THE HIGH COURT OF SINDH, KARACHI

Special Criminal Anti-Terrorism Acquittal Appeal Nos. 19, 20, 21, 22, 23 & 24 of 2008

 

Present

                                                                                Mr. Justice Naimatullah Phulpoto

                                                                                Mr. Justice Abdul Maalik Gaddi     

 

Date of Hearing:                                            22.11.2017

 

Date of announcement of judgment:                        29.11.2017     

 

Appellant:                                                      The State through Prosecutor General Sindh Mr. Muhammad Iqbal Awan Addl. P.G.

 

Respondents:                                                  Baboo, Arshad, Muhammad Yasin Ghori, Orangzaib not appeared.

 

 

Complainant:                                                 Muhammad Iqbal through Mr. Shahab Sarki Advocate.

 

 

 

J U D G M E N T

 

NAIMATULLAH PHULPOTO, J- Respondents/accused Baboo, Arshad, Muhammad Yasin Ghori and Orangzaib were tried by learned Judge, Anti-Terrorism Court No.V Karachi Division in Special Case No.31/2007, Special Case No.43/2008 (FIR No.94/2007 under Sections 365-A/34 PPC read with Section 7 Anti-Terrorism Act, 1997 registered at P.S Soldier Bazar), Special Case No. 32/2007, Special Case No. 42/2008 (FIR No.160/2007 under Sections 353/324/34 PPC read with Section 7 Anti-Terrorism Act, 1997 registered at P.S Docks), Special Case No. 33/2007, Special Case No. 34/2007 (FIR No.161/2007 under Section 13(d) Arms Ordinance registered at P.S Docks). By separate judgments dated 06.05.2008, Respondents/accused were acquitted by extending benefit of doubt to them. Hence these Special Criminal Anti-Terrorism Acquittal Appeals are filed by the State/ Prosecutor General Sindh.

 

2.         Brief facts of the prosecution case have already been narrated by the trial Court in its judgment in detail, we avoid repetition. However, operative parts of the judgments are reproduced as under:

 

Special Cases No.34 of 2007, 42 & 43 of 2008

 

”The important witness of the case is PW-04 Ameer Abdaal the abductee. A bare perusal of the record shows that both the accused are minors and they were shown to be along with major co-accused and in their company alleged to have committed the offence of abduction for ransom but the prosecution in order to establish its case has failed to bring on record the material evidence such as the data of mobile phone from which demand of ransom amount was made. They were shown to be present at the place of captivity and have fired at police party when it came to raid for recovery of the abductee.

 

The abductee in his statement stated he was called by accused Muhammad Yasin Ghori and then all kidnapped him and took him to a house in densely populated area. In his cross examination this witness stated that people standing hi street when accused Muhammad Yasin Ghori along with minor co-accused on seeing the police party opened fire and in retaliation police party also fired. Whereas the record shows that only 03 empties of 30. bore pistol have been recovered from the place of incident  and no any injury has been shown to either side in cross firing despite the fact that police were in street without any obstruction. For the sake of argument if it is considered that police got shelter of their vehicles which they brought for raid even then neither any of the witness stated for bullet mark on any vehicle nor record shows such a thing. It is an admitted position that police party consisting of two mobile vans and two private cars as well as personnel were having SMGs and other automatic weapons but not a single empty of such weapon in proof of cross fire by the police was recovered. On the other hand whole the street was stated to be occupied by the police in order to raid on the place of captivity of abductee which was in thickly populated are but not a single private witness was cited.

 

Moreover, the investigation officer did not make any effort for collecting data of the phone from which accused alleged to have called for ransom. Even the record is silent about the fact of ownership and whereabouts of the owner of such phone/SIM. Letting such an important accused from alleged heinous crime, if at all committed, is also a great lapse on the part of prosecution. Moreover, PW-5 and PW-6 i.e. I.O have totally changed the story of prosecution that on 03.08.2007 at 2:45 they went to Sohrab Goth for payment of ransom.

 

In absence of evidence in respect of all factual questions stated above i.e. the brief case containing the ransom amount stated to be brought by complainant, knife, empties alleged in retaliation of firing by the police and the private witness from the vicinity, the whole story seems to be a cock and bull story. Looking the aforesaid facts, the credibility of these witnesses seems to be not trustworthy and cannot be relied upon. After the detailed discussion made herein above, I am of the view that the prosecution thrown the case of the complainant in the flood of doubts and it is settled law that the benefit of doubt always go to the accused.”    

 

Special Cases No.31, 32 & 33 of 2007

 

” PW-04, the abductee in his statement stated he was called by accused Muhammad Yasin Ghori and then all kidnapped him and took him to a house in densely populated area. In his cross-examination this witness stated that the peoples were standing in street when accused Muhammad Yasin Ghori along with minor co-accused on seeking the police party opened fire and in retaliation police party also fired. Whereas, the record shows that only 03 empties of 30. bore pistol have been recovered from the place of incident  and no any injury has been shown to either side in cross firing despite the fact that police were in street without any obstruction. For the sake of argument if it is considered that police got shelter of their vehicles which they brought for raid even then neither any of the witness stated for bullet mark on any vehicle nor record shows such a thing. It is an admitted position that police party consisting of two mobile vans and two private cars as well as personnel were having SMGs and other automatic weapons but not a single empty of such weapon in proof of cross fire by the police was recovered. On the other hand whole the street was stated to be occupied by the police in order to raid on the place of captivity of abductee which was in thickly populated are but not a single private witness was cited. It also does not applies to the mind that while keeping an abductee, the only major accused namely Muhammad Yasin Ghori would be outside the house in the odd hours of night and seeing the police party started firing at them, as such, the alleged encounter does not appear to be true.

 

Moreover, the investigation officer did not make any effort for collecting data of the phone from which accused alleged to have called for ransom. Even the record is silent about the fact of ownership and whereabouts of the owner of such phone/SIM. Letting such an important accused from alleged heinous crime, if at all committed, is also a great lapse on the part of prosecution.

 

In absence of evidence in respect of all factual questions stated above i.e. the brief case containing the ransom amount stated to be brought by complainant, knife, empties alleged in retaliation of firing by the police and the private witness from the vicinity, the whole story seems to be a cock and bull story. Looking the aforesaid facts, the credibility of these witnesses seems to be not trustworthy and cannot be relied upon. It is an admitted position that keeping in view the aforesaid major lacunas on the part of prosecution, the prosecution has failed to prove its case against the major accused persons who have allegedly played a pivotal role in the offence, what to say of minor accused persons.”    

 

3.         Mr. Muhammad Iqbal Awan, learned Addl. P.G argued that trial court has failed to consider the legal and factual aspect of the case and came to erroneous conclusion  of the acquittal of the accused/Respondents. He has further argued that trial Court has not assigned reasons for disbelieving the prosecution witnesses. Lastly, it is submitted that there was huge evidence against accused to convict them in the above case and prayed for allowing the appeals. Mr. Shahab Sarki Advocate for complainant adopted the arguments of learned Addl. P.G.

 

4.         It appears that B.Ws were issued against Respondents/accused which could not be executed on the ground that respondents/accused were not traceable. These appeals pertain to 2008. Learned Addl. P.G as well as learned counsel for complainant have admitted the legal position that scope of acquittal appeal is quite narrow and limited. With the assistance of the learned Addl. P.G we have gone through the entire evidence available on record. It has come in evidence that call data regarding ransom was not collected during investigation. There was also police encounter but none received injury. PWs 5 & 6 have given entirely different version from the prosecution story. Trial Court has rightly observed that prosecution witnesses were not trustworthy and reliable and for the sufficient reasons extended benefit of doubt to accused. So far the appeal against acquittal is concerned after acquittal Respondents/accused have acquired double presumption of innocence, this Court would interfere only if the judgment was arbitrarily, capricious or against the record. But in this case there were number of infirmities and impugned judgment of acquittal in our considered view did not suffer from any misreading and non-reading of the evidence. As regard to the consideration warranting the interference in the appeal against acquittal and an appeal against conviction principle has been laid down by the Hon’ble Supreme Court in various judgments. In the case of State/ Government Sindh through Advocate General Sindh, Karachi versus Sobharo (1993 SCMR 585), Honourable Supreme Court has laid down the principle that in the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal. Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice. Relevant portion is reproduced as under:-

 

“14.We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice. Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed.”

           

5.         For what has been discussed above, we are of the considered view that impugned judgments are based upon valid and sound reasons and are entirely in consonance with the law laid down by the Honourable Supreme Court of Pakistan. Neither, there is misreading, nor non-reading of material evidence or misconstruction of facts and law. Resultantly, above mentioned Special Criminal Anti-Terrorism Acquittal Appeals are without merits and the same are dismissed.                                                             

 

 

JUDGE

 

                                               

JUDGE