2018 PLP 214 (YLRN)

AFTAB AHMED GORAR, J.

Appellant Akbar Ali Rana son of Dil Muhammad, was found guilty of committing extortion and extending threats to the complainant and vide judgment dated 07-09-2007 passed in Session Case No. 195 of 2006 arising out of crime No. 76 of 2006 of Police Station Clifton Karachi, under sections 386 and 506-B, P.P.C. Appellant was convicted by the court of learned II-Additional Session Judge, South-Karachi; and sentenced appellant under Section 386 P.P.C. and sentenced him to suffer rigorous imprisonment for three years and fine of Rs.20,000/- or in default to undergo simple imprisonment for two months. Appellant also convicted under section 506-B P.P.C. and sentence to suffer rigorous imprisonment for two years and to any fine of Rs.15,000/- in default thereof to undergo simple imprisonment for one month; both sentences were ordered to run concurrently.

2. The sum and substance of the prosecution story as is envisaged in the FIR is that complainant is working as General Manager in Hussain Developers, on 02.11.2005 a person introduced himself as Akbar Ali disclosing that he is social worker of the vicinity; receiving donations for the welfare of general public and demanded money from complainant which was refused on the pretext that he is not doing illegal business; accused left the office by extending threats of dire consequences; thereafter series of men on his behalf were visiting office of complainant and were demanding "Bhatta"; said demand was refused. On 11.02.2006 at about 6:00 p.m., in the evening complainant together with telephone operator Momin and Manager Shakeel Haider were present in the office; Akbar Ali together with three accomplices duly armed with pistol arrived there and on the point of pistol demanded Rs.100,000/- as "Bhatta" on monthly basis; otherwise complainant would be killed by him; thereafter accused left the office by extending threats.

3. After registration of FIR, police conducted formal investigation and on the conclusion of investigation, challan was submitted against the accused under Sections 386 and 506-B Pakistan Penal Code.

4. Charge was framed by the learned II-Additional Sessions Judge, South Karachi against the appellant at Ex.l and his plea at Ex.2. To the charge, appellant not pleaded guilty and claimed to be tried.

5. Prosecution to prove its case examined PW-1 Muhammad Asif (complainant) at Ex.3, who produced his application addressed to SHO Police Station Clifton-Karachi, copy of FIR, mashirnama of arrest and personal search of accused at Ex.3-A to Ex.3-C. PW-2 Syed Shakeel Haider was examined at Ex.4, he has produced memo of inspection of place of incident at Ex.4-A, PW-3 Momin Khan was examined at Ex.5. PW-4 Zakir Hussain was examined at Ex.6. PW-5 ASI Muhammad Iqbal at Ex.7. Learned DDA for the State give up PW-HC Muhammad Shahid through his statement Ex.8. PW-6 SIP Muhammad Yamin first investigation officer of this case was examined at Ex.9. PW-7 Muhammad Mubin second investigation officer examined at Ex.10 who produced order of transfer of investigation of this case as Ex10-A and roznamcha entry at Ex.10-B thereafter learned DA closed the side of prosecution vide statement at Ex.11.

6. Statement of accused was recorded under Section 342, Cr.P.C. at Ex.12, appellant denied allegations levelled against him and claimed his innocence; appellant choice to examine himself on oath in disprove of the charge as is contemplated under section 340(2) Cr.P.C. at Ex.13 thereby examined defence witnesses Haji Shabbir Ali and Syed Muhammad Afzal at Exs.14 and 15 respectively.

7. Learned counsel representing the appellant contended that learned trial Court has failed to appreciate the evidence brought on record; per learned counsel the learned trial Court has only considered the examination-in-chief of the depositions of prosecution witnesses but never had entered into cross-examination which would suffice the totality of things; per learned counsel there is diversion in the statement of complainant; first incident as had taken place in the month of November 2005 and second incident as alleged had been taken place in month of February 2006 thereafter FIR was lodged on 15.02.2006; per learned counsel learned trial court has failed to consider there is an old enmity between the appellant and Hussain Developers even otherwise appellant being President of all Clifton, Defence Market Association for the welfare of shopkeepers of Gulf way shopping Mall took various legal steps against Hussain Developers which has neither been denied by the complainant nor rebutted by the prosecution witnesses; per learned counsel the office of appellant situated at first floor of Gulf way shopping mall and there are two hundred shops exists on first floor and three hundred shops on ground floor and all the shops were opened when the alleged incident had taken place; per learned counsel there are security guards deployed over entrance gate of the office of complainant and without permission of the complainant no one is allowed to enter in the office therefore, no such question of demand of money arises at all; per learned counsel in the cross-examination of complainant it has been admitted that two separate FIRs have been lodged against the Hussain Developers by the appellant; even otherwise Hussain Developers have also filed a Civil Suit against the appellant vide Suit No.393 of 2007 which is pending adjudication; complainant has also admitted in the cross-examination none was present over there; per learned counsel prosecution witnesses Nos. 2 and 3 respectively are employer of the complainant; per learned counsel Investigation Officer of the case being PW-7 has also admitted that complainant failed to produce any independent persons from the adjoining shops; per learned counsel Investigation Officer while conducting investigation has mentioned that he had enquired from the adjoining shops about the incident but every one showed ignorance of the venue of occurrence whereby First Investigation Officer let of the appellant under section 497(2), Cr.P.C; and second Investigation Officer dispose of the case under "B" class but learned Judicial Magistrate did not agree with the report of second Investigation Officer whereby upon directions of learned Judicial Magistrate charge was submitted before the Court of Law; per learned counsel there is existence of enmity between the appellant and Hussain Developers; per learned counsel as per PW-2 and 3 both are employer of the complainant and are interested witnesses have deposed against the appellant; per learned counsel PW-4 has admitted that no such incident took place in his presence; per learned counsel the judgment of the learned trial Court is defective, creating bias, partial and tainted and is not according to the facts and evidence brought on record; per learned counsel the impugned judgment may be set aside and appellant may be acquitted from the charged offence.

8. Learned Deputy Prosecutor General Sindh opposed the acquittal of the appellant and contended that there is sufficient evidence available on record which had fully implicated the appellant with the commission of offence; per learned DPG there is strong corroboration in the evidence of prosecution witnesses; lastly learned DPG prayed that the impugned judgment of the learned trial Court may be upheld. 9 Heard and perused.

10. It is now by settled provisions of criminal law that this Court has to reappraise the entire evidence for safe administration of justice. I would like to introduce examination-in-chief of the PW-1 Muhammad Asif (complainant) at Ex.3 who deposed as follows:-- "On 11-02-2006 I was present at my office, situated at Gulf shopping Mall Clifton, Karachi; at that time Syed Shakeel Haider and Muhammad Khan telephone operator were also present in the office. At about 6:00 p.m., Akbar Ali Rana along with his three companion come there and at that time accused Akbar Ali was armed with T.T. Pistol and by showing pistol he asked me to pay "Bhatta" of Rs.100,000/= as he already twicely stated for "Bhatta" if the same was not paid he would kill, I then requested him to grant one week time as my employer was not present; I then went to Police Station and filed application for taking action against the accused" In the cross-examination, complainant admitted that:-- "It is correct that accused had lodged an FIR against me, Momin and Shakeel vide crime No. 140 of 2006 offence under section 379, P.P.C. at Police Station Boat Basin. It is correct that an FIR No. 92 of 2006 was got registered by the accused against me and my employer Hussain Lakhani at P.S. Clifton. It is correct that PWs-Shakeel and Momin are the employees of the Hussain Developers. It is correct that I did not given the description in the FIR of the companions of accused. Accused used to send messages through telephone for demanding money "Bhatta". I did not make any complaint to Police against the accused from 02-11-2006 till filing of this FIR". PW-2 Syed Shakeel Haider at Ex.4, in his examination-in-chief deposed as follows:-- "On 11-02-2006 I was present in office along with complainant Muhammad Asif and telephone operator Momin Khan. AT about 6:00 p.m., or 6:15 p.m., accused along with three companion had come at office and at that time he was armed with pistol; accused demanded Rs.100,000/- from complainant and further allowed him one week time for making the payment of "Bhatta" and in case of non-payment of same, he threatening that he would murder him and thereafter they have left the office and complainant went to Police Station for lodging the FIR. On 15-02-2006 police had come at the place of incident and prepared the memo of inspection in my presence" In the cross-examination, P.W.2 admitted as follows:-- "It is correct that I am employee of Hussain Developers. There are two security guards who used to perform their duty at the main gate of office. My duty timing hours are 9:30 a.m. to 9:40 p.m., The companion of accused were cladded in shalwar Qameez" PW-3 Momin Khan at Ex.5, in his examination-in-chief deposed as follows:- "On 11-02-2006 I was sitting in my office situated at Block B Scheme No.5 Gulf Tower Clifton Karachi and same is the office of Hussain Developers. At about 6:00 p.m., accused Akbar Ali Rana came in the office and asked me to get to meet him with the manager of company namely Asif. I asked him that the office timing has been finished upon which he became enraged and I then took the accused with me to manager Asif who was sitting on the upper floor of the office along with Shakeel Haider who is also employee of the office. There were three other persons with the accused and then manager Asif told me to go and asked for tea. When I came back in the office I saw that accused Akbar Ali Rana was holding pistol in his hand and hard words are being exchanged between accused and manager Asif. Accused in my presence demanded Rs. 100,000/- as "Bhatta" from the Manager and he was threatened that if the money would not pay he would commit murder of Asif. Manager Asif became afraid and he requested the accused to give him time of one week. Thereafter accused left away along with his companion. In the cross-examination, this witness admitted that:- "I am working with Hussain Developer for the last 12/13 years. Prior to this incident the accused had also come in the office for one time. About one year back prior to this incident he had come in the office, I don't remember that about one year back prior to incident when accused had come at office and I had got him meet with the manager Asif. It is correct that there are about 500 hundred shops on the ground floor so also on the first floor where our office is situated". PW-4 Zakir Hussain at Ex.6, in the examination-in-chief deposed as follows:- "It was the month of December 2005 I was sitting at the counter of office of Imperial Builder situated at Gulf Shopping mall near Teen Talwar. It was 5.00 p.m., the accused Akbar Ali Rana came in the office and asked me for meeting with the manager Asif, but I replied him that presently Asif Sahib is not present in the office, I then informed to manager Asif on phone who stated that accused has came there for taking Bhatta. After ten or fifteen days police had come at our office and prepared some documents which was signed by me". I see Ex.4/A memo of site inspection which is same, correct and bears his signature" In the cross-examination, this witness admitted as follows:- "I am working as telephone operator in the said office. Asif is our general manager. My duty timing from 9:00 a.m. to 6:30 pm., I have seen the accused first time in the office. In my presence no such incident was taken place thereafter. At that time I was alone in the office. It is correct that security guards are deputed in our office. Voluntarily says at that time no security guard was present as they have left away. The contents of mashirnama and site inspection were read over to me by the police. I don't remember the exact date of the preparation of mushirnama" PW-5 Muhammad Iqbal at Ex.7, in the examination in chief deposed as follows:- "On 13.02.2006 I was posted at P.S. Clifton on the said date an application was received to me which was referred by the SHO for inquiry and this application was made by one Muhammad Asif against one Akbar Ali Rana. I used the said application as Ex.3/A, which is same. I went at the given address which was mentioned in the application and two persons namely Muhammad Shakeel and Momin Khan has verified the contents of application. I recorded the statement of these two persons and then I submitted my report to SHO who send it to concerned TPO for approval and after receiving the approval from the TPO, FIR was lodged by me" In the cross-examination, this witness admitted as follows:- "It is correct that Shakeel and Momin are working in the office of Hussain Developers. It is correct that complainant is also employee of Hussain Developers. I did not record the statement of any persons except these two witnesses. It is incorrect that there is market where 250 shops are situated. It is correct that private guards are available at the office of Hussain Developers." PW-6 Muhammad Yamin, in the examination-in-chief deposed as follows:- "On 24.03.2006 I was posted at P.S. PIB Colony in FIR No. 76 of 2006, initial investigation was conducted by SIP Mubin and after completion he submitted report under section 168, Cr.P.C. to higher authorities. After submitting report under section 168, Cr.P.C. SIP Mubin was placed under suspension, and investigation of the case was then transferred to me in this case report for disposal of case under "B" class was already approved by the high officials. Thereafter I submit the report under section 173, Cr.P.C. under "B" class in the concerned court but the concerned Magistrate after hearing the parties issued direction for submission of charge sheet within three days and report under "B" class was declined" PW-7 Muhammad Mubin, Investigation Officer, at Ex.10 in the examination-in-chief has deposed as follows:- "On 16-02-2006 I visited the place of incident, prepared memo of site inspection. I also recorded the statement of witnesses under section 161, Cr.P.C. On 26.02.2006 I arrested the present accused on the pointation of complainant from Kehkashan Market, Clifton and prepared mashirnama of his arrest. On 02-03-2006 I appraised the facts of this case to my S.S.P so also to D.I.G. that there is no evidence available on record on the basis of which accused may be kept in confinement. Who directed me to act according to law. Therefore I released the accused under section 497(2), Cr.P.C. and on 04-03-2006 submitted the said report before the concerned Magistrate, who directed me to produce the complainant and accused before him on 13-03-2006. In compliance of the order of the Magistrate I produce the accused and the complainant before the concerned Magistrate" In the examination-in-chief this witness admitted as follows:- "I cannot say that there are 200 shops situated adjacent to the office of Hussain Developers. Vol. says that no one can notice or see any incident if taken place inside the office and similarly outside the office. Till 02.03.2006, due to lack of evidence I released the accused under section 497(2), Cr.P.C. and thereafter I was placed under suspension as such I cannot say that there was any evidence available against the accused or not"

11. From bare perusal of the evidence so brought on record, the entire prosecution case rests upon demand of alleged "Bhatta" by aiming pistol towards complainant. Primarily the demand of bhatta was continuous since one year but complainant did not bother to first report the matter to the Law Enforcing Agencies to avoid any unpleasantness but chooses to keep mum. It has also been surfaced on record there are more than two hundred to five hundred shops situated at the venue of occurrence i.e. "Gulf Shopping Mall Clifton Karachi" but no one from the general public has been invited to act as a mushir of the venue of occurrence or arrest of the appellant. This fact has also been proved by PW-7 Muhammad Mubin being Investigation Officer of the case by disclosing that till 02-03-2006, due to lack of evidence he released the accused under section 497(2), Cr.P.C. and he cannot say that there was any evidence available against the appellant. Being Investigation Officer, this prosecution witness was bound under the Law to issue notices to the adjoining shop owners to act as a witness of the incident as is provided under section 160, Cr.P.C. to strengthen the version of the complainant but the ingredients of the mandatory provisions are missing and wondering in the case in hand. I would like to reproduce section 103, which reads as follows:-- "Requirement of S. 103, Cr.P.C. namely that two members of the public of the locality should be mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two mashirs from the public

if, moreover the statement of the Police Officer indicated that no efforts were made by him to secure two mashirs from public, the recoveries would be doubtful" "Where circumstances permit the evidence may be accepted to prove arrest or recovery but in order to make it credible and authentic the prosecution just explain the circumstances for non-compliance with the provisions of section

103. Section 103 read with section 164, Cr.P.C. lays down the mode for recovery and search but, as in certain circumstances a deviation is permissible. So far the acceptability of the evidence of the police officer is concerned, general principle is that if there is no animus or mala fides, the investigation has been straight and honest and no substantial defect or infirmity has been pointed out in the evidence so brought through cross-examination, the evidence of such a witness, though a policeman, may be accepted. However, in cases of recovery, this principle is accepted subject to furnishing an explanation by the prosecution for non-compliance of section 103." "Where search is made by the police officer without resorting to the provisions of section 103, Cr.P.C., the policeman or the investigating officer would not be a competent witness. No doubt their evidence can be assessed as an ordinary witness, but where it relates to search and seizure, it will be considered whether provision of section 103, Cr.P.C. have been observed".

12. As referred the ingredients of mandatory provisions of Section 103 and its requirement, there is no such explanation regarding violation of mandatory provisions of section 103 Cr.P.C.; nowhere it has been plausibly explained by the prosecution over reappraising the entire evidences so brought on record by the prosecution in the testimony of witnesses or in the charge sheet as was submitted before the learned trial Court. Since Investigation Officer had chosen two mushirs namely . Momin Khan and Shakeel Haider both were employer of the complainant; as such both witnesses are said to have been "interested witnesses" being subordinate / employer of the complainant; in failure to corroborate the entire prosecution evidence, there is no source of an independent corroboration i.e. persons of the adjoining shops to justify the truthfulness of the alleged incident as had been taken place or otherwise. Apart from above, prosecution has also miserably failed to collect Cell Data Record of the telephonic conversation as alleged have been received by the complainant of the instant case whereby complainant was receiving threats of dire consequences, missing of the telephonic record, it would not be helpful and facilitate the fair and impartial investigation as is conducted in a cursory manner and cannot be used against the appellant like heatstroke. There is no independent corroborative piece of evidence available with the prosecution to prove the exchange of words in between complainant and the appellant; neither there is any conversation record with regard to the demand of alleged "Bhatta" from the complainant. Therefore I am of the view that guilt of the accused cannot be believed as in the manner in which it has been defined by the complainant. It is well settled principle of law that benefit of doubt always goes in favour of the accused. Nonetheless to mention herein below referred case law but for the sake of extending benefit of doubt, it has been chosen to be reproduced. In a case reported in 2010 PCr.LJ 461 (sic), Re: Ghulam Murtaza v. The State, it has been held as follows:-- "(b) Penal Code (XLV of 1860)

Ss. 302(b)/34 & 324/34

Qatl-i-amd

Appreciation of evidence

Benefit of doubt

Single circumstance of doubt sufficient to make the case doubtful

Principle

Many circumstances creating doubt are not required for giving benefit of doubt to accused-Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused would make him entitled to benefit of doubt, not as a matter of grace and concession, but as a matter of right" C) Muhammadan Sharia Law

The law developed in our country is based on maxim that it is better that ten guilty persons be acquitted rather one innocent person be convicted. D) Muhammadan Sharia Law

Principle of Administration of Criminal Justice

It is also an established principle of administration of criminal justice coupled with Muhammadan Sharia law that conviction cannot be based on any other type of evidence unless direct or substantive evidence is available and the guilt of accused cannot be based on high probabilities that may be inferred from evidence in a particular case-Held; sufficient discrepancies are appearing in the statements of prosecution witnesses and the memo of place of occurrence and recovery, prepared during investigation, appear to be suspected. [The underline is mine]

13. Primarily complainant and the appellant are keen of litigation filed against each other either civil or criminal which are pending adjudication and are in the field, this fact has also been admitted by the complainant in his cross-examination. Be that as it may, Investigation Officer Muhammad Mubin while finding no evidence against the appellant recommended the case under "B" Class being false instead learned Magistrate approving it sent up the appellant to stand his trial on the case finding no evidences. PW-4 Zakir Hussain admitted that in his presence no such incident was taken place. It is correct that security guards are deputed in our office. The contents of mashirnama and site inspection were read over to me by the police. I don't remember the exact date of the preparation of mushirnama", thus the testimony of this witness is also questionable because on one hand this witness has admitted that no incident as alleged had taken place in his presence, and he was only listening the contents of memo of site inspection but it was read over to him; this witness also admitted that he don't remember the exact date of preparation of mushirnama; this sole testimony of this witness has belied the truth about the alleged incident as had been taken place. In the First Information Report, it has been mentioned that present appellant together with other accomplices was demanding "Bhatta" and was issuing threats of dire consequences and went away. To this aspect of the case I therefore hereby rely upon the judgment reported 2017 SCMR 486 in the case of Muhammad Asif v. The State as follows:- Reappraisal of evidence

Question as to presence of witnesses, reliance upon--Scope

Once prosecution witnesses were disbelieved with respect to a co-accused then, they could not be relied upon with regard to the other accused unless they were corroborated by corroboratory evidence which came from an independent source and was also unimpeachable in nature"

14. After bare perusal of the entire prosecution evidences there is no corroborative, reliable, tangible, direct trustworthy evidence available with the prosecution which would connect the appellant with the commission of alleged offence, therefore seeing the series of lacunas as is evident from the record, prosecution has failed to build up its case on the strength of complaint; where evidence of said witness itself was not trustworthy, confidence-inspiring and consistent to establish accusation against the appellant and was totally rejected then the prosecution could not secure conviction on the basis of other evidence, however; no adverse inference could be drawn by this court to upheld and maintain the impugned judgment by which appellant has been convicted and sentenced.

15. As discussed supra, the conviction and sentence awarded to appellant under impugned judgment is set aside. The instant Criminal Appeal is allowed. The appellant is present in Court on bail, his bail bond stands cancelled and surety discharged. Office is directed to return the surety papers to the applicant/ surety after proper verification and the identification, as per rules. These are the reasons of short order dated 12-01-2018. JK/A-25/Sindh Appeal allowed.