SHER MUHAMMAD S/O MUHAMMAD YAQOOB (Appellant) VS SPL JUDGE ATC NO. IV KARACHI & ANOTHER (Respondent)

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IN THE EIGH COURT OF SINDH AT KATTACHI

Present ,\. i. Justice Mohtilr ilnd Kaim Khan Agha ,)ir. lustice Khadir Hussain Turio,

'\ SPL, CR. A.T. IAIL APPEAL NO. 190 oF 2020

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SPL. CR . A .T. IAIL APPEAL NO. 1910F 2020

SPL. CR. A .T. IAIL APPEAL NO. 192 oF 2020

Appetrlant: Sher Muhammad son Muhammad Yaqoob thlough Mr. Habib-ur- Rehman Jiskani, Advocate.

ResPondent: The State through Mr. Muhammad | ! Iqbal Awan, Additional Prosecutor General, Sindh.

Date of Hearing: 13.04.2022

il Date of Announcement: 79.04.2022

IUD G MENT

Mohammad Karim Khan Agha, J. Appellant Sher Mohammad son of Muhammad Yaqoob was charge sheeted to face his tdal in three Special Cases

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No.443l of 2019 arjsing out of FIR No.121 of 2019 under sectir.rn t- 384/385/38b/' ).1 PPC ry'a scction 7 ot ATA 1gg7 rcgistercd at pS Super Market, Kalachi, Special Case No. 444 of 2019 a sing out of FIR No.122 of 2019 under section 353/ 324/ 34 WC t71,t section 7 ol AT A 7997 registered at IrS Super Market, Karachi and Special Case No.444-A of 2019 adsing out of FIR No.1Z of 2019 under section 23(1)(a) of SAA 2013 registered at PS Super Market, Karachi. The appellan! vide impugned iudgment dated 27.07.2020 passed by the lea:ned Judge, Anij-Terrorism Court No.IV, Karacii was collvicted and sentenced u/s.265-H Cr.P.C, as underr

(a)Accused Sher Muhammad s/o Muhammad Yaqoob is lound guilty ofoflences { s.384/ 385 / 386/34 PPC t/w Section 6(2) (k) punishable under section 7(1)(h) of ATA 1992 and is convicted and sentenced to suffer imprisonment Ior five years and fine of Rs.10,000/- (Rupees Ten Thousand), in case oI delault in payment of fine, he shall Iulther suffer fwo months mote.

i (b) Accused Sher Muhammad s/o ivluhammad Yaqoob is Iound guilty of the offences u/s. 353/324/34 PPC rlw Section 7(h) ol ATA7997, and is convicted and sentenced to suffer five ytja:s impdsorunent and fine o{ Rs.1Q000/- (Rupees Ten Thousand), in case of delault in payment of fine, he shall futher sulfer two months mo-'e. ,

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(c)Accused Sher Muhammad s/o Muhammad Yaqoob is found guilty oI the offence u/s.23(1) (a) of Sindh Arms Act 2013, and is convicted and sentenced to suffei impdsonment Iot tfuee years and fine of Rs.5,000/- (Rupees Five Thousand), in case of default in payment of Iine, he shall ludher suJfer one month more.

1 A11 the sentences were ordered to run conculrently. The appellant was also extended benefit o, section 382-B C!.P.C.

2.[he brief facts of the prosecution case as per FIR 121/2019 are that the

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compt+inant is running general store, with the name and style of "Mujahid

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General Store" near Iram Backerc Liaqutabad-04, Karachi when on 21.06.2019 at about 05:10 hours, complainant received a phone call on his mobile No. 0345-2293488 and his yourrger brother also received a phone call on his number 0333-2493286, from mobiie numbers 03A7-2955670 and 0335-2191251. The caller introduced himself that he belongs to Lyari Gangwa!, and demanded cash of Rs.20,0O000/- (Rupees two million) as extortion money (Bhatta) and issued threats of dire consequences to them. He threatened them that in case of flonpayment of extodion money they would Iace dire consequences. Hence, complainant registered said FIR.

3.The Iacts as narrated in the FiR Nos.122 ol 2019 ar.d 724 ol 2079 bott. registered at PS Supe! Market are that on .06.2079 complainant PI Haseebullah Qureshi SHO of Super Market PS1 along with his subordinate staIf, was busy in paholling duty within the jurisdiction of tlrc PS. I/hilst patrolling complainant Muhammad Shahid s/o MulEmrnad Mujahid informed t,re SHO that 1'.e has lodged FIR beadng iJo.1,21, ol 2079, t/ s.384/335/386/34 PPC at Supel Market against the cuiprits who are demanding extortion money from him. He further disclosed that extortionists asked him on phone to reach Teen Hatti Bridge, Nadi Kanara, Lyari Expressway, Liaqutabad for payment of extortion money to the tune of Rs.1,00,000/- (rupees one htndred thousand), he informed the SHO regarding his deal with culp lts and that he is present near Teen Hatti Bddge to pay the extortionists. The SHO dkected Muhammad Shaliid to wait there and wait for him. SHO reaclred Teen Hatti B dge along with police officials and met with complainant and directed the complainant to remain present at the pointed place, where the accused directed him to come. The complainant went to dle pointed place i.e. Lyari Expressway, Nadi Kinara, accused persons came there, when he handed over an envelope of extortion money to two persons, who were present along wili1 motorcycle. Just after the extortion money was paid P4.2 ot9

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the police party tried to apprehend the extortionists however on seeing the police party, they started firing upon the police paty with intent to kill them, which lead to the police pafty firin, on them in selI cleJence. Resultantiy, both suspects sustained bullet inju es and fell down. The police party apprehended them, along with the motorcycle beadng Registration No.KHJ- ^ 8041, Maker Union Star 70. On enquiry they disclosed their names as Sher Muhammad and Akbar Ali. In presence of witnesses their personal seatch was conducted. The police paty recovered ftom the possession of accused Sher Muhamrnad, one pistol of 30 bore, number rubbed, having black colour with brown colour butt, loaded magazine with four live bullets and one live bullet in chamber loaded, one envelope of extodion money of Rs.1,00,000/-, one Q-Mobile containing two SIMS and cash of I{s.200. From the possession of accused Alber, police party recovercd one T.T. Pistol of 30 bore, having black colour, rubbed number, loaded magazine with three live roends and one bullet in chamber loaded, one mobile phone of G-five, containing two SIMS and cash oI r\s.150. Both suspects failed to produce valid license/permission oI arms and ammunitions. AJter completion of legal fonnalities the police party retumed to the police station and the aforesaid FIRs were lodged against the above named accused persons.

4.AIter usual investigation I.O. submitted charge sheet before the Flon'ble Adminishiitive Judge, A"C where in accused Akber Ali, Sher Muhammad and Siddique were shown a(ested thereafter case was transferred to the trial Court for disposal. AII three cases were amalgamated t/s.27-M ol ATA, 197 being connected matterc and Special Case No.443 of 2019 declared as leading case.

5.The charge was lramed against the accused Sher Muhammad s/o Muha:mnad Yaqoob in which he pleaded ilot guilty and claimed trial as did co-accused Akbar who died during the course of the trial with the case abating against him and co-accused Siddique who absconded during the tuial.

6.iThe prosecution in order to prove its case examined 07 PWs ard exhibitud various documents and other items. The statement of accused was

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recordpd under Section 342 Cr.P.C in which he denied all the allegations leveled againct him and clairned false implication. The accused neither examined tumself on oath nor produced any DW in his defence

7.AIter hearing tie pqdies and appreciating the eviri.,lce on record the tfial coud convicted the appellaht and sentenced him as set out earlier in this iudgment. Hence, the appellant has filed this appeal against his conviction.

8.The facts of the case as well as evidence produced belore the t al cou* ) find an elaborate mention in the impugned judgment dated 2Z .OZ .2020 passed by the trial court and, therefore, tile same may not be reprcduced hete 60 as to avoid duplication and unnecessary repetition.

9.Learned counsel for the appellant has contended that the appellant is completely irmocent and has been falsely impticated in this case by the complainant in collusion with the police and this was why the FIR was lodged alter an unexplained delay of 4 days; that the appellant was already in police custody at the time oI the incidenti that his fiream injury was inJlicted upon him by the police when he refused to pay a bribe to them; that the pistol, phonq and alleged extortion amount recovered ftom him was foisted on him t- by the police; that thele ate major conkadictions in the prosecution evidence which renders it urEeliable; that thete is tothing to cothect him to the demand for any extortion money; that no police officer was injuled during the so called encountet; that the oral evidencc is conkadicted by the medicai evidence and as such for any or alt of the above reasons the appellant should be acquitted of the charge by exteirding him the benefit of the doubt. In suppolt of his contentiont he placed teliance on the case of D1. Muhammad Arar v'The State (SBLR 2010 Sindh 816).

10.On the other hand leamed Additionat prosecutq General Sindh has contended that the complainant's evidence, CDR data and recovety of the extortion money on the spot from the appellant prove the offence of extortion; that the appellant was affested on the spot in injured condition al:tei am encounter with the police; that an unlicensed pistol was tecovered ftom the appellant when he was arrested on the spot lollowing a police encounter in which he was injured and thus the other offences for which the appellant has been charged have been proved beyond a reasonable doubt and as such the appeal should be disrnissed. When confronted try the court the learned ApG conceded that based on the particular facts and circumstances of this case no offence under the ATA had been made out. In support of his contention, he i; placed reliance on the caaes of Ali Nawaz v The State (2021 p. Cr. L

J 909),

Shah Nawaz v The State (2020 MLD 466) and The State/ANI v Muhammed Arshad (2017 SCMR 283).

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P6S.4 of 9

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11 We have heard the arguments of the leamed counsel for the appellant through the and learned Additional Prosecutor General Sindh and have gone enbre evidence which l'.as been read out by the learned courrsel for the appellant, and the irnPugned ,udgment with their able assistance and have

bar' I corEidered the relevant law including the case law cited at the

12.AJtet our reassessment of the evidence we find that the prosecution has a reasonable doubt the charge against the aPPellant for which Proved he was onvicted, except in respect of the offences under the ATA of which he judged 1S keeping in view the fact that each criminal case must be on its oivn particulal {acts and circumstances loi the Jollowing leasons;

(a)lt is true that thq FIR was lodged alter a 4 day delay and that su'h facts and delay can be fatal to the Prosecution case' Baged on the Paticular case that circumstances of this case we do not find it fatal to the Prosecuhon Ior extorhon as the FIR was not lodged until4 days aJter the odginal demand ion demand will often in such type cases the comPlainant hoPes that rlle exto rePrisals the not be car ecL ihrough and as iil tiis case often out oI fear of comPlainant is reluctant to inmediately lodge the FIR a fact which we must in Kara'hi be alive to keeping in view the Prevailing law. and order situation and the number of violeflt acts which are carried out daily by organized the city ln this gangs/groups with the collection of bhatta being prevalent in Iu"u- p""t"on," alegedly belonging to the Lyari gang war demanded the Ii urry €vent the FIR was against ur*nown pelsofls as su'h "rtortio., ^on"y. uP a false case there was no attempt by the cofiPlainant or the Police to cook against the aPPellant oiherwise he would have been named in the FIR The thus had no cJmphinant Jso hatl no Proven enmity with the appellant and has ,"u"or, to i-pli.ut" hi* in a false case ln additlon neither the Prosecution delay in lodging received any undue benefit from the delayed FIR nor has the h based on the the FIR caused any plejudice to the apPellant and as such patticular Iacts and circumstances of this case we do rLor find the delay in respect relian'e is ioaging tft" fIn to U" tatal to the Prosecutions case' In this phled-on the case of Muhammad Nadeem elias Deemi v The State (2011

scMR 872).

who was

(b)According to the cvidence of PVJ 1 Muhammed Shalid in tor*iog u g"n".ul in Uaquatabad Karachi and who G the comPlainant "to,e on zr.oo.zotg he received a call from a member oI Lyad gang war oi" "uJ" demanding extortion money failing which he would Iace consequences '[te to each other' on including lting on his shop and home which were near persons for extortron and on 25.06.20i9 he [dged his FIR against unloown RS one iac as exhortahon^money 26.06.19 after negotiations he agreed to Pay to the caller at an agreed location He infolmed PW 4 Haseebullah Quershi an agreed locatici-I where SnO fS Sup..,r1urtJ who infoiine'l him to wait ai they met uP and decided thai the complainalli would go to tLe location amount dre agreed agreed with dle extortionists and pay the extortion .Atwait for the lay in lo-cation pW 4 Haseebullah Quershi and his Police Party extortiofl money faom exto*ionists who aldved on a motor bike and took the themselves in order PW 1 Shahid Munamrned whereupon the police ievealed i urr'E Pase E or9 l

\s3' to arrest t}le accused who Iired on the police who as Per the evidence of Pw 4 Haseebullah Quershi retuJled fie which lead to the aPPellant being shot by the police and being apprehended on the sPot along with ransom amount, phone and unlicensed fte arm. Neither of these two eye wihiesses had any enmity with the appellant and l,ad no reason to imPlicate him in a false case. they were not dented despite lengthy cross examinations and as such we believe their evidence.

G) lllere evidence is co oborated/supported by the following evidence on record;

(i)The recovered extortion money of RS 100,000 whtlch was found in the poEsession of the appellant on his arrest on the sPot in an envelope in denominations of Rst000.

(1' The m"r,,cr of arrest and rrcovery which fully suPPorts dle prosecution case which was made at the :: ,t ajld contains all matedal details iflcluding recovery of emPties at the spot at P.85 of thd paper book which is set out below for ease of RtrGAI{DING ED PERSONS

E OF AT{MS

EXTORTION MONEY

I presarce of the followint lrit esses, tonight I the PVSHO Haseebullah Qneshi posted ot P.S S p Marlat ncconrynied uith ofickls Hq517 Mulutnnlad Nas..er1l, HCfl2819 Sled Munit Sluh, PC/1109 Nioz Afridi, Diaet P923755 Rehin Pasla by means of ofuial mobile Topta SPN-126 ruerc bltsy in area patrolling rcgar.ling suryessiofl of crime that iluing patrcllirtg one perca1t toho disctoseil his nafie as MuharnfiLil Shahid s/o M harflfiad Majahid phofled ,ne alld infon$d that I haoe legistercil the Case Cifle No,721,t2079, Ws 3W85/386131 PPc R/s 7 ATA at Police Statio supet Malket against extortiofiists, tlou these ettortionists arc ilefiTtuilblg extottion, I told then that I carl paq tlem Rs.7 lac, tlon the! said ne . Phone that yolt briltg 1,s.1 lac at lndet tee hati btidge, Lyati exPruss u.t'\J, Nadi Kiflaray, Liaquqtdba.d bltt ilo not be oaet slrtatt else yo will be,tlltrilered, he f rthet said that flou he is flear teefl hatti, I the SHO told hint d.o tlot go fiinheL I afi corniflg to !o1r, I the SHO acconpaflieil rDith officials b! ,fleans of o/ficial nobile rcacheil neat teerl hatti bidge a1ld ,flet @ith inforr et afld told hin thnt they haae to artest the accuseil Persotts' lott go Lrith fiofle! at the afoftsaid Place told bY thefi, I afi cottiflS behifiil yot TDith ny officiak, I the SHO oery tactfltlly alighted the officials 't:1d wefit towal t{5 Nnili afiil sau) sL.rctl! there TterL t*o pnr"or" on or" *oto1.trcle, M harnmad Shahid gaoe thu:i eruetop of Rs,7 lac to then, I the SHO with the help of dcconpanieil olficials by e circlitlg ffied to apprcheniL thent both accuseil pe$ofls ift feat of thei afiest statted fiittg u)ith their pistols ofl police pattA uith ifitefltiort to con nit filtrilet, I t\rc SHO lot the safety of m!€Elf ond offciils b1J ltsing the ri8]1t of self-defense nade huo frcs with 'gMM Pistol, PC Nilu Atidi nade nio fites uith official SMG and PC Relun Pasla matu tluo fres ultl1 offciil gMM, then both accuseil persolls rcceioed bullet injaties it1 light legs became illineil .rd fell doun, they u.)erc apptiheruted by etcirclilg tuitll hclp of accompallicd officials.

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\sZ Upon enqdry, they iliscloseil their nanes c' Shet Muharnnail s/o Muhammad yoqoob, 2) Akbar s/o Mohurldin, dle to non- aoailabili\l of pioale uitfiesses, ftotl accotlldnied persons M ha naLi Slnlid s/o Mul1att11tntl ]anal, ofrcials, i,C Reha11 Pasha and PC \tnz Altidi werc i:ide uitnesses of the Memo. Upot, coflil cting their perconal sealch frofii 7) Sher Mrhammad s/o Mrhanuad Yaqoob /torrl his ight hand holdirlg o e TT pistol 3,-borc, m lber scratcheil, black colo r, haflille blowfi, on ight side of its batel ifl Eflglish eflyaoed as "Maile in Pakistah cal 3o-bore A tofiatic" ofle b llet loaileil in chafibet tutil fo t routltls loadcil ifi fiagazifle .oas lecovercil, tpot conducti g f rther seorch lrorfl the right pocket of his wearing Qaffieez the ertortiott fltofley of Rs.1 lac ifi efloelop iflside fiuo :e:es uith de ofii1', i' tofl af Rs.5000/- er.h, the ufibers uiritten on otes a6 1) BQ-69i;3649, 2) N-87733i7, s) AU-05744s9, 4) AL- 5097091, 5) BQ-696866s, 6) AL-4s19948, 7) BC-1826573, 8) BB- 8326373, 9) BB-6749j52,10) AQ-62s1.600, 11) W-1272593. 12) Q- 8925827, 13) Av-3635268, 14) tsC-2965573, 15) 5-3207072, 16) AW-600227j, 17) AQ:2760397, 78) 8A-2533866, 1.9) AV-8751750, 20) AT-1090509 )ere recotEred, fwther from hh front pocket one Q-mobile model D-6 with tuo Telenor sirns, black colour anil cash Rs.200/- u)ete recooered from 2) Akbar sh Molliuddin conducliftB lis search ift his tight hand holdillg o e TT pistol 3)-bore black colour n fiber scfitched one bullet loaderi in cl@fiber, three loaded in nlngazine was rc;.ottered, Lpofi cancfucting further searciL I jtottl lle lefl Wcket of his ueaing pant one mobile Phone G-5 nodel G-3370 black coloar with sirns of lazz afiil l/fone h1 use a d Cash Rs,750/- t0ds rccooereil, Both occuseil Wrcons uere demandeil licenses of rccoovreil atms uhich lhey foiled to produce, s ch a.t of o.cuse(.! petsons is offeft@ U/s 353fr24/34 PPC R/w 7 ATA U/s 23(1)A SAA, hence aftet appising then about tleir case cime both accused persotls uere duly aftested. Frotfi the spot bullets fircd bA ccrceil persofls 04 enpties of 30-bore and enlpties of official SMG, foul enpties of official gMM pistol wete tecaoered, uthereas, ofle bullet due to firifig of acc sed pelsons one bullet hit at left side body of olficial mobile and its matlc is dtailable. The notorcycle in use of accused persons No.KJlT-8041 malet Union Stdt 70-CC, black colour, engine N0.5AE1341,17, Chasis N1.5AC1,41450 denandEd .locnments of its olofierchip but bolh acc'used persofis failad to produce the sane, hefice, ass ning it s atcheil property uas seized by poLice U/s 550 C|.P.C, prepared fl& filetflo on tlQ spot. Etorl the accuseil persons iecooered afltg afirnutitiol7, the erfi?ties lecooereil froth spot arlil the extortiotl fioney were sealeil anil seizeil sepdrutely, obtaified the iigfiatures of toitnesses on , cfio afid parcels, tle ;aL:rsonal search and :;ictotcycle uas s.iz.2 btl police, ifiJbrm,:l' lrolice control regatding pilice el1co1o1ter a d arca police fiobile us c Lied also anb lances r\erc called rlliclt reacled on spot. Letter of iniuled acdtseil persofls were gioerl to ASI Shaukat Ali, the acc seiL percofis ueft seflt thl'ough ambulaflces for *eatme t at Abbasi Shahee.l Hospital.

Meflo rcgatilitlg alrest of acc seil pelsofis afld seia$e was prcparcil on the spot, ftail ooer to the Toit lesses who adfiitteil it to be cofiect anil sig@il thereofi,

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(iii)The pi5ioi r€covered Iron,l the appellant on lds a est on the spot lead to a positive FSL repot when rnatched with t1]e rccovered empties at t}rc spot.

(i") During the police encounter the appellani ,'as shot in the leg which is'colroborated by the medical evidence. There is no

e1 blackening around the wound which indicates that it was not irrllicted by the police on him at close range and as such ties in t with the police evidence of the distance between the accused and the police during the encounter being about 15 feet.

(v)The police mobile dunng the encounter was hit by a bullet as confirmed by a positive FSl, report and photo's.

("i) The mobile phone which was recovered and Irom which some calls were made to the complainant belonged to PW 3 Muhammed Khalid an independent witneEE who had reported that his phone had been stolen from him by two persons on motor bike to u/hich he lodged an FIR. He had no enmity with any one and had no reason to rnake up a false story and did not even know that his phone Iiad been stolen by the accused as he was not in a position to identify the accused as the accused wore a mulfler on his Iace when he robbed hirn of his phone.

(vii)The CDR date reveals that on the day oI the incident calls were made frcm the phone which was recovered from dre appellant to the complainant at the very locatiofl where it had been arranged for the exto ion amount to be collected.

(viii)It has come in eeidence that absconding co-accused Siddique was the master mind of the extoition who it was suggested worked with the complainant and therefore knew ever,v aspect of his business and ivas related to the deceased co-accused Akbar who died during the trial and who according to the evidence played a full pa* in the attempted extortion of the complainant and later encounter with dre police.

(ix)That all the PW's are consistent in their evidence and even there art some conhadictions in their evidence we consicler

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these contradictions as minor'in nature and not mate al a d certainl,v 11ot of such materiality so as to '.I ?ct the prosecution case/evidence and the conviction of the appellant. 1n this respect reliance is placed on the cases of Zakir Khar V State G995 rcMR 1793) and Khadim Hussain v. The State (PLD 2010 Supreme Court 669).The evidence of the PW's Provides a believable corroborated unbroken chain of events from the time the appellant and the co-accused dernanded the extortion money.Irom the complainant to the lodging of the FIR to the negotiation down of the extortior. lnoney to the complainant inJoiming the police oI the place where the extortion money was to be paid to the payment of the extorhon money to the police encountd to the afiest oI appellant on the spot in an injued condition after the encounter from where ihe extoltion money and ur icensed pistol was recovered from him and a phone which tluough CDR data also linked him to the extortion demands.

(") That the police PW's had no proven enruty or ill will towar ds the rppellant and had ,1o reason to falsely implicate him in this-

1s 8 case for instmce by foisting a pistol and the extotion money on him and in such circumstances it has been held that the evid,ence oI lie police PW,s call be fu[y relied upon. In this respect leliance is placed on Mushtaq Ahrned V The State (2020 scMR 474).

I (xi) That although there may be some defects/omissions in the proEecution case/investigation these are only of a minor nature and do not dent the prosecution case or lead to any benefit of the doubt being given to the appellant. In this respect reliunce is placed on the case of The Slate/ANMuhammed Arshad

(2017SCMR 283).

(.ii) Undoubtedly it js for the prosecution to prove its case against the accused beyond a reasonable doubt but we have also considered the defence case to see iI it at all can caste doubt on or dent the prosecution case. The appe-llant has not put up any meariingful defmce case and has simflr claimed that he was falsely implicated by the police as he refused to pay a bribe which has not been proven at all and i6 a conmon delence in such type of cases. Interestingly/signficantly in his 5.342 Cr,PC sratement the appellant admits beint taken to hospital for rnedical examination which is in line with the prosecution case. As such in the face of reliable, hust wo*hy and confidence inspfuing prosecution evidence we disbelieve the defence case which has not ca6te any doubt whatsoever of the prosecution case.

13.We, howev:r, find that these offences do noi fall within the prryiew of the ATA as held in the case of chulam Hussain V State (pLD 2020 SC 61) as there was no intent, purpose or design to create teror and only an atbempt to collect extortion money pdvately and sedetly from the complainant arld as such the appellant is acquitted of the olfences under the ATA.

74, Resultantly the appeals are dismissed however the convictions and sentences are only upheld with regard to the non ATA olfences so charged.

The appellaat shall have the benefit of S.3g2 (B) Cr.pC and any rcmissions available to him undet the law.

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