HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No. 302 of 2018

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Date of Hearing : 23.05.2019

Date of judgment : 23.05.2019

Appellant : Muhammad Nawaz @ Nawazi through Mr. Rana Muhammad Ashraf Advocate

Respondent : The State through Mr. Farman Ali Kanasro Additional Prosecution General

JUDGMENT

NAIMATULLAH PHULPOTO, J. Muhammad Nawaz @ Nawazi appellant was tried by learned Judge, Anti-Terrorism Court No.1, Karachi in Special Case No.A-70 of 2014. On the conclusion of the trial, vide judgment dated 17.09.2018, appellant has been convicted under Section 7(h) of Anti-Terrorism Act, 1997 and sentenced to 05 years R.I with fine of Rs.50,000/-. In case of default, he was ordered to suffer 06 months S.I more. Benefit of section 382-B Cr.P.C was extended to him.

2. Brief facts leading to the filing of the appeal are that on 10.02.2014 at about 1600 hours, complainant Ch. Waheed Waqas Gujjar lodged FIR at Police Station Gulshan-e-Iqbal Karachi alleging therein that he was running bakery in the name and style of United Bakery situated in Waqas Market, Gulshan-e-Iqbal Karachi. In front of his bakery, in Madina Colony, Block 13-G, Muhammad Nawaz @ Nawazi s/o of Abdullah @ Daloo along with his two companions used to come at his bakery and were demanding extortion from the complainant. It is alleged that on 19.01.2014 at about 4:00 pm, appellant accused Muhammad Nawaz @ Nawazi along with his companion again came at the bakery of complainant and demanded extortion of Rs.10,00,000/- to which complainant expressed his inability to pay. It is stated that accused armed with pistol appeared and issued threats to the complainant that in case he failed to pay him amount, he along with family would be murdered. Thereafter, on the directions of the Ex-officio Justice of Peace, FIR bearing No. 60/2014 under sections 386/506-B PPC read with Section 7(h) of Anti-Terrorism Act, 1997 was registered against accused. After usual investigation challan was submitted against accused under sections 386/506-B PPC read with Section 7(h) Anti-Terrorism Act, 1997.

3. Trial court framed charge against accused Muhammad Nawaz @ Nawazi to which accused pleaded not guilty and claimed to be tried.

4. At trial, prosecution examined 05 prosecution witnesses. Thereafter, prosecution side was closed

5. Statement of accused was recorded under section 342, Cr.PC at Ex.13. Accused claimed his false implication in this case and denied the prosecution allegations. Accused did not examine himself on oath under Section 340(2) Cr.P.C in disproof of the prosecution allegations. He declined to examine any witness in his defence.

6. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 17.09.2018, convicted and sentenced the appellant as stated above. Hence this Appeal.

7. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 17.09.2018 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. Learned Advocate for the appellant has mainly argued that prosecution story was unnatural and unbelievable. It was day time incident but no hue and cry was raised by the complainant and that FIR was lodged after the delay of 22 days, for which no plausible explanation has been furnished by the complainant. He further argued that CCTV Cameras were installed in the bakery but I.O failed to collect its’ footage. It is also argued that it is unbelievable that appellant armed with pistol returned back from the bakery without snatching money from the complainant. It is also argued that wife of the complainant is the cousin of the accused and there is matrimonial dispute between the parties so also civil litigation. Lastly, it is argued that prosecution has failed to prove its’ case against the appellant. He has relied upon the cases reported as Muhammad Akram vs. The State (2009 SCMR 230) and Irshad Ali and others vs. Muhammad Shahid and another (SBLR 2014 Sindh 657).

9. Mr. Farman Ali Additional Prosecutor General half-heartedly supported the case of prosecution.

10. We have carefully heard the learned counsel for the parties and perused the evidence. It is matter of record that CCTV cameras were installed in the bakery, but I.O failed to collect the CCTV footage to produce the same before the trial Court. It is the case of the prosecution that accused was armed with T.T pistol and he demanded money from the complainant in the bakery but no circumstance is brought on record as to why accused returned back without snatching or taking away money from the complainant. There is no evidence that resistance was offered to the appellant at the time of incident. Apparently, it was safe target for the appellant for extortion of money but it is unbelievable that accused returned empty handed from the bakery. Soonafter the incident, the complainant did not go to police station for lodging of the FIR and it was recorded after 22 days. Delay in lodging of the FIR has not been fully explained by the complainant. During investigation accused was arrested but pistol, which he was carrying at the time of incident has not been recovered by the I.O. Investigation Officer had also not recorded statements of the shopkeepers, surrounding the bakery in order to satisfy the Court that incident had actually occurred. During investigation nothing came on record regarding involvement of accused in such offences like the present one. It is admitted by learned Additional Prosecutor General that wife of the complainant is the cousin of the accused and it is argued that there is matrimonial dispute between the parties and civil litigation is also pending. In these circumstances some independent evidence was required, which is lacking in this case.

11. There are several circumstances/infirmities in the prosecution case as highlighted above. It is settled law that it is not necessary that there should many circumstances creating doubts. If there is a single 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. Reliance is placed upon the case of TARIQ PERVAIZ vs. The STATE (1995 SCMR 1345).

12. Prosecution case is fraught with doubts. It would be unsafe to maintain the conviction in this case. Consequently, by extending the benefit of doubt to appellant Muhammad Nawaz @ Nawazi, Special Criminal Anti-Terrorism Appeal No. 302 of 2018 is allowed.

Appellant is acquitted of the charge. He shall be released forthwith if not required in any other case.

J U D G E

J U D G E