HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals No. 40 & 41 of 2017

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Zulfiqar Ahmad Khan

Date of Hearing : 23.01.2018.

Date of Judgment : 25.01.2018.

Appellant : Zia-ul-Haq through Mr. Abdul Haleem Advocate.

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

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Zia-ul-Haq appellant was tried by learned Judge, Anti-Terrorism Court No.II, Karachi in Special Cases No.175/2014 & 176/2014. After full-dressed trial, appellant was found guilty vide judgment dated 23.01.2017, he was convicted and sentenced as under:-

i. I found him guilty for committing offence u/s 394 PPC and convict him u/s 265-H(ii) Cr.PC and sentence R.I for 10 ( Ten years) with fine of Rs.10,000/- (Ten Thousands). In default thereof he shall further undergo S.I for Three Months.

ii. Accused 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 Three months for committing offence u/s 324 PPC.

iii. Accused is sentenced R.I for 01 year for committing offence u/s 353 PPC.

iv. Accused 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 Three months for committing offence u/s 7(1)(h) ATA 1997.

v. Accused is sentenced R.I for 05 years with fine of Rs.5,000/- (Five Thousands). In default thereof he shall further undergo S.I for Three months for committing offence u/s 13-d Arms Ordinance 1965.

All the sentences were directed to run concurrently except payment of fine. 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 on 05.06.2012 at about 1945 hours, FIR was lodged on the statement of complainant HC Muhammad Tariq Khan wherein it is stated that he along with his subordinate staff was on patrolling duty. When police party reached at Mumtaz Manzil at 1900 hours they saw white color Corolla Car without number, wherein one person was sitting. Three young men out of them two were armed with pistols tried to snatch that car. Police party challenged the accused persons, who fired upon police. Police party also fired in self defence. Complainant received injury on his left leg, while Ghulam Mustafa on his right leg. One Slaman also received fire arm injury at his abdomen. One accused also sustained injury during encounter. Injured were brought at Hospital for treatment. Statement of HC Muhammad Tariq was recorded by SIP Raees Baig vide FIR No. 333/2012 u/s 394/324/353/34 PPC read with Section 7 Anti-Terrorism Act, 1997 at P.S Aziz Bhatti. During investigation, accused Zia-ul-Haq was arrested by SI Zulfiqar Ali along with unlicensed 30 bore pistol used in commission of offence. He was brought at Police station Aziz Bhatti where FIR No.341/2012 u/s 13(d) Arms Ordinance was registered against accused on behalf of state.

3. After usual investigation, challan was submitted against accused Ziaul Haq under above referred sections. Accused 1. Choudhry Naeem, 2. Ehsan Munib, 3. Noor Agha and 4. Dili Agha were shown as absconders. Trial Court declared them as proclaimed offenders.

4. Learned Trial Court amalgamated the aforesaid cases for joint trial in terms of Section 21-M of Anti-Terrorism Act, 1997.

5. Trial Court framed Charge against accused at Ex.7 under the above referred sections. Accused pleaded not guilty and claimed their trial.

6. At trial, prosecution examined nine witnesses. Thereafter, learned DDPP closed the prosecution side.

7. Statements of accused under Section 342 Cr.P.C was recorded at Ex. 26. Accused claimed his false implication in the present cases and denied the prosecution allegations. Accused declined to examine himself on oath in disproof of the prosecution allegations. However, he examined DWs Amina and Abdul Khaliq in his defence.

8. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 23.01.2017, convicted and sentenced the appellant as stated above. Separate Special Criminal Anti-Terrorism Appeals were filed by the appellant against the conviction and sentences recorded against him. We intend to decide aforesaid appeals by this common judgment.

9. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 23.01.2017 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

10. Mr. Abdul Haleem, learned counsel for the appellant after arguing the appeals at length, did not press the appeals on merits and prayed for reduction of sentence to one already undergone. Learned Advocate for appellant further submitted that appellant is not previous convict and is support supporter of large family.

11. Mr. Mohammad Iqbal Awan, learned DPG supported the judgment of the trial Court. However, recorded no objection, in case, sentences are reduced to already undergone.

12. We have carefully heard learned counsel parties and scanned the entire evidence available on record. Prosecution has examined nine witnesses. All the PWs have supported the case of prosecution and implicated the appellant in the commission of the offence. Ocular evidence is corroborated by medical evidence. Trial Court has rightly appreciated the evidence according to settled principle of law as such conviction recorded by the trial Court vide judgment dated 23.01.2017 is maintained. As regards to the question of sentence is concerned, learned Advocate for appellant has pointed out that appellant is in custody since date of his arrest. Appellant has been convicted by trial Court u/s 394 PPC and sentenced 10 years R.I with fine of Rs.10,000/- (Ten Thousands). In default thereof he was ordered to further undergo 03 months S.I. Appellant convicted u/s 324 PPC and sentenced to 07 years R.I with fine of Rs.10,000/- (Ten Thousands). In default thereof he was ordered to further undergo 03 months S.I. Appellant was convicted u/s 353 PPC and sentenced to 1 year R.I. Appellant was convicted u/s 7(1)(h) Anti-Terrorism Act, 1997 and sentenced to 07 years R.I with fine of Rs.10,000/- (Ten Thousands). In default thereof he was ordered to further undergo 03 months S.I. Appellant was also convicted u/s 13-d Arms Ordinance, 1965 and sentenced to 05 years R.I with fine of Rs.5,000/- (Five Thousands). In default thereof he was ordered to further undergo 03 months S.I. According to Jail Roll dated 22.01.2018, appellant has served sentence including remissions 05 years, 09 months and 11 days. 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."

13. Since learned counsel for appellant did not press appeals on merits, as such conviction is maintained. Appellant/accused is not previous convict and is a support of large family, therefore, sentence is reduced to one already undergone. So far sentence of fine is concerned, the same is maintained. Appeals are dismissed, however, subject to above modification.

JUDGE

JUDGE