HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals No. 50 & 67 of 2015

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Khadim Hussain Tunio

Date of Hearing : 05.10.2017 .

Date of Judgment : 12.10.2017 .

Appellants : Mohammad Arsalan & Mussawar Alam through Mr. Mamnoon K.Sherwani Advocate.

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

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Musawar Alam and Mohammad Arslan appellants were tried by learned Judge, Anti-Terrorism Court No.II, Karachi in Special Case No.B-120/2012 (FIR No.371/2012 for offence under Sections 387 PPC, 25-D of Telegraph Act read with Section 7 of Anti-Terrorism Act, 1997, registered at Police Station Taimuria). After full-dressed trial, appellants were found guilty and by judgment dated 12.03.2015, appellants were convicted under Section 7(h) of Anti-Terrorism Act, 1997 and sentenced to 5 years R.I. Benefit of section 382-B Cr.P.C was also extended to them.

2. Brief facts of prosecution case as reflected from the evidence of the complainant Mohammad Mustafa Khan are that on 25.06.2012, accused Arslan came at flat of the complainant situated at Rahatabad, North Nazimabad and talked to the complainant about the items of the salesmanship. On the same night complainant received a call on his Cell No. 0302-2757578 from an unknown number. Caller demanded Rs.50,000/- as bhatta from the complainant. 4/5 calls were made and caller reduced demand of bhatta from Rs.50,000/- to Rs.30,000/-. Finding no other way, complainant went to the Police Station where he also received another call. Complainant, reported matter to SHO. After few days, the complainant was called at Police Station Noor Jahan, where he saw a boy and identified him to be Arslan, who came at his flat. Complainant lodged report bearing Crime No. 371/2012 for offence under Sections 387 PPC, 25-D of Telegraph Act read with Section 7 of Anti-Terrorism Act, 1997 against accused.

3. After usual investigation, challan was submitted against accused for offences under Sections 387 PPC, 25-D of Telegraph Act read with Section 7 of Anti-Terrorism Act, 1997.

4. Trial Court framed charge against accused under the above referred sections. Accused pleaded not guilty and claimed their trial.

5. At trial, prosecution examined seven witnesses, who produced relevant documents, to substantiate the charge. Thereafter, prosecution side was closed.

6. Statements of accused were recorded under Section 342 Cr.P.C at Ex.P/22 and P/23 respectively. Both the accused claimed false implication in these cases and denied the prosecution allegations. Accused Mohammad Arslan examined himself on oath in disproof of the prosecution allegations examined DWs (1) Rashid Rafi and (2) Mohammad Ayub in his defence.

7. Trial Court after hearing learned counsel for the parties and examination of the evidence available on record, by judgment dated 12.03.2015, convicted and sentenced the appellants as stated above. Hence these appeals are filed. We intend to dispose of these appeals by this single judgment.

8. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the Judgment dated 12.03.2015 passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

9. Mr. Mamoon K. Sherwani learned counsel for the appellants has contended that prosecution has failed to substantiate the charge against the accused. It is argued that incident had occurred in between 25.06.2012 to 27.06.2012 and FIR was lodged on 18.07.2012 and delay in lodging FIR has not been explained by prosecution. Learned counsel for the appellants further argued that prosecution has failed to produce CDR of the calls made to the complainant before trial court. Learned counsel further argued that appellants have been acquitted under Section 265-K Cr.P.C by III-Additional Sessions Judge, Central Karachi in Crime No.340/2012 for offence u/s 353/324/34 PPC as well as in FIR No.341/2012 for offence u/s 13(d) Arms Ordinance by V-Judicial Magistrate, Central Karachi. Lastly, learned counsel for the appellants argued that element of terrorism is missing in the present case. Learned Judge, Anti-Terrorism Court had no jurisdiction to try the case. In support of his contentions, reliance is placed upon the cases of Sagheer Ahmed vs. The State and others (2016 SCMR 1754) & Tariq Pervez vs. The State (1995 SCMR 1345).

10. Mr. Mohammad Iqbal Awan, learned DPG argued that prosecution has proved its’ case against appellants by cogent evidence. However, he admitted that SIM 0322-2325681 recovered from the possession of accused Arslan was not got verified by the I.O. that in whose name it was issued. Learned DPG conceded to the legal position that element of terrorism was not attracted in the present case and frankly stated that conviction under Section 7(h) of the Anti-Terrorism Act, 1997 was not warranted in law. Learned DPG opposed the appeals and prayed for dismissal.

11. We have carefully heard the learned counsel for the parties and scanned the entire evidence. We have come to the conclusion that prosecution has failed to establish its’ case against the appellants for the reasons that incident had occurred in between 25.06.2012 to 27.06.2012 and FIR was lodged on 18.07.2012. Prosecution has failed to explain such delay in lodging of FIR. Prosecution has failed to produce CDR of the calls made to the complainant before the trial court. Complainant in his examination in chief has deposed that accused Arslan came to his flat, wherein in his cross-examination he deposed that both accused present in Court had come to his flat. Such improvement made by the complainant in his cross-examination has not in fact improved the case of prosecution, rather it has created doubt, its’ benefit must go to the appellants. It is admitted fact that SIM was not sealed at the spot, this piece of evidence would not improve the case of prosecution. There is no evidence that by the acts of accused, terror was created in the area. Therefore, the element of terrorism is missing in the present case. As such, conviction under Section 7(h) of Anti-Terrorism Act, 1997 is not sustainable under the law. Defence plea was also not deeply considered by the Trial Court. In this case, there are several circumstances, which have created doubt in the prosecution case. Moreover, the crucial issue involved in this case is the issue of jurisdiction of Anti-Terrorism Court to try the case. In the case of Sagheer Ahmed vs. The State and others (2016 SCMR 1754), it has been held by the Honourable Supreme Court that in the cases in which element of terrorism is missing, Anti-Terrorism Court had no jurisdiction to try such case. Relevant portion is reproduced 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.”

12. It is pointed out by learned counsel for the parties that appellants have been acquitted today more or less in the similar circumstances in Special Criminal Anti-Terrorism Appeals No. 49 and 138 of 2015. Relevant portion of the judgment is reproduced as under:-

“We have carefully heard the learned counsel for the parties and scanned the entire evidence. We have come to the conclusion that prosecution has failed to establish its’ case against the appellants for the reasons that incident had occurred on 21.05.2012 and matter was reported to the police on 25.07.2012. There was inordinate delay in lodging of the FIR for which no plausible explanation has been furnished. It has also come on record that complainant had sent bhatta money through Easy Paisa, such act of accused did not attract the jurisdiction of the Anti-Terrorism Court as element of terrorism is missing in this case. As such, conviction under Section 7(h) of Anti-Terrorism Act, 1997 is not sustainable under the law. Investigation was also not carried out in accordance with law for the reasons that I.O did not bother to interrogate the person in whose name the CNIC was issued, on which complainant had sent bhatta money through easy paisa. CDR was also not produced before the trial Court to prove the prosecution case. Evidence of complainant is silent regarding his financial status and source of income against which accused had been demanding bhatta. Defence plea was also not considered by the Trial Court. In this case, there are several circumstances, which have created doubt in the prosecution case.”

13. In this case, there are number of infirmities/lacunas, as highlighted above, same have created serious doubt in the prosecution case. It is settled principle of law for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez vs. The State (1995 SCMR 1345), wherein the Honourable Supreme Court has held as under:-

“The concept of benefit of doubt to an accused persons is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as matter of grace and concession but as a matter of right.”

14. In the view of above, we have come to the conclusion that learned Judge, Anti-Terrorism Court had no jurisdiction to try case of extortion of money. Moreover, prosecution has failed to prove the aforesaid cases against the appellants beyond any shadow of doubt. The lacunas pointed out in the prosecution evidence have not been taken into consideration by trial Court while convicting the appellants rendered the impugned judgment nullity in law. Therefore, we extend benefit of doubt to the appellants and allow Special Criminal Anti-Terrorism Appeal No. 50 & 67 of 2015. Consequently, the conviction and sentence recorded by the Trial Court vide judgment dated 12.03.2015 are set aside. Appellants Musawar Alam and Mohammad Arslan are acquitted of the charges. Appellant Mohammad Arslan is present on bail, his bail bond stands cancelled and surety discharged. Appellant Musawar Alam is in custody. He shall be released forthwith, if he is not required in any other case.

JUDGE

JUDGE