IN THE HIGH COURT OF SINDH, KARACHI
Special Criminal Anti-Terrorism Appeal No.255 of 2015
Special Criminal Anti-Terrorism Appeal No.256 of 2015
Special Criminal Anti-Terrorism Appeal No.257 of 2015
Special Criminal Anti-Terrorism Appeal No.260 of 2015
Special Criminal Anti-Terrorism Appeal No.261 of 2015
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Date Order with Signature(s) of Judge(s)
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Present:
Syed Hasan Azhar Rizvi, J.
Abdul Maalik Gaddi, J.
Date of hearing : 16.06.2017
Mr. S. Rashid Ali, Advocate for Appellants.
Mr. Muhammad Iqbal Awan, Assistant Prosecutor General, Sindh.
M/s. Abdul Razzak & Qadir Khan Mandokhel, Advocates/amicus curiae.
J U D G M E N T
Abdul Maalik Gaddi, J.– Through this common Judgment, we intend to dispose of the captioned criminal appeals filed by the appellants as these appeals relate to same subject matter involving common question of law and facts as well as arise out of common Judgment delivered by the learned trial Court.
2. By means of these appeals, the appellants have assailed the legality and propriety of the common Judgment dated 28.09.2015 passed by the learned Judge, Anti-Terrorism Court No.II, Karachi in Special Cases No.487/2014, 488/2014, 489/2014 and 490/2014 respectively, in cases Crimes No.223/2014, 224/2014, 225/2014 and 226/2014 registered under Section 385/386/34 PPC 25-B Telegraph Act and Section 353/34 PPC, read with Section 7 ATA, 1997 and Section 23(i)-A of Sindh Arms Act, at police station New Karachi, whereby the learned trial Court after full dressed trial convicted and sentenced the appellants as mentioned in Point No.3 of the impugned judgment, which reads as under:-
“POINT NO.3
86. The charge leveled against the three accused namely Rizwan Ahmed Qureshi son of Muhammad Iqbal Qureshi, Muhammad Imran Abbasi son of Sadiq Abbasi and Tayyab son of Mohammad Umer stand proved. They are convicted and sentenced to suffer R.I. for five years under Section 7(h) of ATA, 1997.
87. The recovery of unlicensed pistol from two accused Rizwan and Muhammad Imran is proved. They are convicted R.I. for five years under Section 23(i)-A of Sindh Arms Act, 2013.
88. The three above-named accused had encounter with police to deter them in discharging their duties they are awarded Rigorous Imprisonment for two years under Section 353 of PPC. All the punishments will run concurrently. The benefit of Section 382-B Cr.P.C. is also given to them.”
3. It is pertinent to mention here that accused Muhammad Imran Abbasi son of Sadiq Abbasi though convicted and sentenced by the learned trial Court on the same set of evidence as stated above, but he has not filed any appeal against his conviction and sentence.
4. The brief facts according to the FIR for the disposal of these appeals are that Dr. Muhammad Tariq Sabir had lodged FIR No.223/2014 on 26.06.2014 at 1700 hours are that he lives in House No.A-248, Sector 11-A, North Karachi and his Clinic is in Sector No.11-B, Plot No.109/1 in the name of Tariq Clinic for past twenty (20) years. On 22.06.2014, he was present in his Clinic when at about 08:30 p.m. a child aged about 5 to 6 years old of Mohallah whom he did not know gave him the paper slip/chit saying that some person standing outside the Clinic had given him this slip. On the slip, was written Rs.5 Lacs bhatta and that they know about his children and on the same slip was written a number 0310-0209445 and the person who had written in pen his name was written as “JINN” and group number “DARR” and it was written to contact by message on mobile phone. The doctor had contacted by message and had told that person that he cannot give more than Rs.2 Lacs. The caller had been messaging him from his phone on the mobile of doctor but he did not receive the same. On 26.06.2014 in the evening on his number 0333-3328986 and another mobile number 0312-2799560 from phone number 0315-8389514 and 0312-2699519 at different times the calls were coming and demanding bhatta. The culprit had also stated that now they will not take Rs.5 Lacs but they will take Rs.10 Lacs or less they will kidnap his wife and children and kill them. The way they had killed retailer at No.5 who had not given bhatta and was killed and they will also kill him. The complainant had also stated that he is continuously receiving phone. Now he has come to report against unknown person for demanding bhatta and for threatening to kill him. He had stated that messages are saved with him and that to take action against the culprits. It also appears from the record that the investigation carried by the investigating officer to the effect that on 27.06.2014 the appellants and co-accused Muhammad Imran Abbasi came on motorcycle to receive bhatta, where encounter with police party was taken place and accused Imran and Rizwan were arrested and unlicensed pistols of 30 bore loaded magazine with 02 live bullets were recovered from each, while accused Tayyab had escaped from the spot, however, he was arrested on 29.08.2014. Such separate FIRs were also lodged against them.
5. It reveals from the record that in order to establish accusation against the present appellants and accused Imran, prosecution had examined in all seven witnesses, description of which reads as under:-
“PW-01 is Dr. Muhammad Tariq Sabir at Ex.P/1. He is complainant in FIR No.223/2014, he has produced slip as Ex.P/2, FIR No.223/2014 as Ex.P/3, memo of arrest and recovery as Ex.P/4, memo of pointation of place of incident as Ex.P/5.
PW-02 is Sub-Inspector Amanat Ali at Ex.P/6.
PW-03 is ASI Muhammad Afzal at Ex.P/7. He has produced departure entry No.12 as Ex.P/8, FIR No.224/2014 as Ex.P/9, arrival entry No.23 as Ex.P/10, FIR No.225/2014 as Ex.P/11 and FIR No.226/2014 as Ex.P/12.
PW-04 is ASI Muhammad Ramzan at Ex.P/13.
PW-05 is PC Riasat Ali at Ex.P/14. He has produced memo of formal arrest as Ex.P/15.
PW-06 is Constable Muhammad Yameen at Ex.P/16. He has produced memo of seizure of mobile and sims as Ex.P/17.
PW-07 is Inspector Ali Hyder Shah at Ex.P/18. He has produced memo of place of incident as Ex.P/19, departure entry No.48 as Ex.P/20, arrival entry No.28 as Ex.P/21, letter written to DIGP West Zone as Ex.P/22, CDR as Ex.P/23, entry No.37 as Ex.P/24, departure entry No.39 from PS Azizabad as Ex.P/25, entry No.42 as Ex.P/26, letter written to FSL as Ex.P/27, FSL report as Ex.P/28, departure entry No.40 to the house of accused Imran as Ex.P/29, arrival entry No.44 at P.S. as Ex.P/30.”
These witnesses have been cross examined by the counsel for the appellants as well as counsel for accused Imran and then prosecution had closed its side vide statement at Ex.P/31. The statement of the appellants as well as accused Muhammad Imran Abbasi are on record under Section 342 Cr.P.C. at Ex.P/32 to Ex.P/34 respectively, in which they have denied the allegations as leveled by the prosecution and have stated that the case against them is false. Nothing was recovered from them and the complainant Dr. Muhammad Tariq Sabir of FIR No.223/2014 of police station New Karachi has not supported the case of the prosecution and he has not implicated them as their culprits, but police implicated them in this case falsely because they demanded bribe and on failure to give bribe, the police involved them in this case. Therefore, through their statement, they have prayed for their acquittal.
6. It also reveals from the record that the learned trial Court after perusing the evidence and documents on record and after hearing the parties counsel passed the impugned judgment, which has been assailed through these appeals.
7. Mr. S. Rashid Ali, Advocate for the appellants argued that the appellants are innocent and have been falsely implicated in the present case. There are major contradictions in the evidence of witnesses examined by the prosecution. Per learned counsel, PW-1 Dr. Muhammad Tariq Sabir who is the star witness of the prosecution and the complainant of FIR No.223/2014 of police station New Karachi, whose evidence is on record at Ex.P/1, has not supported the prosecution case by exonerating the appellants as well as accused Muhammad Imran Abbasi from the charge/allegation. He further submits that this witness has also not supported the memo regarding arrest of appellants and seizure/recovery available at Ex.P/4 and so also memo regarding inspection of the place of occurrence at Ex.P/5. According to him, this witness was declared hostile by the prosecution and learned DDPP also cross examined him with the permission of the Court, but he remained unshaken. During the course of arguments, learned counsel for the appellants has drawn our attention towards the evidence of Dr. Muhammad Tariq available on record at Ex.P/1 at page 39 of paper book as well as the evidence of the remaining witnesses so examined by the prosecution and has made an attempt to show that the evidence on record of the prosecution are contradictory to each other on material particulars, but the learned trial Court has not appreciated the evidence in its true perspective and passed the impugned judgment in a hot haste manner by ignoring the material available on record and the impugned judgment is bad in law, inasmuch as, the same is based on mis-reading and non-reading of evidence. Per learned counsel, all prosecution witnesses deposed with different stories in their statements regarding alleged raid, seizure, recovery and property shown in the Court, which cannot be safely relied upon for the conviction of the appellants, therefore, he prayed for allowing these appeals with further prayer to acquit the appellants including accused Muhammad Imran Abbasi, who has not filed any appeal although he has been convicted on the same set of evidence.
8. Learned APG though opposed these appeals, but he has not been able to controvert the above factual and legal position.
9. We have heard the learned counsel for the parties and have gone through the evidence as well as impugned judgment.
10. It is the case of the prosecution that the present appellants alongwith accused Muhammad Imran Abbasi were allegedly demanding bhatta of Rs.5 Lacs through their Cell Nos.0315-8389514 and 0312-2699519 from Dr. Muhammad Tariq (Complainant of FIR No.223/2014) on his Cell Nos.0333-3328986 and 0312-2799560 and in this respect, said doctor had registered FIR No.223/2014 at police station New Karachi on 26.06.2014 against unknown persons. It is also alleged that accused Imran and Rizwan were arrested on 27.06.2014, such mashirnama of arrest and seizure was prepared and is available on record as Ex.P/4 in presence of Dr. Muhammad Tariq Sabir and ASI Muhammad Ramzan Bajwa. The evidence of Dr. Muhammad Tariq Sabir is on record at Ex.P/1, who during his evidence has not supported the prosecution case by not identifying the appellants as his culprits and so also he denies that the recovery memo and arrest was prepared in his presence. On this statement, the prosecution has declared the complainant as hostile and with permission of the Court, learned DDPP though cross examined at length, but he did not shake and was affirmed that the appellants are not his culprits. For the sake of convenience, it would be proper to reproduce the relevant portion of the cross examination of complainant Dr. Muhammad Tariq Sabir, which reads as under:-
“It is incorrect that on 27.06.2014, accused Rizwan Ahmed and Muhammad Imran were arrested from inside Road Afza Water Park, Sector 11-1, New Karachi, before me. It is incorrect to suggest that the two arrested person and Muhammad Imran and Rizwan were arrested before me on 27.06.2014 at about 1300 hours and from each one of them recovered a pistol of 30 bore loaded magazine with two bullets. It is incorrect to suggest that on 27.06.2014, I had gone with the six packets of money each packet contain one real note of Rs.500/- at the top and one at the bottom whereas in between white paper had gone to inside Afza Water Park, Sector 11-1, New Karachi when at about 1300 hours when three young boys have come on motorbike and have taken the thela containing money when they saw the police mobile coming towards them to deter the police started firing at the police party but the two accused persons were arrested and one escaped on motorbike. It is incorrect to suggest that the police had recovered pistol each from both accused before me. It is incorrect to suggest that from the hands of the accused Rizwan was recovered the thela containing the bhutta amount and which I had identified that it is the same thela taken from me.”
During further cross examined by learned DDPP, complainant Dr. Muhammad Tariq Sabir further deposed in the following way.
“It is incorrect to suggest that the accused present in court are the real culprits and they were arrested before me and that I am deposing falsely because of their fear. I see four cloth parcels and say that they do bear my signature. Vol. says but they were taken at police station.”
11. From the perusal of the above evidence, it reveals that complainant Dr. Muhammad Tariq Sabir has not supported the prosecution case by not implicating the appellants as well as co-accused Muhammad Imran Abbasi in the commission of the offences. This complainant has also not owned the recovery, arrest of the accused and seizure memo on record. We have also gone through the evidence of the remaining witnesses and found that the evidence of police officials on record is also contradictory to each other on material particulars in the light of the evidence of complainant Dr. Muhammad Tariq Sabir, therefore, the same cannot be safely relied upon for maintaining the conviction of the appellants. We have gone through the documents and evidence on record and come to this conclusion that the investigating officer of the case has not carefully and cautiously investigate the present case for the reasons that in this matter, handwriting on the bhutta slip was not got matched nor the voice got identified. There is no confession statement of the appellants on record. Admittedly, the name of the accused are not mentioned in the FIR. In such circumstances, the accused were supposed to be produced before the concerned Magistrate for holding identification parade, but no identification parade has been held in this case. It is pertinent to mention here that although it has been shown in the FIRs that police encounter was taken place for few minutes in between police and accused persons, but no damage was caused to the vehicle as well as no injury has been caused to any police official. Thus, this fact remains in mystery and creates doubt in the prosecution case. We have gone through the evidence of the police officials and come to this conclusion that these witness have deposed with different stories in their statements regarding alleged raid, seizure, recovery and property shown in the Court, which cannot be safely relied upon for the conviction of the appellants. When confronted the above factual and legal position to the learned APG, he has no answer with him to support the impugned judgment. Therefore, serious doubt has been created in the case of the prosecution as also stated above. We have gone through the case of Muhammad Akram v. The State reported as 2009 SCMR 230. In this case law, it has been principally held that for giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts. Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right, but herein this case, as observed above, the prosecution case based upon contradictory evidence and full of doubts, therefore, no reliance can be safely placed on it.
12. In view of the above reasons, we have no hesitation to hold that the prosecution has failed to prove its case against the appellants and the learned trial Court did not appreciate the evidence properly. Consequently, these appeals are allowed, impugned common judgment of the trial Court is set-aside and the appellants are acquitted from the charge. Appellants are on bail, their bail bonds stand cancelled and surety discharged.
13. So far as the case of co-accused Muhammad Imran Abbasi son of Sadiq Abbasi is concerned, who has not filed appeal and is undergoing his sentences through impugned common judgment. It reveals from the record that he was convicted on the same set of evidence by the trial Court. We have heard M/s. Abdul Razzak and Qadir Khan Mandokhel, Advocate/amicus curiae as well as learned APG, who are of the view that since on the same set of evidence, the present appellants have been acquitted, therefore, this accused is also entitled to be acquitted. In this regard, we have gone through the various provisions available in the Criminal Procedure Code, 1898 and come to this conclusion that this Court could hear appeals not only filed by the prosecutors, but also filed by victims, legal heirs and by private aggrieved persons. This Court having control and superintendence over the Courts below, it could also exercise visitorial jurisdiction in respect of matters which did not fall under the ambit of appeals. This Court could exercise visitorial powers and could exercise revisional jurisdiction in respect of Courts below in cases, where appeal or leave to appeal, were not to be filed. Revisional jurisdiction of this Court is very wide and it may be exercised whenever facts calling for its exercise or brought to notice of the Court, where the order of the trial Court is absolutely illegal and superficial based on misconception of law and facts and quite contrary, as happened in this case. This Court can exercise the jurisdiction to correct, manifest, illegal or to prevent gross miscarriage of justice. In view of the above, we also acquit the co-accused Muhammad Imran Abbasi son of Sadiq Abbasi and direct the jail authorities to release him forthwith if he is not required in any other criminal case. Office is directed to communicate copy of this judgment to the accused Muhammad Imran Abbasi through Superintendent Central Prison, Karachi.
14. These appeals were allowed by us in open Court after hearing the learned counsel for the parties through our short order dated 16.06.2017, whereby the appellants were ordered to be acquitted from the charge and the above are the reasons thereof.
Karachi.
Dated 17.06.2017.
JUDGE
JUDGE
Faizan A. Rathore/PA*