' IRFAN SAADAT KHAN, J.---This appeal has been filed against the judgment dated 26-4-2010, passed by the learned Judge, Anti-Terrorism Court No,III, Karachi, in Special Case No,107 of 2008, whereby the appellant/accused was found guilty of the offence committed under section 6(2)(k) of Anti-Terrorism Act, 1997 (the ATA) punishable under section 7(H) of the ATA and was convicted to suffer R.I. For 5 years and to pay a fine of Rs,1,000. It was also ordered that in case of non- payment of fine, the appellant/accused shall suffer imprisonment for 3 months more.
2. Briefly stated the facts of the case are that on 30-9-2008 at about 2030 hours the complainant Muhammad Farooq registered an F.I.R. Against the appellant/accused by stating that on 25-9- 2008 he received phone calls on his mobile as well as his house phone, asking him to arrange Rs,5,00,000 and the place for delivering of the same will be informed subsequently and in case of failure he and his brother would be killed. Complainant immediately moved an application to the CPLC and to the Nazim of U.C.12. Thereafter on 30-9-2008 he again received a phone call that the said culprits are coming to receive the bhatta amount from him. The complainant told the whole story to his neighbor Muhammad Ayyub and that at about 5-45 p.m. When he was present in his flat the Chowkidar informed him on intercom that a person has come to meet him. Complainant immediately informed Muhammad Ayyub about the same and requested to come down with him.
Muhammad Ayyub went to the scene with two of his friends and tried to get hold of the person, who had come to visit the complainant for the alleged recovery of the bhatta. However, the said person started firing with the result that Muhammad Ayyub received bullet injury in his neck. The mohalla people thereafter captured the said person, who upon enquiry disclosed his name as Waqar (the present appellant/accused), along with a 30 bore pistol with 3 rounds loaded in magazine. Injured Muhammad Ayyub was immediately taken to the hospital; however, he succumbed to injuries and expired. Police was informed accordingly which reached the spot and apprehended the appellant/accused. The present F.I.R. Bearing No,265 of 2008, under sections 302/385/34, P.P.C. Read with section 7(a) of the ATA as well as F.I.R. No,266/2008, under section 13-D of Arms Ordinance, was then registered at Police Station Soldier Bazar, Karachi, against the present appellant/accused. On 15-10-2009 charge against the appellant/accused was framed by the trial Court. In support of its case prosecution examined 7 witnesses. P. W.1 produced documents which were exhibited as Exh.6/A to 6/D, P.W.2 produced, documents which were exhibited as Exh. 7/A to 7/C, P. W.4 produced documents which were exhibited as Exh.10/A to 10/F, P.W.5 produced documents which were exhibited as Exh.12/A to 12/C, P.W.6 produced documents which were exhibited as Exh.13/A to 13/B and P.W.7 produced documents which were exhibited as Exh.15/A to 15/B. Statement of the appellant/accused was recorded under section 342, Cr.P.C. And subsequently after hearing learned counsel for the parties the appellant/accused was convicted as narrated above. Hence this appeal.
3. Mr. Muhammad Ashraf Kazi, Advocate appeared on behalf of the appellant/accused and submitted that since the appellant/accused has already been acquitted in respect of the charges levelled against him under the provisions of section 302, P.P.C. And section 13-D of the Arms Ordinance 1965 (The Ordinance) by giving him benefit of doubt, which according to the learned counsel were the major charges hence the appellant/accused be acquitted in, respect of the present charge under section 6(2)(k) of the ATA punishable under section 7(H) of the ATA as the appellant/accused has served major portion of the sentence and only few months are left in this sentence. He read out the depositions of the " prosecution witnesses (P.Ws.) and the judgment and stated that as per his calculation the appellant/accused has served more sentence than the one awarded to him, therefore, there is no justification for keeping the appellant/accused in jail. In support of his contentions the learned counsel has relied upon the following decisions:--
(1) Anwar-u1-Haq v. The NAB (PLD 2009 SC 388)
(2) Nazeer Ali alias Nazeer v. The State (2011 YLR 403)
(3) Nadeem Umar v. The State (1999 PCr.LJ 606)
(4) M Iqbal alias Bali v. The State and another (2008 PCr.LJ 1355)
(5) Allauddin and others v. Spl. Judge Anti-Terrorism Court No, 1, Lahore and others (PLD 2008 Lahore 74)
(6) Muhammad Tariq v. The State (2006 M-LD 511)
' However, the learned counsel after arguing the case at some length submitted that he would not press this appeal and would be satisfied if the appellant/accused be released and his sentence be reduced to the one already undergone.
4. Learned Assistant Prosecutor General on the other hand supported the order passed by the trial Court and stated that it has categorically been mentioned in section 7-H of the ATA that the appellant/accused has to serve a period not less than 5 years hence in no case the appellant/accused could be released without serving the said sentence. He further stated that in the said section the law framers have categorically used the word "shall" which is a mandatory requirement, hence, the appellant/accused had to remain in jail in respect of this period and even if assuming that only few months are left then in such case the appellant/accused would automatically be released after serving out his sentence. He, therefore, submitted that the present appeal is misconceived and is liable to be dismissed.
5. We have heard both the learned counsel at considerable length and have also perused the record and the decisions relied upon by the learned counsel for the appellant/accused. Before The learned trial Court four points were considered for determination, which are as under:- ' Point No, I. Whether the complainant was called for the payment of bhatta amount?
' Point No,2 Whether the deceased Muhammad Ayoub was murdered?
' Point No,3. To what extent present accused is involved in the present case?
Point No,4. What should be the order?
6. Learned Judge while passing the order found the appellant/ accused to be guilty as far as point No,1 and point No,3 are concerned, however so far as committing the murder of the deceased and possession of illegal weapon are concerned the appellant/accused was acquitted from both these charges by giving him benefit of doubt. However since the appellant/accused was found to be guilty of demanding bhatta from the complainant, hence by applying the provision of section 6(2)
(k) of the ATA, punishable under section 7(H) of the ATA, he was convicted to suffer R.I. For 5 years and to pay a fine of Rs,1000 and in case of default in payment of fine he shall further suffer imprisonment for 3 months more It is seen from the deposition of P. W.1 Muhammad Farooq, the complainant, that he has stated that on 25-9-2008 he received call on his residential phone from some unidentified person asking him to arrange a sum of Rs,5,00,000 and in case of failure to pay the said amount he and his brother Muhammad Aslam would be killed. Alleged caller also informed him to arrange the said amount by tomorrow and he would again call him in this regard.
Complainant thereafter filed applications before the CPLC and Nazim of the area and also informed the police in this regard. The deposition of the complainant further reveals that Ayyub Nagori (the deceased person) resided near his house and he narrated the whole story to Ayyub Nagori about receiving of the threatening calls from the culprits. Ayyub advised the complainant that when next time he receives the telephone call from the culprits he should give his (Ayyub) number to the culprits so that the culprits can contact him also. The complainant then after receiving a call from the culprits gave them the number of Ayyub Nagori who contacted Ayyub also. It was, however, decided between Ayyub, complainant and the culprits that the said amount of bhatta will be paid by the complainant to the culprits on 30-9-2008. It was also stated by the complainant that between 26-9-2008 to 30-9-2008 the culprits were constantly calling him on his residential telephone and informed him that on 30-9-2008 at about 5-00 to 5-30 p.m. The culprits will come to collect the said amount. It was also stated by the complainant that on 30-9-2008 at about 5-00 p.m. He was present at his house when Chowkidar of building informed him on intercom that someone has come to meet him. He immediately contacted Ayyub on telephone to come in the parking area of the building.. Ayyub reached the parking area of the building along with his two friends and when the complainant reached there he saw a person in the parking area talking to Ayyub. Ayyub asked the complainant to stand aside and started talking to the said person, who, according to the complainant, had come to receive bhatta from him. Instantly a scuffle took place between Ayyub and the alleged bhatta khor and a fire was made which hit Ayyub Nagori who fell down. Ayyub received injury near his neck. The friends of Ayyub, who were with him immediately got hold of the said bhatta khor who upon enquiry disclosed his name as Waqar. Complainant further stated that many people of the locality gathered at the spot and Ayyub was immediately rushed to the hospital, however, he succumbed to the injuries and finally expired.
7. The deposition of Chowkidar Imdad Hussain P.W.3 also reveals that when he was on duty on 30- 9-2008 at about 5-00 p.m. One person came in the building and told him that he wants to meet the complainant. He thereafter informed the complainant on intercom that a person has come to see him. He further disclosed that the accused was apprehended from the spot and on enquiry the said person disclosed his name as Waqar.
8. If the depositions of the P.Ws. Are read in juxtaposition, it would become clear that the learned Judge while convicting the appellant/accused has done his homework properly as it is seen from the record that the appellant/accused Waqar was not acquainted with the complainant to pay him any social visit. The record further reveals that there is no enmity between the complainant and the appellant/accused. The deposition of. The complainant clearly reveals that the culprits who were constantly calling him had categorically stated that on 30-9-2008 they will come between 5-00 to 5-30 p.m. To collect the said amount of bhatta and it is the appellant/accused who at the designated time called upon the complainant for receiving the said bhatta. A question would arise that as to whether the appellant/accused, who was not previously known to the complainant, would call upon the complainant to pay a social visit or to collect bhatta in accordance with the calls previously received by the complainant? The answer to this question is simple as in view of the facts and circumstances of the case it is quite evident that it is the appellant/accused who went to the complainant on the specified date and at the designated time to collect the said amount of bhatta from him otherwise what was the purpose of the appellant/accused to visit the complainant, who was not known to him previously.
9. After scrutinizing the evidences available on record, we are of the considered view that the prosecution has proved that the appellant/accused had gone to the complainant to collect bhatta as there is no apparent reason available with the appellant/accused to visit the complainant otherwise than to collect bhatta and that also on a particular marked day and at a particular marked time. However, due to the intervention of the deceased and other mohalla people the appellant/ accused could not succeed and was apprehended from the spot. Hence, in our view, the prosecution has proved its case against the appellant/ accused beyond any shadow of doubt and the appellant/accused is not entitled for any leniency.
10. We have noted that bhatta now a days is becoming a menace for the society, it would not be out of place to quote here observations made by the Hon'ble apex Court of Pakistan in the case of Watan Party and another v. Federation of Pakistan and others, reported as PLD 2011 Supreme Court 997, wherein the Hon'ble apex Court in para-64 observed as under:--
64. It may be noted that as far as offence of extortion of money is concerned, which can also be considered as bhatta, it is covered by sections 386 to 388 of the Pakistan Penal Code and also falls within the definition of terrorism given in section 6(1)(k) of the Anti-Terrorism Act, 1997.
Undoubtedly, sufficient legal framework as discussed hereinabove is available on the statute book, but the same is lying dormant because of its non-application as people do not have trust in the law enforcing agencies to counter the deadly and influential persons who happen to terrorize the innocent citizenry and due to this reason no one comes forward. It is common knowledge that mafias i,e, groups of criminals involved in the commission of heinous crimes, such as recovery of bhatta, extortion of money, business of illegal weapons; narcotics, drugs, land grabbing, etc., had been working in other countries as well in a highly organized manner. Reference in this behalf may be made to the Sicilian and American Cosa Nostra, an Italian group also working in New York, but in those countries the crime was controlled by promulgating and implementing stringent laws, which we also have in our jurisdiction, namely, Anti-Terrorism Act, 1997, therefore, we can also control the same by applying such laws strictly. In USA, to control such underworld mafias, the State authorized through the courts seizure of properties of such like persons, if it was established that they had acquired such properties out of income from the proceeds of heinous crimes. In this behalf reference may be made to the case of Bracy v. Gramley, Warden, [520 U.S. 899 (1997)], wherein the Supreme Court of United States did not show any concession to the culprits. There are so many other judgments, reference of which may not be necessary at this stage, where the Governments had succeeded to control the mafias after applying stringent measures. (Underline ours)
11. Perusal of the above observations of the Hon'ble apex Court leave no room for any debate as in our view if the bhatta mafia or the people involved in the said crime are not stopped by taking strict and stringent steps to curb and eliminate bhatta from the society, it would leave devastating effects on the society.
12. For what has been discussed above, we are of the view that the charges levelled upon the appellant/accused relating to provision of section 6(2)(k) read with section 7(H) of the ATA, are fully attracted in the present case and therefore we hereby uphold the order passed by the trial Court by dismissing the present appeal.