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 it’s 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