MUHAMMAD SOHAIL @ KALOO @ FAHAD (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COURT OF SINDH, KARACHI

Prcseflt:

Mr.lustice Mohammail Karim Khan Agha Mr. lustice Archail Hussain Khan

SPL. CR. A.T, APPEAL NO.1O6 OF 2021,

Appellant: Muhammad Sohail @ Kaloo @ Fahad S/o Muhammad Siddique through Mr. Moula Bux Bhutto, Advocate.

Respondent: The State through Mr. Muhammad Iqbal Awan, Additional Prosecutor General Sindh.

Date of Hearing: 30.71.2022

Date of Announcement: 06.12.2022.

IUDGMENT

Mohammail Kaim Khan Agha, li- Appellant Muhammad Sohail @ Kaloo @ Fahad son of Muhammad Siddique was tried before the Anti-Terrorism Court No.VII, Karachi in Special Case No.15(vii) of 2021 pursuant to FIR No.179 of 2076 n/ s.336-B PPC r/w Section 7 AT A, 1997 registered at [€ Shah Faisal Colony, Karachi and vide iudgment dated 11.08.2021 appellant was convicted and sentenced as under:

i)Accused Muhammad Sohail @ Kaloo @ Fahad s/o Muhammad Siddique was convicted for the offence punishable under section 336-8 PPC and sentenced to suffer R.I. for life with fine of rupees One Million. In case of default in payment he was ordered to suffer S.l. for six months more. The amount of said fine. if paid by the accused was ordered to be delivered to comPlainant, as compensation u/s.544 Cr.P.C.

ii)Accused Muhammad Sohail @ Kaloo @ Fahad s/o Muhammad Siddique was convicted for the offence punishable under section 7(c) of AntlTerrorism Act, 1997 and sentenced to suffer R.I. for life along with fine of Rs.50,000/- (Fifty Thousand Rupees). In case of default in payment of fine he was ordered to suffer S.I. for six months more.

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iii)Accused Muhammad Sohail @ Kaloo @ Fahad s/o Muhammad Siddique was convicted for the offence punishable under section 337-L(2) PPC and sentenced to suffer R.l. for one (01) year.

All the sentences were ordered to run concurrently, however, the benefit of section 382-8 was also extended to the accused.

2.The brief facts of the prosecution case are that complainant Ahmer Iqbal S/o. Muhammad in his statement t/s.754 Cr.P.C. averred that he was resident of House No.A-106, Alfalah Housing Society Shah Faisal Colony, Karachi and was serving in Asian Public Grammar School as a teacher. In the same school, he met a girl Asra at his workplace, who was also teaching there. He was interested in pursuing marriage with her so he sent marriage proposal to her family to which they agreed and so did his parents. In the month of February, he along with Asra went to Imtiaz Super Market situated at Awami Markaz, Shahrah-e-Faisal, where he faced Muhammad Sohail alias Kalu who restrained Ahmer Iqbal more than once to back off from marriage as he intended to marry Asra, eventually, Muhammed Sohail alais Kalu threatened him to let Asra go however Ahmer refused and retumed home. It is the case of complainant that on 29.04.2016 at about 1230 am, Muhammad Sohail called him over cell phone, disclosed him that he has is outside his house with a little present for him, therefore, Ahmer went dowrutairs, saw that Sohail was holding a plastic mug (full of acid) and all of sudden sprinkled/threw a caustic liquid at his face, and ran off. He was left severely burned and blind and went back in his home, where his family members poured milk and water on his face and other parts of his body, he was rushed to the Hill Park Hospital by his brother in law Shaikh Sajid, who was also present there, after getting first aid he was referred to Burns Center at Civil Hospital. The attack left Ahmer hospitalized for several days, with severe bums to his face, eyes, neck and hands. ASI Israr Ahmed after getting such informalion reached at Civil Hospital tecorded his 154 Cr. PC. statement and thereafter incorporated the same in FIR Book.

3.After completion of investigation LO. submitted charge sheet against the arrested accused Muhammad Sohail to which he pleaded not suiltv and claimed trial.

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4.The prosecution in order to prove its case examined 08 witnesses and exhibited various documents and other items. The statement of accused was recorded under Section 342 Cr.P.C in which he denied all the allegations leveled against him and proclaimed his innocence. However he did not examine himself on oath and did not call any witness in support of his defence case.

5.After hearing the parties and appreciating the evidence on record, the hial court convicted the appellant and sentenced him as set out earlier in this ludgmenti hence, the appellant has filed this appeal against his conviction.

6.The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 11.08.2021 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

7.Leamed counsel for the appellant has contended that the case does not fall within the purview of the ATA; that the appellant is innocent and has been falsely implicated in this case by the complainant in collusion with the police; that the FIR was lodged alter an unexplained delay of 30 days; that the sole eye witness who saw him rururing away cannot be safely relied upon as he was related to the complainan! that his finger prints were not found on the mug from which the acid was allegedly thrown; that the confession of the accused before the police was inadmissible in evidence and for any or all of the above reasons he should be acquitted of the charge by being extended the benefit of the doubt ln support of his contentions, he placed reliance on the cases of Naveed Asghar v The State (PLD 2021 SC 500), Saeed Ahmad v Muhammad Nawaz (2012 SCMR 89), Arshad Khan v The State (2017 SCMR 564), Mst. Rukhsana Begum (2017 SCMR 595), Wazir Muhammad v The State (1992 SCMR 1134), Tariq Pervez v The State (1995 SCMR 1345), Sheral alias Sher Muhammad v The State (1999 SCMR 697), Muhammad Saleh v Muhammad Imran (2021 YLR Note 23), Moin Ali v The State (2020 YLR 1160), Rana Shabbir Hussain v The State (2005 P Cr,LJ 1599), Altaf Hussain v The State (2020 P Cr.Ll1479) and Moharram Chhutto v Qadir Bux (2021 YLR Note 24)..

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8.On the other hand learned Additionai Prosecutor General Sindh has fully supported the impugned judgment. He has contended that the complainant and PW 1 Ms Asra's evidence cotroborates each other in all material respects and can be safely relied upon; that eye witness PW 4 Shaikh Sajid correctly identilied the appellant as the person who he saw fleeing his house after throwing acid on the complainan! that the medical evidence supports the prosecution case and the prosecution had proved the motive of the appellant which was his jealousy of the complainant who was getting married to PW 1 Ms Asra who he desperately wanted to marry. In support of his contentions, he placed reliance on the cases of Ghulam Abbas v The State (2022 SCMR 1.702), liaz Ahmad v The State (2009 SCMR 99), Zafar Iqbal v The State (2010 SCMR 401), Muhammad Nadeem alis Deemi v The State (2011 SCMR 872), Gulzar Ahmad v The State (2016 YLR 1955), Muhammad Anwar v The State (7977 P Cr. L J 398) and Pervez alias Laddu v The State (2020 P Cr . LJ 1'672).

9.We have heard the arguments of the leamed counsel for the appellant and learned Additional Prosecutor General Sindh and gone through the entire evidence which has been read out by the learned counsel for the appellant, and the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar.

10.Based on our reassessment of the evidence of the PW's especially the medical evidence and other medical rePorts. acid marks left at the crime scene and recovery of the mug in which the acid/corrosive substance was thrown we find that the prosecution has ploved beyond a reasonable doubt that Ahmar Iqbat (the injured/complainant) had acid/corrosive substance tfuown on his face which lead to the loss of his eye sight and the severe disfigurement of his face and injury to his nose and mouth on 29.04.2016 at 0300 hours outside his house bearing number A/106 Al Falah Housing Society Karachi.

11.The only question left before us therefore is whether it was the appellant who threw the acid/corrosive substance at the face of the complainant/victim which caused him severe iniuries to his face as mentioned above at the said time, date and location?,

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72.After our reassessment of the evidence we find that the prosecution has proved beyond a reasonable doubt the charge in respect of the PPC offences against the appellant but not in respect of the ATA offences for which he is acquitted keeping in view that each criminal case must be decided on its own particular facts and circumstances for the following reasons

(a)It is true that the FIR was lodged after a delay of one month however this delay is not fatal to the prosecution case as the delay in lodging the FIR has been fully explained in that the complainant was confined in hospital with serious bum injuries to his face including his mouth which precluded him from speaking and that as soon as he was well enough he recorded his Section 154 Cr.PC statement which was converted into the FIR in this case. Thus, we find the delay in lodging the FIR not to be fatal to the prosecution case. In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi v, The State (2011 SCMR 872).

For assistance the Section 154 Cr.rc statement of the complainant is set out below;

"STATEMENT U/S 154 CR.P.C."

Ahmar Iqbal S/o. Muhammad Muslim aged about 24 years resident of House No.A/106, Alfalah Housing Society Shah Faisal Colony Karachi holding CNIC No.42201.-2246261-3 and Cell No.0345-3171995; on enquiry, he stated that "l reside the above address with my parents am B.S and private teacher in Asian Public Grammar School where a girl namely Asra was also teacher, I talked her for marry and sent my mother at their home for seeking her hand in marriage and they accepted marriage proposal. In the month of February, I accompanied with Asra went Imtiaz Super Store near Awami Markaz Shahrah-e- Faisal where I met with a boy namely Muhammad Sohail and Asra had also talking terms with Sohail. After that Muhammad Sohail called me on phone for abo,tt 2/3 times and asked me move back because "I want to marry with Asra." I flatly refused Sohail and told him that my marriage has been settled with Asra. On 29.04.2076 around 12:30 AM, Sohail called me on phone and asked that "Ahmar I have brought a gift for you so come down hurry." I woke up from bed, worn Qameez, went down, opened the door and saw Sohail was standing oPPoeite by holding a Mug in hand and he asked me "Ahmar take your gift" then he threw acid Mug upon my face and body, due to which my eyes were closed and I very hardly reached to upper home. My family quickly applied with milk cream on my face and body and my brother-in-law Sheikh Sajid shifted me through,

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ambulance at I€Q Hospital Hill Park where after providing me first aid and brought at Civil Hospital Burns Center. Now, I am under treatment at Burns Center and do report against Muhammad Sohail S/o. Muhammad Siddique has thrown acid upon me with intention to kill, huft my body parts and got me injured on my refusal to move back from Asra, Hence, action may be taken. Heard statement and admitted correct. Sd/- (In English) by Ahmad Iqbal S/o. Muhammad Muslim and Sd/- (ln English) ASI Israr Ahmed posted at t5 Shah Faisal Colony. (bold added)

This FIR was not materially improved upon in his evidence and is corroborated by PW 1 Asra the lady in question both of whose evidence is set out below for ease of reference;

Evidence in chief of PW 1 Asra;

DEPOSITION OF MTNESS PW-01 ASRA.

Offence has tal<en place on 29.04.2015, I was working as a teacher at Asian Grammar School as a teachcr, Preoiously I had been teaching in Anglophone Grammar Shool. Ahmad Iqbal and his brother Ahmar lqbal were also teachtrs in Asian Grammm School. Ahmar lqbal proposed me and seat his proposal at my house. I anil fiy ?arcflts toere agreeil anil use accepteil proposal and ilecideil that zoe usould get married afier one year, Eight months before the incident my brother Shan had booked online huo tablet mobile phones. After booking toithin 24 hours mobile phones tabbts receiued to my brother through one salesmaty'ider. After 15 days of reczioing of mobile phone tablets in the tablet mobile phone some technical fault

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occurred so, complaineil to concettteil company resultantly accuseil Sohail arriaeil at my house as a representatioe of saiil company. He aisiteil my house 2 to 3 times, He also starteil to call me anil shown that he is interesteil in me, I explnineil him that I am engageil, when he ilid not stop to call me I inJormed him that I am already eagageil to one Ahmar lqbal who is eilucateil percon. He stsrted weeping and iliscloseil that he cannot leaae me anil he will ilisclose about his feeling to Ahmar lqbal. Thercafter, once I was going to school in the way accuseil stoppeil me aail broken my mobile phone anil also issue thrcats that he zooulil kill Ahmar Iqbal by firing. On 28.04,2076, I usent to lmtiaz Super Store along with Ahmar lqbal zuhere accuseil Sohail also arrizted and issued thteats by saying that we shoulil leaae each other. On 29,04,2016 at about 72:00 night to 72:30 am I was making cofloersafion toith Ahmar lqbal on mobile phone uhile I uas talking to Ahmar lqbal he also recehteil call of accused on satne mobile, accused saiil to Ahmar lqbal to come downstairs he btought some gifts for him. I hearil these uords. Thereafter, I,

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stop?eil talking within 5 to 70 minutes I receioed call of accused Sohail he discloseil that I threu aciil on Ahmar Iqbal and if I should not ready to talk zoith him, he woulil cause fire shot on Ahmar lqbal and woulil not let him to go for medical fieatfireflt and would create hurilles in prooiding meilical treatTnent. Accaseil useil to extenil threats me for killing Ahmar Iqbal. Thereafter, I came to htozLt about the incident. Police also recorded my statement, Accused present in the court is sanr. (bold added)

Evidence in chief of FW 2 Ahmer lqbal.

DEPOSITION OF PW.O2 AHMAR IOBAL

I uas teacling in Asian Grammt School. There Asra ll.tns also tenclur, I met zoith her in that school I liked her so I sent ffiy mother for asking ler hand for mnrrying. Her mother also agreeil so our marriage was deciiled to

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happen, in February 2076 met with one person namely Sohail at lntiaz Super Market at Shahrah-e- Faisal he extenileil threats to me by saying that he likes Asru anil I shoulil step back, He also extendeil

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threats of ilire consequeflces U3 times on cell phone. On 29-04-2076, at 72:30 am Sohail calleil me on my cell phone anil he saiil to tne that he bronght a gift for

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me anil shall come iloun stairs so went dozon I stairs anil reacheil to my mait door, openeil theI ilool anil I saw Sohail uas standing there aail he was haoing a Mug in hk hand and in that nug there was acid he threw corrosioe substance/aciil at my face as soon he threw conosioe substance/acid at my /ace my both eyes got closed. I made hue and cry and I run to upstairs. ln the ruhile my family and my neighborhood gatlwred and they pour water and milk at me. Therenfter, ambulance was called and I was talccn to hospital and therefrom I u,as refened to Cioil HosPitnl

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Karachi and got treated tfure, Accused Sohail threw corrosioe substance upon fle because I wanted to get matry with Asra anil he tieil to kill me. Police arriued on L9-05-2016, at Cittil Hospital and recorded my statement u/s.154 Cr P.C. and obtained my signature. (bold added)

Neither PW 1 Asra and PW 2 Ahmer who is the complainant who lost his eye sight during the acid attack by the appellant were dented during lengthy cross examination. There evidence has not been significantly improved upon from there Section 161 CI'PC statement and 5.154 Cr.PC statements respectively. They have given their evidence in a straighdorward and natural marmer and in their evidence they are fully corroborative of each other in respect of meeting each other at school. falling in love, arranging a marriage with the consent of their Parents. How the accused entered the picture who fell obsessively in love with PW 1 Asra and how he threatened PW 2 Ahmer to leave PW L Asra for him right up to the time when PW 2

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Ahmer saw the appellant Sohail who he knew from the super market and his threatening phone calls throw acid in his face out of jealousy. Neither PW 1 Asra nor PW 2 Ahmer had any ill will or enmity with the appellant which would lead to them falsely implicating the appellant in this case. The appellant is named in the FIR with the specific role of throwing the acid/corrosive substance on the complainant Ahmels face. We have no reason to disbelieve their evidence which we find to be reliable, kust worthy and confidence inspiring and we believe the same.

(b)PW 4 Sheikh Sajid corroborates the evidence ol PW 2 Ahmer in all material respects concerning the incident. He was the eye witness who saw the accused after throwing the acid on the complainant Ahmer running away from the house. He lived at the house and was not a chance witness. Admittedly he was related to the complainant Ahmer however he had no ill will or enmity with the accused and as such his evidence can be safely relied upon. In this respect reliance is placed on the case of Ijaz Ahmad v The State (2009 SCMR 99). It was his identification of the accused at a tea shop which lead to the arrest of the accused within one month -t of the incident. He identi{ied the accused in court and in such cases of acid throwing based on the particular facts and circumstances of this case we can believe his correct identification of the accused despite their being no identiJication parade especially when it is read in juxtaposition with the evidence of PW 1 Asra and PW 2 Ahmer which we have already believed and placed reliance on. ln this respect reliance is placed on the case of Ghulam Abbas (Supra). He was not dented during a lengthy cross examination. We find his evidence to be reliable, trust worthy and confidence inspiring and believe the same which we place reliance on.

(c)That the police evidence is corroborative of each other and since there was no proven ill will or enrnity betvveen the police and the accused there evidence can be safely relied upon as they had no reason to falsely implicate the accused for example by planting the mug which was used to throw acid on the complainant. In this respect reliance is placed on the case of Muehtaq Ahmed v. The State (2020 SCMR 474).

(d)That the medical evidence of MLO PW 6 Dr.Ali Raza fully supports the evidence of PW 2 Ahmer and the eye- witness/prosecution evidence. It confirms that the deceased received serious burn iniuries on account of acid/conosive substance to his face which lead to the loss of his sight and disfigurement of his face.

(e)That the mug which was used to throw acid on the complainant by the deceased was tecovered at the complainant's house along with his burnt shalwar Qameez which when sent for chemical analysis produced a positive chemical report.

(f)That all the PW's are corsistent in their evidence and even if there are some contradictions in their evidence we consider these contradictions as minor in nature and not material and certainly j

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not of such materiality so as to effect the prosecution case and the conviction of the appellant. In this respect reliance is placed on the cases of Zakir Khan v. State (1995 SCMR 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 PW 1 and 2 falling in love whilst teaching at the same school to their parents agreeing on their marriage to the appellant becoming besotted with PW1 and threatening her and PW 2 to break off their relationship to the appellant tfuowing acicl / corrosive substance on the face of the complainant (PW 2) to the arrest of the accused and recovery of the mug and clothes at the crime scene which lead to a positive chemical report.

(g)In cases concerning heinous crimes such as throwing acid/corrosive substances on young people which leads to permanent disfigurement and completely ruins their lives there is a need to take a dynamic approach. The Supreme Court in Noor Muhammad v. State ( 1999 SCMR 2722) has also adverted to this aspect of the matter and has observed as under:-

"Howeoer, we fiay obserue that the people are losing /aith in the ilispensation of ciminal iustice by the orilinary ciminal courts for the reason that they either acquit the accuseil persons on technical grounds or take a lenient oiew in dwatding sefltence. It is high time that the Courts should rcalize that they owe cluty to the legal heirs/relations of the oictims and slso to the society. Sentences auardeil shoulil be such which shoulil act as a iletefieflt to the coffirflission of offmces. One of us (Ajmal Mian, C.J., as he then uas) has highlighted this aspect, inter alia in the case of State thtough the Adaocate General Sinilh, Karachi a. Earman Hussain anil others (PLD 1995 SC 7), releaant portion uhereo/ at page 19 reads as follotrtsi

(3)It is a matter of public knowledge that in Sindh, on account of kidnapping for ransomi commission of dacoities and other offences. the people are feeling unsecured. The leamed trial Court has dilated upon these aspects in detail. I am inclined to subscribe to the view found favour with it. The approach of the Court in matters like the case in hand should be dynamic and if the Court is satisfied that the offence has been committed in the manner in which it hae been alleged by the prosecution the technicalities should be overlooked without causing any miscarriage of justice". (bold added).

(h)Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable doubt but we have also considered the defence case to see if it at all can caste doubt on or dent the prosecution case. The defence case is simply one of false implication simplicitor without assigning any reason. As per the appellant he was arrested from his house however he did not give evidence on oath and did not call any witness to support the fact that he was arrested from his house and thus, for the reasons,

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mentioned above we disbelieve the defence case as an afterthought in the face of reliable, trust worthy and confidence inspiring eye witness and other corroborative /supportive evidence against the appellant which has not at all dented the prosecution case.

13.We however do not find that this case falls within the purview of the ATA as defined by a larger bench of the Supreme Court in the case of Ghulam Hussain v. State (PLD 2020 SC 61) where in essence for their to be an act of terrorism there had to be an object, intent, purpose and design to create terror on account of such act. Whether people were terrorized as a by product of the act did not convert the act into one of terrorism nor the fact that it may have been of a particularly brutal nafure. Based on the particular facts and circumstances of this case it appears that the intent of the appellant was to frighten the complainant into breaking off his marriage to Asra so that he could marry her irutead which had no object. intent, purpose or design to create teror and as such the appellant is acquitted of all offences under the ATA. In this respect reliance is placed on the case of Ghulam Abbas (Supra).

1,4. Based however on the above discussion especially in the face of reliable, trustworthy and confidence inspiring eyewitness evidence and other corroborative/ supportive evidence mentioned above, we have no doubt that the prosecution has proved its case against the appellant beyond a reasonable doubt for the offences for which he has been convicted under the PPC in the impugned judgment and hereby maintain such convictions in the impugned judgment.

15.With regard to sentencing although we have adopted a dynamic approach and undoubtedly the crime is a most heinous one and we have found that the prosecution has proved its case beyond a reasonable doubt on account of a few minor lapses in the prosecution case although not enough to dislodge the finding that the prosecution has proved its case beyond a reasonable doubt, for example, the failure of the prosecution to t produce the mobile phones and CDR data we hereby whilst relying on the cases of Zafar Iqbal (Supra) and Ghual Mohy-Ud-Din V State (2014 SCMR 1034) hereby reduce the sentence of the appellant under 5.336 (B) PPC from life imprisonment to 14 years Imprisonment and a fine of RS one million which shall be paid to the complainant by way of compensation and if the appellant fails to do so he shall further undergo,

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SI for 6 months more. The appellant's conviction and sentence u/s337-L (2) PPC are maintained.

Summary

(a)The appellant is acquitted for all offences under the ATA1,997.

(b)The appellant is convicted under 5.336 (B) PPC however his sentence is reduced from life imprisonment to 14 years Imprisonment and a fine of RS one million which shall be paid to the complainant by way of compensation u/s 544-A Cr.PC and if the appellant fails to do so he shall further undergo SI for 6 months mofe.

(c)The appellant is convicted u/ s 337-L(2) PPC and his sentence in the impugned judgment in respect of this offence is upheld.

Both the sentences are ordered to run concurrently, however, benefit of section 382-8 is extended to the appellant who is also entitled to any remission applicable under the law now that he has been acquitted of the ATA offences.

1,6. As such the appeal is dismissed except as modified above.

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