NADEEM ALI S/O MUHAMMAD MITHAL (Appellant) VS THE STATE (Respondent)

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IN THE HI GH COUR T OF,E{NDH AT,KARACHI

Special Crl. AT Jail Appeal No.67 of 2018

Present:

Mr. l\stice Naimatullah Phulqoto Mr. IusticeMohammaa@

Appellant: Nadeem AIi S/o. Muhammad Mithal, presently conlined in Central Prison, Karachi through Mr.

Abdul Razzaq, Adv ocate.

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

Date of hearing: 2'1.05.2019.

Date of Judgment: 29.05.2019.

I UDGMENT

MQHAMMAD KARIM.KHAN AGHA, I,- Appellant Nadeem Ali was tried by learned Anti-Terrorism Court No,X, Karachi in a case arising out of Crime No,769/2A14 U/s.365-A/34 PPC read with 7 ATA,'1.997, P.S. SSHIA, Karachi in Special Case No.A-276 of 20'1.4, vide judgment datecl 31.01 .2018, the appellant was convicted for the offence u/s 365-4 PPC r/w section 7(1) (*) of ATA,7997 and sentenced to undergo Life Imprisonment, In Crime No.B7/201,4 U/s.23(1)-4 of Sindh Arms Act, + 201,3, P.S. AVCC/CIA, Karachi irr Special Case No.A-277 of 2014 the appellant was further convicted for the offence U/s 23(i)A of Sindh Arms Act, 2013 and further sentenced to undergo R.l. for 05 years. Both the sentences were ordered to run concurrently (the impugned judgment).

Z. The brief facts of the prosecution case are that on 24.06.2074, complainant Khan Bahadur came at P.S, SITE Superhigl-rway Industrial Area, Karachi and stated that on 22/23.06.2014 his younger brother narnely Abbas Ali alongwith his family and one relative Muhammad Itafiq hacl gone to Sukhia Goth to attend marriage ceremony in a car bearing registration No,AEP-694 (maker Cuore, green colour). He further stated that after attending the marriage ceremony, his brother Abbas Ali left his family over there and returned back to his home situated at

Dumba Goth alongwith Muhamrnad Rafiq and both went missing and their rnobile numbers viz, 0315-2567229 & 0311-1805428 were turned-off, Later on complainant Khan Bhadur l'rad received a call from one Abdul Khaliq (friend of Abbas AIi) on his mobile lrlo.0312-2L1'2588 from mobile No.0315-2567229, who was talking in Urdu but with Pashto accent and informed him that his l:rother Al"rbas Ali and said Muhammatl Rafiq were under his custody and also clemanded Rs.50,00,000/- (Rupees Fifty Lacs) as ransoln amount for their safe release, Thereafter, the complainant had again received a call on his mobile phone from cell No.0313-2537238, the caller was talking in Urdu but with Pashto accent and again inquired about the ransom amount and so also directed the complainant to arrange the ransom amount as demanded. In the light of complainant's report, FIR bearing No.1.69/201"4 was registered against the unknown culprit(s). Based on spy information, the police were able to recover the abductees from a house where they had been detained against their will for over 17 days and arrest the appellant on the spot.

3, After completion of investigation of these cases, reports u/ s '173 Cr,P,C. were submitted by the I.O, against the present accused in the concerned Anti-Terrorism Court which amalgamated the aforesaid cases for joint trial in terms of S.21 M ATA 7997 and thereafter charge was framed against the present accused to which he pleaded not guilty and claimed to be tried

4.ln order to prove its case the prosecution examined 6 prosecution + witnesses and exhibitecl nurnerous dclcuments and other items and tl'rereafter closed its side. The accused recorded his statement under 5.342 Cr.PC whereby he denied the allegations against him and claimed his false implication. He also recorded his evidence on Oath u/s. 3a0(2) Cr.P.C. and called one witness in support of his defense thereafter, the side of the defence was closed. After appreciating the evidence on record the trial court convicted and sentenced the accused as per the impugned judgrnent. Hence, this appeal against conviction has been filed by the appellant.

5.The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated

31.01.2018 passerl by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

6, After the reading out of the evidence and the impugned judgment and arguing the matter at some length learned counsel for the appellant dic{ not press his appeal on merits in respect of his conviction under 5.365 PPC of kidnapping and abducting with intent secretly and wrongly to )- confine a person as he conceded that based on the evidence on record the prosecution had proved this offense against the appellant beyond a reasonabie doubt and as such his sentence should be recluced to reflect the applicabie sentence under the law for an offense under 5.365 PPC' Learnecl counsel for the appellant however strenuously argued on merit that based on the evidence on record the prosecution had failed to prove its case against the appellant for committing an offense under 5.365 A PPC being the kidnapping or abduction for extorting property or valuable security etc since there was no any evidence on record to prove that any ransom ciemand had been made let alone paid or for any offense under the ATA 7997 as no fear or insecurity had been caused to the public by the offense urrcler 5.365 PPC and as such he contendetl that he shoulc-l be acquitted from the charges in respect of these offenses.

7.When confronterl with this situation learned DPG contended that basecl on the evidence on record the prosecution had proved its case against the appellant beyond a reasonable doubt in so far as the appellant had cornmitted the offense under S.365 PPC but conceded that the prosecution had failed to prove its case against the appellant for an "1,997 and thus he offense under 5.365 A PPC or any section of the ATA had no objection if the appellant is convicted and sentenced for an offense only under 5.365 PPC for which he had been put on notice at the time of framing the charge since an offense under 5.365 PPC was a pre contlition to proving the offense under 5.365 A PPC.

L We have carefully gone through the evidence on record and in our view based on the eye witness evidence of the abductees, the arrest of the appellant on the spot, the abductees being shown to the police on the pointation of the appellant in a room in the house from which he was arrestecl outside whilst keeping watch and being armed with a firearm for

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which he did not possess a license, other corroborative ocular evidence and recoveries we are fully satisfied that the prosecution has proved its case against the appe[lant beyond a reasonable doubt in respect of an offense under 5.365 PPC and as such we hereby convict him of such offense. We are however based on the evidence on record not satisfied that the prosecution has proved its case beyond a reasonable doubt that the appellant has committed an offense under 5.365 A PPC since in our view the evidence that a ransom demand was made is not corroborated by any nraterial on record. For example, the relevant mobile phone from which the alleged ransom demand was tnade was not recovered; there is 1o CDR available or any recording of the demand and it appears that no ransorr was in fact paid. We are also of the view that no act was caused scr as to bring the offense within the purview of the ATA 1997. Thus, in our view the appellant stands convicted only for an offense under 5.365 PPC/34 PPC, S.23(1)-A of Sindh Arms Act, and he is acquitted of the clrarge under 5.365 A PPC and.S.7 ATA 1997.

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g. We are fortified in our finding by the case of Abdul Adeel V The State (2009 SCMR 511) which is also a case which was originally charged under 5.365 A which held as under at P.516 Para's 10, 11 and 12;

"10. In the abozte-noted circumstances, tlrc abduction and detention of Sneed Almrcd at secret place is proued to the hilt, ylpping come to thnt conclusiorT, roe hape Siuen our serious thougltt to tlrc nnthte nnrrnted hy PW-I. According to PW-'\, lrc receiued huo telephone calls hy + unidenttfied person for arrangtng rfinsom' Horueper, horp muclt rfrnsom ruas to be arranged, runs not mentioned in tlte F./,R. at all, either any rnnsom runs paid for tlrc relense of the abductee, Sneed Ahnted abductee has not stated before the trisl Court that the nppellants demanded ransom ftom Iis fntlwr. According to hint, lrc and Noman lqbal accused ruere released and dropped at a deserted place after truo days of captittity. He further stated that after the release he nccompanied Noman lqbnl to his house nnd it runs the- father of Nonmn lqbnl ruho infarrned the police about tlte presence of nhductee in lis ltouse. Tlrcre is no hint in the stntement of Saeed Ahnrcd tlmt tlrc nppellants lrud demanded ransotn. Though tzao cell phones were shown to haue been recoaered from the possession of the appellants but there is no eaidence on record that they were used by the appellants for demanding rnnsom. The statement of Raees Ahmed PW-l is not supported by any other corroboratory eaidence. It is

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settled law that benefit of atl doubts is to be giaen to the accused,

11, ln the aboae'noted circumstancest in our considered uiew, the prosecution faited to proae the motiae behind the occurrefice. Howetter, as noted aboae, it stood proaed that Saeed Ahmed u)as abductee and was kept under detention at secret place.

1,2, For all what has been said aboaer we alter the conaiction ,f the appellants from offence under section 365-A/34, PPC to offence under section 365/34 P.P.C the appetlants are in jail for tnore tharu six yearq so their sentences are reduced to the period already serued out bv them in iail. This appeal is partht allowed and the impugned iudgments are modified accordingly. These are the reasons of our short order of eaen date," (bold added)

10.T'hus, for the reasons discussed the above the appeal is partly allowed and impugnec-l judgment is upheld but its convictions and sentences are altered/modified to the extent that the appellant is convicted under 5.365 PPC/34 PPC and sentenced to 7 years RI and to pay a fine of RS 100,000 and is convicted under S. 23(1)-A of Sindh Arms Act and sentenced to 5 years RI. The sentences shall run concurrently and the appellant shall have the benefit of 5.382 B Cr.PC. The appellant stands acquitted of the charge under 5.365 A PPC and S'7 ATA.

11.The appeal stands disposed of in the above tertns' ^t -r.

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IUDGE

Arif