THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.637 of 2024

Present:

Mr. Justice Shamsuddin Abbasi

Appellants : Aizaz Khan son of Nazar Gul through Mr. Jamroz Khan Afridi, advocate

Respondent : The State through Mr. Tahir Hussain Bhatti, A.P.G.

Date of Hearing : 13.05.2025

Date of Judgment : 13.05.2025

JUDGMENT

Shamsuddin Abbasi, J.- Appellant Aizaz Khan son of Nazar Gul was tried along with co-accused Umar Farooq son of Muhammad Zahir Shah by learned Additional Sessions Judge-IV, Karachi West in Sessions Case No.70/2024, arising out of FIR No.711/2023, for offence under sections 353, 324, 392, 397, 34, PPC, registered at P.S. Peerabad, Karachi West. After regular trial, vide judgment dated 04.09.2024, appellant was convicted under section 397/34, PPC and sentenced to undergo R.I. for seven (7) years and to pay fine Rs.50,000/-, in default whereof to undergo S.I. for 6 months more. Benefit of section 382-B, Cr.PC was extended to appellant.

2. Brief facts leading to the filing of instant appeal as mentioned by trial Court in the impugned judgment are that on 28.01.2023 two accused person, who were armed with weapons, snatched complainant’s motorcycle from Islamia Colony No.1, Main Manghopir; they were chased by a patrolling mobile, who on seeing police party started firing on police party, police party also fired in self defence, in result whereof one culprit sustained firearm injury at his left leg and fell down; mohalla people also gathered and started beating the culprits, they were rescued by police from public. Accused persons disclosed their names as Aizaz Khan and Umar Farooq. From personal search of accused Umar Farooq police recovered one 30 bore pistol No.B-8452 with empty magazine whereas from Aizaz Khan police recovered one mobile phone. Robbed motorcycle of complainant was also recovered from their possession. Police also recovered empty bullet of 9MM and 30 bore pistol from the place of incident, the same were sealed at the spot. Hence the aforesaid FIR under the above referred sections.

3. After usual investigation, challan was submitted against the appellant under the above referred sections. Trial Court framed Charge against the accused persons at Ex.02, to which they pleaded not guilty and claimed trial.

4. At trial, prosecution examined complainant at Ex.3, PW-2 IO/SIP Ikramullah at Ex.4 and PW-3 Majid Ali at Ex.5, they produced certain documents. Thereafter, learned DDPP closed the prosecution side at Ex.6.

5. Trial Court recorded statement of accused under Section 342 Cr.PC at Ex.7. Appellant claimed false implication in this case. He denied the prosecution allegations. Appellant neither examined himself on oath under section 340(2) Cr.PC in disproof of prosecution allegations nor led any evidence in his defence.

6. Trial Court after hearing the learned counsel for appellant, prosecutor and while examining the evidence, convicted and sentenced the appellant and co-accused by vide judgment dated 04.09.2024 as stated above. Hence, the appellant has filed instant appeal against his conviction and sentence.

7. Learned counsel for appellant after arguing the matter at some length submits that he would not press the instant appeal on merits in case conviction and sentence awarded to appellant are reduced to the period he has already undergone, contending that the appellant has no previous criminal record in his credit; he is not a dangerous, desperate and hardened criminal as well as not a previous convict and served out sufficient portion of his sentence; that due to his confinement in jail his family members are passing a miserable life and that the appellant will prove himself as a law abiding citizen and will not indulge in any unlawful act in future.

8. On the other hand, learned A.P.G. while supporting the impugned judgment has argued that prosecution has successfully proved its case against the appellant beyond any shadow of a reasonable doubt, therefore, the appeal merits no consideration and is liable to be dismissed. He, however, has not disputed the submission of learned counsel for appellant with regard to conversion of sentence into the period already undergone and extended his no objection to that extent.

9. I have heard learned counsel for appellant, A.P.G. for State and have gone through the entire material available on record with their able assistance.

10. A keen look to the record reveals that all the prosecution witnesses while appearing before learned trial Court have supported the case of prosecution and involved the appellant in the commission of offence, leaving no occasion for his false implication due to any ill-will or animosity. Thus, I am in agreement with the submission of learned A.P.G. that prosecution has successfully proved its case against the appellant beyond shadow of any reasonable doubt and the appeal merits no consideration.

11. Insofar as the submission of learned counsel for appellant with regard to conversion of sentence into the period he has already undergone on the ground that the appellant is not a dangerous, desperate and hardened criminal as well as not a previous convict is concerned, suffice to observe that the appellant has served out sentence of 04 years 10 months and 16 days as on 13.05.2025 as reflected from the jail roll and the family of the appellant, per learned counsel, is passing a miserable life due to his confinement in jail. Needless to say that normally, it is very difficult for a family to survive without support of earning member of the family. The position, being so, would be nothing but causing misery to the family of appellant on account of his act. The peculiar facts and circumstances, so pleaded by the counsel for appellant, having gone unchallenged by prosecution may well be taken into consideration for departing from normal practice. Learned counsel for appellant has also submitted that the appellant will prove himself as a law abiding citizen and will not indulge in any unlawful act in future. He is a first offender and has no previous criminal history in his credit and is the only earning member of his family as well as served a sufficient portion of his sentence, therefore, it would be appropriate that the appellant may be given an opportunity to improve himself to be a law abiding citizen.

12. Keeping in view the above facts and circumstances of the case, I am of the considered view that prosecution has discharged its burden of proving the guilt of appellant beyond any shadow of reasonable doubt, thus the appeal, insofar as it impugns conviction, is dismissed on merits. However, while entertaining the plea that appellant is sole bread earner of his family, who is passing a miserable life, and the appellant is not a previous convict, I find it a fit case for departure from the normal practice of determining the quantum of sentence. Jail roll reflects that appellant has served the sentence of 04 years 10 months and 16 days as on 13.05.2025, including remissions and by now he has to undergo the remaining sentence of about 2 years, 7 months and 14 days, therefore, in my view it would serve both the purposes of deterrence and reformation, if the sentence is modified and reduced to one already undergone. Accordingly, the sentence awarded to the appellant through impugned judgment dated 04.09.2024 is modified and reduced to one already undergone. The appellant shall be released forthwith if not required to be detained in any other custody case.

13. The Criminal Appeal stands disposed of in the above terms.

J U D G E

Gulsher/PS