THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.169 of 2024

Criminal Appeal No.170 of 2024

Present:

Mr. Justice Shamsuddin Abbasi

Appellants : Waqar alias Abdul Waqar son of Abdul Ghafoor through Mr. Zafar Ali Sipyo, advocate in Criminal Appeal No.169/2024

Altaf Hussain son of Yaqoob through Mr. Muhammad Munir Ahmed, advocate Criminal Appeal No.170/2024

Respondent : Mr. Qamaruddin Nohri, D.P.G.

Date of Hearing : 07.05.2025

Date of Judgment : 07.05.2025

JUDGMENT

Shamsuddin Abbasi, J.—Appellants Waqar alias Abdul Waqar and Altaf Hussain were tried by learned Additional Sessions Judge-II, Karachi South in Sessions Case No.1772/2023, arising out of FIR No.261/2023, registered at P.S. Clifton, Karachi for offence under Sections 392, 397, 34, PPC. After regular trial, vide judgment dated 10.02.2024 appellants were convicted under section 397, PPC and sentenced to undergo 7 years R.I. Benefit of Section 382-B, Cr.PC was extended to appellants.

2. Brief facts leading to the filing of the captioned appeals are that complainant namely Malwin son of Gorge, lodging FIR No.261/2023, alleging therein that while he was waiting for bus at Remote Tower, Do Talwar, Clifton, to attend his duties at CARDIO, two persons came on motorcycle, one of them pointed pistol on complainant and snatched his mobile phone Samsung A-04 black and escaped away. Both the accused persons were of young age and from their appearance they were looking like Baloch. However, after performing his duties, complainant visited the police station and lodged above numbered FIR against two unknown persons.

3. That on 26.06.2023 applicants were arrested in Crime No.496/2023 and 497/2023 u/s 23(1)(a) of the Sindh Arms Act, 2013 of P.S. Preedy and robbed phone of Crime No.261/2023 was recovered from their possession as such they were also arrested in this case.

4. After usual investigation, challan was submitted against appellants under above referred sections.

5. Trial Court framed Charge against the appellants under the above referred sections, to which they pleaded not guilty and claimed trial.

6. Trial Court after hearing learned counsel for appellants, prosecutor and while examining the evidence minutely by judgment dated 10.02.2024, convicted and sentenced the appellants as stated above. Hence, the appellants have filed instant appeals against their convictions and sentences.

7. The facts of the case as well as evidence produced before trial Court find an elaborate mention in the judgment dated 10.02.2024 passed by the trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. 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 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 submitted that prosecution has proved its cases 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 the accused persons. However, he admits that no case for offence under section 397, PPC has been made out and, 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.

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 09.04.2025, both the appellants have already served out sentence including remissions about 06 years. 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 appellants under section 397, PPC is altered to Section 392, PPC and sentenced to which they have already undergone.

14. Subject to above modification in the sentence, the Appeals are disposed of in the above terms. Since appellants Waqar alias Abdul Waqar and Altaf Hussain, have already undergone the sentences as modified, they shall be released forth with, if not required in any other custody case.

J U D G E

Gulsher/PS