HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Jail Appeal No.59 of 2017

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Appellant : Zaheer son of Ghulam Rasool through Mr. Muhammad Farooq, Advocate

Respondent : The State through Mr. Mohammad Iqbal Awan, Deputy Prosecutor General Sindh

Date of Hearing : 27.03.2019

Date of Announcement : 01.04.2019

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Zaheer son Ghulam Rasool appellant was tried by learned Additional Sessions Judge-I / Judge Anti-Terrorism Court, Karachi East in Special Cases Nos.705/2016 and 706/2016. After full-dressed trial, vide judgment dated 22.12.2016, appellant was convicted under sections 392, PPC to 7 years R.I. and to pay fine of Rs.10,000/-, in default thereof to undergo S.I. for 2 months; under section 353, PPC, 2 years R.I.; under section 324, PPC read with section 7 of the Anti-Terrorism Act, 1997, 10 years R.I. with fine of Rs.10,000/-, in default thereof to suffer 3 months S.I. 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 leading to the filing of appeals are that complainant Hassan Jameel was the student of BBA in Sindh Madarastul Islam University. On 22.04.2016, he left home for the university on his motorcycle. At about 06:15 pm, he reached at Main University Road, near Lalazar Marriage Hall where it is alleged that 3 unknown persons appeared on motorcycle, out of them, one was armed with pistol and mobile phone was snatched by him from the complainant by show of force. It was Samsung Galaxy S-3, containing U-Fone SIM. It is further stated that accused tried to drive away on the motorcycle. In the meanwhile, police mobile of P.S. Gulshan-e-Iqbal, Karachi appeared there, complainant narrated the incident to the police officials, who took the complainant along with them and followed the culprits. It is alleged that at some distance, police saw the accused persons on the motorcycle but they started firing upon the police, police also fired in self defence. Resultantly, one of three accused sustained fire arm injury and he fell down. Two culprits succeeded to drive away the motorcycle. On inquiry, injured accused disclosed his name as Zaheer son of Ghulam Rasool and one 30 bore pistol with magazine containing three live rounds was recovered from his possession. SIM and mobile were also recovered from his possession. Accused disclosed names of co-accused who drove away. It is stated that appellant / accused had no license for the pistol which he carried. Mashirnama of arrest and recovery was prepared at the spot in presence of mashirs. Accused was referred to JPMC Hospital for treatment and certificate. Two FIRs bearings Nos.209/2016 under sections 353, 324, 34, read with Section 7 of the Anti-Terrorism Act, 1997 and 210/2010 under section 23(1)(a) of the Sindh Arms Act, 2013 were registered against the accused at P.S. Gulshan-e-Iqbal, Karachi.

3. After usual investigation, challan was submitted against the accused before the learned Judge, Anti-Terrorism Court under the above referred sections.

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

5. Trial court framed charge against the accused at Ex.4. Accused pleaded not guilty and claimed to be tried.

6. At trial, prosecution examined PW-1 complainant Hassan Jameel at Ex.7, PW-2 SIP Ishaq Shah at Ex.8, PW-3 Abdul Haleem Bullo at Ex.10, PW-4 Ejaz Ahmed, MLO at Ex.11, PW-5 Inspector Bashir Ahmed at Ex.12. PWs produced the relevant documents which have been exhibited by the trial Court. Thereafter, prosecution side was closed at Ex.13.

7. Statement of accused was recorded under Section 342 Cr.P.C at Ex.24. Accused denied all the incriminating pieces of prosecution evidence brought against him on record. Accused claimed false implication in the present cases. Accused did not examine himself on oath nor led any evidence in his defence.

8. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 22.12.2016, convicted and sentenced the appellant as stated above, hence this appeal is filed.

9. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 22.12.2016 passed by the trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

10. Mr. Muhammad Farooq, learned advocate for the appellant, at the very outset does not press the appeal on merits but prayed for reduction of the sentence on the ground that the appellant is not previous convict, he is young man and father of a girl aged about 3 years and is sole support of the family.

11. Mr. Mohammad Iqbal Awan, learned D.P.G., admitted that appellant is not previous convict and he is first offender. Learned D.P.G. argued that since appeal is not pressed on merits, he has no objection if on the above grounds sentence of the appellant is reduced to some reasonable extent.

12. Under Section 423 Cr.PC, Appellate Court has power to reduce the sentence in the appropriate cases.

13. Close scrutiny of evidence shows that prosecution has proved its case against the appellant/accused. In this case, appeal is not pressed on merits, only prayer is made for reduction of sentence. It is admitted that the appellant is not previous convict; he is a young man and having daughter aged about three 3 years. Learned advocate for the appellant has argued that family of the appellant has no source of income and the appellant is sole supporter of the family. The object of punishment is not revenge but the protection of society. Appellant is not a hardened criminal. We have also looked into the evidence minutely. During encounter, no police official had sustained the injury. In these circumstances, sentence under Section 392, PPC awarded by the trial court to accused 7 years R.I. is reduced to 5 years R.I.; under section 353, PPC, to 2 years R.I. is reduced to one year R.I., under section 324, PPC read with section 7 of the Anti-Terrorism Act, 1997 awarded by the trial court to accused 10 years R.I. is reduced to 5 years R.I. However, the fine imposed by the trial court for the aforesaid offences is maintained, in default thereof, appellant shall undergo S.I. as already directed by the trial court.

14. Since appeal is not pressed on merits, the same is dismissed as not pressed. Conviction is maintained, sentence is reduced to the above extent. Appellant shall be entitled to benefit of Section 382-B, Cr.PC.

J U D G E

J U D G E

Gulshers/PS