Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Appeal No. D – 146 of 2019

C. P. No. D – 1074 of 2019

Before :

Mr. Justice Naimatullah Phulpoto

Mr. Justice Zulfiqar Ali Sangi

Date of hearing : 21.01.2020.

Date of judgment : 21.01.2020.

Mr. Mehfooz Ahmed Awan assisted by Mr. Farhan Ali Shaikh, Advocates for appellant / petitioner.

Syed Sardar Ali Shah Rizvi, Deputy Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Farooq Ahmed son of Ghulam Qadir Channa, appellant was tried by learned Judge, Anti-Terrorism Court, Khairpur Mir’s in Special Case No.06/2019. After regular trial, vide judgment dated 15.07.2019, appellant has been convicted under Section 9 of ATA, 1997, and sentenced to five years R.I, and to pay the fine of Rs.15,000/- (fifteen thousand). In case of the default in the payment of the fine, he has been ordered to suffer R.I for two months. Appellant has been extended benefit of Section 382-B, Cr.P.C.

2. Brief facts of the prosecution case, as reflected in the judgment of the trial Court are as under:

“ Briefly, the facts of the prosecution case/crime are that on 28-12-2018 at about 1620 hours, complainant/ASI-Ahmed Ali Shar of PS-CTD Sukkur lodged the instant FIR by stating therein that on the day of incident i.e. 28-12-2018 at about 1500 hours, he alongwith his subordinate staff duly armed weapons, boarded on government vehicle bearing No.SPE-278, which was driven by DPC-Tafseer Hussain Shah left PS for patrolling in the jurisdiction under the roznamcha entry No.07 for the search of terrorist, creator of religious hatred and promulgation of sectarian violence in people. After patrolling in the various places, when reached at Palm Valley Hotel then he received spy information that the active member of banned organization named as Sipah-e-Sahaba and other banned organizations and promulgator namely Farooq Ahmed Channa, is standing at the left side of Baberloi Road, who is waiting for some one. On receiving such information, complainant party rushed towards the pointed place and reached there at about 1500 hours, saw that one person is standing at the pointed place. On seeing the vehicle of police party, he tried to escape away from there towards the date palm garden then complainant party stopped their vehicle and arrested him. It is also mentioned in FIR that due to non-availability of private witnesses; complainant made mashirs to PC-Abdul Qadir Ansari and PC-Sarwar Shah and made inquiry from the apprehended accused, who disclosed his name as Farooq Ahmed Channa and during his personal search, police recovered two pamphlets on which Sipahe Sahaba, Shia Kafir and to support the Sipah-e-Sahaba are written and five currency notes of Rs:100 denominated from his right side pocket, same were sealed at the spot in presence of above said mashirs and obtained their signatures upon the sealed property then prepared the mashirnama of arrest of accused and recovery in presence of the mashirs named-above, thereafter, the complainant retuned to PS alongwith his subordinate as well as arrested accused, recovered property and lodged the instant FIR against the accused on behalf of State as narrated above.”

ASI Ahmed Ali lodged FIR against accused on behalf of the State; it was recorded vide Crime No.07/2018 at P.S CTD Sukkur for offence under Section 8/9, ATA, 1997.

3. After usual investigation, challan was submitted against the accused under Section 8/9, ATA, 1997.

4. Trial Court framed the charge against the accused at Ex.03. Accused pleaded not guilty and claimed to be tried.

5. In order to substantiate the charge, prosecution has examined three (03) prosecution witnesses. Thereafter, prosecution side was closed.

6. Trial Court recorded statement of accused under Section 342, Cr.P.C at Ex.08, in which accused claimed false implication in this case and denied the prosecution allegations. Accused did not lead evidence in defence and declined to give statement on oath in disproof of prosecution allegations.

7. Trial Court, after hearing the learned counsel for the parties and assessment of the evidence available on record, vide judgment dated 15.07.2019, convicted and sentenced the appellant as stated above. Hence, this Appeal.

8. Mr. Mehfooz Ahmed Awan, learned counsel for the appellant / accused, after arguing the Appeal at some length, does not press the same so far conviction is concerned, but prayed for reduction of sentence on the ground that accused is not previous convict, and he is the sole supporter of his family.

9. Mr. Sardar Ali Shah Rizvi, DPG recorded no objection in case, sentence is reduced to some reasonable extent.

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

11. As Appeal is not pressed on merits, we are not inclined to discuss the evidence minutely, but we have perused the evidence, to satisfy whether prosecution had established it’s case? It has come on record that ASI Ahmed Ali Shar of P.S CTD Sukkur arrested the appellant on 28.12.2018 at 1500 hours on spy information, and in presence of mashirs / police officials recovered from his possession two pamphlets, on which “Support the Sipah-e-Sahaba and Shia Kafar” were written. PW-2 / mashir PC Abdul Qadir has supported the case of prosecution and deposed that ASI Ahmed Ali recovered two pamphlets from possession of accused, he acted as mashir and co-mashir was PC Sarwar Shah. SIO / Inspector Ali Nawaz conducted investigation and submitted challan against accused under Section 8/9, ATA, 1997. Trial Court has exhaustively examined and analyzed the prosecution evidence. The contents of the impugned two pamphlets are repugnant and abhorrent to say the least; too nauseatic to be reproduced; capable of causing most grievous offence; these contravene all the limits of decency, and obligation sanctimoniously upheld by every faith. Plain reading of Section 9, clearly shows that possession of inflammatory material by itself is an offence even before it is distributed. It is the matter of the record that appellant was red-handed and private persons were not present at the time of his arrest. Close scrutiny of the evidence of the police officials reflects that their evidence is trustworthy and confidence inspiring. The officials, who testified in the witness-box had seemingly no axe to grind. It is settled law that police officials are as good witnesses as any other and their evidence is subject to same standard of proof and principles of scrutiny as applicable to any other category of the witnesses. In absence of any animus, infirmity or flaw in their depositions, their statement can be relied upon without demur. Reliance is placed upon the case of Qari Muhammad Ishaq Ghazi v. The State (2019 SCMR 1646).

12. For the above stated reasons, we have no hesitation to hold that prosecution has succeeded to prove its case against the appellant. As Appeal is not pressed on merits, therefore, conviction recorded by the trial Court vide judgment dated 15.07.2019 is maintained, and Appeal is dismissed to that extent. So far sentence is concerned, learned DPG has informed the Court that appellant is not previous convict in the offences of such nature. Learned advocate for the appellant has argued that appellant is the sole supporter of the family particularly of old parents.

13. For the above stated reasons, sentence of five years R.I is reduced to two years R.I. Fine of Rs.15,000/- (fifteen thousand) imposed by trial Court is maintained. However, in case of the default, appellant shall suffer S.I for two months instead of R.I for two months. In the peculiar circumstances of the case, appellant would be entitled to the benefit of Section 382-B, Cr.P.C.

14. In the view of above, Appeal is disposed of in the above terms. Connected C. P. No. D-1074/2019 is dismissed as having become infructuous.

J U D G E

Abdul Basit