HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals Nos. 306, 307, 319, 321 to 325 of 2016

Special Criminal Anti-Terrorism Appeals Nos. 01 to 03 of 2017

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Malik Gaddi

Date of Hearing : 31.10.2017

Date of Judgment : 31.10.2017

Appellants : Shafiq-ur-Rehman appellant through Mr. Zulfiqar Ali Solangi, Zulfiqar Ali Langha and Mr. Abbas Hyder Gaad Advocates.

Mehtab Ali and Allah Wadhayo appellants through Mr. Abdul Nabi Joyo Advocate.

Akhtar Ali Mojai appellant through Mr. Abdul Latif Leghari Advocate.

Farhan Khalid appellant through Mr. Shah Nawaz M. Sahito Advocate.

Nemo for Sajjad Haider Rajpar and Khalid Hussain Solangi appellants.

Respondent : The State through Mr. Jawwad Awan Special Public Prosecutor.

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Khalid Hussain, Akhtar Ali Mojai, Mehtab Ali, Farhan Rajpar, Sajjad Haider Rajpar, Shafiq-ur-Rehman & Allah Wadhayo appellants were tried by learned Judge, Anti-Terrorism Court No.X, Karachi in Special Case No. 748/2016 (FIR No. 229/2016 for offences under Section 385/386/34 read with Section 420/468 PPC read with Section 7 Anti-Terrorism Act, 1997 registered at P.S Boat Basin), Special Case No. 749/2016 (FIR No. 231/2016 for offence under Section 23(1)(a) of Sindh Arms Act, 2013 registered at PS Boat Basin), Special Case No. 750/2016 (FIR No.232/2016 for offence under Section 23(1)(a) of Sindh Arms Act, 2013), Special Case No. 751/2016 (FIR No.233/2016 for offence under Section 23(1)(a) of Sindh Arms Act, 2013), Special Case No. 752/2016 (FIR No.234/2016 for offence under Section 23(1)(a) of Sindh Arms Act, 2013), Special Case No. 753/2016 (FIR No.235/2016 for offence under Section 23(1)(a) of Sindh Arms Act, 2013) & Special Case No. 754/2016 (FIR No.236/2016 for offence under Section 24 of Sindh Arms Act, 2013). After full-dressed trial, by judgment dated 14.12.2016, appellants were convicted and sentenced as under:

“In view of my findings given in point No. 01, 02, 03 and the reasons discussed above, it has come on screen that the prosecution has proved its charges against the accused 01. Khalid Hussain Solangi s/o Mohammad Urs Solangi, 02. Akhtar Ali Mojai s/o Mir Mohammad Mojai, 03. Mehtab Ali s/o Mohammad Hanif Rajpar, 04. Farhan Rajpar s/o Khalid Hussain Rajpar, 05. Sajjad Haider Rajpar s/o Ali Murad, 06. Shafiq-ur-Rehman s/o Haji Abdur Rehman, 07. Allah Wadhayo s/o Ali Sher Rajpar without any shadow of doubt, I, therefore, hereby “convict” them for the offence u/s 385/386/34 PPC r/w section 7(1)(h) of A.T.A 1997 and sentence them to undergo “R.I” for “07” years (each) with Fine of Rs.50,000/- (each). I also “convict” the accused Khalid Hussain Solangi, Akhtar Ali Mojai, Mehtab Ali, Sajjad Haider Rajpar & Shafiq-ur-Rehman u/s 23(i)A Sindh Arms Act, 2013 and they are sentenced to undergo “R.I for 07” years (each). Whereas, the accused “Allah Wadhayo” is also “convicted” u/s 24 Sindh Arms Act, 2013 and he is sentenced to undergo “R.I for 07” years. The benefit of section 382-B Cr.P.C is also extended to them from the date of their arrest. All the above sentences shall run concurrently.”

2. Brief facts leading to the filing of these appeals are that on 21.04.2016 at about 1700 hours, complainant Syed Mohammad Nazir Abbas Zaidi lodged report at P.S Boat Basin alleging therein that he was receiving threatening calls since 16.04.2016, on his Cell No. 0345-8292508 from Cell No. 0348-8317181 from unknown caller. It is alleged that said caller demanded extortion amount of Rs.1 Crore from the complainant and issued threats for dire consequences, in case of non-payment of such amount. Complainant informed the caller that he would not able to pay such huge amount. It is alleged that on 22.04.2016 finally Rs.40 lacs bhatta was settled in between complainant and caller. Caller informed the complainant that he would tell him the place of payment of bhatta amount afterwards. It is further alleged that caller threatened the complainant that in case he contacted/informed the police, his family would be killed. Complainant lodged such FIR. It was recorded vide FIR No. 229/2016 for offences under Sections 385/386/34/420/468 PPC read with Section 7 Anti-Terrorism Act, 1997 at P.S Boat Basin against the unknown culprits.

3. After usual investigation, Challan was submitted against accused for offences under Sections 385/386/34/420/468 PPC read with section 7 Anti-Terrorism Act, 1997, 23(1)(a) & 24 of Sindh Arms Act, 2013 separately against accused. Learned Trial Court amalgamated the aforesaid cases with main case in terms of Section 21-M of Anti-Terrorism Act, 1997.

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

5. At trial, prosecution examined four witnesses, who produced relevant documents to substantiate the prosecution case. Thereafter, prosecution side was closed vide statement at Ex.10.

6. Statements of accused were recorded under Section 342 Cr.P.C at Ex.11 to 17 respectively. Accused claimed false implication in these cases and denied the prosecution allegations. Accused Khalid Hussain Solangi, Shafiq-ur-Rehman, Sajjad Haider Rajpar, Akhtar Ali Mojai, Allah Wadhayo, Farhan Rajpar and Mehtab Ali examined themselves on oath in disproof of the prosecution allegations. Four defence witnesses were also examined.

7. Trial Court after hearing learned counsel for the parties and examination of the evidence available on record, by judgment dated 14.12.2016, convicted and sentenced the appellant as stated above. Hence these appeals were filed. We intend to dispose of these appeals by this single judgment.

8. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the Judgment dated 14.12.2016 passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

9. Learned Advocates for the appellants mainly contended that complainant had received calls for bhatta on 16.04.2016, but FIR was lodged by him on 21.04.2016. Delay in lodging of the FIR has not been explained by the prosecution. It is further argued that complainant did not disclose the source of income from where he had brought Rs.10 lacs for payment to the accused. Complainant has not mentioned description of the notes. It is further argued that complainant has given timings of receipt of calls which do not tally with the CDR. I.O has produced photograph of the recovered weapons which are different from the case property produced before the trial Court. It is also argued that SIM bearing No. 0348-8317181 did not belong to the accused and SIMs recovered were not sealed at the spot. Counsel for the appellants argued that despite prior information, no private person of the locality was associated as mashir of the arrest and recovery. Learned Advocate appearing for appellant Akhtar Ali argued that accused Akhtar Ali was in the custody of the Rangers prior to the registration of the FIR and he was involved in this case. It is also argued that brother of accused namely Barkat Ali had moved an application under Section 491 Cr.P.C before the Bench of this Court at Sukkur but it is argued that defence evidence was not considered by trial Court. Learned Advocate appearing on behalf of appellant Allah Wadhayo and Mehtab Ali submitted that appellant Allah Wadhayo is High School Teacher and at the time of incident he was serving at Government High School Bandhi District Nawab Shah and he was in illegal detention of Rangers for 20 days. He further submitted that father of appellant Mehtab was also picked up by the law enforcement agency and after the surrender of appellant Mehtab his father was released. Appellant Mehtab was in illegal custody of Rangers for 10 days. Learned counsel submitted Photostat copy of the Daily Newspaper “Subh” dated 02.04.2016 in order to show that it was false case. Learned counsel for the appellants in support of their contentions have relied upon the cases reported as Irshad Ali and another vs. Mohammad Shahid and another (2015 P.Cr.L.J 158) & Sagheer Ahmed vs. The State and others (2016 SCMR 1754).

10. Mr. Jawwad, learned Special Public Prosecutor argued that appellants were caught red handed by police; extortion money was recovered from them as well as weapons. It is argued that act of the appellants had created sense of fear and insecurity in the mind of the complainant. Learned Special Public Prosecutor further argued that prosecution has produced call data record of SIMs, which connected the appellants in the commission of the offences. Lastly, it is argued that prosecution had proved its’ case against the appellants and appeals merit no consideration.

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

12. Close scrutiny of evidence reflects that complainant Syed Mohammad Nazir Abbas Zaidi has deposed that he had received threatening calls on his Cell No. 0345-8292508 on 16.04.2016 from Cell No. 0348-8317181. Unknown caller demanded Rs. 1 Crore bhatta amount from complainant and issued threats of dire consequences in case of non-payment. Later on Rs.40 lacs bhatta amount was settled between complainant and caller(s). Complainant has deposed that on 22.04.2016, accused had asked the complainant to reach at Marine Road Block-1 Scheme No.5, KPT Green Area, Opposite Karachi United Football Ground, Karachi along with bhatta amount. In the meanwhile, complainant informed Pakistan Rangers as well as police officials. Rangers officials and police informed complainant that they would reach at the pointed place at specified time. He has further stated that Pakistan Rangers and police officials in order to secure arrest of the culprits stood at the different places by concealing themselves around place of incident. At 1930 hours, a car bearing No. AG-0070 white colour appeared in which three persons were sitting and two motorcycles on which 2/2 persons were sitting also reached there. The said motorcyclists then went towards the complainant and asked him to handover bhatta amount quietly to the person who was sitting on the driving seat of the said car. Complainant handed over shopping bag which contained Rs. 10 lacs to the person sitting on the driving seat of the car. As soon as culprit had received bhatta amount, police officials intercepted accused and caught them hold. Pistols and unlicensed daggers were recovered from the possession of accused Khalid Hussain Solangi, Sajjad Haider, Akhtar Ali, Shafiq-ur-Rehman, Allah Wadhayo and Mehtab. We have also examined evidence of other P.Ws carefully and have come to the conclusion that prosecution has failed to prove its’ case against appellants for the reasons that prosecution story appears to be unnatural and unbelievable for the reasons that complainant could not explain from where he arranged/brought Rs.10 lacs for payment to the accused persons. It is also unbelievable that complainant took Rs.10 lacs alone and went to the pointed place for payment to the accused persons. Complainant has also deposed that he contacted the law enforcement agencies through his friend but name of said friend has not been disclosed by him nor his friend was examined before the Trial Court. Perusal of the mashirnama of arrest and recovery produced at Ex.5/C reveals that there is overwriting in the timings. There are also over writings in the crime numbers in the letters produced before the trial Court at Ex. 8/B & Ex. 8/C. We have also noted there is over writing in the cell number recovered from accused Mehtab Ali. When confronted, learned Special Public Prosecutor had no plausible explanation regarding such over writings. In the evidence of complainant as well as other P.Ws the descriptions and numbers of weapons have also not been mentioned. Perusal of the evidence of SI Akmal Hussain Shahid of Pakistan Rangers, Inspector Saeed Karim and Inspector Rafiq Ahmed, show that none of them have deposed that after recovery of the weapons, those weapons were safely kept at the police station and were safely transmitted to the expert for opinion. It is argued by the learned Advocates for the appellants that these weapons have been foisted upon the appellants. For the satisfaction, it was for the prosecution to establish the safe custody of the weapons at police station and safe transit to the expert. It is further observed that inspite of prior information to police and Rangers officials, no private person was associated by the police for making him as mashir in this case. It has also come on record that after arrest of the accused, private persons had gathered at the place of incident but prosecution has failed to examine them. It has also come on record that SIM No. 0348-8317181 from which it was alleged that calls were made to complainant did not belong to the accused and it was admitted by I.O that said SIM was in the name of one Minhaj, but I.O has failed to interrogate said Minhaj. C.D.R submitted before the trial Court was neither verified by the Cellular Company nor authorized officer of the Cellular company was examined before the trial Court, hence the same is of no help to the case of the prosecution. Moreover, SIMs which were allegedly recovered from the possession of the accused, were also not sealed at spot. It is a matter of record that Barkat Ali, brother of appellant Akhtar Ali had submitted an application under Section 491 Cr.P.C before this court at Sukkur Bench, in respect of illegal detention of appellant Akhtar Ali prior to the registration of this case. Surprisingly, Trial Court did not consider defence evidence regarding application under Section 491 Cr.P.C and orders passed on it by this court. Unfortunately, I.O did not enquire/investigate this aspect of the case and trial Court has also failed to examine the defence plea. We are unable to believe prosecution evidence that all the accused were armed at the time of their arrest, pistols and daggers were recovered from their possession. Generally, it is observed that it is against the nature of criminals that they surrender before the police, without any resistance as alleged by the prosecution. In this case, there are several infirmities in the prosecution case as highlighted above. We have also no hesitation to hold that learned Judge, Anti-Terrorism Court had no jurisdiction to try this case for the reason that allegation of terrorism was missing in this case; antecedents/ business of the complainant from whom bhatta was demanded has also not brought on record. Complainant went himself to pay bhatta to accused. Complainant was not put in fear or death or grievous hurt by accused, except threat calls. Bhatta was paid at abundant area. At this juncture, it would be appropriate to refer section 386 of the Pakistan Penal Code, which is as under:--

"386. Extortion by putting a person in fear of death or grievous hurt. Whoever commits extortion by putting any person in fear of death or of grievous hurt to that person to any other, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

13. From the evidence available on record provisions of section 6(2)(k) of Anti-Terrorism Act, 1997 are not attracted in this case. Therefore, conviction under Section 7(h) of Anti-Terrorism Act, 1997 is not sustainable under the law. Even at the cost of repetition, it is mentioned that evidence of complainant is also silent regarding his financial status and source of income against which accused had been demanding bhatta. Defence plea was also not considered by the Trial Court and it was rejected without assigning reasons. The crucial issue of jurisdiction of Anti-Terrorism Court is involved in this case. In the case of Sagheer Ahmed vs. The State and others (2016 SCMR 1754), it has been held by the Honourable Supreme Court that in the cases in which element of terrorism is missing, Anti-Terrorism Court has no jurisdiction to try such cases under the provisions of Anti-Terrorism Act, 1997. 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. 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 creates 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. For the above stated reasons, while respectfully relying upon the above cited authorities, we have no hesitation to hold that prosecution has failed to prove its case against the appellants beyond any shadow of doubt. Moreover, learned Judge, Anti-Terrorism Court-X, Karachi had no jurisdiction to try these cases. Accused have faced agony of long trial since 22.04.2016, as such re-trial in the peculiar circumstances of the case would not meet ends of justice. Consequently, Appeals are allowed, conviction and sentences awarded by the learned Judge, Anti-Terrorism Court-X, Karachi vide judgment dated 14.12.2016 are set aside. Appellant Khalid Hussain, Akhtar Ali Mojai, Mehtab Ali, Farhan Rajpar, Sajjad Haider Rajpar, Shafiq-ur-Rehman & Allah Wadhayo shall be released from custody forthwith, if they are not wanted in some other custody case.

16. These are the reasons for the short order announced on 31.10.2017.

JUDGE

JUDGE

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