THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No. 226 of 2023

Present: Naimatullah Phulpoto, J

Irshad Ali Shah, J

Appellants : Nemo for appellants Fazal Waheed & Arsalan

Respondent : The State through Mr. Abrar Ali Addl. P.G

Date of Hearing : 01.10.2024

Date of judgment : 01.10.2024

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellants Fazal Waheed and Arsalan were tried by learned Judge, ATC-X, Karachi in Special Case No. 169/2021. After regular trial, vide judgment dated 30.11.2023, they were convicted under Section 365/34 PPC and sentenced to undergo 07 years R.I each and to pay a fine of Rs.100,000/- each. In case of default in payment whereof they were directed to undergo 01 year R.I. each. Benefit of Section 382(b) Cr.PC was extended to them.

2. Brief facts of the prosecution case are that on 19.03.2021 at 1100 hours, complainant Jehanzaib lodged FIR vide Crime No. 234/2021 u/s 365-A/34 PPC read with Section 7 of ATA at PS Iqbal Market, Karachi alleging therein that his cousin Muzammil aged about 15/16 years after coming back from his school, went to purchase grocery, but did not return to home.

3. After usual investigation challan was submitted by the police against the appellants to face trial under the above referred incident.

4. Trial Court framed charge against the accused, to which they pleaded not guilty and claimed trial.

5. At trial, prosecution examined seven witnesses, who produced the relevant documents. Thereafter, prosecution side was closed.

6. Trial Court recorded statements of accused/appellants under Section 342 Cr.P.C at Ex.15 and 16. Appellants claimed their false implication and denied the prosecution allegations. Appellants neither examined themselves on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in their defence.

7. Trial Court after hearing the learned counsel for the appellants, and prosecutor for the State while assessing the evidence, by judgment dated 30.11.2023, the appellants were convicted and sentenced as stated above. Hence, the appellants being dissatisfied with the judgment of conviction against them have filed instant appeal before this Court.

8. Appeal was admitted to regular hearing and notice was issued to Additional Prosecutor General Sindh. During pendency of the appeal, jail roll was called. Jail roll dated 12.06.2024 is received, which reflected that appellants have been released from the prison on 04.01.2024 on expiry of sentence on remission system. After release of the appellants from jail, they have not appeared before this Court to contest the appeal on merits. Today counsel for the appellants is called absent without intimation though his name transpires in the cause list.

9. Mr. Abrar Ali Addl. P.G submits that after release of the appellants, this appeal has become infructuous, but we are of the view that this Court has to satisfy itself whether prosecution had succeeded to prove its’ case against the appellants and whether conviction awarded to the appellants by the trial Court was warranted in law.

10. We have perused the evidence and impugned judgment with assistance of Addl. P.G. Evidence of prosecution witnesses is reliable and confidence inspiring, despite lengthy cross-examination, nothing favourable to the appellants came on record. Trial Court had appreciated evidence according to settle principles of law. On re-examination of evidence, we hold that prosecution had succeeded to prove its’ case against the appellants. Relevant paragraph of the impugned judgment is reproduced as under:

“Viewing to the Evidence led by the prosecution from all the Dimensions, I am of the considered view that the prosecution has been able to prove the Charge against the present accused persons to the extent as already highlighted supra through cogent, reliable and confidence inspiring evidence. Hence I have no legitimate exception to differ with the version brought on record by the prosecution against the present accused persons namely 1. Fazal Waheed son of Shah Zareen & 2. Arsalan son of Jehanzaib. Accordingly I reply above determined points in Affirmative/Proved (to the extent & degree as already highlighted supra).

11. For the above stated reasons, impugned judgment passed by learned trial Court require no interference by this Court. Resultantly, the impugned conviction is maintained and appeal is dismissed.

JUDGE

JUDGE

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