THE HIGH COURT OF SINDH AT KARACHI

Spl. Criminal Anti-Terrorism Acquittal Appeal No. 150 of 2020

 

 

  Present:          Mr. Justice Naimatullah Phulpoto

                                                                                                                            Justice Ms. Sana Akram Minhas

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Appellant                          :              The State through Prosecutor General Sindh through Mr. Ali Haider Saleem Addl. P.G

 

Respondent                       :              Nemo

 

                                                           

Date of Hearing                :             05.12.2023

Date of decision                :             05.12.2023

 

 

JUDGMENT

 

NAIMATULLAH PHULPOTO, J.- The State through Prosecutor General Sindh has filed this appeal against respondent/accused Furqan Ahmed. It appears that respondent/accused was tried by learned Judge, Anti-Terrorism Court No.XII, Karachi in Special Case No. 203 of 2020. After regular trial, vide judgment dated 21.08.2020, respondent/accused was acquitted.

2.         Brief facts leading to the filing of instant Acquittal Appeal are that on 27.03.2020, ASI Arif Khan Tanoli of PS CTD/PBTIG Karachi received directions from high-ups that respondent Furqan Ahmed who was belonging to proscribed organization namely HQN, was collecting donation/ funding for the said organization, which is to be used for terrorist activities all over the country. Respondent was apprehended and from his possession two funding receipt books were recovered. Thereafter, mashirnama of arrest and recovery was prepared and respondent was brought to P.S where FIR bearing Crime No.50/2020 for offences under Sections 11-H, 11-N, 11-F(i)(ii) of ATA 1997 was registered at P.S CTD Karachi against the respondent on behalf of state. After usual investigation, challan was submitted against respondent/accused

3.         Trial Court framed charge against the respondent/accused, to which he pleaded not guilty and claimed to be tried.

4.         At trial, prosecution examined three witnesses. Thereafter, prosecution side was closed.

5.         Trial Court recorded statement of respondent/accused under Section 342 Cr.P.C. Respondent/accused claimed his false implication in the case. Respondent/accused neither examined himself on oath under section 340(2) Cr.PC to disprove the prosecution allegations nor led any evidence in his defence.

6.         Trial Court after hearing learned counsel for the parties and assessment of evidence vide judgment dated 21.08.2020 acquitted the respondent/accused, hence this acquittal appeal is filed.

7.         The facts of the case in detail as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 21.08.2020 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8.         Mr. Ali Haider Saleem Addl. P.G argued that trial Court failed to appreciate the evidence according to settled principles of law; that two funding receipt books were recovered from the possession of the respondent and there was sufficient evidence against him inpsite of that trial acquitted respondent on minor contradictions. He prayed for allowing this acquittal appeal.

9.         We have carefully re-examined entire evidence available on record with the assistance of Addl. P.G. It appears that trial Court acquitted the respondent vide judgment dated 21.08.2020 mainly for the following reasons:

“During cross examination of learned counsel for accused, he admitted the suggestion that upon the title of personal file of attendance of present accused in 04th schedule it is mentioned his affiliation with Lashkar-e-Jhangvi. He admitted the suggestion that a person whose name is reflected in 04th schedule is marking regularly his attendance at concerned P.S. He also admitted the suggestion that he had not produced any violation report of present accused with regard to his 04th schedule. He also admitted the suggestion that affiliation of present accused with Haqani Network is not available in any statement U/S 161 Cr.P.C of P.Ws of this case. He also admitted the suggestion that Lashkar-e-Jhangvi are different organizations. He also admitted the suggestion that statement U/S 164 Cr.P.C was recorded before any Magistrate He denied the suggestion that that he had dishonestly investigated this case.

During his evidence, in cross-examination, he admitted that title of personal file regarding 04 schedule of this accused shows his affiliation with Lashkar-e-Jhangvi. He also admitted that association of present accused with Haqani Network is not available in any statement u/s 161 Cr.P.C of P.Ws of this case, whereas it is the case of prosecution that present accused being member of Haqani Network was collecting funds for such proscribed organization, therefore, evidence of this P.W also becomes doubtful.

In view of above discussions, it cannot be safely relied upon the evidence of P.Ws, as the same are full of material contradictions. Furthermore, it is the duty of prosecution to first establish its case through reliable evidence and only then the burden shifts on the accused. However, in the present case the prosecution has miserably failed to do so. Therefore, the answer to Point No. 1 is as "doubtful".

 

10.       Prosecution failed to establish the affiliation of the respondent/accused with banned organization (Haqani Network) before trial Court. So far recovery of two receipt books is concerned, there was no evidence that those receipt books were verified by the I.O. Prosecution has also failed to prove safe custody of the receipt books allegedly recovered from the respondent at the police station. Trial court has rightly observed that there were material contradictions in the evidence of prosecution witnesses. Addl. P.G could not controvert those contradictions. Recovery of receipts and donation books have also not been proved by cogent and confidence inspiring evidence. Private persons present around place of arrest and recovery were also not examined. Police officials had also failed to take photographs when search and seizure was made. Article 164 of the Qanun-e-Shahadat Order 1984 specifically permits the use of any evidence that may have become available because of modern devices or techniques and its Article 165 overrides all other laws. Moreover, the scope of interference in appeal against acquittal is narrow and limited because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence that an accused shall be presumed to be innocent until proved guilty as held in the case of The State v. Abdul Khaliq and others (PLD 2011 Supreme Court 554), relevant portion is reproduced as under:

“From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced that the scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.”

 

 

11.       The impugned judgment passed by learned trial Court is neither perverse nor speculative, but it is based upon sound reasons, which require no interference by this court.

12.       For the above stated reasons, there is no merit in the appeal against acquittal. Finding of the innocence recorded against the respondent/accused by the trial Court are based upon sound reasons which require no interference at all. As such, instant Acquittal Appeal is without merit and the same is dismissed.

 

J U D G E

 

J U D G E