Special Criminal Anti-Terrorism
Jail Appeal No.136 of 2017
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Malik Gadi
Appellant: Shaukat Ali son of Abdul
Haq Bulaidi through Mr. Abdul Razzak, advocate
Respondent: The
State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh.
Date of Hearing : 06.11.2017
Date of Judgment : 07.11.2017
JUDGMENT
NAIMATULLAH PHULPOTO, J.--- Appellant Shaukat Ali and
Rehmatullah were tried by learned Judge, Anti-Terrorism Court-II, Karachi in
Special Cases Nos.194, 152, 286 and 287 of 2011. By judgment dated 19.02.2015,
appellant Shaukat Ali was convicted under section 7(e) sub section 2 of the
Anti-Terrorism Act, 1997 for 10 years R.I.; under section 13(d) Arms Ordinance, 1965, for 3 years R.I.
and in police encounter case bearing Crime No.225/2011 under section 353, 324,
34 PPC for 2 years R.I. Co-accused Rehmatullah was convicted under section
13(d) Arms Ordinance, 1965 and in police encounter case bearing Crime No.225/2011
under section 353, 324, 34 PPC for 2 years R.I. All the convictions were
ordered to run concurrently. Appellants were extended benefit of Section 382-B
Cr.P.C.
2. Brief facts of the prosecution case as discussed
in the F.I.R. are that on one Muhammad Ali lodged his report on 13.11.2011 at
about 1400 hours, alleging therein that on 08.11.2011, his son, namely, Abdul
Hameed, aged about 3 years went out of the house at 0900 hours to play but he
did not return back. It was alleged that boy was searched in Mohalla but
without any clue. It is alleged that complainant received a call on his Cell
No.0307-2696305 from mobile No.0305-2331339, disclosing his name as Wilayat Ali
and stated that son of the complainant had been kidnapped for ransom and demanded
Rs.500,000/- for release of boy, else threat was extended that boy would be
murdered. It is alleged that complainant recognized voice of the caller as that
of Shaukat Ali, he knew him before the incident. Complainant lodged F.I.R. at
P.S. Gulistan-e-Jouhar, Karachi, it was recorded vide Crime No.658/2011 under
section 365-A, PPC read with section 7 of the Anti-Terrorism Act, 1997.
3. On 14.11.2011, three FIRs bearing Crimes
Nos.225, 226 and 227 of 2011 regarding offence under sections 324, 343, 34 PPC
and two FIRs for offence under section 13(d) of Arms Ordinance, 1965 were
registered at P.S. A Section, Sukkur. On 12.12.2011 IO collected call data of
Cell No.0305-2331339 in Crime No.658/2011. Accused Shaukat Ali prepared to make
judicial confession and he was produced before XVth Judicial
Magistrate, Karachi East on 26.11.2011 where his confessional statement was
recorded and accused Shaukat Ali was remanded to judicial custody. On the
conclusion of investigations, challan was submitted against the accused for
offences under sections 365-A, PPC read with section 7 Anti-Terrorism Act,
1997; 353, 324, 34, PPC and section 13(d) of the Arms Ordinance, 1965. Cases
under sections 324, 353, 34 PPC and section 13(d) of the Arms Ordinance, 1965
were amalgamated with main cases under section 365-A, PPC read with section 7
of the Anti-Terrorism Act, 1997 by the trial court in terms of Section 21-M of
the Anti-Terrorism Act, 1997.
4. Trial court framed charge against the
accused on 20.03.2013. Both the accused pleaded not guilty and claimed to be
tried.
5. At trial, prosecution examined 12
prosecution witnesses. PW-1 Muhammad Ali
(complainant) did not support the prosecution case. PW-2 Mst. Zarabai was
declared as a hostile witness. PW-3 ASI
Wajid Ali deposed that on 18.11.2011, he was posted at AVCC. IO Inspector Ali
Muhammad took him and other two police officials for arrest of accused in Crime
No.658/2013. Police party went to P.S. A Section Sukkur. Both accused were
interrogated separately by IO. IO prepared mashirnama of arrest in presence of
mashir HC Wajid Ali and PC Tanveer Khan on 19.11.2011. PW-4 ASI Muhammad Afzal
deposed that was duty officer at PS Gulistan-e-Jouhar, Karachi and on arrival
of complainant he lodged F.I.R. against the accused Shoukat Ali. PW-5, Muhammad
Babar deposed that on 12.12.2011 he was
posted as Inspector at AVCC. On the same date, he accompanied with inspector
Ali Muhammad, went to Computer Section of AVCC and collected call data of Cell
No.0305-2331339, required in Crime No.658/2011 under section 365-A, P.S.
Gulistan-e-Jouhar, Karachi. PW-6 Mr. Malik Muhammad Akhtar, Civil Judge &
Judicial Magistrate deposed that on 26.11.2011, he was posted at XVI Civil
Judge & Judicial Magistrate Karachi East and Incharge of XV Court of Civil
Judge & Judicial Magistrate, Karachi East. He recorded confessional
statement of accused Shaukat Ali by observing all the legal formalities. PW-7
Abdul Jabbar Mahar deposed that on 14.11.2011 he was on patrolling duty within
the jurisdiction of A Section P.S. Sukkur vide entry No.16-A along with
police officials and received information on telephone that three years child
kidnapped from the jurisdiction of Gulistan-e-Jouhar, Karachi was being taken from
City Bypass Sukkur towards Barrage Colony in the car. After an encounter, both
accused Shaukat and Rehmatullah were arrested and recovery of the abductee
child was also effected from the car. Such mashirnama of arrest and recovery
was prepared in presence of mashirs SIP Qazi Saeed Ahmed and SIP Abdul Jabbar.
Police brought the accused, abductee boy and case property at P.S. A Section
Sukkur and F.I.Rs. Nos.225, 226 and 227 of 2011 were registered against accused
under sections 324, 353, 34, PPC and section 13(d) of the Arms Ordinance, 1965
on behalf of State. PW-8 ASI Muhammad Saeed Qazi was examined. PW-9 PC Nawab
Khan of P.S. A Section Sukkur was examined. PW-10, HC Abdul Jabbar deposed
that he was Incharge of 15 Madadgar. PW-11 Ali Muhammad SIP deposed that he was
posted at AVCC as Inspector and received the investigation of F.I.R.
No.658/2011 registered at P.S. Gulistan-e-Jouhar, Karachi under section 365-A,
PPC. On 16.11.2011, SIP Qazi Saeed Ahmed of P.S. A Section Sukkur informed
him about arrest of two accused and recovery of child, he went to Sukkur on
18.11.2011. He obtained the custody of accused. On 26.11.2011 accused Shaukat Ali
was produced before the Judicial Magistrate concerned having jurisdiction, who
recorded his confessional statement. PW-12 PI Niaz Ahmed had submitted only
supplementary challan against accused Shaukat Ali and Rehmatullah under
sections 353, 324, 34, PPC and section 13(d) of the Arms Ordinance, 1965.
6. Statements of accused were recorded under
section 342, Cr.PC in which accused claimed false implication in this case and
denied the prosecution allegations.
7. After hearing
the learned counsel for the parties and assessment of evidence, by judgment
dated 20.03.2013 trial court convicted and sentenced the appellant and
co-accused Rehmatullah as stated above.
8. The facts of the case as well as evidence produced before
the trial Court find an elaborate mention in the judgment dated 20.03.2013
passed by the trial Court and, therefore, the same may not be reproduced here
so as to avoid duplication and unnecessary repetition.
9. We have
carefully heard the learned counsel for the parties and perused the evidence
minutely. We have come to the conclusion that prosecution has failed to prove
its case against appellant Shaukat Ali and Rehmatullah for the reasons that
PW-1 Muhammad Ali has admitted that his son was kidnapped as he had dispute
with his wife and Shaukat Ali (appellant) and said matter was compromised. He
has also admitted that accused Shaukat Ali had some altercation with
complainant and he suspected accused Shaukat Ali to be involved in kidnapping
of his son due to hot words. He has also admitted that accused Shaukat Ali is
not involved in the kidnapping of his son. It is surprising that despite that,
complainant has not been declared as hostile by prosecution. PW-2 Mst. Zarabai,
the mother of abductee has also not supported the case of the prosecution and
stated that her son went out of the house for playing and did not return back
till sunset. After two days, she received a telephone call and Rs.500,000/- as
ransom were demanded from her. She went to Jacobabad for her son, where she
received a call and she found her son sitting in a bus and boy was crying. She
brought her son back to Karachi. She was declared hostile and cross-examined by
prosecution but nothing favourable to prosecution came on record. She has
denied that telephone call was made to her by accused Shaukat Ali. ASI Wajid
Ali, PW-2, has deposed that on 18.11.2011 he went to Sukkur along with
Inspector Ali Muhammad. Police party proceeded to P.S. A section where IO had
brought accused persons and had detained them at police lockup. Both the
accused admitted their guild. We are unable to believe the evidence of ASI
Wajid Ali for the reasons that he has not disclosed as to how they came to know
that accused persons were involved in the kidnapping of the son of the
complainant for ransom. Inspector Muhammad Babar, PW-5 had produced call data
regarding calls in Crime No.658/2011, registered at P.S. Gulistan-e-Jouhar,
Karachi under section 365-A, Cr.PC. Mere production of call data is not
sufficient. Inspector has not mentioned that which cell number belong to
accused and on which dates calls were made to the wife of the complainant for
ransom. Incharge mobile data has also not been examined to satisfy the Court
about the ownership of the said mobile after kidnapping the boy for ransom. SIMs
were also not sealed. As regards to the confession of accused Shaukat Ali is
concerned, according to case of the prosecution, Mr. Malik Muhammad Akhtar, XIVth
Judicial Magistrate Karachi East recorded confession of accused Shaukat Ali. We
are unable to rely upon the confessional statement of accused Shaukat Ali for
the reasons that several irregularities have been committed by the Magistrate
in recording the confession, which has been retracted by accused. Magistrate in
the cross-examination has replied that he had not informed the accused that in
case accused refused to record his confession, his custody will not be given
back to the same police. He has also admitted that he had not issued the
certificate that it was correctly recorded. He has also admitted that
identification marks of the accused were not mentioned by him in his confession
so also the name of the father of the accused. Surprisingly, accused admitted
that police maltreated him and accused had marks of violence. Before
recording the confession and that too in crimes entailing capital punishment,
the recording Magistrate had to essentially observe all the mandatory
precautions (laid down in the High Court Rules and Orders). Fundamental logic
behind the same was that, all the signs of fear inculcated by the investigating
agency in the mind of the accused were to be shed out and he was to be provided
full assurance that in case he was not guilty or was not making of confession
voluntarily then in that case, he would not be handed over back to the police.
Thereafter, sufficient time for reflection was to be given after the first
warning was administered. At the expiry of such time, recording Magistrate had
to administer the second warning and the accused shall be assured that now he
was in the safe hands. All police officials whether in uniform or otherwise,
including Naib Court attached to the Court must be kept outside the Court and
beyond the view of the accused. After observing all these legal requirements if
the accused person was willing to confess then, all required questions as
formulated by the High Court Rules and Orders should be put to him and the
answers given, be recorded in the words spoken by him. Statement of accused
should be recorded by the Magistrate with his own hand and in case there was a
genuine compelling reason then, a special note was to be given that the same
was dictated to a responsible official of the Court like Stenographer or Reader
and oath shall also be administered to such official that he would correctly
type or write the true and correct version. In case, the accused was
illiterate, and made a confession, which was recorded in another language i.e.
Urdu or English, then the same should be read over and explained to him in the
language he fully understood, and thereafter a certificate, as required under
section 364, Cr.PC with regard to these proceedings should be given by the
Magistrate under his seal and signatures and the accused shall be sent to jail
on judicial remand and during this process at no occasion he shall be handed
over to any police official/officer whether he was Naib Court wearing police
uniform, or any other police official/officer, because such careless
dispensation would considerably diminish the voluntary nature of the
confession, made by the accused. Reliance can be placed on 2016 SCMR 274.
10. In our
considered view, confession of accused Shaukat Ali was not true voluntary and
this piece of evidence was not believable. ASI Muhammad Saeed Qazi has deposed
that on 14.11.2011 he was posted as ASI at P.S. A Section, Sukkur, on the
same date, along with Inspector S.H.O. Abdul Jabbar Mahar and other staff
members left police station in the Government vehicle for patrolling. During
patrolling received spy information that some persons have kidnapped a boy
within the territorial jurisdiction of P.S. Gulistan-e-Jouhar, Karachi and they
were coming to Sukkur city. Police party proceeded to Military Road Sukkur
where above named accused appeared in a car carrying with them a boy, kidnaped
by them. As soon as two accused persons saw police party they started firing at
the police station, police also started firing in self defence. Police arrested
both the accused and boy was recovered from them so also pistols were recovered
from their possession for which accused had no licenses. ASI Muhammad Saeed
Qazi had admitted that in the cross-firing with sophisticated weapons, neither
police nor accused received any injury, even not a scratch was caused to the
minor boy. No prudent mind would accept such prosecution history regarding
police encounter and recovery of pistols. We have no hesitation to hold that it
was a false story of police encounter and TT pistols have been foisted upon the
accused. Evidence of other police officials who were the members of the police
party was also not confidence inspiring and trustworthy. We have examined the judgment. It transpires
that trial court has failed to appreciate the evidence according to the settled
principles of law. Trial court has convicted accused Shaukat Ali under section
7(e) subsection (2) of the Anti-Terrorism Act, 1997 for 10 years R.I., such
sentence was erroneous. According to section 7(1)(e), the offence of kidnapping
for ransom is punishable for death or imprisonment for live but trial Court has
awarded sentence of 10 years R.I. which sentence is against the punishment
provided in Section 7(1)(e) of the Anti-Terrorism Act, 1997. As we have come to
the conclusion that prosecution has failed to prove its case against the
appellant. We would not like to discuss propriety of sentence awarded to
appellant Shaukat Ali. It may be mentioned here that appeal has only been filed
by accused Shaukat Ali, through the impugned judgment co-accused Rehmatullah
was also convicted for 3 years R.I. On expiry of his sentence, he has already
been released.
12. In the case of Tariq Pervez V/s. The State (1995 SCMR 1345), the Honourable Supreme Court has observed as
follows:-
It is settled law that
it is not necessary that there should many circumstances creating doubts. If
there is a single 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 a matter of grace and concession but as a matter of right.
13. For the above
stated reasons, we hold that prosecution has failed to prove its case against
the appellant, therefore, while extending the benefit of doubt, appeal is
allowed and the conviction and sentence recorded by the trial Court are set
aside and appellant is acquitted of the charge. He shall be released for with
if he is not required in any other case.
J U D G E
J
U D G E
Gulsher/PS