Sp.Crl Anti-Terrorism Appeal No. 99 of 2015
Sp.Crl Anti-Terrorism Appeal No.100 of 2015
Present:
Mr. Justice Ahmed Ali M. Sheikh &
Mr. Justice Syed Muhammad Farooq Shah.
J U D G M E N T
Mr. Muhammad Nadeem Memon, Advocate for appellants
in both the appeals.
Ms. Akhter Rehana, A.P.G.Sindh.
Date of hearing : 15th October, 2015.
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Syed Muhammad Farooq Shah, J.:- Through this appeal, the appellant has impugned the common judgment dated 30.04.2015, passed by the learned Judge Anti-Terrorism Court No.V, Karachi, in Special Case No.A-128 of 2014 (FIR No.85/2014 registered under section 385 and 386 PPC read with section 7 ATA, 1997 at Police Station Korangi, Karachi), whereby the appellant was convicted and sentenced to suffer RI for five years and pay fine of Rs.20,000/- or in default of payment of fine to undergo SI for three months more; similar punishment was also recorded in case Crime No.87/2014, punishable under section 23(1A) of Sindh Arms Act and that both sentences were ordered to run concurrently. However, co-accused Kashif was acquitted from the charge of both aforementioned cases.
2. Being aggrieved and dissatisfied with the aforesaid judgment, the appellant/accused Nadeem Nasir has directed the captioned appeal under section 25 of ATA 1997, praying therein to set aside the impugned judgment, allow the appeal and acquit him on consideration of facts and grounds as set forth in the memo of appeal.
3. The contents of charge framed by the trial court against the accused/appellant Nadeem Nasir and acquitted co-accused Kashif Abbas @ Charya @ Zafar Supari reflects that in between 01.5.2014 to 04.5.2014 at 1345 hours both accused in prosecution of their common intention at different times made phone calls to the complainant on his mobile phone 0336-2136931 from mobile phone No.0311-0118956 and by putting him under fear of death demanded extortion money, amounting to Rs.200,000/-. On 04.5.2014, both accused came at the corner of Bakri Petrol Pump, Korangi No. 2½, Karachi and received extortion money of Rs.10,000/- from complainant, when police arrested them and recovered extortion amount from their possession, containing two currency notes of Rs.5000/- denomination and from possession of appellant Nadeem Nasir a .30 bore unlicensed pistol, without number, loaded with magazine containing six live bullets and from acquitted accused Kashif .30 bore unlicensed pistol without number, loaded with magazine containing five life bullets were also recovered. Both accused pleaded not guilty and claimed their trial.
4. To substantiate charge, prosecution examined four witnesses. The complainant namely Muhammad Asif Khan, who may be termed as a star witness of the prosecution, deposed in his examination-in-chief that a caller namely Zafar Supari demanded Rs.200,000/- ransom from him, otherwise threatened to kill his children; that on 04.5.2014, he arranged an amount of Rs.10,000/- and proceeded at the pointed place and thrown two currency notes of Rs.5000/- at the pointed place and prior to it he informed the police official namely Shoaib; that he found one person there to whom police party apprehended and collected thrown amount from apprehended person who disclosed his name Nadeem Nasir (appellant) and from his possession an illicit pistol and 4/5 live bullets were also recovered. Police prepared the Mashirnama in his presence. During interrogation the said accused gave the name of his companion Kashif, who is nephew of appellant Nadeem Nasir, who was also later on arrested and from his possession an unlicensed weapon was recovered. The complainant has produced the memo of arrest and recovery (Exh: 6/A), contents of which otherwise and reflects that the complainant proceeded at the pointed place alongwith police party when at about 1345 hours two persons came, who demanded ransom amount from him; that on his pointation, both persons were arrested who disclosed their names to be Nadeem Nasir, the appellant and Kashif @ Abbas Charya and from possession of appellant/accused two currency notes of Rs.5000/- and a loaded illicit .30 bore pistol and from accused Kashif a loaded .30 bore pistol and cash Rs. 200/- and two mobile phones were recovered. From perusal of examination-in-chief it appears that the complainant did not support the contents of memo of recovery and arrest. More so, the contents of FIR No. 85/2014 lodged by the complainant Muhammad Asif Khan transpire that complainant proceeded at the pointed place with ASI Shoaib along with police officials in a private car; the complainant and his brother’s son namely Shafaat Ali son of Wilayat Hussain were already present at the pointed place when two persons came to them on foot, demanded extortion amount, to whom they gave two currency notes of Rs.5000/- and on pointation of the complainant, the police party captured both persons and from their possession extortion amount of Rs.10,000/- and illicit weapons were recovered. It appears that the evidence of the complainant does not even corroborate the documentary material such as FIR/Mashirnama, more particularly, the memo of place of occurrence (Exh: 6/C) was prepared on 04.5.2014 and memo of seizure of mobile phone was drawn on 15.5.2014.
5. PW- Shafaat Ali is son of brother of the complainant, who categorically stated in his deposition that to fulfill the demand of “Bhatta” his uncle proceeded at the pointed place in his company and police person also came there in a private car. His uncle gave Rs.10,000/- to Nadeem Nasir, who was arrested red handed at the spot, where Mashirnamas were prepared and his signatures were also obtained. In the last of his examination-in-chief he deposed that one another person namely Rashid was also with appellant Nadeem Nasir who was also arrested by the police. In his cross examination, he has stated that he signed the Mashirnama only with the name of Shafaat. He admitted that he had signed the Mashirnama at the Police Station. He has also admitted that when he went at Police Station both accused were present there and SIP Shoaib asked him to sign the Mashirnama and that the articles and weapons were shown to him at the Police Station. He has further admitted in cross that Muhammad Asif Siddiqui is not his relative and rather he resides in his neighborhood. For recovery of mobile, he admitted in his cross examination that similar mobile phones, produced in court are also available in the market.
6. The second part of the prosecution evidence rest upon two police officials, namely PW ASI Muhammad Shoaib and PW- Police Inspector Muhammad Hussain Qureshi. PW- ASI Muhammad Shoaib who allegedly arranged raiding party, stated in examination-in-chief that he directed the complainant Muhammad Asif to reach at the pointed place and he also went there and hide himself with police party, when he saw two persons arrived on foot and demanded money from Muhammad Asif Siddiqui, who gave them the amount and signaled him, he then apprehended both culprits and from their possession the ransom amount of Rs.10000/- and remaining articles including illicit weapons were recovered. In cross-examination he has stated that neither the telephone number of complainant nor his telephone number is mentioned in the Mashirnama, Exh: 6/A. He admitted that he was not duty officer on the said day but he registered three different FIRs, without producing the entries of his departure from Police Station. He further stated that he did not receive any application from complainant regarding demand of “Bhatta” and that similar type of mobile phones are available in the market. He has also admitted in cross-examination that he did not mention the EMI numbers of mobile phones in the memo. He has admitted that same pen was used in writing on each cloth parcel at Police Station. He has stated that he did not mention the number of live bullets and that number of currency notes are not mentioned on parcel cloth.
7. Investigating Officer Muhammad Hussain, who submitted challan stated in his cross-examination that he did not mention phone number in the FIR, neither he obtained finger prints on the pistol nor he called any private person to act as Mashir of site inspection.
8. In his statement, recorded under section 342 Cr.P.C. the appellant has vehemently denied the allegations leveled against him by the prosecution and stated that he has falsely been implicated in this case by the police personnels as nothing was recovered from his possession. He has further stated that due to his family enmity with HC Muhammad Siddique, who is his brother in law, the prosecution witnesses involved him in this case.
9. Keeping in view the aforementioned evidence, adduced by the prosecution, learned counsel for the appellant contended that there are glaring contradictions amongst depositions of prosecution witnesses who stated that due to enmity with one HC Muhammad Siddique a false case has been registered against the appellant and alleged recovery was foisted upon him, however, the trial court did not appreciate the contradictory evidence of prosecution witnesses while passing the impugned judgment. On the other side, learned A.P.G. though admitted the aforementioned contradictory statements of prosecution witnesses but supported the impugned judgment and stated that illicit weapon and Bhatta amounting to Rs.10,000/- were recovered from the possession of appellant, therefore, the impugned judgment is in accordance with law and appeal is devoid of merits.
10. On meticulous examination of available record it appears that prosecution has not adduced confidence inspiring evidence beyond the reasonable doubt, more particularly, the complainant has not supported the contents of the FIR by deposing that one person came at the pointed place for collection of “Bhatta” though in FIR he named two persons; besides the police officials and PW Shafaat Ali have also not supported the prosecution case. It is settled principle of law that a single doubt in the prosecution case is sufficient to acquit the accused and it is wise saying that “for all reasons it is true to say that miscarriage of justice arise from acquittal of the guilty, no less from conviction of innocent” as held by the Apex Court in the case of MUHAMMAD ASLAM V/S THE STATE (2011 SCMR 820).
11. Suffice is to say that prosecution story is not trustworthy and the depositions of PW’s are not beyond the shadow of reasonable doubt. Learned counsel for the appellant says that it is settled that if a single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. Reliance in this regard is being placed on the case of TARIQ PERVEZ V/S THE STATE (1995 SCMR 1345), MUHAMMAD SAEED V/S THE STATE (2008 P.Cr.L.J. 1752), GHULAM MURTAZA V/S THE STATE (2010 P.Cr.L.J. 461). In the case of FARZAND ALI V/S THE STATE (2012 MLD 882), recovery of weapon of offence made from the accused was held to be inconsequential as there was no positive report from Forensic Science Laboratory. It appears that the evidence of prosecution witnesses was recorded by the police at belated stage without furnishing any plausible explanation. The Hon'ble Supreme Court in the case of RAHAT ALI V/S THE STATE (2010 SCMR 584) held that the said lacuna fatal to prosecution case and the statement of such witnesses were not to be relied upon. In the case of SULTAN & OTHERS V/S THE STATE (1987 SCMR 1177) the Hon'ble Supreme Court held that Investigating Officer is bound to secure the attendance of independent witnesses to attest the recovery of crime weapons and failure to do so would cause doubt on the factum of recovery. In the present case both recovery witnesses of crime weapons are police officials, without any explanation of the prosecution with regard to non- availability of independent person of the locality. It is well known principle of appreciation of evidence that the benefit of all favorable instances in the prosecution evidence must go to the accused regardless to the fact as to whether he has taken any such defense plea or not. The prosecution evidence appears to be not trustworthy nor consistent to establish accusation against the appellant, therefore, his false implication in this case due to his strained relations with one Head Constable Muhammad Siddique and his involvement in this case due to animosity cannot be brushed aside.
12. The law developed in our country is based on maxim that it is better that ten guilty persons be acquitted rather than one innocent person be convicted, reference in this regard may conveniently be placed on the judgments of Apex Court, reported as THE STATE V/S MUSHTAQ AHMAD (PLD 1973 SC 418) and KHALID MEHMOOD V/S THE STATE (2011 SCMR 664). It is also an established principle of administration of criminal justice, coupled with Islamic Shariah that conviction cannot be based on any other type of evidence unless direct or substantive evidence is available and the guilt of accused cannot be based on high probabilities that may be inferred from evidence in a particular case. Sufficient discrepancies including glaring contradictions of prosecution evidence are appearing from the statements of prosecution witnesses and the memos of place of occurrence and recovery, prepared during investigation, appears to be suspected.
13. Keeping in view of the foregoing reasons and on the criterion as mentioned above, by a short order dated 15.10.2015, captioned appeals were allowed and appellant was acquitted. Above are the reasons for the said order.
J U D G E
*Aamir/PS* J U D G E