HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals Nos.41 and 42 of 2013

and Special Criminal Anti-Terrorism Jail Appeal No.19 of 2014

 

Present:  Mr. Naimatullah Phulpoto, J.

                             Mr. Nazar Akbar, J.

 

Date of hearing:    08.04.2015

 

Date of Judgment: 16.04.2015

 

Appellants:            Shahab Zaman S/o Meer Zaman (in Spl. Cr. ATA Appeals Nos.41 and 42 of 2013)

                             Muhammad Sabir S/o Moula Bux (in Spl. Cr. AT Jail Appeal No.19/2014)

                             through Mr. Muhammad Arshad Tariq, Advocate

 

Respondent:          The State through Mr. Muhammad Iqbal Awan, Assistant Prosecutor General Sindh.

 

 

J U D G M E N T

 

Naimatullah Phulpoto, J.--   These appeals are directed against the judgment dated 07.09.2013 passed by learned Judge, Anti-Terrorism Court-II, Karachi, whereby the appellants were convicted sections 386/34 PPC, 13(d) Arms Ordinance, 1965 and Section 7 of the Anti-Terrorism Act, 1997 and sentenced as under:

 

1.

Under section 386 read with Section 34 PPC

Both the accused were sentenced to undergo R.I. for 10 years and fine of Rs.5000/- each and in default of payment of fine to suffer S.I. for six months.

2.

Under section 13(d) Arms Ordinance, 1965

Both the accused were sentenced to undergo R.I. for 2 years and fine of Rs.1000/- each and in default of payment of fine to suffer S.I. for 3 months.

3.

Under section 7 of the Anti-Terrorism Act, 1997

Both the accused were sentenced to undergo R.I. for 7 years and fine of Rs.5000/- each and in default of payment of fine to suffer S.I. for six months.

         

2.       Brief facts of the prosecution case, as disclosed in the FIR are that Hafiz Abid Hussain lodged his report on 10.03.2012, alleging therein that he is serving as Project Manager, Zong Mobile Company. Four days prior to the lodging of the FIR, a person namely Tiag Ali Magsi came in his office along with three persons and claimed that he has worked in the Zong Company, at Balochistan and demanded Rs.50,00,000/-from the complainant. It is alleged that complainant replied him that he has not worked in Zong Company at Balochistan and there was no such agreement at all. On 07.03.2012 at 1:00 pm, complainant received mobile call from Phone No.0302-2148871 and received messages also. The person, who made a call disclosed his name as Azad Mujahid and asked complainant to solve the problem of Tiag Ali Magsi. Complainant replied that it was impossible for him. Thereafter, caller demanded Rs.50,00,000/- from the complainant as Bhatta, in case of non-payment issued him threats of dire consequences. It is further alleged in FIR that caller reduced demand to Rs.30,00,000/- in the shape of cash and cheques. It is stated in FIR that said person asked complainant that he would send two persons in his office for collection of an envelope/bhatta. On 10.03.2012, complainant was present in his office at State Life Building No.3, third floor, where two accused persons appeared. Accused Azad Mujahid informed the complainant that two accused persons were standing in his office. Complainant was asked to pay cash of Rs.30,00,000/- to accused wearing blue shirt. Complainant issued cheque of Rs.14 lacs from Account No.1033531901, another cheque No.12541903 of Rs.15 lacs was also issued so also cash of Rs.one lac, complainant handed over an envelope to both accused persons. Complainant had already informed the police about the entire episode. Police party reached at spot headed by S.I. Ghulam Baig Shahid, police caught hold both accused and personal search of accused was conducted and their names were enquired. One accused disclosed his name as Mohammad Sabir son of Moula Bux, another disclosed his name as Shahab Zaman son of Mir Zaman. From possession of accused Mohammad Sabir envelop was recovered by the police. From his personal search 30 bore T.T. Pistol loaded was also recovered. From the possession of accused Shuhab Zaman one 30 bore loaded pistol was also recovered. During interrogation both the accused disclosed to the police that their two more accomplices, namely, Mujahid @ Azad @ Foji and Tiag Ali Magsi were standing at the ground floor of the building. Police immediately came to the ground floor, but in the meanwhile, accused Mujahid and Tiag Ali Magsi slipped away. However, police took into possession a motorcycle of the accused bearing No.KDR-5743. Mashirnama of arrest and recovery was prepared and FIR was lodged.

 

3.       After usual investigation, challan was submitted against the present accused and others in the Court of Anti-Terrorism Court No.III, Karachi under Sections 386/506-B/34 PPC read with Section 7 of the Anti-Terrorism Act, 1997 and under section 13(a) of Arms Ordinance, 1965.

 

4.       NBWs were issued against absconding accused Tiaq Ali Magsi son of Inayat Ali Magsi and Mohammad Mujahid alias Aazad alias Foji alias Hakimat son of Jan, which were returned unexecuted. Case was ordered to proceed against them under section 512 Cr.PC. Proceedings under sections 87 and 88 Cr.PC were concluded against absconding accused.

 

5.       Charge was framed against accused Muhammad Sabir and Shuhab Zaman under sections 386, 502, 34 PPC read with section 7 of the Anti-Terrorism Act, 1997. Charge against both the accused Muhammad Sabir and Shuhab Zaman was also framed under section 13(d) of the Arms Ordinance, 1965. Accused pleaded not guilty to the charge and claimed to be tried.

 

6.       In order to prove its case, prosecution examined PW-1 SIP Ghulam Baig Shahid at Ex-30. Learned DPPP gave up PWs PC Said Muhammad and HC Muhammad Zareen at Ex.31. PW PC Raza Muhammad was given up at Ex.32. PW-2 SI Muhammad Rafiq Naz was examined at Ex.33. PC Saghir Sultan was given up at Ex.34. PW SIP Muhammad Rafiq Naz was examined at Ex.35 and produced death certificate of Inspector Fawad Khan. PW-3 Inspector Sami Jan at Ex.36. Thereafter, prosecution side was closed at Ex,.37.

 

7.       Statement of accused Muhammad Sabir was recorded under section 342 Cr.PC at Ex.38 in which he has claimed false implication in this case and denied the prosecution allegations. He has raised the plea that SIP Ghulam Baig Shahid arrested him on 10.03.2012 at 09:00 A.M. near Habib Public School, Sultanabad, Karachi and snatched from him cash of Rs.350/- when he demanded said money from SIP Ghulam Baig Shahid, he involved him falsely in this case. He has stated that he has no concern with the absconding accused. He further stated that T.T. pistol has been foisted upon him and report of FSL has been managed. In a question what else he has to say? he replied that all the PWs are police officials and they have deposed against him at the instance of SIP Ghulam Baig Shahid to show the efficiency. Appellant did not lead any defence and declined to give statement on oath. Appellant Shuhab Zaman in his statement recorded under 342 Cr.PC has also denied the prosecution allegation and stated that nothing was recovered from his possession and police has lodged false case against him. He has also disowned motorcycle and recovery of T.T. pistol and claimed that FSL report has been managed. He has also raised plea that he was arrested on 10.03.2012 at 10:00 a.m. while he was selling articles brought by him from Quetta near PIDC building and there was exchange of hot words with two police officials and he was falsely involved in this case.

 

8.       After hearing the learned counsel for the parties and upon assessment of evidence, trial Court convicted and sentenced the appellants as stated above.    

 

9.       We have carefully heard Mr. Muhammad Arshad Tariq, learned counsel for the appellants and Mr. Muhammad Iqbal Awan, learned Assistant Prosecutor General Sindh and have minutely perused the evidence.

 

10.     Mr. Muhammad Arshad Tariq, learned advocate for the appellants argued that complainant and mashirs of arrest and recovery were not examined by the prosecution. At trial F.I.R. was not produced, no independent person from the locality/office has been associated as witness. There was a business dispute between the complainant and the absconding accused, both the cheques were issued in the name of absconding accused Tiaq Ali Magsi. He further argued that motorcycle which was seized from the parking area but it was not produced before the trial Court. It is argued that no separate mashirnama was prepared, according to the prosecution case, one mashirnama was with regard to the recovery of money of the complainant in the office and another was with regard to the seizure of the motorcycle from the parking area, which according to counsel is a material defect. It is submitted that PW-1 Ghulam Baig Shahid has stated that one accused was Moula Bux whereas there is no accused with the name of Moula Bux in this case. It is contended that inspector Sami Jan has admitted the business transaction in between the complainant and absconding accused Tiaq Ali Magsi. He lastly contended that the appellants are in jail since last about three years. Prosecution case is doubtful. In support of his contentions, he has relied upon the following cases:

 

1.         2008 SCJ 907 (Ghulam Akbar and another vs. the State)

2.         PLD 2009 Karachi 191 (Nazeer Ahmed versus The State)

3.         1972 PCr.LJ 478 (Hamzo and 2 others vs. the State)

4.         2011 SCMR 45 (Mushtaq Hussain and another vs. The State)

5.         1972 SCMR 286 (Shahnawaz versus Lal Khan and 2 others)

6.         PLD 2002 Supreme Court 56 (Raz Muhammad vs. The State)

 

11.     Mr. Muhammad Iqbal Awan, learned A.P.G. argued that it is a fact that two eye witnesses, namely, Hafiz Abid Hussain and Mirza Tahir Sultan have not been examined by the prosecution. Learned A.P.G. has also pointed out that charge is defective one. He has admitted that no private person from the office has been examined by the prosecution. No arrival and departure entries were produced in the Court. In the cases of 13(d) Arms Ordinance, 1965, both the mashirs, namely, Hafiz Abid Hussain and Mirza Tahir Sultan were not examined by the prosecution. However, he supported the impugned judgment and argued that appellants were rightly convicted by trial Court on the evidence of investigation officer.

 

12.     From the minute examination of the evidence it appears that F.I.R. was lodged by the complainant Hafiz Abid Hussain and he is victim in the case but he has not been examined by the prosecution at trial. Another eye witness, namely, Mirza Tahir Sultan has also not been examined on the ground that both the eye witnesses were not traceable. It is the case of the prosecution that on 10.03.2012 at 02:00 P.M. appellants entered in the office of the complainant where complainant delivered accused cheques and cash of Rs.100,000/- as bhatta but no person from the office has been examined by the prosecution. It is unbelievable that absconding accused, who were standing on the ground floor, ran away and police made no efforts to catch hold of them. PW Inspector Sami Jan has stated in cross-examination that there is mention in the F.I.R. of Crime No.32/2012 that there was dispute between Zong Company and absconding accused Tiaq Ali Magsi but this aspect of the case has not been investigated by the investigation officer to bring on record the true facts. F.I.R. No.32/2012 has also not been placed on record. As the prosecution has failed to examine the complainant and eye witnesses Hafiz Abid Hussain and Mirza Tahir Sultan in this case and non-examination of these material witnesses would be fatal to the prosecution case. SIP Ghulam Baig Shahid has deposed that on 10.03.2012 he was busy in the patrolling duty along with subordinate staff, he received spy information that four persons were demanding bhatta from a person in Zong Mobile Services. He proceeded there where complainant Hafiz Abid Hussain gave an envelope of Rs.100,000/- to the accused and two cheques and he arrested the appellants and recovered from their possession two T.T. pistols and 2 SIMs. Above named police officer has failed to produce arrival and departure entries of roznamcha for the satisfaction of the Court. Non-production of arrival and departure entries in evidence cuts the roots of prosecution case.  Since eye witnesses were not examined by the prosecution in this case, it has created doubt in prosecution case. It would be unsafe to reply upon the evidence of SIP Ghulam Baig Shahid without independent corroboration, which is lacking in this case. In the F.I.R. there is mention that there was dispute between the absconding accused Tiag Ali Magsi and Zong Company. In such circumstances, corroboration to the evidence of police officials was essential but it is lacking in this case. Material contradictions have also been brought on record. Both the mashirs of recovery, namely, Hafiz Abid Hussain and Mirza Tahir Sultan have not been examined by the prosecution and evidence of SIP Ghulam Baig Shahid with regard to the arrest and recovery could not be relied upon without independent corroboration. Moreover, serious malafide on the part of SIP Ghulam Baig Shahid has been alleged by the accused in their statements recorded under section 342 Cr.PC. T.T. pistols were not used in the commission of offence as such positive report of FSL would not connect the accused persons in the commission of offence. Without examination of mashirs of recovery, evidence of SIP Ghulam Baig Shahid would not be sufficient to maintain the conviction in the case. In this case, there are several circumstances which create doubt in the prosecution case. It is settled law that even slightest apprehension regarding the prosecution case being not true, its benefit shall be extended to the accused. In case of GHULAM AKBAR and another versus THE STATE (2008 SCJ 907), relied upon by the learned counsel for the appellant, the Hon’ble Supreme Court has observed as under:-

 

“14.   In the instant case, recovery witness Nazir Ahmed was not the resident of the locality and the I.O. admitted that the place of recovery was surrounded by the 50/60 houses but none was summoned from the locality. According to PW 12 he was standing at a bus stand and was going to Sinjhoro (where he lived) when police reached there and he just accompanied them. The learned Appellate Court did not take the above mentioned circumstances while placing reliance on the evidence of recovery and has erred in law. The recovery evidence is not worthy of any credence and cannot be used against any of the appellants.”

 

13.     The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right, as held by the Hon’ble Supreme Court in the case of TARIQ PERVEZ versus THE STATE (1995 SCMR 1345). In the present case, there are several circumstances as discussed above, which create reasonable doubt in the prosecution case.

 

14.     While relying upon the above referred case, we hold that prosecution has failed to prove its case beyond any shadow of doubt. Trial Court has failed to appreciate the evidence according to the settled principles of law. Therefore, appeals are allowed. Consequently, conviction and sentence recorded against the appellants vide judgment dated 07.09.2013 are set aside. Both the appellants, namely, Shuhab Zaman and Muhammad Sabir would be released forthwith, if not required in some other case.

 

          Appeals are allowed.

 

                                                                                          JUDGE

         

                                                                          JUDGE

Gulsher/PA