2002 PLP 1853 (MLD)

Habib Ahmed, Asstt. A.‑G. for Appellant. Saathi M. Ishaque for Respondents. Date of hearing: 1st August, 2001. FAIZ MUHAMMAD QURESHI, J.‑‑‑State through Advocate -General, Sindh has preferred this Special Anti‑Terrorism Acquittal Appeal under section 25(4) of Anti‑Terrorism Act, 1997, against the acquittal of the respondents, namely, Muhammad Asghar, Khalid Khan and Muhammad Yaqoob vide judgment dated 26‑10‑1999, passed by Mr. Arshad Noor Khan, Judge, Anti‑Terrorism Court No.3, Karachi.

2. The case of the prosecution is that the complainant is residing at House No.1‑991, Sector 'SB/2, near Peela School, North Karachi and is running a grocery shop. On 17‑12‑1992 at 7‑30 p.m. the complainant alongwith his family members was present at his house, when four young persons, armed with fire‑arm weapons entered the house and cordoned all of them and introduced themselves to be police officials and threatened the complainant party that illegal arms are available in the house and directed to hand over the said illegal arms to them, whereupon the complainant replied them that they have no illegal arms, the search of the house was also taken by them and they took two prize bonds of R!r.1,000 each, 4 prize bonds of Rs.50 each and cash of Rs.4,800 from the pocket of the complainant and took him with them in yellow coloured Suzuki and brought him near the Police Station New Karachi, where, after parking the car they asked the complainant to arrange further money. The complainant asked them to take him to the house and after obtaining it from his brother Naeemul Haq, one amongst them asked to the other companion whose name was spoken as Asghar Bhai, to go and bring money from his house. The said Asghar went from there and after some time he returned and said that he has received money as such they may release him. Therefore, they released the complainant and he came to his house, where his brother Naeemul Haq informed that he has paid a sum of Rs.13,000 to one person by name Asghar for his release. The complainant therefore tried to collect information on his own, but did not succeed, as such went to Khawaja Ajmer Nagri Police Station and lodged the F.I.R.

3. After registration of the F.I.R. respondent/accused Asghar was arrested on 18‑12‑1997 at about 12‑15 a.m.; prize bonds and cash of Rs.600, were secured from him; the respondent/accused Khalid and Yaqoob were also arrested on 5‑6‑1998 and after usual investigation, the challan against the aforenamed respondents/accused was sent in Court to stand trial.

4. The learned trial Court from the formal charge and thereafter recorded evidence of witnesses, namely, Qamarul Haq, complainant and Naeemul Haq, Muhammad Shahzad, Muhammad Dawood Khan thereafter the prosecution closed its side. . S. The aforenamed respondents were also examined under section 342, Cr.P.C. respondent/accused. Muhammad Asghar examined himself on oath a D.W.1 as Exh.19 and produced photocopy of notice issued against Ali Yar Khan Inspector as Exh.25, and defence witness No.3 Muhammad Akram son of Amrit was also examined. The remaining two respondents declined to examine themselves on oath under section 340, Part(2), Cr.P.C. The trial Court after having gone through the evidence adduced by the prosecution and the material available on record, acquitted all the aforenamed respondents Nos. l to 3 under section 265‑H, by extending benefit of doubt.

6. We have heard Mr. Habib Ahmed, learned Assistant‑Advocate- General for the State and Mr. Saathi M. Ishaque, learned counsel for the respondents Nos.1 to 3 and with their assistance we have also gone through the evidence adduced by the prosecution and other material available on record.

7. The case of the prosecution is that occurrence has taken place on 17‑12‑1997 at 8‑30 p.m.; the F.I.R. has been lodged on 17‑12‑1997 at 9‑15 p.m.; the recovery has been effected from the possession of respondents/accused on 18‑12‑1997 at 12‑15 a.m. Admittedly, one of the accused has been arrested on 17‑12‑1997 at 10‑30 p.m.; whereas co- accused were arrested on 5‑3‑1998. We have examined the evidence of the witnesses very carefully and found inherent discrepancies in their' evidence. It has been admitted by the complainant in cross‑examination that after the arrest of accused Muhammad Asghar and recovery, the F.I.R. was registered by the complainant, whereas it is a claim of the prosecution that occurrence has taken place on 17‑12‑1997 at 8‑30 p.m. and the F.I.R. has been registered on same date at 9‑15 p.m. This admission on the part of the complainant leads to inference that F.I.R. has been registered after the arrest of the accused and recovery, as such spot Investigation has taken place, which is fatal for the prosecution. The complainant has also admitted in cross‑examination that he knew co -accused Yaqoob and Khalid since 3/4 years and he has also admitted that he has not mentioned the names of accused Yaqoob and Khalid in F.I.R., when he knew the names of the co‑accused and this fact has been admitted by the complainant in his cross‑examination, two, things are overlapping from his admission firstly, either the occurrence has not taken place in the manner as being narrated by the complainant and, secondly, something is being suppressed by the complainant. It has been held by the Hon'ble Supreme Court in the case reported in 1979 SCMR 214‑215 that, basic requirement before the trial Court is to see whether the witness is honest or dishonest. It is not the fundamental requirement on the part of the trial Court to see whether the witnesses are interested, disinterested or hostile. In the present case, the evidence of witnesses, namely, Qamarul Haq and Naeemul Haq, who are brothers, shows that they have not spoken the truth before the trial Court and their evidence is inspiring no confidence. We have also examined the record and evidence of the prosecution witnesses and the factor of ransom has not been proved by the prosecution. Recovery is also doubtful; identification of accused was not arranged, as it has not been described by the complainant in F.I.R. that he knew the accused intimately; on the contrary, in cross‑examination, as discussed supra, he has admitted that he knew two accused namely, Khalid and Yaqoob and yet he has not given their names in F.I.R. In both the cases it was the duty of the police to put the accused persons to Identification Parade. The conduct of the complainant appears to be dubious.

8. The learned Assistant Advocate‑General has not been able to point out any infirmity in the judgment dated 26‑10‑1999. We are not inclined to interfere with the judgment, dated 26‑10‑1999, passed by Mr. Arshad Noor Khan, Judge, Anti Terrorism Court No.3, Karachi and the above Appeal merits no consideration and the same is dismissed accordingly.

9. The above are the reasons for our Short Order dated 1‑8‑2001. H.B.T./S‑198/K Appeal dismissed.