HIGH COURT OF SINDH AT KARACHI
Special Cr. Anti-Terrorism
Appeals Nos.06 and 38 of 2015
Present: Naimatullah
Phulpoto, J.
Nazar Akbar, J.
Date of hearing: 09.04.2015
Date of
Judgment: 17.04.2015
Appellants: Muhammad Tahir S/o Muhammad Soomaar
through Mr. Jamroz Khan Afridi,
Advocate
Syed Imran Raza Rizvi S/o Syed Azadar Hussain through
Mr. Muhammad Mubarrak Shah Khan, Advocate
Respondent: The State through Mr. Muhammad Iqbal Awan, Assistant Prosecutor General Sindh.
J U
D G M E N T
NAIMATULLAH
PHULPOTO, J:- These appeals are directed against the judgment dated 22nd
January 2015, passed by learned Judge, Anti-Terrorism Court-I, Karachi in
Special Case No.A-26/2014, whereby appellants Syed Imran Raza Rizvi and Muhammad Tahir were
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/- each and in case of non-payment of
fine they were ordered to suffer S.I. for 6 months more.
2. Brief facts
of the prosecution case as disclosed in F.I.R. are that on 28.12.2013,
complainant Nisar Ahmed Khan lodged F.I.R., alleging
therein that on 24.12.2013 he was present at his house. At 2355 hours he
received a call from Cell No.0320-3512485. Caller told to the complainant that
a parcel was lying at the outer door of his house, thereafter, call was
disconnected. Complainant was disturbed, however, he
went to sleep. On 25.12.2013 at 09:30 a.m. he woke up and went to the car porch
and saw a cloth parcel lying near car. On a piece of cloth, head money of
Rs.500,000/- of complainant was written and further it
was written Jeay
Uzair Jan. On all the corners of parcel Jeay Lyari was written. Complainant opened the parcel, it contained two live cartridges of SG red coloured.
At 11:30 a.m. complainant again received a call from Cell No.03152026635 from
co-accused Imran. Complainant has stated that he was his driver in Shaheen Knitwear Company, when the complainant was its Manager Finance. On
24.12.2013 said Imran telephoned the complainant again and informed him that he
is serving in Steel Mills. Complainant told Imran about the parcel. Thereafter,
Imran came to the house of the complainant at 02:00 p.m. Imran told to the
complainant that same situation is prevailing all over the Karachi City.
Complainant expressed his intention to narrate the entire story to Base
Commander. It is further stated that Imran advised the complainant not to
disclose the facts to the police or any agency. Thereafter, Imran gave a call
to some person from house of the complainant. Thereafter, complainant received
a call from the said cell number. Complainant was abused and threats of murder
of his family were issued to him by means of grenade. Bhatta of Rs.2,000,000/- was demanded from
the complainant by the said caller but the complainant expressed his inability
to pay such huge amount, however, he prepared to make arrangement of
Rs.200,000/-, caller disconnected the call. It is alleged that on 27.12.2013
Imran made calls to the complainant that the person who had telephoned him for bhatta was
pressing Imran driver for such payment. On 27.12.2013 at 09:00 p.m. Imran went
to the house of the complainant but complainant was not present. Complainant
told Imran on mobile that he had made arrangement of Rs.125,000/-
and he would return back to home after making the arrangement of remaining
amount. Thereafter, complainant went to the police station and lodged F.I.R.
against driver Imran and an unknown person who had sent parcel to the house of
the complainant and demanded bhatta. F.I.R. was
recorded under sections 384, 385, 506-B, 34 PPC read with section 25 of the
Telegraph Act.
3. During
investigation, on 29.12.2013 police arrested both the accused person. From Accused
Muhammad Tahir one unlicensed 30 bore pistol with
loaded magazine containing five live bullets as well as mobile phones and SIMs
were recovered. From Accused Imran, 30 bore pistol with seven live bullets and
SIMs. Two live cartridges in parcel thrown at the door of the complainant were
sent to the Ballistic Expert by the I.O., positive report was received.
Investigation Officer also collected CDR of Cell Nos.0333-2412227,
0320-3512485, 0320-2026635 and 0311-7240692. After usual investigation, challan
was submitted against accused under sections 386/34 PPC read with Section 7 of
the Anti-Terrorism Act, 1997.
3. Charge was
framed against appellants Syed Imran Raza Rizvi and
Muhammad Tahir by learned Judge, Anti-Terrorism Court
No.I, Karachi at Ex.5 under
the above referred sections. To the charge, appellants pleaded not guilty and
claimed to be tried.
4. At the trial,
prosecution has examined the following witnesses:
(1)
PW-1 Complainant Nisar
Ahmed Khan at Ex.06
(2)
PW-2 Muhammad Haroon
at Ex.08
(3)
PW-3 Irfan
Ahmed Khan at Ex.09
(4)
PW-4 Faizan
Ali at Ex.10
(5)
PW-5 Tariq Ali at Ex.11
5. The
statements of appellants were recorded u/s 342 Cr.P.C at Ex.13 and 14.
Appellant Syed Imran Raza has denied the prosecution allegations and stated
that he has no knowledge about the present incident. Accused did not lead any
defence in disproof of prosecution allegations. In a question what else he has
to say in his defence, he replied that he has been falsely implicated in this
case. Accused Muhammad Tahir denied the prosecution
allegations and stated that he is innocent. In a question what else he has to
say, he replied that he has been falsely implicated in this case.
6. Learned
Judge, Anti-Terrorism Court No.I, Karachi on the
conclusion of trial and assessment of evidence convicted and sentenced the
appellants vide judgment dated 22.01.2015 as stated above.
7. We have
carefully heard the learned counsel for the parties and perused the evidence minutely.
8. Mr. Jamroz Khan learned counsel for the appellant Muhammad Tahir has argued that there was delay of four days in lodging
of the F.I.R. for which no plausible explanation has been furnished. At the
time of arrest and recovery no person of the locality was associated as witness
though it was thickly populated area. It is also argued that I.O collected call
data of the SIM which was used for calling the complainant, but it was not in
the name of the appellant Tahir. It is also argued
that there was no eye witness of the incident. One Waqar
son of complainant who had accompanied complainant to the police station has
not been examined. It is contended that parcel which complainant had received inside
the door of the house was in possession of the 04 days but immediately that parcel
was not produced before the police. Lastly it is contended that appellant Tahir admitted his guilt before CIA police such admission
is inadmissible in evidence.
9. Mr. Muhammad Mubarak Advocate for
appellant Imran contended that Imran was driver of the complainant and he had
made complaint against complainant on which services of the complainant were
terminated. It is also submitted that no grenade was used in the commission of
the offence. Prosecution story is highly unbelievable. In support of his
contention reliance has been placed on the case of Abdul Sattar
and others versus the State (2002 PCr.LJ 51).
10. Mr. Muhammad Iqbal Awan A.P.G. argued that
all the prosecution witnesses have fully supported the case of prosecution and
trial court has properly appreciated the evidence. It is contended that
appellant Tahir used SIM for calling complainant and
it was recovered from his possession. He supported the impugned judgment.
11. We have scanned the entire evidence. From
perusal of the evidence it transpires that incident had occurred on 24.12.2013
and F.I.R. was lodged on 28.12.2013 at 0130 hours. Delay in lodging of the
F.I.R. has not been fully explained. On the other hand, it has come on record
that complainant lodged F.I.R. with consultation of Commander. It has come in
evidence that nobody had seen while throwing parcel into the house of the complainant.
We do not understanding as to why parcel received by the complainant was
retained by him at home for four days. IO had collected call data of Cell No.
0320-3512485, the said SIM/number was used for calling the complainant but it
was not in the name of appellant Tahir. Prosecution
has also failed to examine Waqar son of complainant
who was with the complainant throughout the investigation. It has come in
evidence that appellant Tahir had confessed his guilt
during interrogation at CIA Centre. Such piece of evidence is inadmissible in
evidence. Appellant Imran has raised specific plea that he was ex-driver of the
complainant which fact has been admitted by the complainant. Appellant Imran
has leveled allegation that on his complaint, complainant was removed from his
service as such complainant was hostile towards him. Under these circumstances,
evidence of the complainant requires independent corroboration which is lacking
in this case. IO SIP Irfan Ahmed Khan has admitted
that had arrested accused persons on 29.12.2013 while he was on patrolling
along with his staff on spy information but arrival and departure entries have
not been produced by the I.O for the satisfaction of the Court. Such omission
cuts routs of the prosecution case as held in the case of Abdul Sattar and others vs. the State (2002 PCr.LJ
51), wherein it has been observed as under:
3. Admittedly, in neither of the cases in hand Roznamcha entry was
produced by the prosecution in order to prove that the police, in fact,
proceeded to the place of scene to recover the alleged weapons. This lapse on
the part of prosecution has cut the root of the case of prosecution, thus,
rendering the entire episode shrouded by doubt. This fact by itself was enough
to disbelieve the prosecution version. Reference can be made to the case of Fareed Ahmed Langra v. The State
reported in 1998 PCr. LJ 1368 and another Division
Bench judgment in Qalandaro's case reported in 1997
MLD 1632.
13. The concept of benefit of doubt to an
accused person 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 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, as held by the
Honourable Supreme Court in the case of Tariq Pervez versus the State (1995
SCMR 1345). In the present case, there are several circumstances as discussed
above, which create reasonable doubt in the prosecution case.
14. As a
result, therefore, of this unsatisfactory state of evidence in this case we
find several circumstances, which create doubt in the prosecution case. Rightly
reliance has been on the above cited authorities. We are unable to uphold the
conviction and sentence of the appellants Muhammad Tahir
and Syed Imran Raza Rizvi recorded by the trial Court
and by giving them benefit of reasonable doubt, set aside their conviction and
sentence and direct that they be set at liberty/released if not wanted in any
other case.
Appeal are
allowed in the above circumstances.
JUDGE
JUDGE
Gulsher/PA