HIGH COURT OF SINDH AT KARACHI

 

Cr. Anti-Terrorism Appeal No.37 of 2012

Cr. Anti-Terrorism Appeal No.118 of 2014

 

Present:     Mr. Justice Naimatullah Phulpoto

        Mr. Justice Rasheed Ahmed Soomro

 

Appellants:                            Muhammad Aamir son of Muhammad Sharif in Appeal No.37 of 2012 through Mr. Ajab Khan Khattak, advocate

 

                                                Muhammad Sohail son of Muhammad Chaman, in Appeal No.118 of 2014 through Mr. Ajab Khan Khattak, advocate.

 

Respondent:                          The State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh.

                                               

Date of Hearing        :           22.08.2017

 

Date of Judgment    :            28.08.2017                                                                     

 

JUDGMENT

 

NAIMATULLAH PHULPOTO, J.- Appellants Muhammad Aamir and Muhammad Sohail were tried by learned Judge Anti-Terrorism Court-V, Karachi in Special Cases Nos.B-139 and 140 of 2012. By judgment dated 14th February 2014 appellants were convicted for committing offence of extortion of bhatta under section 7 of the Anti-Terrorism Act, 1997 and sentenced to 7 years R.I. and to pay fine of Rs.50,000/-. In case of default in payment of fine they were ordered to suffer S.I. for two years. Accused Muhammad Sohail was convicted under section 13(d) of the Arms Ordinance and sentenced to 7 years R.I. Benefit of section 382-B, Cr.PC was extended to them. Both sentences were ordered to run concurrently.

 

2.         Brief facts of the case as disclosed in the F.I.R. are that on 08.09.2012, complainant Muhammad Nauman son Abdul Qayyum, resident of Sector 11-D, New Karachi lodged report at P.S. New Karachi that he was truck driver by profession. On 22.09.2012 at 2215 hours he received telephone call on his Cell Phone No.03452570873 from Cell Phone No.0323-2556308 asking that he was nephew of Bholu. Caller threatened him that he knew of his family members and also know his routine of visits. He demanded Rs.5 lac as bhatta otherwise he will be killed and dead body will be thrown in bag and if complainant consulted with any agency of police it will not be good for him. F.I.R. was registered under section 385/605 PPC and investigation was assigned to Inspector Abdul Hameed Gabol. 

 

3.         Inspector Abdul Hameed Gabol inspected the place of incident and recorded the statements of witnesses. He also sent letter for Cell Phone call data. On 23.09.2012 complainant came to him and stated that the culprits called him on phone with bhatta at Ground of Sector 11-I, Opp. Government Degree College, North Karachi, therefore, inspector with his subordinates in police mobile along with complainant Muhammad Nauman reached at the said place and hided the police party. At about 1820 hours two young boys on one motorcycle No.SKF-7212 arrived there. The drover of motorcycle was wearing helmet. Complainant gave the amount, which both the culprits kept in their pocket. In the meantime, complainant grappled with those two boys and the Inspector caught hold of both the boys who disclosed their names as Muhammad Aamir son of Sharafuddin and Muhammad Sohail son of Muhammad Chaman. From person search of accused Mohammad Sohail one TT Pistol with loaded magazine 3 rounds and one packet of currency notes (first and last notes of Rs.1000/- genuine and in between the 98 plain papers) recovered. From personal search of Muhammad Aamir one packet of currency notes (first and last notes of Rs.1000/- genuine and in between the 98 plain papers), one mobile phone SIM No.0323-2556308 and cash Rs.300/- recovered. Both the accused were arrested under mashirnama. The motorcycle was also seized under section 550 Cr.PC as documents of which were not produced, hence it was taken into possession. The complainant also produced one CD cassette on which he had recorded conversation between culprits and complainant. A separate F.I.R. u/s 13-D of Arms Ordinance was also registered against accused Muhammad Sohail being crime No.260/2012.   

 

4.         Investigation was carried out by inspector Abdul Hameed Gabol. He inspected the place of vardat in presence of mashirs, recorded 161 Cr.PC statements of PWs. He had collected call data of Cell No.0323-2556308 so also CD containing conversation between complainant and accused. After completion of usual investigation IO submitted challan against accused in the main case bearing Crime No.243/2012, registered at P.S. New Karachi under sections 385/506 PPC, read with section 25-B of Telegraph Act and F.I.R. No.260/2012 under section 13(d) of the Arms Ordinance.

5.         Learned Judge, Anti-Terrorism Court-II vide order dated 06.03.2013 ordered for joint trial in terms of Section 21-M of the Anti-Terrorism Act, 1997, framed charge against both the accused at Ex-4. Both the accused pleaded not guilty and claimed to be tried. 

 

6.         At trial, prosecution examined PW-1 Muhammad Nauman (complainant) at Ex-7, PW-2 Sharafat Ali at Ex-8, PW-3 Shahzad Ahmed at Ex-9, PW-4 Abdul Qayyum at Ex-10, PW-5 Muhammad Sultan Qureshi at Ex-11, PW-6 Naveed Ahmed at Ex-12, PW-7 Abdul Hameed Gabol at Ex-14. Thereafter, prosecution side was closed at Ex-15.

7.            Statements of appellants/accused were recorded u/s 342 Cr.P.C at Ex.16 and 17, both the appellants claimed false implication in this case and denied the prosecution allegations.

8.         On the conclusion of the trial, after hearing the learned counsel for the parties, and assessment of the evidence available on record, convicted and sentenced the appellants vide impugned judgment dated 14th February, 2014 as stated above, hence these Appeals are preferred by the Appellants.         

 

9.         Mr. Ajab Khan Khattak, learned counsel for the appellants, argued that accused Aamir was adopted son of the complainant, it was impossible for him to hide his identity. SIM recovered from accused Aamir was not got verified by the IO that in whose name it was issued as per record of the Mobile company.

 

10.       Learned D.P.G. argued that appellant Aamir and Sohail telephoned complainant Muhammad Nauman for bhatta through Cell No.03232556308, the same was recovered from accused Aamir; both accused were arrested at the spot. TT pistol and mobile phone with above mentioned SIM card were recovered from them. Extortion money of Rs.200,000/- (Rs.100,000/- from each) was also recovered from them. Conversation CD in between complainant Abdul Qayyum and accused was produced before the trial Court. Call data has also been produced in evidence by the IO which shows the conversation from SIM No.03232556308 to Complainant’s Cell No.03452570873. Both the accused have been convicted for extortion of money for 7 years and accused Sohail has been convicted under section 13(d) Arms Ordinance, 1965 for 7 years. Learned D.P.G. submits that he has no objection in case sentence is reduced to five (5) years.

 

11.       After hearing the learned counsel for the parties, we have carefully scanned the entire evidence available on record.

12.       Appellant Aamir and Sohail telephoned complainant Muhammad Nauman for bhatta through Cell No.03232556308, which was subsequently recovered from Aamir. Both were arrested at the spot. TT pistol and mobile phone with above mentioned SIM card were recovered from them. Extortion money of Rs.200,000/- (Rs.100,000/- from each) was also recovered from them. Rs.4000/- were genuine notes, other notes were dummy. 7 PWs were examined by the prosecution. Complainant has admitted that accused Aamir is his adopted son but Aamir concealed his identity at the time of incident by wearing helmet. Conversation CD in between complainant Abdul Qayyum and accused was produced before the trial Court. Call data at Page 83 is produced in evidence by the IO which shows the conversation from SIM No.03232556308 to Complainant’s Cell No.03452570873. Both accused got recorded their evidence on oath and produced one DW by each accused. Both the accused have been convicted for extortion of money for 7 years and accused Sohail has been convicted under section 13(d) of the Arms Ordinance, 1965 for 7 years. Both sentences were ordered to run concurrently.

 

13.       From perusal of the evidence it appears that PW-1 Muhammad Nauman has deposed that on 02.09.2012 he was sleeping in his house. At 09.45 p.m. a call was made on his telephone, it was attended by his brother Sufyan. Caller used filthy language, then father of Muhammad Nauman talked to the caller, who demanded Rs.500,000/- and extended threats of dire consequences. Caller further told to his father that he was aware about the family members and business of his father. Caller made calls repeatedly and repeated his demand of ransom for three days. Complainant went to the police station on 08.08.2012 and lodged such report. Complainant prepared CD of telephonic conversation which he handed over to the IO. He further deposed that he settled bhatta of Rs.200,000/- to be paid to the caller near Degree College at 06:30 p.m. and informed to the police. IO along with his staff was concealing themselves around the degree college. At 06:30 p.m. one motorcycle black coloured appeared there on which two persons were sitting. Driver of the motorcycle was wearing helmet, another accused was without helmet. Both the accused demanded from the complainant ransom and he handed over the said persons two packets of Rs.100,000 each. Each packed contained genuine note of Rs.1000/- on upper side and one genuine note on the below side and in between each packed 98 notes were blank papers. Both packets were received by the accused persons who were sitting on the back seat of motorcycle and he gave one packet to motorcycle driver. In the meanwhile, he had deposed that he grappled with those accused persons, police also emerged and caught hold accused persons. From the personal search of accused sitting on the back side of motorcycle one packet of currency notes, one pistol with magazine with 3 live bullets and Rs.200/- were recovered. From driver of the motorcycle one packet of currency notes, one mobile and Rs.300/- were recovered. IO prepared mashirnama of arrest and recovery. Both accused had disclosed their names. Accused sitting on the back of motorcycle disclosed his names as Sohail and driver of the motorcycle disclosed his name as Aamir, who was wearing helmet. Complainant has deposed that accused Aamir was previously known to him.

 

14.       PW-6 Naveed Ahmed was a member of police party and stated that complainant grappled with accused persons and SIP Abdul Hameed Gabol directed police party to catch hold the accused persons. He has also given other details regarding the recovery from the possession of the accused.

 

15.       PW-7 Inspector Abdul Hameed Gabol has conducted investigation in this case and has deposed that on 08.08.2012 he received investigation of Crime No.243/2012 registered at P.S. New Karachi under section 385, PPC. He visited the place of vardat in presence of mashirs. on 23.09.2012 complainant appeared on police station and told IO that he had talked the accused persons and settled the amount of Rs.200,000/-. IO was further informed that said amount was to be paid to the accused persons on 23.09.2012 at 06:00 p.m. at Degree College. Then complainant reached at the pointed place so also the police. Police was hiding, accused appeared at 18:20 hours on motorcycle. Motorcycle was being driven by the person who was wearing helmet. Complainant delivered them packets. Then complainant grappled with both the accused, in the meanwhile police appeared and caught hold the culprits. Accused who was wearing helmet disclosed his name as Aamir other accused disclosed his name as Sohail. From both accused packets of money given by the complainant were recovered. From accused Sohail 30 bore pistol with 3 live bullets was also recovered. IO has deposed that one Nokia mobile SIM was also recovered from Aamir and same SIM was used by accused for calling to the complainant. Both accused were arrested by the investigation officer and he lodged separate case against Sohail under section 13(d) of the Arms Ordinance, 1965. He has also sent pistol to the FSL and received positive report. IO also collected mobile data which he had produced as Ex-14, containing seven leaves, so also CD Ex-7/E. We have also deeply considered the defence plea of both the accused.

 

16.       From the close scrutiny of the evidence it appears that appellants Aamir and Sohail telephoned complainant Muhammad Nauman for bhatta from Cell No.03232556308, that SIM was subsequently recovered from accused Aamir. Both the accused were arrested at spot and bhatta given to accused by complainant was recovered, TT pistol was also recovered from accused Sohail. Packets of extortion money of Rs.100,000/- was also recovered from each accused. All the seven PWs have fully supported the case of the prosecution. Accused Aamir was wearing helmet at the time of his arrest and was concealing his head as he was the adopted son of the complainant. It clearly shows that prosecution has succeeded to prove its case. Prosecution has also produced call data which shows that calls were made by the accused from Cell No.03232556308 to complainant’s Cell No.0345-2570873. There was huge evidence against both the accused. Trial Court for the sound reasons by rejecting the defence plea has convicted both the appellants.

 

17.       As regards to the sentence awarded by the trial court to the appellants is concerned, learned advocate for the appellants argued that appellants are young, they are not previous convicts and they are supporters of large families and minor children and they have remained in jail for about 4 and 1/2 years and prayed for reduction in sentence. Mr. Ali Haider Saleem, learned D.P.G. raised no objection in case conviction is maintained and sentence is reduced to some reasonable extent.

 

18.       According to jail roll dated 15.08.2017 submitted by Senior Superintendent, Central Prison, Karachi Appellant Muhammad Amir has served sentence including remissions 04 years 03 months and 13 days and Muhammad Sohail has served sentence including remissions 04 years 04 months and 16 days.

19.       Appellants are young persons. Admittedly they are not previous convicts and they are supporters of their large families. Today, small children of appellants/accused are present in Court. We maintain conviction awarded to the appellants by learned trial Court by judgment dated 14.02.2014. However, by extending benefit of section 382-B, Cr.PC, sentence awarded to appellants Aamir and Muhammad Sohail under section 7 of the Anti-Terrorism Act, 1997 is reduced to already undergone and fine of Rs.50,000/- each is remitted. Sentence awarded to appellant Muhammad Sohail under section 13(d) of Arms Ordinance, 1965 is reduced to already undergone. Both accused are present on bail, their bail bonds stand cancelled and their surety stands discharged.  

 

20.       In the view of above, appeals are dismissed, however, sentence is reduced to already undergone by the appellants and fine is remitted.

         

                                                                                                   J U D G E

 

                                                J U D G E 

Gulsher/PS