FARHAN DANISH Versus State
AMJAD ALI SAHITO, J. ---Being aggrieved and dissatisfied with the judgment dated 31.08.2018 passed by learned Judge, Anti-Terrorism Court No.X, Karachi in Special Cases Nos.56/2018, 57/2018, 58/2018, 59/2018 and 60/2018 respectively arising out of the FIRs bearing (i) Crime No.308/2017 under sections 353/324/427/34, P.P.C. read with section 7, A.T.A., 1997 registered at PS New Karachi, (ii) Crime No.309/2017 under sections 23(i)A, Sindh Arms Act, 2013 registered at PS New Karachi, (iii) Crime No.310/2017 under sections 4/5, Explosive Substances Act read with 7, A.T.A., 1997 registered at PS New Karachi, (iv) Crime No.311/2017 under sections 4/5, Explosive Substances Act read with 7, A.T.A., 1997 registered at PS New Karachi, and (v) Crime No.312/2017 under sections 4/5, Explosive Substances Act, 1997 read with 7, A.T.A., 1997 registered at PS New Karachi, whereby the appellants were convicted as under:-
Section
Conviction
Section 7(h) of A.T.A., 1997 read with sections 353/324, P.P.C.
All three accused persons are "convicted and sentenced to undergo R.I. for "10" years (each) with a fine of Rs.100,000/- (each). In default of payment of such fine, they shall suffer further R.I. for "06" months (each).
Section 7(d) of A.T.A., 1997 read with section 427, P.P.C.
All three accused persons are convicted and sentenced to undergo R.I. for "10" years (each) with a fine of Rs.100,000/- (each). In default of payment of such fine, they shall suffer further R.I. for "06" months (each).
Section 7(ff) of A.T.A., 1997
All three accused persons are convicted and sentenced to undergo R.I. for "14" years (each).
Section 23(i)A, Sindh Arms Act, 2013
Accused Farhan Danish is convicted and sentenced to undergo R.I. for "05" years with fine of Rs.50,000/. In default of payment of such fine, he shall suffer R.I. for "06" months more.
All the sentences shall run concurrently. However, the benefit of section 382-B, Cr.P.C. was extended to them.
2. Brief facts of the case are that on 22.12.2017 at about 0030 hours ASI Manzoor Hussain Baloch (Complainant) got registered bearing (i) FIR No.308/2017 under sections 353/324/427/34, P.P.C. read with 7, A.T.A., 1997, (ii) FIR No.309/2017 under section 23(i)A, Sindh Arms Act, 2013 (iii) FIR No.310/2017 under sections 4/5, Explosive Substances Act, 1997, (iv) FIR No.311/2017 under sections 4/5, Explosive Substances Act, 1997 and (v) FIR No.312/2017 under sections 4/5, Explosive Substances Act, 1997 registered at PS New Karachi stating therein that on 21.12.2017, he was on patrolling duty along with his subordinate staff in Government Mobile SPC-471. By the time, the spy/informant informed to ASI Manzoor Hussain Baloch that 03 motorcyclists equipped with arms and ammunition are available at Service Road near Ideal Shaadi Lawn Sector 11-J New Karachi with the intention to commit terrorism. On this information, the police party reached at the place pointed out by the spy/informant at about 2215 hours. On seeing the police mobile, one of the motorcyclists took out his pistol opened fire shots upon the police party with the intention to commit their murders so also deterred them from discharging their lawful duties and official functions. In retaliation, police party also made fire shots upon the culprits in self-defense. The culprit who was making fire shots had also thrown a hand grenade upon the police party, which pierced through the front glass of the police mobile and fell inside it but did not explode up. Thereafter, the police party got succeeded to apprehend the culprits on the spot at some distance away nearby a ground. The apprehended persons disclosed their names to be Farhan Danish son of Abdul Latif, Zeeshan Khan son of Akbar Saeed Khan and Kashif Jillani son of Syed Fazal ul Hassan. Thereafter, due to non-cooperation and denial of the private witnesses and in the presence of officials, ASI Manzoor Hussain Baloch conducted a personal search of the accused Farhan Danish and got secured one .30 bore pistol along with loaded magazine having 01 round, where 01 round loaded in the chamber from his right hand. ASI Manzoor Hussain Baloch also conducted a personal search of accused Zeeshan Khan and got secured one hand grenade from the pocket of his Kameez. As far as accused Kashif Jillani was concerned, upon his personal search, a hand grenade was secured from the pocket of his Kameez. The apprehended accused Farhan Danish was also asked to produce license of the recovered pistol but he failed to produce the same. Later on, upon received bullet injury on its driving side gate, so also on a front/main glass of the police mobile whereas in the result of fire shots made by the police, the magnet cover of the motorcycle recovered from the accused persons also received bullet injury. The police party also secured crime empties from the place of Wardaat. The police had sealed the recovered pistol, bullets, and empty shells separately in cloth parcels. The motorbike bearing No.KBH-7884 was also seized by the police on the spot under section 550, Cr.P.C. As far as the recovered hand grenades were concerned, the same were inspected/examined and taken into possession by the BD Expert SIP Abid Farooq. Consequently, the accused persons were arrested on the spot under the joint memo of arrest, recovery, and seizure and they were brought to police station along with case property and relevant documents. Hence, FIRs were registered.
3. After completion of the investigation of these cases, reports under section 173, Cr.P.C. were submitted by the I.O. against the accused persons in the concerned Court of law.
4. In order to prove these cases, the prosecution examined PW 1 SIP Abid Farooq of BDU at Ex.5, who produced roznamcha entry No.38 at Ex.5/A, roznamcha entry No.39 at Ex.5/B, clearance certificate at Ex.5/C, Ex.5/D and Ex.5/E respectively, roznamcha entry No.41 at Ex.5/F, DO Letter at Ex.5/G, Final Inspection Reports of Hand Grenades at Ex.5/H, Ex.5/I and Ex.5/J respectively. (PW-2) ASI Manzoor Hussain Baloch at Ex.6, who produced roznamcha entry No.32 at Ex.6/A, memo of arrest, recovery and seizure at Ex.6/B, snaps of police mobile and recovered motorbike at Ex.6/C, roznamcha entry No.38 at Ex.6/D, FIR Nos.308, 309, 310, 311 and 312 of 2017 at Ex.6/E to Ex.6/I respectively, memo of inspection of place of Wardaat at Ex.6/J, sketch of place of Wardaat at Ex.6/K. (PW-3) HC Naeem Khan at Ex.8. (PW-4) PI/IO Syed Moinuddin Rehmani at Ex.10, who produced roznamcha entry No.14 at Ex.10/A, roznamcha entry No.16 at Ex.10/B, letter addressed to the Incharge CRO at Ex.10/C, letter addressed to the Incharge FSL at Ex.10/D, roznamcha entry No.27 at Ex.10/E, letter addressed to the SSP Special Branch BDU Karachi at Ex.10/F, FSL Examination Report at Ex.10/G, letter addressed to the Section Officer, Home Department at Ex.10/H, permission order issued by the Home Department at Ex.10/I. Thereafter, the learned APG for the State closed the prosecution side vide statement at Ex.11.
5. The statements of accused Farhan Danish, Zeeshan Khan, and Kashif Jillani were recorded under section 342, Cr.P.C. at Ex.12, Ex.13 and Ex.14 respective in which they denied all the allegations levelled against them and claimed to be innocent and prayed for justice.
6. The learned trial Court, after hearing the parties and on assessment of the evidence, convicted and sentenced the appellants as stated above vide judgment dated 31.08.2018 which is impugned before this Court by way of filing the instant Special Criminal Anti-Terrorism Appeals.
7. Learned counsel for the appellants mainly contended that the appellants are innocent and have falsely been implicated in this case; that all the prosecution witnesses are police officials; that the place of incident was thickly populated area but not a single private person was associated as a witness of mashir of the alleged recovery; that there are major contradictions between the evidence of prosecution witness. They lastly contended that prosecution has miserably failed to prove its case against the appellants therefore, the appellants are entitled to their acquittal.
8. Conversely, learned APG while supporting the impugned judgment has contended that the prosecution has proved its case beyond any shadow of a doubt against the appellants; that the police officials had no enmity with the appellants. He lastly prayed for dismissal of the instant appeals.
9. We have heard the learned counsel for the appellants as well as learned APG and perused the material available on record with their able assistance.
10. A perusal of the record reveals that major contradiction is evident from the prosecution witnesses. PW-1 Abid Farooq, Incharge BDU West Zone in his evidence deposed that on 21.12.2017, he was posted at BDU West Zone. On the same day at about 1045 hours received information that a hand grenade was lying in the police mobile. On such information, he reached pointed place and recovered one hand grenade bearing No. ARGES-69 from the police mobile without a detonator. He has also found two hand grenades which were lying in an empty plot without detonator having No. ARGES-69. In cross-examination, he admitted that as far as the other two hand grenades were concerned, they were lying on the empty plot and the distance between the said hand grenades and the police mobile would be 10 to 15 paces. He further admitted that he took hardly 10 minutes while collecting the hand grenades from the place of incident. He has produced clearance certificate in respect of hand grenades at Ex.5/C, Ex.5/D and Ex.5/E respectively. PW-2 ASI Manzoor Hussain, Complainant of the case deposed that he has received spy information that three suspicious persons were available at Ideal Shadi Lawn, Sector 11-J along with hand grenades for the purpose of terrorism. He reached within 5 minutes at the place of the incident while seeing the police mobile, the suspicious persons had thrown a hand grenade upon the police mobile which hit the front mirror of the police mobile and fell down inside it but it did not explode up. They have also fired upon the police party which hit on the front glass/windscreen of the police mobile. In retaliation, police also fired upon them but no suspicious person sustained any firearms injury. Police arrested all the three accused persons, who, on inquiry, disclosed their names as Farhan Danish, Kashif Jillani and Zeeshan Khan. Police also recovered one .30 bore pistol along with loaded magazine from accused Farhan Danish. Thereafter, the personal search was conducted from accused Kashif Jillani and Zeeshan Khan and got secured one hand grenade each from the right pocket of their Kameez. Thereafter, the complainant contacted with BD Team for inspection of the hand grenades. Meanwhile, he has prepared mashirnama of arrest and recovery. By the time, BD Team also arrived on the spot and inspected/examined the recovered hand grenades and kept them into their possession. In cross-examination, he admitted that he has not taken any private witness for arrest and recovery proceedings. He further admitted that he has made four fire shots from his official SMG while in a standing position. In support of his contention, the prosecution examined mashir of arrest and recovery PW-3 HC Naeem Khan, who has supported the contention of the PW-2 ASI Manzoor Hussain. He further disclosed in his evidence that in cross-examination, he admitted that place of Wardaat was a thickly populated area and further admitted that ASI Manzoor Hussain did not call any private person to act as mashir in this case, voluntarily says that it was odd time and nobody was available over there. Lastly, the prosecution examined PW-4 Syed Moinuddin Rehmani, I.O. of the case, who deposed in his evidence that after conducting the inquiry he has called criminal record of the accused persons but no previous criminal record was found. He has produced a letter to Incharge CRO as Ex.10/C which reflects that three hand grenades have been recovered from the accused persons bearing No.HdgrARGES-69, HdgrARGES-69 and HdgrARGES-69 respectively.
11. From the perusal of the evidence of the PW-1 Abid Farooq in charge BDU team, who disclosed that he has recovered 1 hand grenade from the Paidaan of the vehicle and two hand grenades from the open plot without detonator having numbers ARGES-69 whereas the claim of the PW-2, complainant ASI Manzoor Hussain that they have arrested three accused persons and recovered hand grenades from the pocket of accused Kashif Jillani and Zeeshan Khan without any number. It means one was recovered from the mobile and two were recovered from the pockets of the accused Kashif Jillani and Zeeshan Khan but as per BD Incharge, he has secured two hand grenades from the open plot. It means if the complainant has secured three hand grenades from the accused persons then the BD has secured two hand grenades from the open plot, it became the total 5 in number. The complainant has not disclosed the number of hand grenades recovered from the co-accused but as per BD Team, they have given the clearance certificate of two hand grenades which were recovered from the open plot, hence nothing has been recovered from the pocket of accused Kashif Jillani and Zeeshan. In the case of Criminal Miscellaneous Application No.200 of 2019 in Criminal Appeal No.238-L of 2013, notice was issued to Constable Khizar by the Hon'ble Supreme Court of Pakistan for giving false statement before the trial Court in which Hon'ble Supreme Court has decided that 'false in uno, false is omnibus" meaning by "false in one thing, false in everything". The rule held that a witness who lied about any material fact must be disbelieved as to all facts because of the reason that the "presumption that the witness will declare the truth ceases as soon as it manifestly appears that he is capable of perjury" and that "Faith in a witness's testimony cannot be partial or fractional".
12. In this case, either PW-1 Abid Farooq is giving his false evidence or the complainant because the complainant has disclosed that he has secured two hand grenades from the pocket of the accused persons whereas PW-1 BD Incharge has disclosed that he has secured two hand grenades from the open plot but the complainant has not disclosed the numbers of recovered hand grenades. It means that the complainant is telling lie or the PW-1 Abid Farooq BD Incharge is giving false evidence. Hence, it is held that when a witness tells or deliberates falsehood, the Courts of justice are bound to apply the maxim 'false in uno, false is omnibus'. Further, the complainant deposed that while seeing the police party, the accused persons had thrown the hand grenade but did not burst and thereafter the accused persons started firing upon the police party. First, they have thrown hand grenade but the picture shows that the windscreen having firearms hole. The claim of the complainant that the accused person were present for committing terrorism but the PWs deposed that due to old hours nobody was present there, then in odd hours presence of the appellants at the place of incident creates doubt. We are clear in our mind that the evidence of PW-1 and PW-2 are not supporting to each other's to believe that any recovery was effected from the appellants, hence they are not truthful witnesses to convict the appellants on the basis of their evidence.
13. Furthermore, no sincere efforts were made by the complainant to join the private person from the place of the incident for recovery proceedings, which is a gross violation of section 103, Cr.P.C. In this context, reliance is placed on the case of Iltaf Hussain v. State reported in 1996 SCMR 171, wherein the Hon'ble Supreme Court of Pakistan has held that:-
"The position, in this case, was just the reverse because, admittedly, recovery was effected from a populated area where several other people who saw the recovery of Kalashnikov were present but no efforts were made to join them to witness the occurrence. We, accordingly, hold that evidence of Police witnesses who are, in a way, the complainant could not solely be accepted to be relied upon to convict the appellant, especially, when the aforesaid public witness was abandoned without any rhyme or reason. The possibility that the appellant was implicated with some ulterior motive could not be ruled out. For all these reasons, we have no alternative but to acquit the appellant by setting aside his conviction and sentence by giving him benefit of doubt."
14. In view of the above discussion and perusal of evidence of prosecution witnesses, it is a well-settled proposition of law that the prosecution is bound to prove its case beyond any shadow of a doubt. If any reasonable doubt arises in the prosecution case, the benefit of the same must be extended to the accused not as grace or concession, but as a matter of right. Likewise, it is also the well-embedded principle of criminal justice that there is no need of so many doubts in the prosecution, rather any reasonable doubt arising out of the prosecution evidence pricking the judicious mind is sufficient for the acquittal of the accused. In this respect, reliance is placed upon the case of Mohammad Mansha v. The State (2018 SCMR 772) the Hon'ble Supreme Court of Pakistan has held as under:
"4. 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". Reliance in this behalf can be made upon the cases of Tarique Parvez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Mohammad Akram v, The State 2009 SCMR 230) and Mohammad Zaman v. The State (2014 SCMR 749)."
15. For the reasons as discussed above, the instant appeals were allowed while passing short order dated 01.04.2019. The conviction and sentence awarded to the appellants by the learned trial Court (Judge, Anti-Terrorism Court No.X, Karachi) vide impugned judgment dated, 31.08.2018 were set aside. Appellants (1) Farhan Danish son of Abdul Latif, (2) Kashif Jillani son of Syed Fazal ul Hassan and (3) Zeeshan Khan son of Akbar Saeed Khan were acquitted of the charge levelled against them in these cases by extending them the benefit of the doubt. The appellants were in jail custody, they were directed to be released forthwith, if not required in any other custody case.
16. The above are the reasons for our short order dated 01.04.2019.
JK/F-16/Sindh Appeal accepted.