NIZAMUDDIN Versus State
SHAUKAT ALI MEMON, J.--- Both captioned appeals are directed against judgment of conviction and sentence recorded by the Judge, Anti-Terrorism Court No.2, Karachi, in Special Case No.B-240 of 2013, Crime No.74 of 2013, registered under sections 385/25 of the Telegraph Act, read with section 7 of the Anti-Terrorism Act, 1997, at P.S. Orangi Town, Karachi, whereby appellants Nizamuddin and Adnan were convicted under section 7(h) of the Anti-Terrorism Act, 1997, to suffer Rigorous Imprisonment for five years with fine of Rs.8,000/-, in default thereof to undergo punishment of six months more. The benefit under section 382-B, Cr.P.C. was also extended to both of them.
2. Appeal No.02 of 2014 is filed by appellant Nizamuddin alias Kaloo while Appeal No.17 of 2014 is preferred by appellant Muhammad Adnan. Since both appeals are against conviction and sentence of common judgment, these are being heard and disposed of by single judgment.
3. According to the complainant Adil Noor Khan, resident of House No. 249, Sector 11-A, Farooque Colony, Orangi Town using cell No. 0321-2752720 he lodged report at P.S. Orangi Town on 15.05.2013 at 1120 hours making grievance that he runs a photostat shop on Shahrah-e -Orangi Sector near Zam Zama bakery, Orangi Town when on 14.05.2013 at 1.00 p.m. he (complainant) received call on his cell phone from cell No. 0342-2947034 asking him that the caller was belonging to Bhatta Mafia and well aware about the residence of the complainant as such he should pay Rs.100,000/- as Bhatta else he would be murdered. On his showing inability, the caller directed not to open the shop. The call was repeated at 11.00 p.m. wherein amount was reduced to Rs.40,000/- with direction to keep the shop closed till Bhatta is paid to which complainant also expressed his inability. The caller again on 17.05.2013 between 3.00 to 4.00 pm finally settled the demand at Rs.8,000/- and complainant was advised to keep the amount ready in cigarette packet wrapped with rubber band, to be left at the place informed by the caller later on. A warning was also extended that if matter is reported to any one, entire family of the complainant would be killed.
4. The FIR was registered by A.S.I.P. Abdul Sattar and was handed over to S.I.O. of P.S. Orangi Town. On receipt of the investigation by Inspector Saeed Karim he visited the shop of the complainant and prepared mashirnama Exht P/3 and recorded statement under section 161, Cr.P.C. as well as inquired from the neighbours and wrote letter to S.S.P. for call detail report (CDR) of the mobile of the accused as well as complainant. On 21.05.2013 complainant finally received call from the culprits to bring the amount at Power House at High Tension Line at 7.00 O'Clock in the evening. On way to police station the complainant saw a police mobile at Chorangi No.5 and told the incharge about receiving of final call from the culprits for giving them the amount. The police mobile followed the complainant and his father who were going on motor bike while culprits on cell phone asked the complainant to come at Board Office and then made him wait there and again asked him to go back to Orangi Town and then directed him to come from No.1 Grid Station near high tension line and throw the packet there with warning not to look behind. The complainant on turning back, found two persons apprehended by the police who were taking their personal search and recovered two mobile phones and cigarette packet containing one real currency note of Rs.1,000/- with other plain papers. Mashirnama of recovery and arrest was prepared in presence of complainant acting as mashir. Police officials after completing formalities of investigation produced challan against the appellants before the trial court where it ended in conviction and sentence as above.
5. Both appellants pleaded not guilty to the charge under section 385/34, P.P.C. and section 25 of the Telegraph Act read with section 7 of Anti-Terrorism Act, 1997, thereafter, prosecution examined P.W-1 Adil Noor Khan (Exht. P/1), P.W-2 Arif Noor Khan (Exht. P/5), P.W-3 S.I.P. Ghulam Mustafa (Exht. P/6), P.W-4 S.I.P. Abdull Sattar (Exht.P/7) and P.W-5 Abdul Karim (Exht. P/9) and closed its side vide statement at Exht. 18, while appellants examined none in their defence.
6. In their 342, Cr.P.C. statements, the appellant Nizamuddin denied to have called the complainant; demanded Bhatta; settled the same at Rs.8,000/-; asked the complainant to keep the money in cigarette packet and come to Grid Station Sector-13 High Tension Pole; meeting of the complainant with the police mobile; the following of the police mobile of the complainant and his father; reaching of the appellants in Suzuki Alto Car; picking up the packet with co-appellant; recovery of packet of cigarette containing Rs.1,000/-; mobile sets with Sims; recovery of another mobile phone and Sim from co-accused Adnan. He added that he had a dispute with the complainant over photo of his son which according to him was spoiled by the appellant, therefore, he was falsely involved in this case. About the witnesses having deposed against him he stated that private witnesses have deposed because of enmity while police witnesses have deposed at the instance of complainant. He claimed innocence and did not examine himself on oath.
7. Appellant Adnan also denied all the prosecution allegations and his acquaintance with appellant Nizamuddin. About witnesses he stated that none had deposed against him and what had been done, was done at the instance of police who had asked him for money which he could not give, therefore, he was implicated in this case. He claimed innocence and declined to be examined himself on oath.
8. The prosecution case squarely is based upon evidence of complainant, corroborated by recovery of cigarette packet containing Rs.1,000/- currency note with plain paper and cell data record of the complainant as well as appellant Nizamuddin. The gist of the evidence of prosecution recorded at trial is as under:-
9. P.W.1 is complainant, who has testified receipt of call from unknown caller initially demanding Bhatta of Rs.100,000/- and finally settling at Rs.8,000/-; mode of payment of Bhatta and place of throwing Bhatta amount wrapped in cigarette packet at given place; lodging of the FIR; informing police mobile while going for payment of Bhatta amount; follow up of the police mobile of the complainant and his father on motorbike to keep eye on the culprits; throwing of packet at High Tension Pole; going ahead without looking back and returning to same place and finding personnel of police having apprehended two persons. He also testified about the fact of arrest and recovery of two cell phones from appellants as well as cigarette packet thrown by him containing Bhatta amount of Rs.1,000/- with plain papers; preparation of mashirnama of personal search and arrest in his presence. He identified both accused to be same persons alongwith case property which included cigarette packet currency note of Rs.1,000/- with plain papers; mobile phones and Sims and the car used by the appellants while going to place of their arrest. He has produced documents F.I.R. mashirnama of visiting studio (shop) of the complainant; mashirnama of recovery and arrest of appellants from Exht. P/2 to Exht. P/4.
10. P.W-2 Arif Noor Khan is the father of complainant supported the complainant about getting of the phone call from unknown caller; demanding of Bhatta; final settlement of Rs.8,000/-; lodging of FIR by complainant; proceeding to place of delivery of Bhatta on motorbike with the complainant; contact with police mobile; throwing of cigarette packet containing Rs.1,000/- currency note and plain papers and the manner of arrest of appellants and recovery from them effected by police. He has identified the appellants, the case property including car used by the appellants. He has also testified contents of mashirnania of recovery and arrest Exht. P/9.
11. P.W-3 Ghulam Mustafa is S.I.P. who on 21.05.2013 was on patrolling in the area with police party in police mobile along with P.C. Muhammad Younus and Driver P.C. Sabir Ali. He has testified their reaching at Chorangi No.5 of Orangi Town; contact of the complainant and his father with him; disclosure by the complainant about lodging of the FIR with information that accused has told him to come at Sector No.13 of Orangi Town after keeping the Bhatta amount in cigarette packet with request to arrest them. He has further testified about his summoning of police force on Ilaqa patrolling on motorbikes and accompanying the complainant party and having encircled the Grid Station where one white Suzuki Alto car had stopped occupied by two persons. He has further deposed about throwing of packet at the High Tension Pole by the complainant which was picked up by one person coming down from the car and about their apprehension when that person tried to sit in the car. He has further stated about preparation of mashirnama of arrest and recovery of cigarette packet with Rs.1,000/- currency note; seizure of cell phones with Sims; taking of the appellants to I.O. Saeed Karim; handing him over property and the appellants; recording of the statements by the I.O. and identifying of the case property present in and outside the court to be same. He has produced Roznamcha entry of arrival and departure at Exht.P/7 and Exht. P/8.
12. P.W-4 S.I.P. Abdul Sattar was the duty officer on 18.05.2013 at P.S. Orangi Town and had registered FIR in detail lodged by the complainant Adil Noor Khan. He has testified contents of the FIR Exht.P/2.
13. The last prosecution witness is the I O. Inspector Saeed Karim who has stated about the stages of the investigation which included preparation of memo of inspection of shop of the complainant; his departure for this purpose from P.S; recording of statements of witnesses; calling call data report (CDR) of mobile phone of accused and the complainant. He has identified accused present in court and the property to be same, except car which on the day of his examination was not brought to the court.
14. Learned counsel appearing for the appellant Nizamuddin argued that there are major contradictions between the evidence of material witnesses, which have been termed by the trial court as minor and that neither the complainant nor his father had witnessed picking up of the cigarette packet by the appellant while car allegedly used by the appellant is neither owned by him nor its ownership is ascertained during investigation. He further contended that it is in the evidence of complainant and P.W. Arif Noor Khan that they were on separate motorcycles, while P.W. Ghulam Mustaf has stated that complainant and his father were on same bike, which by itself is major contradiction, therefore, the impugned judgment is passed upon surmises, conjectures and non-appreciation of the evidence. Per learned counsel, the prosecution has failed to establish that the Sims recovered are in the name of the appellant. It is next contended that the currency note allegedly recovered is foisted one, as no serial number of the currency note has been mentioned in the mashirnama while as per CDR not a single call has been made by the appellant thus possibility of false implication cannot be ruled out, moreso the name of the appellant is not mentioned in the FIR but is first time got mentioned in the mashirnama of recovery which further creates doubt in the case of prosecution.
15. Learned counsel appearing for the appellant Adnan adopted the arguments of the learned counsel for appellant Nizamuddin with the addition that there is absolutely no evidence against appellant Adnan as neither he has made any call to the complainant nor demanded from him Bhatta, nor his name appears in the FIR, except in the memo of arrest that too showing no part assigned to him in picking up the cigarette packet. Per counsel, he is simply shown to be with the appellant Nizamuddin at the relevant time and his mere alleged presence was totally insufficient for awarding conviction in particular when the cell phone recovered was not having sim detailed by the complainant to have been used for his contact.
16. Learned A.P.G. refuted the arguments of the learned counsel for the appellants and submitted that in the like nature cases the culprits usually do not use cell numbers issued in their names and these are all the more reasons that the P.T.A. had made it mandatory to get all the sims biometrically verified. It is next argued that the contradictions highlighted by the defence are minor in nature worth ignoring. What is important, is the evidence of complainant and his father who have seen appellants apprehended by the personnel of pre-informed police mobile with the cigarette packet soon after it was thrown at the desired place given by the appellant Nizamuddin. Per A.P.G. the complainant had no reason falsely to implicate the appellants having no previous enmity or motive. He added that the enmity expressed by the appellant Nizamuddin with the complainant that the former had a dispute with latter over spoiling of the photograph of his son is quite unbelievable as no one can assert that much exercise and to gain confidence and trust of all the police personnel of the police mobile, who are even otherwise independent witnesses, having no motive to foist cell phone with sims and cigarette packet upon the appellants, whose evidence is consistent and in conformity with the evidence of the complainant.
17. About implication of the appellant Adnan due to non-payment of bribe to the police learned A.P.G. clarified that his immediate apprehension with appellant Nizamuddin is sufficient to co-relate him in designs and commission of the crime who could not be termed as an innocent person as claimed. He supported the impugned judgment against both the appellants.
18. So far contradictions in the evidence of material witnesses is concerned, it is well settled law that it is a fundamental duty of the court to separate chaff from grain. We agree with the submissions of learned A.P.G. that proceeding by one bike by complainant and his father or on separate bikes by each of them is not major contradiction which may persuade us to disbelieve the entire evidence of the complainant starting with receiving of first call on his cell phone from unknown caller up to physical arrest of the appellants (within short time after throwing of cigarette packet). As per FIR unknown caller had made first call from his cell phone No. 0342-2947034 to cell of the complainant No. 0321-2752720 on 14.05.2013, which is further confirmed from the CDR produced as Ex. P/14. The other calls are noted between two cell phones on 15.05.2013 and 17.05.2013. One call from cell No.0333.3313050 on cell phone of the complainant is noted/recorded on 21.05.2013 having duration of about 9 minutes in between 2032 to 2041 hours (Exht. P/13) and this is approximately the same time and moment immediately before arrest of appellant Nizamuddin when soon thereafter both sims were recovered from his possession at the relevant time vide mashirnama Exht. P/4. The argument that these sims are not recovered and are not in the name of appellant Nizamuddin is of no significance when date and time is exactly same as deposed by the complainant. In a reported authority S.B.L.R. 2015 Sindh 45 ( Muhammad Zeeshan alias Rasheed and another v. The State ), the conviction and sentence was maintained under sections 386, 387, 34, P.P.C. read with section 7-B of the Anti-Terrorism Act, 1997 when evidence was found confidence inspiring.
19. However, the case of appellant Adnan is different from the case of appellant Nizamuddin inasmuch as neither he made any call from the cell phone/sim recovered from his possession nor complainant had indicated in FIR or in the evidence that instead of one caller there were two callers from same cell number. His name first time surfaced within the evidence of Inspector Ghulam Mustafa who apprehended him with appellant Nizamuddin. Even otherwise, appellant Adnan has not been assigned part of picking up of the cigarette packet nor coming down from the car except that he was present in same car used by the appellant Nizamuddin in reaching out at the place of his apprehension. Mere presence of appellant Adnan in car is not a conclusive proof about his involvement along with appellant Nizamuddin nor there is evidence of such nature from the prosecution. Appellant Adnan has denied acquaintance with appellant Nizamuddin and has stated reasons of his arrest to be non-giving of bribe to police. It is a settled law that the prosecution has to stand upon its own legs irrespective of failure by defence. In the case of appellant Adnan, the prosecution has failed to produce cogent evidence to connect him in the commission of offence that too without corroborative piece of evidence.
20. In view of above, we are inclined to maintain conviction and sentence recorded against appellant Nizamuddin by the trial Court, consequently, appeal filed by Nizamuddin is dismissed. Since case of appellant Adnan is distinguishable for the aforesaid reasons, we therefore extend him benefit of doubt while relying upon the case of Tariq Pervez v. The State (1995 SCMR 1345) and allow his appeal. Resultantly, conviction and sentence recorded by the trial Court against Adnan are set aside. Appellant Adnan is acquitted of the charge. He shall be released forthwith if not required in some other case.
HBT/N-23/Sindh Appeal accepted.