UMER FAROOQ S/O MAQBOOL AHMED & ANOTHER (Appellant) VS TH STATE (Respondent)

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INTHE HI GH COURT OFSINDH, I(ARACHI

Present:

Mr. f ustice Molranunad lhrhn Iilran Agha Mn lustice An$ad Ali Bolrlo

Spec ial Criminal A.T.T .A. No.52 of 2022

Appellants: 1,.Umer Farooq S/o, Maqbool Ahmed,

2.Muhammad Dilshad S/ o. Muhammad Yaar through M/ s, Liaquat Hussain and Owais Sheikh, Advocates.

Respondent/The State: Through Mr. Muhammad Iqbal Awan, Additional Prosecutor General, Sindh Date of hearing: 2s.08.2023.

h Date of Judgment: os.q.2o2s.

I UDG M ENT

a M HAMMAD I(ARIM NA The Appellants Umar Farooq S/ o.

Maqbool Ahmed and Muhammad Dilsh adS/ o. Muhammad Yaar have filed this appeal against the judgment passed by the Anti-Terrorism Court No.XV, Karachi fludicial Complex ATClns, Cenkal Prison, Karachi) dated 21,.02.2022 in new Special Case No.1'9 of 2021' (OId Special Case No.261 of 2020) arising out of F.I.R. No.198/ 2020 U / s.365-A & 34-of the Pakistan Penal Code, l860,read with section 7 of the Anti-Terrorism Act, 1997 registered at P.S. F.B. Industrial Area, Karachi whereby the appellants were convicted and sentenced to life imprisonment along with forfeiture of their properties under section 365-4 of the Pakistan Penal Code, 1860. Benefit of section 382-8 Cr.P.C. was also extenclecl to the appellants.

2.The facts of the case are that cornplainant Muhamrnacl Usruan Ali S/o. Israr Khan lodged FIR bearing Crime No.198/ 2020, registerecl at Police Station F.B Industrial Area on 03.09 ,2020 under section 365-A/34 of the Pakistan Penal Code, '1,864, wherein he stated that he was resicling at l-Iouse No.3, Pak Peoples Colony, Block No.21, F.B. Arca l(arachi ancl used to run his hotel narnecl as Karachi Awami Hotel, For about 6/ 7 months two persons, whose names he came to know later to be Umar Farooq and Muhanrmad Dilshad had been coming tlrere to eat meal that is why, acguaintance cleveloped with them. On 02.0 9.ZOZO tl're complainant along with his friend was taking nreal, in the meanwhile,

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accused Umar Faroog and Dilshad arrived and sat there, who were given some food by tl're complainant from his food. Both the accused took the food, in the meanwhile son of complainant namely Suleman aged about 18 months started weeping in the l^p of the cornplainant. The accused persons asked the r cornplainant to hand the child over to thern as they would provide eatable things to the chilcl and would return back. The cornplainant handed his child over to the accuseci anc{ paid Rs.10/- too. Iloth the accused took with them Suleman, the son of the complainant at about 09:00/09:30 pm. After passage of sufficient time, the accusecl did not turn up as a result thereof complainant became anxious. The cornplainant then started searchirrg the child along with his relatives. In the I11eal1\^rlrile, cornplainant received a lnessage on his Cell No.03 44-2852711, from cell plrone No.0307-2596176 in which it was written that son of the complainant namely Suleman was with them and it was saicl to the complainant to arrange ransom amount of Rs.300,000/ -.It was further written in the message that they would come into contact after half an hour, Since, the balance in the mobile phone of the complainant was not present as such the complainant came into contact from cell number of his friend Muhammad Shahzad S/ o. Muhammacl t Narvaz viz: 0300-3329009 with cell No.0307-2596176 and he conversed with accused Umar Farooq. Accused Umar Farooq disclosed to the complainant that his son Suleman was with him and co-accused Dilshad. The complainant was told to arrange immediately the ransom amount and the accused woulcl come into contact af.ter an hour. Again accused Umar Farooq called the complainant and told the complainant that he was sending rnessage showing the account numbers for ransom amount. In the message two numbers were mentionecl viz: 0303-0287@5 and 0305-3633767 in which the anrount rvas to be sent by the complainant as demanded by tlre accusccl. Tlre accusecl were in contact rvith the complainant. TIre complainant tlrcn canre nt tlrc police station and caused the instant FIR rcgistcred. In thc course of irrvcstlgation section 7 of the Anti- Terrorisnr Act, 1997 was adclcd.

3.After completion of invcstigation charge wils framed against the accusecl on 18.01.2027 to which ttrcy denicd tlre allcgations ancl clainred trial.

4.The Prosecution in order to prove its case examinecl 03 witnesses and exhibited various documents and other items. The statements of the accusecl were recorded under Section 942 Cr.P.C who claimed false implication in connection with a financial dispute with the complainant and a certain,

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encroachment. Flowever, the appellants did not give evidence on oath or call any D.W. in support of their defence case.

5.After appreciating the evidence on record, the trial Court convicted and sentenced the appellants as set out earlier and hence, the appellants have filecl r this appeal against tl'reir convictions and sentences.

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

7 ' Learned counsel for the appellants have contended that the appellants are entirely innocent of any wrong doing and have been falsely implicated in the case on account of a financial and encroachment dispute that they had with the complainant hence the delay in lodging the FIR; that no abduction took place; tl'rat there is no evidence of any ransom demanct being made and no ransom money was recovered and that this is a case of no evidence and that for any or all

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the above reasons the accused should be acquitted by extending him the benefit of the doubt. In support of their contentions they placed reliance on the cases of Amir Muhammad I(han v. The State (2023 SCMR 566), Tariq Pervez v. The State (1,995 SCMR 1345), Muhammad I(han and another v. The State (7999 SCMR 1220), Mian I(halid Perviz v. The State through special Prosecutor ANF and another (2021 SCMR 522), Muhamrnad Rafiqtre and others v. The State and others (2010 SCMR 385), Akhtar Ali ancl others v. The State (2008 SCIvIR 6) and Muhamrnad Akram v. The state (2009 scMR 230)..

8.On the other lrand Aclclitional Prosecutor General Sinclh of behalf of the State has fully suPPot'tccl tlre inrpugncd Judgnrent anci contenclerl that since the prosecution lras provcd its case against the appellants throqgh reliable eviclence the appeal be dismissed,

9.We have heard the argutneltts of the learned counsel for the appellants as well as by leanred Additional Prosecutor General Sinclh, gon€ through the entire evidence which has been read out by the learnect counsel for the appellants, ancl the impugned juclgment with their able assistance and have considered the relevant Iaw including the case law cited at trre bar. ^

10.After our reassessment of the evidence we find that the prosecution has I , NOT proved beyond a reasonable doubt the charge against the appellants for I which they were convicted based on the particular facts and circumstances of the ' c"se and the fact that each criminal case must be decided on its own unique evidence for the fo[owing r.easons;

(a)It is true that the FIR was lodgect af ter a delay of 6 hours however

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I based on the particular facts and circumstances of the case we do not find this omission fatal to the prosecution case as usually in cases of children I going rnissing the parenti firstly use their best efforts to trace out their child before going to the police.

(b)That the evidence of the complainant cloes not appeal to natural human conduct. Namely, that he handed over his 18 monlh suckling son to 2 virtual unrelatecl sh'angers who he had only known on and oft tor 6 to 7 rnonths on account of them sharing his food and also gave them 10 rupees to bty food for the child. Such a situation is completely un believable and does not appeal to logic, couunonsense or reason. The cornplainant hirnself could i-,i.ru given Iiis young son food or brought him a toy himself at 10 RS especially keeping in view the fact that babies who are only lSmonths old eit special food. Wl',ere clict he expect the accused to get such food from?

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(.) Furthermore, who abducts a child who is given to them by its father to go and bry food for tl're child? Is this even abduction? Again this cloes not appeal to natural human conduct. This is because the abductees knew the complainant and knew the complainant had handed over his son to them and obviously if they made any attempt of abduction or ransom clemancl they would be caught by the police as the complainant knew there identities especially as they were living next cloor to the complainant in a space which he had let thern use.

(d)That his friend Muhamrnecl Shazacie was an inrportant rvitness rvho according to the complainant's eviclence was wiih hinr cluring this occurrence and the complainant even hacl to use Muharnnrecl Shazarle's phone as lris battery Iracl run Iow in orcler to talk to tl're abcluctors. I-Iowever Muhamnred Shazade was not callecl as PW to corroborate the cornplainants evidence and nor was Muhanlmeci Shazacle's phone seizerl. Under Article 129 (g) Quanoon-e-sltahc'lat Orclinance 198.1 the aclverse inference can bc trtacle tlrat Multanrnrecl Shazacle wotrlcl not have suPPorted the Prosecution case,

(e)Like wise Tayab was an inrportant witness who was give up by the ra Prosecution. I-Ie was an inrportant witness as accorcling tq the cornplainant Tayab had provideci the SIMS to one of the accusecl from whom the ransotn dernincls were made. As with Shazade mentionecl above adverse inference may be drawn that if not called as a PW he woulcl have suPPortecl the prosecution case. The same consicterations apply :ot.

to the complainant's brother Shaukat who went to the PS with the complainant to lodge the FIR and was searching for the child. If called all tlrese witnesses .o,lld have corroboratecl the prlsecution case but hav ingu

been dropped by the prosecution the adverse inference can be drawn that they would not have supported I the prorucution case.

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(f)The ransorn clenrancl has not I tr been aclequately proven through CDR, volce recorcting and even the message allegedly rur,i to his mobilswas not recovered ol otherwise proven.

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(g)There is no Proof that any rausorn demand was with drawn from any bank' I{ow could such amount of money be affanged in such a small / perioc{ of tirne. There is no eviclence thit he collected it from a bank (which would ltave been closecl at that tirne of night) or borrowed it from others.

(h)Again it does not appeal to natural human conduct that two persons having just abducted an 18 rnonth child would be sitting in plain sight by a plaza where they could be easil y recognized. Abductors go to places r,r,here the abductee is hidden arrd they cannot be identified by others with hirn.

(i)Again it is too much of a co-incidence that while the complainant is goilg to the pointed place in a police mobile to pay the ransom near Tariq Roacl he just happens to see the abductors arrd the abductee sitting near a plaza in plain sight whilst he is in a rnoving police mobile at speed at t

night time from a reasonably far distance'

being arrested near a busy plaza no

0)TSat despite the appellants i,a.p.r.,dent wihress undel 5.103 Cr.PC was associated with their arrest and recovery of the abductee. Instead the police and the complainant acted as mashirs which again defiacts frorn the prosecution case where there are har dly any witnesses to the so called abduction and ransorn demand.

(k)That tlre accusec{ Irave both alleged false inrplication over a financial dispute and an encroacltrneltt dispute witlr the conrplaiuant for which the complainant lrad good renson to fix tltenr in a false case which cannot be simply ruled out,

(l)In short for thc rca$ons nrcntioned above we finci that the prosecution case does not ring truc anrl wc fincl that we cannot safely rely on the evidettce of the contplaittant for the reasons nrentionecl above which we clo not find be co^ficlence i,spiri,g ancl thus canrlot safety rely upon it,

11' It is a well settled principle of crinrinal law that the prosecution must Prove its case agai.st the accusecl beyond a reasonable cloubt ancl that the benefit of doubt must go to the accusecl by way of right as opposed to concession and in this case we have found many croubts in trre prosecution case.1

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lz. Thus, for the reasons discussed above, by extending the benefit of the doubt to the appellants they are acquitted of the charge, the impugned judgment is set asicle, their appeal is allowed and the appellants shall be released unless 'wanted in any other custocly case.

13.The appeal stancls disposecl of in the above terms.

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UDGE

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