HIGH COURT OF SINDH AT KARACHI
Special Criminal Anti-TerrorismAppeals No.75, 76&77 2017
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Date Order with Signature(s) of Judge(s)
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Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Maalik Gaddi
Date of hearing : 13.11.2017
Date of Judgment : 28.11.2017
Appellants : Tariqthrough
Mr.Ali Muhammad Lasi, Advocate.
Respondent : The State through Mr. Ali Haider Saleem,
Deputy Prosecutor General, Sindh.
J U D G M E N T
Abdul MaalikGaddi, J.–Through this common Judgment, we intend to dispose of the captioned appeals filed by the appellant as these appeals relate to common Judgment delivered by the learned trial Court dated 01.03.2017.
2. By means of these appeals, the appellant has assailed the common Judgment dated 01.03.2017 passed by the learned Judge of Anti-Terrorism Court No.II, Karachi in Special Cases Nos.B-916, B-917 and B-918 of 2015, under Crime No.235/2015 for offence under Section 385/386/34read with Section 7 of Anti-Terrorism Act, 1997,Crime No.236/2015 for offence under Section 353/324/34 PPC and Crime No.237/2015for offence under Section 23(1)(a) of Sindh Arms Act, 2013,registered at police station Madina Colony, Karachi, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellant in Point No.4 of the impugned common judgment. For the sake of convenience, it would be advantageous to reproduce the Point No.4 of the impugned common judgment, which read as follows:-
“Point No.4.
62. The charge leveled against the accused Tariq s/o Saleh Muhammad is proved. He is convicted and sentenced to suffer Rigorous Imprisonment for 5 years under Section 385/386 PPC.
63. The recovery of unlicensed pistol from him is also proved. He is convicted and sentenced to suffer R.I. for five years u/s 23-I-A of S.A.A. Both the punishments will run concurrently.
64. The benefit of Section 382(b) of Cr.P.C. is also given to him.”
3. Brief facts according to FIR No.235/2015 lodged by the complainantMuhammad Kamran on 08.09.2015 at police station Madina Colony, Karachi that he lives with his family in Liaquatabad Plot No.149, Sector 5/J, Saeedabad and has a Bawarchi Biryani Centre on the same plot. On 07.09.2015, he was present in his shop, when on his phone number a call was received from the Cell No.0312-0264218 and caller asked him to arrange for rupees one lac or less. Else he will throw grenade at his Biryani shop. After little while, he had given two Identity Card Nos.42301-6185528-9 and 51601-0336775-1 and kept threatening him and asked him to immediately give Rs.30,000/- otherwise, he would throw the grenade, as such he went to the police station and lodged the report.It is alleged that on 11.09.2015, when complainant again received a call of bhattafor demanding more money,upon which complainant went to police station, where SIP Chaudhry Muhammad Aslam and complainant put Rs.10,000/- in white envelope. Thereafter, complainant and SIP Chaudhry Muhammad Aslam alongwith his staff, left police station vide entry No.36 reached to Mowach Goth at Awami Tanki, Dabba Colony, Saeedabad, on the pointation of accused. At about 0030 hours, two persons came on motorcycle, one person remain seated on motorcycle, whereas, another person got down from motorcycle and received extortion money from the complainant and when on leaving, SIP Chaudhry Muhammad Aslam alongwith his subordinates tried to apprehend accused. Accused on seeing police party, started firing with their weapons with intention to commit murder and upon which police also fired in their self defence. Resultantly, present accused received bullet injury and another person by leaving the motorcycle escaped successfully. The injured person was apprehended, who upon enquiry disclosed his name as Tariq son of Saleh Muhammad and also disclosed the name of escaped accomplice as Muhammad Asif. On personal search of appellant, police recovered one 30 bore pistol without number with loaded magazine two bullets loaded one bullet in chamberfrom his right hand and on further search, one black wallet containing different visiting cards of the shops, CNIC No.45204-2795991-3 in the name of Luqman son of Asadullah, CNIC No.51601-033677-5 in the name of Zafar Ahmed son of Muhammad Khalil and CNIC No.42301-6185528-9 in the name of Muhammad Aziz son of Muhammad Yasin and so also one mobile Nokia Model No.103, IMEI No.355484/05/538875/2 and SIM No.0301-2264028 and amount of Rs.10,000/-, which numbers are mentioned in FIR, as such, appellant was arrested under memo of arrest and recovery in presence of mashirs. Thereafter, accused and case properties were brought at police station Madina Colony, where two separate FIRs were registered under above referred sections.
4. After usual investigation, challan was submitted against accused under above referred sections. Learned trial Court amalgamated the aforesaid cases with main case for joint trial, in terms of Section 21-M of Anti-Terrorism Act, 1997.
5. Learned Judge, Anti-Terrorism Court No.II, Karachi framed the Charge against the accused under Section 385/386, 353/324/34 of PPC and Section 23-(1)(a) of Sindh Arms Act, 2013 as well as Section 6(2)(K)(m) & (n) punishable under Section 7(h) ofAnti-Terrorism Act, 1997. Accused pleaded not guilty and claimed to be tried.
6. In order to substantiate the charge, prosecution examined PW-1/complainant Kamran at Ex.P/1, who produced copy of FIR No.235/2015, inspection memo, memo of recovery and arrest, inspection memo and seized the articles at Ex.P/2 to Ex.P/5 respectively; PW-2 SIP Chaudhry Muhammad Aslam at Ex.P/6, who produced entry No.30 by which complainant had received threats, entry No.36 by which he noting down the number of currency notes, copy of letter written to MLO, copy of two FIRs No.236 and 237 of 2015 and arrival entry No.34 at Ex.P/7 to Ex.P/12 respectively;PW-3 Doctor Ali Raza at Ex.P/13, who produced provisional medico legal certificate at Ex.P/14; PW-3 Inspector Najamuddin at Ex.P/15, who produced departure entry No.19, by entry No.46, he received investigation, sketch of place of incident, written letter to FSL, received FSL report, CDR of complainant on 14 pages and by entry No.14, he returned from place of encounter at Ex.P/16 to Ex.P/22 respectively.These witnesses have been cross examined by the counsel for accused. Thereafter, leaned DDPP closed the prosecution side vide Statement at Ex.P/23.
7. Statement of accused was recorded under Section 342, Cr.P.C. at Ex.P/24, in which accused denied the prosecution allegations and raised plea that the private witness has deposed at the instance of police. Police had demanded one lac fifty thousand from him and on non-payment, they implicated the appellant in these cases.
8. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 01.03.2017, convicted and sentenced the appellant as stated above. Hence, these appeals have been filed by the appellant.
9. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 01.03.2017 passed by the trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.
10. Mr. Ali Muhammad Lasi, learned counsel for the appellantcontended that appellant is innocent and has been falsely implicated in the present cases and nothing was recovered from his possessionand the alleged recovery of pistol was foisted upon him.He further contended that complainant has been declared hostile by the prosecutionby disclosing the wrong name of the appellant.Per learned counsel, the evidence of prosecution witnesses is contradictory on material particulars. It is further argued that SIM card allegedly recovered from the appellantwas not in the name of appellant and same was in the name of one Gul Zaman, but Gul Zaman was neither joined in the investigation, nor mobile network authorities were asked for the ownership of the same and its use. Therefore, according to him, on these grounds, false implication of the appellant in these cases could not be ruled out. Per learned counsel, though the FIR under Section 385/324 PPC was registered being Crime No.235/2015 and charge was framed in this regard, but the trial Court judgment is silent toconvict or acquit with regard to alleged encounter, which shows that trial Court has not considered the evidence in its true prospective. During the course of arguments, learned counsel has taken to us towards evidence of prosecution witnesses and has pointed out various contradictions in between the evidence of prosecution witnesses and was of the view that on the basis of contradictory evidence on material particular of the case, no conviction could be awarded, but the learned trial Court has not appreciated these aspects of the case.
11. Conversely, Mr. Ali Haider Saleem, learned Deputy Prosecutor General while supporting the impugned judgment 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 has also argued that defence counsel has not been able to point out any defect in the prosecution case and the offence has been proved against the appellant, therefore, according to him, these appeals may be dismissed.
12. We have heard the learned counsel for the parties at a considerable length and have perused the evidence and documents available on record.
13. 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 common judgment.
14. Admittedly, it was the case of prior information, SIP Chaudhry Muhammad Aslam alongwith his subordinate staff and complainant proceeded to the pointed place i.e. Mowach Goth at Awami Tanki, Dabba Colony, Saeedabad on 11.09.2015, where appellant alongwith his accomplice was available on motorcycle and complainant allegedly delivered a white colored envelope containing Rs.10,000/- as Bhatta to the appellant and on leaving, police encounter had taken place. Resultantly, present appellant had received bullet injury at his right thigh, whereas, his accomplice ran away. It has come on record that one 30 bore pistol without number with loaded magazine, two bullets loaded, one bullet in chamber, from his right hand, one black wallet containing different visiting cards of the shops, CNIC No.45204-2795991-3 in the name of Luqman son of Asadullah, CNIC No.51601-033677-5 in the name of Zafar Ahmed son of Muhammad Khalil and CNIC No.42301-6185528-9 in the name of Muhammad Aziz son of Muhammad Yasin and so also one mobile Nokia Model No.103,SIM No.0301-2264028 and amount of Rs.10,000/-, were recovered from the possession of appellant. We are unable to rely upon the evidence of complainant at Ex.P/1 and SIP Chaudhry Muhammad Aslam at Ex.P/6 for the reasons that it was the case of prior information and according to the prosecution, accused was available at the pointed place to receive the Bhatta and accused had background of his involvement in criminal cases. Under the circumstances, we are unable understand as to why SIP Chaudhry Muhammad Aslam did not associate with him independent person of the locality at the time of alleged recovery. It is also unbelievable that the accomplice of the appellant/accused ran away when police party was armed with official arms and ammunition. It makes the conduct and efficiency of the concerned police officials questionable. It is also the case of prosecution that accused was armed with pistol, it was unbelievable that appellant without causing any harm to the police, was arrested by the police. PW-2 SIP Chaudhry Muhammad Aslam failed to examine the independent person of the locality to ascertain truth about the incident. Appellant in his statement on oath at Ex.25 deposed that he was arrested by police on night of 7/8 of September, 2015 from his house situated at Lyari Cheel Chowk, police blind folded him and then fired at his right leg, but on perusal of impugned judgment, his defence has also not been considered by the trial Court.
15. We have also gone through evidence of prosecution witnesses and documents on record with the able assistance of the parties’ counsel and find the same contradictory to each other on material particulars. For example, it is stated by the complainant in FIR that he had received first Bhatta call from Cell No.0312-0264218, while contradicting this fact, complainant had deposed in his evidence that he had received Bhatta call from Cell No.0312-0464218 to his Cell No.0300-2845688. Nothing on record to show that Cell No.0312-0264218 was in the name of appellant.It reveals from the FIR that appellant demanded Rs.1 Lac as Bhatta from complainant, else he would throw grenade to his shop, but evidence of complainant showing that appellant demanded Bhatta of Rs.50,000/-. Moreover, at the time of evidence of complainant, he was declared hostile, as he gave the name of accused as Saleh Muhammad, in fact, the name of accused is Tariq. We have also noticed that SIM Card bearing No.0301-2264028 allegedly recovered from the appellant was in the name of one Gul Zaman, but the said Gul Zaman was not joined in investigation. Similarly, CNIC No.45204-2795991-3 in the name of Luqman son of Asadullah, CNIC No.51601-033677-5 in the name of Zafar Ahmed son of Muhammad Khalil, CNIC No.42301-6185528-9 in the name of Muhammad Aziz son of Muhammad Yasin were also recovered from the appellant, but these persons have also not been joined in investigation nor any official from NADRA department was called to verify these CNICs in order to ascertain its genuineness and also to ascertain the nexus of these persons with the appellant.
16. On perusal of mashirnama of arrest and recovery, the number of pistol allegedly recovered from the appellant is not mentioned, but FSL report showing the rubbed numbers of the said pistol. The incident had taken place on 11.09.2015, but pistol and empties were received by the Assistant Inspector General of Police, Forensic Division, Sindh Karachi on 14.09.2015, after the delay of three days for which no explanation has been furnished by the prosecution. Therefore, the possibility of tampering with this weapon could not be ruled out. As safe custody of weapons at police station and safe transit to expert have not been established.Moreover, investigating officer/Inspector Najamuddin in his evidence available on record at Ex.P/15 deposed that nothing was recovered from the possession of accused. For the sake of convenience, it would be proper to reproduce the relevant portion of his cross examination, which read as under:-
“It is correct to suggest that nothing was recovered from accused and recovery has been foisted on the accused.”
When confronted all these contradictions to the learned DPG, he had not replied satisfactorily. Therefore, in view of contradictions, as highlighted above, false implication of the applicant in these cases could not be ruled out.
17. It is pertinent to mention here that in this matter, though the appellant was challaned under Section 353/324/34 PPC being Crime No.236/2015registered at police station Madina Colony and charge was also framed against him in Special Case No.B-917/2015, but on perusal of impugned common judgment, it does not reveal the fate of this case. However, we have already noted above that the case in hand is based upon full of contradictions and the appellant is in custody since 2015 almost two years have been lapsed and it would be a futile exercise to remand the case to trial Court for re-writing the judgment afresh. Powers of the Appellate Court are wider than the powers of trial Court, therefore,this Court being an Appellate Court is fully empowered under the law to decide the appeal on merit, as here in this case, no further evidence is required. Therefore, under the abovementioned facts and circumstances,there is no need to remand the case before the trial Court for re-writing the judgment to avoid further delay.
18. For the above stated reasons, there are several circumstances/infirmities in the prosecution case, as discussed above, which have created reasonable doubt about the guilt of the appellant.
19. 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. Accordingly, we extend benefit of doubt to accused while relying upon the case of Tariq Pervez v. The State reported as 1995 SCMR 1345and acquit him from the charges including Crime No.236/2015 registered at police station Madina Colony under Section 353/324/34 PPC. The convictionsand sentences recorded against the appellant are set-aside. The appellant shall be released forthwith, if not required in any other case.
JUDGE
JUDGE
Faizan A. Rathore/PA*