ABDUL SAMI S/O ABDUL RAZZAQUE (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COURT OF SINDH I(ARACHI

Present:

Mn lustice Moltnttrtrmd l(arbn lJnn Agha Ir4r, lrctice Anlatl AIi Rohio

S cial Crirn inal T. .A. N o.3B of.2022

Appellant: Abdul Sami S/o. Abctul Razzaq through Ms. Farzana Mateen, Advocate,

The State: Through Mr. Muhamrnad Iqbal Awan, Additional Prosecutor General, Si nclh Date of Hearing: 10.08.2023.

Date of Judgment: 15.08.2023.

TUPGMEN T

OHA MAD RIM A A :- The Appellant Abdul Sami S/o Abdul Razzaq has filed this appeal against the juclgment passecl by the Anti- Terrorism Court No.XV, Karachi dated 14.01.2022 in Special Case No.34/2021 arising out of F.l.R. No.1365/202A U/s.365-A & 34-of the Pakistan Perral Cocte, 1860, 25-D Telegraph Act, 1885 read with section 7 of the Anti-Terrorism Act, 7997 registered at P.S. Shah Latif Town, I(arachi vvhereby the appellant rvas convicted and sentenced to life imprisorunent along n itl'r forfeih.rre of his property under section 365-4 of the Pakistarr Penal Code, 1860. Berrefit of section 382-8 Cr.P.C, was also extencled to the appellaut.

2, The facts of the casc ale that cornplainant Ahsau Ali Burilo loclged FIR No.1365/2020 at Police Station S'hah Latif Town, I(arachi uucler section 365-A, 342,337-A(i) & 34 of the Pakistan Penal Cocle, 1860 and 25-D of the Telegraph Act, 1886 wherein he statecl that he usecl to reside itr l-louse No.62, Slreet No.10, I first floor, Gulshan-e-Abbas Colorry, rlear I(raldabad, Quaidabad, Landhi Block- B, I(arachi and was employed in a gartnent factory. On 12.12,2020 Israr AIi, younger brother of complainant left the house at 0730 hours for his work but did not turn up till ocld hours of the night. The con-rplainant received a call frorn cell number of his brother Israr but the caller was unknown, who said that Israr n,as -wanted life of Israr, then he caught with lis sister and in case the complainant t

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to death' had to arrange for Rs.200,000/- otlterwisc his brother would be done Tlre complailant and abrlttctors scttlccl on Rs.25 ,000/', The complainant sent Rs.25,000/- through llasypaisn or1 phonc No.0330-265871,2 as given to him' Pursualt tt'l thc payurcnt of thc rarlsolll, his brother was rclcased at about 0300/0{00 hours arrtl lvas brrlul;,ht at ltouse. Israr, the younger brother of the conrplairrant thcn rlisclosccl about thc inciclcnt that took place with him to the ct-rrlplairrant that he rcceived a call frorn unkuowu tttttnbcr, whereby it was enquiretl that rvas he Sulemarr? To which Israr replicd that no, he was not Suleman. Tire caller was a feurale, who said to Israr that she came from Hl,derabad to the house of irer brother aucl sorne work for her to be searched, on s'hich younger brother of the complainant required copy of CNIC. The female caller disclosed that she lvas simple womzur and was unaware about the ways; therefore, the carcl rnay be taken from her. As a result, Israr was taken to her house , where a person was already present, later two other Persons arrived tlrere, n,ho tied anci malh'eatect Israr and confined him. On 15.12.2020 brother of the complainant was olt the way to his work and as soon as he reached near Madina Colony, Multani Hotel, he saw a persoll involved in the commission of his abduction and called the complainant. The said person was caught and 15 police was called. Custody of that person with the help of 15 police was brought at I5. The nabbed person was Abdul Sami S/o. Abdul Razzak. The complainant alleged that accused Abdul Sami S/o. Abclul Razzak abducted his brother Israr, confined him for two days with them, extorted Rs.25,000 f - as a ransom in corurivance with co-accused Nazku S/o. Unknown, Af.zal S/o. Shalnan, Jameela W /o. Shaman and Shaman S/o. Muhammact Hussairr and maltreated him. After completing the investigation, charge sheet was submitted uncler sections 365-A and 34 of the Pakistan Penal Cocle, 1860, 25-D of the Telegraph Act, 1865, reatl with section 7 of the Alti-Terrorisur Act, 1885, rearl r.r,ith section 7 of the Anti- Terrorism Act,7997. TIre accusccl Shaman S/o. Nduhamrtratl l-lussaitr, Afzal S/o' Shaman and Jameela W/o. Shanran wcrc shown as abscclutlers iu the' charge sheet wlrereas becausc of incornpletc irrforrnatiol'l llamc clf accusetl Nazku lvas inserted with blue ink.

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3.After completion of invcstigation chargc was fratnetl against the accused on 20.04.2021, to which he deniecl the allegations ancl clairned trial.

4.The prosecution in order to prove its case examined 05 rvitnesses and exhibited various documents and other items. The statement of the appellant MuhammadArif 2

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himself accused was recorclecl uncler Section 342 Cr.P.C. The appellant examined f orr oath and produced one DW in support of lris defence case'

5.After hearing thc parties ancl apprcciating the evidence on record, the Ieanretl trial Court couvictetl anrl scrrtcncccl thc appcllant as set out earlier in this conviction and iutlgrucnt hcncc, the appcllant has filccl this appeal against his serttcrtcc.

6.The facts of the casc as well as evirlelrce pro(luced before the trial court finrl arr elaborate merrtion in the irnpugned judgment dated 1,4.01,.2022 passed by the trial court ancl, thercfore, the same may not be reproduccd here so as to avoid tluplication and ullnecessary repetition.

7.Learned counsel for the appellant has contended that the appellant is entirell, innocent of any wrong doing and has been falsely implicatecl in the case on account of old enrnity after consultation hence the delay in lodging the FIR; that no abduction took place; that there is no evidence of any ransom demand being rnade and no ransoln money was recovered and that this is a case of no evidence and that for any or all the above reasons the accused should be acquitted by extending him the benefit of the doubt. In support of her contentions she placed reliance on the case of Fazal Subhan and another v. The State (2019 SCMR 7027).

8.On the other hand Aclditional Prosecutor General Sindh of behalf of the State has fully supported the impugned judgment and contended that since the prosecution has proved its case against the appellant througll reliable evidence the appeal be dismissed.

9.We have hearcl the arguments of the learnccl couusel for the appellant as well as by learned Aclclitional Prosecutor General Sindh, gone throttgh the entire evidence which has becrr reacl out by thc learnecl cortusel for the appellant, antl the impugned juclgrncnt with their ablc assistance atrr-l have cousitlered tl"re relevant law including tlre casc law citetl at thc bar.

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10.After our reassesstnent of the eviclencc wc fintl that the prosecution has NOT proved beyoncl a reasonable doubt the charge against the appellant for which he was con,ricted based on the particular facts and circumstances of the case and tl-re fact that each criminal case must be decided on its own ur n'0"7

Muhammad Arif 3

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evidence for the follolving reasons;

(.) That the abcluctee according to tfte prosecution evidence was abclucted o1 12.12.2020, the ransom clemancl of two lacs later reduced to RS 25,000 after negotiations wfis made ancl paicl by mobile phone through eilsy paisa on the saulc dny anrl thc abrluctec was released on the sarne .ia1, snSnrmetl. Thc FIR holvcvcr was not loctgccl at the PS until 15j/22020 n,hich rvas three days aftcr the rclcase of thc abcluctee unharmed and after t6u arrest of the appcllant. No report r:f the abduction or Payment of thc rarrsolll antount was ruaclc cithcr bcfore or after thc abductees release autl as such rvc finrl that this unexplairred clclay of 3 clays in lodging thc FIR rvherl r'e,iltl in cr:nnection with the other reasons mentioned below is fatal to the prosccution case as it indicates that the complainant and the al":cluctee fixecl the appellant in this case after consultation especially as it \\,as suggester{ to the cornplainant that lre lrad enrnity with the family of the accusecl.

(b)That the evidence of the abductee regarding his abduction does not appeal to common sense, reason ancl logic. According to the evidence of tlre abductee on '1,0.1,2.2020 an unknown lady Ayesha rang him out of the blue and asked ltm for a job which he said he would look into. Then again on 12.12.2A20 this sarne lacly agaiir calleCr hirn and asked lrirn about the job. The abductee tolcl her that he would need a coPy of her CNIC however instead of telling her to bring her CNIC to hirn l're agreed to go to her house and collect it whereupon no lady called Ayesha was Present. It is not usual concluct in our society to go to an unkuown ladies house who is seeking a job from you to collect her CNIC card. Tl're situation is vice versa especially as there is no evidence that any job existed or had been arranged.

(c)According to the abductee he was then tied up and lreaten by 3 men and his pilone was used to make the ransoln demand to his brother the cornplainant who received the ransom detnaud over his phone ancl after payment of the ransom via easy paisa the abductee in as released on the same day however tl'rere is no eviclence that he receivec{ any pl'rysical injuries or trauma from his allegecl beating and detentiorr and in fact lveut straight back to work rvithout reportirrg the incident which rvas in fact reported by his brother (not hirnsclf) 3 clays after the incitlent.

(d)The abductee went voluntalily to thc house where lle was allegedly detained by 4 persons ancl rvas releasecl af ter only a matter of hours. I-Ie did not know any of the kiclnapers frorn before and would not have got a good or long look at any of tl'rem, he gave no statement after his release giving any hulia of any of the abductees so even if he was abducted we carurot rely on his correct iclentification of the appellant as being one of the abductees who he told his brother was sitting at the hotel from where he was arrestecl especially as it was suggested that tlrere was enmity betweeu Muhommad Arif 4

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the complainant party and the relatives of the appellant as supported by the evidence of DW 1.

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(e)That the appellant was allegedly detained by the police through a call to the police on emergency number 15 on the pointation of the cornplainarrt ancl the abductee whilst sitting at a hotel however no witness from the policc 15 party was callcd as a witness to Prove this fact and it tloes not make scnse that the police who were called by the complainant aptl the abrluctcc ol1 account of such a heinous crime was not arrested by olle of thc police officcrs who was callecl on 15 number on at least suspicion.

(f)That riespite the appellant being detained from a busy hotel in broad rlay light no iuclepenclent witness under 5.103 Cr,PC was associated with his arrest ar"rd the abcluctee and complainant acted as mashirs which again cletracts frorrr the prosecution case.

(g)That rvhen the appellarrt was produced at the PS on 15!12,2020 by the conplailalt where he was arrested and the FIR was registered despite the appellant not being interrogated by any one ar-rd without making any -r adrnission or con-fession before any body the FIR named l'ris co-accused along r.r,ith parentage who the complainant'had not seen and tl're abductee did not know from before. We do not see how this was possible under the above circumstances.

(h)That when the police went to where the abductee had been allegedly ,Cetained no rope or other irnplement tlrrougl-r which the abductee's hands were tied was recoverecl and no witness was called to support the prosecutiorl case that the house in question had only been rented for one duy.The person who allegedly rented the house clid not give evidence. No rental agreelrrent was produced and even otherwise it does not appeal to logic, reason or conunonsense that a person would let his house for only one day or that kidnappers would take a one day let of a I'rouse. Did they know that the ransom wouid be paid on the same day?

(i)That no mobile phones was recoverecl from tlte appellant, conrplainant or abductee to link them to the ransollt clernarrcl. No CDR vvas collectetl to Iink any one to the ransorn clcmand. No ransolll was recoverecl and as such we find that it has not even been proven that any ransom demand was made,

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fi) Significantly, it cloes not appeal to logic, comrnollsense or reason that perpehators would agree to such a srnall ransom of RS 25,000 which woulcl fiave been dividecl betwecn them minus the amount for renting the room. This would atnount to approx RS6000 each.,

q Muhanwwd Arif

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, tr.

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( k) That the appellant clenied the allegations in his 5342 Cr.PC statement and dict the salne uncter oath whereby he claimed that he was taken from outsicle his house by 4 pcrsons in plain clothes and perhaps this is the reason why rro police llletl frorn the 15 call was called to give evidence. He also produced oue DW in support of his defence case that there was an ,. l old dispute betlvcctl the complainant party ancl the accused side.

(l)In sl'rort for the reasorls mentioned above we find that the prosecution case cloes not ring true and we clo not find the evidence of either the abrluctee or the cornplainant to be confidence inspiring and thus cannot safell' rely upon it.

11.It is a r,r,ell settled principle of crirninal law that the prosecution must pro\re its case against the accused beyond a reasonable doubt and that the benefit of doubt must go to the accused by way of right as oPPosed to concession and in this case ,,rre have found many doubts in the prosecution case.

12.Thus, for the reasons discussed abo,u,e by extending the benefit of the ,doubt to the appellant he is acquitted of the charge, the impugned judgment is set aside, his appeal is allowe,C ancl the appellant shall be released unless wanted

in any other custody case.

13.The appeal stands disposed of in the above tenns

JU \ l ct I L3

JUDGE

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