2017 PLP 182 (YLRN)

OMAR SIAL, J.

Through this consolidated judgment we will dispose off the captioned appeals filed by the appellants against the conviction and sentence awarded to them through a common judgment dated 14-7-2015 by the Anti-Terrorism Court No. VIII at Karachi in Special Case Nos.B-440, B-441, B-442, B-443, B-444 and B-445 all of the year 2014.

1. Brief facts of the prosecution case are as follows: (a) On 25-6-2014 at about 1815 hours, the complainant, one Majid Khan, registered an FIR bearing number 302/2014 at P.S. Site-A under sections 384/386/506-B of the P.P.C. stating therein that for some days he had been receiving calls on his cell phone from a person who had identified himself as Usman and who was demanding Rs. 2 million as extortion money ("Bhatta") from him. After negotiations, the said Usman had reduced his demand to Rs. 0.5 million and payment of the Bhatta had to be made to him later that night Majid Khan identified different cell numbers from which the calls for Bhatta had been received by him. (b) In the night of 25-6-2014 the complainant Majid Khan along with a police party reached the spot designated by the extortionist for payment of the Bhatta amount. Majid stood some distance away from the police party and at about 2145 hours three persons on a motorcycle came near to him. They spoke with him or a brief while after which Majid handed over the extortion money to one of the three persons. Once the money was handed over the police approached the extortionists and after a gunfight managed to arrest two of the extortionists whereas the 3rd one escaped. One extortionist was injured with a bullet wound in his thigh. The arrested extortionists were subsequently identified as Saifullah (injured) and Amanullah-- the present appellants. A pistol and a grenade was recovered from each of the appellants. (c) Five (05) FIRs were registered against the accused. FIR No. 304/2014 under sections 353/ 324/34, P.P.C. against both the appellants. FIR No 305/2014 under sections 4/5 of the Explosives Act against Saifullah. FIR No 306/2014 under section 23(1)(d) of the Sindh Arms Act 2013 against Saifullah. FIR No.307/2014 under sections 4/5 of the Explosives Act against Amanullah. FIR No. 308/ 2014 under section 23(1)(a) of the Sindh Arms Act, 2013 against Amanullah. (d) On 11-12-2014, the cases emanating from all the FIRs were ordered to be proceeded by joint trial in terms of sections 21-M and 17 of the Anti-Terrorism Act 1997. The charge against the appellants was framed the same day to which they pleaded not guilty and claimed trial. (e) The prosecution produced nine (09) witnesses to support its case. PW-1 was a police officer Abdul Jabbar. This witness is the complainant in all the FIRS registered against the appellants after the incident. He had prepared the memo of arrest and recovery and was also a witness to the memo of site inspection. PW-2 was a police officer Basharat Ali who was the witness to the memo of arrest and recovery as well as to the memo of site inspection. PW-3 was Majid Khan, the person from whom the Bhatta was demanded and who was the complainant in FIR No. 302/2014. He was also a witness to the memo of arrest and recovery. PW-4 was a police officer Ghulam Yaseen who had recorded the statement of Majid Khan and registered the FIR No.302/2014. PW-5 was Muhammad Hanif. He was the cousin of complainant Majid Khan and had accompanied Majid for registering the FIR as well as when the Bhatta money was handed over to the appellants. PW-6 was a police officer Rana Khushi Mohammad. He was the head of the police party that . apprehended the appellants. PW-7 was Dr. Muhammad Saleem, the doctor who had examined the injured appellant Saifullah. PW-8 was Masab Hussain, the member of the Bomb Disposal Unit who examined the recovered grenades. PW-9 was a police officer Islam Gul who was the investigating officer of the case. (f) On 28-5-2015 the appellants recorded their statements under section 342, Cr.P.C. Both stated that they were innocent and had been involved in these cases because of their refusal to pay illegal gratification to the police. Appellant Amanullah also stated that he was arrested on 24-6-2014 from his shop. (g) On 14-7-2015 the learned Anti-Terrorism Court No. VIII at Karachi through a common judgment sentenced the appellants as follows: For offence under section 6(2)(k) punishable under section 7(1)(h) of the ATA 1997: R.I. for 5 years and a fine of Rs. 50,000, in default 6 months more. For offence under section 6(2)(m) punishable under section 7(1)(h) of the ATA 1997: R.I. for 5 years and a fine of Rs. 50,000, in default 6 months more. For an offence under section 23(1)(a) of the Sindh Arms Act 2013, R.I. for 5 years and a fine of Rs. 50,000, in default 6 months more. For an offence under section 5 of the Explosives Substances Act 2013: R.1. for 5 years and a fine of Rs. 50,000, in default 6 months more. The benefit of section 382-B Cr.P.C. was extended to the appellants and their sentences were ordered to run concurrently. Hence, these appeals.

2. We have heard the learned APG and the learned counsel for the appellants and have also examined the record with their able assistance. For the sake of brevity, we have not reproduced the arguments of the counsel here. The arguments raised by the defence counsel are stated in the memo of appeal whereas the learned APG has reiterated the prosecution case -- both forming part of the record. Our observations are in the following paragraphs.

3. Both the private witnesses, being the complainant PW-3 Majid Khan and his cousin PW-5 Mohammad Hanif admit that a demand for Bhatta was received; that they had gone to lodge an FIR at the police station; that CW-1 Islam Gul had visited their house for inspection; and that they went along with the police party to the spot near the Searle factory which had been designated by the extortionists for the delivery or the Bhatta. However, in complete contradiction to the remaining prosecution case, both witnesses stated in their testimony that they had left the spot at the time the firing started and that they had neither seen the appellants at the place of incident and neither did they see any recovery being effected by the police party. Both stated that the money which was to be given to the extortionists was taken by themselves. Both stated that they were made to sign documents at the police station.

4. The complainant had received Bhatta calls from 5 different cell numbers (numbers given in the FIR). Only one number out of these 5 was investigated by the investigating officer. No effort was made to seek the record or investigate the remaining numbers. The one number that was investigated was not in the name of either appellant. The registered owner was not made an accused or a witness in the case. Neither was any address from where the calls originated were investigated. No evidence of any nature whatsoever was produced to establish a nexus between the appellants and the SIM or any other number from which allegedly the appellants made the calls for Bhatta.

5. By all accounts the incident has taken place on 25-6-2014 at about 2155 hours. Yet, it is not until 3-7-2014 that a back dated letter is received by the Bomb Disposal Unit from the investigating officer asking the BDU to come inspect the recovered grenades. It is not until 11-7-2014 that the BDU actually goes to inspect the grenades. The prosecution is silent on this inordinate delay. The prosecution has further failed to prove where these grenades were kept all these days. Tampering of evidence in such a situation cannot be ruled out. . The BDU expert confirmed that the number "143" was written on one grenade whereas "M" and "F2" was written on the other. The FIR or the memo of arrest and recovery does not record these identification marks. The grenades ostensibly recovered were without detonators. The back dated letter of the investigating officer mentioned in the first paragraph of this point, states that the two hand grenades seized were taken into custody by the complainant Abdul Jabbar and sealed in a wooden box. Abdul Jabbar in his evidence stated that he had not sealed the grenades and had handed them over to the head mohrar of the police station. In complete contradiction to what Abdul Jabbar said during his evidence, the memo of arrest and recovery that he had prepared on the spot states that the grenades were sealed.

6. The motorcycle used in the incident was not produced in evidence. Interestingly, a rather illogical story appears to have been made up by the prosecution regarding the motorcycle. According to the prosecution, a person named Kashif came to the same police station where this case was registered in the evening of the same day when the incident allegedly happened i.e. 25-6-2014 and reported that his motorcycle was stolen on 21-6-2014. The FIR No. given to his report is 303/2014. It is pertinent to mention that the series of FIRs registered in this case is numbered 302, 304, 305, 306, 307 and 308 of 2014. Kashif was not produced as a witness in trial.

7. The incident occurred on 25-6-2014 yet the seized pistols were not sent to the FSL for examination until 28-6-2014. No explanation was given by the prosecution as to the delay in sending the pistols to the FSL. The FSL report states that the number FF-9874 was written on one of the pistols, yet, the FIR and the memo of arrest and recovery does not record this number and instead records that the pistols were without numbers. Further, one of the pistols produced in evidence had the words "Shaneha 7 Cal .30 Bore Pak Made", a fact admitted by Abdul Jabbar in his cross-examination. Once again, no make, model or identification mark of this pistol was written in the FIR or the memo of arrest and recovery.

8. In the alleged shootout between the extortionists and the police, no damage or injury was caused to the police side. In fact the police could not also state as to how many rounds were fired from their side. Appellant Saifullah was hit in the leg with a bullet. Complainant Abdul Jabbar states in his evidence that during site inspection he had shown the blood on the site of incident to the investigating officer. Jabbar however admits in his cross-examination that his 161 statement does not contain this detail and neither does the memo of site inspection record that blood was found.

9. As the private witnesses have not supported the prosecution case; no nexus was established between the incriminating SIMs and the appellants; there is an unexplainable delay in sending the pistol and grenades for examination by experts; discrepancy in the identity of the pistols and grenades seized; contradictions whether the grenades were sealed or not; non-production of case property viz the motorcycle used in the offence and the Bhatta money and ineffective firing by the appellants makes us form the view that enough doubt was created during trial the benefit of which should have gone to the accused.

10. The above are the reasons for our short order of 20.1.2017 in terms of which the appeals were allowed and the appellants were directed to be set free if not required in any other custody case. JK/S-20/Sindh Appeals allowed.