JUDGMENT SHEET
IN THE HIGH COURT OF SINDH, KARACHI.
Present:
Mr. Justice Muhammad Iqbal Kalhoro, J.
Mr. Justice Khadim Hussain Shaikh, J.
Cr. Anti Terrorism Appeal No.95 of 2014
Muhammad Yaseen @ Atif 2 Yaroo & others ………. Appellants.
Versus
The State …………….. Respondents.
Cr. No.187/2014 P.S. KIA (SIU) Kar
U/s 386,34 PPC, 25 Telegraph Act r/w
Section 7 ATA, 1997.
Cr. Anti Terrorism Appeal No.96 of 2014
Muhammad Yaseen @ Atif @ Yaroo ………… Appellant.
Vs.
The State ………… Respondent.
Cr. No.82/2014 P.S. SIU Karachi
U/s 23(1)(a) of Sindh Arms Act, 2013.
Cr. Anti Terrorism Appeal No.97 of 2014
Muhammad Yaseen @ Atif @ Yaroo ………… Appellant.
Vs.
The State ………… Respondent.
Cr. No.83/2014 P.S. SIU Karachi
U/s 4/5 Explosive Substance Act r/w
S. 7(ff) ATA, 1997
Cr. Anti Terrorism Appeal No.98 of 2014
Atta u Rehman @ Atoo ………… Appellant.
Vs.
The State ………… Respondent.
Cr. No.84/2014 P.S. SIU Karachi
U/s 23(1)(a) of Sindh Arms Act
Cr. Anti Terrorism Appeal No.99 of 2014
Atta u Rehman @ Atoo ………… Appellant.
Vs.
The State ………… Respondent.
Cr. No.85/2014 P.S. SIU Karachi
U/s 4/5 Explosive Substance Act r/w S. 7(ff) of ATA, 1997.
Cr. Anti Terrorism Appeal No.100 of 2014
Sadam Hussain @ Sajid ………… Appellant.
Vs.
The State ………… Respondent.
Cr. No.86/2014 P.S. SIU Karachi
U/s 23(1)(a) of Sindh Arms Ac
Cr. Anti Terrorism Appeal No.101 of 2014
Rafiq ul Islam @ Al-Ameen ………… Appellant.
Vs.
The State ………… Respondent.
Cr. No.87/2014 P.S. SIU Karachi
U/s 23(1)(a) of Sindh Arms Ac
Cr. Anti Terrorism Appeal No.102 of 2014
Muhammad Nadeem ………… Appellant.
Vs.
The State ………… Respondent.
Cr. No.88/2014 P.S. SIU Karachi
U/s 23(1)(a) of Sindh Arms Ac
Cr. Anti Terrorism Jail Appeal No.01 of 2015
Muhammad nadeem ………… Appellant.
Vs.
The State ………… Respondent.
Cr. No.187/2014 P.S. KIA (SIU) Kar
U/s 386,34 PPC, 25 Telegraph Act r/w
Section 7 ATA, 1997.
M/S Khuwaja Naveed Ahmed and Syed Nadeem ul Haq Advocates for the appellants.
Mr. Arbar Ali Khichi D.P.G a/w Zeeshan Anwar CIA Karachi.
Date of hearing: 13.09.2017
Date of decision: 13.09.2017.
J U D G M E N T
MUHAMMAD IQBAL KALHORO J: By this common judgment all the above captioned appeals are disposed of, which arise out of same judgment dated 31.10.2014 passed by Anti-Terrorism Court No.1, Karachi in above crimes and offences, whereby the appellants have been convicted and sentenced to suffer RI for 07 years each with fine of Rs.50,000/- each in default whereof, to suffer SI for six months more for offence punishable u/s 7(h) Anti-Terrorism Act, 1997; and U/s 23(1)(a) of Sidh Arms Act, 2013 to suffer RI for 07 years each with fine of Rs.20,000/- each, in default to suffer SI for six months more. Additionally appellants Muhammad Yaseen @ Atif @ Yaroo and Atta ur Rehman have been convicted u/s 7(ff) Anti-Terrorism Act, 1997 to suffer R.I. for 14 years each for keeping a hand grenade each. All the sentences have been ordered to run concurrently. Benefit of section 382-B Cr.P.C has also been extended to the appellants.
2. Brief facts of the prosecution case are that on 18.03.2014, at 1955 hours, the complainant Abideen Halati son of Amir Ali lodged FIR No.187/2014 U/s 383, 384,385, 34 PPC & 25-D of Telegraph Act, at P.S. Korangi Industrial Area Karachi stating therein that he is doing business of Fiber Craft at Sector 6/A, Mehran Town, Korangi Karachi. On 08.03.2014 at about 1130 hours two Urdu Speaking persons aged about 40/45 years came to him on two motorcycles one bearing registration No.LOC-5103, and another 125 without number and disclosed that they belong to Tahreek-e-Taliban Jindullah Group and were in need of his help. On inquiry they demanded money but the complainant sought time to consult that with his brother first, upon which they issued him threats of life and left the place by giving him a mobile phone No.0300-2143658 for contact. On 10.03.2014 at 1239 hours, the complainant received a phone call on his mobile phone from mobile phone No.0305-2807427 and the caller threatened him and informed complainant his location in Punjab Colony and directed him to come at Bilal Colony. Thereafter, the culprits continuously kept demanding Rs.10,00,000/- as Bhatta from him on phone. On 11.03.2014, at 1519 hours, the complainant again received a call from Mobile No.0343-2385973 and the caller repeated the same demand. On 18.03.2014 at 1730 hours, the said culprits again came to the complainant on motorcycle No.KGG-2553 and issued him threats, hence he lodged the FIR.
3. After registration of the FIR, the investigation of the case was entrusted to SIP Manzoor Ahmed, who visited the place of incident on the pointation of complainant and recorded statements of witnesses u/s 161 Cr.P.C. Thereafter on 28.03.2014, the investigation was transferred to Special Investigation Unit, Saddar, Karachi and was entrusted to Inspector Tabbasum Ahmed Shaikh. On 29.03.2014 SIP Syed Ghous Alam of P.S. SIU, CIA Saddar Karachi alongwith his subordinates arrested all the appellants from 602 Workshop, AB Senia Line, when they received an envelope of extortion money from the complainant Abideen. During their personal search the said police official recovered a hand grenade from two appellants namely Atta u Rehman and Muhammad Yaseen @ Atif @ Yaroo and a pistol with live bullets from each appellant. Such memo of arrest and recovery was prepared and thereafter separate FIRs No.82/2014 to 88/2014 u/s 4/5 Explosive Substance Act and 23(1)(a) of Sindh Arms Act, 2013 at Special Investigation Unit Saddar, Karachi were registered against the appellants. The papers, case property and the accused were handed over to I.O. Inspector Tabasum Ahmed Shaikh. He recorded statements of witnesses u/s 161 Cr.P.C and got defused the hand grenades and obtained such reports from Bomb Disposal Unit. He also sent pistols and bullets recovered from each appellant to FSL for examination and report. After completion of the investigation he submitted a separate charge sheet for each crime and offence in the court of law.
4. A formal charge against the appellants was framed at Ex.6 to which they pleaded not guilty and claimed their trial.
[5. In the trial, the prosecution has examined P.W.1 SIP Amjad Yaseen at Ex.7, P.W.2 SIP Syed Ghous Alam at Ex.8, P.W.3 Abideen at Ex.9, P.W.4 SIP Manzoor Ahmed at Ex.10 and P.W.5 I.O. Inspector Tabasum Ahmed Shaikh at Ex.11. They have produced all the necessary documents including FIRs, memo of arrest and recovery, reports of Bomb Disposal Unit and FSL reports, etc. Statements of appellants u/s 342 Cr.P.C were recorded at Ex.13 to 17, in which they have denied the allegations. At the conclusion of trial, learned trial court convicted and sentenced the appellant vide impugned judgment in the terms as stated above and through the instant appeals, the appellants have challenged the same.
6. Khuwaja Naveed Ahmed, learned counsel for the appellants Muhammad Yaseen @ Atif @ Yaroo and Atta u Rehman in Cr. ATA No.97 and 99 of 2014 in his arguments has prayed for their acquittal on the grounds that the prosecution has not been able to prove recovery of hand grenades from them and there are material contradictions in this respect in the evidence of P.Ws; that no one from Bomb Disposal Unit has been examined by the prosecution to lend credence to the fact that the recovered articles from the appellants were infact the hand grenades; that the I.O. of the case namely Inspector Tabasum Ahmed Shaikh at Ex.11 in cross-examination has disclosed that inspection of the hand grenades took place on the second day of the recovery, but the reports of the Bomb Disposal Unit Ex.11/C and 11/E indicate that the inspection of the alleged hand grenades was conducted on 10.04.2014 after the delay of more than 12 days of recovery; that the prosecution case is silent about the fact that during such intervening period where the alleged hand grenades were kept; that if disclosure of the I.O. is read together with the inspection report it would be obvious that alleged hand grenades recovered from the above named appellants were never produced in the court and/or examined by the Bomb Disposal Unit, therefore, the prosecution case about recovery of alleged hand grenades from the above named appellants is shaky and has not been established beyond a reasonable doubt. However, in respect of remaining appeals, Khuwaja Naveed Ahmed advocate for the appellants and Syed Nadeem ul Haq advocate, who is appearing for the appellant No.5 in Cr. ATA No.95/2014 after arguing their case at some length have prayed for modification and reduction in the sentence awarded to the appellants on the plea that the appellants are the first offenders and prior to present offence they have not committed any offence.
7. On the other hand learned DPG has opposed the acquittal of the appellants namely Muhammad Yaseen and Atta ur Rehman in Cr. ATA No.97 and 99/20914 on the ground that the prosecution has been able to prove its case against the appellants. However, he has not opposed the modification and reduction in the sentences awarded to the appellants through the impugned judgment in the remaining crimes and offences.
8. We have considered the submissions of the parties and have perused the material available on record. As per prosecution case initially on 18.03.2014 P.W.3 namely Abideen Ex.9 got his FIR registered bearing crime No.187/2014 at P.S. KIA(SIU) against two unknown culprits for demanding Bhatta from him. The investigation thereof was transferred to Special Investigation Unit, Saddar, Karachi on 28.03.2014 and SIP Ghous Alam P.W.2 Ex.8 was able to arrest the appellants in liaison with the complainant of the aforesaid case on 29.03.2014 at 0800 hours from 602 Workshop AB Senia Line, Karachi and from them not only the extortion money but a pistol from each appellant and a hand grenade each from appellants Muhammad Yaseen @ Atif @ Yaroo and Atta ur Rehman was recovered. Resultantly five different cases under Sindh Arms Act, 2013 and two cases under Explosive Substance Act were registered against the appellants in addition to the case already registered by P.W.3 Abideen. It is relevant to note that of arrest of the appellants and of all the recoveries, a joint memo of arrest and recovery was prepared at the spot. In support of the case as stated above the prosecution has examined in all five witnesses, who insofar as recovery of above stated incriminating articles from the appellants is concerned have supported the prosecution case. However, P.W.5 Inspector Tabasum Shaikh Ex.11, who is I.O. of the case in his deposition has disclosed that on 29.03.2014 the accused and case property including FIRs were handed over to him. He called the officials of Bomb Disposal Unit and they defused the hand grenades. In his cross examination, he has disclosed that the officials of Bomb Disposal Unit had come on the second day in the noon time. The reports of Bomb Disposal Unit in respect of two hand grenades Ex.11-C and 11-E, however, indicate that the alleged inspection took place on 10.04.2014 in between 1750 to 1800 hours and 1805 to 1815 hours respectively, which fact materially contradicts the disclosure made by the I.O. of the case regarding inspection taking place on the second day of the recovery of the hand grenades. It is also material to note that the prosecution has failed to examine relevant officer from Bomb Disposal Unit to verify the contents of above stated reports. The failure of the prosecution to examine the said officer from Bomb Disposal Unit to support veracity of the above stated reports alongwith above referred contradiction in the evidence of the I.O. has caused dent to the prosecution case in respect of recovery of hand grenades from the appellants Muhammad Yaseen and Atta ur Rehman. Because if the evidence of the I.O. is taken into account, it would mean that on second day of the recovery, the alleged hand grenades were inspected and defused and sealed, therefore, were kept safely at the proper place, but if the reports of the Bomb Disposal Unit are taken into account it would imply that till 10.04.2014 neither the alleged hand grenades were inspected, defused nor sealed, and therefore, the doubt about the circumstances and the place where alleged hand grenades were kept have arisen and so also on the portion of evidence of the I.O. in respect dealing with the hand grenades allegedly recovered from the appellants. We in view of above discussion are of the view that the prosecution has not been able to prove the alleged recovery of hand grenades from the appellants Muhammad Yaseen @ Atif @ Yaroo and Atta u Rehman beyond a reasonable doubt. We while giving benefit of doubt, allow their appeals No.97 and 99 of 2014 and acquit them of that charge.
9. Learned counsel for the appellants after arguing the case at some length in remaining appeals have prayed for modification and reduction in the sentences awarded to the appellants on the ground that they are the first offenders. Their prayer has not been opposed by learned DPG. We have seen the impugned judgment wherein all the appellants have been convicted and sentenced to suffer RI for 07 years with fine of Rs.50,000/- each, in default to suffer SI for six months more for committing offence u/s 7(h) of ATA, 1997, that is committing extortion from P.W.3 Abideen. As per section 7(h) ATA, the punishment on conviction shall not be less than [five years] and not more than (but may extend to imprisonment for life) and with fine. The appellants are first offenders and it has come in the evidence that all five appellants had come to collect only Rs.50,000/- from the complainant against demand of Rs.10,00,000/-. In these circumstances there is no reason to refuse request of learned counsel for the appellants for altering their conviction u/s 7(h) ATA. We accordingly dismiss the appeal No.95/2014 and 10/2015 on merits, however, alter the sentence of RI 07 years awarded to the appellants and reduce it to minimum period i.e. 05 years as provided under the relevant provision of law with fine of Rs.50,000/-, in default to suffer SI for three months more. All the appellants have also been convicted for keeping an unlicensed pistol each u/s 23(1)(a) of Sindh Arms Act, 2013 to suffer RI for 07 years with fine of Rs.20,000/-, in default to suffer SI for six months. Section 23 (1) (a) provides for that whoever acquires, possesses, carries or control any firearm or ammunition in infringement of section 3, shall be punished with imprisonment for a term which may extend to fourteen years and with fine. We, while keeping in view the above, dismiss the appeals No.98, 100, 101, 102 of 2014 but alter the sentence from RI 07 years awarded to the appellants and reduce it to 05 years with fine of Rs.20,000/-, in default, to suffer SI for three months more. Benefit of section 382-B Cr.P.C stands extended to the appellants. Their sentences shall run concurrently.
65 All the appeals stand disposed of in the above terms alongwith pending applications.
JUDGE
JUDGE
A.K.