2020 PLP 95 (YLRN)

MUHAMMAD IQBAL MAHAR, J.

Through this common judgment, we intend to dispose of captioned appeals filed by the appellant, against the judgment dated 6th February 2019 passed by learned Special Judge, Anti-Terrorism Court, Shaheed Benazirabad in Special Case No. 02/2018 arising out of FIR No.08/2018 registered at Police Station Air Port District Shaheed Benazirabad, whereby he has been convicted for offence punishable under section 7(iii) of Anti- Terrorism Act, 1997 and sentenced to suffer Rigorous Imprisonment for 03 years and to pay fine of Rs.20,000/- (Rupees Twenty Thousand), in case of his default in payment of fine, to suffer S.I. for 06 months more. However, benefit of Section 382-B, Cr.P.C. has been extended to him.

2. Precisely, prosecution case is that complainant Nooruddin owns two plots in Bhangwar Colony, Shaheed Benazirabad. Some days back he was raising construction over his plot but the appellant-accused along with acquitted-accused Meer Hassan Bhangwar came there and asked him to give one plot and "Bhatta" of Rs.100,000/- to them otherwise he would not be allowed construction work on the plot and he would be killed. The complainant moved an application before learned Sessions Judge, Shaheed Benazirabad for protection which was granted. On 17.01.2018 the complainant along with his witnesses and labour was busy in construction work at his plots, when at 10:00 a.m. appellant-accused, armed with pistol and acquitted-accused Meer Hassan, armed with lathi appeared there and again asked them to give one plot and "Bhatta" of Rs.100,000/-, else he would be killed. Due to fear, the complainant left the plots and went at above said PS and lodged the FIR.

3. The Police after usual investigation submitted final report of the case against the appellant-accused and acquitted-accused before learned trial Court. The learned trial Court framed formal charge against the accused, who pleaded not guilty and claimed their trial.

4. To substantiate the charge, prosecution examined complainant Nooruddin at Ex-05, who produced copy of FIR at Ex-5/A, P.W, Zafar Ali at Ex-6, who produced mashirnama of inspection of place of incident at Ex-6/A, P.W, Muzaffar Ali at Ex-8, who produced mashirnama of recovery of lathi from acquitted accused at Ex-8/A and mashirnama of production of ownership documents, at Ex-8/B, SIP Nek Muhammad at Ex-9 and Inspector Habib-ur-Rehman at Ex-10, who produced mashirnama of arrest of appellant-accused Meer Muhammad at Ex-10/A. Thereafter, learned Assistant Prosecutor General Sindh closed the prosecution side vide statement at Ex-11.

5. On closure of prosecution side, statements of accused were recorded under Section 342, Cr.P.C. wherein they denied the prosecution case, however neither they examined themselves on oath nor examined any witness in their defence.

6. On evaluation of evidence, so produced by the prosecution, learned trial Court convicted and sentenced the appellant-accused as stated above and acquitted Meer Hassan.

7. Learned Counsel for the appellant-accused contended that impugned judgment passed by trial Court is against the facts of the case and law; that learned trial Court has failed to appreciate that the incident has taken place in populated area but strangely the I.O. did not examine any independent witness from the locality; that all the PWs are setup and closely related to the complainant and there is nothing on record which may connect the appellant-accused with the alleged offence; that co-accused Meer Hassan has been acquitted by learned trial Court and the case against the appellant-accused is identical; that learned trial Court while passing the impugned judgment has also failed to appreciate the material contradictions in the evidence of prosecution witnesses and that the impugned judgment is not sustainable under the law. By contending so, he prayed for setting aside the impugned judgment and acquittal of the appellant-accused of the charge. In support of his arguments learned Counsel for the appellant-accused relied upon case of Muhammad Asif v. The State (2017 SCMR 486).

8. On the other hand, learned A.P.G assisted by learned Counsel for the complainant supported the impugned judgment and prayed for dismissal of instant appeal, however, they conceded that acquittal of Meer Hassan has not been challenged.

9. We have considered the arguments advanced by the learned Counsel for the appellant, learned A.P.G. assisted by learned Counsel for the complainant and have perused the record with their able assistance.

10. It is observed that the complainant has given two versions of the incident; one in application filed under Section 22-A, Cr.P.C. before learned Justice of Peace/Sessions Judge Shaheed Benazirabad wherein he narrated the date of the incident of demanding "Bhatta" and issuing threats of murder as 05.01.2018 and second in the FIR of this case wherein he disclosed the date of incident as 17.01.2018, therefore, the question arises as to which date is correct, it creates doubt in the prosecution story.

11. There is no criminal record against the appellant-accused showing his involvement in terrorist activities on the contrary he is an Advocate by profession. The allegation of demanding "Bhatta" could not be established as no material has been collected against the appellant-accused during investigation, which may justify to conclude that he is guilty of the alleged offence.

12. Admittedly, the appellant-accused has been tried along with co-accused Meer Hassan who has been acquitted by learned trial Court while disbelieving the prosecution evidence and his acquittal has not been challenged by the complainant. The case of the appellant-accused appears to be at par with the case of acquitted accused Meer Hassan, hence, same set of evidence cannot be relied upon against the appellant without independent corroboration, which is lacking in the case. In case of Muhammad Asif v. The State supra the honourable Supreme Court of Pakistan has observed that; "It is a trite principle of law and justice that once prosecution witnesses are, disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case."

13. In view of above and while relying upon the precedent of the honourable Apex Court, instant appeal is allowed and impugned judgment dated 06.02. 2019 passed by learned Special Judge, Anti-Terrorism Court, Shaheed Benazirabad, is set aside. Consequently, appellant-accused is acquitted of the charge, he is present on bail, his bail bond is cancelled and surety discharged. JK/M-231/Sindh Appeal allowed.