HIGH COURT OF SINDH AT KARACHI
Special Criminal Anti-Terrorism Jail Appeals No.141, 164 & 181 of 2018
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Date Order with Signature(s) of Judge(s)
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Present: Mr. Justice Abdul Maalik Gaddi
Mr. Justice Amjad Ali Sahito
Appellants : Muhammad Azhar & Zaheer @ Sameer
through Mr. Gulsher Baloch, Advocate in Special Criminal Anti-Terrorism Jail Appeals No.141 & 181 of 2018.
Appellant : Zakir @ Ziku through Mr. Habib-ur-Rehman
Jiskani Advocate in Special Criminal Anti-
Terrorism Jail Appeal No.164 of 2018.
Respondent : The State through Mr. Ali Haider Saleem,
Deputy Prosecutor General, Sindh.
Date of Hearing : 09.04.2019
Date of Decision : 09.04.2019
J U D G M E N T
Abdul Maalik Gaddi, J.– Through this common Judgment, we intend to dispose of the captioned appeals filed by the appellants as these appeals relate to common Judgment delivered by the learned trial Court dated 12.03.2018.
2. By means of these appeals, the appellants have assailed the common Judgment dated 12.03.2018 passed by the learned Judge of Anti-Terrorism Court No.XX, Karachi in Special Case No.1826 of 2016, under Crime No.97 of 2016 for offence under Section 384/385/392/34 PPC read with Section 7 of Anti-Terrorism Act, 1997, registered at police station Saeedabad, Karachi, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellant as stated in point No.4 of the impugned judgment. For the sake of convenience, it would be advantageous to reproduce the findings of Point No.4, which read as follows:-
“POINT NO.4.
The prosecution proved charge against the accused persons Zaheer @ Sameer s/o Mohammad Akbar,
Mohammad Azhar s/o Mohammad Yaseen and Zakir @ Zaku s/o Ghulam Akbar beyond any shadow of doubt, I therefore, convict them for the offence under section 384/385/392/34 PPC r/w 6(k) & 7(h) of ATA, 1997 and sentence them R.I. for Five years with fine of Rs.10,000/- (Ten Thousand) each. In default of payment of fine, they shall suffer S.I. for two weeks more. I also convict accused Zaheer @ Sameer s/o Mohammad Akbar, Mohammad Azhar s/o Mohammad Yaseen and Zakir @ Zaku s/o Ghulam Akbar for the offence under section 392 r/w 34 PPC and sentence them for 03 years R.I. The benefit of section 382-B Cr.P.C. is also extended to them from the date of their arrest. All the sentences shall run concurrently.”
3. Brief facts of the prosecution case as disclosed in the FIR are that on 08.06.2016, the complainant namely, Rustum Khan son of Mohammad Mushtaq reported to the police station Saeedabad, Karachi that on 02.06.2016 at about 10:00 am he was available in his garage/shop when four persons on two motorcycles arrived and came inside. Two among them were standing at the gate of garage/shop and they demanded from him bhatta amount of Rs.500,000/-, whereas, the complainant asked the reason on which they took out their pistol and asked him not to open the workshop on Saturday otherwise, he will be killed. They also snatched complainant’s mobile Samsung from his hand on show of weapon and then runaway. Later-on the complainant came to know about their names as Zakir, Zaheer @ Sameer and Azhar and thus, this FIR.
4. After usual investigation, challan was submitted against appellants/accused under above referred sections.
5. Trial Court framed Charge against accused on 21.02.2017 under the above referred sections. Accused pleaded not guilty and claimed their trial.
6. In order to prove the accusation against the appellants, prosecution had examined following witnesses:-
(i) PW-1 Mohammad Akram examined at Ex.5, who produced memo of arrest, memo of arrest and recovery and memo of recovery of mobile as Ex.5/A to Ex.5/C respectively;
(ii) PW-2 complainant Rustum Khan examined at Ex.6, who produced FIR and memo of site inspection and memo of arrest as Ex.6/A to Ex.6/C respectively;
(iii) PW-3 Mohammad Waseem examined at Ex.7;
(iv) PW-4 Mohammad Jaffar examined at Ex.8;
(v) PW-5 SI Amjad Ali examined at Ex.9.
(vi) PWs Faiz Mir, Bilal Ahmed and Muhammad Imran Ali have been given up by the prosecution vide statement dated 06.01.2016 at Ex.10;
(vii) PW-6 Inspector Mohammad Ameer examined at Ex.11, who produced roznamcha entries at Ex.11/A to Ex.11/H;
(viii) PW-7 DSP Abdul Rehman examined at Ex.12, who produced SSP order, roznamcha entries, letter to finger prints and photo section branch, letter to DIG for CDR at Ex.12/A to Ex.12/I respectively;
(ix) PW Aijaz Hussain has been given by the prosecution vide statement at Ex.13;
These witnesses have been cross examined by the Counsel for accused. Thereafter, leaned ADPP closed the prosecution side vide Statement at Ex.14.
7. Statements of accused under Section 342, Cr.P.C. were recorded separately at Exs.15 to 17. Accused claimed their false implication in this case and denied the prosecution allegations. Accused Zaheer @ Sameer in his statement recorded under Section 342, Cr.P.C. at Ex.15, stated that when he came back from his work to house, police demanded money from him and as he failed to fulfill such demand, he was arrested and falsely implicated in this case. Accused Zakir @ Zaku in his statement recorded under Section 342, Cr.P.C. at Ex.16, stated that he was arrested by the Rangers and firstly he was arrested in keeping unlicensed weapon and they falsely, implicated in this case. Accused Mohammad Yaseen in his statement recorded under Section 342, Cr.P.C. at Ex.17, stated that he was in lock-up and was arrested by Rangers and thereafter, falsely implicated him in this case. However, accused neither examined themselves on oath nor led any evidence in their defense.
8. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 12.03.2018, convicted and sentenced the appellants as stated supra. Hence, these appeals have been filed by the appellants.
9. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 12.03.2018 passed by the trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.
10. M/s. Gulsher Baloch and Habib-ur-Rehman Jiskani, learned counsel for the appellants have contended that appellants are innocent and have been falsely implicated in this case. Per learned counsel, neither any incident had taken place, nor accused were arrested from the spot; that after the arrest of the accused, no identification parade was held before the Magistrate, which destroys the prosecution’s case; that there is a delay of six days in lodging of FIR, for which no explanation has been furnished by the prosecution, which is fatal to the case; that no bhatta/extortion amount was recovered from their possession; that the alleged recovery of only one Samsung mobile phone has been foisted upon accused Zaheer by the police to show their efficiency, but the learned trial Court has failed to appreciate all these legal aspects and passed the impugned judgment without appreciating evidence according to settled principles of law.
11. Conversely, Mr. Ali Haider Saleem, learned Deputy Prosecutor General while supporting the impugned judgment argued that prosecution has proved the case by producing the material witnesses before the trial Court who narrated the ocular account and remained consistent on all material points; that no plea of false implication has been raised by the defence; that no malice of the prosecution’s witnesses against the accused has come on record. Lastly, he prayed for dismissal of these appeals.
12. We have heard the learned counsel for the parties at a considerable length and have perused the evidence and documents available on record.
13. After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial. It is the settled principle of law that burden is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view of this basic touchstone of criminal administration of justice, we have examined the ocular and documentary evidence as well as circumstantial evidence, alongwith impugned judgment.
14. From the above evidence, we have come to the conclusion that prosecution has failed to establish its’ case against the accused for the reasons that as per prosecution, the alleged incident took place on 02.06.2016 at about 1000 hours, whereas, FIR of the said incident was lodged by complainant Rustam Khan on 08.06.2016 at about 1615 hours, after the delay of about six (6) days, for which no explanation has been furnished by the prosecution, therefore, on this ground, false implication of the appellants in this case with due deliberation and consultation could not be ruled out. As per FIR at Ex.6/A, it reflects that appellants were came to the shop of complainant on two motorcycles and demanded Rs.500,000/- as extortion and snatched one Samsung mobile phone, but it is surprising to note that in FIR at Ex.6/A, the registration numbers of said motorcycles are not mentioned. Even no description such as model or maker of motorcycles was mentioned in the FIR. This fact has also not been mentioned in the statements of prosecution witnesses recorded before the trial Court. Not only this, as per FIR, complainant Rustam Khan came to know through his own source that present appellants have committed the said incident, but it is astonishing to note that under which source, he came to know that present appellants have committed the said offence. This fact creates doubt in the prosecution case. During the course of arguments, we have specifically asked the question from learned Deputy Prosecutor General, Sindh that under what source of identification, complainant had came to know the names of appellants, he has no answer with him.
15. Moreover, as per prosecution case, only recovery of one Samsung mobile phone has been effected from the appellant Zaheer, but nothing was recovered from the other two appellants. It reveals from the record that in FIR at Ex.6/A and memo of recovery at Ex.5/C, the description of mobile phone is not mentioned in it, but nothing on record that alleged recovered Samsung mobile phone was owned by the complainant. When this fact again confronted to learned Deputy Prosecutor General, Sindh, he has no answered with him. The case and claim of the appellants are that they were not arrested from the spot, however, they were already arrested in other criminal case, thereafter, their arrest has been shown in this false case. It is also the case of appellants that they have been acquitted from the said criminal case. When this aspect confronted to learned Deputy Prosecutor General, Sindh, he could not satisfy us that the present appellants are the actual culprits of this crime. Nothing on record to show that present appellants were previously convicted or sentenced in other cases or have been remained indulge in such type of activities in past. During the course of arguments, we have also noted the number of contradictions in between the statements of prosecution witnesses with regard to material particulars of the case, which goes to the root of the case.
16. Admittedly, in this case, there are number of infirmities/lacunas, which have created serious 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 v. The State reported as 1993 SCMR 1345, wherein the Hon’ble Supreme Court has held as under:-
“The concept of benefit of doubt to an accused personsis 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 a matter of grace and concession but as a matter of right.”
17. In view of above, we have considered the version of both the parties put forward by them through evidence and put the same in juxtaposition then we found that the version of the appellants seem to be more plausible and convincing while the version of the prosecution appears to be doubtful.
18. All the above circumstances have proved that neither the incident as alleged, had taken place, nor the recoveries, as shown, were effected from the possession of appellants. It is settled principle of law that to extend benefit of doubt there is no necessity to gather many circumstances but even if slightest doubt arises out of prosecution case, is sufficient to extend the benefit of doubt to the accused. In the instant case in view of the discussion whatever discussed hereinabove and the material placed before us has constrained to hold that the prosecution has miserably failed to prove its charge against the appellants beyond any reasonable shadow of doubt. Consequently, these appeals are allowed. The impugned Judgment dated 12.03.2018 passed by the trial Court is set-aside. Resultantly, the appellants are acquitted of the charge. Appellants are in custody, therefore, jail authorities are directed to release the appellants forthwith, if they are not required in any other cases.
19. These appeals were allowed by us after hearing the learned Counsel for the parties vide our short dated 09.04.2019 and these are the reasons thereof.
JUDGE
JUDGE
Faizan A. Rathore/PA*