IN THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No.11 of 2018

 

                                                            Present:

            Mr. Justice Naimatullah Phulpoto

            Mr. Justice Rasheed Ahmed Soomro

 

Appellant:                                         Muhammad Faisal Warsi alias Noman alias Nomi Warsi through Mr. Aamir Nawaz Warraich, advocate

 

Respondent:                                      The State through Mr. Muhammad Iqbal                                                Awan, D.P.G.

 

Date of hearing:                                07.09.2018

 

Date of Announcement:                  13.09.2018

 

J U D G M E N T

 

Naimatullah Phulpoto, J.- Appellant Muhammad Faisal Warsi alias Noman alias Nomi Warsi  son of Muhammad Ramzan Warsi was tried by learned Judge, Anti-Terrorism Court No.VIII, Karachi, in Special Case No.267 of 2015. On conclusion of trial, learned trial Court vide judgment dated 23.12.2017 convicted appellant Muhammad Faisal Warsi alias Noman alias Nomi Warsi under section 7(1)(h) of the Anti-Terrorism Act, 1997 and sentenced to 7 years R.I. read with section 385, PPC and to pay fine of Rs.100,000/-, in default whereof to undergo six months more. Benefit of Section 382-B, Cr.PC was also extended to the accused.

2.         Brief facts leading to the filing of instant appeal are that on 22.08.2015 at about 1420 hours, complainant Muhammad Nasir lodged FIR No.210/2015 at P.S. Garden, Karachi, alleging therein that he owns a shop in the name of “Anwar Milk Shop” near Karachi Sweets, Nishtar Road, Karachi. He further disclosed that on 21.08.2015, he along with his brother Muhammad Mairaj was present at his shop, when at about 11:30/11:45 p.m. a young boy wearing pant shirt, came at his shop, introduced himself as member of Sunni Taheek and demanded Bhatta of Rs.10,000/- from him. According to complainant in the meanwhile a police mobile appeared and the said boy on seeing the police party ran away. The complainant further alleged that on 22.08.2015, he along with his brother was available at his shop when at about 11:00 a.m. the same boy with his two accomplices came at his shop on a motorcycle and while abusing he demanded bhatta, his younger brother Mairaj resisted and grappled with him, upon which his two accomplices fired pistol shots at them with intention to kill. Many people gathered there and the accused went away while leaving their motorcycle. It is further alleged that at that time, ASI Zafar Iqbal of P.S. Garden, who was on patrolling duty with his staff, attracted on firearm reports to place of incident, noticed large number of people who had gathered there, after the incident. Incident was narrated to the police. ASI secured the motorcycle bearing No.KAA-9835. Honda 70 of black colour, with Engine No.2091980 and Chassis No.10309 and an empty bullet of 30 bore pistol from place of incident and prepared a memo in presence of mashirs Nasir and Mairaj and brought the same at police station. In the meanwhile, complainant also reached at P.S. and lodged FIR, it was recorded vide Crime No.210/2015 under sections 385, 387, 324, 34, PPC read with section 7 of the Anti-Terrorism Act, 1997.

3.         After usual investigation, challan was submitted against the accused under the above referred sections.

 

4.         At trial, prosecution examined nine witnesses. Thereafter, prosecution side was closed.

 

5.         The statement of the appellant under Section 342 Cr.P.C. was recorded at Ex-47, wherein, he denied the prosecution allegations. Accused/appellant raised plea that he was working at the shop of the complainant on daily wages; complainant did not paid salary for 2/3 months, when he demanded salary he falsely implicated him in the instance case. Accused did not examine himself on oath nor produced any witness in his defence in disproof of prosecution allegations.

 

6.         Learned trial Court, after hearing the learned counsel for the parties and assessment of evidence available on the record, vide judgment dated 23.12.2017, convicted the appellant as stated above, hence this appeal.

7.         The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 23.12.2017 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

 

8.         We have carefully heard the arguments of the learned counsel for the parties and also scrutinized the evidence minutely.

9.         We have come to the conclusion that prosecution has failed to prove its case against the appellant mainly for the reason that there are two versions of the incident. Complainant has deposed that on 21.08.2015 at 11:30 p.m., he along with his brother Muhammad Mairaj was present at his shop when a boy, belonging to Sunni Tahreek appeared and demanded Rs.10,000/- from the complainant as bhatta / extortion for conducting a religious programme to which he refused. Complainant further deposed that on 22.08.2015 at 11:30 a.m. he was present with brother Muhammad Mairaj at his shop, two accused persons appeared on motorcycle, abused to the complainant, drew out pistol from the fold of their pants, his brother Mairaj apprehended the accused but   he was rescued by his two accomplices. Accused started firing in the air, several persons were attracted. Accused made their escape good while leaving motorcycle. FIR of the incident was lodged. Complainant further stated that on 02.09.2015, he received telephone call from the investigation officer, that culprit of the incident has been arrested, complainant went to police station and identified him that he was the person who demanded from him bhatta.

 

10.       Prosecution had examined PW-8 Fareed Warsi. He has given different version of the incident. It is reproduced as under:-

 

“Accused Faisal Warsi is my younger brother. On 25.08.2015, I was called by the police of P.S. Garden at about 4:00/5:00 p.m. time. I went there on my motorcycle bearing No.KAA-9835, 1980 model. I met with Inspector Alam Dahri, who disclosed before me that they had arrested my brother Faisal, who was confined in the lockup. The IO demanded Rs.4,00,000/- for the release of my brother. My brother used to work in the shop of complainant where some altercation had taken place between him and complainant party over some amount. I replied to the IO that I have no such huge amount, up which, they lodged FIR against my brother and also kept my motorcycle, while saying that whenever the amount would be arranged, I might take my brother and motorcycle. Accused Faisal however, does not reside with me. I used to park my motorcycle in my house. This is my statement.”

 

11.       It is the case of two versions. It is settled law that if two versions or interpretations of the incident are equally possible, the one favourable to the accused shall be preferred and accepted as held by the Honourable Supreme Court in the case of Abdul Majeed Vs. the State (1973 SCMR 108). Relevant portion is reproduced as under:-

 

“It is well settled that if two versions or interpretations of the incident are equally possible, the one favourable to the accused should be preferred and accepted. The facts and circumstances deducible in the present case do not yield the only conclusion that the accused persons had intended to commit the offence of robbery. The evidence at the worst makes out a case of criminal intimidation on the part of the appellant, for which he could have been appropriately charged and convicted under section 506 of the Penal Code.”

 

12.       Apart from that there are several circumstances in this case which have also created serious doubt in the prosecution case. Accused made firing but none received injury in the incident. It was also unbelievable that accused safely ran away when public had gathered at the place of incident and it was day time. Identification parade of accused was also not conducted in accordance with law. Complainant has admitted that he had identified/seen accused at police station. In the case of Muzaffar Hussain Vs. The State (2001 PCr.LJ 964) [Karachi[, it is held that prosecution is duty bound to establish during trial that every necessary precaution had been taken to ensure fair investigation. No precautions laid down in the case of Muzafar Hussain vs. the State (Supra) has been proved. Empty was collected from the place of wardat but it was not deposited in the Malkhana of police station. Safe custody of empty and its transit have not been established. As such positive report of ballistic expert would not improve the case of the prosecution. PW-3 has admitted that he had not produced departure entry of police station, it also cuts the roots of prosecution case. It is the matter of record that at the time arrest of accused pistol was recovered from his possession, allegedly used in the commission of the offence but it was not sent to the ballistic expert for the reason best known to prosecution. Learned advocate for the appellant has raised plea that appellant was working as a salesman at the shop of the complainant, due to dispute over the salary, false case was registered by the police at the instance of the complainant. In these circumstances, we are unable to rely upon the evidence of the police officials without independent corroboration, which is lacking in this case.

 

13.       In view of the above stated reasons, we have no hesitation to hold that there are several circumstances/infirmities in the prosecution case as highlighted above, which have created reasonable doubt about guilt of accused.  In the case of Tariq Pervez V/s. The State (1995 SCMR 1345), the Honourable Supreme Court has observed as follows:-

 

“It is settled law that it is not necessary that there should many circumstances creating doubts. If there is a single 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.”

 

14.       For the above stated reasons, we have come to the conclusion that prosecution has utterly failed to prove its case against the appellant, trial court failed to appreciate the evidence according to settled principles of law. False implication of appellant could not be ruled out in this case. While relying upon  the above cited authorities, we hold that prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt. Resultantly, conviction and sentence recorded by the trial court vide judgment dated 23.12.2017 are set aside. Appellant Muhammad Faisal Warsi alias Noman alias Nomi Warsi  son of Muhammad Ramzan Warsi is acquitted in FIR No.210/2015, registered at P.S. Garden under sections 385, 387, 324, 34 PPC read with section 7 of the Anti-Terrorism Act, 1997. He shall be released forthwith if not required in some other custody case.

 

 

        J U D G E

 

    J U D G E

 

Gulsher/PS