IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. D – 86 of 2018

Before;

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah

 

Appellant             :         Muhammad Shoaib Brohi

                                      through Mr. Nisar Ahmed Bhanbhro, Advocate

 

Respondent     :            The State, through Syed Sardar Ali Shah,

                                      Deputy Prosecutor General

 

Date of hearing :           22.01.2019

Date of decision:          22.01.2019

 

JUDGMENT

IRSHAD ALI SHAH, J:-   The appellant by way of instant Criminal Appeal has impugned judgment dated 26.07.2018 passed by Judge, Anti-Terrorism Court Khairpur Mir’s, whereby he has been convicted and sentenced to undergo R.I for 05 years and to pay fine of Rs.50000/- and in case of default in payment of fine to under for RI for 04 months for an offence punishable u/s 11-F(6) r/w Section 7 of Anti-Terrorism Act, 1997.

2.                 The facts in brief necessary for disposal of instant criminal appeal are that the appellant allegedly was found collecting donation on behalf of Jesh-e-Muhammad, a proscribed organization, for that he was booked and reported upon by the police.

3.                 At trial, the appellant did not plead guilty to the charge and prosecution to prove it, examined PW-1 complainant/Inspector Fazal Anjum (Ex.04), he produced roznamcha entry, memo of arrest of the appellant and recovery of certain articles from  him and FIR of the present case, PW-2 mashir/PC Azhar Jamal (Ex.05), he produced memo of place of incident, PW-3 SIO/Inspector Taufeeq Ahmed (Ex.06), he produced investigating report and copy of Notification issued by government of Pakistan declaring Jesh-e-Muhammad as proscribed organization and then prosecution closed the side.

4.                 The appellant in his statement recorded u/s 342 Cr.P.C denied the prosecution allegation by pleading innocence by stating that;

“I am innocent and victimized by CTD and I was arrested on 20.02.2017 from the Madresa beside my home during prayer. I was in illegal detention for one month by CTD. Such matter was reported in daily ‘Sobh’ Karachi dated 21.02.2017. I produce the attested copy of such newspaper cutting at Ex.08/A. The alleged receipt of Jesh-e-Muhammad were managed and foisted against me. My passport, mobile and some other articles were taken by the CTD from my house. Pray for justice.”

5.                The appellant did not examine himself on oath or any one in his defence. 

6.                 On evaluation of evidence so produced by the prosecution learned trial Court convicted and sentenced the appellant, as stated above.

7.       It is contended by learned counsel for the appellant that the appellant is a public servant, he being innocent has been involved in this case falsely by the police after keeping him under wrongful confinement for about one month, the evidence which the prosecution has produced against the appellant before learned trial Court being inconsistent and deficient has been believed by learned trial Court without any lawful justification. By contending so, he sought for acquittal of the appellant. In support of his contention, he relied upon case of Syed Khalid Raza and 02 others vs. The State (PLD 2004 Karachi 716).

8.                 Learned DPG for the State by supporting the impugned judgment has sought for dismissal of the instant appeal.

9.                 I have considered the above arguments and perused the record.

10.               It is stated by complainant Inspector Fazal Anjum and PW mashir PC Taufeeq Ahmed that on 20.3.2017, they with rest of the police personnels were conducting patrol when reached at Maryam Toap Khairpur there they came to know through spy information that a person standing by the side of Noorani Masjid Jillani Mohalla, Khairpur is collecting donation on behalf of Jesh-e-Muhammad a proscribed organization. On such information, they proceeded to the pointed place. If for the sake of argument, it is believed that the complainant and his witness proceeded to the place of incident on information then they were under lawful obligation to have associated with them independent person to witness the possible arrest and recovery. It has not been done by them without any plausible justification which has made their proceeding to the place of incident, on information to be doubtful. It was further stated by them that at place of incident they apprehended the appellant and on search secured from him Rs.1000/-, a receipt book bearing monogram of Jesh-e-Muhammad, a ball pen of blue colour, mobile phone of nokia company containing Sim card of Mobilink company, driving licence and passport. It was further stated by them that a memo of arrest and recovery was prepared at the spot and the appellant with the recovery so made then was taken to police station CTD Sukkur, there he was booked in the presence case formally. It was specifically stated by the complainant during course of his chief examination that he himself prepared the memo of arrest and recovery. He in that respect was belied by PW/ mashir PC Azhar Jamal by stating that it was prepared by PC Mashooq Ali. Such inconsistency between the evidence of complainant and PW mashir has raised reasonable doubt with regard to the preparation of memo of arrest and recovery. It was specifically stated by PW mashir PC Azhar Jamal during course of his cross examination that he did not see the appellant collecting donation from anybody. If it is believed to be so then the allegation against the appellant that he was found collecting donation from the general public on behalf of                  Jesh-e-Muhammad, a proscribed organization, is appearing to be doubtful. It was further stated by them that the investigation of the case was conducted by SIO/Inspector Taufeeq Ahmed. It was stated by SIO/Inspector Taufeeq Ahmed that on 20.3.2017 he visited the place of incident at the pointation of complainant Inspector Fazal Anjum and prepared such memo. He in that respect is belied by complainant Inspector Fazal Anjum by stating that the place of incident was pointed by him to SIO/Inspector Taufeeq Ahmed on 24.3.2017. Such inconsistency between evidence of the complainant Inspector Fazal Anjum and SIO/Inspector Taufeeq Ahmed has made the preparation of memo of place of incident as doubtful. It was specifically stated by SIO/Inspector Taufeeq Ahmed during course of his cross examination that memo of place of incident was prepared by WPC Mashooq Ali. By stating so, he belied his own version in his chief examination wherein it was stated by him that he prepared memo of place of incident. Be that as it may, PC Mashooq Ali being author of memo of arrest and recovery and memo of place of incident has not been examined by the prosecution for no obvious reason. In that way, the appellant has been prejudiced in his defence seriously, by the prosecution. In such circumstances, the defence plea which has been taken by the appellant at trial of his innocence ought not to have been lost sight of by learned trial Court.

 11.              Above are the reasons of short order dated 22.1.2019 whereby the instant appeal was disposed of in the following term;

“For the reasons to be recorded later on this appeal is allowed, the conviction and sentence awarded to appellant Muhammad Shoaib under the impugned judgment dated 26.7.2018 passed by learned Judge, Anti-Terrorism Court, Khairpur in Special Case No.16/2017 arising out of Crime No.06/2017 police station CTD Sukkur, is set aside and the appellant is acquitted from the charge. The appellant is in jail and he shall be released forthwith if not required in any other criminal case.”

Judge

Judge

ARBROHI