HIGH COURT OF SINDH AT KARACHI

Cr. Anti-Terrorism Appeal No. 42 of 2015

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Rasheed Ahmed Soomro

Date of Hearing : 11.08.2017.

Date of Judgment : 16.08.2017.

Appellant : Mohammad Anwar through Mr. Abdul Baqi Lone Advocate.

Respondent : The State through Mr. Mohammad Iqbal Awan DPG.

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Mohammad Anwar was tried by learned Judge, Anti-Terrorism Court No.II Karachi for offences under Section 385/386 PPC read with Section 7(h) of Anti-Terrorism Act, 1997. By judgment dated 07.03.2015, appellant was convicted under section 7(h) of the Anti-Terrorism Act 1997 and sentenced to suffer R.I for 5 years. Benefit of section 382-B Cr.P.C was extended to him.

2. Succinct facts according to FIR No.153/2014 registered on the statement of Jamshed Alam recorded on 20.08.2014 are that he resides in house No.A-828, Block-H, North Nazimabad and runs a Paan shop near Student Biryani Restaurant Block-H, North Nazimabad. It is alleged that accused Muhammad Anwar was demanding bhatta from complainant since one year and was issuing him threats for dire consequences. It is alleged that complainant had paid Rs.1,50,000/- to accused due to fear and accused demanded Rs.10,000/- more. Complainant agreed to pay Rs.5000/-. It is stated that on 20.08.2014, he was present in his Paan Cabin and saw police officials of Police Station Haidri in private Car. Police vehicle was stopped. Complainant told police about extortion of money by accused. It is alleged that ASI Nasir Shah started watch of above named accused. At about 16:30 hours, Anwar came on his motorbike No.KGZ-8258 to shop of complainant and received Rs.5000/- from him. Persons of locality gathered there who caught hold of accused and started beating him, accused received injuries on his face and other parts of body. The police recovered Rs.5000/- from him. FIR bearing Crime No.153/2014 was registered against accused under sections 385/386, PPC, read with section 7 of the Anti-Terrorism Act, 1997.

3. After registration of FIR, investigation was entrusted to Inspector Mohammad Ashraf Ali Shah. He inspected place of wardat in presence of mashirs, recorded 161 Cr.P.C statement of daughter of the complainant, collected medical certificate of accused Mohammad Anwar . on the conclusion of the investigation, I.O found insufficient evidence against the accused in the commission of the offence and he submitted such report before the concerned Judicial Magistrate, who did not agree with the opinion of the I.O. and directed him to submit the final report/challan before the competent Court of law.

4. Learned Judge, Anti-Terrorism Court-II, Karachi framed charge against accused Mohammad Anwar for offence under Sections 385/386 PPC read with Section 7(h) of Anti-Terrorism Act, 1997. Accused pleaded not guilty and claimed trial.

5. At trial prosecution examined the following witnesses:

(i) Complainant/P.W-1 Jamshed Alam at Ex.P/1.

(ii) P.W-2 Aarfa at Ex.P/4.

(iii) P.W-3 Tariq Malik at Ex.P/6.

(iv) P.W-4 Nasir Hussain Shah at Ex.P/7.

(v) P.W-5 Asma at Ex.P/9.

(vi) P.W-6 Akhleema at Ex.P/10.

(vii) P.W-7 Shah jehan at Ex.P/11.

(viii) P.W-8 Inspector Mohammad Ashraf Ali Shah at Ex.P/12

Thereafter, prosecution side was closed by learned DDPP vide his statement dated 20.01.2015 at Ex.17.

6. Statement of accused was recorded under Section 342 Cr.P.C at Ex.18. Accused claimed false implication in the case and denied the prosecution allegations. He raised plea that he had given the hand of his daughter to the son of the complainant. Thereafter, he refused, which annoyed complainant. Accused had raised another plea that he had given loan of Rs.10,000/- to the complainant when he demanded, this case was registered against him. In a question “what else he has to say”, accused has replied that on the relevant date, he had gone to the complainant for return of his money, he was arrested in this case. Accused did not lead evidence in his defence and declined to give statement on oath in disproof of prosecution allegations.

7. Trial Court after hearing the learned counsel for the parties and examination of the evidence, by judgment dated 07.03.2015, convicted and sentenced the appellant as stated above, hence this appeal is filed.

8. Learned Advocate for the appellant mainly contended that complainant has stated in his FIR that he paid Bhatta to the accused but at trial he has deposed that Bhatta was paid by his daughter to the accused. It is further contended that no call data was collected by the I.O during investigation. Learned Advocate for the appellant argued that accused was empty handed when he was arrested, ingredients of Section 386 read with Section 7(h) of the Anti-Terrorism Act, 1997 are not attracted in this case. Lastly, it is contended that I.O. had found accused innocent during the course of investigation. Counsel for the appellant submits that prosecution is highly doubtful. In support of his contentions, he has relied upon the cases of Khuda-e-Noor vs. The State (PLD 2016 S.C 195), Sagheer Ahmed vs. The State and others (2016 SCMR 1754) &Irshad Ali and another vs. Mohammad Shahid and another (2015 P.Cr.L.J 158).

9. Mr. Mohammad Iqbal Awan learned DPG argued that accused was arrested by the police at spot and bhatta money was recovered from his possession. He has argued that all the P.Ws have implicated accused in the commission of the offence except I.O. However, learned DPG admitted that I.O had failed to collect call data of mobile used by the accused for making calls to the complainant. Learned DPG has supported the case of prosecution and prayed for dismissal of appeal.

10. After hearing the learned counsel for the parties, we have perused the evidence carefully.

11. Complainant Jamshed Alam has deposed that present incident occurred in the month of August 2014, but he could not give the exact date. He deposed that accused made calls on his mobile but he did not remember the number of the mobile of accused. He has further stated that accused issued him threats that in case he failed to pay him Bhatta of Rs.10,000/-, his children will be picked up. On the day of incident accused came to his shop and his daughter gave him Bhatta of Rs.5000/-. Police and the persons of the locality came over there. Accused was arrested. In the cross-examination, he has denied the suggestion that he had taken Rs.10,000/- as loan from the wife of the accused. He has also denied the suggestion that on the day of incident, accused came for the return of his loan but he was involved in this case falsely. P.W-2 Aarfa has deposed that accused came to her father for bhatta on 20.08.2014 at 4:30 pm and she paid Rs.5000/- to the accused so that he should not disturb more. In the cross-examination, she has denied the suggestion that there was dispute in between his father and accused over the money. P.W-3 Tariq Malik has deposed that on the day of incident he was present in his shop. He heard noise and came to know that one accused has been arrested. He went to the shop of the complainant and saw that public was beating the accused. P.W-4 ASI Nasir Hussain Shah has deposed that on 20.08.2014, he was present at P.S Hyderi Market where he received a call that one person was demanding Bhatta from him and he would come at 4:00 pm. ASI along with other police officials proceeded in private car and when they reached there, they saw that persons of the vicinity had gathered at the shop of complainant and they had caught hold one person. Two mobiles were recovered from the possession of accused so also cash of Rs.5000/-. ASI recorded FIR of the complainant vide Crime No.153/2014 under sections 385/386, PPC, read with section 7 of the Anti-Terrorism Act, 1997. P.W-8 Mohammad Ashraf Ali Shah I.O has deposed that during investigation he contacted complainant but without any response. However, on 24.08.2014, complainant and his daughter appeared at Police Station and he visited the place of wardat in presence of mashirs, recorded 161 Cr.P.C statements of P.Ws, collected medical certificate of accused Anwar. After investigation, he found no incriminating material/evidence against accused to connect him with the commission of offence. Judicial Magistrate did not agree with his opinion and he submitted challan against the accused. Rest evidence of PWs is of formal in nature.

12. Above evidence reflects that accused was empty handed at the time of incident. There was no evidence that accused committed extortion by putting complainant or his daughter in fear of death or of grievous hurt. Complainant has failed to mention the mobile number of the accused from which he received calls on his cell number. During investigation, no call data was collected by the I.O. It has come on record that complainant and accused both are Bengalis. Accused has raised plea that he had given hand of his daughter to the son of the complainant, thereafter, he had refused, which caused much annoyance to the complainant. He has raised another plea that he had given loan of Rs.10,000/- to the complainant when he went for its return, he was involved in this case and maltreated. In these circumstances, it would be unsafe to rely upon the evidence of the prosecution witnesses without independent corroboration, which is lacking in this case. Recovery of bhatta money from accused has not been proved by cogent evidence. Prosecution story appears to be unbelievable for the reasons that complainant was running a pan cabin, he was not a rich person, demand of accused from such person does not appeal to the mind. From the close scrutiny of the evidence, we have come to the conclusion that prosecution has failed to establish the ingredients of Section 386 PPC, which read as under:

‘386. Extortion by putting a person in fear of death or grievous hurt.—Whoever commits extortion by putting any person in fear of death or of grievous hurt to that person to any other, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.’

Section 7(h) of the Anti-Terrorism Act, 1997 is also reproduced hereunder:

‘Section 7(h)-The act of terrorism committed falls under clause (h) to (n) of subsection(2) of section 6, shall be punishable, on conviction, to imprisonment of not less than [five years] [but may extend to imprisonment for life] and with fine; and

(i) Any other act of terrorism not falling under clauses (a) to (h) above or under any other provision of this Act, shall be punishable, on conviction, to imprisonment of not less than [five years] and not more than [ten years] or with fine or with both].

(ii) An accused, convicted of an offence under this Act shall he punishable with imprisonment of ten years or more, including the offences of kidnapping for ransom and hijacking shall also be liable to forfeiture of property].‘

13. Prosecution has failed to prove the demand of bhatta; call data has not been produced before the trial court. Mere allegation of extortion of money did not attraction section 6(2)(k) of the Anti-Terrorism Act, 1997. Complainant had made improvements in his evidence. It would be unsafe to rely upon such type of evidence for maintaining the conviction in the case. Trial Court has failed to consider defence theory without assigning reasons. More or less in the similar circumstances, learned Division Bench of this Court in the case of IRSHAD ALI and another versus MUHAMMAD SHAHID and another (2015 P Cr. L J 158) by extending benefit of doubt, acquitted the accused.

14. Learned advocate for the appellant has rightly argued that learned Judge, ATC had no jurisdiction to try this case under the provisions of the Anti-Terrorism Act, 1997, and placed reliance upon the case of Sagheer Ahmed vs. The State and others (2016 SCMR 1754), in which the Honourable Supreme Court has held as under:

“2. We have heard the learned counsel for the parties and have gone through the record.

3. High Court in the impugned judgment has observed as follows:

"10. The averments of FIR are silent regarding the financial status and source of income of the complainant against which accused have been demanding Bhatta. Complainant has also not disclosed the specific dates, times and places of demanding Bhatta by accused persons nor any such evidence was produced before the Investigating Officer to prima facie establish such allegations. In absence of any tangible material, mere allegations of demanding Bhatta do not attract section 6(2)(k) of Anti-Terrorism Act, 1997, in the present case nor said section was mentioned in the FIR and Challan. Perusal of Challan reflects that Investigating Officer had made a request to the Anti-Terrorism Court for return of FIR and other documents so that Challan may be submitted before the ordinary Court of law as no case under the provisions of Anti-Terrorism Act, 1997 was made out, but his request was declined by the Anti-Terrorism Court vide order dated 09.06.2014, and cognizance was taken by the Court.

11. Cumulative effect of the averments of FIR, surrounding circumstances and other material available on record have replicated that offence having been committed on account of previous old enmity with a definite motive. The alleged offence occurred at Faiz Wah bridge, which is not situated in any populated area, consequently, the allegations of aerial firing have not appeared to us to be a case of terrorism as the motive for the alleged offence was nothing but personal enmity and private vendetta. The intention of the accused party did not depict or manifest any act of terrorism as contemplated by the provisions of the Anti-Terrorism Act, 1997. Consequently, we are of the considered view that complainant has failed to produce any material before the Investigating Officer that at the time of occurrence sense of fear, panic, terror and insecurity spread in the area, nevertheless it was a simple case of murder due to previous enmity, thus, alleged offence does not fall within purview of any of the provisions of Anti-Terrorism Act, 1997. While probing the question of applicability of provisions of Anti-Terrorism Act, 1997, in any crime, it is incumbent that there should be a sense of insecurity, fear and panic amongst the public at large to invoke the jurisdiction of the Anti-Terrorism Court. Indeed, in each murder case there is loss of life which is also heinous crime against the society but trial of each murder case cannot be adjudicated by the Anti-Terrorism Court, except existence of peculiar circumstances as contemplated under sections 6, 7, 8 of Anti-Terrorism. Act, 1997."

4. We note that observation made by the High Court is based upon the record of the case and no misreading in this respect was pointed out before us. The submission of learned counsel for the petitioner that in evidence petitioner has brought on record sufficient material to substantiate the fact of demand of Bhatta in FIR that complainant party was doing business of brick kiln. There is no allegation in the FIR that complainant party was engaged in brick kiln business. Be that as it may, we find that High Court has rightly dealt with the matter and prima facie there is nothing on record to deviate from the same. The petition is, therefore dismissed and leave refused.”

15. Prosecution witnesses nowhere have deposed that accused committed offence of extortion by putting complainant in fear of death or of grievous hurt. As regards to the allegation under section 7(h) of the Anti-Terrorism Act,1997 is concerned, prosecution has failed to establish the alleged act of the accused demanding ransom within the scope of terrorism as envisaged under section 6 of the Anti-Terrorism Act, 1997. Evidence produced against accused in the present case did not attract jurisdiction of Anti-Terrorism Court for the reasons that act of accused would not amount to an act of terrorism, thus offence was triable by court of ordinary jurisdiction as held by the Honourable Supreme Court in the case of Khuda-e-Noor vs. The State (PLD 2016 S.C 195), wherein it is held as under:

“3. The crucial question involved in this appeal is as to whether the learned Sessions Judge, Mastung was justified in holding that the case in hand was one of honour killing and, thus, it was a case of "terrorism" attracting the exclusive jurisdiction of an Anti-Terrorism Court or not. It also needs to be examined as to whether the High Court of Balochistan, Quetta was justified in declaring in the case of Gul Muhammad (supra) that by virtue of the provisions of section 6(2)(g) of the Anti-Terrorism Act, 1997 all cases of honour killing are to be tried by an Anti-Terrorism Court. We have minutely gone through the said judgment passed by the High Court of Balochistan, Quetta and have found that for holding that all cases of honour killing attracted the definition of "terrorism" the High Court had only relied upon the provisions of section 6(2)(g) of the Anti-Terrorism Act, 1997 without appreciating that by virtue of the provisions of section 6 of the Anti-Terrorism Act, 1997 any action falling within any of the categories of cases mentioned in subsection (2) of section 6 of the Anti-Terrorism Act, 1997 could not be accepted or termed as "terrorism" unless the said action , was accompanied by a "design" or "purpose" specified in section 6(1)(b) or (c) of the said Act. If the interpretation of section 6(2)(g) of the Anti-Terrorism Act, 1997 advanced by the High Court of Balochistan, Quetta in the said judgment were to be accepted as correct then all cases of a person taking the law in his own hands are to be declared or accepted as cases of terrorism but that surely was not the intention of the legislature. The provisions of section 6 of the Anti-Terrorism Act, 1997 which define "terrorism" clearly show that the said section is divided into two main parts, i.e. the first part contained in section 6(1)(b) and (c) of the said Act dealing with the mens rea mentioning the "design" or the "purpose" behind an action and the second part falling in section 6(2) of the said Act specifying the actions which, if coupled with the mens rea mentioned above, would constitute the offence of "terrorism". This scheme of section 6 of the Anti-Terrorism Act, 1997 had unfortunately not been considered by the High Court of Balochistan, Quetta while rendering the judgment mentioned above and, thus, we have every reason to declare that the said judgment passed by the High Court of Balochistan, Quetta had not laid down the law correctly and had in fact misconceived the legal position contemplated by section 6 of the Anti-Terrorism Act, 1997.

4. The case in hand was a case of a private motive set up in the FIR and during the trial the motive set up in the FIR was changed by the prosecution and an element of honour killing was introduced but even that did not change the character of the offence which was nothing but a private offence committed in the privacy of a home with no design or purpose contemplated by section 6(1)(b) or (c) of the Anti-Terrorism Act, 1997. We have thus, entertained no manner of doubt that the allegations leveled against the appellant and his co-accused in the present criminal case did not attract the jurisdiction of an Anti-Terrorism Court, the learned Sessions Judge, Mastung was not justified in transferring the case to an Anti-Terrorism Court and the High Court was also not legally correct in dismissing the appellant's revision petition. This appeal is, therefore, allowed, the impugned orders passed by the learned Sessions Judge, Mastung as well as the High Court of Balochistan, Quetta are set aside and it is declared that the appellant's case is to be tried by a court of ordinary jurisdiction.”

16. For the above stated reasons, while respectfully relying upon the above cited authorities, we have no hesitation to hold that prosecution has failed to prove its case against the appellant beyond any shadow of doubt. Moreover, learned Judge, Anti-Terrorism Court-II, Karachi had no jurisdiction to try this case. Accused has faced agony of long trial since 20.08.2014, as such re-trial in the peculiar circumstances of the case is not ordered. Consequently, Appeal is allowed, conviction and sentence awarded by the learned Judge, Anti-Terrorism Court-II, Karachi vide judgment dated 07.03.2015 are set aside. Appellant is present on bail, his bond stands cancelled and surety is hereby discharged.

JUDGE

JUDGE