concerned police stations over telephone. I Ie sent arms and amrnunition to FSI- and obtained the report oI FSL. AftPr comPletion ot investiSation, ho submitted the challan before the court of law.

5.All the cascs were ordered to be proceeded by ,oint trial in terms ot section 21-M of Anti-Ter()rism Act, 1997 (ATA) by the thcn Presidinll Ofiicer, ATC-VI- Thc charge n_as lranrecl againqt the accused Sanwal alias Charya 10 tvhich he Pleaded not Suitty and clairned to be tried

6.Irr order to provc its case the prosecution exalnincd 11 PW's who exhibited various rlocumer'tts and other iterns in suPpoit of tht' closcd its sille 'l he accust\i Prose(ution case where alter thc Prosccution person rccorded his statement under 5.3'12 CI.PC l\'hcrcby he denicd 'rll the allegations leveled against him and claimed false imPli(ation Ht however neither cxamined himseli on oath nor P(xltrced anv r'vitness in suPport of his dcfense case.

7.Leamed Judgg Anti-Tetro sm Court-VI, Karachi, alter hea ng the Iearrrcel counsel lor thc Partics and assessmert t'f evidence available crn record, vide the impulped iudgment dated 23 10 2{}18 convicted and sentenced the appellant as stated above, hence these aPPeals have been sepa rateh, filed by th€ aP pell ant against his lesPe'tivu ct i'tn ns ts\' th is 'jnv '

.ornmon judgment t'e intend to decidc th. samc.

8.Thc facts of thc case as r'r'ell as evidence produced bcfore thc trial court lind an elaborate mention in the inlPugned iudgmcnt, thercft)re thc same are not reProdu(ed here so as to avoid (iuPlication and unnecessarv repetitiori.

9.Lcalnecl coLrn'ci tor the apl'ellant contl'ndcd b'ilh rcgnrd to thL' appell.lnts (or1\'iction li)r nrLrrillrr th.tt the 'lPPelldni !\ns ronrflctcl\ inno(-lnt; that tlle FIR was lodged bl' Irrs wriP rvhLr Llni nol tlive tvidcn(r' th.rt thc appellant's confession beiorc tl)tr Police B'as in'r(lmissiblc; that lherc was r1o e,ve lvitness an(l that in sllort the Prosecution had iailed k'

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prove its case allainst the appellant and that he should be acquitted o[ the charge by this court extending to him the benclit of thc doubt. Ltamed counsel lor the appeUant conteoded with regard to the aPPellants conviction under S-4/5 Explosive substance Ac{ 1908 and tlle sindh Arms Act 2013 that it 1',as not a case ialli^g ra'ithirr the purvieu, ol the AT.A; that all the PW's were police officiats wlTosc evidcnce could not Lre saltlv relietl upon; tlut there rvas no evidence that the aPPellant belongcd to nn\ batured group, tll.1t thc re(overl'was not linled to the a(cusell; that S l0:l Cr.PC l-rad been violated and the Prose(ution had failed to Prolc its.ase again-st him and that he should be acquitted of the charge bl'thjs cr)urt extending to him the t'enefit ol the doubt. In suPPort o{ his contcntions hc placed reliance on Mehr Ali and others v. The State (2007 P CT.LJ 187), unreported judgment in Spl. Crl. A.T. ApPeal No.07 of 2017 dated 2208.2017. Abdul Satta, and other6 v. The State (2002 l' (-r.l-l 5l), Tahir

Khan v. The State (20.1.1 :[MR 640, Cenbal l'rison. Hyderabad v. The Slate (1999 I'. Cr.l-J 595), Ashique Ali v' The State (2002 P. Cr I-l 450), Tariq I'ervez v. The State (1995 rNII{ 1345), Bacha zeb v. The stale (21110 S(l\'tl{ l18g), an unrepotted iudgment of HiSh Court of Sindh in Crimin.lJail Appeal No.10qP014, Criminal APPeal No,7l and 72 of 2014 dated 20.04.2016, Muhumad shah v. The State (2{110 fMR 10tR), shabbir Ahmed v. The State (2011 SCMR 1142), an unreported iudgment of HiBh Court of Sindh in Cdflinal APPeal N0.225 of 2016'

10.Learnetl AI'G half heartedlt- contended that r^'ith r€8ard to the murdcr case there was suffiaient ef idence to show that the Prosecution had pro\'!'d its case beyond a rtasonahle doubt against the aPPellant based on his coniession beforc the Poli.e; the rccoverv o[ the emPf' and the posilive FSL rePort and as such hrs conviction and sentence should be maintained itr rcspc(t of the murder casc and the aPPeal dismissed l-eamed APG, contended tllat with regard to the aPPellant's convictirx under S.4/5 ExPlosive substance Act 1908 and the Sindh Arms Act that the cases had been lully made out through the evidencc o[ the PW's; that there !,, as no violation of 5.103 Ci.PC as it did not aPPIY in ATA cases; that no li(ensc had been produced for anv of the weapons or alnmunition rvhjch had be'en recovered on the Pointation of th€ aPPellant and as such the appellant's conviction\ and sentences should bc maintained und€r S.4/5 Explosive Substance A.t 190u and the Sindh /\rms Act ?013 and his

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4cs appeals dismissed. ln suPPort of his conlentions he placeel reliance on Santas Maria Teresa v. The State (1991 lvlLD 2576), Muhamnlad Hanif v' The State (2003 SCMR 1237) and Muhamned Arif V State (2(J03 l'SC (Crl.)e28)

11.'Ihe record reflects that numerL)us efforts were maJe to s!r!'e th( complainant ho 'ever !vithout success and since the aPpellant is Ia'inB tl1(' death senten(e we have Proceeded wilh the maher with the APC reprcsenting the interests of the comPlainant

12.We have heard the atgurnents of the learne''l cr'unsel for tlte partics, gone through the entire evidence which has bcen read out by the appellsnt and the irnpugned iudgment with their able assistan(c and have considered thc rclevant Iaw including that citcd at the bar'

13.!!e shall deal with the appellant's conviction t-l/s 302 PPC for murder anrl un.l€r S.4/5 Expk)sive Substances Ad 1908 and the sindh Arrhs Act separately as also the seations referring to the ATA Turning lo thc aPp€llants (onvi.tion ry's 302 (b) !PC for nturdcr'

14.In our view after our reassessmeot of the evidence bascd on the evidence o[ the l'olice Pw's including the lO, the PW NiLo, Post m(xtenr reports and other medical cviden e we are satislied that the plosecution has proved beyond a reasonable doubt that on 0910 2012 at about 2100 hours at CDGK Parking PlaT-a. Karachi Jahanghir Hassan (the deceascd) was shot and murdered bv firearm.

t5. The only issue thcrefore lelt before us is whether base'l thc ('n evidence on record the aPPellant has the Person who murdercd the

16.ln our view afler our reass€ssment of the cvidence we find that the prosecution has not b€en able to Prove bevond a reasonable doubt that the

appellant murdercd the d$eased on the above mcntioned date' time and place for the following reasons, lhat admittedlv there was no eye wihcss

to the murdcr, that rhE aPPellant's conlcssion before the polict' is inadnrissibie an,,l wds in.rny c1'enl rehactcdi turning k) the circumstantial evidence against the.lPPcliant even this is 'omPletdy lacking in that no

PW could even put the aPPellant in the location of thc murde! on thc datc

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timc and place; that ihere was no last seen evidencc; that the recovery of the empty alone even with a Positive FSl, rePort is only supportive/cnrroboratory cvjdence ia'hich is insufficient hr convict the appellant on its own especially as the alleged fturder wcaPon was recovcred a numb€r of yearJ ajter the iircident and there is no evidence that the recovered empty was kePt in sale custody throughout this three year peliod; that again thc medical evidence is onlv supportive r'rr coroboratory of direct evidence and can only tcll us. amongst othc! things, the caus€ of death of the deceased and Possiblv whal kind of weaPon,/instrument caused the death oI the deceased. lt cannot tell us v,'ho murdered the deceased. Thus, even the very limited circumstantial evilence rvhich is available is insufficicnt to meet the legal requirement oI convicting an accused based on circumstanhal cvidence being that it nrust link the bod,"- of the deceased to the neck oI the accuscd throu8h an unbroken chain of evidence lcadin8 to the inJerence that the dccused l^/as thc only person who could havc murdered the dc'ceased which as mentioned earlier is badly lacking in this case- In this rcsPcct reliancc is placed on Az€em Khan and another v' Mujahid Khan and others (2016 SCMR 274) and wazir Muhammad and another v. The State (2005 SCNIR 227).Thus, since there is neither any dilect otal evidencc against the appeltant and what littlc .lrcumstantial el idcncc lhere ma)' be is insufficient to Iink the accused to the murder o[ the deceased we herebY acquit the aPPellant (,f thc charge oI murdering the dtreased under S :102

PPC,

TurninB to the apPeltant'3 cotviction undel S.rys ExPlosive Sub6tan(e Act 1908 and the Sindh Arms Ad 2013'

17.[n our view aJter our reassessment o( tlt evidence rve find that the prose(uhon has been able to Prove its case against the aPPellant beyond 'r reasonable doubt that he comnitted the offenses unde' S'4/5 ExPlosive Substance Act l90tj ancl the Sindh Arms Act 2013 for the followirrg reasons; thit although the aPPellants confession about ha! inB hiddcn ih€ arms, ammunition and grentld€ i5 inadmissible the fa't that the apPtllant iead the police to the carlre of arms, ammunition and the grenade is highly signifi(ant b.sed upon th€ Particular facts and circumstances of the cast' 'ltis is bccause the Police would have had no idea wherc such cachc of arms, ammunition an,l gren.ide were hidden; that tho ca'hc of arms'

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ammunition and grenade n'erc rcally well hidden in a prolessional and organized manner being at the back side of the IrMl Roonr ol KF,5C' where the key was hidden under a concrete PiPe and on entering the PMT thc cache of arms, ammunition and gtenacle were hidden undcr con'rete in such a manner that anl'thing vYhich was hidden under the ..oncrete ra'as not discernibLc to the naked eye; thdt tlre Iirrge amount o[ i\'caPons and ammunition rvhkh lvas recovered was too large to have been froisted orl the appcllant and even the Police would not have had $uch an array o( weapons readily available with them; that iI the Police wanted to fix the appellant in a false arms case they coulcl have simplv Planted a Pistol on him without Boing to such bother which dcres not aPFeal to reason, logi' or commonsensei that both deParture and arrival entries havc been cxhibited along with all other relevant Police cntries; that all the recovered weaPons wele correctly recortled and idenhfied by descriPtiol and in many cas€s numbcr and marking in the mashirnama of recovcry' that tlre (xr t)rc PW's (l'!V 7 Ayaz Ahmcd Khan and I'!V 9 lvluhammed Sahen, recovery of the cache of armt ammunjtion and Srenade 'orroborated each other in all materiaL resPects in thcir evidence and therc ar€ no material conBa.lictions in thei! evidcncc as pould caste ary doubt on the prcsecution casei that it is wcll settled b)'now that thc cviLlence of Police witnesses is as 8oo.l as anv other witness provided that no iU $'ill' enmit) or personal interest has been shown between them afld the aPPellant and in this.ase theie is no evidence of ill will, enrnity or Pcrsonal interclt ott the part of the Police againsl the aPPellanl; that lhe 'ache of arms and anununihon wcre sealcd on the sPot and were kePt in safc custody at the nulkhana bl:{ore bein8 sent for ISL rcPort whi'h was P()srt've; that bas('d on the particular facts and circurnstances ol the case the violati()n ol Cr.rc in our view is tnconsequential as a|0010 hours at night there was nobodl arountl who was able, Iet alone willinS, kr be mushir and even otherwis€ thcrc is no such requirernent under thc A_l A and the Sind Arrns Act; With legard to the retover)'of lhe hand grenade this was also re(overcd at the spot along with the arms and ammunitio^; and it was also ir$pe.te'l by the BDU expert u'hich showed it as bein8 of an explosive substance which h'as reatly lor use' ln our view tht sam'

conditions aPply as to its recovery as for thc cache of arnrs and ammunition ar'rd in our viera'based on the above evidence after ou! re assessment ol the same i1'e ate satisfied that thc Prosecution lus Prol'ed its

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case teyond a reasonable doubt in conncation with the appellant havirr8 been convicted and serrten(ed in thc impugned judgmerrt lor o(fenses under S.4/5 Explosive Substance Act t906 and the Sindh Arms Act 2013 and as such these sentenccs and conviction-s in the imPugned judgment are upheld and maintained subject to the convictions under the ATA bein8 delctcd as we hal,e not found these offunses to come within the purview of thc ATA based on the particular facts and circumstances of the In sumrnaryi

(a)The appellant is acquitted oI the.hargc ! s.7l"L\(a) AT.\ 1997, r/ w Scciion 302 (b) PPC and the conJirmation relercnce is answere(l in the negativc and in respcct oI this offeisc the aPPeal is allowed.

(b)'the appellant's conviction a[d scntence u/s4/5 ExPlosivc Substance Act.l90u is upheld and maintained and in resPect of thi\ offcnse the appeal is clismissed.

(c)The appellant's .onviction and sentcnce u/s. 23(l)(A) Sindh Arms Act of 2013 is uphcld and maintained and in respect oI this offcnsc the appeal is dismiss€d.

(tt)That Ore appellant is acquitted in resPect of anv <rtfense falling under the ATA

(c)All sentences ot imPrisonment 5hal1 run concurrently and thc appeilant shall have the benefit of s.382-B cr.PC.

18.I[e appeals ancl confirmation rcl.rcnce stand (lisPt)sc!'i of In tht ]v / uLrfL

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