ORDER SHEET

HIGH COURT OF SINDH AT KARACHI

Criminal Anti-Terrorism Jail Appeals Nos. 102 & 103 of 2015

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Khadim Hussain Tunio

Date of Hearing : 12.09.2017.

Date of Judgment : 14.09.2017.

Appellant : Mohammad Aslam through Mr. Abbas Hyder Gaad Advocate.

Respondent : The State through Mr. Mohammad Iqbal Awan DPG.

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Mohammad Aslam was tried by learned Judge, Anti-Terrorism Court No.VII Karachi in Special Case No. 71/2014 (B-199/2014) & Special Case No. 75/2014 (B-200)/2014. After full-dressed trial, by judgment dated 28.03.2015, appellant Mohammad Aslam was convicted under Section 7(h) of the Anti-Terrorism Act, 1997 to 05 years R.I and to pay fine of Rs.15000/-. In case of default in payment of fine, appellant was ordered to undergo S.I for 01 month more. Appellant was also convicted under Section 23(1)(a) of the Sindh Arms Act, 2013 and sentenced to 05 years R.I and to pay fine of Rs.15000/- and in case of default in payment of fine, appellant was ordered to undergo S.I for 01 month more. Aforesaid sentences were ordered to run concurrently. Benefit of Section 382-B Cr.P.C was also extended to him.

2. Brief facts of the prosecution case as disclosed in the FIR are that on 18.02.2014, complainant was present at his clinic on 18.02.2014 situated at H.No.524, Indus Town near Northern Bypass Gulshan-e-Maymar, it is alleged that at 10:00 am, the accused reached at the clinic of complainant on motorcycle bearing No. KGW/5647 and demanded from the complainant Rs.50,000/- as Bhatta. Complainant agreed to pay Rs.15000/- to him. It is further alleged that accused insisted for remaining amount, complainant could not pay, accused was provoked. In order to terrorize the complainant, he fired in the air. On fire report and commotions raised by the complainant, two persons namely Mumtaz Ali and Allah Bux sitting on the adjacent shop came running to the clinic of the complainant. In the meanwhile, police mobile also arrived. Accused was apprehended by police officials. Police secured pistol from the possession of the accused. It was found loaded with two rounds. Police also secured Rs.15000/- from the possession of the accused paid by complainant as Bhatta to him. On enquiry, apprehended accused disclosed his name as Mohammad Aslam son of Saheb Khan. Pistol and bullets were sealed at the spot. Motorcycle was also seized. Accused and case property were brought at police station Gulshan-e-Maymar where two separate FIRs bearing Crime No. 30/2014 for offences under Sections 384/386 read with 7 of Anti-Terrorism Act, 1997 and Crime No.31/2014 for offence u/s 23(1)(a) of Sindh Arms Act, 12013 were registered against the accused.

3. Investigation was entrusted to Inspector Wahid Bux of the aforesaid crimes. Custody of the accused and case property were also handed over to him. I.O. visited the place of wardat in presence of mashirs Allah Warayo and Mumtaz Ali and prepared such mashirnama. I.O recorded 161 Cr.P.C statements of P.Ws on the same day. On 19.02.2014, I.O sent weapon and one empty shell to the FSL and received positive report. After completion of the investigation, challan was submitted against the accused under the above referred Sections. On the application of DDPP, joint trial of both the cases was held in terms of Section 21-M of Anti-Terrorism Act, 1997.

4. Trial Court framed charge against the accused Mohammad Aslam at Ex. 5 under the above referred sections. Accused pleaded not guilty and claimed trial.

5. At trial prosecution examined the following witnesses:

1. P.W Sub Inspector Mohammad Zaman at Ex.P/6.

2. P.W/Complainant Mukhtiar Ahmed at Ex.P/7.

3. P.W Allah Warayo at Ex.P/8.

4. P.W Wahid Bux at Ex.P/10.

Thereafter, prosecution side was closed by learned DDPP.

6. Statement of accused was recorded under Section 342 Cr.P.C at Ex.11. Accused claimed false implication in the case and denied the prosecution allegations. Accused raised plea that he had gone to police station as his father was detained. He was also detained at police station and weapon was foisted against him. Accused has examined himself on oath and examined in defence D.W Sahib Khan. Accused in a question what else he has to say, has claimed innocence and produced order of acquittal in Crime No.223/2013 of P.S Gulshan-e-Maymar.

7. Learned Trial Court, after hearing the learned counsel for the parties and examination of the evidence available on record, convicted and sentenced the appellant as stated above, hence these appeals are filed.

8. The facts of these cases as well as evidence produced before the trial Court find an elaborate mention in the Judgment dated 09.05.2016 passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

9. Mr. Abbas Hyder Gaad learned Advocate for the appellant mainly argued that prosecution has failed to prove its case against the appellant; Bhatta Rs.15000/- and pistol were not sealed at the spot; that there is over-writing in the timings of the mashirnama of arrest and recovery produced before the Trial Court at Ex. 6/B and evidence of complainant and P.W Allah Warayo is materially contradicted to each other with regard to the payment of Bhatta to the accused. It is also contended that accused was released in Crime No. 223/2013 of PS Gulshan-e-Maymar by II-Assistant Sessions Judge, Karachi (West) on 09.01.2014 and was falsely implicated in this case soon after his release. It is contended that offences with which the accused has been charged are not made out from the evidence brought on record. Lastly, argued that Anti-Terrorism Court had no jurisdiction to try this case. In support of his contentions, he has relied upon the cases reported as Sagheer Ahmed vs. The State and others (2016 SCMR 1754) & Tariq Pervez vs. The State (1995 SCMR 1345).

10. Mr. Mohammad Iqbal Awan, learned DPG argued that accused was arrested at spot and Rs.15000/- of Bhatta were recovered from his possession by the police. He has submitted that prosecution has established its’ case against appellant. However, he has admitted that case property was not sealed at spot and prosecution has no explanation for the overwriting in the timing of the mashirnama of arrest and recovery produced before the Trial Court at Ex.6/B.

11. We have carefully heard the learned counsel for the parties and scanned the evidence.

12. We have come to the conclusion that prosecution has failed to prove its case against the appellant for the reasons that according to complainant 04 days prior to the incident, demand was made by the accused for the Bhatta but there was nothing on record as to why complainant remained silent for 04 days. Moreover, complainant has not disclosed specific date, time and place of demand of Bhatta made by accused. Call-Data of demand of Bhatta by accused to the complainant was also not collected during investigation. PW- Sub Inspector Mohammad Zaman has deposed that he was on patrolling on 18.02.2014, when he reached at the clinic of complainant, some persons had gathered there. Police party saw accused Mohammad Aslam, he was carrying pistol in his hand. Complainant informed him that he has paid accused Rs.15000/- as Bhatta. Police recovered cash of Rs.15000/- from the right side pocket of shirt of accused and one unlicensed pistol. SIP Mohammad Zaman no where mentioned that Bhatta of Rs.15000/- weapon and empty were sealed at the spot in presence of mashirs. Sub Inspector prepared mashirnama of arrest and recovery, which is produced at Ex.6/B. It appears that there is overwriting in the timing. Prosecution has no explanation for such overwriting. It is contended by learned Advocate for the appellant that mashirnama was prepared at police station and pistol was foisted upon the appellant. This is a case of extortion of money, we are unable to understand as to how accused made fire in the area when complainant paid him Rs.15000/- as Bhatta. Evidence of police officials did not inspire confidence for the reasons that PW SI Mohammad Zaman has not produced departure and arrival entries of police station and bhatta amount and weapon were not sealed at spot. From the evidence of the complainant and other witnesses, ingredients of extortion of the money are not proved. Learned Advocate for the appellant has rightly relied upon the case of Sagheer Ahmed vs. The State and others (2016 SCMR 1754), in which the Honourable Supreme Court has held as under:

“2. We have heard the learned counsel for the parties and have gone through the record.

3. High Court in the impugned judgment has observed as follows:

"10. The averments of FIR are silent regarding the financial status and source of income of the complainant against which accused have been demanding Bhatta. Complainant has also not disclosed the specific dates, times and places of demanding Bhatta by accused persons nor any such evidence was produced before the Investigating Officer to prima facie establish such allegations. In absence of any tangible material, mere allegations of demanding Bhatta do not attract section 6(2)(k) of Anti-Terrorism Act, 1997, in the present case nor said section was mentioned in the FIR and Challan. Perusal of Challan reflects that Investigating Officer had made a request to the Anti-Terrorism Court for return of FIR and other documents so that Challan may be submitted before the ordinary Court of law as no case under the provisions of Anti-Terrorism Act, 1997 was made out, but his request was declined by the Anti-Terrorism Court vide order dated 09.06.2014, and cognizance was taken by the Court.

11. Cumulative effect of the averments of FIR, surrounding circumstances and other material available on record have replicated that offence having been committed on account of previous old enmity with a definite motive. The alleged offence occurred at Faiz Wah bridge, which is not situated in any populated area, consequently, the allegations of aerial firing have not appeared to us to be a case of terrorism as the motive for the alleged offence was nothing but personal enmity and private vendetta. The intention of the accused party did not depict or manifest any act of terrorism as contemplated by the provisions of the Anti-Terrorism Act, 1997. Consequently, we are of the considered view that complainant has failed to produce any material before the Investigating Officer that at the time of occurrence sense of fear, panic, terror and insecurity spread in the area, nevertheless it was a simple case of murder due to previous enmity, thus, alleged offence does not fall within purview of any of the provisions of Anti-Terrorism Act, 1997. While probing the question of applicability of provisions of Anti-Terrorism Act, 1997, in any crime, it is incumbent that there should be a sense of insecurity, fear and panic amongst the public at large to invoke the jurisdiction of the Anti-Terrorism Court. Indeed, in each murder case there is loss of life which is also heinous crime against the society but trial of each murder case cannot be adjudicated by the Anti-Terrorism Court, except existence of peculiar circumstances as contemplated under sections 6, 7, 8 of Anti-Terrorism. Act, 1997."

4. We note that observation made by the High Court is based upon the record of the case and no misreading in this respect was pointed out before us. The submission of learned counsel for the petitioner that in evidence petitioner has brought on record sufficient material to substantiate the fact of demand of Bhatta in FIR that complainant party was doing business of brick kiln. There is no allegation in the FIR that complainant party was engaged in brick kiln business. Be that as it may, we find that High Court has rightly dealt with the matter and prima facie there is nothing on record to deviate from the same. The petition is, therefore dismissed and leave refused.”

13. Complainant no where has deposed that accused put him in fear of death or of grievous hurt. As regards to the allegation under section 7(h) of the Anti-Terrorism Act,1997 is concerned, prosecution has failed to establish the alleged act of the accused demanding Bhatta within the scope of terrorism as envisaged under section 6 of the Anti-Terrorism Act, 1997. Evidence produced against accused in the present case did not attract jurisdiction of Anti-Terrorism Court for the reasons that act of accused would not amount to an act of terrorism, thus offence was triable by court of ordinary jurisdiction as held by the Honourable Supreme Court in the case of Khuda-e-Noor vs. The State (PLD 2016 S.C 195), wherein it is held as under:

“3. The crucial question involved in this appeal is as to whether the learned Sessions Judge, Mastung was justified in holding that the case in hand was one of honour killing and, thus, it was a case of "terrorism" attracting the exclusive jurisdiction of an Anti-Terrorism Court or not. It also needs to be examined as to whether the High Court of Balochistan, Quetta was justified in declaring in the case of Gul Muhammad (supra) that by virtue of the provisions of section 6(2)(g) of the Anti-Terrorism Act, 1997 all cases of honour killing are to be tried by an Anti-Terrorism Court. We have minutely gone through the said judgment passed by the High Court of Balochistan, Quetta and have found that for holding that all cases of honour killing attracted the definition of "terrorism" the High Court had only relied upon the provisions of section 6(2)(g) of the Anti-Terrorism Act, 1997 without appreciating that by virtue of the provisions of section 6 of the Anti-Terrorism Act, 1997 any action falling within any of the categories of cases mentioned in subsection (2) of section 6 of the Anti-Terrorism Act, 1997 could not be accepted or termed as "terrorism" unless the said action , was accompanied by a "design" or "purpose" specified in section 6(1)(b) or (c) of the said Act. If the interpretation of section 6(2)(g) of the Anti-Terrorism Act, 1997 advanced by the High Court of Balochistan, Quetta in the said judgment were to be accepted as correct then all cases of a person taking the law in his own hands are to be declared or accepted as cases of terrorism but that surely was not the intention of the legislature. The provisions of section 6 of the Anti-Terrorism Act, 1997 which define "terrorism" clearly show that the said section is divided into two main parts, i.e. the first part contained in section 6(1)(b) and (c) of the said Act dealing with the mens rea mentioning the "design" or the "purpose" behind an action and the second part falling in section 6(2) of the said Act specifying the actions which, if coupled with the mens rea mentioned above, would constitute the offence of "terrorism". This scheme of section 6 of the Anti-Terrorism Act, 1997 had unfortunately not been considered by the High Court of Balochistan, Quetta while rendering the judgment mentioned above and, thus, we have every reason to declare that the said judgment passed by the High Court of Balochistan, Quetta had not laid down the law correctly and had in fact misconceived the legal position contemplated by section 6 of the Anti-Terrorism Act, 1997.

4. The case in hand was a case of a private motive set up in the FIR and during the trial the motive set up in the FIR was changed by the prosecution and an element of honour killing was introduced but even that did not change the character of the offence which was nothing but a private offence committed in the privacy of a home with no design or purpose contemplated by section 6(1)(b) or (c) of the Anti-Terrorism Act, 1997. We have thus, entertained no manner of doubt that the allegations leveled against the appellant and his co-accused in the present criminal case did not attract the jurisdiction of an Anti-Terrorism Court, the learned Sessions Judge, Mastung was not justified in transferring the case to an Anti-Terrorism Court and the High Court was also not legally correct in dismissing the appellant's revision petition. This appeal is, therefore, allowed, the impugned orders passed by the learned Sessions Judge, Mastung as well as the High Court of Balochistan, Quetta are set aside and it is declared that the appellant's case is to be tried by a court of ordinary jurisdiction.”

14. As regards the use of fire arms by the accused at the time of receiving of Bhatta of Rs. 15000/- is concerned, unfortunately, Trial Court ignored crucial issue of jurisdiction to try the case. In the case reported as Amjad Ali and others vs. The State (PLD 2017 SC 661), the Honourable Supreme Court has held as under:

“6. The last aspect of this case highlighted in the leave granting order is as to whether the courts below were justified in convicting and sentencing the appellants for an offence under section 7(a) of the Anti-Terrorism Act, 1997 or not. We note in that context that a mere firing at one’s personal enemy in the backdrop of a private vendetta or design does not ipso facto bring the case within the purview of section 6 of the Anti-Terrorism Act, 1997 so as to brand the action as terrorism. There was no ‘design’ or ‘object’ contemplated by section 6 of the Anti-Terrorism Act, 1997 involved in the case in hand. We further note that by virtue of item No. 4(ii) of the Third Schedule to the Anti-Terrorism Act, 1997 a case becomes triable by an Anti-Terrorism Court if use of firearms of explosives, etc. in a mosque, imambargah, church, temple or any other place of worship is involved in the case. That entry in the Third Schedule only makes such a case triable by an Anti-Terrorism Court but such a case does not ipso facto become a case of terrorism for the purposes of recording convictions and sentences under section 6 read with section 7 of the Anti-Terrorism Act, 1997. The case in hand had, thus, rightly been tried by an Anti-Terrorism Court but the said Court could not have convicted and sentenced the appellants for an offence under section 7(a) of the Anti-Terrorism Act, 1997 as it had separately convicted and sentenced the appellants for the offences of murder, etc. committed as ordinary crimes.”

15. In our considered view an Anti-Terrorism Court could not have convicted and sentenced the appellant for an offence under section 7(h) of the Anti-Terrorism Act, 1997 for the reason that mere firing in the area for bhatta does not ipso-facto bring the case within the purview of Section 6 of the Anti-Terrorism Act, 1997 so as to brand the action as terrorism. Evidence reflects that there was no design or object contemplated by Section 6 of the Anti-Terrorism Act, 1997 involved in the case in hand.

16. Moreover, there are material contradictions in the evidence of complainant and P.W Allah Warayo with regard to the payment of Bhatta to the accused at the time of incident. We are also unable to understand as to why complainant remained calm for 04 days when he had received demand of accused for payment of Bhatta. Pleas raised by the accused in his statement recorded under Section 342 Cr.P.C that his father was detained at Police station when he came to know about detention of his father, he went to the police station and these cases were filed upon him. Accused in his statement under Section 342 Cr.P.C also proeduced copy of the order passed by learned II-Assistant Sessions Judge, Karachi (West) in Crime No. 223/2013, which reflects that accused Aslam was acquitted by the Trial Court under Section 265-K Cr.P.C. It is argued by learned counsel for the appellant that soon after the release of the appellant in that case, the present cases were falsely lodged against the appellant. Since in this case, ingredients of extortion of money were not satisfied, Bhatta money, pistol and empties were not sealed at spot, there was overwriting in the mashirnama of arrest and recovery without explanation by the prosecution. As such there are several circumstances in the case as highlighted above, which create reasonable doubt in the prosecution case. It is settled principle of law for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez vs. The State (1995 SCMR 1345), wherein the Honourable Supreme Court has held as under:-

“The concept of benefit of doubt to an accused persons 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 crates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as matter of race and concession but as a matter of right.”

17. In the view of above, we have come to the conclusion that the prosecution has failed to prove the aforesaid cases against the appellant beyond any shadow of doubt. Therefore, we extend benefit of doubt to the appellant and allow Special Criminal Anti-Terrorism Jail Appeals bearing Nos. 102 and 103 of 2015. Consequently, the conviction and sentence recorded by the Trial Court vide judgment dated 28.03.2015 are set aside. Appellant Mohammad Aslam is acquitted of the charges. Appellant Mohammad Aslam shall be released forthwith, if he is not wanted in some other custody case.

JUDGE