ORDER SHEET

THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals No. 195, 196, 197, 198 of 2023

Special Criminal Anti-Terrorism Jail Appeal No. 219 of 2023

Criminal Revision application No. 46 of 2024

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Irshad Ali Shah

Appellants : Muzamil @ Mitho, Faisal @ Salman @ Lecture, Sheeraz Ali @ CG, Shahmeer @ Shamir Ali @ Nakri through Mr. Muhammad Farooq advocate

Respondent : The State through Mr. Abrar Ali Additional Prosecutor General Sindh

Date of Hearing : 19.09.2024

Date of judgment : 19.09.2024

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellants Muzamil @ Mitho, Faisal @ Salman @ Lecture, Sheeraz Ali @ CG, Shahmeer @ Shamir Ali @ Nakri were tried by learned Judge, ATC-XVI, Karachi in Old Special Case No. 42/2022, New Special Case No. 27/2022 (FIR No.688/2021 for offences punishable under sections 302, 186, 324, 353, 393, 34 PPC read with Section 7 of ATA 1997 registered at P.S Landhi), Old Special Case No. 175/2022, New Special Case No.115/2022 (FIR No. 689/2021 for offence punishable under Section 23(1)(a) of Sindh Arms Act 2013 registered at P.S Landhi), Old Special Case No. 206/2022, New Special Case No. 187/2022 (FIR No. 17/2022 for offences punishable under Sections 353, 324, 427, 34 PPC registered at P.S CTD), Old Special Case No. 206-A/2022, New Special Case No. 188/2022 (FIR No. 18/2022 for offence punishable under Section 23(1)(a) of Sindh Arms Act 2013 registered at P.S CTD), Old Special Case No. 206-B/2022, New Special Case No. 189/2022 (FIR No. 19/2022 for offence punishable under section 23(1)(a) of Sindh Arms Act 2013 registered at P.S CTD). After regular trial, vide judgment dated 31.10.2023, the appellants were convicted and sentenced as under:

“a. For offence of Qatl-i-Amd of the deceased PC Hamza Khan, punishable under Section 302 r/w 34 PPC the accused 1. Muzamil @ Mitho s/o Mushtaque Rajput, 2. Faisal @ Salman @ Lecture S/o Pervaiz Ahmed/Ali, 3. Sheeraz Ali @ CG S/o Shafique and 4. Shahmeer @ Shamir Ali @ Nakri S/o Muhammad Ali are sentenced to simple imprisonment for fourteen years with fine of Rs.200,000/- and in default of such payment the accused persons shall undergo SI for six months more.

b. For causing death of the deceased PC Hamza Khan by firing, punishable under Section 7(a) of the Anti-Terrorism Act 1997, the accused 1. Muzamil @ Mitho s/o Mushtaque Rajput, 2. Faisal @ Salman @ Lecture S/o Pervaiz Ahmed/Ali, 3. Sheeraz Ali @ CG S/o Shafique and 4. Shahmeer @ Shamir Ali @ Nakri S/o Muhammad Ali are sentenced to simple imprisonment for ten years with fine of Rs.200,000/- and in default of such payment the accused persons shall undergo SI for six months more.

c. The accused 1. Muzamil @ Mitho s/o Mushtaque Rajput, 2. Faisal @ Salman @ Lecture S/o Pervaiz Ahmed/Ali, 3. Sheeraz Ali @ CG S/o Shafique and 4. Shahmeer @ Shamir Ali @ Nakri S/o Muhammad Ali are also directed to pay an amount of Rs.200,000/- (two lacs) by each accused to the legal heirs as compensation as provided under Section 544-A Cr.PC and in default of such payment the accused persons shall undergo SI for six months.

d. Accused 1.Faisal @ Salman @ Lecture S/o Pervaiz Ahmed/Ali, 2. Sheeraz Ali @ CG S/o Shafique are also hereby convicted for the offence u/s 23(1)(a) SAA and sentence them to simple imprisonment for seven years with fine of Rs.10,000/- and in default of such payment the accused shall undergo SI for six months more.

e. For the act of terrorism committed the accused 1. Muzamil @ Mitho s/o Mushtaque Rajput, 2. Faisal @ Salman @ Lecture S/o Pervaiz Ahmed/Ali, 3. Sheeraz Ali @ CG S/o Shafique and 4. Shahmeer @ Shamir Ali @ Nakri S/o Muhammad Ali punishable u/s 7(1)(h) of Anti-Terrorism Act 1997, the accused is hereby also sentenced to undergo RI for (10) ten years and to pay fine of Rs.50,000/- (fifty thousand).

f. The property of the accused are directed to be forfeited as required under Section 7(2) of Anti-Terrorism Act 1997.”

All the sentences were directed to run concurrent. Appellants were also extended benefit of Section 382(b) Cr.P.C.

2. Appellants being aggrieved and dissatisfied with the judgment passed by trial Court preferred the appeals. However, Criminal Revision Application No.46 of 2024 is filed by the State through P.G Sindh against respondents 1. Muzamil @ Mitho s/o Mushtaque Rajput, 2. Faisal @ Salman @ Lecture S/o Pervaiz Ahmed/Ali, 3. Sheeraz Ali @ CG S/o Shafique and 4. Shahmeer @ Shamir Ali @ Nakri S/o Muhammad Ali for enhancement of sentence.

3. At the very outset, Mr. Abrar Ali learned Addl. P.G pointed out that trial Court has committed multiple illegalities while passing the impugned judgment. It is submitted that appellants have been convicted for commission of Qatl-i-Amd of deceased PC Hamza under Section 302 r/w 34 PPC and have been sentenced to simple imprisonment for fourteen years without specifying the penal clauses i.e. (a), (b) or (c) of Section 302 PPC, as such, sentence of 14 years S.I is inadequate and illegal. By contending so, he sought for remand of the case to learned trial Court for re-writing the judgment in accordance with law.

4. Mr. Muhammad Farooq advocate for the appellants conceded to the legal position. However, prayed that case after remand may be heard by another Judge because Mr. Abdullah Channah Judge, ATC-XVI, Karachi has already formed his opinion.

5. Heard arguments and perused record.

6. In order to appreciate the contentions raised by learned counsel for the parties, we have examined the impugned judgment minutely and came to the conclusion that in the present case, command of law escaped notice of the trial Judge and awarded punishment of simple imprisonment for 14 years to the appellants, which is quite inappropriate.

7. Section 302 PPC provides the punishments as under;

302.

Punishment of qatl-i-amd: Whoever commits qatl-e-amd shall, subject to the provisions of this Chapter be:

(a)

punished with death as qisas;

(b)

punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or

(c)

punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the injunctions of Islam the punishment of qisas is not applicable.

Provided that nothing in this clause shall apply to the offence of qatl-i-amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of (a) and (b), as the case may be.

There is one more illegality. There is no mention in impugned judgment that each of the appellant has been convicted under Section 302 PPC.

8. In last paragraph of the judgment, appellants have been convicted for causing death of deceased PC Hamza Khan under Section 7(a) of ATA 1997, again it is simple imprisonment for 10 years with fine of Rs.200,000/- it too is against the command of law. Punishment provided under Section 7(a) of ATA 1997 is as under:

7. Punishment for acts of terrorism (1) Whoever commits an act of terrorism under section 6, whereby-

(a) death of any person is caused, shall be punishable, on conviction, with death or with imprisonment for life, and with fine.

9. In our considered view, impugned judgment was passed by trial Judge in perfunctory and slipshod manner and it is violative of mandatory provisions of Sub Section (2) of Section 367 Cr.P.C, which cannot be cured under the provision of Section 537 Cr.P.C. Consequently, it is set aside. Appeals are allowed and cases are remanded for re-writing of the judgment with direction to learned Administrative Judge, ATCs Karachi to assign the same to a Judge, other than one, who has passed the impugned judgment for fresh disposal of the cases in accordance with law.

10. In the view of above, Criminal Revision as well as Appeals are disposed of in the above terms. Let copy of this judgment be dispatched to Mr. Abdullah Channah, Judge ATC-XVI, Karachi, through Registrar of this Court for information and future guidance.

JUDGE