Qari Amin-ul-Haq. (Appellant) VS The State. (Respondent)

R4-\r^c,\t^ 36SA &.' i({- 323 N o ?.--*\ d {-a.?efs.\^. I"^J

IN THE HIGH COURT OF SINDH, KARACH]

Special Criminal Anti-Terrorism Appeal rr-o.15 of 2012. Special Criminal Anti-Terrorism Appeal No,16 of 2012.

Present:

trlr. lusticc i\|ttlttrruttod Knrirrr Kltrut ,4 ylttr NIr. I ustice Muhsnnnad Saleem I essor.

Appellant 1.Qari Amin-ul-Har1 @ Abdul Manan €;

Maney Khan s/o Shah Hussain Khan.

2.Fazal Raheem s/o Chulam Muhammacl, through Mr. Muhammad Farooq, Advocate.

For complainant : Through Mr. Muhammad Sahib Khan, Aclvocate.

Respondent/ State : Through Mr, Muhammad Iclbal Awan, Deputy I'rosecutor General, Sinclh

Date of Hearing 11 01.1020

Datc. of Jutlgment 21.03.2020

IUDGMENT

MOHAMMAD KARIM KHAN AGHA, I:- Accuseti Qari Amin-ul-tlatg @ Abdul Manan @ Maney Khan s/o shah Hussain Khan antl Fazal Raheer.n s/. Ghulam Muhammad, were tried by the learned Jutlge, Anti-Terrorism Court No.l, Karachi in special Case No.02/2010, arising out of crime No.g24/2009 U/s. 365-A/34 PPC r/w section 7 (e) of ATA, 1997, registerecl at I,.s. S.rrr;ib c.trr (AVCC) Karachi and special Case No.01/2010 arisir.rg our of Crime' No.16212009, u/s. 13-D Arms ordinance, registered at p.s. Gulsharr-e-Maymar. After trial virle juclgment dated 28.04.2012 the appellants named abo'e were c.nvictetl anci 1 sentencecl as under:-

I Convictecl accusetl Qari Amin-ul-Hac1 @ Abclul Manan rrrt N4ar.rv Khan son of Shah Hussain Khan ancl Fizal Ilaheem son of Ghulam Muhammad u/s 265-H(ii) Cr.P.C. for the offence punishable u/s 7 (e) of Anti-Terrorism Act, 1997 r/w section -i65-A ppc an.j sentenced to Imprisonment for Life and forfeiture of their propert_1..

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2.ConvictedtheaccusedQariAmin-ul.Haq@AbdulManan@Many Khans/oShahHussainKhanforoffencepunishableu/s13(d) Arms Ordinance 1965 for keeping in possession unlicensetl 10 live Kalashnikov No 1954112270, with magazine which contains to P1l':

bullets antt sentenced him to suffer R.I for lwo ).ears and fine of Rs.20,000/-. In case of default of payment of fine' he shall further suffer S.i for six months more' The bcrlefit Both the sentences were orderetl to be run concurrentl\' of section 382-8 Cr.P.C u'as also extenclecl to the appellants'

2.Being aggrieved and dissatisfied by the judgment Passed b1' learned Judge. Anti-Terrorism Court No.l, Karachi, the aforesaid appeals have been preferred by the aPPellants.

3.The brief facts of the prosecution case are that on 20 11 2009' the complainant Bashir Gul s/o Nandhar Gul lodged FIR No 824/2009' u/s 365-,4 pPC at police station sohrab Goth, statin8 therein that he has been residirrg at tl-re above given address and adiacent to his house, he has a cattle pond On 17.11',2oog at about 1'00 p m his 1'ounger brother Muhammad Gul s/o Nantlhar

Gul aged about 18/19 years left his house for purchasing Bhoosa for a slrop' situaterl in Gul village and when atter 2/3 hours his brother did not returtl, ht'

went antl met with Bhoosa Wala ancl asked about his brother' who tolcl that his

brother had not come to his shop. Then, he and his brothers were searching their brother and in the night, the complainant receivecl phone call on his mobile phone No.0312 -232t/;80 from mobile No.0305-2779099. The caller did not disclose his name and he was speaking in Pashto language, anci he toltl the comPl.-rirrant that his brother Muhammad Gul was in their custody, he also allowecl him ttr talk to his abductecl brother and Iater called the complainant again arrcl clemanded ransom of Rs.20 lacs for release of his brother. lhe caller furthcr 'Ihc directed the complainant that thev w'ould wait till Juma Prai'crs complainant told the caller that he woulcl arrange the money On 20 11 2019' after consulting with his family members, the complainant registerecl FIR No.824/2009, against unknown Persons for kidnapping his brother Muhammacli Gul, between his resiclency aud Gul Village and for demanding ransom of I{s.20 lac

4.After registration of the FIR, the same was sent to In charge AVCC' Karachi for investigation, and the investigation was entrusted to Inspector Muhammatl Babar, who contacteel the complainant ancl searcher,l for the abcluctcc .rnd accused persons. on 25.11.2009, during investigation SIP Kamdar of slU sadclar, Karachi, informed the I.o. that accused Qari Ameen-ul-Haq and Fazal Rahim

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hadbeenarrestedintheabovecrimeandtheabclucteeancloneKalashnikrtt' with 10 builets had been recovered from thern. on receiving suclr informatit.rr-t, I.O inspector Muhammati Babar went to SIU Saddar, Karachi and met with

SIP

Kamdar, who handed over him custody of accused as well as memo oi arrest oi place of captivitv accused and recovery of abductee. on 03.12.2009 i.o visited the on the pointation of abrluctee and prepared such memo He recorded statements call ,-lat.r of witnesses and collectecl the case propert),, on 18,12.2009, he collectetl record from the office of computer lab of AVCC ancl prepareci such merno Aftt-r completing the investigation he submitted the charge shr'et before thc ctrt.tctrnt'cl court oI la*,.

5.The charge against the accused Persons was frameel to which they pleadt'tl not guilty and claimed trial of the case.

6.Toproveitscasetheprosecutionexaminedllprosecutionwitnessesand exhibitecl various documents and other items and thereafter the side of thc prosecution was closed. The statements of the accused u/s 342 Cr'P C' wt-rt' ;rlscr recorded in which thev denied all the allegations leveled against them and claimed to be innocent. Both of the appellants gave evidence uncler oath however neither of the appellants called any witness in support of their defense case 4 7. Learned Judge, Anti-Terrorism Court No.l, Karachi after hearing tl-re learned counsel for the parties and assessment of evidence availablc'on recortl, vide the impugnecl judgment rlaterl 28.04,12, convictecl anr-l sentencetl tht' appellants as stated above, hence this appeal has been filed by the appellants against their convictions.

8.The facts of the case as well as evidence procluced before the trial court find an elaborate mention in the impugned judgment clated 28.04.2012 passed bv the trial court and, therefore, the same may not be reproduced here so as to avoir'1 duplication and unnecessary repetition.

g. After the reading out of the evidence and the impugneci iudgrnent learned counsel for the appellants candidly conceded that the prosecution had plovetl beyond a reasonable doubt that this was a case of kidnapping u/s 365 PPC by the appellants but that there was no evidence whatsoer,'er that the appellants haLl made any kidnapping for ransom and as such the appellants should onll' be convicted and sentenced for an offense u/s 365 PPC and not s.365 A PI',C anti that it was not a case which fell within the purview of the ATA. Appellant Qari j

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Amin-ul-Haq did not contest his conviction under s.13 (d) oi the Arms ordinance 1965. In support of his contentions he place<i reriance on orangzaib v The state (2018 scMR 391) and shahid alias Kaloo V The state (2009 scMR s58).

10.Learned DPG conceded that the prosecution had failed to pro'e the ransom element of the case but had proved beyond a reasonable cioubt that this was a case of kidnapping u/s365 ppc and he had no objection t. the con,icti.n and sentences being modified accordingly. The learned counsel for the complainant under instructions after cliscussing the case w,ith the Dpc also hari no objection to this proposition. The DpG antl complainant were ars..f the view that this case did not fall within the purview of the ATA. 'rhe DpG and the complainant however submitted that the prosecution had proveci its case beyonll a reasonable doubt against apperant eari Ami.-ur-Haq untrer s.13 (cr) of the Arms Ordinance 1965.

11-. Having gone through the evidence on record we are of the view that the prosecution has proved its case against the appellants beyot.rci a reasorratrlc tloubt in respect of the offense u/s 365 ppC through the evicience of the complainant, PW 2 Muhammad Gul (the abtluctee) and other pW,s especially as the appellants were caught red handed with the abductee in their captivity against his will w,h.

were both arrested on the spot. one unricensed Karashniko, was als. rcc.r..eret{ from appellant Qari Amin-ul-Haq at the time of his arrest. with regard t. the evidence that the appellants had kidnapped the complainant's son for rarrs.rrr we find that the prosecution has not been abre to provL" this aspc.ct clf its case beyond a reasonable doubt in that there is no evidence that trre mobire ancr srM which was recovered frorn the appellants at the time of their arrest lirrk.tr the appellants to the CDR and ransom calls to the complainant as the- slM r'as in thc name of Asghar Ali and not the appellants who was not even examinecl as a pW and no voice recordings for the ransom demand were exhibitecl. It is als. a, admitted position that no ransom amount was ever paid. The abductee was arscr recovered unharmed ancl it may also be observed that the appellants have already spent over 10 years in jail. Thus, in respect f of the ransom aspect ()f thc case the appellants are entitreti to the benefit of the doubt. with r.garei k., the conviction of appellant eari Amin-ur-Haq uncler s.l3(tl) of the Arms ordinance 1965 since the unlicensed weapon was recovered from him when he was arresteti

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on the spot we find that the prosecution has provcr.l tl_ris offcrrse ag.r rnst appellant Qari Amin-ul-Haq beyonti a reasonable doubt.

72' we are of the view that this case does not falr within the purvierv of the ATA since according to the evidence there was no design, obiect or intent to cause terror and thus the provisions of the ATA will not applv. Even otherwise simple kidnapping under s.365 is not an offense which fals within the pur'iew of the ATA

13' Thus' based on our reassessment of the eviclence .n recortr antr *,r-rirst taking into consideration the above cited case law, the arguments of the appellants, and the no objection given by both the DI,G anri the colnplainant to the appellants only being convicted uncier s.365 ppC ancr apptlra.t ear.i Arnirr- ul-Haq being convicted under s.13(d) of the Arms orrrinance 1965 we hereb' b' exercising our judiciar discretion under s.423 Cr.pC modify the convictions anel sentences of the appellants as un<ler:

"Both the appe.llants stand convicte d U/ s.365/3alppC anrl are both sentenced to under go RI for 7 vears and both arc ordered to pay compensation of Rs.100,000 t() the complainant failing which if any appellant is in default l,rt, shall undergo SI for a Iurther 6 months, Appellant Qari Amin-ul-Haq stands convictetl u/s 13(tl) Arms Ordinance 1,965 for keeping in possession unlicensecl Kalashnikov and is sentenced to R.l for two years antl to pay a finc of Rs.20,000/-. In case of default of pavment of finc., he shall furthor suffer S.l for six months more,, There is no conviction under the ATA anrl the sentences shall run concurrently and both the appellants shall ha'e. the benefit .f s.3t32_ B Cr.PC

1.1 The appeals stand dismissed except as motlified above.

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