HIGH COURT OF SINDH AT KARACHI

Criminal Anti-Terrorism Appeals No. 109, 110, 111, 112 & 113 of 2014

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Khadim Hussain Tunio

Date of Hearing : 28.09.2017.

Date of Judgment : 28.09.2017.

Appellants : Salman @ Lamba, Sufiyan @ Rabbani, Junaid Ali @ Manda through Mr. Mohammad Farooq Advocate.

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

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Salman @ Lamba, Sufiyan @ Rabbani and Junaid Ali @ Manda appellants were tried by learned Judge, Anti-Terrorism Court IX, Karachi in Special Cases No. 46(III), 47(III), 48(III), 49(III) & 50(III) of 2014. After full-dressed trial, appellants were convicted and sentenced by judgment dated 28.11.2014 as under:-

(i) Accused Salman and Sufiyan being found guilty of the charge u/s 387 PPC shall suffer R.I for three years and fine of Rs.20,000/- in case of default the accused shall suffer further R.I for two months more.

(ii) The accused Salman, Sufiyan and Junaid being found guilty of the charges u/s 23(i)-A Sindh Arms Act, each one is convicted and sentenced to suffer R.I for seven years and fine of Rs.50,000/- and in case of default, accused shall suffer further R.I for six months more.

(iii) Accused Salman being found guilty of the charge u/s 5 of the Explosive Substance Act is convicted and sentenced to suffer R.i for seven years and fine of Rs.25,000/- and in case of default, he shall suffer for three months more.

(iv) The accused Salman and Sufiyan being found guilty of the charge of offence u/s 6(2)(k) of the ATA 1997 punishable u/s 7(h) of the ATA 1997 are convicted and sentenced to suffer R.I for five years and fine of Rs.25,000/- in case of default the accused shall suffer two months more.

All the sentences were ordered to run concurrently. Appellants were extended benefit of Section 382-b Cr.P.C.

2. Brief facts of the prosecution case as disclosed in the FIR are that one Mohammad Mujeeb lodged FIR at P.S Aram Bagh on 12.02.2014 alleging therein that he owned a shop with the title “Mushk Mehal” situated at Hassan Ali Afandi Road, Light House, Botal Gali, Karachi. It is alleged that on 22.01.2014, he was present at his shop, two boys appeared on the motorcycle at 5:00 pm. From their features they appeared to be Balochs and handed over a chit to the complainant on which cell No.0311-3742670 was written. Complainant was asked to contact on said mobile. Thereafter, it is alleged that complainant contacted from his phone No.021-32624626 to the above mentioned cell. It was attended by a person, who without disclosing his identity demanded Rs.15,00,000/- Bhatta. Thereafter, calls were made upon number of the complainant from different mobile numbers. Lastly, complainant received a call for payment of Rs.15,00,000/-, threat was also issued to the complainant in case of non-payment of Bhatta, that he would be murdered. Complainant went to the police station and lodged FIR No. 62/2014 u/s 386/34 PPC read with Section 7 of the Anti-Terrorism Act, 1997 at PS Aram Bagh. During investigation, it is alleged that above named accused persons were arrested on 13.02.2014 by the police party headed by ASI Iftikhar Qureshi within the territorial jurisdiction of Ferozabad police station on spy information near graveyard. After arrest of the accused, search of the accused was conducted. It is alleged that from possession of accused Salman one 9 mm pistol along with 5 live bullets in the magazine and one hand grenade from the pocket of the commando jacket worn by him, Rs.400/-, two mobile phones with SIM No.0311-8001556 and 0335-2497455 were recovered. From possession of accused Sufiyan one 9 mm pistol from the pocket of his shirt along with 5 live rounds in its magazine, Rs.300/- and two mobile phones with the SIM No.0324-2353789 and 0311-2040308 were recovered. From possession of accused Junaid Ali one 30 bore pistol along with 3 live rounds in its magazine and two mobile phones with SIM No.0324-2948641 and other mobile without SIM were recovered. The motorcycle bearing No. SA-28672 was also recovered from their possession. Accused persons had admitted that the weapons were unlicensed. Mashirnama of arrest and recovery was prepared at the spot in presence of the mashirs. Thereafter, accused and case property were brought at police station where FIR No. 39/2014 for offence u/s 23(1)(a) of Sindh Arms Act, 2013, FIR No. 40/2014 for offence u/s 4/5 Explosive Substances Act, 1908 read with Section 7 of the Anti-Terrorism Act, 1997, FIR No. 41/2014 for offence u/s 23(1)(a) of Sindh Arms Act, 2013 and FIR No. 42/2014 for offence u/s 23(1)(a) of Sindh Arms Act, 2013 were registered at Police Station SIU against the accused on behalf of state.

3. After usual investigation, challan was submitted against accused for offence u/s 386/34 PPC read with Section 7 of the Anti-Terrorism Act, 1997, 23(1)(a) of Sindh Arms Act, 2013 and 4/5 Explosive Substances Act, 1908.

4. On the application of DDPP, joint trial of the cases was held in terms of Section 21-M of Anti-Terrorism Act, 1997.

5. Trial Court framed charge against the accused under the above referred sections at Ex.18. Accused pleaded not guilty and claimed trial.

6. At trial, prosecution examined six prosecution witnesses. Thereafter, prosecution side was closed by learned DDPP.

7. Statements of accused were recorded under Section 342 Cr.P.C at Ex.29 to 31 respectively. Accused claimed false implication in the case and denied the prosecution allegations. Accused Junaid has raised plea that he was arrested by the police and Rangers from his house on 06.02.2014 and weapons were foisted against him. Accused Sufiyan raised plea that he was picked up by the Rangers from his house on 06.02.2014 and weapon was foisted against him. Accused Salman has also claimed his false implication and raised plea that he was also picked up along with co-accused by Rangers on 06.02.2014 and his mother moved application to SHO PS Risala and DIG South for his release and produced copy of the application moved by his mother and TCS receipts at Ex.29/A, B & C respectively. However, accused neither examined themselves on oath in disproof of the prosecution allegations nor produced any witness in their defense.

8. Learned Trial Court, after hearing the learned counsel for the parties and examination of the evidence available on record, convicted and sentenced the appellants as stated above, hence these appeals are filed. By this common judgment, we intend to decide these appeals.

9. The facts of these cases as well as evidence produced before the trial Court find an elaborate mention in the Judgment dated 28.11.2014 passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

10. Mr. Mohammad Farooq learned counsel for the appellants mainly contended that complainant Mohammad Mujeeb has not implicated any of the accused at trial. He has further submitted that accused were arrested on spy information at mid night time near graveyard, but source of identification of accused has not been disclosed by the police party. It is also contended that prosecution story appeared to be unnatural and unbelievable that accused were apprehended by the police without any resistance offered by them. It is also argued that there was no evidence that weapons and hand grenades were sealed at spot so also SIMs recovered from the possession of accused. It is also argued that no official of the mobile companies was examined by the prosecution in order to ascertain about the owner of the SIMs that in whose names/cards, such SIMs were issued. It is also contended that there is no mention of departure entry in the FIR by which police had left for patrolling and arrest of the culprits involved in this case. Learned Advocate for appellants has also pointed out that prosecution case is doubtful and there are number of infirmities in the prosecution case and trial Court ignored it while appreciating the evidence. Lastly, it is contended that accused were picked up by the Rangers and police officials from their houses on 06.02.2014 and weapons and hand grenades were foisted upon them. In support of his contentions, he has relied upon the case of Sagheer Ahmed vs. The State and others (2016 SCMR 1754).

11. Mr. Mohammad Iqbal Awan, learned DPG argued that SIMs were recovered from the possession of the accused so also unlicensed weapons. It is also argued that call data has been produced by the prosecution which connected the appellants in the commission of the offence. Lastly, it is argued that trial Court rightly appreciated evidence and convicted and sentenced the appellants in this case. Learned DPG opposed the appeals and prayed for dismissal of the same.

12. We have carefully heard the learned counsel for the parties and scanned the evidence. From the perusal of the evidence, it transpires that prosecution case is based upon evidence of the complainant Mohammad Mujeeb who has deposed that on 22.01.2014, he was present at his shop, at 4:30 pm, a boy appeared at his shop and handed over him a chit on which Cell No. 0311-3742670 was written. Boy asked him to call on the said cell. Thereafter, complainant has deposed that he made call from his PTCL No.02132624626 to the above mentioned cell. Call was attended by one unknown person. He demanded Rs.15,00,000/- from the complainant. Thereafter, complainant received calls from different numbers. Complainant was not prepared to give such huge amount and felt insecure and went to police station and lodged FIR. Complainant has clearly deposed that the person who gave him a chit was not present in Court. It is clear that complainant did not implicate the accused persons. Prosecution examined P.W-2 Riaz Lodhi. He has deposed that on 22.01.2014, he was present at the shop “Mushq Mahal”, at 5:00 pm, two persons appeared at the shop, one of them came at the counter and gave a chit on which mobile number was written. P.W Riaz Lodhi did not remember that cell number. Then he gave chit to complainant, the owner of the shop. He has also not implicated the accused while deposing that person who had given chit was not present in Court. PW-3 SI Ghulam Akbar had investigated the FIR of the complainant. He visited place of wardat in presence of mashirs and recorded 161 Cr.P.C statements of Mohammad Mujeeb and Riaz Lodhi as well as SI Tariq Mehmood. PW-4 ASI Iftikhar Qureshi deposed that on 12.02.2014, he was posted at PS SIU. On the same day, he along with his subordinate staff left P.S vide Roznamcha Entry No.37 at 2300 hours for checking the criminals involved in extortion and target killing. When he reached within the territorial limits of PS Ferozabad, he received spy information that three persons involved in such activities were present near Rehmania Graveyard, Tariq Road. Police party proceeded to the pointed place and reached there where police saw accused persons. All the three accused were on motorcycle No.KG19288. Accused were caught hold by the police. On enquiry, one accused disclosed his name as Salman alias lamba, another accused disclosed his name as Sufiyan alias Rabani and third one disclosed his name as Junaid alias Manda. Due to non-availability of private persons, ASI made HC Imran Tanoli and PC Aftab Ahmed were made mashirs and conducted personal search of the accused. During search of accused Salman, one 9 mm pistol and one hand grenade were recovered. Accused Salman had no license for the pistol carried by him. Two moble phones and Rs.400/- were also recovered from him. ASI could not give numbers of the SIMs of the mobiles, which were recovered from accused Salman. Thereafter, he conducted personal search of accused Sufiyan, one 9 mm pistol, two mobile phones and Rs.300/- were recovered from him. ASI could not disclose the numbers of the SIMs recovered from accused Sufiyan. Thereafter, on personal search of accused Junaid, one 30 bore pistol made in China and two mobile phones were recovered, but ASI could not disclose the numbers of the SIMs. All the accused had no licenses for the weapons carried by them. Mashirnama of arrest and recovery was prepared and case property was sealed. Thereafter, accused and case property were brought at police station where ASI registered separate FIRs bearing Crime No. 39/2014 for offence u/s 23(1)(a) of Sindh Arms Act, 2013, Crime No. 40/2014 for offence u/s 4/5 Explosive Substances Act, 1908 read with Section 7 of the Anti-Terrorism Act, 1997, Crime No. 41/2014 for offence u/s 23(1)(a) of Sindh Arms Act, 2013 and Crime No. 42/2014 for offence u/s 23(1)(a) of Sindh Arms Act, 2013 were registered against the accused on behalf of state. In the cross-examination ASI has denied the suggestion that false cases were registered against accused and weapons and hand grenade were foisted against them. P.W-5 H.C Mohammad Imran has also given almost same episode of the incident and stated that he acted as mashir of the arrest and recovery. He was also cross-examined. He has denied the suggestion that weapons and hand grenade were foisted against accused. Prosecution has examined PW-6 Mohammad Sohail I.O, who has deposed that investigation of the aforesaid FIRs was entrusted to him. Custody of the accused and weapons were handed over to him. He collected CDR of the mobiles recovered from the possession of the accused and completed process of verification of the SIMs and NICs issued by NADRA and collected FSL reports of the weapons and hand grenade and completed the investigation. He was also cross-examined by the defense counsel and denied the suggestion that weapons have been foisted against accused as they refused to give bribe. He has also denied the suggestion for deposing falsely against accused.

13. From close scrutiny of the above mentioned evidence, we have come to the conclusion that prosecution has failed to establish its’ case against appellants for the reasons that complainant Mohammad Mujeeb and PW Riaz Lodhi have not implicated any of the accused at trial. Evidence of police officials was not trustworthy for the reasons that police party was headed by ASI Iftikhar, who had left Police station on 12.02.2014 for patrolling and for arrest of the accused involved in the target killing and terrorist activities. ASI has clearly mentioned that he had received spy information that present accused were present near graveyard at Tariq Road. We are unable to understand as to why ASI Iftikhar despite prior information failed to associate private persons to witness recovery proceedings. According to ASI Iftikhar accused were arrested at 0200 hours when accused were on the motorcycle. Source of identification of the accused at such odd hours of night has not been disclosed by him in his evidence so also in the mashirnama of arrest and recovery. It is unbelievable that accused according to prosecution case were armed with sophisticated weapons easily surrendered before police without offering resistence. ASI Iftikhar has failed to disclose the SIMs numbers which were allegedly recovered from the possession of the accused. After recovery of these SIMs, no evidence has been produced to satisfy the Court that those SIMs were kept in safe custody. There was no verification from the mobile companies that in whose names such SIMS were issued nor the persons in whose names such SIMs were issued were interrogated by the I.O. Accused Salman in his statement recorded u/s 342 Cr.P.C has produced copy of the application submitted by his mother namely Maimona before SHO PS Risala on 07.02.2014 that his son was picked up by the Rangers from the house on 06.02.2014. IO was duty bond to enquire it into or investigate about the application submitted by the mother of the accused Salman, but it has not been done in this case. Same plea has been raised by the co-accused, but such plea raised by the accused has not been examined by the I.O. Unfortunately, Trial Court ignored defense plea without examining it deeply. ASI has produced departure entry in his evidence as Ex.25-A, but it is without stamp of the police station. Contention has been raised that police officials had never gone to the graveyard of Tariq Road. In these circumstances, it was duty of the prosecution to have produced departure and arrival entries to the entire satisfaction of the Court but it has not been done. Even otherwise, in absence of any tangible material, mere allegation of demanding bhatta did not attract section 6(2)(k) of Anti-Terrorism Act, 1997. Complainant Mohammad Mujeeb had failed to produce any material to establish that at the time of receiving chit with mobile number sense of fear, panic, terror and insecurity spread in the area/Bazar. Anti-Terrorism Court did not have the jurisdiction to try the case of extortion of money “bhatta” as held by the Honourable Supreme Court in the case of Sagheer Ahmed vs. The State and others (2016 SCMR 1754), relevant portion is reproduced 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.”

14. There are also material contradictions in the evidence of ASI and mashir of arrest and recovery with regard to the crime weapons and SIMs recovered from the possession of the accused at the time of their arrest. In this case, there are number of infirmities/lacunas, which have created serious 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 grace and concession but as a matter of right.”

15. In the view of above, we have come to the conclusion that learned Judge, Anti-Terrorism Court had no jurisdiction to try case of extortion of money. Moreover, prosecution has failed to prove the aforesaid cases against the appellants beyond any shadow of doubt. Therefore, we extend benefit of doubt to the appellants and allow Special Criminal Anti-Terrorism Appeals No. 109, 110, 111, 112 and 113 of 2014. Consequently, the conviction and sentence recorded by the Trial Court vide judgment dated 28.11.2014 are set aside. Appellants Salman @ Lamba, Sufiyan @ Rabbani and Junaid Ali @ Manda are acquitted of the charges. Appellants shall be released forthwith, if they are not wanted in some other custody case.

These are the reasons for the short order announced on 28.09.2017.

JUDGE

JUDGE