2017 PLP 756 (YLR)

RASHEED AHMED SOOMRO, J.

The Appellants Abdul Hafeez son of Qadir Bux Balouch, Altaf Hussain son of Abdul Aziz Lashari Balouch and Riaz Ahmed son of Imam Bux Balouch, through this Special Cr. Anti-Terrorism Appeal No.47 of 2014, have challenged the impugned judgment dated 12.07.2014 passed by the learned Anti-Terrorism Court No.1, Karachi Division in Special Case No.A-127 of 2013 whereby they were convicted and sentenced to suffer R.I for 07 years each with fine of Rs.20,000/- each for the offence punishable under section 7(h) of A. T. Act, 1997, in case of non-payment of fine, they will suffer S.I for six months more. The sentences of accused shall run concurrently.

2. Brief facts of case as per FIR are that on 22.10.2013 at about 2005 hours, the Complainant namely Muhammad Asif son of Khadim Hussain lodged FIR bearing No.111/2013 at Memon Goth Police Station, Karachi stating therein that he was working as Electrician and Chowkidar at H. M. Farm, near Jokhio Goth. On 22.10.2013 at about 1730 hours, he was present at that farm, when at about 5.00 p.m. three persons came on Motorcycle, wearing Shalwar Kamiz, looking to be Balouch out of them two remained present at the main gate of the farm, whereas one person having pistol in his hand, came towards the Complainant and directed him on the force of pistol to contact with the Owner to arrange Rs.5,00,000/-. The culprits further disclosed that they had been making phone calls to the owners, but he did not attend their calls and he directed the Complainant to make phone call to his owner, to which the Complainant replied him that at present he is not available and he had no contact number of the owner, on which they pushed him and issued threats of life and directed for arranging Rs.5,00,000/- failing which they kill him, his owner and other persons of the Farm. Thereafter the culprits left the Farm by saying that they would come again with their other companions. The said culprits were also coming for last four/five days with their companions and were demanding said amount and were introducing to be men of Moosa and Suleman Khan. The Complainant narrated the facts to the owner of the Farm namely Umer Farooq Shaikh and on his directions he searched the culprits and found three culprits sitting in Tahir Hotel, near Usmania Sweets, Memon Goth Bazaar, as such he informed at Police Station Memon Goth by making phone call and ASI Abdul Khaliq Jamali reached there with Police Party in Official Mobile and on the identification and pointation of the Complainant, Police arrested three accused, who on enquiry disclosed their names as Abdul Hafeez son of Qadir Bux Balouch, Altaf Hussain son of Abdul Aziz Lashari Balouch and Riaz Ahmed son of Imam Bux Balouch. Police prepared such memo on the spot. Appellants and the Complainant were brought to Police Station and FIR was lodged against the Appellants.

3. Police after usual investigation submitted the charge sheet against the abovenamed accused persons along with the absconding accused Moosa and Suleman Khan. The trial Court performed the legal formalities as warranted by law and after recording the statement of Process Server as Ex.03, declared the absconding accused Moosa and Suleman Khan as proclaimed offenders. The trial commenced against the remaining three Accused Persons/Appellants Abdul Hafeez son of Qadir Bux Balouch, Altaf Hussain son of Abdul Aziz Lashari Balouch and Riaz Ahmed son of Imam Bux Balouch.

4. During the trial proceedings, after taking the oath as required under Section 16 of the A.T. Act 1997 (Ex.05) the trial Judge, formal charge (Ex.06) was framed against the Appellants to which they pleaded not guilty and claimed to be tried, vide their pleas Ex.06/A to Ex.06/C respectively.

5. The prosecution in order to substantiate its case, examined following PWs:-- i. PW-1, Muhammad Asif, examined as Ex.07. He is the complainant of the case, who produced Memo of Arrest of accused persons as Ex. 7-A, FIR No. 111/2013 as Ex.07/ B and Memo of Inspection of Place of incident as Ex.07/ C. ii. PW-2, Muhammad Arif was examined as Ex.08. iii. PW-3, ASI. Abdul Khaliq was examined as Ex.09, who produced Roznamcha Entry No.25 dated 22.10.2013 as Ex.09/A. iv. PW-4, ASI. Syed Qazim Raza was examined as Ex.10, who produced Memo of Arrest of Appellants and recovery of Pistol at Ex.10/A. v. PW-5, Inspector Irshad Ahmed Gabol was examined as Ex.11, who produced Roznamcha Entries as Ex.11/A to Ex.11/E, FIR No.120/2013, as Ex.11/ F and Roznamcha Entries as Ex.11/G and Ex.11/H.

6. Prosecution produced and examined as many as five witnesses in support of its case whereafter statements of Appellants under Section 342 Cr.P.C. were recorded vide Exhs. 13, 14 and 15 respectively wherein they professed innocence and denied the allegations leveled against them by prosecution and further deposed that PWs are setup. Complainant in order to obtain money from his Owner involved them in this false case. Appellants further added that they were not in good terms with Complainant and he in collusion with the Investigating Officer implicated them in this false case, as Inspector Irshad Ahmed has friendly terms with the owner of the Farm House. According to the Appellant Altaf Hussain the alleged recovered pistol has been foisted upon him, which has been recovered after 28 days of his arrest. All the accused persons/ Appellants abovenamed prayed for justice. However, they felt no need to produce any evidence in their defence and similarly they did not opt to be examined on oath according to section 340(2), Cr.P.C.

7. It is, inter-alia, contended by the learned counsel for the Appellants that the Appellants are innocent and have falsely been implicated by the Complainant in collusion with the Investigating Officer in this false case; that the Appellants have not been named in the alleged FIR; it is strange enough that the Complainant lodged FIR on 22.10.2013 whereas the Appellants were shown arrested on the same date from Tahir Hotel, in fact, they were arrested from their houses by Police. According to the learned counsel, the Complainant is the Electrician/ Chowkidar of the Farm House and on the directions of the Owner of the Farm House, he lodged the FIR. Even otherwise the Owner of the Farm House namely Umer Farooq Shaikh was not cited as witness.

8. On the other hand, Mr. Muhammad Iqbal Awan, learned APG has halfheartedly supported the impugned judgment. He has further added that the Appellants were rightly convicted by the trial Court, as prosecution had proved its case beyond any shadow of reasonable doubt.

9. We have heard the learned counsel for the Appellants/Accused persons as well as the learned APG and scanned the entire record.

10. Perusal of the evidence of the Complainant reveals that without taking any safety measures, Complainant and two Prosecution witnesses had gone to search out the Appellants under the instructions of the owner of the Farm House knowingly that one of the Appellants was having Pistol and they traced out the Appellants sitting in a Hotel and informed the Police. Police came and arrested the Appellants without any resistance within half an hour from lodging of Report to Police by Complainant. It further reveals that the Complainant did not take the names of such persons in the FIR in question and only informed the Police that three persons came on a Motorcycle to the main gate of Farm House.

11. Evidence of the PW-2 Muhammad Arif, reveals that when Appellants came at the main gate of the Farm House, he was not available at the main gate and he was informed by the Complainant that three persons came on a Motorcycle and were demanding money of Rs.5,00,000/-. Prior to the arrest of the Appellants, neither PW-2 Muhammad Arif seen them nor he knew the names of the culprits. In nutshell he is not eye-witness and evidence at the most could be treated as hearsay evidence.

12. PW-3 ASI. Abdul Khaliq deposed in his deposition that on the day of incident at about 1655 hours he was informed from the Police Station that some persons had demanded extortion money from Muhammad Asif employee of the H.M. Farm House. His mobile number was also provided to him. When he contacted Muhammad Asif, he called ASI. Abdul Khaliq to come Tahir Hotel and when he along with Police Party reached there Muhammad Asif was already present there and on his pointation, he arrested the Appellants from the Hotel.

13. Prima facie, it appears from the record that there are material contradictions in the statements of the PWs. The Appellants were arrested from Tahir Hotel at about 2005 hours, which is daylight time and is a very thickly populated area, but the Police has failed to associate any private person wherefrom the Appellants were arrested. The alleged FIR is silent regarding names, Roll and acts of the Appellants. While personal search of the Appellants no chit/document regarding Bhatta was recovered. No firing was made at the Farm House, though one of the culprits, was having Pistol and searching of the culprits by the Complainant and employees of the Farm House without fear, though the Appellants were said to have extended serious threats of life of the employees as well as Owner of the Farm House, the element of fear of their life is missing.

14. There is no finding of the trial Court on the basic ingredient of extortion of money demanded by the Appellants. The Complainant neither in his statement before the police at the time of recording the report nor even at the time of deposing before the trial Court either alleged element of restrain, fear of death or even instant hurt against the Appellants, as the Complainant and employees of the Farm House were searching the armed persons/culprits without taking any safety measures.

15. Regarding blind FIR in respect of names of the Appellants in the alleged crime, material contradiction in the statements of the prosecution witnesses and the Appellants were arrested within half an hour after lodging of the FIR by the Complainant, creates serious doubt in the authenticity of alleged offence with which the Appellants were charged.

16. Insofar as recovery of pistol, which was alleged to have been recovered on the pointation of the Appellant Abdul Hafeez is concerned, according to the FSL report, the said weapon was not in a working condition. In the light of FSL report no weight could be attached to the recovery of pistol.

17. The lacunas as pointed out above to give due consideration and seek explanation from the Prosecution by the learned trial Judge regarding material contradictions in the case in hand, we find ourselves constrained to extend benefit of doubt in this case to all the Appellants as the cardinal principle of safe dispensation of justice requires and that the Courts should be cautious to see that innocent persons are not convicted even if certain number of guilty persons get away with the acquittals. It appears that there are number of contradictions in the prosecution evidence which creates doubt. It is settled principle of law that for extending benefit of doubt it is not necessary that there should be many circumstances creating doubt. If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right, as has been held in the case of Tariq Pervez v. The State (1995 SCMR 1345).

18. Resultantly, the instant Special Cr. Anti-Terrorism Appeal No.47 of 2014 is allowed and the impugned judgment and sentence is set aside. The Appellants Abdul Hafeez son of Qadir Bux Balouch, Altaf Hussain son of Abdul Aziz Lashari Balouch and Riaz Ahmed son of Imam Bux Balouch are acquitted of the charge. These are the reasons in support of our short order dated 04.10.2016 whereby Appeal was allowed. JK/A-153/Sindh Appeal allowed.