MUHAMMAD NAEEM Versus State

RASHEED AHMED SOOMRO, J.--- This appeal is directed against the impugned judgment dated 23.09.2014 passed by learned Anti-Terrorism Court No.V, Karachi in Special Case No.B-248 of 2013, whereby the learned trial judge has convicted both the appellants/accused named above under section 7 of Anti-Terrorism Act, 1997 and sentenced them to suffer R.I for five years and also to pay fine of Rs.50,000/- each. In case of non-payment of fine, each of them shall further undergo S.I for six months, with benefit of section 382-B, Cr.P.C.

2. Briefly the facts of the prosecution case as per statement of complainant namely Muhammad Ramzan son of Muhammad Nawaz are that, on 10.06.2013 his brother namely Haq Nawaz told him on phone that some boys were demanding Rs.10,00,000/- as Bhatta from him and were extending the threats to kill in case of non-payment. The Complainant advised his brother to switch off his mobile phone. On the same night, four persons on two motorcycles assaulted upon the house of Complainant's brother and made firing. The brother of Complainant due to fear had left for his village requesting the Complainant to lock his house properly. When the Complainant visited the house of his brother Haq Nawaz, he found one live bullet and a letter stating therein that "open your phone if you love your life". The phone number was also given in the said letter. The Complainant tried 7/8 times called on the given number intimating him that they were poor people. However, after some negotiations an amount of Rs.80,000/- was settled. Two boys came on Motor cycle to collect the said amount. The complainant then went to Police Station Ittehad Town, Karachi and disclosed the whole story. The duty officer noted the phone number of complainant. On 15.06.2013, the Complainant received a phone call from Police Station Ittehad Town, Karachi that some suspected persons were arrested so identify them. The complainant went to Police Station and recognized one of the arrested accused, who was in injured condition. The FIR was then registered being Crime No.190/2013 under sections 384, 386, 34, P.P.C. read with section 7 of the A.T. Act, 1997. Police arrested the Appellants, who were already confined in Crime No.67/2013. Police prepared mashirnama and obtained his signatures and SIP. Anwar Hussain Shah inspected the place of incident and prepared such mashirnama. The Complainant handed over to police, the live bullet and letter of accused persons. On 23.06.2013, the Complainant called his brother Haq Nawaz from his village, who also found 02 empties and one lid in his house, which the Complainant also handed over to the police, who was secured the same under Mashirnama. On 30.06.2013 police called the complainant at Police Station and took him along with the Appellant/accused Muhammad Naeem to his house, where from at the pointation of accused, police recovered Rs.16,000/- from TV Trolley, which was secured in presence of the complainant.

3. The police submitted the challan before learned trial Court, who after completing the legal formalities and recording the prosecution evidence has convicted both the accused as stated above.

4. PW-01, Complainant Muhammad Ramzan was examined as Ex.07. He deposed that on 10.06.2013 his brother Haq Nawaz told him on telephone that some boys were teasing him and demanding Bhatta Rs.10 Lac and were extending threats to kill in case of non-payment. He advised his brother to switched off his telephone and accordingly his brother switched off his phone. According to him, at the same night four persons on two Motorcycles assaulted upon the house of his brother and made firing. Due to fear his brother on the next day went to his village and from the way he told him on phone and asked him to go to his house to properly lock which was situated in the same Mohallah in Sector-09. He went to the house of his brother (Haq Nawaz) and opening of the door he found one live bullet and a letter, which he brought to his house. In that letter it was written that "open your phone if you love your life" and a telephone number was also given. The Complainant from his own cell phone tried 7/8 times to that number. He told the culprits that they are poor people and after negotiation an amount of Rs.80,000/- was settled which he paid to two boys who had come on Motorcycle. Then he along with his friend went to Ittehad Town Police Station. He met with ASI Rana Nisar and verbally told him the incident and he noted his (Complainant) phone number. On 15.06.2013 a phone call was received by him from Ittehad Town Police Station that some persons were arrested. He went to Police Station and in the lockup there was rush of persons and he recognized one accused in injured condition. In Court he identified only Appellant Muhammad Naeem, who was produced in custody. Police prepared some documents and obtained his signatures. Therefore, SIP, Anwar went with him and inspected the place. On 30.06.2013 he was called by SIP. Anwar Shah at Police Station and the Appellant Neeem was already present there. Police took the Complainant and the Appellant Muhammad Naeem to his house and on his pointation Rs. 16,000/- were recovered which was kept in TV Trolley. Police prepared mashirnama and obtained signatures of the Complainant. He denied the suggestion in cross-examination.

5. We have heard the learned counsel for appellants as well as the learned APG. Learned appellants' counsel argued that the impugned judgment is biased in the eyes of law hence, liable to be set aside. Accordingly to him, the learned trial judge has not properly appreciated the evidence on record and the whole judgment is based on mis-reading and non-reading the evidence, without taking into consideration the cordinal principal of criminal justice. He next argued that it is a case, where reasonable doubt has been created in respect of the involvement of the appellants in the commission of alleged offence and the prosecution has miserably failed to prove the incriminating recovery of alleged Bhatta amount. He lastly argued that the learned trial Court has wrongly convicted the appellants.

6. However, the learned APG has bitterly opposed the above submissions advanced by learned counsel for the Appellants and submitted that the witnesses have fully supported the prosecution case. According to him the prosecution has furnished unbiased independent evidence and neither the Appellants nor their counsel could bring in limelight any illwill enmity with prosecution witnesses, which makes the case of prosecution doubtful.

7. We have examined the evidence, scrutinized the material on record, perused the findings of learned trial judge as stated in impugned judgment and have carefully considered the contentions raised before us by the learned counsel for the Appellants and APG.

8. The whole prosecution case hinges around the evidence of two witnesses namely the Complainant Muhammad Ramzan and the witness Dilzada. The Complainant has actually faced the accused persons, while his brother Haq Nawaz had gone to Punjab to save his life but interestingly he was not cited as witness and he was never examined at any stage of trial, though according to prosecution story, he was the main victim and star witness of prosecution, who received the phone call of the culprits for Bhatta amount. As per evidence of the Complainant, he only recognized the Appellant Muhammad Naeem and nowhere in his testimony that he identified the Appellant Muhammad Sohail either in the Police Station or in the Court. The only evidence against the Appellant Muhammad Sohail, with Prosecution is that the empties which were recovered from the place of incident were fired from the pistol recovered from the possession of the Appellant Muhammad Sohail. From bare reading of the testimony of PW Dilzada, it appears that he was almost, with the Complainant but his evidence is hearsay only received through the Complainant. During the course of his cross-examination, this witness mostly deposed that he did not know as to what happened around him, he deposed only about the occurrence of alleged incident.

9. We have gone through the cross-examination put forth by learned counsel for the Appellants, wherein bundle of contradictions found in the statements of prosecution witnesses. During the cross-examination and statement of the accused persons recorded under section 342, Cr.P.C., the appellants did not mention any illwill bickering or enmity between the witnesses, which prompted them to falsely involve the appellant/accused. Under these circumstances, their evidence cannot be brushed aside.

10. Perusal of the cross-examination of the Complainant reveals that the negotiation between the Complainant and the culprits were going on between 10.06.2013 and 12.06.2013 during which period, the complainant did not go to Police to inform about the alleged incident. The FIR was lodged after visiting the arrested accused in lockup of police station. The Police arrested the appellants on 12.06.2013 and told the Complainant about their arrest in an encounter, which creates doubt that how is it possible that the Complainant gave Bhatta amount on 12.06.2013 at 6.00 p.m. to the culprits and on the same day at about 10.00 p.m. the culprits were shown to the Complainant in lockup though according to prosecution story, one of the accused was in injured condition, who must be in the hospital not in the lockup.

11. We are very well aware of the situation that presently this type of crimes have immensely increased as our Society has gone panicky, hence they used to pay Bhatta to protect their lives and money and further to avoid future complications. Thus, we are also of the firm opinion that, when the crime is in hike the enforcement of law should be equally strict, so that accused should not escape from the legal punishment merely on flimsy or technical grounds and they should adequately be punished but the innocent persons should not be made scapegoat.

12. The Complainant only identified the appellant Muhammad Naeem in lockup, who was arrested in injured condition in another crime and as per Police version, the accused himself have narrated about commission of alleged crime but the appellant Muhammad Sohail was not identified by the complainant at any stage nor any evidence has been adduced against him by the prosecution. According to the complainant, two boys came on Motorcycle to collect Bhatta amount of Rs.80,000/-, one of whom was appellant Muhammad Naeem but there is no evidence against appellant Muhammad Sohail. Mere presence of the appellant Muhammad Sohail in the lockup is not sufficient to connect him, with the alleged offence unless the prosecution brings some sufficient material against him. The recovery was also made on the pointation of the appellant Muhammad Naeem.

13. There is another element of the case, which creates serious doubt i.e. omission on the part of the Investigating Officer to arrest the accused persons, who were already in police custody in some other case and locked up in Baghdadi Police Station.

14. Pursuant to the above discussion, the prosecution has miserably failed to bring home the charges against the appellant Muhammad Sohail beyond any reasonable doubt, therefore, benefit of slightest doubt, if any, must go to the accused, without any reservation. The impugned judgment is outcome of misreading and non-reading of evidence to the extent of appellant Muhammad Sohail and the learned trial Court has failed to appreciate the evidence in its true perspective. Moreover, false implication must be proved by evidence, mere allegation, without any substance is of no consequence.

15. Defence plea regarding false implication of the appellant Muhammad Naeem is unconvincing do not appeal to a prudent mind and is insufficient to dislodge the straightforward evidence furnished by the complainant. Thus for the reasons as stated above, we find no merits in the Appeal against the Appellant Muhammad Naeem.

16. In the instant case, it is an admitted position that the appellants were shown to the complainant, while they were already in custody and, where the complainant identified only appellant Muhammad Naeem. The appellants were not arrested in the present crime nor were they arrested at the spot nor the brother of complainant lodged any complaint about the alleged incident at police station. The complainant told the police that two boys had come to him to collect Bhatta amount. It is very much possible that the Police to show his performance before their high-ups could have involved the appellant Muhammad Sohail, which creates doubts and put the dent in the prosecution case. It is well settled principle of law that prosecution has to prove its case beyond shadow of any reasonable doubt and if slightest doubt occur in the prosecution case, with regard to the commission of offence, the benefit should have been given to the accused not as a matter of grace or concession but as a matter of right as held in the case of Tariq Pervez v. The State (1995 SCMR 1345).

17. In view of above discussion, the instant Spl. Cr. A. T. Appeal in respect of the appellant Muhammad Naeem is hereby dismissed, with the modification that the sentence awarded to him in the impugned judgment is hereby reduced to the period already undergone, while the appeal of the appellant Muhammad Sohail stands allowed. Let both the Appellants be released forthwith if not required in any other case.

18. These are the reasons in support of our short order dated 30.08.2016, whereby Appeal to extent of Appellant Muhammad Sohail was allowed and whereas the Appeal of co-appellant Muhammad Naeem was dismissed with modification of his sentence.

JK/M-164/Sindh Order accordingly.