IN THE HIGH COURT OF SINDH AT KARACHI

 

SPL. CR. ANTI-TERRORISM APPEALS NO.16, 17 & 18 OF 2013

                         Present            : MR. JUSTICE SAJJAD ALI SHAH, &

                                         MR. JUSTICE SALAHUDDIN PANHWAR

 

Spl. Cr. A.T. Appeal No.16/2013

 

Appellants           :    (1)       Irshad Ali    

                                    (2)       Asif Ali.

                                     Through Ms. Asma Khan, advocate.

 

Respondents        :    Muhammad Shahid & another.

                                    Through Mr. Ali Haider Saleem, APG for the State.

 

Spl. Cr. A.T. Appeal No.17/2013

 

Appellant             :    Irshad Ali.               

                                    Through Ms. Asma Khan, advocate.

 

Respondents        :    Muhammad Shahid & another.

                                    Through Mr. Ali Haider Saleem, APG for the State.

 

Spl. Cr. A.T. Appeal No.18/2013

 

Appellant             :    Asif                           

                                    Through Ms. Asma Khan, advocate.

 

Respondents        :    Muhammad Shahid & another,

                                    Through Mr. Ali Haider Saleem, APG for the State.

…….

Date of hearing :    28.11.2013.  

 

Date of announcement     :           06.12.2013. 

 

 

J U D G M E N T

 

SALAHUDDIN PANHWAR, J :  Through instant judgment we intend to decide above captioned appeals, wherein appellants have assailed judgment dated 21st May 2013; passed by Anti-Terrorism Judge-III (South) at Karachi, in Special Criminal Case No.5(3), 6(3) and 7(3) of 2013, by which the appellants were convicted under section 7(h) of ATA 1997 R/w section 384, 385, 386 and sentenced to suffer penal servitude for 5 years with fine of Rs.10,000/- and further they were convicted under section 13(d) Arms Ordinance 1965 to suffer penal servitude of 3 years with fine of Rs.5000. The benefit of section 382-B Cr.P.C. was extended.

2.                                            Succinctly, prosecution case is that complainant Muhammad Shahid lodged FIR which reveals that on 29.12.2012, the complainant was present in his office alongwith Usama son of Mohammad Asif, who is Umra Consultant and at about 1645 hours, two persons Irshad son of Asghar Ali and Asif son of Abdul Rasheed entered into the office, delieverd a chit/Purchi of Bhatta of Rs.30,000/- to the complainant by threatening him on the force of weapon that arrange such  amount at once otherwise he would be killed. It was further alleged by the complainant that before this, these two persons had taken extortion money/Bhatta  twice, on Eid-ul-Azha an amount of Rs.10,000/- and in Muharram-ul-Haram an amount of Rs.6000/-. The complainant kept the accused persons, on the pretext of arranging extortion money/Bhatta, meanwhile  informed to the police, pursuant to that, police reached, apprehended them, and effected recovery pistols of 30 bore, along with bullets from fold of wearing shalwar. Consequently, report, regarding offences punishable under section 385/386/34 R/w section 7 of the ATA 1997 and two separate FIRs under section 13(d) Arms Ordinance were lodged . After usual investigation both accused were sent up for trial.

3.                                            The trial Court framed the charge against the accused/appellants, whereby they pleaded not guilty and claimed for trial.

4.                                            To substantiate the charge, prosecution examined following witnesses:-

(1)        PW-1 Mohammad Shahid as complainant of the case as Exh.5. He produced Mashirnama of arrest and recovery as Exh.5/A, statement recorded under section 154 Cr.P.C. as Exh.5/B, carbon copy of FIR as Exh.5/C, Mashirnama of place of incident and recovery of Purchies/Slips as Exh.5/D.

(2)        PW-2 Osama as Mashir of arrest and recovery as Exh.6.

(3)        PW-3 ASI Abdul Rasool was examined as Mashir of arrest and recovery as well as Mashir of recovery of motorcycle as Exh.7. He produced memo of pointation of place of incident and recovery of motorcycle as Exh.5/A.

(4)        PW-4 ASI Abdul Raheem was examined as Exh.8. He produced Roznamcha entries as Exh.8/A to 8/C respectively, carbon copy of FIR No.488/2012 and FIR No.487/2012 under section 13(d) Arms Ordinance as Exh.8/D and 8/E.

(5)        PW-5 Inspector Hameed Khan was examined as Investigating Officer of the case as Exh.9. He produced Rozanamcha entry as Exh.9/A, voucher and receipts as Exh.9/B to 9/D, receipt of Rs.30,000/- and three blank purchies/slips according to the seizure memo and copy of Excise & Taxation document of motorcycle as Exh.9/E & 9/F, Roznamcha entry No.10 as Exh.9/H, Entry No.20 as Exh.9/I, Entry No.28 as Exh.9/K, another letter as Exh.9/L and FSL examination report as Exh.9/M. Thereafter learned ADPP closed its side vide his statement recorded as Exh.10.

5.                                            Statements under section 342 Cr.P.C. were recorded, wherein they professed their innocence and preferred to examine two witnesses DW Altaf Ali and DW Moinuddin, as defence witnesses; thereafter side was closed.

6.                                            Learned counsel for appellants has, inter alia, contended that appellants are innocent and have been implicated with malafide intention in this case; no sufficient iota of evidence was available to award conviction to them hence judgment of the trial Court is completely departure from mandatory provisions of law; no offence of terrorism was made out, in-spite of that trial Court has convicted both of them under ATA Act; appellants have no criminal history and any nexuses with any terrorist organization therefore appellants are entitled for acquittal.

7.                                            Conversely the learned APG, while refuting the above contentions raised by appellants counsel argued that impugned judgment is in accordance with law; appropriate appreciation of evidence was undertaken by the trial Judge. The appellants have failed to point out any animosity regarding their false involvement and also failed to bring material contradiction in ocular as well as circumstantial evidence.

8.                                            Heard counsel, perused the record.

9.                                            After careful consideration and meticulous examination of the available record.  Suffice to say that  mere heinous nature of offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial. It is the settled principle of law that “burden is always upon the prosecution to prove the case beyond shadow of doubt” this principle, laid down in series of decissions,  falls within the doctrine of “stare decisis”, keeping in view this basic touchstone of criminal administration of justice, we have examined the ocular evidence as well as circumstantial evidence, along with impugned judgment.

10.                                       It would be conducive to examine the relevant portion of examination in chief of two eye-witnesses Muhammad Shahid and Osama  PW Shahid states :

PW-Shahid:

“On 29.12.2012 at about 04.45 PM, two persons namely Irshad and another name later on came in my knowledge as Asif came to me at my office situated at Plot No.52-P, Main Korangi road, Defence phase II Extn. Karachi and given me a ‘Parchi’ of Chanda of Rs.30,000/-. Prior to this they also came to me on the occasion of Eid-ul-Azha and Moharramul Haram and taken Rs.10,000/- on Eid-ul-Azha and Moharram-ul-Haram they came to me and demanded Rs.5600/- for donation of Haleem and received that amount. When 29.12.2012 when the accused persons third time came to my office thereafter we came under the pressure of accused persons as they demanded the said amount. I given the assurance to wait I will arrange the amount of Rs.30,000/- and I direct my employee Usama to inform the police. Due to chance one Mobile was passing from our office and same were patrolling. Usama has informed the police and they came to our office and apprehended the accused persons on spot.”

 

PW-Osama:

“On 29.12.2012, I was working in the Fatmeed Travelling Agency, where at about 05.00 or 05.30 PM, two persons came in our office. At that time I was sitting in the room of our Manager namely Shahid who is complainant in this case and demanded Rs.30,000/- and given the Parchi to the complainant and Shahid Bhai has given me signature [signal] for calling the police and Shahid Bhai also replied the accused to wait sometime I will arrange the money for you. When I came outside the office where I saw one Mobile of Police patrolling in the same area. I also informed the police in respect of the accused persons for demanding Rs.30,000/- forcibly. On that police has arrested both the accused persons on the pointation of Shahid.”

 

11.                                       While perusal of above examination-in-chief, it is manifest that both the witnesses have not deposed that they were put in fear of death or grievous hurt by accused/ appellants, and thereby they were compelled to provide extortion money(Bhatta). Plain reading reveals that witnesses say that both appellants twice came and got Rs.10,000/- and Rs.6500/- as Chanda, thereafter they again came and demanded Rs.30,000, forcibly . Further, admittedly, there is allegation that appellants were demanding Bhatta, but it is matter of record that no such proof in shape of any slip/parchi containg the demand of of bhatta was available with prosecution,though some slips/parchies regarding chanda, were produced by prosecution, but same are also lacking credibility, in this regard it is pertinent to refer the relevant evidence, complainant has stated in cross examination that:- “I have already produced those ‘parchies’ which were issued by the accused persons. It is correct that in parchi no crime and case number is mentioned…….. it is correct that envelop was not sealed but it was stappled by me with my signature on envelope. .  PW. Abdul Rheem(investigation officer has stated that “it is correct that I have not written the description of the parchi but 30,000/- amount was written on Parchi. It is not in my knowledge that who is the author of that parchi”. It is worth to add here that Legislature has given every single offence to its own independent definition. It is the definition which takes out one act from meaning / scope of one penal provision / section to other penal provision / section. Therefore, Prosecution is legally required to establish the ingredient(s) of that Penal provision / section. At this juncture, it would be appropriate to refer Section 386 of the Pakistan Penal Code, 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

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.”

 

 

12.                   The said witnesses of direct evidence have, nowhere, stated in their examination-in-Chief (s) as well as in cross-examination that the accused persons intentionally put them in fear of death or of grievous hurt and 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, which provides that it shall come into play where alleged extortion is by putting a person in fear of death or grievous hurt.   

13.                   So far as to the conviction under section 7(h) of ATA 1997, it is manifest that the prosecution has not brought any material on record to establish that alleged act of the appellants demanding chanda (BHATTA) was so designed that it can, otherwise, falls within the scope of  Terrorism as envisaged under Section 6 of the ATA. Candidly, nowhere it is claimed by prosecution that there was any threat to extort money, which might have created sense of insecurity amongst the masses on vast scale, or a particular area. Besides, it is matter of record that none of the witnesses stated that they even knew that the appellants were armed or the demand was by show of force or weapon.  The level of comfort shown by both the eye witnesses at the time of incident to the extent that one of the eye witness was allowed to leave the office while the appellants were kept waiting in the office by the second eye witness.  That aspect also, proves that the show of weapon or even threat, in instant case lacks and negates the basic ingredients of terror. Even, it is no where alleged that the appellants, at any time, offered any resistance or least attempted to use the allegedly recovered pistols at the time of their arrest. Moreover, it is not surfaced that accused persons were having nexuses with any organization, or any mafia involved in collecting extortion of money (Bhatta), thus the ingredient of “Terrorism are lacking in the case in hand; consequently conviction under section 7(h) is not maintainable under the law. Further, it would be advantageous, to refer case of Ch. Bashir Ahmad v. Naveed Iqbal and 7 others (PLD 2001 Supreme Court 521), wherein it is held that:-

"8.       A person would commit a terrorist act if in order to, or if the effect of his actions will be to strike terror or create a sense of fear and insecurity in the people, or any section of the people..." In the instant case as the facts of the case reveal, the alleged sprinkling of the spirit on the person of the victim was within the boundary walls of the appellant's house. It was not in public and, therefore, the element of striking terror or creating sense of fear and insecurity in the people, or any section of the people is not made discernible in the F.I.R. and for that matter on the record of the case as a whole. Similarly the perusal of the Schedule to the Act also indicates that the element of striking terror or creating sense of fear and insecurity in the people, or any section of the people by doing an act or thing by using bombs, dynamite or other explosive or inflammable substances etc. is a sine qua non for the attraction of the provisions of section 6 of the Schedule to the Act.”

14.       Reverting to the evidence, regarding alleged recovery  effected from appellants,  we have examined the evidence of PW Abdul Raheem who is investigation officer, he has deposed in cross examination that it is correct that body search of the accused persons were made in the presence of the complainant . Again says that body search was taken by me in presence of complainant at his office whereas complainant in his examination in chief has not  stated that recovery was effected in his presence, he has just disclosed that “I was busy to trace out the voucher which was given to me in respect of Bhatta and police was busy in the body search of accused persons and it is in my knowledge but some recovery has been effected from the possesion of accused persons. When police came at our office due to fear of police we sit towards some distance.” Further, investigation officer has contended in cross examination that “it is correct that memo of arrest and recovery was scribed by our Munshi and I only put my signature. At that time Munshi was called from police stateion……… ….It is correct that I have not written any description of the pistols but it is not necessary to written the description . on the other hand complainant has belied such statement and has stated that “The police officer has not took my signature on blank paper but he took my signatures on 5/6 papers which was perpared by IO in my office. PW. Osama(Mushir) in cross  has stated that…I have seen both pistols but I did not see any mark of identification on the said pistols.  Whereas Ballistic report negates the version of investigation officer as well as Mushir, and provides some discription, which is not matching with memo of recovery, hence report of fire arm examination (placed as Ex.9/M) makes this piece of evidence, even more doubtful, the description is given as under:-

one 30 bore pistol number F1345 with magazine now butt/body signed and three 30 bore live cartridges now marked as “A” recovered from Irshad Ali

One 30 bore pistol rubbed number with magazine now butt/body signed and three live cartridges as exhibits now marked as “B” recovered from Asif.  

     (Underline is provided for emphasis)

15.       While meticulous examination of evidence, it is patent that material contradictions, inter-alia, as highlighted above, reveals that witnesses are not steadfast with each other, on material points regarding recovery and thus creates serious doubt in prosecution case. It is settled principle of law that various circumstances are not required to extend the benefit of doubt to an accused, if a single circumstance is available which according to a prudent mind is sufficient to create a reasonable doubt in the prosecution case and thereby the veracity and the chastity of the prosecution case is rendered doubtful, then accused is entitled for the benefit of doubt as a matter of right and not a matter of grace. Reference can be made to the case of Muhammad Akram v. The State reported in (2009 SCMR 230), wherein it has been held that:-

 

"The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by the Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt. It was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind above the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

 

 

16.                    Accordingly, we are of the considered view that the prosecution has failed in establishing its case against the appellants’ beyond the reasonable shadow of doubt. In consequence thereof, impugned judgment dated 21st May 2013 cannot be sustained under the law, resultantly same is set aside. Appellants shall be released forthwith, if not required in any other custody case.

17.                    Appeals are allowed accordingly.

 

                                                                                                  J U D G E

 

 

                                                                                                  J U D G E

Imran/PA