IN THE HIGH COURT OF SINDH AT KARACHI

 

Special Criminal Anti-Terrorism Appeal No. 54 of 2022

 

                                                           

             Present:         Mr. Justice Naimatullah Phulpoto

                                                                         Mr. Justice Shamsuddin Abbasi

 

 

Appellant:                            Danish Khan alias Mohsin through Ms. Farzana advocate

                                               

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

 

Date of hearing:                  23.02.2023

 

Date of judgment:              23.02.2023

 

 

J U D G M E N T

 

NAIMATULLAH PHULPOTO, J.- This Appeal is directed against judgment dated 16.02.2022, passed by learned Judge, Anti-Terrorism Court-II, Karachi in Special Case No.149(III) of 2013 (FIR No. 471/2013 u/s 385 PPC read with Section 7 of Anti-Terrorism Act, 1997 registered at PS Jamshed Quarters, Karachi). After regular trial, appellant was convicted under section 7(h) of ATA 1997 to undergo R.I for life and to pay fine of Rs.50,000/- and in case of default, he was ordered to undergo S.I for 01 month; appellant was further convicted under section 385 PPC to undergo R.I for 02 years and to pay fine of Rs.50,000/-, in case of default, he was ordered to undergo S.I for 01 month. All the sentences were ordered to run concurrently.

2.         It may be mentioned here that co-accused Noman Akhter and Imran Mateen @ Mamoon faced trial before trial Court in Special Cases No.149(III)  and 150(III) of 2013 (FIR No. 471/2013 u/s 385 PPC read with Section 7 of Anti-Terrorism Act, 1997 registered at PS Jamshed Quarters, Karachi and FIR No.301/2013 u/s 23(1)(a) of Sindh Arms Act 2013 registered at P.S SIU, Karachi). Vide judgment dated 19.02.2022, both the accused were convicted under section 7(h) of ATA 1997 and sentenced for the period which they had already undergone. Accused Noman was also convicted u/s 23(1)(a) of Sindh Arms Act 2013 and was sentenced for the same period, which he had already undergone. At that time, present appellant was declared as absconder and subsequently, he surrendered before the trial Court.

3.         Brief facts of the prosecution case as mentioned by the trial Court in para-02 of the impugned judgment are as under:

“The brief facts according to the FIR No. 471/2013 filed on 27-11-2013 at about 0040 hours by Mst. Robina that she lives in house number mentioned in column No. 4 of the FIR and that she works in Muslim Commercial Bank office at I.I Chundrigar Road as a Unit Head. On 20-11-2013 she was present on her duty when her real brother Naveed had also gone for work and that only her mother Rehmat, her Bhabi Mehtab was at home when at about 1530 hours their neighbor Sultana daughter of Ansari had given Sweet Box to her mother which was wrapped in tape and told her that this Sweet Box is given to her by a child. Her mother kept Sweet Meet Box, meanwhile she had received a call on her cell number from the No. 3881039, and gave his name as Ali Magsi, and told her that she must have received message that you have received Sweet Box, and that to read slip inside the box, then the phone call was disconnected. She called her mother to find out whether she had received the Sweet Box and her mother phoned her in affirmative. That person again called her and asked her to phone her house to find it and to check the Sweet Box whereupon she again called her mother, and asked the mother to open Sweet Box, her mother opened it, and she found there was a slip in which it was written do not consider it as joke nor ask for help for anybody or less result will not be good besides slip there were Peras of Sweet with 05 bullets of pistol, thereafter calls had been coming continuously at her number, and used to threatened her and used to demand money, and had asked her for Rupees Ten Lacs or less result will not be good and it will be her responsibility, as such, because of fear she has come to the PS to register the case.”

 

 4.        After usual investigation, challan was submitted against the appellant under the above referred sections.

5.         Trial court framed charge against the appellant/accused at Ex.65, he pleaded not guilty and claimed to be tried. At trial prosecution examined four prosecution witnesses, who produced relevant documents. Thereafter, prosecution side was closed.

6.         Trial court recorded statement of accused under section 342, Cr.PC at Ex.P/78, in which, appellant claimed his false implication in this case and denied the prosecution allegations. Appellant examined himself on oath u/s 340(2) Cr.P.C in disproof of the prosecution allegations however, he did not lead evidence in his defence.

7.         Trial Court after hearing the learned counsel for the parties and assessment of evidence vide judgment dated 16.02.2022, convicted and sentenced the appellant as stated above. Hence, the appellant has filed instant appeal against his conviction and sentence recorded by the trial Court.

8.         The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 16.02.2022 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9.         Learned advocate for the appellant mainly argued that in this case the evidence of complainant Rubina Rehman is material, but he has not implicated the appellant in the commission of the offence. Complainant in her evidence has deposed that co-accused had given the name of one Mohsin. It is submitted that statement of co-accused is inadmissible in evidence; that no further incriminating evidence has been collected against the appellant in the commission of the offence. P.W Naveed has also deposed that name of the appellant was disclosed by co-accused Noman. As regards to the evidence of I.O, learned advocate for the appellant submitted that no incriminating material has been brought on record by the I.O against appellant before the trial Court to connect the appellant in the commission of the offence. Lastly, it is submitted that conviction and sentence awarded to the appellant by the trial Court is not sustainable under the law and prayed for acquittal of the appellant. In support of her contentions, she relied upon Raja Muhammad Younas v. The State (2013 SCMR 669).

10.       Mr. Muhammad Iqbal Awan, Additional Prosecutor General, argued that appellant has been implicated by the prosecution witnesses and his name was disclosed by co-accused in the commission of offence, hence prayed for dismissal of the appeal.  

11.       We have carefully heard the learned counsel for the parties and re-examined the entire evidence available on record. From close scrutiny of the evidence, it transpires that entire case of the prosecution against the appellant is based upon the statement of co-accused, which is inadmissible in evidence. Complainant and P.W Naveed Rehman have deposed that co-accused disclosed the name of appellant. I.O has also deposed that name of the appellant was disclosed by the co-accused, but during investigation, no incriminating material was collected by the I.O against the appellant. Even evidence shows that co-accused disclosed the name of one Mohsin but appellant claims that he is Danish and not Mohsin. It is well settled that statement of co-accused made before the police during investigation is inadmissible in the evidence and cannot be relied upon.  Rightly reliance is placed upon the case of The State through Director Anti-Narcotic Force, Karachi v. Syed Abdul Qayum (2001 SCMR 14). In the case of Raja Muhammad Younas (supra) wherein it has been held as under:

“2. ……….After hearing the counsel for the parties and going through the record, we have noted that the only material implicating the petitioner is the statement of co-accused Amjad Mahmood, Constable. Under Article 38 of Qanun-e-Shahadat Order, 1984, admission of an accused before police cannot be used as evidence against the co-accused……”  

 

12.       It may be observed that appellant was absconder and subsequently, he surrendered before the trial Court but mere absconsion is not sufficient for convicting him without collecting sufficient evidence against him. Reliance is placed upon the case of Rahimullah Jan vs. Kashif and another (PLD 2008 S.C 298). In these circumstances, we have come to an irresistible conclusion that the prosecution has failed to prove the case against the appellant beyond any shadow of reasonable doubt.

13.       Even otherwise, it is well settled that for the purposes of extending the benefit of doubt to an accused, it is not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt. A single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession but as a matter of right. Reliance in this regard may be placed on an unreported judgment dated 13.12.2022 of the Hon’ble Supreme court passed in the case of Ahmed Ali and another vs. The State (Criminal Appeal No. 48 of 2021) and the cases reported as Tajamal Hussain v. the State (2022 SCMR 1567), Sajjad Hussain v. the State (2022 SCMR 1540), Abdul Ghafoor v. the State (2022 SCMR 1527 SC), Kashif Ali v. the State (2022 SCMR 1515), Muhammad Ashraf v. the State (2022 SCMR 1328), Khalid Mehmood v. the State (2022 SCMR 1148), Muhammad Sami Ullah v. the State (2022 SCMR 998), Bashir Muhammad Khan v. the State (2022 SCMR 986), The State v. Ahmed Omer Sheikh (2021 SCMR 873), Najaf Ali Shah v. the State (2021 SCMR 736), Muhammad Imran v. the State (2020 SCMR 857), Abdul Jabbar v. the State (2019 SCMR 129), Mst. Asia Bibi v. the State (2019 PLD 64 SC), Hashim Qasim v. the State (2017 SCMR 986), Muhammad Mansha v. the State (2018 SCMR 772), Muhammad Zaman v. the State (2014 SCMR 749 SC), Khalid Mehmood v. the State (2011 SCMR 664), Muhammad Akram v. the State (2009 SCMR 230), Faheem Ahmed Farooqui v. the State (2008 SCMR 1572), Ghulam Qadir v. the State (2008 SCMR 1221) and Tariq Pervaiz v. the State (1995 SCMR 1345).

14.       For what has been discussed above, we are of the view that the prosecution has failed to prove its’ case beyond a reasonable doubt and the benefit of doubt is extended to the appellant. Consequently, this appeal is allowed and conviction and sentence passed by learned trial Court are hereby set aside and the appellant is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other custody case.

15.       These are the reasons for the short order announced on 23.02.2023.

 

    J U D G E

 

J U D G E