HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No. 159, 161 & 162 of 2017

Present

Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Maalik Gaddi

Date of Hearing : 14.11.2017.

Date of Judgment : 20.11.2017.

Appellants : Muhammad Abrar Khan and Adil Hussain appellants through Mr. Sohail Bhatti Advocate.

: None appeared for appellant Samad alias Abdul Samad

Respondent : The State through Mr. Mohammad Iqbal Awan Additional Prosecutor General Sindh.

Complainant : Through Mr. Mushtaq Ahmed Advocate.

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Muhammad Arslan, Samad alias Abdul Samad, Muhammad Abrar Khan and Adil Hussain appellants were tried by learned Judge, Anti-Terrorism Court-II, Karachi in Special Case No.B-311/2013 (FIR No. 419/2013 under Sections 385/387 PPC, 25-D Telegraph Act read with Section 7 Anti-Terrorism Act, 1997), Special Case No.B-312/2013 (FIR No.420/2013 under Sections 353/324/34 PPC) and Special Case No.B-313/2013 (FIR No.421/2013 under Section 23(1)(a) of Sindh Arms Act, 2013) registered at Police Station Taimuria, Karachi. After full-dressed trial, by judgment dated 30.06.2017, appellants Muhammad Arslan, Samad alias Abdul Samad, Muhammad Abrar Khan and Adil Hussain were convicted under Section 7(h) of Anti-Terrorism Act, 1997 and sentenced to 7 years R.I. Appellants Mohammad Arslan and Samad alias Abdul Samad were also convicted under Section 353 PPC and sentenced to 3 years R.I. Appellant Arslan was also convicted under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to 7 years R.I. All the sentenced were ordered to run concurrently. Benefit of Section 382-B Cr.P.C was also extended to accused.

2. Brief facts of the prosecution case as disclosed in the FIR are that complainant Abdul Qadir lives with his family at North Nazimabad. It is alleged that on 04.09.2013, one person gave an envelope to his guard. There was a chit in envelope in which demand of Rs.15,00,000/- as bhatta was made to complainant. It is alleged that there were two bullets of 9 MM pistol in said envelope. On the same day, a call was received by complainant from Cell No.0312-1070942 for bhatta. Complainant reported the matter to the police on 05.09.2013 at 9:54 pm. It is alleged that on 06.09.2013 at 0830 hours complainant received another call from Cell No.0312-1070942, caller asked him to reach with bhatta of Rs.15,00,000/- and in case of non-payment threat of dire consequences was issued. Thereafter, complainant went and lodged FIR bearing Crime No.419/2013 at PS Taimuria for offences under Sections 385/387 PPC, 25-D Telegraph Act read with Section 7 Anti-Terrorism Act, 1997. It is case of the prosecution that complainant contacted Sub Inspector Nisar Ahmed Qureshi and informed him that accused have demanded bhatta of Rs.15,00,000/- at place of incident. Thereafter, S.I Nisar Ahmed called Police mobile and told complainant that police would follow him. Complainant reached at Rashid Minhas Road, where he stopped his car. It is alleged that a motorcycle appeared on which two persons were sitting. As soon as accused took envelope from complainant, Sub Inspector asked accused to surrender, on which the accused fired at the police party. Police also fired in self defence. Police succeeded to apprehend one accused in injured condition whereas the other made his escape good. From personal search of the accused, police recovered one T.T Pistol 30 bore without number along with 3 bullets. Police also recovered bhatta amount and Q-Mobile along with Zong SIM. On inquiry, accused disclosed his name as Arslan and disclosed the name of his accomplice as Abdul Samad, who ran away from the place of incident. Police also seized the motorcycle used in the commission of the crime. 6 empties of 30 bore pistol and 3 empties of SMG were also recovered from the place of wardat. Memo of arrest and recovery was prepared at spot. Thereafter, accused and case property was brought at police station where separate FIRs were registered against accused on behalf of state.

3. During investigation, accused Samad alias Abdul Samad, Muhammad Abrar Khan and Adil Hussain were arrested. Accused Muhammad Abrar, Adil Hussain, Samad @ Abdul Samad were put into identification parade through P.Ws Fareed Ahmed, Syed Ali Mah Naqvi, Abdul Ahad, Complainant Abdul Qadir before concerned Judicial Magistrate. On the conclusion of the investigation, Challan was submitted against accused under the above referred Sections.

4. Trial Court amalgamated the aforesaid cases for joint trial in terms of Section 21-M of Anti-Terrorism Act, 1997.

5. Learned Judge, Anti-Terrorism Court-II, Karachi framed charge against the accused under the above referred sections on 20.01.2014. Accused pleaded not guilty and claimed trial.

6. At trial, learned Judge, Anti-Terrorism Court-II, Karachi examined seven prosecution witnesses. Thereafter, prosecution side was closed by learned DDPP vide statement at Ex.29.

7. Statements of accused were recorded under Section 342 Cr.P.C at Ex.63 to 66 respectively. Accused claimed false implication in the case and denied the prosecution allegations. Accused examined themselves on oath in disproof of the prosecution allegations. DWs Rafaqat Ali and Muhammad Maroof Khan were also examined in defence.

8. Learned Trial Court, after hearing the learned counsel for the parties and examination of the evidence available on record, convicted and sentenced the appellants as stated above, hence these appeals are filed. Appellants Muhammad Abrar, Adil Hussain and Samad filed aforesaid appeals, however, no appeal was filed by accused Arslan. By this single judgment, we intend to decide appeals and examine the conviction and sentence recorded against accused Arslan.

9. The facts of these cases as well as evidence produced before the trial Court find an elaborate mention in the Judgment dated 30.06.2017, passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

10. The extensive arguments of learned counsel for the parties are not recorded separately but the same shall be reflected in discussion.

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

12. We have come to the conclusion that prosecution has failed to prove its’ case against appellants for the reasons that all the pieces of evidence produced by the prosecution are weak in nature. According to the case of prosecution complainant had received threatening calls on his Cell No.0300-8293170 from Cell No.0312-1070942. After arrest of the accused Cell 0312-1070942 was not recovered from any of the accused. I.O in his cross-examination has replied that Cell No.0312-1070942 was in the name of Faheem, but I.O. did not bother to enquire/investigate about its owner during investigation. No efforts were made by the I.O to collect the record regarding ownership and use of said number from the concerned Network. It is the case of prosecution that before registration of the FIR envelope was given by accused persons to the guard of complainant for bhatta. Neither said guard was examined before the trial Court nor envelope was produced before the trial Court, only letter has been produced. There was nothing on record that letter/chit was in the handwriting of accused. P.W Syed Ali Mah Naqvi has been examined by prosecution who was also present at the time in house of complainant when chit was delivered to the guard. It is an admitted fact that said P.W was the friend of the complainant and was chance witness at relevant time. He had failed to disclose probable cause of his presence at the house of the complainant at the relevant time. According to the case of prosecution after encounter, one accused Arslan was arrested in injured condition. It is surprising to note that no injury/scratch was caused to the police office also. Both the accused were armed with weapons. After arrest of accused Arslan, live empties were also recovered from him. It is also surprising that one accused ran away after encounter though it was day time and there was police party consisting of six officials. It is unbelievable and unnatural that one accused ran away from the police. Efforts were not made by the police to chase/arrest him. It is also unbelievable that after arrest of injured accused, he disclosed the name of his accomplice and two more accused persons. No tangible evidence was collected against them. After arrest of the accused Abdul Samad, Muhammad Abrar Khan and Adil Hussain they were put to identification parade through P.Ws Fareed Ahmed, Syed Ali Mah Naqvi, Abdul Ahad, Complainant Abdul Qadir before Magistrate. We have perused the evidence of Magistrate, he has replied in the cross examination as under:

“The dummies were asked to stand in a row and both the accused persons were called and asked to stand in the line-up at any place of their own choice. Accused Adil stood at Sr.No.7 from the right side having beard.”

13. Judicial Magistrate further deposed that “It is correct to suggest that when I was conducting the identification parade of accused Abrar, Adil was sitting in the office.” Holding of a joint identification parade of multiple accused persons in one row has been disapproved by the Honourable Supreme Court in the case of Gulfam and another vs. The State (2017 SCMR 1189), as follows:-

“5. The prosecution had maintained that the present appellants had correctly been identified by the above mentioned eye-witnesses during a test identification parade conducted and supervised by a Magistrate but we note that the parade so conducted and held was a joint parade in which both the present appellants had been made to stand along with many other dummies. Holding of a joint identification parade of multiple accused persons in one go has been disapproved by this Court in many a judgment and a reference in this respect may be made to the cases of Lal Pasand v. The State (PLD 1981 SC 142), Ziaullah alias Jaji v. The State (2008 SCMR 1210), Bacha Zeb v. The State (2010 SCMR 1189) and Shafqat Mehmood and others v. The State (2011 SCMR 537).”

14. We asked learned Addl. P.G as well as Advocate for complainant to satisfy the Court about element of terrorism involved in this case. Addl. P.G half-heartedly replied that terror was caused to the family of the complainant. Mr. Mushtaq Ahmed Advocate for complainant argued that sense of terror was created by the accused when envelope was given to the guard of the complainant in which there was a chit for bhatta and bullets. He has argued that complainant felt insecure. Counsel for the complainant in support of his contentions has relied upon the cases reported as Muhammad Zeeshan alias Rasheed & another vs. The State (SBLR 2015 Sindh 45), Amjad Ali Vs. The State (2017 YLR 954) & Bahadur vs. The State (2014 YLR 742).

15. Record reflects that there was no evidence that his pistol was kept in safe custody at the police station and it was sent to the FSL with inordinate delay for which prosecution has no explanation. Defence plea has been raised that accused were arrested in other police encounter case and these cases have been foisted against them. It is stated that in that police encounter, accused have already been acquitted. We have also noticed that there was no blood at the place of incident. According to the case of prosecution accused had sustained fire arm injury. It is unbelievable that not a drop of blood was found at the place of wardat. Surprisingly, medical officer was also not examined by the prosecution for the purpose of corroboration of injuries sustained by the accused. We have no hesitation to hold that element of terrorism is lacking in this case. In the case of Sagheer Ahmed vs. The State and others (2016 SCMR 1754), it has been held by the Honourable Supreme Court that in the cases in which element of terrorism is missing, Anti-Terrorism Court has no jurisdiction to try such cases under the provisions of Anti-Terrorism Act, 1997. Relevant portion is reproduced as under:

“2. We have heard the learned counsel for the parties and have gone through the record.

3. High Court in the impugned judgment has observed as follows:

"10. The averments of FIR are silent regarding the financial status and source of income of the complainant against which accused have been demanding Bhatta. Complainant has also not disclosed the specific dates, times and places of demanding Bhatta by accused persons nor any such evidence was produced before the Investigating Officer to prima facie establish such allegations. In absence of any tangible material, mere allegations of demanding Bhatta do not attract section 6(2)(k) of Anti-Terrorism Act, 1997, in the present case nor said section was mentioned in the FIR and Challan. Perusal of Challan reflects that Investigating Officer had made a request to the Anti-Terrorism Court for return of FIR and other documents so that Challan may be submitted before the ordinary Court of law as no case under the provisions of Anti-Terrorism Act, 1997 was made out, but his request was declined by the Anti-Terrorism Court vide order dated 09.06.2014, and cognizance was taken by the Court.

11. Cumulative effect of the averments of FIR, surrounding circumstances and other material available on record have replicated that offence having been committed on account of previous old enmity with a definite motive. The alleged offence occurred at Faiz Wah bridge, which is not situated in any populated area, consequently, the allegations of aerial firing have not appeared to us to be a case of terrorism as the motive for the alleged offence was nothing but personal enmity and private vendetta. The intention of the accused party did not depict or manifest any act of terrorism as contemplated by the provisions of the Anti-Terrorism Act, 1997. Consequently, we are of the considered view that complainant has failed to produce any material before the Investigating Officer that at the time of occurrence sense of fear, panic, terror and insecurity spread in the area, nevertheless it was a simple case of murder due to previous enmity, thus, alleged offence does not fall within purview of any of the provisions of Anti-Terrorism Act, 1997. While probing the question of applicability of provisions of Anti-Terrorism Act, 1997, in any crime, it is incumbent that there should be a sense of insecurity, fear and panic amongst the public at large to invoke the jurisdiction of the Anti-Terrorism Court. Indeed, in each murder case there is loss of life which is also heinous crime against the society but trial of each murder case cannot be adjudicated by the Anti-Terrorism Court, except existence of peculiar circumstances as contemplated under sections 6, 7, 8 of Anti-Terrorism. Act, 1997."

4. We note that observation made by the High Court is based upon the record of the case and no misreading in this respect was pointed out before us. The submission of learned counsel for the petitioner that in evidence petitioner has brought on record sufficient material to substantiate the fact of demand of Bhatta in FIR that complainant party was doing business of brick kiln. There is no allegation in the FIR that complainant party was engaged in brick kiln business. Be that as it may, we find that High Court has rightly dealt with the matter and prima facie there is nothing on record to deviate from the same. The petition is, therefore dismissed and leave refused.”

16. Provisions of section 6 of Anti-Terrorism Act, 1997, from the evidence available on record are not attracted in this case. Mere fact that a crime for personal motive was committed in a gruesome or detestable manner, by itself would not be sufficient to bring the act within the meaning of terrorism or terrorist activities. Further, in certain ordinary crimes, the harm caused to human life might be devastating, gruesome and sickening, however, this by itself would be not sufficient to bring the crime within the fold of terrorism or to attract the provisions of Sections 6 or 7 of the Anti-Terrorism Act, 1997, unless the object intended to be achieved fell within the category of crimes, clearly meant to create terror in people and/or sense of insecurity. Rightly reliance has been placed upon the cases of KHUDA-e-NOOR versus THE STATE (PLD 2016 Supreme Court 195) and WARIS ALI and 5 others versus The STATE (2007 SCMR 1572).

17. Trial Court convicted Appellant Samad alias Abdul Samad and accused Muhammad Arslan under Section 353 PPC for 3 years R.I. Such sentence was erroneous as offence u/s 353 PPC is punishable upto 2 years or fine or with both. Trial Court had utterly failed to appreciate the evidence of police officials according to settled principles of law.

18. In this case, there are several circumstances in the case as highlighted above, which create reasonable doubt in the prosecution case. It is settled principle of law for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez vs. The State (1995 SCMR 1345), wherein the Honourable Supreme Court has held as under:-

“The concept of benefit of doubt to an accused persons 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 crates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as matter of race and concession but as a matter of right.”

19. In the view of above, we have come to the conclusion that the prosecution has failed to prove the aforesaid case against the appellant beyond any shadow of doubt. Therefore, we extend benefit of doubt to the appellant and allow Special Criminal Anti-Terrorism Appeals. Consequently, the conviction and sentence recorded by the Trial Court vide judgment dated 30.06.2017 are set aside. Appellants Samad alias Abdul Samad, Muhammad Abrar Khan, Adil Hussain & Muhammad Arslan are acquitted of the charges. Appellants Samad alias Abdul Samad, Muhammad Abrar Khan, Adil Hussain & Muhammad Arslan shall be released from custody forthwith, if they are not wanted in some other custody case.

JUDGE

JUDGE

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