HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No.179 of 2015

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Khadim Hussain Tunio

Appellant: Arsalan alias Sohrab son of Zaheeruddin through Mr. Kashif Ali, advocate

Respondent: The State through Mr. Abrar Ali Khichi, Deputy Prosecutor General Sindh.

Date of Hearing : 18.09.2017

Date of Judgment : 25.09.2017

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Arsalan alias Sohrab was tried by learned Judge, Anti-Terrorism Court No.X, Karachi in Special Case No.A-191 of 2014. By judgment dated 31.07.2015, appellant was convicted under section 386/34, PPC read with section 7(h) of the Anti-Terrorism Act, 1997 and sentenced to 7 years R.I. with fine of Rs.25,000/-, in case of default to suffer R.I. for six months more. Accused was extended benefit of section 382-B, PPC.

2. Brief facts of the prosecution as disclosed in the F.I.R. are that on 10.12.2013, at about 1910 hours, complainant Dr. Fasihullah Mir son of Dr. Qudratullah Mir moved an application to P.S. Saudabad (SIU/CIA) wherein he stated that he is the owner of Dr. Fasih’s ENT and General Hospital, situated at A-28, Kala Board, Malir, Karachi. He further stated that he has been receiving telephone calls for extortion on his mobile phone No.0301-8277033 and he also mentioned the number through it he has been receiving extortion calls, cell numbers were 0347-8348893, 0027749063602, 0332-6720478, 0304-4291931. He further stated that he has been threatened of murder and the culprit claimed himself as “Mirza Bhai” from South Africa and claimed that he has already murdered five Doctors and threatened him for dire consequences and used abusive language. The record of these threats was saved in his Black Berry phone and he also requested for protection and action against the caller. Hence, the present F.I.R. was lodged against the accused persons vide Crime No.300/2013 at P.S. Saoodabad, Karachi East under sections 385, 506, PPC, read with section 25-D of the Telegraph Act and section 7 of the Anti-Terrorism Act, 1997.

3. After registration of F.I.R., investigation was entrusted to Inspector Waseem Ahmed Siddiqui. IO visited the place of wardat in presence of mahirs, recorded 161, Cr.PC statements of PWs. Investigation Officer arrested the accused in presence of mashirs. Inspector Moinuddin and ASI Asif recovered two Nokia Phone along with two SIMs. During interrogation, accused produced undelivered TCS envelopes from his flat. On envelops Dr. Fasiuddin’s name was written. Call data was also collected by the IO. On the conclusion of investigation, challan was submitted against accused Arsalan under the above referred sections. Co-accused hafiz Muhammad Asghar and Hafiz Muhammad Furqan were shown as absconders. They were declared as proclaimed offenders.

4. Trial court framed charge against accused Arsalan alias Sohrab for offences under section 7(h) of the Anti-Terrorism Act, 1997 only. Accused pleaded not guilty and claimed to be tried.

5. At trial, prosecution has examined PW-1 Fasiullah Mir, PW-2 Muhammad Akbar, PW-3 Shahid Farooq, PW-4 Moinuddin, PW-5 Karam Khan Lashari, PW-6 Niaz Ahmed, PW-7 Muhammad Imran, PW-8 Waseem Ahmed Siddiqui. Thereafter, prosecution side was closed.

6. Statement of accused was recorded under section 342, Cr.PC. Accused claimed false implication in this case and denied the prosecution allegations.

7. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 31.07.2015 convicted and sentenced the appellant as stated above. Hence this appeal.

8. Trial court after hearing the learned counsel for the parties, and assessment of evidence, convicted and sentenced the appellant under section 386/34, PPC read with section 7(h) of the Anti-Terrorism Act, 1997 and sentenced him to 7 years R.I. with fine of Rs.25,000/-, in default thereof he was ordered to suffer 6 months R.I. more.

9. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 31.07.2015 passed by the trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

10. Mr. Kashif Ali, learned counsel for the appellant Arsalan alias Sohrab argued the appeal at length. Lastly stated that he would not press the appeal on merits and submitted that appellant is in custody since the date of his arrest i.e. 04.02.2014. Appellant has served sentence including remissions 02 years, 06 months and 23 days as per jail roll dated 19.09.2017. Learned advocate for appellant further submitted that appellant is a young person, he is not previous convict and he is the supporter of the large family. Period of sentence already undergone by him may be taken into consideration and prayed for reduction of sentence.

11. Mr. Abrar Ali Khichi, learned Deputy Prosecutor General Sindh argued that appeal is not pressed on merits by the learned advocate for the appellant, he recorded no objection in case sentence served by the appellant including remissions is considered by this Court for reduction of sentence. Learned DPG submits that there is nothing on the record to show that the appellant is previous convict of the offences of like nature.

12. For satisfaction of the Court, we have perused the entire evidence. Complainant Dr. Fasihuddin has given the entire episode of the incident and has stated that on 03.12.2013 he was present at hospital, he received a call and bhatta of Rs.500,000/= was demanded from him. Calls were repeated and threat of murder was extended to him. He reported the matter to police. PW No.3 Shahid Farooq has deposed that he is Administrator of National Medical Center, near Kala Pul, Karachi. On 21.12.2013, three TCS envelops were handed over to him in the name of Dr. Aslam Khush, Dr. Umar Farooq and Dr. Salahuddin. Investigation has been carried by Inspector Moinuddin. He has stated that on 04.02.2014 he was directed by SSP to assist Inspector Waseem Ahmed Siddiqui in investigation of Crime No.300/2013. On the same day, he left for investigation with Inspector Waseem Ahmed Siddiqui. On the way, they received information that accused Arsalan alias Sohrab was involved in extortion cases from doctors. He proceeded to the house of accused Arsalan and recovered from his possession two Nokia mobile 1616 with SIMs Nos.0310-2006350 and 0313-2547414. Inspector Waseem Ahmed Siddiqui has also deposed that investigation was entrusted to him. On 04.02.2014 he received information that accused Arsalan was involved in this case and he was present at his flat at Nagan Chowrangi. Accused was arrested from his Flat and two Nokia phones and SIMs were recovered from his possession. He has further deposed that the accused led the police party to his Flat and produced 7 envelops of Al-Barqa Bank and one envelop on which name of Dr. Fashiuddin was written.

13. Above evidence reflects that appellant Arsalan was working in TCS and he had sent envelops to Dr. Fasihuddin, who is complainant in this case and demanded bhatta, call data of the SIMs which were recovered from the possession of appellant Arsalan have also been produced in the evidence which clearly show that from SIMs Nos.0310-2006350 and 0313-2547414 calls were made to the complainant. Huge evidence has been produced against appellant Arsalan, to connect him in this crime. Trial court has rightly appreciated the evidence and accused was found guilty to the charge. Learned advocate for appellant after arguing the appeal at some length did not press it on merits. As regards to the request for taking the lenient view in sentence is concerned, it has been admitted by learned D.P.G. that accused is not previous convict in such case like the present one. It is also submitted by the learned advocate for the appellant that appellant is supporter of the large family.

14. Previous non-convict and no other instance of appellant’s involvement in such cases are the circumstances for reducing the sentence, as held in the case of Niazuddin v. The State (2007 SCMR 206), whereby Honourable Supreme Court of Pakistan reduced the sentence in the following terms contained in Paras 6 and 7 of the judgment:

“6. However, coming to the question of sentence we note that it has been conceded by learned A.A.G. that petitioner is a previous non-convict and there is no other instance of petitioner’s involvement in drug trafficking. It has also been brought in evidence that at the time of this arrest he met custodial violence and on that account he received injuries. Perhaps those who arrested him wanted to extract confession for his alleged involvement with some other narcotic dealer. In these circumstances petitioner needs to be given a chance in his life to rehabilitate himself.

7. Accordingly while dismissing the appeal we are persuaded to reduce the sentence of imprisonment of petitioner from 10 years to six years. Order accordingly.”

15. It is settled law that in a particular case, carrying some special features relevant to the matter of sentence, a court may depart from the norms and standards prescribed but in all such cases court concerned shall be obliged to record such reasons for such departure as held in the case of STATE through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force vs. MUHAJID NASEEM LODHI (PLD 2017 Supreme Court 671).

16. For the above stated reasons, we provide an opportunity to the appellant to pass a life like a law-abiding citizen and a chance in his life to rehabilitate himself and sentence awarded to him under section 7(h) of the Anti-Terrorism Act, 1997 for 7 seven years R.I. is reduced to 5 years R.I. and sentence of fine Rs.25,000/- is maintained. However, in case of nonpayment of fine, he will suffer 6 months S.I. instead of R.I.

17. In the view of above, appeal is dismissed, however, sentence is modified in the above terms.

J U D G E

Gulsher/PS