HIGH COURT OF SINDH AT KARACHI
Special Criminal Anti-Terrorism Appeal No. 242 of 2017
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Zulfiqar Ahmad Khan
Date of Hearing
: 10.01.2018.
Date of Judgment : 10.01.2018.
Appellant : Umer Dhomki through Mr. Samiullah Soomro Advocate.
Respondent
: The State through
Mr. Mohammad Iqbal Awan DPG.
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- Umer Dhomki appellant
was tried by learned Judge, Anti-Terrorism Court No.X, Karachi in Special Case
No. B-813/2015. After full-dressed trial, appellant was found guilty vide
judgment dated 31.10.2017, he was convicted under sections 384/385/34 PPC, 25-D
Telegraph Act read with Section 7(1)(h) of Anti-Terrorism Act, 1997 and sentenced
to five years R.I. Appellant has been extended benefit of section 382-B Cr.P.C.
2. Brief facts of the prosecution case as
disclosed in the FIR are that on 30.06.2015 at 0015 hours, complainant Rasheed
Ahmed reported to Police Station NKIA, alleging therein that on 28.06.2015
inbetween 1200 to 2000 hours when he went to his factory, his watchman namely
Muhammad Ishaque son of Suleman handed over to him an envelope and informed
that three persons had come at his factory and handed over the said envelope
for him. Complainant opened the said envelope and found a chit there, wherein
name of the complainant was mentioned and those persons had demanded extortion
money of Rs.30,00,000/- from him. It was also mentioned in the said chit that
in case complainant loves his family and his business, he should pay said
amount, else he would face consequences. Thereafter, it is alleged that at 9:00
pm, complainant Rasheed Ahmed received a call on his Cell No. 0345-8222270 from
Cell No.0311-3289306. Caller introduced himself as Akhtar and enquired from
complainant whether he had received envelope or not. Caller issued threat that in
case of non-payment, complainant would be kidnapped along with his children.
Complainant went to the police station on 29.06.2015, where FIR was recorded
vide Crime No.239/2015 under Sections 384/385/34 PPC, 25-D Telegraph Act read
with section 7 Anti-Terrorism Act, 1997 against unknown persons.
3. After
usual investigation, challan was submitted against accused Umer Dhomki s/o
Allah Dino under above referred sections and his brother Meer @ Mir Muhammad was shown as absconder. Trial
Court after completing formalities against the absconding accused declared him
as proclaimed offender.
4. Trial
Court framed charge against accused under Sections 384/385/34 PPC,
25-D Telegraph Act read with section 7 Anti-Terrorism Act, 1997 at Ex.4. Accused pleaded not guilty and claimed his trial.
5. At
trial, prosecution examined five witnesses, who produced relevant documents to
substantiate the prosecution case. Thereafter, prosecution side was closed vide
statement at Ex.13.
6. Statement
of accused was recorded under Section 342 Cr.P.C at Ex.14. Accused claimed
false implication in the case and denied the prosecution allegations. In
question No. 7, “what else accused has to say”, the accused replied that he
used to work at complainant’s factory as Driver. Complainant did not pay him monthly
salary whenever it was demanded by the accused. Complainant issued him threat
of dire consequences in case he repeated demand of salary. On 17.05.2015,
accused submitted his resignation from his job and complainant kept him on
false hopes regarding his salary. Plea has been raised by accused that he was
making calls to the complainant on his cell phone for the payment of salary. On
20.05.2015, he had moved application against the complainant to Ayoub Goth
Chowki P.S Sohrab Goth and produced the copy of the application at Ex.14/A. Accused
declined to examine on oath in disproof of the prosecution allegations and did
not lead evidence in defence.
7. Trial
Court after hearing learned counsel for the parties and examination of the
evidence available on record, by judgment dated 31.10.2017, convicted and
sentenced the appellant as stated above. Hence this appeal is filed.
8. The
facts of the case as well as evidence produced before the trial Court find an
elaborate mention in the Judgment dated 31.10.2017 passed by the learned trial
Court, therefore, the same is not reproduced here to avoid unnecessary repetition.
9. Mr.
Samiullah Soomro Advocate for the appellant mainly contended that chit was
handed over to the watchman, but he has not been examined by the prosecution
before the trial Court as such best evidence has been withheld by the
prosecution. He has further submitted that I.O failed to recover SIM which was
used by the accused for making calls to the complainant. It is also argued that
SIM was in the name of the brother of the appellant and the appellant cannot be
held responsible for it. It is also submitted that no responsible officer of concerned
mobile network has been examined before the trial Court in order to ascertain
whether SIM in question was in the use during the period as mentioned by the
complainant in his evidence. Lastly, it is argued that antecedents of the
complainant have not been mentioned in the evidence to attract provisions of
Anti-Terrorism Act, 1997. In support of his contentions, he has relied upon the
case of Sagheer
Ahmed vs. The State and others (2016 SCMR 1754).
10. Mr. Mohammad
Iqbal Awan, learned DPG supported the judgment of the trial Court and argued
that all the prosecution witnesses have fully implicated the appellant. Learned
DPG further argued that prosecution witnesses had no enmity to falsely
implicate appellant in this case. However, it is admitted by the learned DPG
that SIM allegedly used by the appellant was not recovered by the police during
investigation. Learned DPG could not satisfy the Court as to why watchman was
not examined by the prosecution before the Trial Court.
11. We have
carefully heard the learned counsel for the parties and scanned the entire
evidence. We have come to the conclusion that prosecution has failed to prove
its case against the appellant for the reasons that according to evidence
available on record, chit was handed over to the watchman of the complainant.
Said watchman has not been produced before the trial Court. As such best
evidence has been withheld by the prosecution. Presumption can be drawn that in
case watchman would have been examined, he might not have supported the case of
prosecution. Appellant was arrested, but during investigation, SIM
No.0311-3289306 was not recovered from his possession. It has come on record
that said SIM was issued in the name of the absconding accused. I.O did not
bother to examine incharge of concerned mobile network in order to ascertain
the use of said SIM during the period in which calls were made to the
complainant. Even Network incharge was not examined before the trial Court. Element
of terrorism was also missing in this case. Antecedents/ business of the
complainant from whom huge bhatta was demanded have also not brought on record.
Appellant has been convicted under Section 384 & 385 PPC, but prosecution
has failed to establish at trial ingredients of Sections 384 & 385 PPC. At this juncture, it would be appropriate to refer
section 384 and 385 of the Pakistan Penal Code, which are as under:--
"384. Punishment for
extortion. Whoever, commits extortion shall be punished with imprisonment of
either description for a term which may extend to three years, or with fine, or
with both.
385. Putting person in fear
of injury in order to commit extortion. Whoever in order to the committing of extortion,
puts any person in fear or attempts to put any person in fear, of any injury,
shall be punished with imprisonment of either description for a term which may extend to two years, or with
fine, or with both.”
12. It is
mentioned that complainant in his evidence has no where deposed that accused has
put him in fear of injury and he has failed to substantiate the charge of
extortion through concrete or confidence inspiring evidence, only envelope was
given to watchman and call was made to the complainant. Thus, element of terrorism is clearly missing
in this case. Therefore, conviction under Section 7(h) of Anti-Terrorism Act,
1997 is not sustainable under the law. Unfortunately, trial court failed to
consider defence plea, which the accused has raised that he was serving as Driver
of the complainant and the complainant refused to pay him salaries and dispute
arose inbetween them. Accused made an application against complainant before
Ayoub Goth Chowki, PS Sohrab Goth on 20.05.2015 and produced its copy at
Ex.14/A, but this aspect of the case/defence plea was not considered by the
trial Court at all. The crucial issue of jurisdiction of Anti-Terrorism Court was
involved in this case, which is not addressed by trial Court. 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.”
13. In this case, there are numbers of
infirmities/lacunas, as highlighted above, which have created serious doubts in
the prosecution case. It is settled principle of law that 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 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 matter
of grace and concession but as a matter of right.”
14. For the above stated reasons, while
respectfully relying upon the above cited authorities, we have no hesitation to
hold that prosecution has failed to prove its case against the appellant beyond
any shadow of doubt. Benefit of doubt is extended to the appellant.
Consequently, Appeal is allowed, conviction and sentence awarded by the learned
Judge, Anti-Terrorism Court-X, Karachi vide judgment dated 31.10.2017 are set
aside. Appellant Umer Domki is acquitted of the charges. Appellant
Umer Domki shall be released from custody forthwith, if he is not wanted in
some other custody case.
15. These are the reasons for our short order
announced in the open Court on 10.01.2018.
JUDGE
JUDGE