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