ORDER SHEET

HIGH COURT OF SINDH AT KARACHI

Spl. Criminal Anti-Terrorism Appeal No.90 of 2015

Present:

Naimatullah Phulpoto, J.

Rasheed Ahmed Soomro, J.

Appellant: Uzamee son of Muhammad Saleem through Mr. Nasir Ahmed, Advocate

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

Date of hearing: 13.08.2018

J U D G M E N T

NAIMATULLAH PHULPOTO, J.- Uzamee along with Moin and Farhad was tried by learned Special Judge, Anti-Terrorism Court-VIII, Karachi East in Special Case No.118/2014 (old case No.B-319/2014). On conclusion of trial, vide judgment dated 11.04.2015, the appellant was convicted under section 7(h) of the Anti-Terrorism Act, 1997 and sentenced to 5 years R.I. and to pay fine of Rs.50,000/-, in default he was ordered to serve six months more.

2. Facts of the prosecution case in nutshell are that on 25.04.2014 at 2200 hours complainant Muhammad Kamal Shah lodged FIR No.201/2014 at P.S. Surjani, alleging therein that he is production Incharge of Surti Garments Industries. On 23.04.2014 at 1040 hours he received SMS and call on his Mobile No.0333-2158280 from Mobile No.0324-2674163; caller demanded Bhatta Rs.10 Lacs and extended threats of killing his family. Caller also sent a chit for payment of Bhatta. Due to fear and threats the complainant submitted an application to CPLC and lodged FIR under sections 385/34, PPC read with section 25-D of the Telegraph Act at P.S. Surjani. During investigation, police collected call data record of the required SIM and arrested accused Moin, Uzmi and Farhad on 29.04.2014 and recovered mobile phones with SIMs from accused Uzmi. On completion of investigation, challan was submitted against the accused person under Sections 385, PPC read with section 25-D of the Telegraph Act and section 7 of the Anti-Terrorism Act, 1997.

3. Trial court framed charge against accused Moin, Uzmi and Farhad. Accused pleaded not guilty and claimed to be tried.

4. At trial, prosecution examined in all six prosecution witnesses, who produced investigation papers, phone call data etc. Thereafter, prosecution side was closed.

5. Statement of accused was recorded under section 342, Cr.PC in which accused claimed false implication in this case and denied the prosecution allegations. Accused raised plea that there is family dispute between complainant, PW Faisal and the accused. Appellant/accused did not lead evidence in his defence and declined to give statement on oath in disproof of prosecution allegations.

6. Trial court after hearing the learned counsel for the parties and assessment of the evidence convicted and sentenced the appellant vide judgment dated 11.04.2015 as stated above, hence this appeal.

7. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 11.04.2015 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. Learned advocate for appellant argued that complainant Muhammad Kamal Shah has admitted that no one had seen accused while throwing parchi / chit in the house of his father-in-law in respect of bhatta. It is also argued that parchi produced before the trial court does not contain the name of any person. It is submitted that call date of cell No.03242674162 has not been produced before the trial court to connect the appellant in the commission of offence. It is also argued that financial status of the complainant Muhammad Kamal Shah has also not been brought on record by the prosecution. Lastly, argued that SIM recovered from accused Uzamee was not sealed at the spot.

9. Mr. Muhammad Iqbal Awan, learned D.P.G., argued that complainant Muhammad Kamal Shah and other PWs have fully implicated the accused in the commission of offence and trial court has rightly convicted the accused. Learned D.P.G. prayed for dismissal of the appeal.

10. We have carefully heard the learned counsel for the parties and scanned the entire evidence.

11. Muhammad Kamal Shah, PW-1, has deposed that on 10.04.2014 he received call on his Cell No.0333-2158280 from Cell No.0324-2674163, caller demanded bhatta of Rs.1,000,000/-. Complainant replied that he is a poor person. He has further deposed that he received SMS on different dates, he shared problem with his wife and gave application to CPLC. He has further stated that he had received parchi for bhatta on 23.04.2014 at the house of his father-in-law. He produced said parchi as Ex-7/B and went to the police station and lodged report. On 29.04.2014, he received a telephonic call from police station. He went there where culprits were under arrest. It was alleged that mobile was recovered from possession of accused in which number of complainant was dialed by accused Uzamee and one SIM was produced by accused Uzamee from his house, such mashirnama was produced as Ex-7/F. Complainant was cross-examined, complainant has admitted that nobody had seen accused Uzamee while throwing parchi in the house of his father-in-law. Prosecution has failed to examine father-in-law of the complainant before the trial court. Complainant in his evidence has deposed that he narrated story of the demand of bhatta to his wife but prosecution had failed to examine wife of the complainant before the trial court. According to the case of prosecution, accused Uzamee was arrested by the police, mobile phone was recovered from him which showed that number of complainant was dialed from that mobile. There is nothing on record that mobile/SIM recovered from accused Uzamee was sealed at spot. It is the case of prosecution that another SIM was produced by accused Uzamee from his house when he was under investigation. Under Article 40 of the Qanun-e-Shahadat, it was duty of the investigation officer that he should have recorded information / statement of accused Uzamee with regard to disclosure about his SIM at the house before the recovery of the SIM at the pointation of the accused. We asked learned D.P.G. to go through the mashirnama of recovery of the SIM recovered at the pointation of accused Uzamee from his house with regard to information/statement in the mashirnama but learned D.P.G. very frequently replied that no such information/statement of accused was recoded at police station. According to the case of the prosecution Rs.10 Lac bhatta was demanded from complainant Muhammad Kamal Shah, who replied that he is a poor person. Financial status of complainant has not been brought on record by the prosecution. Prosecution has failed to satisfy the Court regarding jurisdiction of Anti-Terrorism Court in this case in view of dictum laid down by the Honourable Supreme Court in the case of SAGHEER AHMED vs. The STATE and others (2016 SCMR 1754)

12. PW-2 Muhammad Sohail has deposed that he has not seen any accused while throwing parchi in his house. Investigation officer has admitted that on spy information he arrested accused Uzami, Moin and Farhad involved in this case and conducted personal search of accused Uzamee and secured mobile from him and found number of complainant dialed in the said mobile. Investigation officer had failed to seal the mobile, call data of accused Uzamee was also not collected by him. IO has admitted that he has not produced arrival and departure entries at the police station whereby IO along with his staff left police station for arrest of accused at Poultry Form, Sector-L/1, Surjani Town, Karachi. Second IO produced call data of the mobile in the name of Faisal but Incharge of concerned company was not produced before the trial Court to verify/authenticate it. More or less, on the same set of evidence co-accused Moin and Farhad have already been acquitted by the trial court.

13. For the above stated reasons, we have no hesitation to hold that there are several circumstances/infirmities in the prosecution case as highlighted above, which have created reasonable doubt about guilt of accused. In the case of Tariq Pervez V/s. The State (1995 SCMR 1345), the Honourable Supreme Court has observed as follows:-

“It is settled law that it is not necessary that there should many circumstances creating doubts. If there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.”

14. For the above stated reasons, we have come to the conclusion that prosecution has utterly failed to prove its case against the appellant beyond shadow of doubt. Resultantly, by extending benefit of doubt, appeal is allowed, conviction and sentence recorded by the trial court vide judgment dated 11.04.2015 are set aside. Appellant is acquitted of the charges. Appellant is present on bail, his bail bond stands cancelled, surety is hereby discharged.

15. These are the reasons of our short order 13.08.2018

J U D G E

Gulsher/PS