SHAHJAHAN alias ARMAN Versus State
FAHIM AHMED SIDDIQUI, J .---Through instant Criminal Jail Appeal, the appellants/accused have impugned the judgment dated 20.02.2016, passed by the learned Special Judge of Anti Terrorism Court, Hyderabad in ATC Case No.54 of 2014 arising out of Crime No.379 of 2010 under section 392/397/435/353/324/427/34, P.P.C. and sections 3/4 of the Explosive Substances Act, 1908 read with sections 6/7 of ATA, ATC Case No.55 of 2014 arising out of Crime No.381 of 2010 under section 13/D of Arms Ordinance, ATC Case No.56 of 2014 arising out of Crime No.382 of 2010 under section 13/D of Arms Ordinance, ATC Case No.57 of 2014 arising out of Crime No.383 of 2010 under section 13/D of Arms Ordinance, ATC Case No.58 of 2014 arising out of Crime No.384 of 2010 under section 13/D of Arms Ordinance and ATC Case No.59 of 2014 arising out Crime No.385 of 2010 under section 13/D of Arms Ordinance, whereby appellants/ accused have been convicted and sentenced for the offence under section 6(2)(b) punishable under section 7(c) of ATA for ten (10) years' R.I and to pay fine of Rs.50,000/ - and in case of non-payment of fine amount, they shall undergo three months more imprisonment. Appellants/accused were also convicted and sentenced for the offence under section 6(2)(c) punishable under section 7(d) of ATA for ten (10) years' R.I and to pay fine of Rs.50,000/- and in case of non-payment of fine amount, they shall undergo three months more imprisonment. Appellants/accused were also convicted and sentenced for the offence under section 6(2)(n) punishable under section 7(h) of ATA for ten (10) years' R.I and to pay fine of Rs.50,000/- and in case of non- payment of fine amount, they shall undergo three months more imprisonment and so also they were convicted and sentenced R.I for fourteen (14) years and to pay fine of Rs.1,00,000/- and in case of non-payment of fine amount, they shall undergo six months more imprisonment. The appellants Shahjahan alias Arman and Syed Muhammad Aatif were also convicted and sentenced for the offence under section 6(2)(ee) punishable under section 7(ff) of ATA and for offence under section 392, P.P.C. for ten (10) years' R.I with fine of Rs.50,000/ - and in case of non-payment of fine amount, they shall undergo three months more imprisonment. The appellants were also convicted and sentenced for the offence punishable under section 13(d) of Arms Ordinance for seven (07) years' R.I with fine of Rs.30,000/- each and in case of non-payment of fine amount, they shall undergo two months more imprisonment. All above sentences of imprisonment however, will run concurrently. However, the benefit of section 382, Cr.P.C. will be available to the appellants.
2. The allegations against the appellants, as per charge are that on 03.06.2010, the appellants entered into the Habib Bank Limited Pathan Colony, Aligarh Bazar Orangi Town Branch, Karachi and by showing weapons, looted/snatched an amount of Rs.27,00,000/- [Rupees Twenty Seven Hundred Thousand] and caused injury to the four police officials and three passers-by buyers.
3. After examining the prosecution witnesses and hearing the parties, the trial judge came to conclusion of conviction as described above.
4. Mr. Salahuddin Khan Gandapur, Advocate for appellant Allauddin alias Ali Abdullah alias Doctor submits that the prosecution has miserably failed to establish the case against the appellant. According to him, the incident was taking place on 03-06-2010 and allegedly all the appellants were arrested on the spot on the same date of incident after a police encounter. He submits that the appellant and other co-appellants are continuously in jail i.e. since 03-06-2010, but surprisingly, after framing of initial charge, the appellant Allauddin alias Ali Abdullah alias Doctor was shown absconder and proceedings under sections 87 and 88, Cr.P.C. were initiated and even advertisements were appeared in different newspapers and then charge was reframed and he was tried in absentia. He reads the deposition of process server CW Noor Sabir. He points out that even thereafter the appellant was appearing before trial Court but no heed was taken by the trial court to clarify this aspect of the case and judgment was pronounced wherein the appellant Allauddin alias Ali Abdullah alias Doctor is shown to be present during trial. Mr. Gandapur also points out several contradictions in the depositions recorded before the trial Court. He points out that allegedly the appellants are involved in bank dacoity and the manager and other staff of the bank were the natural and important prosecution witnesses but none of them identified the appellants as culprits. He submits that the star prosecution witness is the complainant and manager of the said bank namely Khizer Hayat was declared hostile, as such his evidence is not helpful. He submits that after non-supporting by the star witness and non-identifying the appellants by the eye-witness, the prosecution case is a case of no evidence.
5. Mr. Raja Hassan Nawaz, Advocate for the appellants Shahjahan alias Arman and Syed Muhammad Aatif adopted the arguments of Mr. Gandapur. However, in additional arguments, he submits that it is astonishing that the injured police constable has received bullet injuries on their legs without causing any serious damage to them. He also points out that there are contradictions amongst the witnesses in important aspects of the case like date and time of incident and recovery of allegedly looted amount.
6. On the other hand, learned Assistant Prosecutor General half-heartedly supports the impugned judgment by submitting that the contradictions are there but the offence is heinous one as these contradictions can be overlooked.
7. In the light of the submissions made before us, we have scanned the entire material in the instant matter, as such, we have observed certain discrepancies and contradictions in the prosecution case. In the instant case, certain important points are required consideration. Perusal of the FIR reveals that the alleged incident was taken place on 03-06-2010 and on the same date the appellants were arrested on the spot after an encounter. It is indeed astonishing that a proceeding under section 512, Cr.P.C. was initiated against an accused, who was already under custody. It indicates that how the prosecution of an important criminal case was done before the trial Court and none from the prosecution side bothered to point out that the accused is already under custody. Even, the police process server, who is an Inspector, has deposed on oath before the trial Court that the said accused has absconded away and hidden himself somewhere and there is no likelihood of his arrest in near future. It appears that before submitting such report before the trial Court, the concerned police officer and prosecutor do not bother to go through the memo of arrest of the case. It is really painful, shocking and astounding that how the important and heinous criminal cases are handled by the prosecuting agencies and prosecution department.
8. On merits, the prosecution remained failed to establish the case against the appellants on account of teeming number of serious contradictions, which amounting to blunder on the part of prosecution. According to prosecution case, the appellants were arrested after police encounter and amongst the arrested accused persons, to receive injuries from whom one later on died. All the accused persons, even those who were seriously injured, were shown having pistols in their right hands at the time of their arrest. It is the prosecution case that four persons, who were passers-by, received injuries in the incident but the names of only three such persons are mentioned namely Javaid, Basheer, and Essa are shown in the record and amongst them only Basheer was examined, who did not support the prosecution case. The bank employees, who are the eye-witnesses of the incident, also failed to identify the accused persons present in court as the same culprits. The star prosecution witness is the complainant Khizer Hayat, who is the bank manager. This witness when entered into the witness box has given evidence against the prosecution and on the request of learned prosecutor, he was declared hostile. After declaring the star prosecution witness as hostile, the learned prosecutor was allowed to cross-examine him but even after cross-examination, his deposition could not be rehabilitated even up to some extent to bolster the prosecution case.
9. As far as the deposition of remaining witnesses is concerned, after turning the star witness on his heels and a non-identifying the appellants as culprits of the incident by the eye-witnesses, their evidence was least helpful for the prosecution case. Nevertheless, it has been observed that there are serious contradictions on important points of their deposition. PW Basheer Ahmed in his deposition if states that the incident was taking place on 16-06-2010 while as per FIR, it was happened on 03-06-2010. This witness indicates that he is a shopkeeper and at the time of alleged incident was available at his shop situated about 15/20 shops away from the concerned bank but in records he was shown as passerby. One of the customer of bank namely Adil Zada is also shown as eye-witness but in his deposition, he did not identify the accused persons as same. PW SIP Mukhtiar Ahmed, who was allegedly received injuries in the incident has stated that he received information about the incident at 12:30 noon time and proceeded to the place of the incident where he received injuries. This witness contradicts the time of incident. Similarly, the witnesses are not in agreement about the looted amount and some says that after counting it was found about 2,70,000/-and some says it was about 27,00,000/- while Charles indicates that the total amount was Rs. 2,75,105/-. It is also worth noting that Medico Legal Officer Dr. Muhammad Khalid during examination has produced photocopies of Medico Legal Certificate and in cross-examination, he admits that the original medico legal certificate is required to produce but he is unaware what happens to them. In such a situation, production of secondary evidence, without establishing about the fate of primary document, is not admissible. It is worth noting that in all his statements recorded under section 161, Cr.P.C, the place of incident is not mentioned any defect is admitted by PW SIP Ghazan Zada. It is also worth noting that nothing is mentioned about the safe custody of case property, which itself is a question of great importance.
10. In absence of such evidence, the safe custody of case property remains questionable and creates serious doubt regarding the prosecution case and in this regard we are strengthened with the observations of Hon'ble Supreme Court of Pakistan made in the case of 'Ikramullah and others v. The State' [2015 SCMR 1002].
11. When considered in the backdrop of contradictions of prosecution case, the case against the appellants is engulfed under the thick clouds of doubts. It is settled legal position that the benefit of doubt shall always go in favour of the appellants. We, therefore, came to conclusion that since the prosecution case is not free from doubt, as such, appellants were acquitted from charge under a short order dated 27.11.2018, which is reproduced as under:-
Parties' advocates have been heard. They have concluded their arguments. For the reasons to be recorded later on, this Criminal Jail Appeal is allowed; the impugned judgment dated 20.02.2016, passed by the learned Special Judge of Anti Terrorism Court, Hyderabad in ATC Case No.54 of 2014 arising out of Crime No.379 of 2010, ATC Case No.55 of 2014 arising out of Crime No.381 of 2010, ATC Case No.56 of 2014 arising out of Crime No.382 of 2010, ATC Case No.57 of 2014 arising out of Crime No.383 of 2010, ATC Case No.58 of 2014 arising out of Crime No.384 of 2010 and ATC Case No.59 of 2014 arising out Crime No.385 of 2010, is set aside and appellants are acquitted of the charge. The appellants/accused are in custody, they are ordered to be released forthwith if they are not required in any other custody case.
12. The above are the reasons for our aforesaid short order, in terms of which both Appeals were allowed.
SA/S-54/Sindh Appeal allowed.