HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No.39 of 2015

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Khadim Hussain Tunio

Date of Hearing : 04.10.2017

Date of Judgment : 11.10.2017

Appellant : Muhammad Farooq Khan alias Pathan son of Misal Khan through Mr. Asadullah Memon, Advocate

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

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Muhammad Farooq alias Pathan was tried by tried by learned Judge, Anti-Terrorism Court No.I at Karachi in Special Case No.A-141 of 2013. After full dressed trial, by judgment dated 03.03.2015, appellant was convicted under Section 7(h) of the Anti-Terrorism Act, 1997 and sentenced to 5 years R.I. and to pay fine of Rs.50,000/-. In case of default in payment of fine, he was ordered to suffer SI for 06 months more. Appellant was extended benefit of Section 382-B Cr.PC.

2. Brief facts of the prosecution case as reflected from the evidence of the complainant Khalil Ahmad are that on 25.07.2013, complainant went to Plot No.R-258, Block 4/A, Journalist Society, Gulshan-e-Iqbal, Karachi to start construction work. It is alleged that accused Muhammad Farooq and Muhammad Riaz appeared at his plot and demanded bhatta Rs.500,000/- from him and restrained the complainant from work, to which complainant refused. It is further stated that accused Farooq took out pistol and repeated his demand, in case of non-fulfillment of the demand threat of dire consequences was issued to the complainant. It is stated that complainant got 15 days’ time from the accused for payment of Bhatta. Complainant paid Rs.200,000/- extortion money to accused Muhammad Farooq on 08.03.2013. After some days, accused again demanded the remaining amount of Bhatta and issued threats to the complainant. On 05.07.2013, complainant went to the police station Mobina Town and lodged F.I.R. No.247/2013 against accused under sections 384, 385, 386 and 34, PPC.

3. During investigation, accused Muhammad Farooq was arrested. Complainant was called at police station by SIO Ali Gohar. After usual investigation, challan was submitted against the accused under the above referred sections. Co-accused Muhammad Riaz Pathan, the brother of the appellant/accused, was declared as proclaimed offender by the trial Court.

4. Trial court framed charge against accused under section 7(h) of the Anti-Terrorism Act, 1997 read with sections 384, 385, 386, 34, PPC at Ex.5. Accused pleaded not guilty and claimed to be tried.

5. At trial, prosecution examined P.W-1 Khalil Ahmed, PW-2, Noor Ahmed at Ex.6, P.W-2 Noor Ahmed at Ex.7, P.W-3 Ghulam Abbas at Ex.8, P.W-4 SIP Ali Gohar at Ex.9, P.W-5 Inspector Anwar Ali at Ex.10 and P.W-6 Khursheed Ahmed at Ex.11. Thereafter, prosecution side was closed at Ex.12.

6. Statement of accused was recorded under Section 342 Cr.P.C at Ex.13. Accused claimed false implication in this case and denied the prosecution allegations. Accused raised plea that P.Ws have deposed against him as there is dispute over Plot No.R-258 and said plot is in his possession. Accused did not examine himself on oath in disproof of prosecution allegations. No evidence was produced in defence. In reply to a question, what else the accused as to say; accused has replied that false case has been registered to pressurize him to withdraw from his plot. Accused has further stated that he has been acquitted in Crime No.248/2013 under section 23(1)(a) of the Sindh Arms Act, 2013 and produced certified copy of the judgment as Ex.13/A.

7. Trial Court after hearing learned counsel for the parties and examination of the evidence available on record, by judgment dated 03.03.2015, convicted and sentenced the appellant as stated above. Hence this appeal is filed.

8. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the Judgment dated 03.03.2015 passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

9. Mr. Asadullah Memon, learned advocate for the appellant mainly contended that incident had occurred on 08.03.2013 and F.I.R. was lodged on 05.07.2013 and delay in lodging of the F.I.R. has not been explained by the prosecution. It is also argued that after arrest of the accused bhatta amount was not recovered from him; that appellant has been acquitted in the case under section 23(1)(a) of the Sindh Arms Act, 2013 on same set of evidence. It is also argued that PW-2 Noor Ahmed has deposed that accused demanded bhatta from the complainant in his presence and in presence of labour and Rs.200,000/- were paid by the complainant. It is submitted that evidence of the complainant is materially contradicted with the complainant with regard to the payment of Bhatta to the accused. It is contended that investigation officer had failed to produce departure and arrival entries with the regard to the investigation before the trial court. It is argued that prosecution case is highly doubtful. Lastly, argued that ATC had no jurisdiction to try this case. In support of his contentions, he has relied upon the cases of SAGHEER AHMED vs. The STATE and others (2016 SCMR 1754) and TARIQ PARVEZ versus the STATE (1995 SCMR 1345)

10. Mr. Mohammad Iqbal Awan, learned DPG argued that there was delay in lodging of the F.I.R. but it has been explained by the prosecution. He has further argued that Bhatta of Rs.200,000/- was paid to the accused by the complainant. Co-accused, who is the brother of the present appellant, is still absconder, however, learned DPG submits that ingredients of section 7 of the Anti-Terrorism Act, 1997 are not attracted in this case. Learned D.P.G. prayed for dismissal of the appeal.

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

12. We have come to the conclusion that prosecution has failed to prove its case against the appellant for the reason that according to the complainant incident had occurred on 08.03.2013 and F.I.R. was lodged on 05.07.2013. Police station is situated at a distance of 1 kilometer from the place of occurrence. Delay in lodging of F.I.R. has not been explained by the complainant in his evidence. Learned advocate for the appellant has rightly contended that there are material contradictions in the evidence of complainant Khalil Ahmad and PW-2 Noor Ahmad. Complainant Khalil Ahmed has deposed that on 25.02.2013 he went to his plot alone where accused Muhammad Farooq and Muhammad Riaz appeared and they demanded Bhatta of Rs.500,000/- from him and restrained him from the construction work on the plot. After 15 days he paid Rs.200,000/- to accused Muhammad Farooq. Complainant Khalil Ahmed no-where has deposed that Noor Ahmed and labour were also present when accused persons appeared at the plot and demanded Bhatta from him. From careful perusal of evidence of PW Noor Ahmed it appears that he was also the eye witness of the incident so also the labour, working at the plot but neither labour was examined by the IO during investigation nor labour was produced before the trial court for recording the evidence. As such, material evidence was deliberately withheld. Withholding of material evidence of occurrence would create an impression that had such witness was brought into witness box he might not have supported the prosecution case. Strong adverse inference could be drawn against the prosecution, benefit of which would be resolved in favour of the accused as held in the case of AZEEM KHAN and another Vs. MUJAHID KHAN and others (2016 SCMR 274), relevant portion is reproduced as under:-

“19.……………. Such evidence would have provided enough corroboration what was stated in the confession but it appears that, the same was deliberately withheld therefore, adverse inference is to be drawn against the prosecution……..”

13. Accused has raised plea that in fact there was dispute over the plot and false case has been registered against him for pressurizing him to withdraw from the plot. Accused has also produced copy of judgment in the case under section 23(1)(a) of the Sindh Arms Act, 2013 that he has been acquitted in the said case. During investigation, amount of Bhatta has also not been recovered from the accused. These are lacunas in prosecution case, which have created doubt in the prosecution case. Learned advocate for the appellant has also argued that learned Judge, Anti-Terrorism Court had no jurisdiction to try this case as element of terrorism was missing. This legal position has been conceded by the learned D.P.G. We also perused the evidence minutely. Not a single witness has deposed that fear or terror was created. Element of terrorism is missing in the prosecution case. Rightly reliance has been placed on 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.”

14. In the above stated reasons, we have no hesitation to hold that in this case there are several circumstances, which create doubt in the prosecution case. It is settled principle of law that 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 hold that that learned Judge, Anti-Terrorism Court had no jurisdiction to try this case. Moreover, prosecution has failed to prove the aforesaid case against the appellant for the above stated reasons. The appellant has suffered agony of the trial since 2013, we are not inclined to remand the case but allow the instant appeal, set-aside the impugned judgment. Consequently, the conviction and sentence recorded by the trial court vide judgment dated 03.03.2015 are set aside. Appellant Muhammad Farooq Khan alias Pathan is acquitted of the charge. Appellant is in custody, he shall be released forthwith if he is not required in some other case(s).

J U D G E

J U D G E

Gulsher/PS