HIGH COURT OF SINDH AT KARACHI

Criminal Anti-Terrorism Appeals No. 44 & 45 of 2017

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Khadim Hussain Tunio

Date of Hearing : 03.10.2017.

Date of Judgment : 13.10.2017.

Appellant : Asadullah Zubair through Mr. Mohammad Latifuddin Advocate.

Respondent : The State through Mr. Mohammad Iqbal Awan DPG.

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Asadullah Zubair appellant was tried by learned Judge, Anti-Terrorism Court II, Karachi in Special Cases No. 892 and 893 of 2016. After full-dressed trial, appellant was convicted under Section 7(h) of Anti-Terrorism Act, 1997 and sentenced to suffer five years R.I. Appellant was also convicted under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to suffer five years R.I. Sentences were directed to run concurrently. Benefit of Section 382-b Cr.P.C was also extended to the appellant.

2. Brief facts of the prosecution case are that complainant resides in House No.D-1, Sadat Colony Karachi. It is alleged that complainant found an envelope lying at his door on 08.05.2016 at 7:30 am. Complainant opened it, there were two chits in it. It is alleged that bhatta of Rs.100,000/- was demanded from him. Complainant was asked to put bhatta amount on the night of 10.05.2016 at his door, so that the same could be collected by culprit, who had sent envelope. In case of non-payment, threat of dire consequences was issued to complainant. Complainant Mohammad Akbar went to P.S Shah Faisal Colony at 10:00 pm and informed the SHO about the letters which he had received. SHO deployed police party in plain clothes to keep watch at the house of the complainant. Complainant had arranged Rs.50,000/- and at 1:30 am he kept Rs.50,000/- in black shopper outside the door of his house. At about 3:00 am, in night one person entered in the street and after 3 to 4 rounds, he picked-up the shopper, police apprehended him. On enquiry, he disclosed his name as Asadullah Zubair s/o Saleemuddin. From his personal search, police recovered 30 bore pistol with three rounds and from his left hand, recovered black shopper containing Rs.50,000/-. Accused had admitted that the pistol was unlicensed. Mashirnama of arrest and recovery was prepared at the spot in presence of the mashirs. Thereafter, accused and case property were brought at police station where FIR No.174/2016, under Sections 384/385/386 PPC read with Section 7 of the Anti-Terrorism Act, 1997 was lodged by complainant Mohammad Akbar Khan, whereas, another FIR bearing Crime No. 175/2016 under Section 23(1)(a) of Sindh Arms Act, 2013 was registered against accused on behalf of state.

3. After usual investigation, challan was submitted against accused under sections u/s 384/385/386 PPC read with Section 7 of the Anti-Terrorism Act, 1997 and under Section 23(1)(a) of Sindh Arms Act, 2013.

4. On the application of DDPP, joint trial of the cases was ordered in terms of Section 21-M of Anti-Terrorism Act, 1997.

5. Trial Court framed charge against the accused under sections 384/385/386 PPC, section 23(1)(a) of Sindh Arms Act, 2013 read with Section 6(2)(k) of Anti-Terrorism Act, 1997 punishable u/s 7(h) of Anti-Terrorism Act, 1997. Accused pleaded not guilty and claimed trial.

6. At trial, prosecution examined five prosecution witnesses. Thereafter, prosecution side was closed by learned DDPP vide statement at Ex.P/21.

7. Statement of accused was recorded under Section 342 Cr.P.C at Ex.22. Accused claimed false implication in the case and denied the prosecution allegations. Accused raised plea that he was picked up by the Law Enforcement Agency on 12.05.2016. Accused examined himself under Section 340(2) Cr.P.C and produced D.Ws (1)Saleemuddin, (2) Noreen Naz and (3)Adnan Rasheed in his defence. D.Ws raised plea that accused was picked up from his house and such application was submitted to the SHO PS Shah Faisal, but without any result.

8. Learned Trial Court, after hearing the learned counsel for the parties and examination of the evidence available on record, convicted and sentenced the appellant as stated above, hence these appeals are filed. By this common judgment, we intend to decide these appeals.

9. The facts of these cases as well as evidence produced before the trial Court find an elaborate mention in the Judgment dated 18.01.2017 passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

10. Mr. Mohammad Latifuddin learned counsel for the appellant mainly contended that ingredients of Sections 384/385/386 PPC and 7(h) of Anti-Terrorism Act, 1997 are not satisfied from the evidence available on record. Learned counsel further argued that Trial Court had no jurisdiction to convict the appellant u/s 7(h) of Anti-Terrorism Act, 1997 as element of terrorism was missing in this case. Different timings of throwing letters at the house of the complainant were given in the FIR and before Trial Court. Learned counsel further argued that there is overwriting in the mashirnama of arrest and recovery and in the FIR it is mentioned that pistol was without number, but in FSL report as well as mashirnama of recovery and arrest it has been mentioned that its’ number was rubbed. Learned Advocate for appellant has argued that prosecution case is doubtful and there are number of infirmities in the prosecution case and trial Court ignored it while appreciating the evidence. Lastly, it is contended that prosecution story was unbelievable as accused was armed with pistol containing live rounds but no resistance was offered by accused. In support of his contentions, he has relied upon the case of Sagheer Ahmed vs. The State and others (2016 SCMR 1754).

11. Mr. Mohammad Iqbal Awan, learned DPG argued that unlicensed pistol was recovered from the possession of the appellant. It is also argued that appellant was arrested at the spot when he picked-up the shopper containing the bhatta amount by the police, which was also recovered from the possession of the appellant. Lastly, it is argued that trial Court rightly appreciated evidence and convicted and sentenced the appellants in this case. Learned DPG opposed the appeals and prayed for dismissal of the same.

12. We have carefully heard the learned counsel for the parties and scanned the evidence. We have come to the conclusion that prosecution has failed to establish its’ case, mere allegation of demanding Bhatta through letters did not attract Section 6(2)(k) of the Anti-Terrorism Act, 1997. Complainant has admitted in his evidence that he had received letters, but clearly stated that no threat was directly issued to him by the accused. Letters which were thrown at the door of the house of the complainant were not sent for the opinion of the handwriting expert. No cogent evidence was available on record that those letters were written by the accused. Different timings of throwing letters at the house of the complainant have been given in the FIR and before the Trial Court. It has also come on record that father of the accused resides near the house of the complainant where accused used to visit the house of his father and plea has been raised that father of the complainant had evil eye upon the wife of the accused. Trial Court took the defence plea lightly and rejected it without assigning reasons. So far conviction of the appellant under Section 7 of the Anti-Terrorism Act, 1997 is concerned, as already we have mentioned that complainant has stated that no threat was given by the accused to the complainant directly. Element of terrorism is missing in this case. According to the case of prosecution, accused was arrested on 16.05.2016 by the police and from his possession pistol was recovered, but there was overwriting in the mashirnama of arrest and recovery produced before the Trial Court at Ex. P/5. So far the case of extortion of money is concerned, it would be appropriate to refer section 386 PPC, which is as under:-

“386. Extortion by putting a person in fear of death or grievous hurt. Whoever commits extortion by putting any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

13. There is no evidence that the accused person put complainant in fear of death or of grievous hurt and prosecution has failed to substantiate the charge of extortion through any concrete and confidence inspiring evidence. Hence the prosecution could not be said to have proved the extortion within meaning of penal section 386 of the Code.

14. So far as to the conviction under section 7(h) of A.T.A., 1997, it is manifest that the prosecution has not brought any material on record to establish that alleged act of the appellant demanding Bhatta was so designed that it can, otherwise, falls within the scope of Terrorism as envisaged under section 6 of the A.T.A. Therefore, it has been established that learned Judge, Anti-Terrorism Court had no jurisdiction to try such case. The learned counsel for the appellant has rightly relied upon the case case of Sagheer Ahmed vs. The State and others (2016 SCMR 1754), wherein the Honourable Supreme court has held 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.”

15. As regards to the conviction and sentence awarded to the appellant under Section 23(1)(a) of Sindh Arms Act, 2013 is concerned, according to the case of prosecution, accused was arrested on 16.05.2016 in presence of mashirs. Said mashirnama was produced before Trial Court and there was overwriting in the timings in mashirnama of arrest and recovery. Learned DPG conceded that there is overwriting and he could not give plausible explanation. Counsel for the appellant contended that appellant was ex-employee of the Rangers and he was falsely implicated in this case. The description of the pistol has not been mentioned only it is stated in the FIR so also in the evidence of ASI that it was reported that its’ number has been rubbed. It is observed that it is very easy to foist pistol with rubbed number pistol was not sealed at spot in presence of mashirs. We are unable to rely upon such type of evidence without independent corroboration particularly in this case, when father of the complainant was residing in the vicinity where the house of the complainant is situated. There is also another aspect in this case that accused was armed with pistol having live rounds, why appellant did not fire upon the police party to save him from his arrest. Even otherwise, prosecution story appears to be unnatural and unbelievable. There are material contradictions in the evidence of prosecution witnesses with regard to the date of receipt of the letters and other material particulars of the case. Learned DPG has admitted that it is not the case of terrorism then only remains recovery of the 30 bore pistol. No doubt evidence of police officials is as good as of private persons but in this case defence plea has been raised which carries some substance and trial Court ignored it without legal justification. Even otherwise, evidence of police officials in this case is neither straightforward nor trustworthy. We have several reasons to disbelieve it. 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 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 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 grace and concession but as a matter of right.”

16. In the view of above, we have come to the conclusion that learned Judge, Anti-Terrorism Court had no jurisdiction to try case of extortion of money. Moreover, prosecution has failed to prove the aforesaid cases against the appellant beyond any shadow of doubt. Therefore, we extend benefit of doubt to the appellant and allow Special Criminal Anti-Terrorism Appeals No. 44 and 45 of 2017. Consequently, the conviction and sentence recorded by the Trial Court vide judgment dated 18.01.2017 are set aside. Appellant Asadullah Zubair son of Saleemuddin is acquitted of the charges. Appellant shall be released forthwith, if he is not wanted in some other custody case.

JUDGE

JUDGE