IN THE
HIGH COURT OF SINDH AT KARACHI
SPL. CR. A. T. JAIL
APPEAL NO.45/2013
MR. JUSTICE SALAHUDDIN PANHWAR
Appellant : Irfan s/o Taj Muhammad Saud,
through Mr. Ajab Khan Khattak Advocate.
Respondent : The
State,
through Mr. Ali Haider Saleem,
APG.
Date
of hearing : 03.12.2013.
Date
of judgment : 03.12.2013.
SALAHUDDIN
PANHWAR, J. Through above captioned appeal,
appellant has assailed judgment dated 5th August 2013 passed by
Anti-Terrorism Court-II, Karachi East, in Special Case No.B-205 and 206 of 2013
(Re: the State vs. Irfan) whereby appellant was convicted under section 384,
385, 386/34 PPC and section 13-D Arms Ordinance R/w section 7 of the Anti-terrorism
Act 1997 to suffer R.I. for 5 years with fine of Rs.20,000/-.
2.
Precisely,
relevant facts are that complainant Muhammad Mehmood Ansari lodged FIR bearing
crime NO.55/2013; contending therein that on 26.02.2013, he was available in
the factory, the Chowkidar delivered him a receipt by disclosing that a person,
standing behind the wall has delivered such receipt. It was revealed that through
said receipt Rs.30,000/ were demanded and one mobile No.0306-9117591 was
mentioned. Thereafter on same date at about 1930 hours one person came and
introduced himself as Yousuf @ Shafiq and demanded such amount whereby
Rs.5000/- were paid and for remaining amount next date and time i.e. 27.02.2013
at about 200 was fixed. The complainant conveyed such facts to PS New Karachi
Industrial Area, whereby on the given date and time, police secretly cordoned
off the factory while four persons emerged there and demanded the amount as extortion
thereby amount of Rs.25000/- in an envelope was supplied to them. Thereafter
they in order to cross the naddi (river) tried to abscond but police personnel
available there, apprehended one person (appellant); rest of three persons
escaped away. That person disclosed his name Irfan; from his body search TT
pistol of 30 bore alongwith 5 live round and envelope containing Rs.25000/- was
recovered. After this, FIR was lodged. The separate FIR under section 13-D Arms
Ordinance was also registered. After usual investigation accused was sent up
for trial.
3.
A
formal charge under section 385, 386, 387 PPC, Sec. 7(h) of the ATA and 13-D
Arms Ordinance, was framed wherein accused pleaded not guilty and claimed for
trial.
4.
To
substantiate the charge, prosecution examined four witnesses: PW-1 SI Manzoor
Husain at Exh.5 who produced memo of arrest and recovery at Exh.5/A,
slip/receipt of bhata at Exh.5/B, FIR No.55/2013 at Exh.5/C and FIR No.56/2013
at Exh.5/D. PW-2 complainant Muhammad Mehmood Ansari examined at Exh.6 who
produced memo of inspection of police of incident at Exh.6/A. PW-3 Muhammad
Aman examined at Exh.7. PW-4 Inspector Mohsin Hussain, I/O of case examined at
Exh.8 who produced FSL report at Exh.8/A. Thereafter prosecution closed its
side vide statement at Exh.9.
5.
The
statement of accused Irfan under section 342 Cr.P.C. was recorded, wherein he professed
his innocence, however he did not prefer to examine himself on oath or lead any
defence evidence.
6.
Learned
counsel for appellant, inter-alia,
contended that charge is groundless; Chowkidar Zafar who was material witness, but
his evidence was withheld thus presumption can be drawn that he was not supporting
the prosecution case; ocular testimony is full of material contradictions, even
then such discrepancies were not considered by trial Court; according to law
single dent in prosecution case is sufficient to acquit the appellant but trial
Court has not followed such golden principle of criminal administration of
justice. In support of his contention he has relied upon case of Muhammad
Ziaul-Haq vs. the State reported in 2007 P.Cr.L.J. 1888.
7.
On
the other hand, learned APG argued that sufficient incriminating material in
shape of ocular and circumstantial evidence was available against the appellant,
therefore impugned judgment is completely in accordance with law and does not
require any interference.
8.
We have heard learned
counsel for the appellant, learned Additional Prosecutor-General and have
perused the evidence on record.
9. The
scanning of the available material shows that it is an undeniable position
that:
“before lodgment of the FIR the complainant Muhammad Mehmood
Ansari had reported / complained to the SHO P.S New Karachi Industrial Area
that he had received a chit for bhatta; paid part payment out of such allegedly
demanded bhatta; made arrangement with SI Manzoor Hussain for arrest of
culprits on following day; SI did reach at such place and caused arrest of
present appellant after payment of remaining bhatta amount”
This makes us to consider such facts with regard to their
legality. We are unable to understand that when the complainant, undisputedly,
had complained to the SHO with such allegation then why the S.H.O did not
resort to the legal procedural way which, per Section 154 Cr.PC, had left no
discretion with the S.H.O but to record the F.I.R. Moreover prosecution has
failed to substantiate this plea by placing any entry regarding such
information.
10. However,
let's examine the case of prosecution. For proper appreciation of the case it
would be just and proper to refer the relevant portion of evidence of the PW-1
SIP Manzoor Hussain, who received information and caused arrest of appellant:
PW-1 SIP Manzoor Hussain:
"On 27.02.2013 I was
posted at P.S. N.KIA as Sub-Inspector in operation Branch. On that day my duty
hours were from 8.00 a.m to 8.00 p.m. Mehmood Ansari complainant informed us
that one person who came yesterday for collection of bhatta Rs.30,000/- out of which
complainant paid him Rs.5000/-. The complainant further disclosed that today he
will come in the noon again for collection of remaining amount of bhatta. On
such information I alongwith police party reached at the place pointed out by
the complainant and concealed ourselves. Meanwhile we saw 04 persons came from
the side of Naddi and entered into the factory from the broken wall and
collected enveloped of bhatta amount from complainant meanwhile we gave them
lalkara and encircled them. Three accused persons fled away from the Naddi
while one accused who disclosed his name Irfan son of Taj Muhammad was
arrested, one TT pistol 30 bore No.3092 loaded with 05 alive rounds recovered
from his right hand. On his personal search from his right side pocket of his
shirt one enveloped containing Rs.25,000/- of 1000/- thousands denomination was
also recovered. On tentative interrogation on the spot he disclosed the name of
absconding accused persons namely Asghar, Rahim and also disclosed the name of
their head accused Yousuf @ Shafique. The complainant was also present at the
spot who identified the accused as well as the recovered cash enveloped
therefore, I arrested him, prepared memo of arrest and recovery under
mashirnama in presence of Muhammad Mehmood Ansari and Muhammad Aman. The
complainant also produced the slip of bhatta to me on the spot.”
From the evidence of the above PW it is clear and evident that the
said P.W had left the police station for the specific purpose of causing arrest
of the culprits who were likely to come to the complainant for collection of
bhatta. Thus, on such an admitted position, the said PW (SIP) was legally
required to have left the police station under an entry in the Roznamcha but
the said witness did not produce such roznamcha entry on record. Here it is
necessary to refer the response of this witness while replying a question,
which is as under:-
"It
is fact that I did not produce the departure entry from P.S before this Court
today. Vol. says that I can produce if ordered by this
11. Further, the said PW SI Manzoor Hussain
specifically stated in his examination that " On such information I
alongwith police party reached at the place pointed out by the complainant and
concealed ourselves. Meanwhile we saw 04 persons came from the side of Naddi
and entered into the factory from the broken wall and collected enveloped of
bhatta amount from complainant meanwhile we gave them lalkara and encircled
them". This specific and clear statement of the witness, who also is
an eye-witness of incident, makes it clear that all four culprits entered into
factory from the broken wall but as per cross examination of the complainant PW
Muhammad Mehmood Ansari that "The whole size of 5 to 6 inches. It is
fact that to the extent that accused not came inside the factory but accused
came outside of the factory for receiving amount of bhatta". Thus, the
complainant and PW SI Manzoor Hussain do not confirm each other on this point,
which is a material aspect because it relates very place of incident, position
and even manner of incident. This even makes the claim of PW SI Manzoor Hussain
doubtful about his presence at the place of incident. PW SI Manzoor Hussain
stated in his cross examination that "At the time of incident PC Saghir
Ahmed, PC Habib Shah and PC Qurban Gilani and PC Shaker were with me" but
the complainant, in his examination, states that "At the time of arrest
of accused 15 to 20 police personnels were available at the place of arrest. Further,
PW SI Manzoor Hussain stated in his evidence that "I forget the
registration number of police mobile on which I was patrolling in the area on
the day of incident". This means that it was only a single mobile
wherein PW SI Manzoor Hussain alongwith staff was available at spot but the
complainant even belied this while saying in his cross examination that
"The police party arrived in 2/3 mobiles". Hence, it has become clear and evident
that both the complainant and PW SI Manzoor Hussain do not support each other
on material aspect.
12. Now, we would like to examine the relevant
evidence of the complainant with comparison to that of evidence of other
witness(es).
Complainant Muhammad Mehmood Ansari
"on 26.2.2013 when I reached at my factory it was noon time.
My chowkidar handed over to me one slip with wording that I should pay
Rs.30,000/- as bhatta and in future no one else would disturb to me the central
name was Yousuf Khan. I see Ex.5/B which is on record on the cell number I
contacted with Yousuf Khan who directed me if I would not pay bhatta you would
closed your factory. At evening time I then contact with Yousuf Khan to whom
I made request please to come and receive bhatta from me. However, at about
5.00 p.m accused came outside of the wall and in whole (hole) I paid Rs.5000/-
to one person whose face was not visible and after receiving Rs.5000/- who went
away soon after I received his call who told me that you had only paid
Rs.5000/- to whom I replied that I could not arrange the amount urgently.
Consequently I approached to SHO of P.S New
13. The above examination-in-chief of the complainant
shows that he himself has parted whole incident in two parts. First one
revolves around receipt of chit and payment of Rs.5000/- with commitment to pay
remaining amount on next day and other part is regarding payment of remaining
amount with arrest of present appellant alongwith allegedly paid ransom money.
14. As, per the complainant it was his Chowkidar
namely Zaffar Iqbal whom the alleged chit for bhatta was delivered and
the status of such, per complainant is: "It is a fact that in the slip
name of mine and name of factory does not transpire". In such a
position, it was necessary for prosecution to have produced such a witness to
prove first part:
i)
first part of
charge i.e delivering of such chit for bhatta;
ii)
it was
appellant who had delivered such chit;
iii)
chit for
ransom was meant for complainant to pay alleged bhatta;
These material points in issue could have
been proved only by said PW namely Zaffar Iqbal but this witness is not
examined by the prosecution. Thus in such a situation, the legal presumption,
within meaning of Article 129(g) of the Qanun-e-Shahadat Order can be nothing
but against the prosecution.
15. Let's examine the case regarding second part of
the incident/charge. The perusal of the examination-in-chief of the complainant
shows that it was the complainant himself who phoned at the number, mentioned
on the chit; requested to come for bhatta; on his coming he paid Rs.5000/- who
soon after going with such money, phoned to complainant that why he paid
Rs.5000/- only. Such part of examination-in-chief of the complainant is
completely against the version given in FIR wherein the complainant had alleged
that :
"on 26.02.2013 at 4.30 pm one person came at hole while
disclosing his name as Yousuf @ Shafique and demanded money while referring to
chit. Complainant paid him Rs.5000/- with request to come on 27.02.2013 at 2.00
p.m for collecting remaining amount"
16. It is further revealed that the complainant in his
FIR stated that "after his going (person whom Rs.5000/- were paid) he
informed to PS New Karachi Industrial Area". However, in
examination-in-chief of the complainant he claims that he went to police
station reported the matter to SHO, who handed over PW SI Manzoor Hussain and
then he (complainant) and PW SI Manzoor Hussain exchanged Phone-numbers. Such stand of the complainant is also a
patent and clear improvement which, even otherwise, does not find support as
police has not produced any single document (FIR/entry) for such arrival of
complainant at Police Station and departure of PW SI Manzoor Hussain for such
purpose. These improvements made by the complainant during his
examination-in-chief, is only to bring the case in line. For this it would
suffice to say that such conduct of a witness does not help prosecution rather
brings serious cloud over his credibility hence not worth reliance.
17. Besides, it also does not appeal to reasons and
logic that if such person himself (as per FIR) had dared to come alone for
collecting bhatta then why such transaction happened at the hole of back-wall
of factory, particularly when the complainant had no reason to be present at
such place nor was called at such place. However, if it is believed that
complainant himself has called that person to come and collect bhatta amount
(as stated in examination-in-chief) yet why at hole of back-wall of the
factory. In either case, such story does not fit in the given circumstance nor
stands to test of reasoning, logic and that of human behaviour and experience
hence makes such part quite unbelievable particularly, when such hole, per
complainant is 5 to 6 inches.
18. Further, perusal of the FIR of the complainant
would show that PW Aman no where surfaced in whole incident but perusal of the
evidence of such witness would show that he claimed himself to have accompanied
with complainant during whole process and even it was he who had advised the
complainant to report the matter with police station. Such stance of this
witness also appears to improve the prosecution case. This witness stated that "I
cannot explain the number of police official who cardon of factory as some of
uniform and some of were without uniform". However, as per complainant
and PW SI Manzoor Hussain all police officials were in uniforms.
19. There is also another interesting aspect of the
case that the prosecution specifically made the cell No.0306-9117591 to be that
of absconding accused Yousuf @ Shafique on which complainant either himself
contacted or he was phoned by such number but it is a matter of record that not
a single proof in shape of data of such sim-number or that of complainant has
been produced to strengthen claim of demand of ransom. The I.O of the case
PW-Inspector Mohsin Hussain did not make any effort to inquire about person on
whose name such sim is issued. The appellant was admittedly not found
possessing any phone at the time of his arrest. Thus if whole evidence is
scanned it becomes clear that there is not a single word from side of
prosecution to prove that :
i)
alleged chit was given by appellant;
ii)
amount of Rs.5000/- was given to him but it
was allegedly given to Yousuf @ Shafique;
iii)
alleged SIM was in his name;
iv)
it was appellant with whom complainant
contacted;
v)
the appellant ever demanded any bhatta from
complainant;
Hence, in absence of above, it
would not be safe to hold that prosecution has proved the charge.
20. In view of above discussion, it has become evident
that the prosecution could not succeed in establishing the charge against the
appellant, who per his 342 Cr.PC statement, is only 15 years old because no
conviction could sustain on any type of evidence where direct evidence appears
to be not reasonable, confidence inspiring and natural, reliance can be placed
on the case of Muhammad Afzal vs. the State reported in 2009 SCMR 436 wherein
Honourable apex Court has held as under:-
“12. After
taking out from consideration the ocular evidence, the evidence of
identification and the medical evidence, we are left with the evidence of
recoveries only, which being purely corroboratory in nature, in our view, alone
is not capable to bring home charge against the appellant in the absence of any
direct evidence because it is well-settled that unless direct or substantive
evidence is available conviction cannot be recorded on the basis of any other
type of evidence howsoever, convincing it may be.”
21. Accordingly, by short order dated 03.12.2012,
instant appeal was accepted; impugned
judgment was set aside ; consequently appellant
was is ordered to be released forthwith if not required in
any other case.
J U D G E
J U D G E