HIGH COURT OF SINDH AT KARACHI
Special Criminal Anti-Terrorism Appeals No. 58, 59, 75
& 76 of 2015
Present:
Mr. Justice Naimatullah Phulpoto
Mr. Justice Khadim Hussain Tunio
Date of Hearing : 04.10.2017 .
Date of Judgment : 04.10.2017
.
Appellants : Mohammad Jawad and Mohammad Haseeb through Mr. Mohammad
Nadeem Khan and Mr.Irfan Aziz Advocate.
Respondent : The State through Mr. Mohammad Iqbal Awan DPG.
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- Mohammad Haseeb and
Mohammad Jawad, appellants were tried by learned Judge, Anti-Terrorism Court
No. X at Karachi in Special Cases Nos. B-617, B-618 and B-619 of 2014. By
judgment dated 27.03.2015, both the appellants were convicted under Sections
384/386/34 PPC read with Section 7(h) of the Anti-Terrorism Act, 1997 and
sentenced to suffer R.I for 5 years with fine of Rs.50,000/- each. In case of
default in payment of fine, they were ordered to suffer RI for 06 months more.
Both the appellants were also convicted under Section 23(1)(a) of the Sindh
Arms Act 2013 and sentenced to suffer R.I for 5 years with fine of Rs.20,000/-
each. In case of default in payment of fine, they were ordered to suffer R.I
for 06 months more. Benefit of Section 382-B Cr.P.C was extended to the
appellants. All the sentences were ordered to run concurrently.
2. Brief
facts of the prosecution case are that on 24.09.2014 at 10:00 am, his wife
received a call from unknown person, who demanded Bhatta of Rs.10,00,000/- and in case of non-payment, threat of
murder was issued to the family members. Complainant Abdul Ghaffar also
received call on his Cell No.0333-2112452, same demand of Bhatta was repeated. Complainant felt insecure and made application
to CPLC and concerned police on 25.09.2014. On 30.09.2014 complainant was asked
by the caller to reach at Ziauddin Hospital Fateh Park at 12.00 am (mid night)
for payment of Bhatta. He informed the
concerned police regarding culprits and reached there. He had already lodged
FIR at police station Hyderi Market against unknown persons for offences under
Sections 384/386 PPC. It is alleged that at 12:10 am, a boy came to the
complainant at Fateh Park. Complainant gave signal to the police officials and
police apprehended him. Accused on enquiry, disclosed his name as Jawad. During
interrogation, accused informed the police that another culprit was sitting in
a Suzuki Khyber car. Police also caught hold the other accused, who on enquiry
disclosed his name as Haseeb. It is alleged that police recovered T.T. Pistol
along with three rounds, one mobile and cash of Rs.500/- from the possession of
accused Haseeb and from the possession of accused Jawad police recovered one
T.T.Pistol 30 bore with five rounds and cash of Rs.900/-. Both the accused had
no licenses for the weapons carried out by them. Accused were arrested and
mashirnama of arrest and recovery was prepared in presence of mashirs.
Thereafter, both the accused were brought at police station where separate FIRs
under Section 23(1)(a) of the Sindh Arms Act 2013 were registered against both
the accused.
3. During
investigation, I.O. visited the place of wardat, recorded 161 Cr.P.C statements
of the prosecution witnesses, collected call data of the mobiles used by the
accused so also the report of fire arms Expert. On the conclusion of the
investigation, final report in the main case bearing crime No.178/2014 for
offences u/s 384/386/34 PPC read with Section 7 ATA 1997 as well as in connected
offshoot, cases registered against accused under Section 23(1)(a) of the Sindh
Arms Act, 2013 was submitted before the learned Judge, Anti-Terrorism Court-II
Karachi.
4. On the
application of Deputy Prosecutor General offshoots/connected cases bearing
Crime Nos. 179 and 180 of 2014 for offence under Section 23(1)(a) of the Sindh
Arms Act 2013 were amalgamated with main case bearing Crime No. 178/2014 for
offence under Section 384/386/34 PPC read with Section 7 ATA 1997, joint trial
was ordered by the Trial Court vide order dated 10.01.2015 in terms of Section
21-M of the ATA 1997.
5. Learned
Judge, Anti-Terrorism Court No.X Karachi framed charge was framed against both
the accused under the above referred sections at Ex.5. Both the accused pleaded
not guilty and claimed their trial.
6. At
trial prosecution examined P.W-1 Abdul Ghaffar at Ex.6, P.W-2 Mst. Zubaida at
Ex.7, P.W-3 Farhan Hyder at Ex.8, P.W-4 PC Qamar Zafirul Haq at Ex.9, P.W-5 ASI
Syed Musharraf Hussain at Ex.10, P.W-6 Waqar Ahmed at Ex.11 and P.W-7
I.O/Inspector Masood Ahmed Mughal at Ex.12. Thereafter, prosecution side was
closed at Ex.13.
7. Statements
of accused were recorded under Section 342 Cr.P.C at Ex.14 and 15. Both the
accused claimed false implication in these cases and denied the prosecution
allegations. Both accused denied recoveries of T.T pistols from their
possession. Both accused raised plea that P.Ws have deposed against them due to
enmity. Accused Mohammad Jawad has examined himself on oath in disproof of
prosecution allegations. Both accused did not lead evidence in defence.
8. Trial
Court after hearing learned counsel for the parties and examination of the
evidence available on record, by judgment dated 27.03.2015, convicted and
sentenced the appellants as stated above. Hence these appeals are filed. As
aforesaid appeals arise out of the common judgment, we intend to dispose of
these appeals by this single judgment.
9. The
facts of the case as well as evidence produced before the trial Court find an
elaborate mention in the Judgment dated 27.03.2015 passed by the learned trial
Court, therefore, the same may not be reproduced here so as to avoid unnecessary
repetition.
10. Learned
counsel for the appellants has contended that prosecution story was unnatural
and unbelievable. It is also contended that there are material contradictions
in the evidence of the complainant and his wife with regard to the payment of Bhatta to the accused persons. He further
contended that complainant has not deposed that he had taken cash of
Rs.10,00,000/- for payment to the accused, but his wife has admitted in
cross-examination that her husband went to Fateh Park by taking amount of
Rs.10,00,000/-. It is further contended that accused Haseeb is the nephew of
the wife of the complainant, she recognized his voice and it was unnatural that
Haseeb would openly demand Bhatta
from the complainant. It is further submitted that mobile from which
complainant had received calls for Bhatta was not recovered from any of the
appellants. It is argued that mobile numbers were not mentioned in the
mashirnama of arrest and recovery. Lastly, argued that ATC had no jurisdiction
to try this case. In support of his contentions, he has
relied upon the case of Sagheer Ahmed vs. The State and others (2016
SCMR 1754).
11. Mr. Mohammad
Iqbal Awan, learned DPG argued that the prosecution witnesses have supported
the prosecution case but admitted that there are material contradiction in
prosecution evidence. However, learned DPG concedes to the legal position that
learned Judge, Anti-Terrorism Court had no jurisdiction to try this case.
12. We have
carefully heard the learned counsel for the parties and scanned the evidence
available on record.
13. We have
come to the conclusion that prosecution has failed to prove its case against
the appellants for the reasons that there are material contradictions in the
evidence of the complainant and his wife with regard to the payment of Bhatta to the accused persons.
Complainant nowhere has deposed that he had taken cash Rs.10,00,000/- for
payment to the accused, but his wife has admitted in cross-examination that her
husband went to Fateh Park by taking amount of Rs.10,00,000/-. It is also admitted
that accused Haseeb is the nephew of the wife of the complainant. She recognized
his voice and it was unbelievable that Haseeb would openly demand Bhatta from the complainant. Complainant
Abdul Ghaffar has deposed that at 12.10/15 am at night a boy came to him at
Fateh Park, he immediately signaled to police officials and they apprehended
him. Apprehended accused disclosed his name as Jawad and he informed the police
that his accomplice namely Haseeb was sitting in Suzuki Khyber Car, who was
also arrested by the police. P.W-4 Qamar Zafirul Haq, who is mashir of arrest
and recovery gave different story by deposing that during patrolling ASI Musharraf
received a phone call at about 12.15 am, thereafter, they reached at Fateh Park
main gate. After reaching, there he had seen two persons who were sitting in
white Khyber which was parked at main gate of Fateh Park and complainant was also
present over there. Complainant informed ASI Musharraf Shah that accused
persons were present in Khyber car, later on police encircled them and arrested
two persons. It is further observed that mobile from which complainant had
received calls for Bhatta was not recovered from any of the appellants and even
the numbers of the SIMs, which were allegedly recovered from the possession of
the accused persons were not mentioned in the mashirnama of arrest and
recovery. We are unable to believe how two accused persons were caught hold by
the police so easily when they were armed with pistols. It is observed that
police have a way of settling their own scores. As such, recoveries of the
pistols from the accused have not been proved by cogent and confidence
inspiring evidence. Alleged recoveries were not sealed at spot. Circumstances
of case made prosecution case doubtful. Even otherwise, in absence of any
tangible material, mere allegation of demanding bhatta did not attract section
6(2)(k) of Anti-Terrorism Act, 1997. Learned DPG also conceded to the legal
position that learned Judge, Anti-Terrorism Court had no jurisdiction to try
this case as element of terrorism is missing in this case. The Honourable Supreme Court in the case of Sagheer
Ahmed vs. The State and others (2016 SCMR 1754), has held 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 crates 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. 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 Appeals No. 58, 59, 75 & 76 of 2015.
Consequently, the conviction and sentence recorded by the Trial Court vide
judgment dated 27.03.2015 are set aside. Appellants Mohammad Haseeb and
Mohammad Jawad are acquitted of the charges. Appellants are present on bail,
their bail bonds stand cancelled and sureties discharged.
JUDGE
JUDGE
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