HIGH COURT OF SINDH AT KARACHI
Special Criminal Anti-TerrorismAppeals No.68&69 2015
Present: Mr. Justice NaimatullahPhulpoto
Mr. Justice Abdul MaalikGaddi
Appellant : Zaheer Ahmed
throughMr.Shahzad Afzal, Advocate.
Respondent : The State through Mr. Zahoor Shah, Deputy
Prosecutor General, Sindh alongwith I.O/SIP
Muhammad Ismail Meo, P.S. Saeedabad, Karachi.
Date of hearing : 17.11.2017
Date of Judgment : 12.12.2017
J U D G M E N T
Abdul MaalikGaddi, J.–By this common judgment, we intend to decide the above two captioned appeals, as they arise out of two FIRs of same incident registered separately in separate crimes vide judgments dated 26.01.2015.
2. Through these appeals, the appellant has assailed the judgments dated 26.01.2015 passed by the learned Judge, Anti-Terrorism Court No.VIII, Karachi, in Special Cases Nos.B-384 and B-385 of 2014 arising out of Crimes Nos.204and 205 of 2014 for offences under Sections 384/385/324/34 PPC read with Section 7 of Anti-Terrorism Act, 1997 and Section 23(1)(a) of Sindh Arms Act, 2013 read with Section 7 of Anti-Terrorism Act, 1997,respectively, registered at police station Saeedabad, Karachi, whereby the learned trial Court convicted the appellant in absentia and sentenced him in both cases in the following terms:-
“The accused Zaheer is guilty of an offence U/s 6(2)-K punishable U/s 7(1)(h) of Anti-Terrorism Act, 1997 and he is convicted and sentenced to suffer R.I. for five years and fine of Rs.50,000/- in default, he shall serve six months more. The accused also guilty for an offence 21(L) of Anti-Terrorism Court, 1997, he is convicted and sentence to suffer R.I. for five years and fine of Rs.50,000/- (Fifty thousands) in default you shall serve six months more.”
“Accused Zaheer is also guilty for an offence punishable U/s 23(1)(a) of Sindh Arms Act, 2013, I therefore, convict and sentenced him to suffer R.I. for five years and fine Rs.50,000/- in default, he shall serve six months more.”
3. Brief facts of the prosecution case leading to filing of these appeals are that on 31.05.2014, the complainant Muhammad Shoaib lodged the FIRs at police station Saeedabad, Karachi alleging therein that he used to supply water to the houses in the locality of Saeedabad. On the day of occurrence, his nephew RaheelParvez had supplied the water at the house of accused Zaheer. At about 02:30 p.m., accused Zaheer had come at shop and asked him as to why he charged the money of water from his house, the accused Zaheer claimed that he was member of “Gangwar” and they should pay Rs.5 lacs “Bhatta” otherwise, they will not allowed to run business of water in the area. On refusal, accused Zaheer flared up, took out pistol and fired upon the complainant but luckily bullet struck in the chamber. Complainant with the help of his nephew snatched the pistol from Zaheer, who ran away by leaving his motorbike and pistol over there. During said altercation, the complainant had received injuries on his hand. After sometimes, accused Zaheer alongwith his brothersIbrar and Jawed came there and tried to take motorbike and pistol from him. In the meanwhile it is alleged that police reached there and apprehended accused, co-accused Zaheermadeescapegood.Hence, these FIRs.
4. After registration of FIRs, investigation was entrusted to Inspector Najam-uddin, whoafter usual investigation submitted the Charge Sheet before the trial Court against accused by showing accused Ibrar Hussain and Muhammad Jawed under arrest, whereas, accused Zaheerwas shown as absconder.Trial Court after fulfillment of legal procedure, declared the accused Zaheer as proclaimed offender by order dated 25.08.2014. It also revealsfrom the record that an order of trial of the caseof accused Zaheer in absentia was passed and Mr. Sharuf-uddin, Advocate was appointed as Counsel to defend the said accused on State expenses.
5. Learned Judge, Anti-Terrorism Court No.VIII, Karachi framed the Charge against the accused under Sections 384/385/324/34 PPC read with Section 7 of Anti-Terrorism Act, 1997 and so also framed separate Charge against the absconder accused Zaheer under Section 23(1)(a) of Sindh Arms Act, 2013.
6. Trial was conducted in presence of accused Muhammad Jawed,Ibrar Hussainand in absence of present appellant, the prosecution examined five witnessesin each case namely PW-1/Complainant Muhammad Shoaib Khan, who produced memo of arrest and recovery,memo of inspection of place of occurrence and FIR No.204/2014; PW-2 Rahil Parvez; PW-3 SIP Amjad Ali, who produced memo of recovery and FIR No.205/2014; PW-4 Muhammad Sohail; PW-5 I.O/Inspector Najamuddin, who produced letter sent to FSL and FSL report. These witnesses were also cross examined by the counsel for accused. Thereafter, the prosecution has closed its’ side vide statement dated 22.01.2015.
7. Accused Muhammad Jawed and Ibrar Hussain were acquitted by the trial Court under Section 265-K Cr.P.C. vide order dated 23.01.2015, however, through impugned judgment dated 26.01.2015, the present appellant Zaheer was convicted in absentia in both casesand perpetual warrants were issued against him. Case diary dated 17.03.2015 of the trial Court shows that appellant Zaheer appeared before the trial Court by filing application for grant of pre-arrest bail, it was rejected and accused Zaheer was remanded to jail to serve out the sentences awarded to him, as referred to above.
8. Mr.Shahzad Afzal, learned counsel for the appellantat the very outset has submitted that conviction of appellant in his absentia is violative of Article 9 and 10(i)A of the Constitution of Islamic Republic of Pakistan, 1973, thus, cannot be allowed to sustain. Furthermore, the appellant was not afforded an opportunity of hearing and, thus, he was condemned unheard, which is contrary to the Principle of Natural Justice.Per learned counsel, the appellant was neither served with the Court notices in accordance with law, nor learned trial Judge recorded such finding, to show that the appellant had avoided service of Court notices. It has been argued that under the provisions of Section 19(12) of Anti-Terrorism Act, 1997, this Court has concurrent jurisdiction either to set-aside the impugned judgments and acquit the appellant or it can remand the case to the trial Court to decide it afresh after providing an opportunity of being heard to the appellant. It has been further argued that remanding the matter back to the trial Court will be futile exercise, as the appellant has a good case on merit by taking the plea that in this case, nothing was recovered from the possession of the appellant and co-accused Muhammad Jawed and Ibrar Hussain (brothers of present appellant), who were allegedly present at the time of alleged incident, were acquitted on the basis of same mashirnama of arrest, recovery and same set of evidence by the trial Court under Section 265-K,Cr.P.C. vide order dated 23.01.2015. The said order has not been challenged by the prosecution before any appellate forum, as such, according to him, the said order attained finality. During the course of arguments, he has taken to us towards the evidence already produced by the prosecution in trial Court and has made an attempt to show that the evidence so produced by the prosecution is contradictory on material particulars of the case. Therefore, no reliance can be placed on contradictory evidence and the appellant is entitled for his acquittal in these cases. In support of his contentions, learned counsel for the appellant has relied upon the following case laws:-
(i) Mir Ikhlaq Ahmed and another v. The State reported as 2008 SCMR 951;
(ii) Ali Hassan v. The Statereported as 2009 MLD 1198.
(iii) Bashir Ahmed v. The Statereported as 2011 MLD 867;
9. Conversely, Mr. ZahoorShah, learned DPG has supported the impugned judgments passed by the trial Court by arguing that the impugned judgmentsare perfect in law and on facts. He further argued that complainant as well as mashirs including investigating officer have supported the prosecution case and case is proved against the accused beyond the shadow of doubt. He further argued that appellant has remained absconder before trial Court deliberately and he is involved in a case of serious in nature.Therefore, according to him, these appeals may be dismissed.
10. We have heard the learned counsel for the parties at a considerable length and have perused the evidence and documents available on record.
11. After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial. It is the settled principle of law that burden is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view of this basic touchstone of criminal administration of justice, we have examined the ocular evidence as well as circumstantial evidence, alongwith impugned judgments.
12. We have also examined Article 9 and 10(i)A of the Constitution of Islamic Republic of Pakistan, 1973 and the provisions of Section 19(12) and 25 of the Anti-Terrorism Act, 1997, and havealso gone through the case laws relied upon by the learned counsel for the appellant, which show that in case of conviction recorded in absentia, the convict has two options available in law, either (a) to approach the trial Court within the stipulated period with a request to set-aside his conviction recorded in absentia, in terms of Section 19(12) of the Anti-Terrorism Act, 1997, by showing that he did not abscond deliberately from the Court during the trial or (b) to surrender before appellate Court by filing an appeal under Section 25 of the Anti-Terrorism Act, 1997, with a prayer to set-aside the conviction awarded in absentia and to acquit him on merit after considering the evidence on record or to remand the matter to the trial Court for fresh trial by setting aside the impugned judgment. As the power of appellate Court are wider than the power of trial Courtand if a case is fit for acquittal on merit, it would be futile exercise to conduct fresh trial, if a person convicted in absentia is entitled to acquittal on merit, he cannot be forced to face the trial.
13. In the instant matter, it is the case of appellant that he had no knowledge about the case pending against him before trial Court and as and when he came to know about the pendency of the case, he appeared before this Court and after obtaining protective bail, he surrendered before the trial Court by filing an application for grant of pre-arrest, which was rejected vide order dated 17.03.2015 and he was taken into custody and remanded to Central Prison, Karachi to serve out the sentences awarded to him by trial Court. Hence, he filed these appeals.
14. On perusal of record,we find that in this case, proceedings under Section 87 and 88 of Cr.P.C.though initiated against the appellant for the purpose of proceedings with the case in absentia and the charge was framed for other offences except Section 21(L) of Anti-Terrorism Act, 1997, but trial Court has also convicted and sentenced the appellant under Section 21(L) of Anti-Terrorism Act, 1997 and also no evidence was recorded to prove the ingredients of Section 21-L of the Act, as such, the same is illegal, liable to be set-aside. We have gone through the case of Arbab Khan v. The State reported as 2010 SCMR 755, wherein the Hon’ble Supreme Court of Pakistan on identical situation held as under:-
“4. Having heard the learned counsel for parties and perusing the record, we find that the proceedings under Section 87 and 88 of Cr.P.C. were initiated for the purpose of proceedings with the case in absentia, therefore, the charge was framed for other offences except Section 21-L of the Act. The record further reveals that no evidence was recorded to prove the ingredients of Section 21-L of the Act. No point for determination concerning the offence under Section 21-L of the Act was framed in the judgment by the trial Court. There is no discussion in the impugned order and in the judgment of trial Court with regard to any evidence available on record. In cursory manner, the learned trial Judge convicted and sentenced the appellant for the said offence. Thus, the procedure adopted by the trial Court in convicting and sentencing the appellant is not warranted by law and illegal.”
15. The allegation against the appellant is that he while introducing himself as a member of Gangwar, demanded Bhatta of Rs.500,000/- (Rupees Five Lac) by show of pistolfrom complainant and during altercation, complainant received injury in his hand, but it is surprising to notethat complainant Muhammad Shoaib Khan in his examination-in-chief at Ex.6 deposed that pistol was recovered by the complainant party from accused Abrar and same was handed over to police by complainant.There was no evidence that pistol was recovered from accused Zaheer. It is alleged that during altercation in between complainant and present appellant, complainant had received injuries at his thumb of right hand and right eye, butin order to prove this fact, neither medical certificates of injuries were produced nor Medical Legal Officer was examined by the prosecution in evidence. Therefore, on this ground alone, false implication of the applicant in this case could not be ruled out. We have also perused the evidence with the able assistance of the parties’ counsel and come to the conclusion that there is only oral version of the complainant that accused Zaheer demanded Bhatta. No independent corroboration is available on this point. It has been brought on record that complainant and accused Zaheer Ahmed reside in same mohallahand complainant was supplier of water in the area, he also used to supply water at the house of appellant Zaheer Ahmed and dispute arose in between them on the charges of supply of water; thus, under the aforementioned circumstances, prosecution has failed to establish that act of the accused created sense of fear and terror in the area.No evidence was led on this point, hence, we are of the view that the element of terrorism is also missing in this case. We have noted that PW-3MuhmmadSohail deposed that his uncle had given pistol and one empty to Inspector at night time at police station and police had prepared such memo, however, the mashirnama of arrest and recovery on record at Ex.8/A showing the time of its preparation at 1600 hours, it means either PW-3 Muhammad Sohailhas deposed falsely or mashirnama was not prepared atthe place of incident. It appears that there is a material contradiction about the time and preparation of place of said mashirnama andunder same mashirnama as well as on same set of evidence, accused Ibrar Hussain and Muhammad Jawed have been acquitted by the trial Court under Section 265-K, Cr.P.C. vide order dated 23.01.2015 and the said order has not been challenged before any appellate forum, as such, the same has attained finality. We have already observed above that nothing was recovered from the appellant. Alleged incident had taken place on 31.05.2014 at 02:30 p.m., but FIR was registered at 10:40 p.m. after the delay of eight hours, for which prosecution has not furnished explanation for causing such delay, as such, false implication of the appellant in this case with due deliberation and consultation could not be ruled out.
16. On overall assessment of entire evidence in the case and on considering of the surrounding circumstances, we are of the considered view that the case against the appellant is doubtful in nature.As observed above, co-accused Ibrar Hussain and Muhammad Jawed, who are brothers of the appellantZaheer,have already been acquitted by the trial Court under same mashirnama of arrest, recovery and on same set of evidence under Section 265-K, Cr.P.C. and the appellant has better case for acquittal, cannot be convicted on same evidence. No useful purpose would be served to examine same witnesses again before trial Court.
17. In view of above, we also feel that trial of the appellant in absentia, undertaken by the learned trial Court was violative of Article 9 and 10A of the Constitution of Islamic Republic of Pakistan, 1973, thus, the conviction and sentences could not be allowed to sustain. Moreover, appellant was not afforded an opportunity of hearing and, thus, he was condemned unheard, which is contrary to Principle of Natural Justice, hence,prosecutor failed to establish its’ case. We, therefore, allow these appeals by setting aside the impugned judgments and acquit the accused of the above charges by extending benefit of doubt. Appellant is present on bail. His bail bond stands cancelled and surety discharged.
JUDGE
Faizan A. Rathore/PA*