IN THE HIGH COURT OF SINDH, KARACHI

 

Special Criminal Anti-Terrorism Appeal No.24 of 2017

Special Criminal Anti-Terrorism Appeal No.25 of 2017

Special Criminal Anti-Terrorism Appeal No.26 of 2017

Special Criminal Anti-Terrorism Appeal No.27 of 2017

Special Criminal Anti-Terrorism Jail Appeal No.32 of 2017

 

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Date                   Order with Signature(s) of Judge(s)

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Present:

 

Syed Hasan Azhar Rizvi, J.

Abdul Maalik Gaddi, J.

 

Date of hearing & Decision:              08.06.2017

 

Mr. Muhammad Aslam Shar, Advocate for the Appellants.

Mr. Muhammad Iqbal Awan, Assistant Prosecutor General, Sindh.

 

 

J U D G M E N T

 

 

Abdul Maalik Gaddi, J. Through this common Judgment, we intend to dispose of the captioned criminal appeals filed by the appellants as these appeals relate to same subject matter involving common question of law and facts as well as arise out of common Judgment delivered by the learned trial Court.

 

2.       By means of these appeals, the appellants have assailed the legality and propriety of the common Judgment dated 30.11.2016 passed by the learned Anti-Terrorism Court & IInd Additional Sessions Judge, Karachi (East) in Sessions Cases No.1500, 1501, 1502, and 1503 of 2016 in cases Crimes No.244/2016, 245/2016, 246/2016 and 247/2016 registered under Sections 324/353/186/427/34 PPC read with Section 7 ATA, 1997 and so also under Section 23-1(i)(a) of Sindh Arms Act, 2013 at police station Saudabad, Karachi East, whereby the learned trial Court after full dressed trial convicted and sentenced the appellants as mentioned in Point No.3 and paragraph 29 of the impugned Judgment, which reads as follows:-

         

(i)           Accused Muhammad Ramzan alias Jani is sentenced R.I. for 7 years with fine of Rs.10,000/-. In default thereof, he shall further undergo S.I. for 03 months for committing offence under Section 324 PPC. He is sentenced R.I. for 01 year for committing offence under Section 353 PPC. Accused is sentenced R.I. for 01 year for committing offence under Section 427 PPC. Accused is sentenced R.I. for 01 year for committing offence under Section 186 PPC. He is sentenced R.I. for 07 years with fine of Rs.10,000/. In default thereof, he shall further undergo S.I. for 03 months for committing offence under Section 7(1)(h) ATA, 1997. The accused was charged under Section 23-1(a) of Sindh Arms Act, 2013 but he was not charged for committing offence under Section 25 of Sindh Arms Act, 2013 but the Court is empowered under Section 337 Cr.P.C. to charge the accused with one offence but he can be convicted for other offence if appears in evidence that he committed a different offence for which he may have been charged under the provision of that Section, therefore, he may be convicted for offence which he is shown to have committed although he was not charged with it. Consequently, the accused is charged with Section 23 Sindh Arms Act, 2013, but from evidence it appears that he committed under Section 25 of Sindh Arms Act, 2013, therefore, I found him guilty for committing offence under Section 25 of Sindh Arms Act, 2013 and convict him under Section 265-H(ii) Cr.P.C. and sentenced R.I. for 05 years with fine of Rs.5000/- (Five Thousand only). In default thereof he shall further undergo S.I. for 03 months.

 

(ii)          Accused Muhammad Naeem is sentenced R.I. for 07 years with fine of Rs.10,000/- (Ten Thousands). In default thereof, he shall further undergo S.I. for 03 months for committing offence under Section 324 PPC. He is sentenced R.I. for 01 year for committing offence under Section 353 PPC. Accused is sentenced R.I. for 01 year for committing offence under Section 427 PPC. Accused is sentenced R.I. for 01 year for committing offence under Section 186 PPC. He is sentenced R.I. for 07 years with fine of Rs.10,000/- (Ten Thousand). In default thereof, he shall further undergo S.I. for 03 months for committing offence under Section 7(1)(h) ATA, 1997. The accused is sentenced R.I. for 05 years with fine of Rs.5000/- (Five Thousand) for committing offence under Section 25 SAA, 2013. In default thereof, he shall further S.I. for 03 months.

 

(iii)        Accused Ghulam Ali is sentenced R.I. for 07 years with fine of Rs.10,000/- (Ten Thousand). In default thereof, he shall further undergo S.I. for 03 months for committing offence under Section 324 PPC. He is sentenced R.I. for 01 year for committing offence under Section 353 PPC. Accused is sentenced R.I. for 01 year for committing offence under Section 427 PPC. Accused is sentenced R.I. for 01 year for committing offence under Section 186 PPC. He is sentenced R.I. for 07 years with fine of Rs.10,000/-(Ten Thousand). In default thereof, he shall further undergo S.I. for 03 months for committing offence under Section 7(1)(h) ATA, 1997. The accused is sentenced R.I. for 05 years with fine of Rs.5000/- (Five Thousand) for committing offence under Section 25 SAA, 2013. In default thereof, he shall further undergo S.I. for 03 months.

 

3.       The prosecution case in brief is that on 27.08.2016, ASI Muhammad Khan lodged FIR at police station Saudabad, Karachi at about 0005 hours alleging therein that in the midnight of 26.08.2016, he was on patrolling duty in Government Mobile-II bearing No.SPA-832 alongwith ASI Ghulam Mustafa, HC Riaz Hussain and Driver PC Abid Ali were busy in patrolling in the area to prevent the crime. According to him at about 0200 hours they reached at service road near railway track opposite ground Malir Colony, Karachi, found three person in suspicious manner as such, he gave signal them to stop, but they started firing on police party in order to resist their arrest and with intention to commit their Qatl-e-Amd. Police party also returned fires in their self defence, due to the exchange of fire, police succeeded to caught hold all three suspects at the spot. On inquiry apprehended accused disclosed their names as (1) Muhammad Ramzan alias Jani son of Altaf Ahmed, (2) Muhammad Naeem son of Muhammad Hussain and (3) Ghulam Ali son of Allah Dino. Due to non-availability of private witnesses, he conducted personal search of accused in presence of police officials and recovered 30 bore pistols loaded magazine without number alongwith 03 live rounds. Accused have failed to produce the license of the recovered pistols, hence, they were arrested and brought to police station alongwith recovered property, where instant FIRs were registered against them.

 

4.       Today these appeals are fixed for final arguments. Learned counsel for the appellants during the course of arguments submits that on merits though the appellants have a good case for their acquittal on the ground that the whole case of the prosecution rest upon the evidence of police officials and no independent witness has been cited to witness the event and during alleged encounter, no police officials have received any injury although as per prosecution, the alleged encounter continues for few minutes. He further submits that the appellants are facing the agony of protected trial since 2016, therefore, according to him, he would be satisfied and shall not press these appeals on merits, if the sentences awarded to the appellants by the learned trial Court are reduced to the period which they have remained in jail and the fines are remitted. Per learned counsel, the appellants are in jail since their arrest. They are in young ages and they have no past criminal history. The appellants are only source for earnings of their families.

 

5.       Learned APG has also raised no objection on the above proposition.

 

6.       We have thoroughly examined the record with the able assistance of learned APG and counsel for the appellants. In view of the record, we are of the opinion that the conviction of the appellants is based on cogent reasons. The appellants are first offender. No past criminal history against them is placed on record. They are in young ages, they are in jail since their arrest, therefore, in the present scenario of the case, they have been sufficiently punished. In these circumstances, they need to be given chance in their life to rehabilitate themselves.

 

7.       Consequently, the conviction is maintained, however, the sentences awarded to the appellants by the trial Court through impugned judgment are reduced to one which they have already undergone and fines against them are also remitted.

 

8.       With the above modification in the sentences, these appeals are dismissed alongwith listed applications. The appellants are in jail, they shall be released forthwith, if not required in any other criminal cases.

                                                            

JUDGE

 

 

JUDGE

 

 

 

 

 

 

 

 

 

Faizan A. Rathore/PA*