IN THE HIGH COURT OF SINDH AT
KARACHI
SPL. CR. ANTI-TERRORISM APPEALS NO.16, 17 & 18 OF 2013
MR.
JUSTICE SALAHUDDIN PANHWAR
Spl. Cr. A.T. Appeal No.16/2013
Appellants : (1) Irshad Ali
(2)
Asif Ali.
Through Ms. Asma Khan, advocate.
Respondents : Muhammad Shahid
& another.
Through
Mr. Ali Haider Saleem, APG for the State.
Spl. Cr. A.T. Appeal No.17/2013
Appellant : Irshad Ali.
Through
Ms. Asma Khan, advocate.
Respondents : Muhammad Shahid
& another.
Through
Mr. Ali Haider Saleem, APG for the State.
Spl. Cr. A.T. Appeal No.18/2013
Appellant : Asif
Through
Ms. Asma Khan, advocate.
Respondents : Muhammad Shahid
& another,
Through
Mr. Ali Haider Saleem, APG for the State.
…….
Date of hearing : 28.11.2013.
Date of announcement : 06.12.2013.
SALAHUDDIN PANHWAR, J : Through instant judgment we intend to
decide above captioned appeals, wherein appellants have assailed judgment dated
21st May 2013; passed by Anti-Terrorism Judge-III (South) at Karachi,
in Special Criminal Case No.5(3), 6(3) and 7(3) of 2013, by which the
appellants were convicted under section 7(h) of ATA 1997 R/w section 384, 385,
386 and sentenced to suffer penal servitude for 5 years with fine of
Rs.10,000/- and further they were convicted under section 13(d) Arms Ordinance
1965 to suffer penal servitude of 3 years with fine of Rs.5000. The benefit of
section 382-B Cr.P.C. was extended.
2.
Succinctly,
prosecution case is that complainant Muhammad Shahid lodged FIR which reveals
that on 29.12.2012, the complainant was present in his office alongwith Usama
son of Mohammad Asif, who is Umra Consultant and at about 1645 hours, two
persons Irshad son of Asghar Ali and Asif son of Abdul Rasheed entered into the
office, delieverd a chit/Purchi of Bhatta of Rs.30,000/- to the complainant
by threatening him on the force of weapon that arrange such amount at once otherwise he would be killed.
It was further alleged by the complainant that before this, these two persons had
taken extortion money/Bhatta twice, on Eid-ul-Azha an amount of Rs.10,000/-
and in Muharram-ul-Haram an amount of Rs.6000/-. The complainant kept the
accused persons, on the pretext of arranging extortion money/Bhatta, meanwhile informed to the police, pursuant to that, police
reached, apprehended them, and effected recovery pistols of 30 bore, along with
bullets from fold of wearing shalwar. Consequently,
report, regarding offences punishable under section 385/386/34 R/w section 7 of
the ATA 1997 and two separate FIRs under section 13(d) Arms Ordinance were
lodged . After usual investigation both accused were sent up for trial.
3.
The
trial Court framed the charge against the accused/appellants, whereby they
pleaded not guilty and claimed for trial.
4.
To
substantiate the charge, prosecution examined following witnesses:-
(1)
PW-1
Mohammad Shahid as complainant of the case as Exh.5. He produced Mashirnama of
arrest and recovery as Exh.5/A, statement recorded under section 154 Cr.P.C. as
Exh.5/B, carbon copy of FIR as Exh.5/C, Mashirnama of place of incident and recovery
of Purchies/Slips as Exh.5/D.
(2)
PW-2
Osama as Mashir of arrest and recovery as Exh.6.
(3)
PW-3
ASI Abdul Rasool was examined as Mashir of arrest and recovery as well as
Mashir of recovery of motorcycle as Exh.7. He produced memo of pointation of
place of incident and recovery of motorcycle as Exh.5/A.
(4)
PW-4
ASI Abdul Raheem was examined as Exh.8. He produced Roznamcha entries as
Exh.8/A to 8/C respectively, carbon copy of FIR No.488/2012 and FIR No.487/2012
under section 13(d) Arms Ordinance as Exh.8/D and 8/E.
(5)
PW-5
Inspector Hameed Khan was examined as Investigating Officer of the case as
Exh.9. He produced Rozanamcha entry as Exh.9/A, voucher and receipts as Exh.9/B
to 9/D, receipt of Rs.30,000/- and three blank purchies/slips according to the seizure memo and copy of Excise
& Taxation document of motorcycle as Exh.9/E & 9/F, Roznamcha entry No.10
as Exh.9/H, Entry No.20 as Exh.9/I, Entry No.28 as Exh.9/K, another letter as
Exh.9/L and FSL examination report as Exh.9/M. Thereafter learned ADPP closed
its side vide his statement recorded as Exh.10.
5.
Statements
under section 342 Cr.P.C. were recorded, wherein they professed their innocence
and preferred to examine two witnesses DW Altaf Ali and DW Moinuddin, as
defence witnesses; thereafter side was closed.
6.
Learned
counsel for appellants has, inter alia, contended that appellants are innocent
and have been implicated with malafide intention in this case; no sufficient iota
of evidence was available to award conviction to them hence judgment of the
trial Court is completely departure from mandatory provisions of law; no
offence of terrorism was made out, in-spite of that trial Court has convicted
both of them under ATA Act; appellants have no criminal history and any nexuses
with any terrorist organization therefore appellants are entitled for
acquittal.
7.
Conversely
the learned APG, while refuting the above contentions raised by appellants counsel
argued that impugned judgment is in accordance with law; appropriate
appreciation of evidence was undertaken by the trial Judge. The appellants have
failed to point out any animosity regarding their false involvement and also
failed to bring material contradiction in ocular as well as circumstantial
evidence.
8.
Heard
counsel, perused the record.
9.
After
careful consideration and meticulous examination of the available record. Suffice to say that mere heinous nature of offence is not
sufficient to convict the accused because the accused continues with
presumption of innocence until found otherwise at the end of the trial. It is the
settled principle of law that “burden is
always upon the prosecution to prove the case beyond shadow of doubt” this
principle, laid down in series of decissions, falls within the doctrine of “stare decisis”, keeping in view this
basic touchstone of criminal administration of justice, we have examined the
ocular evidence as well as circumstantial evidence, along with impugned
judgment.
10.
It
would be conducive to examine the relevant portion of examination in chief of
two eye-witnesses Muhammad Shahid and Osama PW Shahid states :
PW-Shahid:
“On 29.12.2012
at about 04.45 PM, two persons namely Irshad and another name later on came in
my knowledge as Asif came to me at my office situated at Plot No.52-P, Main
Korangi road, Defence phase II Extn. Karachi and given me a ‘Parchi’ of Chanda
of Rs.30,000/-. Prior to this they also came to me on the occasion of
Eid-ul-Azha and Moharramul Haram and taken Rs.10,000/- on Eid-ul-Azha and
Moharram-ul-Haram they came to me and demanded Rs.5600/- for donation of Haleem
and received that amount. When 29.12.2012 when the accused persons third time
came to my office thereafter we came under the pressure of accused persons as
they demanded the said amount. I given the assurance to wait I will arrange the
amount of Rs.30,000/- and I direct my employee Usama to inform the police. Due
to chance one Mobile was passing from our office and same were patrolling.
Usama has informed the police and they came to our office and apprehended the
accused persons on spot.”
PW-Osama:
“On
29.12.2012, I was working in the Fatmeed Travelling Agency, where at about
05.00 or 05.30 PM, two persons came in our office. At that time I was sitting
in the room of our Manager namely Shahid who is complainant in this case and
demanded Rs.30,000/- and given the Parchi to the complainant and Shahid Bhai
has given me signature [signal] for calling the police and Shahid Bhai also
replied the accused to wait sometime I will arrange the money for you. When I
came outside the office where I saw one Mobile of Police patrolling in the same
area. I also informed the police in respect of the accused persons for
demanding Rs.30,000/- forcibly. On that police has arrested both the accused persons
on the pointation of Shahid.”
11.
While
perusal of above examination-in-chief, it is manifest that both the witnesses
have not deposed that they were put in fear of death or grievous hurt by
accused/ appellants, and thereby they were compelled to provide extortion
money(Bhatta). Plain reading reveals that witnesses say that both appellants
twice came and got Rs.10,000/- and Rs.6500/- as Chanda, thereafter they
again came and demanded Rs.30,000, forcibly . Further, admittedly, there is
allegation that appellants were demanding Bhatta, but it is matter of record
that no such proof in shape of any slip/parchi containg the demand of of bhatta
was available with prosecution,though some slips/parchies regarding chanda, were produced by prosecution, but
same are also lacking credibility, in this regard it is pertinent to refer the relevant
evidence, complainant has stated in cross examination that:- “I have already produced those ‘parchies’
which were issued by the accused persons. It is correct that in parchi no crime
and case number is mentioned…….. it is correct that envelop was not sealed but
it was stappled by me with my signature on envelope. . PW. Abdul Rheem(investigation officer has
stated that “it is correct that I have
not written the description of the parchi but 30,000/- amount was written on
Parchi. It is not in my knowledge that who is the author of that parchi”.
It is worth to add here that Legislature has given every single offence to its
own independent definition. It is the definition which takes out one act from meaning / scope of one penal
provision / section to other penal provision / section. Therefore, Prosecution
is legally required to establish the ingredient(s) of that Penal provision /
section. At this juncture, it would be appropriate to refer Section 386 of the
Pakistan Penal Code, which is as under:-
“386. Extortion by putting a person in fear of death or grievous hurt: Whoever commits extortion by putting any person in fear of death or of
grievous hurt to that person
to any other, shall be punished with imprisonment
of either description for a term which may extend to ten years, and shall also
be liable to fine.”
12. The said witnesses of direct
evidence have, nowhere, stated in their examination-in-Chief (s) as well as in
cross-examination that the accused persons intentionally put them in fear of
death or of grievous hurt and has failed to substantiate the charge of
extortion through any concrete and confidence inspiring evidence hence the
prosecution could not be said to have proved the extortion within meaning of penal Section 386 of the Code, which provides
that it shall come into play where alleged extortion
is by putting a person in fear of death or grievous hurt.
13.
So far as to the
conviction under section 7(h) of ATA 1997, it is manifest that the prosecution
has not brought any material on record to establish that alleged act of the
appellants demanding chanda (BHATTA) was
so designed that it can, otherwise, falls within the scope of Terrorism as envisaged under Section 6 of the
ATA. Candidly, nowhere it is claimed by prosecution that there was any threat
to extort money, which might have created sense of insecurity amongst the
masses on vast scale, or a particular area. Besides, it is matter of record
that none of the witnesses stated that they even knew that the appellants were
armed or the demand was by show of force or weapon. The level of comfort shown by both the eye
witnesses at the time of incident to the extent that one of the eye witness was
allowed to leave the office while the appellants were kept waiting in the
office by the second eye witness. That
aspect also, proves that the show of weapon or even threat, in instant case lacks
and negates the basic ingredients of terror. Even, it is no where alleged that
the appellants, at any time, offered any resistance or least attempted to use
the allegedly recovered pistols at the time of their arrest. Moreover, it is
not surfaced that accused persons were having nexuses with
any organization, or any mafia involved in collecting extortion of money
(Bhatta), thus the ingredient of “Terrorism” are lacking in the case in
hand; consequently conviction under section 7(h) is not maintainable under
the law. Further, it would be advantageous,
to refer case of Ch. Bashir Ahmad v. Naveed Iqbal and 7
others (PLD 2001 Supreme Court 521), wherein it is held that:-
"8. A person would commit a terrorist act if in order to, or if the
effect of his actions will be to strike terror or create a sense of fear and
insecurity in the people, or any section of the people..." In the instant
case as the facts of the case reveal, the alleged sprinkling of the spirit on
the person of the victim was within the boundary walls of the appellant's
house. It was not in public and, therefore, the element of striking terror or
creating sense of fear and insecurity in the people, or any section of the
people is not made discernible in the F.I.R. and for that matter on the record
of the case as a whole. Similarly the perusal of the Schedule to the Act also
indicates that the element of striking terror or creating sense of fear and
insecurity in the people, or any section
of the people by doing an act or thing
by using bombs, dynamite or other explosive or
inflammable substances etc. is a sine qua non for the attraction of the
provisions of section 6 of the Schedule to the Act.”
14. Reverting
to the evidence, regarding alleged recovery effected from appellants, we have examined the evidence of PW Abdul
Raheem who is investigation officer, he has deposed in cross examination that “
it is correct that body search of the
accused persons were made in the presence of the complainant . Again says that
body search was taken by me in presence of complainant at his office” whereas complainant in his examination
in chief has not stated that recovery
was effected in his presence, he has just disclosed that “I was busy to trace out the voucher which was given to me in respect
of Bhatta and police was busy in the body search of accused persons and it is
in my knowledge but some recovery has been effected from the possesion of
accused persons. When police
came at our office due to fear of police we sit towards some distance.”
Further, investigation officer has contended in cross examination that “it is correct that memo of arrest
and recovery was scribed by our Munshi and I only put my signature. At that
time Munshi was called from police stateion……… ….It is correct that I
have not written any description of the pistols but it is not necessary to
written the description . on the other hand complainant has belied such
statement and has stated that “The police officer has not took my signature
on blank paper but he took my signatures on 5/6 papers which was
perpared by IO in my office. PW. Osama(Mushir) in cross has stated that…I have seen both pistols but I did not see any mark of
identification on the said pistols. Whereas Ballistic report negates the version of investigation officer as
well as Mushir, and provides some discription, which is not matching with memo
of recovery, hence report of fire arm examination
(placed as Ex.9/M) makes this piece of evidence, even more doubtful, the
description is given as under:-
“one
30 bore pistol number F1345 with magazine now butt/body signed and three 30
bore live cartridges now marked as “A” recovered from Irshad Ali
One
30 bore pistol rubbed number
with magazine now butt/body signed and three live cartridges as exhibits now
marked as “B” recovered from Asif.
(Underline is provided for emphasis)
15. While meticulous
examination of evidence, it is patent that material contradictions, inter-alia,
as highlighted above, reveals that witnesses are not steadfast with each other,
on material points regarding recovery and thus creates serious doubt in
prosecution case. It is settled principle of law that various circumstances
are not required to extend the benefit of doubt to an accused, if a single
circumstance is available which according to a prudent mind is sufficient to
create a reasonable doubt in the prosecution case and thereby the veracity and
the chastity of the prosecution case is rendered doubtful, then accused is
entitled for the benefit of doubt as a matter of right and not a matter of
grace. Reference can be made to the case of Muhammad Akram v. The State
reported in (2009 SCMR 230), wherein it has been held that:-
"The nutshell of the
whole discussion is that the prosecution case is not free from doubt. It is an
axiomatic principle of law that in case of doubt, the benefit thereof must
accrue in favour of the accused as matter of right and not of grace. It was
observed by the Court in the case of Tariq Pervez v. The State 1995 SCMR 1345
that for giving the benefit of doubt. It was not necessary that there should be
many circumstances creating doubts. If there is circumstance which created
reasonable doubt in a prudent mind above the guilt of the accused, then the
accused would be entitled to the benefit of doubt not as a matter of grace and
concession but as a matter of right."
16. Accordingly, we are of the
considered view that the prosecution has failed in establishing its case against
the appellants’ beyond the reasonable shadow of doubt. In consequence thereof, impugned
judgment dated 21st May 2013 cannot be sustained under the law,
resultantly same is set aside. Appellants shall be released forthwith, if not
required in any other custody case.
17. Appeals are allowed
accordingly.
Imran/PA