THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals No. 165 & 166 of 2020

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Mobeen Lakho

Date of Hearing : 08.03.2021

Date of Judgment : 08.03.2021

Appellant : Shahnawaz through Mr. Nadeem Ahmed Azar advocate

Respondent : The State through Mr. Mohammad Iqbal Awan DPG

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Shahnawaz was tried by learned Judge, Anti-Terrorism Court No.VIII, at Karachi in Special Case Old No.75/2018 (New Special case No.52/2020) and Special Case Old No. 75-A/2018 (New Special case No.52-A/2020). After full-dressed trial vide its’ judgment dated 18.10.2020, appellant was convicted under Sections 7(1)(h) of Anti-Terrorism Act, 1997 read with Sections 392/353/324/34 PPC read with Section 7 Anti-Terrorism Act, 1997 and sentenced to suffer R.I for 05 years and to pay fine of Rs.20,000/-. In case of default, appellant was ordered to suffer 02 months more. Appellant was also convicted under Section 23(1)(a) of Sindh Arms Act 2013 and sentenced to suffer R.I for 05 years and to pay fine of Rs.20,000/-. In case of default, appellant was ordered to suffer 02 months more. Sentences were ordered to run concurrently and appellant was also extended benefit of Section 382-B Cr.P.C.

2. Brief facts of the prosecution case leading to the filing of these appeals as mentioned by the trial Court in the impugned judgment are as follows.

“Facts leading to the prosecution case are that as per statement u/s 154 Cr.PC dated 07-09-2018, complainant Muhammad Aslam Khan Lodhi son of Muhammad Hanif at about 1325 hours, complainant along with his employers was present at his Godown situated at inside House No.16/17, Sector 11/D, Service Road, New Karachi, in the while three culprits on two motorcycles arrived there and they aimed their pistols and pointed upon them and asked them to handover, each and every thing what they had in their pocket and then they snatched Rs.5000/- from the pocket of the complainant. Thereafter, they tried to escape in the while the complainant shot fire from his licensed rifle bearing license No. 223, on accused persons. In the meantime, police mobile also came arrived at the place of incident, police also tried to arrest the accused persons but they started firing upon the police party with intention to kill them. Police party in retaliation also made fire shots and succeeded to arrest one accused, whereas other two accused persons escaped from the crime scene. The police officer namely SIP Muhammad Ashraf inquired particulars from arrested accused he disclosed his name to be Shah Nawaz son of Raza Muhammad police took his personal search. From his search police recovered one 30 bore pistol with loaded magazine, containing one live bullet in its chamber from his right and. From further personal search, from pocket of pant of the accused, a wallet in which color copy of document of motorcycle 125-Honda bearing No. KIR-8112, cash amount of Rs.100/- and Nokia mobile phone recovered. Further the arrested accused disclosed the names of his other companions who were absconded away from the scene of offence to be Muhammad Asif and Saleem. SIP Muhammad Ashraf also seized motorcycle bearing registration No. KKE-5743, which was verified from CPLC and found the same was robbed property of PS Eidgah. During cross firing arrested accused had received bullet injury at his left arm. SIP Muhammad Ashraf secured three empties of 30 bore, four empties of SMG and one empty of rifle 23 from the scene of offence. SIP Muhammad Ashraf arrested the accused, and sealed the recovered arms and ammunition and prepared memo of arrest and recovery and sketch of weapon and obtained signatures of mushirs Muhammad Aslam and Kamran. The injured accused was sent to Abbasi Shaheed Hospital for medical treatment. Both the motorcycles were also taken into custody by the police and after completing the legal formalities. FIRs were lodged against the accused named above and against both absconding accused persons.”

3. After usual investigation, challan was submitted against appellant remaining accused Asif Ahmed son of Shabbir Ahmed was shown as absconder.

4. Trial Court, ordered joint trial of the main case as well as case under Section 23(1)(a) of Sindh Arms Act 2013 in terms of Section 21-M of Anti-Terrorism Act, 1997.

5. Trial Court framed charge against accused under the above referred sections at Ex.2, to which accused pleaded not guilty and claimed trial.

6. At the trial, prosecution examined Complainant Muhammad Aslam (PW-01), Muhammad Kamran (PW-02), SIP Muhammad Ashraf (PW-03), Dr. Muhammad Pervaiz Anear MLO (PW-04), PI/I.O Syed Moeuddin Rehmani (PW-05) and PI Syed Moinuddin Rehmani (PW-06), who produced relevant documents at trial.

7. Trial Court recorded statement of accused under Section 342 Cr.P.C in which accused claimed false implication and denied the prosecution allegations. Appellant raised plea that on 04.09.2018, he was picked up from his shop by five persons and brought at unknown place, illegal demands were made from him and on his refusal, he was shot at his elbow and has been falsely implicated in this case. Appellant did not lead evidence in defence and declined to given statement on oath in disproof of the prosecution allegations.

8. Trial court after hearing learned counsel for the parties and assessment of evidence vide judgment dated 28.10.2020, convicted and sentenced the appellant as stated above, hence these appeals are filed.

9. These appeals were separately filed, we intend to decide the aforesaid appeals by this single judgment, as both the appeals require same appreciation of evidence.

10. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 18.10.2020, passed by the trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

11. Learned advocate for the appellant, after arguing the appeals at some length, did not press the same on merits, however, it is submitted by him that prosecution has failed to prove ingredients of Section 324 PPC as well as application of provisions under Anti-Terrorism Act, 1997. It is also submitted that appellant is not previous convict and he is father of six children. He placed reliance on the case reported as Ch. Bashir Ahmed vs. Naveed Iqbal and 7 others (PLD 2001 S.C 521).

12. In contra, learned DPG submits that evidence is impeachable so far Section 392 PPC is concerned, however, learned DPG very rightly submitted that prosecution has failed to establish its’ case with regard to police encounter under Sections 324/353 PPC. It is also submitted by learned DPG that conviction of the appellant under Section 7(1)(h) of Anti-Terrorism Act, 1997 is also not sustainable under the law for want of evidence. Learned DPG could not controvert the submissions of learned advocate for the appellant that appellant is not previously convict and frankly conceded that this is a fit case, in which lenient view so far sentence is concerned may be taken.

13. In order to appreciate the submissions made by learned counsel for the parties, we have carefully perused the prosecution evidence. Complainant Muhammad Aslam (PW-01) has stated that on 07.09.2018, he was present at his godown situated on the ground floor of his house No.17/16, Sector 11-D, New, Karachi. His partner Kamran was also with him at that time. It was Friday and he was preparing for his Juma prayer. At about 1:20/1:25 p.m., three persons on two motorcycles appeared there, took out their pistols and pointed towards him and his partner Kamran and asked to handover whatever they had. It is stated that one accused put his hand in the pocket of shirt of complainant and took out Rs.5000/- and snatched the same. Other accused persons searched Kamran (PW-02), but nothing was recovered from him. After snatching Rs.5000/- from complainant Muhammad Aslam, the accused left his godown. In the meanwhile, complainant Muhammad Aslam took out his 223 licensed rifle and fired upon the accused. Police also arrived there at that time and enquired from the complainant about the whole episode, complainant disclose the facts to the police and police chased the accused persons. On seeing police party, accused fired upon the police, the police also fired in defence. It is stated that one bullet was hit to the arm of appellant, whereas his two accomplices made their escape good on their motorcycles. Police apprehended the appellant who was carrying 30 bore pistol in his hand, which was secured by SIP Muhammad Ashraf and it was found loaded with one bullet in chamber. On enquiry, the appellant disclosed name as Shah Nawaz. Appellant had no license for the weapon carried by him. Mashirnama of arrest and recovery was prepared in presence of mashirs. SIP Muhammad Ashraf enquired from CPLC regarding Motorcycle bearing No. KKE-5743 left by the absconded accused which was found as robbed property. SIP collected empties from the place of incident and prepared such mashirnama in presence of mashirs. Thereafter, accused and case property were brought at the police station New Karachi, where complainant Muhammad Aslam lodged FIR bearing Crime No.273/2018 for offences under Sections 392/353/324/34 PPC read with Section 7 Anti-Terrorism Act, 1997 and FIR No.274/2018 under Section 23(1)(a) of Sindh Arms Act, 2013 being offshoot of main case was registered on behalf of State. Complainant was cross-examined by learned advocate for the appellant. It is admitted that police had made 4/5 fires to the accused persons and accused also made 3/4 fires but not a single fire made by accused persons hit to the police. Police mobile was also not damaged.

14. Muhammad Kamran (PW-02) was also eye witness of the incident. He narrated the same story before trial Court as stated by complainant Muhammad Aslam (PW-01). In the cross-examination, he has also replied that accused persons had also fired upon the police but not a single fire hit to the police party.

15. As regards to the terror at the time of incident is concerned, it is stated by the learned counsel for the parties that element of terror was missing in this case. We have also perused the evidence minutely. Element of striking terror or creation of sense of terror is not present in this case. Rightly learned advocate for appellant has relied upon the case of Ch. Bashir Ahmad vs. Naveed Iqbal and 7 others (PLD 2001 S.C 521). We therefore, hold that conviction and sentence under section 7 Anti-Terrorism Act, 1997 is not sustainable under the law. It is unbelievable that three accused fired upon police, but not a single injury or scratch was caused to police party. Police mobile was also not damaged. Ingredients to commit attempt of murder are not satisfied from the evidence, therefore, conviction and sentence under Sections 324/353 PPC are not sustainable under the law. It may be observed here that present appeals are not being pressed on merits, however, in the present case complainant was victim and his evidence was corroborated by another eye witness namely Muhammad Kamran (PW-02). Direct evidence of complainant and P.W-2 Muhammad Kamran was consistent, natural and reliable. Non-recovery of snatched money of complainant from the appellant would not mean that offence under Section 392 PPC against him is not proved, as recovery has only a corroborative effect.

16. We have come to the conclusion that prosecution has established that appellant had snatched Rs.5000/- from the complainant in presence of Muhammad Kamran (PW-02) and offence under Section 392 PPC has been established by the prosecution beyond any shadow of doubt. So far recovery of pistol is concerned, the report of the Ballistic Expert is positive (Ex.43/B) and empties recovered from the place of wardat matched with pistol secured by the police from the possession of the appellant.

17. Now question arises whether in this case there are the circumstances, which require lesser punishment? It is argued by learned advocate for the appellant that appellant is not previous convict and he is first offender. It is also stated that he is father of six children. Today wife of appellant is present in Court along with two children and states that appellant is sole supporter of the family and she has no other means to bear education expenses of the children. Minimum punishment for Section 392 PPC is three years, which reads as under:

“392. Punishment for robbery. Whoever commits robbery shall be punished with rigorous imprisonment for a term which [shall not be less than three years nor more than] ten years and shall also be liable to fine, and, if the robbery be committed on the Highway the imprisonment may be extended to fourteen years.”

18. In the case of Suneil vs. The State (2018 P.Cr.L.J 959), this Court has held as under:

“7. The appellant has been convicted for fourteen (14) years for offences, punishable under section 5 of Explosive Substances Act, 1908 which itself provides as ‘be punishable with imprisonment for a term which may extend to (fourteen years), therefore, it was obligatory upon the trial Court to have appreciated the attending circumstances too while awarding maximum sentence which prima facie is not done. The appellant has pleaded himself to be first offender which the prosecution did not dispute; and also claimed to be the only bred earner of family, which includes five sisters. The detention of only bread earner shall compel the females to step-out for survival least bread which it result in bringing a slightest spot towards such helpless ladies shall ruin their lives.

8. Keeping in view, the phrase ‘may extent upto’ discussed circumstances, we find it justified to reduce the sentence from 14 (fourteen) years to two (02) years for offence under Section 5 of Explosive Substances Act 1908; as regard the punishment of fourteen (14) years for offence under Section 23(1)(a) of Sindh Arms Act, the same is converted to one under section 24 of the Act and is reduced to two (02) years.”

19. Appellant has been convicted under Sections 7(1)(h) of Anti-Terrorism Act, 1997 read with Section 392/353/324/34 PPC read with Section 7 Anti-Terrorism Act, 1997 for five years and to pay fine of Rs.20,000/-. We have already held that only offence under Section 392 PPC is proved and prosecution has failed to prove its’ case against appellant for other offences in which appellant had been convicted. As the appellant is first offender, youth, having no history of conviction in such like cases and father of six children. For the above stated reasons, sentence of 05 years R.I under Section 392 PPC is reduced to 03 years R.I and sentence under Section 23(1)(a) of Sindh Arms Act 2013 is also reduced to 03 years R.I. Both the sentences to run concurrently as envisaged under Section 397 Cr.P.C. Appellant shall be entitled to benefit of Section 382-B Cr.P.C. So far fine is concerned, the same is reduced keeping in view the financial condition of appellant, from Rs.20,000/- each to Rs.5000/- each and in case of default in payment of fine, appellant shall suffer 01 month S.I more each.

20. In the view of above, appeals are accordingly disposed of.

JUDGE

JUDGE