SARFRAZ alias BHOORA S/O SAKHI MUHAMMAD (Appellant) VS THE STATE (Respondent)

A X,* fi.-T-^h.l , d-f"--'a-Yl No f--r\^--{ s /a- F.f\ qzlt CiJITTIF]CATL' O t l rur --,,Le LL,UI\ 1 lrr .rwu

SINDI-I IIIGII COURT

c4 '4' .[i;'9 t/ I ), s4.// ) Conrp ositiorr ol lJent:lr n t-^"r-, A-/( V.""')

elD.B.

W{^?-- A?*

1} M-i/ \,\-*^.4* )at LL 6-1,/A4

/)-L\ 4-*-'

Dates of lte.uing:, 9;'o '1 . >-P zt'

Dccidc(l ,:n \r1 ''l 1 )- t2'<>

yrl'

(r)Judgnrent aPProvcd for Ycs reporting. E' I

I

CB]It TIFICATE

a/Orrtcris.bascd upon or otuociate's tt priucip-lc Clerliliccl tlral the jtr<tgnlent ot taw +/dccides a question "il f .tt-u it.fr- ii of fiist inrprcssion / distia$tishcs / i,r,.'i-."r.i / i,,""ise s /'cxpla in s a prr:vicus decision' lstrike out whichevct'is not applicablc

NOI'E:-(i) Tlris slip is only to tre t,scd when some actiott is to be tokoD' (iil If thc slip is uscrl, the llcadcr must 0t(acll it to tho top of lhe 0rst pagc of the iudgment.

(iii.l Rerder tnust ask the J udge writing lhc Ju<lgtncnt whctbcr tbo Jtldgnlellt is approv':d ::or reportinS' (iv.r 'l"hosc clircctions which aic rot to be used should be dcletcd' SGP., Kar.-*L (iii) 1459-5,000'-6'93--T S'S'

Ltaf

E

f r\ THE HrGH COURT OI- SrNDJI_AT KARACHT

F

Special ATA Appeal

No / 20it5

Sa rfraz alias Bhoora S/o Sakhi Muhammad ) \l uslim. Adult, Resident of Nl ujahid Colony, Street 07,

F

Katchi Abadi, Dalmia, Kn rachi.

Preasenlly confined in Central [)t ison.

@r1\ l Karachi. Al)l)t'l.J /!r \;'t'

Ver:, us

'Ihe State ITESP()l,U)t: \'r

FIR No 61141201 I f'c-j ,, U /S 365-4/34 r/w li. '7 l.'-A P.S. Aziz Bhatti, r r\ \'(-l(l,illA )

{ E\ APPEAL TIN I) ER SI'C'IION 25 OF AIY U.

T ORISNI AC'I- 199' IiEAD WITH SIi( ''1f l,i f l\ .ll0 cR.l,c

Being aggrieved and dissaristled with th,: impugnt:cl jur11;ment c-..::; lr-0-l-2015 passed by the Anti lerrorist Court No. 2 irr lipeci;il Case l. . tl 1{) I 1, whereby the abol,e narned Appellant was conr,.icre,l rvith. li-: -:;t-nnrent for Lit-e, how.ever the benefit of section 3g2-B Cr.F,.,l has tr<.- i\tended in favor ol Appellant, therefore the Altpellant ab,ove rarned L':ietirred the instant appeal praying herein to set aside the Imrrgned l,-:-rent and acquit him, inter-alia on consideration olthe lollowing irmong {r.--: l:crs and grounds:-

, (opy of the impugned Judgment (tated 2J-04-'t'01 j i:; herby ,, 'i marked as Annexurc .A,1

ITA(ITS

: i: a nutshell facts in brielleaCing to the filing of in:itarrr r,ppeal in "- r ll- l0-l0l I at about I i50 nour.s complainant narrelv ,.)aiser. l-,r-. c:ed the instant FIR in rvhich he stated thar. he li,,.es in lkrLtse \o H-. D-.--^ /-:^l: t\l^ I < r'r-l---:- r.'^---r-: rr

t4XL

ff,f HIGH COURT OF SINDH A'I KAIIAC HT Special ATA Appeal No / 2015

-?r'/

$rtr &: Bhoora *e tll Uuhanrnrad fh-

-) -'zcr' td u lt. Resident of r) Ha Colonr . Streot t)7, 1/

f*I .ffrdi. Dalrnia, Karachi.

lM, :..:tlned in Central prison. *-t/tt1 t-faa: APP[]I,I,1.NT

Versus

IL{E I{ESP()NI)Ii: \'I'

FIR No 6-15/201 I u ls 353/324il86,34 Pt (;

P.S. Aziz Bhatti

IPP t- \l_ t \t)tl II SECTION 25IO I.'AI\'tr.t RIS\I ,.\(-T l997llEA D WI'IH SIIC'TI(,N { ,ll0 ctt.PC

$'- -:= .regrieved and dissatisfied with th,: impugnecl jurlllnrent ,.' . : :essed by the Anti -ferrorist Court No. 2 in lipeci;rl Clase .. rereb1' the above narned Appellanr. was convicted rvith :.",: Lite. however the beneflt of sectiorr 382-B Cr.p.rl has .--. rir or of Appellant, theretbre the Appellant abor,.e rrarned --:r' instanl appeal praying herein to set aside the lm,],tgned ,;:.rit hint, inter-alia on consideration olrhe fbllowing, atnong Jlrunds:- (Copt, of the impugncd Judgment dted 2J-04-2,01.\ i,i herby I ,na*ed as Annexure ,A,)

'tc

L.

I

F A('IS

ihrl --- .: nutshell facts in brief leading to the filing of instant r:.ppeal tt ,r ::-.r)-l0l1 at about 1250 hours complainant rratnely rl)aiser -.-t= :t rhr' instant FIR in rvhich he stated thar_ he lii,es in llor_rse No.

X. l"-*P +.f^t t_ t4)7 \,fo ,t tu,izzwt4 \rlo y--a,.-& -:-,".-

IN THE HICH COURT OF SINDH AT KARACHI

Spl, Crl. Anti-Terrorism Appeal No.85 of 2015.

Spl. Crl. Anti-Terrorism Appeal No.86 of 2015.

Present:

Mr, Justice Mofutmmad Karim Khan Aglru Mr. lrctice Zulfiqar Ali Stngi,

Appellant: Sarfraz alias Bhoora S/ o. Sa klr i

Muhammad through Mr. M/s llasan Feroz and Shah Introze Khan, Advocates.

Respondent: The State through Mr. Saleem Akhtar Buriro, Additional Prosecu tor Gcntral.

Date of hearing: 30.03.2020 Date of Judl;ment 07.o4.2020.

IUDG MENT

MOHAM]\4AD KARIN' KHAN A GHA, I:- Accusecl Sarfraz .rli.rs Bhoora was tried by learned ludge, Anti-Terrorism C()urt No,ll, Karachi irr Special Case No.182 of 2011 arising out of Crime No.634/20.1I u/s. 365-A/34 PPC read with section 7 of ATA, 1997 antl Special Cast No.170l2011 arising out Crime No.635/3011 u/s. 353/324/186/31 PPC registered at P.S. Aziz Bhatti (AVCC/CIA). After trial vide judgrnent dated 23.04.2015 appellant Sarfraz- alias Bhoora S/o. Sakhi Muharnrnarl was convicte'd u/s. 7 sub-section 1 clause (e) and (h) of Anti-Terrorism act, 1997 for life imprisonment for offencc u/s 365-A/34 PPC as wcll as conviction of Life Imprisonment for offence u/s 6 sub-section 2 clause (rn) for offence u/ s.353/32a/ fi6/ 34 PPC. Both the sentences were orderecl to run concurrently. The benefit of section 382 (b) was also extended to tht aPpellant.

2.Being aggrieved and dissatisfied by the iudgment passed bv learned Judge, Anti-Terrorism Court No.ll Karachi, these appeals have been preferred by the appellant against his convictions.

h )-z

3.The brief facts according to the FIR No.634/2011 filed on 22.10.201.l at about 1250 hours by Qaiser Banglani are that he lives in House No.R- 246 Sindhi Para in Gali No.15, Dalmia, Karachi and was present in his house when he received on his mobile a phone call from nrobile No.

r 0341-3153210 whereby the caller gave his name as Shan saying that he is talking from Aman Committee and that he along with his otlrer accomplices hacl kidnapped his nephews Ayaz S/ o. Nazar Muh.rrlrl.rti and Sultan S/o. Wali Muhammad at about 1.1:30 am from outsiric tlrt,ir house and that to bring Rs.20 Lacs as ransom to the offict and in rcturn lris nephews will be released.He immediately informed at 15 anel had come kr PS to report for kidnapping his nephews against Shan S/o. unknown.rntl his companions for kidnapping his nephews as such to take action against them.

4.The police of W Aziz Bhatti had immediately come into acti()n. Inspector SHO Ahsanullah Jatt was on illaqa gushat along witlr prrlict' party in search of the accused persons when he received spy informati()rl that the abductees have been kept at Dalmia by the accusecl persorrs .( therefore on this information SHO along with his police partv had reachccl at 1415 hours whereupon the accused persol'ls to deter them fronr carrvirrli out their official duty started firing at the police party t() kill them with their fire arms. SHO in self defence ordered to retaliate to arrest the accuseri persons but while firing at the police party the culprits had rnacle their escape good by using the narrow lanes. The abductees Avaz. Sf Lt. Nazar Muhammad and Sultan S/o. Wali Muhammad were recoverecl from a simple constructed house where they were found blintl foltlt'tl .rntl their hands and feet had been tied by ropes. They hatl also been tortured. The abductees were released who disclosed that the accusecl pcrsons while talking to each other were taking the names of Shan, Waqas Foji, Qadir Gagan, Mehmood Kala, Sameer Cabenwala, Sunny, Asif l;oji anr.1 along with them there were other accomplices. At the instance of the relatives of the abductees they were sent to the hospital as such SLIO lracl come to f,s and registered the FIR No,635/2011 ar about 1520 hour.r

a?1

5.After registration of the FIRs, one concerning kiclrrapping [ol' ransom and the other concerning attemPt to murder and polict' clrc()u11lcr, usual investigations were carried out and thereafter a joint clrarge was framed in respect of both FIR's against accused Sarfraz on 31 t)7.2012 ttt which he pleaded not guilty and claimed to be triecl.

6.To prove its case the prosecution examined l0 prosecutior.t witnesses and exhibited numerous documents and other iteurs antl thereafter the side of the prosecution was closed. The statement of tht' accused u/s 342 Cr.P.C. was recorded in which he hacl claimecl tirat he is innocent and had been falsely implicated by the police on his failurc to pay a bribe to them. He clid not exarnine himself orr oath or call .rtrt' witness in support of his defense case.

7.Learned Judge, Anti-Terrorism Court No.ll, Karachi, after healing the learned counsel for the parties and assessment of evidence.rr'.rila[',lt' on record, vide the impugned judgment tlatetl 23.04.2015, convictt'cl ancl sentenced the appellant as stated above, hence these appeals havc becn filed by the appellant against his convictions.

8.The facts of the case as well as evidence producecl before tht, trial court find an elaborate mention in the impugned judgment, thorcforc, the same are not reproduced here so as to avoid duplication ancl unnccessarv repetition.

9.Learned counsel for the appellant has contended that r,r,ith regard ,to the kidnapping that the appellant is not namer.l in the FIR, that ncitlrcr' abductee recognized the appellant, that there was no evidence of anv ransom demand and no evidence whatsoever that the appeJlant was involved in either the kir{napping for ransom or encountcr with thc lrolicc when the police rescued the abductees from where' tht'y hatl bocn heltl .{ captive and as such based on the evidence on record the appellant bc acquitted of the charge by extending hirn the benefit of tl.re doubr.

l

t-i 3o

10.On the other hand Iearned Additional Prosecutor General has fuJly supported the impugnecl judgment ancl has contenclecJ that baser.l orr tlrt' evidence o{ the PW's which was reliable, hrustworthy and conficlenct, inspiring, the recovery of the abcluctees along with the rope in whiclr thev were tied and the recovery of empties at the scene the prosecutiorr harl proved beyond a reasonable doubt that the appellant had kidnappecl krr ransom the abductees along with his accomplices and hat{ entered into an encounter with the police whilst they made their cscape gooel frorn tht: place where the abductees werc held captive before being arrestetl later on and as such the prosecution had provecl its case beyond a reasonable doubt and the appeals be dismissed.

11.We have heard the arguments of the learned counsel for tJre palties. gone through the entire evidence whicl.r has been read out by lhe appellant, the impugned iudgment with their able assistance ancl havc considered the relevant law.

"12. In our view after our reassessment of the evidence based on thc evidence of the PW's and the abductees we are satisfiecl that tlrt, prosecution has provecl beyoncl a reasonable doubt that on 22.-10.11 Ayaz and Sultan were kidnapped and held captive in a house knowrr as l)ubai House in Gali No.15 of Dalmia ancl that on the same tlay they rvr:rt, rescued from captivity by the police following an encounter betw.ecn tl'ro culprits and the police during which tlle culprits escapetl from the scenc.

^13. The only issues therefore, in our view, left before us are (a) whether the appellant was one of the persons who kiclnappeci the abcluctr.es for ransom and (b) whether the appellant was one of the persons involvecl in the encounter with the pohce when the police came to rescue the abductees and thereby made his escape goorl before being arrestcd.

-( 14. In our view after our reassessment of the evidence we fincl that the prosecution has NOT been able to prove beyond a reasonable doubt that the appellant was one of the persons who kiclnapped for ransom tl.re abductees or was it.rvolvetl in the police encounter at the time the police.

A

t4 ?t

rescued the abductees and hereby set aside the impugnecl jutlgment ancl allow the appeal for the following reasons;

(a)Although the FIR was registered with promptiturle thc appellant is not named in the FIR but others are so namerl. It appears that his name onl), camc up tluring thc policc \- inquiry.

(b)Tllat there were two eve r,!,itnesses lvho coulcl irlentift' the kidnappers both of whorn were tlre abcluctees Sultan antl Ayaz. Sultan did not give evidence ancl I'!V 6 Avaz tltrring his eviclence in chief specificallv states that, "Iirr,ar'trrsr,r/ present in tht, t'ourt is ol tlu'srtttn'person t'lltttt llnul itltttltlrtrl ot tlu police stttion zllto htd kidttnpped nr uul hetten nt rty" I lt: was declared l.rostile ancl was cross exalnined bl the prosecution. No other witness inclucling the polict, PW's or. the complainant PW 4 Haji Banglani n,ho rvas the complainant ancl accompaniecl the police ()n the rai(l sa \^, th(. appellant at the time of the raicl when the police rescuerl the abductees. Even otherwise the complainant w,as cleclart.tl hostile and was cross examined by tlre prosecution as in his evidence he had stated that he'had forgiven the appe.llant. Furthermore, the rope found at tlre scene of the oifensc r-lot's not connect the appellarrt to the kiclnapping and n() [)W actuall), witnessell the kichrapping of the abductees

(c)With regarci to the ransom demand. No ransonr u,as 1.r.r id { and although the CDR inclicated that the compla it.r,,lltt l.taLl receivecl a call which might have concernecl rans()m th(, number/SlM which this call was made from hacJ no connection with the appellant. There was also no recortling of any ransom demand.

(d)Although r,r,e have found that an encount!.r. elirl t.rke place betvveen the police and the culprits at tht' time w,ht,n the abductees were rescuetl by the police thert' is rrtr evidence that the appellant was involved in that encountr.r.

15.lt is a golden principle of criminal jurispruclencc. tlrat thc prosecution must prove its case against tlre accuseti bel.oncl .r rr,.rsorr.rtrlo doubt and that the benefit of doubt must go to the accusetl by rvat of right as opposed to concession. In this respect reliance is placed on the case of Tariq Pervez V/s. The State (1995 SCMR 1345). wherein the Suprenre -( Court has observed as follows:-

"lt is settled laru tlnt it is not necessrtnt tlnt tlu,re slntll be many circumslances cre ing tloubts. I.f tlrcre ts tr stngle circumstnnce, rulidt crettes reasonnhla douhl in t fnrrfunt

I

q32

mind about the guilt of the nccuserl, tlrcn the nccused uill be entitletl to the benqftt not as n mnlter of grace nnd concessiort but ns a mntter of righl."

1,6. Thus, based on the above discussion we find doubt in the case of r the prosecution that the appellant was involved in eithel the kidrl.rpping for ransom of the abductees who were both rescued ancl the encounter which followed and thus by extending the benefit of the doubt to the appellant we hereby allow his appeal, acquit him of the charge atrcl set aside the impugned judgment. Consequently the appellant shall bc released unless he is wanted in any other custody case 77, The appeals stand disposed of in the above terms.

]LI t.) /,,1^

u.?(.\li o r" >-

-t