ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.P.No.D-4481 of 2012

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Order with signature of Judge

1.For katcha peshi.

2.For hearing of CMA No.43596/12

26.09.2013

Mr.Ghulam Mujtaba Sahito, Advocate for the petitioner.

Mr.Muhammad Iqbal Awan, A.P.G.

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Through this petition the petitioner has assailed the order dated 21.11.2012 passed by Anti–Terrorism Court-II, Karachi on the application moved by the accused/petitioner under Section 23 of the Anti –Terrorism Act, 1997.

The brief facts of the case are that the complainant SIP Muhammad Sharif Niazi P.S. Shershah lodged FIR No.212/2012 on 28.9.2012 that along with police party he was on patrolling in the police mobile and when they reached at Caltex Petrol Pump, Mauripur Road, Karachi, HC Muhammad Riaz and PC Shabbir Ahmed also reached on their motorcycle when the passengers of Mazda Bus started shouting that dacoits are looting them the culprits started firing at police party to kill them. The police also retaliated and upon firing, PC Shabbir Ahmed injured and one accused was arrested with TT Pistol, who disclosed his name Shahroz and also disclosed names of two escaped accused Jawed and Dada. Initially the FIR was lodged under Section 392/397/353/324 & 34 PPC and subsequently, the police submitted the challan under Section 353/324/34 PPC read with Section 7 of ATA only. So far as the allegations of robbery is concerned it is clearly mentioned in the challan that the bus in which the accused persons committed robbery on gunpoint went away along with passengers at the time of incident, the number or route of the same was not disclosed by any witness, for which search was also made but neither such bus was found nor its driver, conductor or passenger, who could say that passengers were looted by accused and due to this sole reason the offence against accused under Section 392/397 PPC not proved and ultimately no such offence was mentioned in the challan.

We have seen the impugned order and paragraph 7 of the order is reproduced as under :-

“7. It has become general practice of uneducated youth and person to have easy money by unlawful means. The accused Shahid and his companions were armed with weapons looting passengers of the Mazda Bus who seeing the police party near petrol pump shouted for help that the dacoits are looting them. The police which challenged the culprits who to avoid their arrest had fired at police party obviously to kill them and avoid their arrest. The two authorities cited by the advocate in fact does not support him. The dacoits were armed with weapon and it was their preplanning and organized to loot the passengers to create insecurity and to intimidate them that they had boarded the bus to loot them. Accused Shahroz had also fired at the police party and had injured police constable therefore the offence does fall subsection 2 of section 6 clauses (m) & (n) of subsection 2 of Section 6 of ATA, 1997 as such I reject the application.”

Learned counsel for the petitioner argued that while passing the impugned order the learned Anti–Terrorism Court-II, Karachi failed to apply judicial mind and also failed to consider the challan in which the main offence of robbery/dacoity was dropped. While the learned APG argued though section 392/397 PPC were dropped but the accused person fired upon the police official and got injured him. After hearing learned counsel and examining the impugned order we are of the affirmed view that the impugned order is passed keeping in view of the offence of robbery. It was observed by the learned Anti–Terrorism Court-II, Karachi that the dacoits were armed with weapons and it was their preplanning and organized to loot the passengers and to create insecurity and to intimidate them for which they boarded on the bus to loot them. After deleting the aforesaid sections from challan the order on the application must have been passed independently keeping in view Section 353/324/34 PPC read with Section 7 of ATA, but the entire order is focused on the alleged offence committed under Section 392/397 PPC. Both the learned counsel agreed that let this matter be remanded back to the learned Anti–Terrorism Court-II, Karachi. Learned counsel for the petitioner submits that in view of administrative order now the case has been assigned to Anti–Terrorism Court-V, Karachi.

As a result of above discussion, the impugned order is set-aside and the matter is remanded back to the learned Anti–Terrorism Court-V, Karachi with the direction to decide the application moved under Section 23 of the Anti–Terrorism Act, 1997 afresh preferably within 20 days.

JUDGE