2018 PLP 70 (YLRN)

FAHIM AHMED SIDDIQUI, J.

The instant appeal questions the judgment dated 30-12-2014 passed by the learned Judge, Anti-Terrorism Court, Mirpurkhas in Special Case No. 21 of 2014 (The State v. Hub Ali and another) whereby the appellant was convicted and sentenced him as under: (a) In Special Case No. 21/2014, to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 200,000/- for an offence under section 7(h) of Antiterrorism Act, 1997 and in case of default in payment of fine to suffer rigorous imprisonment for a term of 2 years more. (b) In the Special Case No. 22/2014 to suffer rigorous imprisonment for three years and to pay fine of Rs: 100,000/-for an offence under Section 24 of Sindh Arms Act, 2013 and in case of default in payment of fine to suffer the rigorous imprisonment for 1 year more.

2. Concisely, the facts of the case are that complainant Mohammed Maghan Halepoto reported to police that appellant (Hub Ali) demanded Batta of Rs. 100,000/-from him on mobile phone on 7 March and second July, 2014 and personally along with co-accused Bhugro visited his Otak situated in his village and in his absence again made the same demand from his sons Mohammed Moosa and Mohammed Aslam.

3. After registration of FIR, the matter was investigated and there after the police submitted Final Report before the Antiterrorism Court. The learned trial judge took cognizance and initiated the case against the appellant by framing charge, which was denied by him and he also claimed trial. During trial, the prosecution examined five witnesses including complainant. The learned trial judge, after evaluating the evidence, pronounced the verdict against the appellant as mentioned above.

4. Heard arguments and perused the record.

5. In the instant case there are several aspects, which require consideration. It is the factual position that the SIM No. 0332-2173972 was issued in the name of let of accused Mohammed Rizwan and the prosecution has not collected any material through which it would be established that the said SIM was actually in use of the appellant. Complainant and Investigation Officer in their deposition admitted that the Nokia mobile phone, which was produced as case property and allegedly on which the messages were received, was without SIM. It is also evident from the record that the message was not displayed at the time of producing the said mobile phone in the court as case property. It is also a factor that the complainant has not reported the two incidents claiming to be happened earlier. It is also admitted by the Investigation Officer that neither any mobile phone nor the SIM No. 0332-2173972 were recovered from the possession of the appellant at the time of his arrest or afterward. The prosecution witnesses Mohammed Moosa and Mohammed Aslam in their deposition state that at the time of visit of their Otak, appellant was not carrying any weapon and according to them at that time the weapon was in the hands of absconding accused. Prosecution witness Mohammed Moosa in his deposition admitted that the complaining party was well aware of the appellant and they knew him by his name, alias name and parentage but the complainant did not disclose the parentage and alias name in FIR. Surprisingly, prosecution witness Mohammed Aslam in his deposition states that the name of appellant was disclosed to him by the Investigation Officer.

6. In addition to the above admitted position, which were already fatal for the prosecution case, we have observed certain contradictions in the deposition recorded before the trial Court. PW-2 Mohammed Moosa and PW-3 Mohammed Aslam were not in agreement about the number of houses in the village. The former says that there were 20/25 houses while the later says that there were 200 houses. Both of these witnesses were not in agreement regarding their association with the complainant at the time of lodging of the FIR. Complainant and 'prosecution witnesses Mohammed Moosa and Manzoor Hussein has stated in their deposition that at the -Lime of inspection of the place of incident, the other villagers are also available but none of them were made as marginal witness of the 'Memo of Place of Incident'. Prosecution witnesses Mohammed Moosa and Mohammed Aslam in their deposition states that their statements under section 164, Cr.P.C. were recorded on 09-08-2014 but actually the same were recorded on 11-08-2014. Both of these witnesses are also not in agreement' with complainant regarding his time of returning to village after receiving their call. Prosecution witness Manzoor Hussein in his deposition states that the 'Memo of Arrest and Recovery' was prepared by a police constable while the Investigation Officer has stated that he himself has prepared the said memo. Prosecution witness Mohammed Aslam says that FIR was authored by Inspector Rasool Bux but the said FIR shows that the same was authored by ASI Ahmed Yar. We are of the view that the aforesaid contradictions and discrepancies cannot be termed as minor contradictions. We are of the opinion that the above pointed out contradictions are notable and critical in nature for the prosecution case. In fact, in presence of the above stated position of affairs, the entire prosecution story not only engulfed under the thick clouds of doubt but in fact it is totally wiped off.

7. The upshot of the above discussion is that the prosecution miserably failed to bring the guilt of the appellant, as such the impugned judgment is set aside and the appellant is acquitted from charge through our short order dated 21-08-2017 and these are the reasons for the same. We further observe that the absconding accused, who was convicted in absentia is also entitle the same treatment, as such he is also acquitted from the charge. JK/H-17/Sindh Bail granted.