HIGH COURT OF SINDH AT
KARACHI
Spl.
Cr. ATA No.84 of 2015
Present: Mr.
Justice Naimatullah Phulpoto
Mr. Justice Shamsuddin
Abbasi
Appellant: Arif
son of Juma Khan through Mr. Muhammad Farooq, advocate
Respondent: The State through Mr. Muhammad
Iqbal Awan, Deputy
Prosecutor General Sindh.
Date
of Hearing : 27.02.2018
Date of
Judgment : 08.03.2018
J U D G M E N T
NAIMATULLAH PHULPOTO, J.- This appeal is directed against
judgment dated 07.12.2013, passed by learned Judge, Anti-Terrorism Court-III,
Karachi, whereby appellant Arif son of Juman Khan was convicted under section 7(e) of the
Anti-Terrorism Act, 1997 and sentenced to imprisonment for life. Appellant was
extended benefit of section 382-B, Cr.PC.
2. Brief facts leading to the filing of
appeal are that on 23.08.2003 at 11:00 a.m. Mehboob
Ali (now deceased) left his house and reached at the shop of Muhammad Asif, situated at Old Haji Camp on his motorcycle where it
is alleged that he received a telephonic call on his cell No.03002161557. Mehboob Ali left the shop of Muhammad Asif
while informing that he was going to the house of Mst.
Uzma and after sometime it is alleged that Mehboob Ali telephoned to Asif
that he was in the hosue of Mst.
Uzma. At 11:00 p.m. complainant received a call from
the mobile of Mehboob Ali and informed to his family
about kidnapping of Mehboob Ali for ransom of
Rs.4,000,000/-. It is alleged that there were negotiations in between the
family of Mehboob Ali and accused perons. Finally, the family of Mehboob
Ali agreed to pay Rs.500,000/-. It is alleged that
relatives of Mehboob Ali, namely Asghar
Ali and Muhammad Akram went to Lyari
Expressway, the place settled for payment of ransom. It is alleged that a car
of the accused appeared on the Lyari Expressway where
Mehboob Ali was sitting in the car but his hands and
mouth were tied. It is further alleged that complainant party identified
accused persons. They were Orangzaib, Jehanzeb and Arif. Ransom Rs.485,000/- were paid to the accused in the car. Deceased was not
released. The relatives of the deceased were kept on false hopes that he would
be released after sometime. It is alleged that PW Asghar
Ali received a call that since they had paid Rs.15000/- less than the settled
amount, they would face the consequences. Thereafter, according to the case of
prosecution on 25.08.2005, photograph of deceased was published in newspaper
that an unknown dead body has been recovered by the police within the
territorial jurisdiction of police station Soldier Bazar. Thereafter,
complainant went to the police station and police informed that said dead body
has been handed over to Edhi Mortuary Sohrab Goth. Complainant Asghar
Ali went to the police station and lodged FIR, it was recorded vide FIR
No.10/2005, for offence under sections 365-A/302/34, PPC read with section 7(e)
of the Anti-Terrorism Act, 1997.
3. During investigation, accused Orangzaib was arrested. After usual investigation, challan was submitted against accused Orangzaib
under section 365-A, 302, PPC read with section 7 of the Anti-Terrorism Act,
1997. Accused Arif and Jahanzeb
were shown as absconders. Accused Arif and Jahanzeb were declared as proclaimed offender. Case
proceeded against accused Orangzaib.
4. Trial court after hearing
the learned counsel for the parties and assessment of evidence available on
record, convicted and sentenced the accused Orangzaib
vide judgment dated 04.12.2017 sentenced to death. Trial court made Reference
to this Court for confirmation of death sentence or otherwise.
5. Orangzaib filed Appeal No.13/2006 before this
Court. After hearing the learned counsel for the parties vide judgment dated
29.03.2010, death sentence of Orangzaib was converted
to life. Reference for confirmation was declined.
6. Appellant Arif
was arrested on 02.04.2007. Charge was framed against him by trial court at Ex-45, he pleaded not guilty and claimed to be tried.
7. At the trial of accused Arif, prosecution examined 9 PWs, thereafter, prosecution
side was closed.
8. Statement of accused Arif was recorded under section 342, Cr.PC
at Ex.61. Accused claimed false implication in this case and denied prosecution
allegations. Accused did not examine himself on oath in disproof of prosecution
allegations. No evidence in defence was adduced.
9. The
facts of the case as well as evidence produced before the trial Court find an
elaborate mention in the judgment dated 29.03.2010 passed by this Court in
Appeal No.13 of 2006 and, therefore, the same may not be reproduced here so as
to avoid duplication and unnecessary repetition.
10. Learned
advocate for appellant argued that case of appellant Arif
is identical to the case of co-accused Orangzaib
whose sentence has been converted by Honourable
Supreme Court to 383, PPC read with section 384, PPC. It is further contended
that case of appellant is even on better footing from co-accused Orangzaib. Mr. Muhammad Farooq
pointed out that appellant Arif has served sentence
including remission 11 years, 2 months and 20 days as per jail roll dated
03.08.2017. Lastly, submitted that sentence which appellant has already
undergone would meet the ends of justice. He has relied upon the judgment dated
04.12.2017 passed by Honourable Supreme Court in the
case of co-accused Orangzaib in Criminal Appeal
No.5-K/2012.
11. Mr.
Muhammad Iqbal Awan,
learned D.P.G., conceded to the contentions raised by learned advocate for the
appellant and argued that according to the prosecution evidence, appellant Arif, co-accused Orangzaib and Jahanzaib (absconder) were seen in car by PWs and received
ransom of Rs.485,000/- from complainant party .
12. After
hearing the learned counsel for the parties, we have scanned the entire
evidence.
13. In
this case, evidence of PWs Asghar Ali and Muhammad Akram was material for just decision of the case. Both have
deposed that deceased was picked up for ransom. Amount of Rs.500,000/- was finally settled. They went to Lyari
Expressway with cash of Rs.485,000/- for payment and
it was received by co-accused Orangzaib, Arif and Jahanzaib (absconder)
but they did not release/set at liberty abductee Mehboob
Ali and killed him for remaining amount of ransom. It is the matter of record
that accused Orangzaib was arrested during
investigation. After usual investigation challan
was submitted against him. Learned Judge, Anti-Terrorism Court-III, convicted
accused Orangzaib under section 7(e) of the Anti-Terrorism
Act, 1997 read with section 365-A, PPC and sentenced him to death. Co-accused Orangzaib was
also convicted under section 302(b), PPC and sentenced to death. Reference was
made to this Court for confirmation of death sentence.
14. Appellant Orangzaib
filed Appeal No.13/2006 before this Court. Vide judgment dated 29.03.2010,
death sentence of Orangzaib was converted to life
under section 365-A, PPC read with section 7(e) of the Anti-Terrorism Act, 1997.
Appellant Orangzaib filed Criminal Appeal No.5-K/2012
before Honourable Supreme Court. By judgment dated
04.12.2017, conviction and sentence of appellant Orangzaib
recorded by this Court were set aside and instead appellant Orangzaib
was convicted for offences under sections 383 read with section 384, PPC and he
was sentenced for the said offence to R.I. for 3 years, which sentence
appellant Orangzaib had already passed. Appellant was
also not burdened with any fine on the ground that he had spent more period of
imprisonment than was due. Relevant portion of the judgment reads as follows:-
“3. As
regards the offence under section 302(b), PPC the appellant had been acquitted
by the High Court. As far as the offence under section 365-A, PPC is concerned
it is admitted at all hands that there was no evidence led by the prosecution
showing that the appellant was involved in the act of abduction of the alleged
abductee. It is also not disputed that no evidence had been brought by the
prosecution on the record establishing that the appellant had demanded ransom
for release of the alleged abductee. Some evidence brought by the prosecution
on the record regarding making of telephone calls about ransom had been
discarded by the High Court after recording cogent reasons in that regard. It
is also not denied that the alleged abductee or his dead body had not been
recovered at the instance of the present appellant. The only evidence brought
on the record of the case against the present appellant was that when the
accused party had received the amount of ransom on that occasion the appellant
was driving the motorcar wherein the alleged abductee was kept in confinement
on the rear seat by the appellant’s co-accused. The prosecution had produced
two witnesses in support of such allegation and they were Asghar
Ali (PW6) and Muhammad Akram (PW8). Even if the said
allegations were to be accepted in its entirety the same would have attracted
the provisions of section 383, PPC pertaining to extortion entailing punishment
for the said offence provided in section 384, PPC. The case in hand,
particularly the allegation leveled against the appellant as mentioned above,
appears to be fully covered by illustration (b) mentioned in section 383, PPC
and such offence carries a maximum sentence of three years’ imprisonment. We have
been informed that Orangzaib appellant had been taken
into custody in connection with this case in the year 2005 and he is still
behind the bars. This shows that the appellant has already suffered
incarceration for a period of about 12 years whereas the maximum sentence which
could have been awarded to him for an offence under section 383, PPC read with
section 384, PPC was three years’ imprisonment. A sentence from Shakespeare’s
King Leare appears to be appropriate as far as the
predicament of the appellant is concerned according to which the appellant
appears to be a man “more sinned against than sinning”.
15. From
the close scrutiny of the evidence it appears that PWs Asghar
Ali and Muhammad Akram have deposed that Mehboob Ali was kidnaped for ransom. Accused contacted for
release of Mehboob Ali subject to the payment of
ransom. Accused demanded Rs.4,000,000/-, finally
Rs.500,000/- were settled. Above named PWs went to Lyari
Expressway for payment of ransom of Rs.485,000/-, when
they reached at Lrayi Expressway. A car appeared
there, it was stopped near the above named PWs and they saw accused Orangzaib, Jahanzaib and Arif, sitting in the car. Abductee Mehboob
Ali was also sitting in the car but his hands were tied. Both PWs paid Rs.485,000/- to accused but abductee Mehboob
Ali was not released as Rs.15,000/- were short of the settled amount. According
the case of the prosecution, Mehboob Ali was not
released as Rs.15,000/- were short of the settled
amount and the abductee was murdered. It may be mentioned here that the charge
of Section 302, PPC was not proved during appeal before this Court in Special
Cr. A.T. Jail Appeal No.13/2006. As the case of the appellant Arif is identical to the case of Orangzaib,
decided by the Honourable Supreme Court in Criminal
Appeal No.5-K/2012, dated 04.12.2017, conviction and sentence recorded against
appellant Arif son of Juma
Khan vide judgment dated 07.12.2013 are set aside and instead appellant Arif is convicted for offence under section 383, PPC read
with section 384, PPC and he is sentenced for the said offence to R.I. for 3
years, which sentence appellant Arif son of Juma Khan has already passed as reflected from jail roll.
As appellant has spent more period of imprisonment than due, therefore, he is
not burdened with any fine. Appellant Arif shall be
released forthwith if not required in any other case.
J U D G E
J U D G E
Gulsher/PS