HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals No. 81, 82 and 83 of 2018

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Date of Hearing : 15.04.2019

Date of judgment : 18.04.2019

Appellant : Muhammad Zubair @ Zubair Choto through Mr. Fazal Haque Khan Advocate

Respondent : The State through Mr. Farman Ali Kanasro Additional Prosecution General Sindh

JUDGMENT

NAIMATULLAH PHULPOTO, J. Muhammad Zubair @ Zubair Choto was tried by learned Judge, Anti-Terrorism Court No. XIV, Karachi in Special Cases No.1556, 1557 and 1558 of 2016. On the conclusion of the trial, vide judgment dated 26.02.2018, appellant was convicted and sentenced as under:

01. Convicted for offence punishable u/s 23(i) A, SAA in crime No. 154/2016 and is sentenced u/s 265-H(II) Cr.P.C to suffer R.I for 5 (five) years, and fine of Rs.3000/-, in default of payment of fine the convict shall suffer further S.I for three months.

02. Accused Muhammad Zubair is also convicted for offence punishable u/s 23(i)A, SAA, 2013 in crime No.155/2016 and is sentenced u/s 265-H(II) Cr.P.C to suffer R.I for 5 (five) years, and fine of Rs.3000/-, in default of payment of fine the convict shall suffer further S.I for three months.

03. Accused Muhammad Zubair is also convicted for possessing hand grenade under suspicious circumstances as provided u/s 5 of Explosive Substance Act and sentenced u/s 265-H(II) Cr.P.C to suffer R.I for 5 (five) years. All the properties of convict Muhammad Zubair stand forfeited to Government as provided u/s 5-A of Explosive Substance Act.

All the sentences were ordered to run concurrently. Benefit of Section 382-B Cr.P.C was also extended to the appellant.

2. Brief facts leading to the filing of the appeals are that Inspector Zafar Iqbal SHO PS Baghdadi was on patrolling on 02.09.2016 along with subordinate staff. During patrolling, SHO received spy information that one suspect armed with weapon was standing at Shah Baig Lane street No.5, near Government Lyari School No.1, Karachi, affiliated with Baba Ladla group with intention to commit some offence. On receipt of such information, SHO along with police party reached at the pointed place at 0330 hours and caught hold of him. On enquiry, the apprehended person disclosed his name as Zubair @ Zubair Choto s/o Moor Bux. From his personal search, Inspector Zafar Iqbal recovered one plastic shopper containing one hand grenade golden colored from right side of his shirt, one unlicensed 30 bore pistol on its’ barrel STAR-BARESPNA EDHEBERRIASA Cal 300 mm were mentioned, without number along with magazine loaded with four live bullets from right side fold of his shalwar. Weapon was sealed in presence of mashirs. BDU was called for defusing the explosive. Thereafter, accused and case property were brought at police station where separate FIRs bearing Nos. 153 and 154 of 2016 were registered against the accused on behalf of state. During interrogation, accused led the police to Government Lyari school No.1, Street No.5 near Shah Baig Lane Karachi and behind wall after digging the earth produced 670 bullets/ rounds of Kalashnikov wrapped in blue colored plastic shopper. Police secured the same. Inspector Zafar Iqbal prepared such mashirnama in presence of mashirs and sealed the case property. Accused and case property were brought at police station where another FIR bearing Crime No.155/2016 was registered against accused on behalf of state.

3. After usual investigation, challan was submitted against accused under the above referred sections.

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.4, accused pleaded not guilty and claimed trial.

6. At trial prosecution examined P.W-01 HC Sajid at Ex.8, P.W-02 SHO/Inspector Zafar Iqbal at Ex.9, P.W-03 I.O Inspector Syed Irshad Imam Abidi at Ex.10, P.W-04 SIP Ghulam Mustafa of BDU at Ex.12. Prosecution witnesses produced mashirnamas of arrest and recovery, FIRs and positive reports. Thereafter, prosecution side was closed vide statement at Ex.13.

7. Statement of accused was recorded u/s 342 Cr.P.C at Ex.14. Accused claimed his false implication and denied the prosecution allegations. Accused declined to examine himself on oath but examined Mst. Madhya in his defence.

8. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 26.02.2018, convicted and sentenced the appellant as stated above. Being aggrieved and dissatisfied, the appellant has preferred these appeals. Through this common judgment, we intend to dispose these appeals.

9. Mr. Fazal Haque Khan learned counsel for the appellant did not press appeals on merit and prayed for reduction of the sentences mainly on the ground that appellant is sole supporter of his family and he is first offender and not previously convicted. Learned counsel further submits that as per instructions, appellant wants to pass his life as peaceful citizen of the country.

10. Learned Additional Prosecutor General Sindh recorded no objection in case, sentence is reduced to some reasonable extent.

11. Though the appeals are not pressed on merits, but we firmly believe that it is primary duty of prosecution to prove its’ case. We have perused the prosecution evidence. No doubt, all the P.Ws are police officials, no enmity has been suggested against them. Police officials had no motive to falsely implicate the appellant and foist hand grenade and arms and ammunition upon accused. Evidence of police officials is fully corroborated by reports of experts, evidence is reliable and confidence inspiring. Trial Court by detailed judgment has deeply appreciated the evidence according to settled principle of law. We are unable to take the different view.

12. Since, appellant is first offender, not previously convicted and sole supporter of his family. He places himself at the mercy of this Court. Severe sentence would cause frustration to appellant and he would become desperate and hardened criminal. Courts should lean in favour of grant of concession of dispensing justice with mercy rather than creating hardships to appellant. Therefore, convictions recorded by the trial Court vide judgment dated 26.02.2018 under Section 23(1)(a) of Sindh Arms Act, 2013 and under Section 5 of Explosive Substance Act are maintained, however, sentence recorded under Section 23(1)(a) of Sindh Arms Act, 2013 is reduced from 05 years R.I to 04 years R.I. Fine of Rs.3000/- awarded by the trial Court is maintained. In case of default appellant shall suffer SI for three months as already directed by the trial Court. So far as sentence under Section 5 of the Explosive Substance Act is concerned, the same is also reduced from 05 years R.I to 04 years R.I. All the sentences shall run concurrently. Appellant is also extended benefit of Section 382-B Cr.P.C.

13. As regards the forfeiture of the properties of convict is concerned, such orders have been passed without material and without prior notice to the appellant. Therefore, the order of the forfeiture of properties of the appellant is not sustainable under the law and the same is set aside.

14. For the foregoing reasons, the appeals are dismissed and sentences of the appellant are reduced from 05 years R.I to 04 years R.I and sentence of fine is maintained as stated above. All the sentences shall run concurrently. Benefit of section 382-B Cr.P.C is extended to appellant.

15. In the view of above, appeals are disposed of in above terms.

JUDGE

JUDGE