HIGH COURT OF SINDH AT KARACHI

 

Special Criminal Anti-Terrorism Appeal No.30 of 2014

 

Present:          Mr. Justice Naimatullah Phulpoto

            Mr. Justice Rasheed Ahmed Soomro

 

Date of Hearing                    :           05.09.2018

 

Date of Announcement       :           10.09.2018

 

Appellant                              :           Shaukat Ali alias Baba alias Shauki son   of         Muhammad Ali alias Yousuf through                    Mr. Fazal-ur-Rehman Awan, Advocae

 

Respondent                           :           The State through Mr. Mohammad Iqbal             Awan, DPG.

 

 

JUDGMENT

 

 

NAIMATULLAH PHULPOTO, J.- This appeal is directed against the judgment dated 31.03.2014, passed by learned Judge, Anti-Terrorism Court-I, Karachi in Special Case No.20/2005, whereby appellant was convicted under section 7(a) of the Anti-Terrorism Act, 1997 read with section 302(b) PPC and sentenced to imprisonment for life and fine of Rs.50,000/-, in case of non-payment of fine, to suffer six months R.I. more. He was also directed to pay compensation of Rs.150,000/- under section 544-A, Cr.PC, to be paid to the legal heirs of deceased PC Jahangir, in case of non-payment of compensation to suffer R.I. for six months. Accused was also convicted under section 324, PPC and sentenced to 7 years R.I. and to pay fine of Rs.10,000/- in default whereof to suffer R.I. for six months. He was also convicted under section 392, PPC and sentenced to 10 years R.I. and fine of Rs.10,000/-, in case of non-payment of fine, to suffer R.I. for two months more. Accused was also convicted under section 353, PPC and sentenced to R.I. for two years. All the sentences were directed to run concurrently. Benefit of Section 382-B Cr.P.C was also extended to the accused.

 

2.         Brief facts of the prosecution case are that complainant PC Ansar Mahmood and deceased PC Muhammad Jehangir were posted as constables at Baghdadi police station. On 23.03.2005, the complainant and the deceased armed with SMGs on an official motorcycle bearing registration No.C-17371 were on patrol duty. The deceased was driving the motorcycle. At about 07:15 p.m., they reached D.D. Chaudhry Road, Baghdadi, where they noticed a motorcycle on which two persons were sitting coming towards them. They suspected the said persons and signaled them to stop, but the said persons instead of stopping the motorcycle took turn in a street and tried to escape, therefore, the complainant and the deceased followed them, when they reached near them they against signaled them to stop, but they did not do so, therefore, the complainant party overtook them and stopped their motorcycle by blocking their ways. The motorcyclists started firing at the complainant party. They received injuries with the result that the complainant fell down on the ground, whereas deceased tried to move ahead on his motorcycle, but fell down on the ground. The culprits went to the deceased PC Muhammad Jehangir, snatched the SMG from him and then one of them started firing from the SMG at him, who received the injuries. Thereafter, both the culprits along with the SMG of the deceased Muhammad Jehangir went away on their motorcycle. After the departure of the culprits, persons assembled there, the complainant was shifted to hospital in a rickshaw, whereas PC Muhammad Jehangir was shifted to hospital in a taxi. Police reached in the hospital where statement of the complainant was recorded, which was sent to the police station for incorporating it in 154, Cr.PC book for registration of the case.

 

3.         After usual investigation, challan was submitted against accused Ghulam Qadir Patni. Present appellant was shown absconder. Case proceeded against accused Ghulam Qadir Patni before learned Judge, Anti-Terrorism Court-III Karachi being Special Cases Nos.20 and 21 of 2005. On conclusion of the trial, vide judgment dated 31.01.2006 accused Ghulam Qadir Patni was convicted and sentenced as under:-

 

(i)                Under section 302, PPC sentenced to life imprisonment with fine of Rs.50,000/-, in case of non-payment of fine, to suffer R.I. for one year. He was also directed to pay compensation of Rs.150,000/- under section 544-A, Cr.PC, to be paid to the legal heirs of deceased PC Jahangir, in case of non-payment of compensation to suffer further R.I. for two years.

 

(ii)             Under section 324, PPC sentenced to 7 years R.I. with fine of Rs25,000/-, which is to be paid to injured Ansar Mahmood, in non-payment, accused shall suffer R.I. for 6 months.

 

(iii)           Under section 392, PPC sentenced to 10 years R.I.

(iv)           Under section 353, PPC sentenced to 2 years R.I.

(v)             Under Section 13-E of the Arms Ordinance sentenced to suffer 3 years R.I.

 

Benefit of Section 382-B Cr.P.C was also extended to the accused.

 

4.         Co-accused Ghulam Patni filed Special Criminal Anti-Terrorism Appeal No.01 of 2006 before this Court. Appeal was heard by this Court, vide judgment dated 04.05.2007, appeal was dismissed, conviction and sentence were maintained, however, with some modification. Thereafter, appellant Ghulam Qadir Patni challenged the judgment passed by this Court before Honourable Supreme Court of Pakistan in Jail Petition No.190/2007, order dated 24.04.2008, passed by Honourable Supreme Court reflects that learned Advocate-on-Record moved an application, seeking permission to withdraw the petition as the parties had entered into compromise and petitioner Ghulam Qadir Patni intended to file compromise application before the trial court. Request was allowed. Criminal Miscellaneous Application No.137/2008 was allowed and Jail Petition No.190/2007 was dismissed as withdrawn.

 

5.         It may be mentioned here that accused Ghulam Qadir Patni was acquitted by the trial court by way of compromise vide order dated 05.01.2009.

 

6.         Present appellant Shaukat Ali alias Baba alias Shauki was arrested on 11.05.2006. He was put to identification parade on 15.05.2006. He was identified by injured P.C. Ansar Mahmood and P.W. Abdul Qadir. Judicial confession of accused Shaukat Ali alias Baba alias Shauki was recorded by PW-9 Abdul Qadeer on the same date. After usual investigation, supplementary report was submitted against the accused named above under the above referred sections before learned Judge, Anti-Terrorism Court-I, Karachi.

 

7.         Trial Court framed charge against the accused Shaukat Ali alias Baba alias Shauki at Ex.4. Accused pleaded not guilty and claimed to be tried.

 

8.         At trial, prosecution examined ten witnesses. Thereafter, prosecution side was closed.

 

9.         Statement of accused under Section 342 Cr.P.C was recorded at     Ex-16. Accused denied all the incriminating pieces of prosecution evidence brought against him on record. Accused claimed false implication in the present case. Accused neither examined himself on oath nor led any evidence in disproof of prosecution allegations.

 

10.       Trial Court after hearing the learned counsel for the parties and assessment of evidence, vide judgment 31.03.2014 convicted and sentenced the appellant as stated above, hence this appeal.

 

11.       The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 04.05.2007 passed by this Court in Special Criminal Anti-Terrorism Appeal No.01 of 2006, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

 

12.       Mr. Fazal-ur-Rehman Awan, learned advocate for appellant, did not press the appeal on merits, however, he submitted that sentence awarded to the appellant is erroneous and requires modification. He has submitted that appellant has been convicted under section 7(a) of the Anti-Terrorism Act, 1997 read with 302 (b), PPC and sentenced to imprisonment for life and to pay fine of Rs.50,000/- and in case of default in payment of fine, he has been ordered to suffer R.I. for six months more.

 

15.       Learned D.P.G. submits that case of present appellant Shaukat Ali alias Baba alias Shauki is identical to the case of the co-accused Ghulam Qadir Patni, whose appeal has already been dismissed by this Court. Mr. Fazal-ur-Rehman, learned counsel for the appellant in view of huge evidence against the appellant did not press this appeal on merits but prayed for modification of sentence, while mainly submitting that in case of the non-payment of compensation, appellant has been ordered by trial court to suffer R.I. for six months more instead of S.I. for six months.

 

13.       We have perused the entire evidence and have come to the conclusion that prosecution has proved its case against the appellant for the reasons that accused was identified in identification parade and he made judicial confession, it is found by us true and voluntarily. Trial court rightly appreciated the evidence according to settled principles of law Conviction of co-accused Ghulam Qadir Patni has already been maintained by this Court in Criminal Appeal No.01/2006 vide judgment dated 04.05.2007 mainly for the following reasons:

 

“In the present case, the robbery of SMG and murder of the deceased was committed in single incident, which form parts of one transaction, therefore, the recent and unexpected possession of robbed SMG is taken as presumptive evidence against the appellant on the charges of robbery and murder. Thus, the appellant has been connected with crime”

 

14.       Appellant Ghulam Qadir Patni filed Jail Petition No.190/2007, before the Honourable Supreme Court, the same was dismissed as not pressed on the ground that accused Ghulam Qadir Patni intended to file compromise application before trial court. Conviction and sentence recorded by trial court against appellant Shaukat Ali alias Baba alias Shauki vide judgment dated 31.03.2014 are maintained with slight modification as under:-

 

(i)          For offence under section 7(a) of the Anti-Terrorism Act, 1997 sentenced to imprisonment for life and to pay fine of Rs.50,000/-.

 

(ii)       Under section 302(b), PPC Tazir, sentenced to imprisonment for life. Appellant is directed to pay compensation of Rs.150,000/- under section 544-A, Cr.PC to the legal heirs of deceased PC Muhammad Jehangir. In case of default in payment of compensation, appellant shall suffer S.I. for six months instead of R.I. for six months.

 

(iii)           For offence under section 324, PPC sentenced to 7 years R.I. and to pay fine of Rs.10,000/- in default whereof to suffer S.I. for six months.

 

(iv)           For offence under section 392, PPC sentenced to 10 years R.I. and fine of Rs.10,000/-, in case of non-payment of fine, to suffer S.I. for two months more.

 

(v)       For offence under section 353, PPC sentenced to R.I. for two years.

 

            All the sentences are directed to run concurrently. Appellant is extended benefit of Section 382-B, Cr.PC.

 

17.       Consequently, with the above modification in the conviction and sentence, appeal is dismissed.

 

 

                                                                                                   J U D G E

 

 

 

                                                J U D G E   

Gulsher/PS