Criminal Anti-Terrorism Acquittal
Appeal No. 123 of 2014
Present
Mr.
Justice Naimatullah Phulpoto
Mr.
Justice Khadim Hussain Tunio
Date of Hearing: 18.09.2017
Date of
announcement of judgment: 29.09.2017
Appellant: The
State through Mr. Abrar Ali Khichi DPG.
Respondent: Naveed
Ahmed is not present.
NAIMATULLAH PHULPOTO, J: Respondent/accused was tried by learned Judge,
Anti-Terrorism Court No.IV, Karachi, in Special Case No.A-61/2013 for offences
under Sections 384/385/386 PPC read with Section 7 of the Anti-Terrorism Act,
1997, registered at P.S. Gulistan-e-Jauhar, Karachi, by Judgment dated 30.10.2014,
Respondent/accused was acquitted by extending him benefit of doubt. State filed
instant Criminal Anti-Terrorism Acquittal Appeal No.123 of 2014 against the
acquittal recorded by the trial Court.
2. Brief
facts leading to the filing of the appeal against acquittal are that on
25.05.2013 at 1800 hours, complainant Muteeullah registered FIR bearing Crime
No. 293/2013 registered at Police Station Gulistan-e-Jauhar, for offences under
Section 384/385/386 PPC read with Section 7 of Anti-Terrorism Act, 1997,
stating therein that he was running his own shop in the name and style of
“Zubair Hardware”. One unknown culprit had received extortion of Rs.70,000/- at
different times through Easy Paisa on Mobile Phone No.0311-2007909 and CNIC
No.42101-7410597. Accused was apprehended at the spot by the police. On
inquiry, apprehended accused disclosed his name as Naveed Ahmed son of Fayyaz
Ahmed. On his personal search, police recovered one mobile phone Nokia N-73
with SIM and Rs.200/- in presence of mashirs. Mashirnama of arrest and recovery
was prepared. Thereafter, accused and case property were brought at police
station where complainant recorded FIR bearing Crime No. 293/2013 for offences
under Section 384/385/386 PPC read with Section 7 of Anti-Terrorism Act, 1997.
3. Charge
was framed against accused by the learned Judge, A.T.C. No.IV, Karachi, under
the aforesaid sections at Ex-4. Accused pleaded not guilty and claimed to be
tried. At the trial, prosecution examined six prosecution witnesses. Thereafter,
prosecution side was closed at Ex-12.
4. Statement
of the accused was recorded under Section 342 Cr.P.C. as Ex.13 in which accused
has denied the prosecution allegations and stated that he has been falsely
implicated by the complainant as there was some outstanding dues towards
complainant by his father/DW-2 Fayyaz. Accused declined to give statement on
Oath in disproof of prosecution allegations. However, accused examined DW- Syed
Samiur Rehman and DW-2 Fayyaz in his defence.
5. On
the conclusion of the trial, learned Judge, ATC-IV, Karachi, after hearing the
learned counsel for the parties, on the assessment of entire evidence acquitted
the accused by judgment dated 30.10.2014, mainly for the following reasons:-
“In this case there is main
and important role of complainant, who is private person namely Muteeullah, is
the owner of the Hardware shop where such alleged incident of Bhatta amount
took place but here the prosecution failed to examine the complainant
Muteeullah, who lodged FIR against accused however, in my humble view the FIR
itself is not substantive piece of evidence until and unless the same is
corroborated with the deposition of complainant even here the complainant did
not examine, despite of issuing repeatedly process of summons and NBWs against
complainant Muteeullah and other PW Azizullah, both brothers interse, and
prosecution were repeated directed to procure their attendance before this
court, as their evidence is much important than the other police officials but
in this regard the I.O failed to procure their attendance while stated in his deposition that he went to the address of
complainant where it was informed by the locality persons that they have
concealed themselves and migrated from their addresses and they have sold out
their Hardware shop which is situated in Gulistan-e-Jauhar and in his
connection Investigating Officer recorded the statements of inhabitants of shop
as well as resident of complainant which is available on record.
Apart from this, accused
deposed in his statement u/s 342 Cr.P.C as well as DW-1 Syed Samiur Rehman and
his father/DW-2 Fayyaz in his favour they both were working in the complainant
as Plumber and they stated that there is dispute between complainant party and
father of accused in respect of some outstanding dues towards complainant and
on the demand of DW-2, complainant threatened DW-2 Fayyaz, the father of
accused with dire consequence and lastly due to relations with police
personnel, complainant booked accused Naveed, the son of DW-2 Fayyaz in this
case with connivance of police, which shows that there is no incident took
place viz Bhatta amount but there is some settlement regarding outstanding/dues
towards complainant which received by accused party at different times through
Easy Paisa even the owner of Easy Paisa Shop also failed to recognize the
accused person during his deposition recorded in this Court at Ex.10 and rest
of the PWs are police officials who are interested one and main and important
witnesses who are complainant his brother as private persons, including
complainant were not examined in this court. Here it is lacking therefore, in
these circumstances there appears reasonable doubt, as such the point discussed
above is answered as not proved.”
6. Mr. Abrar Ali Khichi, learned DPG argued that prosecution
has proved its case against the accused. Sufficient evidence was brought on
record by the prosecution to connect the accused in the commission of the
offence. Lastly, it is contended that prosecution proved its case but trial
Court without assigning sound reasons acquitted accused. It is prayed that
acquittal may be converted to conviction.
7. We have heard the learned DPG and perused the record. We
have come to the conclusion that prosecution has failed to prove its case
against Respondent/accused for the reasons that complainant Muteeullah and P.W Azizullah most important witnesses of the
case were not examined before the Trial Court. Trial Court made efforts to
record their evidence, but prosecution failed to produce them before the Trial
Court. Other evidence brought on record was in sufficient to connect the Respondent/accused
with the commission of the offence. Ingredients of offence with which the
Respondent/accused was charged are not satisfied from the evidence, which has
been brought on record. So far the appeal against acquittal is concerned after
acquittal respondent/accused has acquired double presumption of innocence, this
Court would interfere only if the judgment was arbitrarily, capricious or
against the record. But in this case there were number of infirmities and
impugned judgment of acquittal in our considered view did not suffer from any
misreading and non-reading of the evidence. As regard to the consideration
warranting the interference in the appeal against acquittal and an appeal against
conviction principle has been laid down by the Hon’ble
Supreme Court in various judgments. In
the case of State/ Government Sindh through Advocate General Sindh, Karachi versus
Sobharo (1993 SCMR 585), Honourable Supreme Court has laid down the
principle that in the case of appeal against acquittal while evaluating the
evidence distinction is to be made in appeal against conviction and appeal
against acquittal. Interference in the latter case is to be made when there is
only gross misreading of evidence, resulting in miscarriage of justice.
Relevant portion is reproduced as under:-
“14. We are fully satisfied
with appraisal of evidence done by the trial Court and we are of the view that
while evaluating the evidence, difference is to be maintained in appeal from
conviction and acquittal appeal and in the latter case interference is to be
made only when there is gross misreading of evidence resulting in miscarriage
of justice. Reference can be made to the case of Yar Muhammad and others v. The
State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed.”
8. For
what has been discussed above, we are of the considered view that impugned
judgment is based upon valid and sound reasons and is entirely in consonance
with the law laid down by the Honourable Supreme Court of Pakistan. Neither,
there is misreading, nor non-reading of material evidence or misconstruction of
facts and law. Resultantly, Criminal Anti-Terrorism Acquittal Appeal No. 123 of
2014 is
without merits and the same is dismissed.
JUDGE
JUDGE