ABBASS S/O MUHAMMAD YAMIN (Appellant) VS THE STATE (Respondent)

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IN THE HIGH CO URT OF SIND H, KARACHI

Present:

Mr. lustice Mohammail KaimKhan Agha Mrs. lustice Kausar Sultana Hussain' a

Criminal A A No.170 of 2020

Appeilant: Muhammad Shakir S,io' Bashir Ahmed through Mr. Habib-ur-Rehman, Advocate' Complainant Muhammad Ilyas through Mr' Sanaullah Brohi, Advocate.

The State Through Mr. Muhammad Iqbal Awan' Additional Prosecutor General'

Criminal ATIA No.176 of 2020

Appellant Abbas S/o. Muhammad Yamin through Mr. Moula Bux Bhutto, Advocate'

Complainant: Muhammad Iiyas through Mr' Sanaullah Brohi, Advocate'

The State: Through Mr. Muhammad Iqbal Awan' Additional Prosecutor General'

Date of Hearing: 25.10.2021

Date of Judgment: 28."10.202L

IU DG MENT

Muhammad MOHAMM AD KARIM KHAN AGHA . T:- The A ppellants Court Shakir and Abbas were convicted in the Court of Anti-Terrorism Cases No'420 /201'9 inCrime No'189/2019 u/s' No.XX, Karachi in Special No' 420-A/2019 I85/386/34PPC R/w section 7 ATA,1997, Special Case Special Case in Crime No.191/2019 u/s. 23(I)-A of Sindh Arms Act and Sindh Arms Act No.420-Bl2019 in Crime No'792/2019 u/s' 23(1)-A of Page 1 of 7 Muhammad Arif

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registered at P.S. Al-Falah, Karachi vide |udgment dated 08'10'2020 and in were sentenced to R,l. for 05 years and to pay fine of Rs'25'000/-each each section and in default of payment, the appellants were to undergo further R.I. for period of 06 months in each section' However' they were 4 also given the benefit of Section 382-8 Cr'P.C'

2.The brief facts of the prosecution case as per FIR lodged by complainant Muhammad Ilyas are that on 08'05'2019 he had received a

phone call from mobile phone No'03 093467787 on his mobile phone

No.03452532605 and the caller introduced himself to be Chingari and

demandedextortionamountofRs'25,00,000/-andissuedthreatsofdire consequences. The complainant had also been receiving bhatta calls from as bhatta' same number and thereafter the caller demanded Rs'10'00'000/- from mobile On 16.05.2019 the complainant had also received phone call SIM No.034 47844562 whereby the caller had made the demand of went to PS and Rs.500,000/- as bhatta from him therefore, complainant a call from lodged his FIR. On23.O5.2O1g the complainant again received called him at the said caller who had finally demanded Rs.25,000/- and Bagh-e-Malir Puliya along with extortion amount'

3.It is further alleged that after receiving such call the complainant situation which contacted on "15" emergency and told them the entire told lead to one ASI Ramzan coming to his shop where the complainant police him about the entire situation. Thereafter' ASI Ramzan called Abbas' HC mobile bearing registration No'SPB-718 wherein HC Ghulam pointed place' Yousuf and PC Saleem Shahzad had come and went at the Thereafter, they reached at the pointed place along with poiice officials started waiting for who hide themselves near to the place of incident and Usman' the the accused persons. Two culprits had come to Mohammad under the friend of complainant and their accomplices were standing briclge (puliya). As and when the complainant handed over Rs'25'000/- to

them as soon as the said Persons turned back the police officials spot whereas two of intercepted them and caught hold of them on the of incident towards, their accomplices managed to escape from the place Page 2 of 7 Muhammad Aif

>qq main Road Shahral-L-e-Faisal. Due to the public place police did not make any fire shot uPon absconding accused'On inquiry the apprehended and accused persons disclosed their names to be Mohammad Shakir Abbas. Their search was conducted in presence of complainant of { Muhammad Ilyas and Muhammad Usman and the personal search accused Shakir led to the recovery of one pistol of 30 bore along with of magazine toaded with three live bullets from the fold of his backside his pant. His further personal search was conducted which led to the

from recovery of Rs.25,000/- (bhatta amount which was received by him the complainant). All notes with denomination of Rs'1000' two mobile possession' phones i.e. Q mobile and one Nokia along with SIMs from his The personal search of accused Abbas was conducted which led to the

recovery of one pistol of 30 bore along with magazine loaded with two was lives bullets from the fold of his trouser' His further personal search Rs.1100/-, conducted which led to the recovery of one wal]et containing NIC and one mobile phone Q of black colour along with SIM No.03092467781 from the left side pocket of his trouser' The apfrehended accused to be accused persons disclosed the names of absconding accused Persons suleman alias Ghouri and.Tariq alias Nomi. The arrested the on an inquiry disclosed the weapons to be unlicensed' ThereaJter' arrest at ttre police sealed the recovered articles and police made their brought at PS spot. Thereafter, they both along with case ProPerty were of Sindh arms where such FIRs were registered against them u/s 23(l)-A Act respectivelY at the same P'S'

the

4.It is further aileged that during the course of the investigation No'198/2019 u/s accused Suleman was arrested on 04'06'2019 in Crime he admitted his 23(I)-4 of Sindh Arms Act and during interrogation involvementinthiscasetherefore,InspectorAhmedAliSolangimadehis arrest under such memo of re-arrest in presence of complainant Ilyas' This

,' the trial court .

co-accused was acquitted by

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5.During the course of investigation the CDR of the relevant mobile SIM numbers belonging to accused as well as complainant party was

sought by the investigation officer and after completing the remaining investigation the charge sheets against the accused were filed before the

t court of law having jurisdiction'

6.After usual investigation the matter was challaned and the and claimed appellants were sent up to face trial' They pleaded not guilty trial

and 7 Tnorder to prove its case, the prosecution examined 04 PWs recorded exhibited various items and other documents. The appellants that they their statements under section 342Ct.P.C.whereby they claimed They did not were innocent and had been falsely implicated in this case' give evidence on oath or call any witness in support of their defence'

trial court

8.After appreciating the evidence on record' the learned convicted and sentenced the appeilants as set out earlier in this |udgment their and hence, the aPPellants have filed these aPPeals against convictions and sentences'

before the trial

9.The facts of the case as well as evidence produced judgment dated court find an elaborate mention in the impugned the same may not be 08.10.2020 passed by the trial court and, therefore' repetition' reproduced here so as to avoid duplication and unnecessary

10.Learned counsel for the appellants have contended that the

falsely implicated in appellants are completely innocent and have been the prosecution this case at the behest of the Pakistan rangers; that any offence being witnesses are planted witnesses and did not witness recovered from them committed by them; that the pistols which were the CDR from the were foisted as too the alleged extortion money and the oflence of extortion and recovered mobile pones does not link them to should be acaluitted of as such for any of the above reasons the appellants , Page 4 ol 7 Mulammad Aif

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of their the charge by extending them the benefit of the doubt' In support contentions they have placecl reliance on the case of Dr' Muhammad Abrar v. the State (SBLR 2010 Sindh 816).

11.On the other hand learned APG appearing for the State and learned counsel for the complainant have fully supported the impugned judgment. In particular they have contended that the evidence of all the

be relied PW's is reliable, trust worthy and confidence inspiring and can on the upon to convict the appellants; that the appellants were arrested and mobile spot by the police with unlicensed pistols, the extortion money phones one of whose SIM's matched with calls made to the complainant's

phone and as such the prosecution had proved its case beyond a

reasonable doubt against both the appellants and as such both their they placed appeals should be dismissed. In support of their contentions (2020 scMR 853)' reliance on tl-re case of Muhammad Yaqoob v. The state 1,2. We have heard the arguments of the learned counsel for the and learned appellants as well as learned Additional Prosecutor General entire evidence counsel for the complainant and have gone through the and the which has been read out by the learned counsel for the appellants' considered the impugned judgment with their abie assistance and have relevant law including the case law cited at the bar'

13.Based on our reassessment of the evidence we find that the beyond a prosecution has proved its case against the appeliants reasonable doubt for the following reasons;

(a)The FIR was lodged with promptitude which left no room for in the FIR concoction. rnu.o-itui"ant did ttoi "u^" the appellants case otherwise he and as such had no intention to fix them in a false would have named them with a specific role'

(b)The complainant and PW 3 Usman were independent witnesses who had .,o with the appellants and no reason to implicate "r,-iay we-re present when them in, tulr. .urJ ut'J gut'u "uidt''t" that they appellants and when the extortion *;;;y wal handed over to the the police arrestei the appellants on the spot from whom the pistols from extortion *o.r"y *u' '""o'"'"d along with unlicensed SIM. They acted as each of the acJused and mobile phtne and They were not chance mashirs for the memo of arrest and recovery'

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witnesses and were not dented despite a lengthy cross examination and we find their evidence to te reliable., trust worthy and confidence inspiring and we beiieve the same'

(c)That the appellant's were caught red handed with the extortion phones and SIM's on the spot by -on"y and the unlicensed pistoli and recovered the above items a the police who then arrested them under tnemorandum.

who were

(d)With regard to the evidence of the police PW's no enmity has been i.'"t""i "a ,n? ,i*" of the arrest and recovery they had no- ieason to involve the Iuggested against them and pistols or ap!"ellants in-a false case by foisting either the unlicensed money on thern lt is r'iett settled by now- that in the "lttt*^ absence of arrf ill will or enmity the evidence of the police rely upon the witnesses can be relied upon and as such we -tu*": 11 reliance is p'laced on the case oi Mushtaq Ahmed V this respect The State (2020 SCMR 474)'

(e)Significantly the SIM belonging to one of the recovered mobile appellants which ;i;;t belongea to the nephEw"of one..of .the and the SIM which created a direct ti.,t. Uetw"ett the appellant as the could not possibly rlr"" U""" foistei on him especially appellant's nephew was living in the Punjab' from the SIM

(f)The CDR record reveals that a call was made recovered from one itt" "pp"ff"nts to the compiainant on the day "f to pay--the extortion when the complainant was instructed to go ;;;y *ni.f, o.,.u again links the appeliants to the offence' evidence and even if

(g)That all the PW's are consistent in their we consider these there are ,o*" .o.,ouii"l""t in their evidence material and certainly contradictions as minor in nature and not prosecution case and the not of such materiality so as to effect the reliance is placed on conviction of the appellant' In this respect Khadim Hussain v' Zakir Khan V State il-G SCvrn fi93i and The State (PLD 2010 S;;t;;" fi 66g)'The evidence of the PW's provides a believable cirroborated unbroken chain of events from '"" of the FIR to the arrest of the extortion A"*^.,a' io'tlfi" t"gitoutl"" receiving the ii-r" or", th" sfot bi.the.P,olit"-,whilst "pp.ir."t, and mobiie phones and a extortion amount *itft t"tiitt'"la pittott the extortion demand' SIM which linked the appellants to who was extended the

(h)That the case of the acquitted co-accused footing to the benefit of the doubt itl" " ."*pletely.differentno recovery was spot' in that he was not arrestld on the "pp"iir"" or other material was made from him and ttoltliuUtt identification by the prosecution to link him with the offence' producecl h

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Muhammod Aif

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(i)We have aiso considered the defence case in juxta position .to ifrat of the plosecution which is of false implicate simpliciter by the Pakistan.u.g".r. The appellants did not give evidence on oath in this respect, iroduced nt complaint lodged by any family members and did that they were in illegal detention of the Rangers for 7 days not proiuce any witness from their house hold or even neighbour to support their defence case who could have stated that he/she witnesiecl the appellants being picked up by the rangers' Thus' in the face of trust worthy, t"tiuUt" and conJidence inspiringa prosecution evidence we find the defence of the appellants to be mere after thought.

1.4. We find however that the offences do not fall within the purview of and that no the ATA 1997 as there was no design or intent to create terror mernberofthepublicwasterrorizedastheincidenttookplaceintheearly at the hours of the morning when no member of the public was available convicted under place of the incident and as such the appellants are not and u/s 23 (1) the ATA '1997 butare only convicted t/s385/386/34 PPc

A SAA.

15.We also note that the appellants are first time offenders and are of also the sole young age and are capable of reformation and that they are mitigating factors bread winners of large families and hence taking these reduce the into account by exercising our judicial discretion we hereby terms of imprisonment for each appellant from 5 years to 3 years

S'23 (1) A

(including fine) in respect of convictions u/s 385 PPC and shall have the SAA. Both sentences shali run concurrently, the appellants under the ATA benefit of 5.382 (b) Cr.PC and now that the convictions to under the have been removed any remissions which they are entitled Iaw.

The appeals are dismissed except with tegard to modification in

sentence as mentioned above

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