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.
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