HIGH COURT OF SINDH AT KARACHI
Special
Criminal Anti-Terrorism Appeal No.99 of 2017
Special
Criminal Anti-Terrorism Appeal No.100 of 2017
Special
Criminal Anti-Terrorism Jail Appeal No.14 of 2018
Special
Criminal Anti-Terrorism Jail Appeal No.15 of 2018
Present: Mr.
Justice Naimatullah Phulpoto
Mr. Justice Rasheed Ahmed Soomro
Date of Hearing : 03.09.2018
Date of Announcement : 11.09.2018
Appellants : Fayyaz Masih son of Gulzar Masih and
Akhtar Shah son of Qalandar Shah through Ms. Fatima Jamila Jatoi and Mr.
Hyder Farooq Jatoi, Advocates
Respondent
: The State through Mr. Mohammad
Iqbal Awan DPG.
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- Appellants Fayyaz
Masih and Akhtar Shah were tried by learned Judge, Anti-Terrorism Court-II,
Karachi in Special Cases Nos.74/2016 and 75/2016. On conclusion of the trial,
vide judgment dated 01.04.2017, appellants were convicted for committing
offence under section 392 and sentenced to 10 years R.I. with fine of Rs.10,000/-,
in case of default to undergo S.I. for 3 month more; for offence under section
324, PPC sentenced to R.I. for 7 years with fine of Rs.10,000/-in default
thereof to undergo S.I. for three months; for offence under section 353, PPC
sentenced to one year’s R.I. for offence under section 7(1)(h) of the
Anti-Terrorism Act, 1997 they were sentenced to 7 years R.I. and to pay fine of
Rs.10,000/- in default thereof they were order to suffer S.I. for 3 months
more. Both the accused were also convicted under section 25 of the Sindh Arms
Act, 2013 and sentenced to 7 years and fine of Rs.5000/- in default thereof,
they were ordered to undergo S.I. for 3 months more. All the sentences were
ordered to run concurrently. Benefit of Section 382(b) Cr.P.C was also extended
to the accused.
2. Brief facts of the prosecution case as
disclosed in the FIR are that complainant Muhammad Sharif Malik reported the
matter at police station on 07.02.2016 at 2230 hours, alleging therein that he
is runs a shop at Magsi Chowk, Block-9, Gulistan-e-Jauhar, Karachi
in the name and style of Aziz General Store. On the above date, he was
available at his shop as usual along with his nephew Tauheed, when at about
09:00 p.m. three suspects came to his shop on motorcycle No.KGR-4271 Super
Power of black colour. It is alleged that when accused entered the shop, they took
out pistols and looted an amount of Rs.30,000/- or
Rs.35,000/- and three mobile phones from them. After committing robbery,
accused tried to run away, in the meanwhile, one police mobile of P.S.
Gulistan-e-Jauhar, Karachi appeared at place of incident. Complainant cried for
rescue. On his hue and cry, police party was attracted. It further alleged that
accused started firing on police officials while police party also returned firing.
Due to exchange of fires one of the accused holding Kalashnikov type pistol
received bullet injury had fallen down, while the other accused was also caught
hold by police with the help of public. However, third accused succeeded to
flee away from the spot. On inquiry, arrested accused disclosed their names as
Fayyaz Masih, on his personal search police recovered one 30 bore pistol with
three bullets and Akhtar Shah from whom police recovered one Kalashnikov type
pistol bearing No.PAE-23227 loaded with three bullets. One red colour bag was
also recovered from the possession of accused which was containing cash amount
of Rs.1030, mobile phone, EMI No.359417051070384. It was reported that one of
the accused took the advantage of darkness and flee away. However, his name was
disclosed by co-accused as Muneer son of unknown, who had also taken away
snatched amount of complainant along with mobile phones. Police party collected
7 empties fired by the accused, one motorcycle numbered above. On demand, both
accused failed to produce licenses of weapons. Therefore, case property was
sealed at the spot, where memo of arrest and recovery was prepared in presence
of mashirs. Accused and case property were brought at police station where FIR
No.55/2016 under sections 392,353,324, PPC read with section 7 of the
Anti-Terrorism Act, 1997 was registered against both the accused. Separate FIRs
bearing Nos.56 and 57 of 2016 were also registered against the accused under
section 23(1)(a) of the Sindh Arms Act, 2013 by ASI
Sahib Khan on behalf of the State.
3. After usual investigation, challan was
submitted against the accused under sections under sections 392,353,324, PC
read with section 7 of the Anti-Terrorism Act, 1997 and Section 23(1)(a) of Sindh Arms Act, 2013. Joint trial was ordered by the
trial court under section 21-M of the Anti-Terrorism Act, 1997.
4. Trial court framed charge against the
accused in Crime No.55/2016 under Sections under sections 392,353,324, PPC read
with section 7 of the Anti-Terrorism Act, 1997 and Crimes Nos.56 and 57 of 2016
under section 23(1)(a) of Sindh Arms Act, 2013. Accused pleaded not guilty and
claimed to be tried.
5. At trial, prosecution examined five
witnesses. Thereafter, prosecution side was closed.
6. Statements of accused under Section 342
Cr.P.C were recorded at Ex.28 and 29. Accused denied all the incriminating
pieces of prosecution evidence brought against them on record. Accused claimed
false implication in the present cases. Accused did not examine themselves on
oath in disproof of prosecution allegations nor led any evidence in their
defence.
7. Trial
Court after hearing the learned counsel for the parties and assessment of
evidence, by judgment dated 01.04.2017 convicted and sentenced the appellant as
stated above. Special Anti-Terrorism Appeals 99 and 100 of 2017 and Special
Criminal Anti-Terrorism Jail Appeals 14 and 15 of 2018 were filed by the
appellants against the conviction and sentences recorded against them,
separately. We intend to decide the above appeals by this single judgment as
the said appeals have arisen out of same judgment.
8. The facts of the case as well as evidence produced
before the trial Court find an elaborate mention in the judgment dated 01.04.2017
passed by the trial Court and, therefore, the same may not be reproduced here
so as to avoid duplication and unnecessary repetition.
9. Learned advocate for appellant after
arguing the appeal at some length submits that she would not press the appeal
on merits and prayed for taking lenient view in the sentence while submitting
that both the appellants are young persons and they are sole supporters of their
old parents. Lastly, it is submitted that appellants are not previous convicts.
10. Mr. Mohammad Iqbal Awan,
learned DPG argued that prosecution has proved its case against the appellant,
recorded no objection in case sentences are reduced to some reasonable extent. However,
it is admitted by learned DPG that accused is not previous convict as per
record.
11.
Evidence shows that PW-1 Muhammad
Sharif, shopkeeper, has deposed that incident took place on 07.02.2016, he runs
Adeel General Store at Magsi Chowk, incident took place in between 08:30 to
09:00 p.m. One accused appeared at shop and demanded a cold drink from the
complainant. He was reluctant to give him the cold drink. In the meanwhile,
another accused person appeared, who was armed with
pistol. Said armed person kept complainant mum at gunpoint and third accused
entered the shop. Empty handed accused started search and took cash of Rs.30,000/- to Rs.35,000/- so also the cellular phone. After
committing the robbery, all the three accused were running away from the shop.
In the meanwhile, he has deposed that one police mobile appeared, complainant
raised hue and cry and they informed the police about the incident. Police
followed the culprits and gave signal to the accused to stop but they started
firing upon the police party. In exchange of firing one accused sustained fire
arm injuries and fell down and other accused was apprehended by the public and
third one made his escape good. Pistols were recovered from both the accused
loaded with live bullets. Police officer collected 7 empties of 30 bore and 4
empties of SMG from the place of wardat. Such mashirnama was prepared in
presence of complainant/mashir and co-mashir was Khadim Hussain. Case property
was sealed at stop. Complainant identified the accused before the trial court
while raising finger that accused Fayyaz Masih was empty handed at that time
and asked the complainant for cold drink and other accused Akhtar Shah was
carrying KK type pistol at that time and he has made complainant hostage.
Complainant further deposed that Akhtar Shah has sustained fire arm injuries.
Complainant was cross-examined at length but nothing favourable to the accused
came on record.
12. PW-3 Sahib Khan has also narrated the
same facts about the incident and stated that on 07.02.2016 he was on
patrolling duty along with his subordinate staff. At 2105 hours they reached
near Adeel General Store near Magsi Chowk, Gulistan-e-Jauhar, Karachi where
found three persons coming out of Adeel General Store, people were raising hue
and cry and accused persons made fires upon the police with intention to kill
police also retaliated and in the exchange of the fires, one accused Akhtar
Shah sustained fire arm injuries, another accused Fayyaz Masih was arrested by
him. From possession of accused Fayyaz Masih one 30 bore pistol was recovered
and from possession of accused Akhtar police recovered one 30 bore pistol like
Kalashnikov. Both had no licenses for the weapons carrying by them. After
arrest of the accused and recovery, mashirnama of arrest and recovery was
prepared. He brought both the accused and case property were brought to the
police station where FIR No.55/2016 was registered against both the accused
under sections 392, 324, 353, ,34, PPC read with section 7 of the
Anti-Terrorism Act, 1997. FIRs Nos.56 and 57 of 2016 were also registered
against them under section 23(1)(a) of the Sindh Arms
Act, 2013. He has produced arrival entry of the police station. He has further
stated that after registration of the FIR, he referred the injured accused to
the hospital through police for treatment and certificate and handed over
custody of other accused to Qalandar Bux Narejo for further investigation. He
was also cross-examined at length but nothing favourable to the accused came on
record.
13. PW-2 Khadim Hussain acted as mashir of
arrest and recovery. He was the private person. PW-5 Dr. Ali Raza deposed that
on 08.02.2016 he had examined injured accused Akhtar Shah son
of Qalandar Shah, aged about 22 years and found three fire arm injuries on his
person.
14. In this case accused snatched cash and
cellular phones at gunpoint from Adeel General Store of complainant Muhammad
Sharif, he has fully implicated the accused in the commission of offence. We
have no reason to disbelieve his evidence. He had no enmity whatsoever with the
accused persons to falsely involve them in this case. PW-2 Khadim Hussain was
also the eye witness of the incident. At the time of incident he was present at
the shop of the complainant. He has also given the entire episode of the
incident and implicated the accused persons. He had also no enmity with accused
to falsely depose against them. Both accused were arrested at spot. After
exchange of fires one accused sustained fire arm injuries. Ocular evidence is
corroborated by the medical evidence and requests recovery of the fire arm
weapons from their possession. Reports of the ballistic experts were also
positive. We have no hesitation to hold that prosecution has proved its case
against the appellants beyond any shadow of doubt.
15. As regards to the reduction of sentence
is concerned, learned advocate for the appellants raised plea that both the
accused are young persons and are not previous convict and they are supporters
of their old parents. Learned D.P.G. has also recorded no objection in case
sentence is reduced to a reasonable extent in view of the peculiar
circumstances of the case.
16. Section 423 Cr.PC, subsection (b) (2)
gives appellate Court sufficient power to alter the conviction with or without
reducing the sentence. Now the question arises that what will be the reasonable
extent for the reduction of the sentence. In the present case, learned Advocate
for the appellant did not press appeals on merits. It is argued that appellants
are sole supporters of their old parents. Learned DPG has admitted that there
is no previous record of the appellants that they are previous convicts in such
like cases. In the case of State through
Deputy Director (Law), Regional Directorate, Anti-Narcotics Force vs. Mujahid
Naseem Lodhi (PLD 2017 SC 671), in the matter of sentence, it is observed
that "in a particular case carrying
some special features relevant to the matter of sentence a Court may depart
from the norms and standards prescribed above but in all such cases the Court
concerned shall be obliged to record its reasons for such departure."
17. There is nothing on record that the
accused are previous convicts; both are young persons aged about 27 and 22
years as per record. We take the lenient view and provide them one opportunity
to pass the remaining life as law abiding citizens. We maintain the conviction
and sentence recorded against them by the trial Court vide judgment 01.04.2017
and dismiss the appeals, but reduce the sentence as under:
(i)
conviction and sentence under section 392
is reduced to 5 years with fine of Rs.10,000/-, in default thereof to undergo
S.I. for 3 month more;
(ii)
for offence under section 324, PPC sentence
is reduced to R.I. for 5 years with fine of Rs.10,000/-in default thereof to
undergo S.I. for three months;
(iii)
for offence under section 353, PPC
sentenced to one year’s R.I.;
(iv)
for offence under section 7(1)(h) of the
Anti-Terrorism Act, 1997 sentence is reduced to 5 years R.I. and to pay fine of
Rs.10,000/- in default thereof they were order to suffer S.I. for 3 months
more;
(v)
Sentence awarded to both accused under
section 25 of the Sindh Arms Act, 2013 is reduced to 5 years and fine of
Rs.5000/- in default thereof, they were ordered to undergo S.I. for 3 months
more.
All
the sentences were ordered to run concurrently. Benefit of Section 382(b)
Cr.P.C was also extended to the accused.
18. The appeals are dismissed with above
modification/reduction in sentence.
J U D G E
J
U D G E
Gulsher/PS