IN THE HIGH COURT OF SINDH AT KARACHI

 

SPL. CR. A. T. APPEAL NO.43/2009

       PRESENT:    MR. JUSTICE SAJJAD ALI SHAH, &

                           MR. JUSTICE SALAHUDDIN PANHWAR

 

 

Appellant          :      Mohammad Saleem s/o Abdul Karim,

                                Through Mr. Irfan Aziz alongwith Mr. Nadeem Khan, advocate. 

 

Respondent      :      The State,

Through Mr. Ali Haider Saleem, APG.

 

 

Date of hearing    :   06.12.2013.

Date of judgment :   19.12.2013.

 

JUDGMENT

 

SALAHUDDIN PANHWAR, J. Through instant Special Criminal Appeal, appellant Muhammad Saleem has assailed judgment dated 22nd December 2009, passed by Anti-Terrorism Court NO.I, Karachi, in Special Case No.20/2009 (Re: the State vs. Muhammad Saleem), whereby appellant was convicted under section 365-A PPC r/w section 7-E of the Anti-Terrorism Act 1997 and sentenced to suffer life imprisonment, coupled with forfeiture of property to the extent of RS.200,000/- in default, one year further with penal servitude.  He was further convicted for an offence under section 13-D Arms Ordinance 1965 and sentenced to suffer 7 years imprisonment, with fine of Rs.5000.The benefit of section 382-B Cr.P.C. was extended to the accused.

2.                                            Succinctly, relevant facts as set out in the prosecution case are that on 06.02.2009 at 1710 hours complainant Faisal Kareem son of Abdul Kareem Aga Khani aged 24 years, resident of A-549, Block C, North Nazimabad, Karachi lodged report at police station Kalri, Karachi, wherein it is contended that “he is residing alongwith his family and having the business of curtains under the name of Abdullah Curtain, situated at Machhi Miani Market, Kharadar, Karachi, where his younger brother Rizwan Ali son of Abdul Karim aged 23 years is also working. The complainant further stated that on 03.02.2009 at 3.0 p.m. his younger brother Rizwan was present at the shop, meanwhile one lady in veil (Burqa) entered into shop, who was speaking Urdu fluently and discussed about curtains; he (complainant) showed her designs and after selecting cloth for curtains, she enquired from him about Rizwan on which he introduced her Rizwan. That lady addressed to Rizwan and tried to remind him that he had fixed curtains at the house of her mother, on which Rizwan replied that he did not bear in mind. The complainant disclosed that in his presence that lady asked Rizwan to come at her house for measurement of curtains, by giving her mobile phone No.0343-2012939 and further asked Rizwan to come at Crown Cinema and contact with her, from where her son would take him. Thereafter, Rizwan remained busy in his work. After one hour the same lady phoned at the number of shop, i.e. 2202384, three and four times and mentioned that she had asked him to reach at 4.00 pm but he had not come yet and her son has to go for tuition, whereby complainant disclosed that Rizwan is doing some piece of work near Nakhuda Masjid. When, at 6pm,Rizwan reached at shop, complainant informed him, thereafter he went towards Crown Cinema on his motorcycle No.KBV-8785, make Unique Black colour. The complainant further stated that at about 6.45 pm he contacted his brother Rizwan from his mobile No.0300-3454612, on his mobile No.0331-2178296, and inquired from him that “why he has not returned yet”, on which Rizwan replied that “his motorcycle is out of order” and again the complainant contacted him at 7.00 pm and his brother Rizwan replied that the “mechanic is creating problem, thus phone him later on”. Thereafter the complainant continuously tried to phone his brother Rizwan, but he was disconnecting the same. The complainant sent messages on mobile to his brother Rizwan but not received any response. The complainant further alleged that at 9.10 pm his brother Rizwan, contacted with him on his mobile, and informed him that “he has been kidnapped hence he kept the mobile phone off”. On same day at 11.00 pm one kidnapper contacted with the complainant on his mobile phone from mobile phone of his brother Rizwan who was speaking Urdu fluently and asked him that “his brother Rizwan Ali is in their captivity, if they (complainant party) want his life, then arrange 50 petties, otherwise he would send him (Rizwan) in gunny bag”. The complainant further disclosed that he was receiving continuously calls from the culprits on his mobile phone from mobile phone of his brother kidnapee Rizwan and the kidnapper was demanding ransom from the complainant and such report was given by the complainant to CPLC on 03.02.2009.

3.                                            The record further reflects that investigation was assigned to Malik Muhammad Nawaz of AVCC. During investigation statements of witnesses under section 161 Cr.P.C. were recorded, mobile data of relevant numbers was also collected and on receiving a tip-off, investigating officer effected recovery of kidnapee Rizwan Ali Rana from a hut situated on Hawks Bay and appellant was arrested alongwith 30 bore pistol containing 6 bullets, whereas 2 culprits who were guarding the kidnapee, escaped from the scene. Thereafter accused and property were brought to police station, separate F.I.R under section 13-D Arms Ordinance was lodged and present accused was sent up for trial.

4.                                            To substantiate the charge prosecution examined PW-1 Faisal Abdul Karim as Exh.5 who produced FIR No.45/2009 as Exh.5/A, Memo of inspection of place of incident as Exh.5/B. Thereafter PW-2 Rizwan Abdul Karim was examined as Exh.6 who produced memo of recovery of abductee, pistol, bullets, ropes and personal search of accused as Exh.6/A, memo of pointation of place of kidnapping as Exh.6/B. Then PW-3 Salman examined as Exh.7, PW-4 Hussain Al;-Nasir was examined as Exh.7. Thereafter PW-5 SIP Ali Muhammad was examined as Exh.9 and then HC Lal Hussain Shah examined as Exh.10, who produced memo of recovery of mobile phones record as Exh.10/A and then PW-7 Inspector Ch. Manzoor Ahmed examined as Exh.11 who produced carbon copy of FIR No.10/2009 as Exh.11/A, request letter addressed to SSP AVCC Karachi as Exh.11/B, chemical examiner’s report as Exh.11/C. Finally prosecution examined PW-8 Inspector Malik Muhammad Nawaz as Exh.12 who produced order of SSP AVCC as Exh.12/A, carbon copy of announcement letter as Exh.12/B, letter addressed to SSP AVCC as Exh.12/C, Roznamcha entry No.46 dated 23.02.2009 as Exh.12/D, letter addressed to incharge CPLC regarding mobile phone record as Exh.12/E, mobile phone record from Exh.12/F-1 to Exh.12/F-78, Roznamcha entry No.52 dated 23.02.2009 as Exh.12/G and interrogatory statement of accused as Exh.12/H and thereafter learned Special Public Prosecutor given up PWs Inspector Raja Muhammad Amjad, HC Falak Sher and Mubeen Qasmani vide statement Exh.13 and closed prosecution side under statement Exh.14.

5.                                            After conclusion of prosecution side statement under section 342 Cr.P.C, of accused Muhammad Saleem was recorded, wherein he professed his innocence and pleaded that he had enmity with the complainant party, against whom his salary amount Rs.2,40,000/- was outstanding and thus due to such demand they implicated him in instant false case. However he did not examine himself on oath nor led any witness in defence.

6.                                            Learned counsel for appellant, inter- alia contended that instant case is false and result of private dispute between appellant and complainant party; FIR is delayed about 3 days without any plausible explanation; it is strange that even on same day huge ransom was demanded from the complainant in-spite of that he did not bother to approach concerned police station and record his statement hence such delay is sufficient to cause dent in prosecution case; admittedly appellant was employee of complainant party therefore it is unbelievable that at the time of alleged kidnapping he did not try to hide his identity; though victim has supported prosecution case but such evidence is not credible and within the parameters of evidence as settled in criminal jurisprudence. He further contended that it is not a case where ransom was paid, even no one has seen the incident of abduction except abductee; instant case is based on recovery of abductee and arrest of accused, hence only this piece of evidence is against the appellant, but manner of recovery and arrest of accused is completely doubtful. Material contradictions were available on record which are sufficient to extend the benefit of doubt to the applicant but such concession was not extended in his favour. The recovery of abductee and arrest of accused is also doubtful on the ground that no encounter had taken place between police party and the kidnapers, though they were armed with weapon, even it is not claimed by prosecution that police officials caused any fire shot in order to succeed to their mission, especially when it has come on record that only three police officials, on receiving spy information proceeded, alongwith spy and mashir to recover the abductee, who was in captivity of three armed bandits. In support of contentions he has relied upon cases of Sikandar Shah v. Din Muhammad and 2 others [2004 PCr.LJ 1146], Tariq and 2 others v. The State [2013 PCr.LJ 1786], Shahid alias Aamir and another v. The State [2011 YLR 2238], Muhammad Aslam and 3 others v. The State [2008 SCMR 1040] and Nadeem Akhtat V. The  State [2009 PLJ Cr.C. 1087].

7.                                            Conversely, learned APG contended that sufficient evidence was brought by the prosecution and recovery was effected in presence of private witness; appellant has failed to prove the plea of alibi; solitary statement is sufficient to award conviction; delay in this case is not fatal to the prosecution; section 103 crpc is not applicable in instant case,  therefore impugned judgment is in accordance with law and no other inference can be drawn from the material except to maintain the said judgment. He has relied upon cases of Imran Ashraf and 7 others v. The State [2001 SCMR 424], Rahim Shah V. The State [2004 PCr.LJ 1129], Muhammad Aslam v. Additional District Judge, Kot Addu [YLR 2005 43]; Anwar Shamin and another v. The State [2010 SCMR 1791] and Elahi Bakhsh and others v. The State [2005 SCMR 810].

8.                     Perusal of the record shows that the alleged abduction is an unseen incident and except the evidence of alleged abductee there is nothing with prosecution to substantiate the allegation of abduction. We are quite conscious that cases of abduction revolve round the abductee therefore, the conviction can well be awarded on solitary statement of the abductee but requirement of law would be that it should not only be direct and natural but should stand to reasons and logic and appeal to common human experience or be fitted in given circumstances.

9.                     After scanning of whole evidence, suffice to say that, it is an admitted position that the appellant Saleem was known to the complainant party as he had worked at the shop of complainant party for 2 and half years yet the perusal of the evidence of abductee would show that at no material times the appellant Saleem tried to conceal his identity rather evidence of abductee goes to suggest that appellant Saleem was deliberately letting the abductee about his active involvement in alleged abduction of the abductee Rizwan. For making this clear the relevant portion of examination-in-chief of abductee, wherever he named appellant Saleem, are reproduced hereunder:-

i)                         “…….and at same time one Hi-roof vehicle came on my back side, the driver  was sitting on his seat and three other person were sitting on back seat, the door of Hi-roof was opened and one person came down, out of three one was present accused Saleem, he was armed with pistol and on point of weapon they put me forcibly in the Hi-roof”

ii)                      “When I open my eyes I saw accused Saleem was there with other two culprits and I requested Saleem that why they have brought me here and what they want what is there (their) demand”

iii)                   “I requested accused Saleem for God sake, if there is any demand he should contact my family. Thereafter, Saleem asked me that he is contacting then he left the place”

iv)                     “I was kept at that place for 10 days and they were making calls to my brother for payment of ransom, after 10 days the accused shifted me to other places. Accused Saleem was not present at that time.”

 

It has never been claimed by the prosecution that either appellant Saleem himself contacted with complainant party or himself demanded any ransom from complainant which is further evident from admission of complainant when he admitted in his cross-examination that “It is correct that when accused used to talk with me on telephone I was recognizing his voice on telephone. It is correct that since 03.02.2009 to 20.2.2009, accused Saleem never telephoned me on the telephone of my brother. It is correct that my brother was talking with me on his mobile phone.” It is quite surprising that at one part of the story, the appellant Saleem was even avoiding to give a single gesture of his involvement in alleged abduction while in other part of the same story he was deliberately exposing his identity to be known. It is worth to add here that it is claimed by the complaint that abductee Rizwan was in contact with him during the period captivity; even then, why he did not inform him that accused Saleem has abducted him, or what were the circumstances which were not permitting to him about disclosure of the name of accused/appellant, in this regard both witnesses have not uttered any single word  to justify such non-disclosure. Further, appellant Saleem has not been alleged to be on some serious enmity with complainant party rather it is an admitted position that during alleged detention of 20 days the abductee was kept in such circumstances that he was neither ailing nor needed any medication/treatment, which is evident from cross-examination of PW Hussain Ali Al-Nasir that “It is correct that when my brother was recovered he was not ailing, but he had some marks of ropes on his wrists. It is correct that my brother was not treated by any doctor after recovery”. Such attributed allegation against appellant Saleem, being entirely against human experience and conduct, neither fit in the given circumstances nor appear to be confidence inspiring. In a case of ‘Muhammad Tufail v. The State reported as 2013 SCMR 768, the honourable Supreme Court while dealing with identical situation held that:-

“7.       The abduction for ransom is, no doubt, a very serious   charge. There are many factors on, off and behind the scene. In any case the actor who is already known and takes caution and pre-caution to conceal his identity. Else he has to face the scourge of charge after release of the abductee on payment of ransom. The story that the appellant identified the abductee so called as the person desired to be abducted neither agrees to truth, nor conforms to common human experience and observations nor fits in with the surrounding circumstances. Who paid the amount of ransom, who received it, what evinced and who mentioned the complicity of the appellant in the crime are the questions which find no answers from the evidence on the record. The complainant or for that matter any other person, may have suspicion as to the complicity of the appellant in the crime but suspicion however strong it may be cannot take the place of truth.”

 

10.                   Now, we would like to examine the other part of the prosecution case i.e recovery of the abductee and arrest of the appellant by the police. Here the operative part of the evidence of the abductee is reproduced hereunder:

This was day time and when at the night time suddenly police surrounded the Hut and two persons who were guarding me ran away,Saleem took out pistol and pointed it on my head. Meanwhile police entered in the Hut and arrested accused Saleem and recovered pistol from him”.

 

The above piece of evidence of the abductee shows that the appellant Saleem alongwith two other persons was inside the hut at such time. At this juncture, let’s see what the PW Hussain Ali Al-Nasir (alleged eye witness of such recovery of abductee and arrest of appellant Saleem) says about the scene. For a comparative examination the relevant portion of examination-in-Chief of such witness is reproduced hereunder:-

“Thereafter informer disclosed to I.O a place which was old Hut type room at Hawks bay, police surrounded that room at about 8.00 pm to 8.30 pm and in the light of tourch (torch) police saw a boy whoes [whose] hands and feet were tied with the rope and later on we saw that he was Rizwan. There was an accused namely Saleem and police directed him for hands up. Police recovered pistol containing five bullets in the magazine and one in the chamber. There were two other persons standing behind the hut and they escaped away”

 

 Whereas, PW Inspector Malik Muhammad Nawaz (who headed such recovery proceeding) say about such part of evidence. For that the relevant portion of his examination-in-chief reads as under:-

“…where the spy pointed out the hut situated at Hawks Bay near Sea-coast, there we saw in the old hut a young boy whose hands and feet were tied with the ropes inside the hut and a person was guarding him outside the hut. He was armed with the pistol and two other persons were standing at some distance and they made their escape good from there”

     (Underlining is provided for emphasis)

The reading of the above portions of the evidence of above witnesses leaves nothing doubtful that these witnesses neither support each other in respect of :

i)                  manner of presence of accused persons (three alleged culprits) at such place;

ii)               the position (s) of alleged culprits;

iii)            the manner of proceedings of the police party because had they encircled the old type hut there should not have been such an easy escape of two culprits;

iv)              inside situation of the hut on entrance of police party;

 

11.                   Besides, this it also does not appeal to common sense that police party, which allegedly had surrounded the hut and even had seen the two escaped culprits, but they did not make any attempt to arrest them nor even bothered to make a single aerial fire to show their intention of arrest rather let them make escape easily in surprising manner, particularly when those (two culprits) are not alleged to be armed with any weapon at such time.

12.                   So far as to the evidence of prosecution regarding recovery of abductee and arrest of the accused, it would be conducive to examine the manner of proceedings of the police party for such place. For this PW Malik Muhammad Nawaz Inspector stated that:

“On 23.2.2009 I received the spy information that abductee is in the captivity of accused in a hut at Hawks Bay. And he can point out that place. I informed about this information to my high officials and meanwhile P.W Hussain Al-Nasir also came at the office of AVCC. I took PW Hussain Al-Nasir and other police officials Inspector Raja Muhammad Amjad, HC FalakSher, PC Lal Hussain Shah and made the entry No.46 at police station AVCC for leaving the police station to the place of captivity.”

                        It is believed and expected from a trained police official (Inspector) that on receipt of such information he should immediately leave for such place alongwith sufficient police aid to tackle any situation at such place but he proceeded with three police officials only. Not only this but he not only calls PW Hussain Al-Nasir but waits for his arrival, that is evident from cross-examination of said witness that “On 23.02.2009 I was called by I.O at AVCC office at about 5.00 or 6.00 pm. I left AVCC office at 7.00 p.m. I went to AVCC office in police mobile, Malik Nawaz, Rana Amjad and one other person were in the mobile van”. Thus this portion of prosecution story also does not appear to be fitting in such given circumstances.

13.                   Further, there is also a delay of three days in reporting the matter. We are quite conscious that in matter (s) of abduction for ransom the parents as well as police invariably try their best to locate the victim rather than promptly lodging the FIR for fear of death of victim hence delay, in such like matters, is not always fatal. However, the prosecution has to give some explanation or least circumstance for such delay in not intimating / reporting the matter to police. The news of abduction of a blood-relation should result in disturbing the routine of one but in the instant case following admissions on part of the complainant speaks other or least give rise to presumption adverse to normal behaviour of an ordinary person:

i)                  It is correct that from 3rd February 2009 to 22.2.2009 the shop was continuously open”

ii)               It is correct that I have not mentioed this fact  in the F.I.R or in my 161 Cr.P.C statement that I was mentally disturbed so I lodge the FIR with delay of three days.

iii)            It is correct that I had not reported at any police station about missing of my brother from 03.02.2009 to 6.02.2009 I had not reported at any police station.

14.                   The victim claimed that he was continuously kept confined for 20 days under arms and threats; during such period he was kept on liquid food and some time he was not provided any food; and on night of 23.2.2009, he was recovered in result of a police effort but surprisingly he needed no medical treatment nor rest as he (victim) on very next morning went to his shop as is evident from his examination-in-chief that “On next day my friends and known people came on my shop to inquire about my safe release and on that day at 6.00 pm I.O came there ……..I showed the place of wardat to police.” Such behaviour is not only against the normal behaviour of an ordinary man but also cannot be believed medically that a 20 days confinement and living on liquid food or some time no food would not bring any effect upon physic and health of that person.

15.                   It is also evident from the Mobile data that alleged lady, who came at shop, and supplied her number was called by victim at 4.50 pm, therefore, when alleged lady herself had come in direct contact with victim then claim of complainant in F.I.R that said lady was making phone call to him, on shop number, does not appear to be reasonable. Since it is not a disputed position that appellant Saleem never came into contact with complainant party hence such mobile data also of no help for prosecution against appellant rather causes a dent towards truthfulness of complainant.

16.                   As regard the recovery of weapon the following contradictions on part of the PWs Inspector Malik Muhammad Nawaz, Hussain Al-Nasir, and CH. Manzoor Ahmed would leave nothing ambiguous that this piece of evidence is entirely unbelievable.

PW. 4 (Mushir) Hussain Al-Nasir:

i)                  It is correct that memo was not read over to me and police obtained my signature. It is correct that I had not read myself the memo. It is correct that the pistol was not recovered in my presence from the accused ;

ii)               It is correct that I did not see any person while running at the place of recovery ……..The police was writing some papers and they asked me to put my signature on it , but I do not know about paper work . I was not examined by police. I was showed pistol and magazine the police.

iii)            I did not see that police prepared any sketch of pistol on the paper I do not know what is written on it. I do not know that pistol was broken. The pistol present in the court is broken from handle side;

iv)              It is correct that police did not ask any private person to be a witness of this case;

v)                 I do not know that the police has foisted the pistol upon the accused.

 

PW Inspector Malik Muhammad Nawaz (complainant in 13-D as well as investigation officer in main case):

i)                  It is correct that I have not mentioned in seizure memo or in statement of mashir that the handle of pistol was broken;

ii)               It is correct that I have not mentioned the number of pistol in seizure memo;

iii)            It is correct that words Marsina are mentioned on the pistol;

                                    PW.07 CH. MANZOOR AHMED( Investigation Officer in 13-D):

i)                  I see the pistol it is not containing any number but some words are mentioned on it , which are STR Baresena. It is correct No. AGL -768 is mentioned. It is correct that handle of the pistol is broken. It is correct that number of pistol is not mentioned in the memo as well as it is not written that handle is broken 

The relevant portion of fire arm examination report (placed as Ex.11/C), is as under:

one 30 bore pistol w/o number now butt/body signed with magazine and six 30 bore live cartridges as exhibits.

OPINION: The examination of case has revealed as under:

1.      The presence of gun powder residue in the barrel of the above mentioned 30 bore pistol w/o in question has revealed that fire has been made through it.

It does not speak that examination was done of the pistol which was broken at its handle and such report further reflects that fire has been made through it; it is strange that prosecution nowhere has claimed that any face-off with kidnappers was taken place, or during abduction period appellant caused any fire from that pistol thus it is patent that this circumstantial piece of evidence creates doubt regarding alleged recovery of pistol as well as ocular version.

17.                   It is settled principle of law that the Safe Criminal Administration of justice rests on principle of benefit of doubt which demands that benefit of doubt be extended in favour of accused as held by honourable apex Court in the case of Tariq Pervez v. The State 1995 SCMR 1345, relevant portion is as under:-

         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."

 

18.                   It is worth to add here that for all reasons, it is true to say, with doctrine of stare decisis that “a miscarriage of justice may arise from the acquittal of the guilty, no less from the conviction of the innocent”

19.                   As, discussed above it is quite clear and obvious that prosecution entirely failed in establishing the charge against the appellant beyond reasonable doubt. Accordingly, we accept the appeal and in consequence whereof the judgment of conviction of learned trial court judge is hereby set-aside and the appellant is acquitted of the charge. He be released forthwith, if no more required in any other case.

                                                                                                             J U D G E

                                                                        J U D G E

Imran/PA