Muhammad Farooq & another (Appellant) VS The State (Respondent)

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Jail appeal No'D-03 of 2015'

Present. Mr. Justice Naimatullah Ptutlpoto' Mr. Justice Shamsuddin Abbasi'

Iior hc arins of aDu lication U S 426 Cr.PC I For orders on M.A No.4644/201 I (B.A) 2 For hearing of main case.

D:rte of hearine 03.07.2018.

Derte of Judgment 03.07.2018.

A ppellants: Mohammad Farooq and Zeeshan Ahmed through Mr. Abdul Sattar N'Soomro Advocate.

liespondent. The State, Through Syed Sardar Ali Shah

D.P.G.

JU DGMENT

Shamsuddin Abbasi J:. Appellant Mohammad Farooq and passed by Zeeshan Ahmed have assailed the judgment dated O7'O1'2015 Special Judge Anti-Terrorism Court Khairpur Mir's Appellants were tricd

in Special Case No'04/2O13 Re- State v' Mohammad Farooq and another arising out of Crime No.232l2Ol2 offence under Sections 3/4 Explosive at Substance Act, 13(e) Arms Ordinance and 617 of ATA, 1997 registered Police Station, Gambat. The learned trial Court has convictcd thc appellants for offence under Section 4(b) Explosive Substance Act'1908 and awarded sentence them to suffer R'l for life each and to pay fine of Rs.50,OOO/- each and in case of default in payment of fine it was ordered

that they shall suffer further R.l for 06 months each' They were also convicted under Section 13(e) Arms Ordinance and awarded sentence of fine them to R.l for Seven years each and in case of default in payment they shall suffer further R'l for two months each They wcre als<r convicted under Section 7(b) of ATA, 1997 and senlence them to suffcr

R.l for Life each and to pay [ine of Rs'50,0O0 I - each and in casc of p default in payment of fine they shall suffer further R'l for 06 months'

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Ho*,ever, benefit of Section 382-8 Cr'P C lvas extended to borli the shall accused and it lvas ordered that sentence arvarded to the appellant run concurrentlY.

Tl-re briel facts of the prosecution case are that the

cornplainant Inspector Asad Nabi I{l-richi rvas or-r patrolling duty on reached 19.12.2t 12 at 2l0O hours, along with his subordinate staff ernd near Makhdoorn Gate of protection bund o1 Natiol-ral Highway it n'as rvhcn the about 1915 hours, he sal,v a car coming liom Sukkur side and turned his car Police party can-rc infront ol car, the driver of car suddenly lollowcd them tou,ards Eastern side and tried to escape but Police party being suspicitlus car and they succeeded to stop the car nearr in Makhdoom oate. Police party searcl-led the person rvho r'r'ere sitting cxplosive the car ancl so also taken the search of entire car and rccovered of above said sllbstance and ammunition. The SHO prepared the memo and recovered property in presence of mashirs namely ASl l\4azharr'rddin ers iVlohammad PC l l.rdi Bux. 'lhe accused persons disclosed their names search Rs 30oo/ Fart>oque and Zeeshan Ahmed and from thcir personal and cNlc and cNICN from accusecl Mohammacl Farooque nncl Rs'500/- both from accused Zeeshan Ahmed were recovered The Police brought whcre tl-re lhe above said accttsed and recovered property at P'S Cambat SI-IO registered the FIR and investigation \^'as handed over to Inspector

submittcd Mohzrmmad Azeem Pathan n'ho alter completing investigation ch.rllan in the Court.

After usual investigation Police submittcd challalr against Lhe appellants in learned trial Court'

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3.The learr-red trial Court framed chnrge zrgainst the accuscd Dx.03 but thev did not plead gr'lilty and claimed lor trial' \.\r' r\r.'

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4.The prosecution in order to prove it's case has examined PW-1 Inspector Asad Nabi Khichi who is complainant of the case and was examined at Ex.05, who produced memo of arrest and recovery and copy of FIII bearing Crime No.232l2Ol2. Prosecution has also examined PW- 2lSlP Mazharuddin Khuhro who was mashir of the case and was examined at Ex.07. He produced memo of sealing the recovered case property viz. K.Ks, Flyers Rocket cartridges etc' and memo of inspection of recovered Car and memo of inspection of place of incident at Ex'6/A' 6/ B and 6/ C respectively. Finally the prosecution has examined

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3/lnspector Mohammad Ameen Pathan who was I'O of the case at Ex 8' He has also produced technical report of Bomb Disposal Unit Sukkur and ballistic expert report at Ex.8-D and 8-E respectively' .) Thereafter, Iearned DDPP f<;r the State has closed prosecution sidc vide statement at Ex.09

6.Thereafter, the learned trial Court has recorded the statemcnt ol'accused Uls 342 Cr.P.c, at trx. 1O & 11, in which they have denied the allcgations levcled by the prosecution against them but neither they have

cxamined themselves on oath nor lead any del'ence rvitness in their del'e nce. However, they have replied to the question that t'hat you have

to say. They replied that they are innocent and on 19'12'2012 about 7:00 p.m. they were going to l(arachi for purchase a ncw car "vhcn thcy rcached near Gambat one Head constable stopped their vehiclc, r'r'hcr

took tl-re ir personal search ancl snatched Rs' 2OO0OO / - casi'r [l-o m accused Mohammacl Farooque. They resisted on that they brought to Police Station where they were presented before SHO Asad Narbi Khichi to

,,vhom they narrated the facts of incident but he has also not paid :tt-t-v \y l-rcecl on complaint ancl rvho booke<l them in lalse cases 'l'hey l'rLrthcr

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stated that no any incriminating article has been recovered from their possession and they prayed for justicc but neither thcy exatmined themselves on oath nor led any evidence in their del'ence 7 . 'l'he learned trial Court after hearing both the sides have passed impugned judgment whereby tl-re rippellants were convicted anr-l scntenced as mentioned above.

8.Learned Counsel for appellants have contendecl that prosecr-ttion evidence rests Llpon olTicial ',vitnesses' The mashirs ol lhe recovery are sub-ordinate staff complainant and they rvere highly interested. Fle l-ras further contended that prosecut.ion witnesses have tlt:t produced cleparture and arrival entries. He lurther contended that thc prosecution miserably failed to establish it's case on the point of salc custody of casc property as neither thcy have prccluced any Roznamcha cntr.v oI Malkhana nor examine,l Head Muharer of Malkhana. He furthcr contended that place of recover.y is situated in a thickly populatcd arcar on main roacl near bus stancl but complainant has lailed to associate any independent witnesses for allegecl recovery. I{e llrther contended Lhat incidcrrt ',vas taken place on 79'12'2012 at 7:15 p'm r'r'hich arc dark hours of the night in the montl'r of December and police has disclosed thc source of irlentification is head light oi the vehicle r,vhich is always trealccl as rveck source of identification. He further conte nde d that erccording t<r the proseclrtion rvitnesses weapons recovered lro tn the possession t>f appelltrnts r.l'ere u'ithout description anci their numbcrs were rubbed' llc further contended that appellants were belongs to Province ol K'P'K and how is it possible that they travelled from I(.P.K to the plarce of incidcnt lvithout number plate on the car by keeping huge qr-rantity of arms and ammuuition in a car openly. He further contendecl that thcre is tr

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material contradictions in the evidence of prosecution witnesses as r.l'ell as PWs have contradict the documents produced by them' He pointcd out that on one hand PWs have stated that recovered weapons lvere without any description and on the other hand they admitted this lact in cross examination that r,t ord A, B-oA rvere written over the l(alashnil<ov.

Ilc further contended that learned trial court has proceeded with this matter rvithout having jurisdiction on the point that offence does noL nexus r,r,ith the Section-7 of Anti-Terrorism Act, 1997 ' g. On the otl'rer hand learned Deputy Prosecutor Generzrl has argued that prosecution r,vitnesses have supportcd their cerse al-rd they have establishecl their case beyoud reasonable shadou' of dor-tbt FIe further contendecl that appellants were arrested from the place of incident akrng with huge quantity of ',veapons anci they were shifting the wczrpons to Karachi lbr terrorist activitics and he has supported the j udgment ptrssed by the learned trial Court.

10.Ileard learned Counsel for the appellants as well as learned \ Deputy Prosecutor General and perused the material available on record' IL We 1-rave carefully scaunecl the evidence of prosccutir>n rvitnesses which r,,'ere rest upon Inspector Asad Nabi Khichi, PW-2 SIP Mazharudclin and PW-3 Inspector Mohammad Ameen Pathan'

12.PW- l Asad Nabi Khich 'nvas examined by the prosec r-t tioI'r ' he has supported the case of prosecution but he has admitted thc lact that they did not stop any other vehicle except the vehicle of accused tle also admitted the f.Ict that place of incident is busy area li>r thc purpose o[ transport and situatecl near the bus stop at Nzrtionzrl I{ighway' IIc has also clisclosed that l-hey chasecl the accused party lbr about 250 mctcrs \,,v

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upto three minutes. He also admitted that the.v took 172 hour lor completing legal formalities at the place of recovery ' He furthcr adrnittcd thart they alighted first accusecl who rn'as sitting on driving seat at 1915 hours r,l,hereas mashirnama of arrest and recoveryr rvas also prepared at 9 L 5 hours. He aclmitte d that they clid not seal the property at the place

ol recovery. l-lc also deposed that during entirc proceedings no prtvatc pcrson came there. I Ie also admitted that case property w'as sealcd on 12.12.2012 at 03:00 p.m. at Police Station He lurther admitted that hc has not mentionecl the serial numbers of currency notes 'rs well ars clcscriptions of currency notes. Horn'ever, he has denied thc defcncc plca o[ accused that police have false implicated them in this case alter snatching Rs.1200OOO/- in order to ustlrp their amount' 1 3.We have also examined ttre <-'vidence o[ PW -2 ASI Mazharuddin rvho was cited as mashir of rccovery of zrrms and ammunition as well as mashir of sealing case property, inspection of rccovered. car and place of incident. This PW has deposed on LIte sarne Iinc as cleposcd by Inspector Asact Nabi l(hicl-ri' I-Iowcvcr' he has contradictecl PW- L lnspector Asacl Nabi I(hichi on the point of visiting areas during patrolling after cleparture lrom Police Statit>n and before rcaching at place of recovery. He has further contradicted ancl denied thc presence ol any bus stancl (Adda) at Makhdoom gate near the placc ol recovery. He also contradict thc complainant as complainant clcposcd that lirstly they got dou'n a person rvho u'as sitting n the driving scat' r-r

u,hereas l-re deposed that they got down both the accused [rom the car' Hc has also contradict the complainant on the point oi timc consumptiolt at lhe place of inciclent as complainant deposed [hat they had complctcd l

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i all the lormalities at the place of incident n'ithin one and hall hour

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15 minurcs u,hereas this PW has deposecl that they took one hours and prr)pcrl)' in ir-rqr-riring the names of accttsed persons and recclr"ery of case ancl therealter they completed all other formalities Fie also admittcd the

live bi-rllets [act that the mashirnama available at trx'6-A in rvhich 10O has been were not mentioned. He has aclmitted that rvord l{atchra mcnlioned ovcr the explosive substauce and same lact has not bccn

mt'ntioncci in the mashirnamir of rl:covcry of ct'tns irnd unlmunitiL'l')' ncithcr Florvever,he has atso admitted this fact that or-r the Kalashnikov ligure u'as any u,ord ABCD or any alphabetic lvord rvas r'r'ritten nor any tirat rvritlcn over the l(alashnikov but he on t1-re same time has admitted trdn'rittccl the rvord AB OA was u,ritten over the l(alashnil<ov. Flc has also lactLhatrangenumberll'asalsor'r'rittenovertheKalashnil<ovr'r'hichfi-rct as in m-v has not been mcntioned in mashirnama of recoverv as rx"ell statemcnt rccorded by I.O. uuder Sectior-r 161 Cr'P'C llc Lras aiso

H<lrvcvcr' .rdrnitled tl-rat lvorcl'S'is lr'ritten over one ol the I(alashnil<ov ol ()-3 hc has admitted the very important aspect of the case that empty at Lhe rille ancl en-rpty o[ 7 .62 bore present in Court were not recovered spot. He l-ras also adrnittecl thc fact thert thcre is one Katchzl J*".... roolrl

construcled ne.rr the place of inciclent ancl this fact has bL-en menti(rn('d

in mershirnama but not in a FIR'

L4.Wei'ravealsoexaminedthedepositionofPWoflnspcctilr u'ho dcposcd Mohamrnad Ameen Pathan who has inve stigatcd thc casc that on tg.12.2012 he $'as postecl as SIO at Police Station A-Section' Iihairpur and on the same day he received message on mobile th'rt some

dirccted to tcrrorist hacl been ilrrested by thc Gaimbat Policc and w'as reach at Police Statior-r, Gambat thereafter he rtached at Police Statir)rl

anr.l rece ived the copS'' oI t'-lR along rvith marshirnama of arrcst of accLtsr:d \ w

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and recovery Iiom SHO Police Station, Gambat. Ile llrther deposed tl-rat in the meanwhile officials of bomb disposal Unit also reached at Police Station headed by lnspector Tahir who delused explosive material and issued lettcr to them. Thereafter he received case property and prepzrrcd rnashirnama of ir-rspection of Car in presence ol said mashirs anci recorded tl-re statements oI witnesses. I-{e also visitcd the place oI incider-rt on the pointation of complainant and prepared mashirnama ol place o[ incident. He has sent the case property to ballistic expc]rt aftcr getting permission from SSP aud after completing other formalities he:

has submitted the challan on 03.01.2013 in learned trial Court. LIe rvas put on lengthy cross hou,ever, he has admitted this lact that he had not dr:posrted the case property in the N{alkhana r>l' Policc slation. llc I'ras further admitted that case property was availablc in the oflice oi SI]C) r,,,hen he received it. I{e also admitted that hc hacl not mentioncd thc lirct ilbout the presence of 100 live bullets in I'ris mashirnama for sealing rhc (:asc property prepared bv hin-r on 20.12.2012. Horvever, he has also :rclmitted that word made USSR rvas r,vritten over the flyer cartridges zis ts-. rvcll as o1 12 livc detonators in the technical report. He has also trdmittco lact tl'rat word made USSR u'as zrlso r.vritten over the emptir:s ol de tonartors. []e has also admitted this lact thal he has rcceived Iialashr-rikov u.ithout number, without zrny mark and nothing r,r'as wriltcn ovcr the Kalashnikov burt he aclmitted tl'rat Kalashnikovs prcsent in CourL rvord AB & OA r.l,ere r.vritten over one Kaiashnikov. IIc has nlso adrnitti:d the departure entry was not produced in trial Cour[.

1 5. After scanning the evide nce of PWs wc have come to the conclusion that it is admitted fact that place of arrest and recovcry \\ras situated in very thickly populated area near the ltr-rs stand but ['Ws havc bF

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<leposed that cluring whole process of recovery and arrest which wzrs completcd in more than one and half hourr ncithcr any passengcr carIC thcre nor any private vehicle crossed them r,vhich is very hard t<l belicvc lor any prudent mind to accept this version o[ the complainant ll'hen thc time o[ recovery u.as 7: 15 p.m. which are not odd hours o[ the night ancl particularly rvhcn it'dras ncar the br-ts stand on National Highrvay. Tllerc is also contradictory vierv in respect of cleposition oI cortplainant, mashir, and I.O. in respect of presence rif one constrllcted katcha room near the place of incident as per FIR ancl mashirnamzr and deposition ol cornplainant ancl mershirs. 'l'hc place t>f rccovery u'as shol','n on road ancl lro presence o[ any building llas been sho',vn nenr the placc of rccovcr-v but mashirnama of seeing place of incident sho"vs that thcrc u'as onc kalcha room situated near the place ol incident and this lact has been put r.lp by the learned counscl lor accusecl during cross cxaminatiol] to the complainant in rvhich he has admitted that he hars not mcntit>ncd d-tc presence of katcha room at the place of incider-rt ir-r the mashirnama ol I arrest. and recovery.

16.It has also becn admittcd by thc complain:rr-rt in his cross examination that 1O0 bullets of I(.Kovs r,l'ere sealccl at the spot and ntll hancled over to I.O. PW has also adn-rittecl this fact that they have n"rl given the denomination of currency notes in mashirnama of arrest and recovcry. There is also contrardiction in rcspect tlf arrcst o[ ztccuscd pcrsons as complainant stated that lirstly t.hey got. down thc pcrson u'ht'r rvas sitting at driving seat thereafter they goL do',t'n a person r'l'ho \r'as sitting on front seat o[ car lvhercas mashir statecl that they got dor'r'rt both the accused at once frort czrr and then inquircd their namcs and :rdrlresses-

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17.The prosecution rvitnesses have lailed to establish their case on the point of sale custody as they have failed to produce any entrv of Malkhana register and they hzrve also failed to examine inchiirgc of M:rlkhana even prosecution has not becn examined the l"'itness "vltt> brought Lhc case property to forensic Laboratory'

18.The arppellants havc taken plea that thc5r r'r'ere goinll to purchtrse car from Karachi and they possessed Rs' 12OO'000/- ctrsh in their vchicle and police in order to usurp their m<>ney ernd lalscly implicerted them in this case. [t is matter of record that neither thel' have

examinccl themselves on oath nor producecl any delence witnesscs' It is primary clutty o[ prosecution to prove iL's cnse br-rt in this casc prosccLttitlu failed to prove it's case by cogent cvidence'

19.It is rvell settlecl la\^'that the police u'itncsses arc as good ais other public witnesses and their statements could not be clist:ardcd merely for the reason they were the Police employei:s 'lhc policc

employees are the competent rvitnesses like any other indepcndcnt u,itnt:sscs and thcir testimony c€lnnot be cliscardecl mcrcly on thc grtlund that they are the police employees as laid dtru'n in the c;'tst-' o1' r'' Mohammad Azam v 'lhe State PLD (1996 SC 67), Mohammad llar-ri[ 'I'he Stzrte (2003 SCMR 1237), Riuaz Ahmecl v 'lhe State (2004 SCMIR 9t3tt) zrnct Naseer Ahn-recl v. The State (2004 SCMR 1361) The rclcvant portiorr of case law reported in 2004 SCMIt 1361 (Nasccr Ahmccl v' :jL'rtc) is reproduced as under:-

"It has been held by this Court, time arnd:rgain that the police officials are :rs good u'itnesscs zrs others, nnil th.it evidcnce on this scorc alonc should llot be cliscarded' Nor"n'-:r-days' clrug trzrlfickil'rg Ilas created clangerous problems for the society and th<r country at iarge Ti'ris menace should be curbed str that people in societ-y would get rcliel"' \ ft"

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20.In the present case the evidence o[ PWs is not rcliable, trustworthy and inspiring confidence. The evidence of prosccution rvitncsscs who all are the mashir of recovery is sub ordinate trl complainant and prosecution has failed to prove their case liom an-v independent source and it n,ould nol be safe to rely upon the evidclrcc of police ofiicials rvithout independcnt corroboration u'hich is lacking in this case. It is r,vell settled principle of law that for extending benelit ol doubt to accused it is not necessary that there sl-rould be many circumstanccs creating doubt. lt er single circumstat'rcc crcates dor-rbt in a prudcnt mind abor-rt the guilt of the accused they he will be entitlcd to such a bcrrcfit not as a matter of grace but as a matter of right. Iu casc ol Tariq l)crvcz r'.

The State 1995 SCMR 1345, in which the I lonourable Supreme Cotlrl has held as underi

"For giuirtg beneJit of doubt to an accused it is not necessary that there should be many circumstances creating doubts. If a simple cirqtmstance creates reasonable doubt in ct prudent mind about the guilt of accused, then he tuill be entitled to such benefit not as a matter of grace and concession but as o rnatter of i!lht".

In the c:ase of Ikramullah v. Thc State (2O15 SCMR 1002), thc Honourable Supreme Court of Pakistan has held as under;

"5. In case tn hand not onlg the report submitted bg the Chemical Dxaminer utas legaLly laconic but safe cust<tdg of the recouered substance as well as safe transmission of the separated samples to the ofJice of the ChemiccLl Examiner had also not be-en established by the prosecution. /f is rtot disputecl that the inuestigating o.fficer appectringl before tle leanted tial courl had failed to euen to mention the narne of the police official uho had taken tLrc samples to the offtce of the Chernical Examiner and admittedly no such police ofJiciol had been.

produced before the leamed trial court to depose about safe custodg of the samples entrusted to him for being deposited irL the oJfice oJ' ttLr:

Chemical Examiner, In this uieu of the mcLtt er the v\'"

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T:i-iiii:tt;?i;:ii;F:""i:iS:r,ii*',;i, the recouered substartce the samples taken from had safelg been transrnitted to the office of t'\rc Chemical Exatninet tuithottt the same behg tamperecl ruith or replaced ttthile in transit "

21.Having explained I'rerein above, rve have come to th(l r:on<;lusion that prosecutic-,n has rliseri':bly lailed to prove its case against thc arppcllarnts bcyond reasonablc shaciou'o[ doubt, allow thc zLppcal ancl <:onviction al-ld sentence recorcied by the trial Court against appcllarll-s vicle .judgment dated 07.01.2015 are sct-aside.

These are the reasons of our short order dated 03'07 201 U' [-lt^v,t "e JI.JDCIi

JTJDGE

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