THE HIGH COURT OF SINDH AT KARACHI

Special Crl. Anti-Terrorism Appeals No. 33, 41 & 42 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellants : Farooq Khan through Mr. Noor Muhammad advocate

Dost Muhammad through Mr. Muhammad Nasir advocate

Respondent : The State through Mr. Muhammad Iqbal Awan Addl. P.G

Date of Hearing : 23.01.2023

Date of Judgment : 23.01.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Farooq Khan and Dost Muhammad appellants were tried by learned Judge, X-Anti-Terrorism Court, Karachi in Special Cases No. 363 and 363-A of 2020. After regular trial, appellants were convicted and sentenced as under:

1. The accused persons namely Dost Muhammad son of Wali Khan and Farooque Khan son of Shafi Ullah Khan are convicted u/s 397 PPC R/w 392 PPC and they are sentenced to undergo R.I for a period of 07 years each.

2. The accused persons namely Dost Muhammad son of Wali Khan and Farooque Khan son of Shafi Ullah Khan are also convicted u/s 7(1)(h) of ATA, 1997 R/w S. 353/324 PPC and they are sentenced to undergo R.I for a period of 07 years each with fine of Rs.100,000/- each and in default in payment of such fine, they shall undergo further S.I for a period of 06 months each.

3. The accused Dost Muhammad son of Wali Khan is also convicted u/s 25 of Sindh Arms Act 2013 and he is sentenced to undergo R.I for a period of 07 years with fine of Rs.50,000/- and in default in payment of such fine, he shall undergo further S.I for a period of 03 months.

All the sentences were directed to run concurrently and appellants were also extended benefit of section 382(b) Cr.P.C.

2. Brief facts leading to the filing of the instant appeals as mentioned by the trial Court in the impugned judgment are that:

“The facts essential for deciding the captioned cases are that on 16.08.2020, at about 1915 hours at Upper Route of Al-Jannat Marriage Hall Road, Gulshan-e-Bihar, Sector 16, Orangi Town, Karachi “03” Robbers duly armed on a Motorcycle wearing Shalwar Kameez looted/snatched I-Tel Mobile Phone from a private person namely Imran Shoukat s/o Shoukat Ali on gunpoint by putting him under instant fear of death or hurt, whereas, the Robbers also snatched another mobile phone i.e. Basic Nokia Phone from his friend namely Faisal s/o Saeed. It is yet another claim that said robbers also tried to snatch money/cash from Imran Shoukat’s pocket, to which he retaliated and subsequently robbers hit pistol’s butt on his head due to which blood started oozing from his head injury. The said Imran Shoukat tried to catch the Robbers, but they made fire. However, at the relevant time, 04 police constables namely Waqar Alam, Ahsan, Mehtab and Muhammad on 02 motorcycles appeared at the crime scene, while conducting routine area patrolling and the accused persons (Robbers) on seeing the police officials, opened firing on them with intention to kill them, so also caused deterrence in the official work of the police officials in order to evade their arrest. In retaliation, police officials also fired back on the accused persons, due to which two robbers fell down from their motorcycle, while trying to escape away from the scene and public gathered there. The public became furious and beat the robbers while their motorcycle was also set ablaze by public. In the meantime, third robber managed to flee away from the crime scene, whose name was later on, learnt to be Bilal s/o not known (as disclosed by remaining 02 robbers on query at the spot). Consequently 02 robbers were caught hold by the police party at the crime scene in injured condition (after beating of public). On query they disclosed their identities as to be Dost Muhammad son of Wali Khan and Farooque Khan son of Shaifullah Khan. Firstly, the police officials secured one 30 bore pistol along with loaded magazine containing 03 live rounds from right hand of accused (robber) Dost Muhammad. Thereafter, on personal search of accused Dost Muhammad, police officials secured one mobile phone of Nokia 3310, blue colored, while search of co-accused Farooque Khan led to the recovery of looted I-Tel mobile phone and Basic Nokia Phone from his possession (belonging to the victims of the robbery), while his further search also led to the recovery of cash of Rs.2500/- lying in a wallet. Besides, at that time, police officials also secured collected 07 empties of 9 mm and 03 empty shells of 30 bore from the crime scene. Subsequently, said police constables brought the apprehended/injured robbers along with all the recovered Articles at PS Pakistan Bazaar, Karachi, whereby Duty Officer/SIP Amjad Ali was available whom the police officials narrated the details of entire incident, so also handed over the custody of apprehended/injured robbers along with all the recovered Articles and weapon including crime empties. Besides, both victims of the robbery namely Imran Shoukat s/o Shoukat Ali and Faisal s/o Saeed had also appeared at P.S Pakistan Bazaar, Karachi at that time and narrated the entire incident to the Duty officer. Firstly, SIP Amjad Ali (Duty Officer) having heard all the facts of the above incident in detail from police/victims of the robbery, prepared memo of arrest, recovery and seizure at PS in presence of mashirs, whereby he also obtained their signatures. Following which Duty officer separately sealed the recovered 30 bore pistol with live rounds, crime empties and other looted Articles in sealing bags at PS in presence of mashirs being the case property (Evidence). After that SIP Amjad Ali being the Duty officer, firstly registered FIR No. 232/2020 u/s 392/ 397/ 353/ 324/ 34 PPC r/w 7 ATA, 1997 against the arrested robbers and their absconding accomplice as per verbatim of victim Imran Shoukat (complainant). Besides SIP Amjad Ali also registered another FIR No.233/2020 u/s 23(1)(a) of Sindh Arms Act 2013 against the arrested accused Dost Muhammad (on behalf of the State) for carrying an unlicensed weapon of 30 bore with loaded magazine which was also used by him for making firing upon the police officials during encounter as highlighted supra. Hence the FIRs. ”

3. After usual investigation, challan was submitted against the appellant under the above referred sections. Offshoot case was amalgamated with main case by the trial Court in terms of Section 21-M of ATA 1997 and joint trial was held.

4. Trial Court framed Charge against appellants at under the above referred sections at Ex.04, to which they pleaded not guilty and claimed trial.

5. At trial, prosecution examined five witnesses. Thereafter, learned Asstt. P.G closed the prosecution side.

6. Trial Court recorded statements of accused under Section 342 Cr.P.C at Ex.11 and 12. Appellants claimed their false implication in the present case and denied the prosecution allegations. Appellants neither examined themselves on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in their defence.

7. Trial Court after hearing the learned counsel for the appellants, prosecutor and while examining the evidence minutely by judgment dated 31.01.2022, convicted and sentenced the appellants as stated above. Hence, the appellants have filed instant appeals against their convictions and sentences.

8. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 31.01.2022 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Learned advocates for the appellants mainly argued that ingredients of Section 397 PPC are not made out and at the most offence would fall under Section 392 PPC, therefore, they would not press appeals on merits, in case their convictions and sentences are converted to Section 392 PPC and some lenient view is taken on the ground that the appellants are young persons and they are sole supports of their old parents and their families. As regards to the conviction under section 7 of Anti-Terrorism Act, 1997 is concerned, it is submitted that in view of judgment passed by Hon’ble Supreme Court in the case of Ghulam Hussain vs. State (PLD 2020 SC 61), conviction and sentence under Anti-Terrorism Act were not warranted under the law.

10. Learned Addl. P.G after going through the evidence, submitted that though according to prosecution evidence P.W Imran Shoukat received butt injury on his forehead but neither medical officer has been examined nor medical certificate has been produced in evidence, as such, mere words are not sufficient without support of medical evidence, thus it is argued that this is a case of simple robbery and at the most, offence would fall under Section 392 PPC. As regards to the conviction under Section 7 of Anti-Terrorism Act, 1997, learned Addl. P.G submitted that conviction under Section 7 of Act 1997 is not sustainable in law.

11. We have carefully heard learned counsel for the parties and perused the evidence minutely.

12. For an offense to come within the purview of the ATA 1997 it must satisfy section 6 of the A.T.A., 1997.

13. For section 6, A.T.A., 1997 to be applicable there must be the act (offense) so defined in section 6 and the relevant criminal intention (mens rea) as defined in section 6, A.T.A., 1997.

14. The required mens rea based on the particular facts and circumstances of this case is found at section 6(1)(b) and not (c), A.T.A., 1997. Section 6(1)(b) reads as under;

       "The use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or a foreign government or population or an international organization or create a sense of fear or insecurity in society."

15. In the case of Ghulam Hussain (supra) the Supreme Court has emphasized that for an offense to come within the ambit of the A.T.A., 1997 the mens rea must include the fact that the threat was designed or its purpose was to coerce and intimidate the public.

16. Based on the peculiar facts and circumstances available on record, we hold that there is no evidence that intention of the appellants was designed to coerce or intimidate the public. In the circumstances of this case, conviction under Section 7 of Anti-Terrorism Act, 1997 was unwarranted in law and the same is set aside. As regards to the conviction under Section 397 PPC is concerned, though according to prosecution evidence weapon was used, P.W Imran Shoukat received butt injury on his forehead but neither medical officer has been examined nor medical certificate has been produced in evidence, therefore, mere words without support of medical evidence are not sufficient to sustain conviction under Section 397 PPC, thus learned Addl. P.G rightly opined that it was a case of simple robbery and at the most, offence would fall under Section 392 PPC. Learned counsel for the appellants relied upon an unreported judgment dated 13.12.2022 passed by this Court in Crl. Jail Appeal No. 101/2022, sentence of appellant under Section 397 PPC was modified to one under Section 392 PPC and he was sentenced to suffer R.I for 03 years. Relevant paragraph is produced as under:

“Admittedly, no weapon was used by the appellant in commission of incident, as such, the offence, if any, would fall under Section 392 PPC, therefore, the punishment to the appellant u/s 397 PPC is misplaced, thus, it is modified with one u/s 392 PPC, consequently, the appellant is convicted and sentenced to undergo rigorous imprisonment for 03 years with fine of Rs.10,000/- and in default whereof to undergo simple imprisonment for 20 days with benefit of section 382(b) Cr.P.C.”

17. Looking to the evidence available on record, we have come to the conclusion that that offence at the most would fall under Section 392 PPC. Resultantly, conviction and sentence of the appellants is modified from Section 397 PPC to Section 392 PPC.

18. As regards to other convictions and sentences are concerned, 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, the Hon’ble Supreme Court has 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." In the present case, the appellants are young persons, this fact is also reflected from the statement of appellants recorded by trial court u/s 342 Cr.P.C and they are sole supporters of their old parents and their families. As per Jail roll dated 20.01.2023, both the appellants have already served out sentence including remission 02 years, 06 months and 27 days and they are not previous convicts, therefore, in these peculiar circumstances, a case for reduction of the sentence of the appellants is made out.

19. In view of peculiar circumstances, for the above stated reasons, sentences of the appellants are reduced to one which have already undergone by the appellants, which is not opposed by learned Addl. P.G. So far fine is concerned, it is reduced to Rs.50,000/- each, in case of default in payment of fine, appellants shall suffer S.I for 15 days more. So far conviction and sentence of appellant Dost Muhammad under Section 25 of Sindh Arms Act 2013 is concerned, it is reduced to one which he has already undergone and fine is reduced from Rs.50,000/- to Rs.25,000/-, in case of default in payment of fine, appellant Dost Muhammad shall undergo S.I for 15 days more instead of S.I for 03 months. All the sentences to run concurrently with benefit of section 382(b) Cr.P.C.

20. Subject to above modification in the sentence, the Appeal is disposed of in the above terms.

JUDGE

JUDGE