HIGH COURT OF SINDH AT KARACHI
Special Criminal Anti-Terrorism Appeals Nos. 306, 307,
319, 321 to 325 of 2016
Special Criminal Anti-Terrorism Appeals Nos. 01 to 03
of 2017
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Malik Gaddi
Date of Hearing
: 31.10.2017
Date of Judgment : 31.10.2017
Appellants : Shafiq-ur-Rehman appellant through Mr. Zulfiqar Ali
Solangi, Zulfiqar Ali Langha and Mr. Abbas Hyder Gaad Advocates.
Mehtab
Ali and Allah Wadhayo appellants through Mr. Abdul Nabi Joyo Advocate.
Akhtar
Ali Mojai appellant through Mr. Abdul Latif Leghari Advocate.
Farhan
Khalid appellant through Mr. Shah Nawaz M. Sahito Advocate.
Nemo
for Sajjad Haider Rajpar and Khalid Hussain Solangi appellants.
Respondent
: The State through
Mr. Jawwad Awan Special Public Prosecutor.
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- Khalid Hussain,
Akhtar Ali Mojai, Mehtab Ali, Farhan
Rajpar, Sajjad Haider Rajpar, Shafiq-ur-Rehman & Allah Wadhayo appellants were
tried by learned Judge, Anti-Terrorism Court No.X, Karachi in Special Case No. 748/2016
(FIR No. 229/2016 for offences under Section 385/386/34 read with Section
420/468 PPC read with Section 7 Anti-Terrorism Act, 1997 registered at P.S Boat
Basin), Special Case No. 749/2016 (FIR No. 231/2016 for offence under Section
23(1)(a) of Sindh Arms Act, 2013 registered at PS Boat Basin), Special Case No.
750/2016 (FIR No.232/2016 for offence under Section 23(1)(a) of Sindh Arms Act,
2013), Special Case No. 751/2016 (FIR No.233/2016 for offence under Section
23(1)(a) of Sindh Arms Act, 2013), Special Case No. 752/2016 (FIR No.234/2016
for offence under Section 23(1)(a) of Sindh Arms Act, 2013), Special Case No.
753/2016 (FIR No.235/2016 for offence under Section 23(1)(a) of Sindh Arms Act,
2013) & Special Case No. 754/2016 (FIR No.236/2016 for offence under
Section 24 of Sindh Arms Act, 2013). After full-dressed trial, by judgment
dated 14.12.2016, appellants were convicted and sentenced as under:
“In
view of my findings given in point No. 01, 02, 03 and the reasons discussed
above, it has come on screen that the prosecution has proved its charges
against the accused 01. Khalid Hussain Solangi s/o Mohammad Urs Solangi, 02.
Akhtar Ali Mojai s/o Mir Mohammad Mojai, 03. Mehtab Ali s/o Mohammad Hanif
Rajpar, 04. Farhan Rajpar s/o Khalid Hussain Rajpar, 05. Sajjad Haider Rajpar
s/o Ali Murad, 06. Shafiq-ur-Rehman s/o Haji Abdur Rehman, 07. Allah Wadhayo
s/o Ali Sher Rajpar without any shadow of doubt, I, therefore, hereby “convict”
them for the offence u/s 385/386/34 PPC r/w section 7(1)(h) of A.T.A 1997 and
sentence them to undergo “R.I” for “07” years (each) with Fine of Rs.50,000/-
(each). I also “convict” the accused Khalid Hussain Solangi, Akhtar Ali Mojai,
Mehtab Ali, Sajjad Haider Rajpar & Shafiq-ur-Rehman u/s 23(i)A Sindh Arms
Act, 2013 and they are sentenced to undergo “R.I for 07” years (each). Whereas,
the accused “Allah Wadhayo” is also “convicted” u/s 24 Sindh Arms Act, 2013 and
he is sentenced to undergo “R.I for 07” years. The benefit of section 382-B
Cr.P.C is also extended to them from the date of their arrest. All the above
sentences shall run concurrently.”
2. Brief
facts leading to the filing of these appeals are that on 21.04.2016 at about
1700 hours, complainant Syed Mohammad Nazir Abbas Zaidi lodged report at P.S
Boat Basin alleging therein that he was receiving threatening calls since
16.04.2016, on his Cell No. 0345-8292508 from Cell No. 0348-8317181 from unknown
caller. It is alleged that said caller demanded extortion amount of Rs.1 Crore
from the complainant and issued threats for dire consequences, in case of
non-payment of such amount. Complainant informed the caller that he would not
able to pay such huge amount. It is alleged that on 22.04.2016 finally Rs.40
lacs bhatta was settled in between complainant and caller. Caller informed the
complainant that he would tell him the place of payment of bhatta amount
afterwards. It is further alleged that caller threatened the complainant that
in case he contacted/informed the police, his family would be killed.
Complainant lodged such FIR. It was recorded vide FIR No. 229/2016 for offences
under Sections 385/386/34/420/468 PPC
read with Section 7 Anti-Terrorism Act, 1997 at P.S Boat Basin against the
unknown culprits.
3. After
usual investigation, Challan was submitted against accused for offences under
Sections 385/386/34/420/468 PPC read with section 7 Anti-Terrorism Act, 1997,
23(1)(a) & 24 of Sindh Arms Act, 2013 separately against accused. Learned
Trial Court amalgamated the aforesaid cases with main case in terms of Section
21-M of Anti-Terrorism Act, 1997.
4. Trial
Court framed charge against accused under the above referred sections at Ex.4.
Accused pleaded not guilty and claimed their trial.
5. At
trial, prosecution examined four witnesses, who produced relevant documents to
substantiate the prosecution case. Thereafter, prosecution side was closed vide
statement at Ex.10.
6. Statements
of accused were recorded under Section 342 Cr.P.C at Ex.11 to 17 respectively. Accused
claimed false implication in these cases and denied the prosecution
allegations. Accused Khalid Hussain Solangi, Shafiq-ur-Rehman, Sajjad Haider
Rajpar, Akhtar Ali Mojai, Allah Wadhayo, Farhan Rajpar and Mehtab Ali examined
themselves on oath in disproof of the prosecution allegations. Four defence
witnesses were also examined.
7. Trial
Court after hearing learned counsel for the parties and examination of the
evidence available on record, by judgment dated 14.12.2016, convicted and
sentenced the appellant as stated above. Hence these appeals were 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 14.12.2016 passed by the learned trial
Court, therefore, the same may not be reproduced here so as to avoid unnecessary
repetition.
9. Learned
Advocates for the appellants mainly contended that complainant had received
calls for bhatta on 16.04.2016, but FIR was lodged by him on 21.04.2016. Delay
in lodging of the FIR has not been explained by the prosecution. It is further argued that complainant did not
disclose the source of income from where he had brought Rs.10 lacs for payment
to the accused. Complainant has not mentioned description of the notes. It is
further argued that complainant has given timings of receipt of calls which do
not tally with the CDR. I.O has produced photograph of the recovered weapons
which are different from the case property produced before the trial Court. It
is also argued that SIM bearing No. 0348-8317181 did not belong to the accused
and SIMs recovered were not sealed at the spot. Counsel for the appellants
argued that despite prior information, no private person of the locality was
associated as mashir of the arrest and recovery. Learned Advocate appearing for
appellant Akhtar Ali argued that accused Akhtar Ali was in the custody of the
Rangers prior to the registration of the FIR and he was involved in this case.
It is also argued that brother of accused namely Barkat Ali had moved an application
under Section 491 Cr.P.C before the Bench of this Court at Sukkur but it is
argued that defence evidence was not considered by trial Court. Learned
Advocate appearing on behalf of appellant Allah Wadhayo and Mehtab Ali
submitted that appellant Allah Wadhayo is High School Teacher and at the time
of incident he was serving at Government High School Bandhi District Nawab Shah
and he was in illegal detention of Rangers for 20 days. He further submitted
that father of appellant Mehtab was also picked up by the law enforcement
agency and after the surrender of appellant Mehtab his father was released.
Appellant Mehtab was in illegal custody of Rangers for 10 days. Learned counsel
submitted Photostat copy of the Daily Newspaper “Subh” dated 02.04.2016
in order to show that it was false case. Learned counsel for the appellants in
support of their contentions have relied upon the cases reported as Irshad
Ali and another vs. Mohammad Shahid and another (2015 P.Cr.L.J 158) & Sagheer
Ahmed vs. The State and others (2016 SCMR 1754).
10. Mr. Jawwad,
learned Special Public Prosecutor argued that appellants were caught red handed
by police; extortion money was recovered from them as well as weapons. It is
argued that act of the appellants had created sense of fear and insecurity in
the mind of the complainant. Learned Special Public Prosecutor further argued
that prosecution has produced call data record of SIMs, which connected the
appellants in the commission of the offences. Lastly, it is argued that
prosecution had proved its’ case against the appellants and appeals merit no
consideration.
11. We have
carefully heard the learned counsel for the parties and scanned the entire
evidence.
12. Close
scrutiny of evidence reflects that complainant Syed Mohammad Nazir Abbas Zaidi
has deposed that he had received threatening calls on his Cell No. 0345-8292508
on 16.04.2016 from Cell No. 0348-8317181. Unknown caller demanded Rs. 1 Crore
bhatta amount from complainant and issued threats of dire consequences in case
of non-payment. Later on Rs.40 lacs bhatta amount was settled between
complainant and caller(s). Complainant has deposed that on 22.04.2016, accused
had asked the complainant to reach at Marine Road Block-1 Scheme No.5, KPT
Green Area, Opposite Karachi United Football Ground, Karachi along with bhatta
amount. In the meanwhile, complainant informed Pakistan Rangers as well as
police officials. Rangers officials and police informed complainant that they would
reach at the pointed place at specified time. He has further stated that
Pakistan Rangers and police officials in order to secure arrest of the culprits
stood at the different places by concealing themselves around place of
incident. At 1930 hours, a car bearing No. AG-0070 white colour appeared in
which three persons were sitting and two motorcycles on which 2/2 persons were
sitting also reached there. The said motorcyclists then went towards the
complainant and asked him to handover bhatta amount quietly to the person who
was sitting on the driving seat of the said car. Complainant handed over
shopping bag which contained Rs. 10 lacs to the person sitting on the driving
seat of the car. As soon as culprit had received bhatta amount, police
officials intercepted accused and caught them hold. Pistols and unlicensed
daggers were recovered from the possession of accused Khalid Hussain Solangi,
Sajjad Haider, Akhtar Ali, Shafiq-ur-Rehman, Allah Wadhayo and Mehtab. We have also
examined evidence of other P.Ws carefully and have come to the conclusion that
prosecution has failed to prove its’ case against appellants for the reasons
that prosecution story appears to be unnatural and unbelievable for the reasons
that complainant could not explain from where he arranged/brought Rs.10 lacs
for payment to the accused persons. It is also unbelievable that complainant
took Rs.10 lacs alone and went to the pointed place for payment to the accused
persons. Complainant has also deposed that he contacted the law enforcement
agencies through his friend but name of said friend has not been disclosed by
him nor his friend was examined before the Trial Court. Perusal of the
mashirnama of arrest and recovery produced at Ex.5/C reveals that there is
overwriting in the timings. There are also over writings in the crime numbers
in the letters produced before the trial Court at Ex. 8/B & Ex. 8/C. We
have also noted there is over writing in the cell number recovered from accused
Mehtab Ali. When confronted, learned Special Public Prosecutor had no plausible
explanation regarding such over writings. In the evidence of complainant as
well as other P.Ws the descriptions and numbers of weapons have also not been mentioned.
Perusal of the evidence of SI Akmal Hussain Shahid of Pakistan Rangers,
Inspector Saeed Karim and Inspector Rafiq Ahmed, show that none of them have
deposed that after recovery of the weapons, those weapons were safely kept at
the police station and were safely transmitted to the expert for opinion. It is
argued by the learned Advocates for the appellants that these weapons have been
foisted upon the appellants. For the satisfaction, it was for the prosecution
to establish the safe custody of the weapons at police station and safe transit
to the expert. It is further observed that inspite of prior information to
police and Rangers officials, no private person was associated by the police
for making him as mashir in this case. It has also come on record that after
arrest of the accused, private persons had gathered at the place of incident
but prosecution has failed to examine them. It has also come on record that SIM
No. 0348-8317181 from which it was alleged that calls were made to complainant
did not belong to the accused and it was admitted by I.O that said SIM was in the name of one Minhaj, but
I.O has failed to interrogate said Minhaj. C.D.R submitted before the trial
Court was neither verified by the Cellular Company nor authorized officer of
the Cellular company was examined before the trial Court, hence the same is of
no help to the case of the prosecution. Moreover, SIMs which were allegedly
recovered from the possession of the accused, were also not sealed at spot. It
is a matter of record that Barkat Ali, brother of appellant Akhtar Ali had
submitted an application under Section 491 Cr.P.C before this court at Sukkur
Bench, in respect of illegal detention of appellant Akhtar Ali prior to the
registration of this case. Surprisingly, Trial Court did not consider defence
evidence regarding application under Section 491 Cr.P.C and orders passed on it
by this court. Unfortunately, I.O did
not enquire/investigate this aspect of the case and trial Court has also failed
to examine the defence plea. We are unable to believe prosecution evidence that
all the accused were armed at the time of their arrest, pistols and daggers
were recovered from their possession. Generally, it is observed that it is against
the nature of criminals that they surrender before the police, without any
resistance as alleged by the prosecution. In this case, there are several
infirmities in the prosecution case as highlighted above. We have also no hesitation to hold that
learned Judge, Anti-Terrorism Court had no jurisdiction to try this case for
the reason that allegation of terrorism was missing in this case; antecedents/
business of the complainant from whom bhatta was demanded has also not brought
on record. Complainant went himself to pay bhatta to accused. Complainant was not
put in fear or death or grievous hurt by accused, except threat calls. Bhatta
was paid at abundant area. At this juncture,
it would be appropriate to refer section 386 of the Pakistan Penal Code, which
is 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."
13. From the
evidence available on record provisions of section 6(2)(k) of Anti-Terrorism
Act, 1997 are not attracted in this case. Therefore, conviction under Section
7(h) of Anti-Terrorism Act, 1997 is not sustainable under the law. Even at the
cost of repetition, it is mentioned that evidence of complainant is also 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
and it was rejected without assigning reasons. The crucial issue of
jurisdiction of Anti-Terrorism Court is involved in this 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 has no jurisdiction to try such cases under the
provisions of Anti-Terrorism Act, 1997. 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.”
14. In this case, there are number of
infirmities/lacunas, which 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.”
15. 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 appellants
beyond any shadow of doubt. Moreover, learned Judge, Anti-Terrorism Court-X,
Karachi had no jurisdiction to try these cases. Accused have faced agony of
long trial since 22.04.2016, as such re-trial in the peculiar circumstances of
the case would not meet ends of justice. Consequently, Appeals are allowed,
conviction and sentences awarded by the learned Judge, Anti-Terrorism Court-X,
Karachi vide judgment dated 14.12.2016 are set aside. Appellant Khalid
Hussain, Akhtar Ali Mojai, Mehtab Ali,
Farhan Rajpar, Sajjad Haider Rajpar, Shafiq-ur-Rehman & Allah Wadhayo shall
be released from custody forthwith, if they are not wanted in some other
custody case.
16. These are the reasons for the short order
announced on 31.10.2017.
JUDGE
JUDGE
@