THE HIGH
COURT OF SINDH AT KARACHI
Criminal Jail
Appeal No.674 of 2023
Criminal Jail
Appeal No.675 of 2023
Criminal Jail
Appeal No.676 of 2024
Criminal Jail
Appeal No.677 of 2024
Criminal Jail
Appeal No.678 of 2024
Criminal Jail
Appeal No.679 of 2024
Present:
Mr.
Justice Shamsuddin Abbasi
Appellants : Muhammad Shahzada
alias Shahzado through Mr. Ubedullah
Ghoto, advocate in Appeals 674, 675 of 2023
Islamul
Haq, Muhammad Shahzada
& Ghulam Nabi alias Adoo through Syed Iftikhar Ahmed
Shah & Muhammad Naeem Awan,
advocates in Appeals 676,677, 678 & 679 of 2024
Respondent : Mr. Qamaruddin
Nohri, D.P.G.
Date of Hearing : 07.05.2025
Date of
Judgment : 07.05.2025
JUDGMENT
Shamsuddin Abbasi, J.—Appellants Muhammad Shahzada alias Shahzado, Islamul Haq and Ghulam Nabi were tried by learned
Additional Sessions Judge-X, Karachi South in Sessions Case No.2848 of 2022, arising
out of FIR No.64/2022, registered at P.S. Baloch
Colony for offence under Sections 397, 34, PPC; Sessions Case No.2888/2022,
arising out of FIR No.13/2022, registered at P.S. Tipu
Sultan, for offence under section 397, PPC and Sessions Case No.153/2022,
registered at P.S. Baloch Colony, for offence under
section 23(1)(a) of the Assistant Attorney General. After regular trial, vide
judgments dated 29.11.2023 appellants were convicted and sentenced as under:
(i)
In Sessions Case No.2848/2024, appellants were convicted under
section 397, PPC and sentenced to undergo 7 years R.I.
(ii)
In Sessions Case No.2888/2024, appellants Muhammad Shahzad alias Shahzado, Islamul Haq and co-accused Imran
alias Mota were convicted under section 397, PPC and
sentenced to undergo 7 years R.I.
(iii)
In Sessions Case No.3261 of 2022, appellant Muhammad Shahzad alias Shahzado was
convicted under section 23(1)(a) of the Sindh Arms
Act, 2013 and sentenced to undergo 7 years R.I. and to pay fine Rs.10,000/- in
default whereof to undergo S.I. for 2 months more.
Benefit of Section 382-B, Cr.PC
was extended to appellants.
2. Brief
facts leading to the filing of the instant appeals are that complainant of FIR
No.64/2022, after having withdrawn cash amount from Faysal
Bank, Karachi, Admin Society Branch, near Mehmoodabad
No.6, while going towards his home on his motorcycle, when he reached at Marwat Chowk, near Fairway Store,
adjacent to his house at about 03:25 p.m. in the meanwhile, four person on two
motorcycles came over stopped him. Two of them wre
alleged to have aimed pistols at him and robbed him by snatching cash amount
rss.570,000/-, mobile Oppo, Reno-6, 5G PRO having SIM
Cad Nos.03028287687 and 03062402702 and then escaped away on their motorcycles.
3. Complainant in FIR No.13/2022 stated
that after performing duty he left school for home at about 1120 hours at Noor
Masjid, Admin Society, PECHS, Karachi four persons on two motorcycles stopped
him and snatched his bag containing latpot X-230, Linovo, one device of Zong,
Headphone and motorcycle bearing No.KHU-6677, Honda 125 Model 2016, Engine
No.7631514 and then escape away, hence the subject FIRs against four unknown
persons.
4. Facts of the case involved in Appeal
No.676 of 2023 are that ASI Shah Faisal of PS Baloch
Colony being IO of aforesaid FIR bearing Crime No.64/2022 under section 397/34,
PPC, arrested present accused and two others based on spy information from Ghosia Masjid near Ganda Nala Sector 6-J/I, Junejo Town on
motorcycle and accused Muhammad Shahzada alias Shahzado possess unlicensed weapon, hence separate FIR
No.153/2022 under section 23(1)(a) of the Sindh Arms Act, 2013 was registered
against him on behalf of the State.
5. After usual investigation, challans were submitted against appellants under above
referred sections.
6. Trial
Court framed Charge against appellants under the above referred sections, to
which they pleaded not guilty and claimed trial.
7. Trial
Court after hearing learned counsel for appellants, prosecutor and while
examining the evidence minutely by judgment dated 29.11.2023, 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 trial Court find an
elaborate mention in the judgment dated 29.11.2023 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 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 are ordered to run
concurrently 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.
9. Learned
D.P.G after going through the evidence, after going through the evidence,
submitted that prosecution has proved its case against the appellants;
complainants of the aforesaid FIRs have fully implicated the appellants in the
commission of offence; that weapon was recovered from possession of one of the
accused persons. However, he admits that no case for offence under section 397,
PPC has been made out, at the most case under section 392, PPC has been made
and he has recorded no objection if the conviction and sentence may be
considered as already served out and are ordered to run concurrently. Learned
counsel for complainant adopted the arguments advanced by learned D.P.G. on
merits but he opposed the proposal for modification of section 397, PPC to 392,
PPC.
10. I
have carefully heard learned counsel for the parties and scrutinized the entire
prosecution evidence and have come to the conclusion that prosecution has
proved its case against the appellants. As
regards to the conviction recorded under Section 397 PPC is concerned, for the
sake of convenience, section 397 PPC is reproduced as under:
“Section 397. Robbery or dacoity with attempt to
cause death or grievous hurt. If at the time of committing robbery
or dacoity, the offender uses any deadly weapon, or
causes grievous hurt to any person, or attempts to cause death or grievous hurt
to any person, the imprisonment with which such offender shall be punished
shall not be less than seven years.”
11. Admittedly, appellants did not cause any jury to anyone.
Ingredients of offence under section 397, PPC are not attracted, thus, at the most, offence would
fall under Section 392 PPC. Looking to the evidence available on record, I have
come to the conclusion that offence if any would fall under Section 392, PPC.
Resultantly, conviction and sentence of appellants is modified from Section 397
PPC to Section 392 PPC.
12. So
far as the quantum of sentence is concerned, it is submitted that the
appellants are young persons and they are sole supporters of their old parents
and families. It is also submitted that appellants are not previously
convicted. As per jail roll dated 03.03.2025, the appellants have
already served out sentence including remission 14 years, 09 months and 20
days, whereas one of the appellants, namely, Ghulam Nabi alias Adoo has already been
released after having served his sentence, as reported Senior Superintendent,
Central Prison, Karachi vide letter dated 03.09.2025. Therefore, in these
peculiar circumstances, a case for reduction of the sentence of the appellants
is made out. Reliance is placed upon the case of Gul
Raeef Khan vs. The State (2008 SCMR 865).
13. In
view of peculiar circumstances, for the above stated reasons, conviction recorded
by trial court is maintained, however, conviction of appellant under section
397, PPC is altered to Section 392, PPC and sentenced to which they have
already undergone. As regards to conviction and sentence awarded to appellant
Muhammad Shahzad alias Shahzado
under Section 23(1)(a) of Sindh Arms Act, 2013 is concerned, it is also reduced
to 03 years R.I and to pay fine Rs.10,000/- each, in default whereof the
appellants shall undergo S.I for 15 days more. All the sentences to run concurrently with benefit of section 382(b) Cr.P.C.
14. Subject
to above modification in the sentence, the Appeals are disposed of
in the above terms. Since appellants Muhammad Shahzad
alias Shahzado and Islamul Haq, have already undergone the sentences as modified, they
shall be released forth with, if not required in any other custody case,
subject to payment of fine as detailed in the preceding paragraph.
J
U D G E
Gulsher/PS