IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Appeal No.D-85 of 2005

Present:

Mr. Justice Sadiq Hussain Bhatti,

Mr. Justice Abdul Maalik Gaddi,

Appellant Bhooral Sabzoi & 03 others, through Mr. Saeed

Ahmed B. Bijarani and Mrs.Najaf Shah, Advocates.

Respondent The State through Mr. Imtiaz Ali Jalbani,

Assistant Prosecutor General.

Mr. Ali Nawaz Ghanghro, advocate for the

complainant

Date of hearing: 19.11.2014. Date of Judgment: 19.11.2014.

J U D G M E N T.

Abdul Maalik Gaddi, J.- Through this appeal, the appellants, namely, 1) Bhooral Sabzoi, 2) Rehmatullah Nindwani, 3) Hazoor Bux Sabzoi and 4) Muhammad Moosa Nindwani, have challenged the consolidated judgment dated 30.11.2005, passed by learned Judge, Anti-Terrorism Court-III, Sukkur & Larkana Divisions, at Sukkur, in three cases viz., (i) Special Case No.04/2004, re State Vs. Bhooral Sabzoi & 05 others, arising out of crime No.70/2003 of PS B/Section, Kandhkot, under Sections 365-A, 324, 148, 149, PPC read with Section 7 of the Anti-Terrorism Act, 1997, (ii) Special Case No.05/2004, re State Vs. Rehmatullah, arising out of crime No.75/2003 of Police Station B/Section Kandhkot, under Section 13(e), Arms Ordinance and (iii)Special Case No.06/2004, re State Vs. Hazoor Bux, arising out of crime No.76/2003 of PS B/Section, Kandhkot, under Section 13(e) Arms Ordinance, whereby the appellants were convicted and sentenced as under :-

(i) For offence under Sections 365-A/149, PPC all the appellants/accused to undergo Imprisonment for life;

(ii) For offence under Section 324, PPC/149, PPC, to undergo imprisonment for 07 years and to pay fine of Rs.10,000/-. Each appellant/convict was ordered to pay Arsh of Rs.10,000/- to the injured Qadir Bux. The amount of Rs.10,000/- Arsh was ordered to be paid within 03 years i.e. Rs.3000/- in the first year, Rs.3000/- in the second year and Rs.4000/- in the last year. In case of failure to pay the Arsh or any part thereof within the said period, the appellants were ordered to be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until Arsh is paid in full

(iii) For offence under Section 7 of the Anti-Terrorism Act, 1997 to undergo imprisonment for life, and the movable and immovable properties of the appellants were ordered to be forfeited except the amount of Rs.10,000/- to be paid as Arsh as stated above.

(iv) For offence under Section 13(e) of the Arms Ordinance, appellants/accused Rehmatullah and Hazoor Bux were convicted and sentenced to undergo R.I. for 04 years each.

2. All the above sentences were ordered by the learned trial Court to run concurrently.

3. We have heard Mr. Saeed Ahmed B. Bijarani, Mrs. Najaf Shah, learned Counsel appearing for the appellants, Mr. Ali Nawaz Ghanghro, advocate for the complainant and Mr. Imtiaz Ali Jalbani, Asst. Prosecutor General, so also perused the record.

4. We deem it appropriate to deal with this appeal sentence-wise.

5. The first sentence awarded to all the appellants is under Section 365/A, PPC relating to kidnapping of Qadir Bux for ransom. From the contents of F.I.R it appears that the accused persons while kidnapping Qadir Bux were taking him away with them but on account of timely arrival of the co-villagers on the cries of the complainant party such attempt of the accused was foiled, whereafter the accused persons fired upon victim Qadir Bux and seriously wounded him. We have gone through the entire evidence available on record. In our view, Section 365-A, PPC has not been proved by the prosecution, as the demand of ransom for the release of abductee has also not been proved during evidence, which aspect is also conceded by Mr. Ghanghro appearing for the complainant. In such circumstances, the sentence awarded to the appellants/accused under Section 365-A, PPC is converted into 365, PPC and the sentence of life imprisonment awarded to the appellants for offence under Section 365-A, PPC by the learned trial Court is converted and altered into imprisonment for 07 years.

6. The appellants were also convicted and sentenced for offence under Section 324, PPC as above. During pendency of the appeal, the injured/victim Qadir Bux compounded the offence with the appellants/accused outside the Court and such compromise applications being M. A. No.1662/2013, under Section 345(2), PPC and M.A. No.1663/2013, under Section 345(6), PPC, jointly signed by complainant Abdul Haque Suhriani and injured/victim Qadir Bux Suhriani and the appellants/accused, have been filed. The victim while compounding the offence has forgiven the accused without claiming any compensation and he has also waived the Arsh awarded to him by the learned trial Court. The injured/victim appeared before this Court and filed his affidavit confirming the compromise between him and the accused/appellants to be without duress or coercion. Such compromise is accepted and the conviction and sentence awarded to the appellants under Section 324/149, PPC is, therefore, set aside in terms of compromise.

7. The appellants were awarded sentence of imprisonment for life for offence under Section 7 of the Anti-Terrorism Act, 1997, which falls under clause (c) of Section 7, which reads as under :-

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

(a) ………………

(b) ………………

(c) grievous bodily harm or injury is caused to any person, shall be punishable, on conviction, with imprisonment of either description for a term which shall not be less than [ten years] but may extend to imprisonment for life and shall also be liable to a fine; or

8. From the facts and circumstances of the case it appears that this is a case of an attempt to kidnap. Abductee Qadir Bux has compounded the offence with the appellants and has waived the Arsh awarded to him by the learned trial Court. The sentence awarded to the appellants for causing firearm injuries to the injured/victim has also been set aside in terms of compromise between the appellants and the injured/victim. The learned trial Court appears to have awarded maximum sentence of imprisonment for life to the appellants while convicting them under Section 7(c) of the Anti-Terrorism Act, 1997. In view of above, we hereby reduce the sentence of imprisonment for life under Section 7 of the Anti-Terrorism Act, 1997 into imprisonment for 10 years. As regards the forfeiture of the movable and immovable properties of the appellants as ordered by the learned trial Court while convicting and sentencing the appellants for offence under Section 7(c) of the Anti-Terrorism Act, 1997, is hereby set aside in the light of above facts and circumstances.

9. Appellants Rehmatullah and Hazoor Bux were further convicted and sentenced to undergo R.I. for 04 years each for offence under Section 13(e) of the Pakistan Arms Ordinance, 1965.

10. Now, there remain sentences of 07 years and 10 years imprisonment against all the appellants for offence under Sections 365, PPC and 7(c) of the Anti-Terrorism Act, 1997, which have been altered by this Court, so also the sentence of R.I. for 04 years each against appellants Rehmatullah and Hazoor Bux for offence under Section 13(e) of the Arms Ordinance. The learned trial Court while concluding the judgment ordered all the sentences to run concurrently. Since the appellants have remained in jail for a period of 10 years, 09 months and 17 days till 12.11.2014, therefore, the learned Counsel for the appellants prayed that the sentences awarded to the appellants may be treated as already undergone, on the ground that the appellants have served out the sentence including the remissions for a period of more than 10½ years, which is sufficient punishment.

11. Learned Assistant Prosecutor General assisted by learned Counsel representing the complainant conceded to the above prayer made by learned Counsel for the appellants.

12. We have perused the record. The jail roll of the appellants was called, which is available on record. As per the jail roll furnished by the Senior Superintendent, Central Prison, Larkana, the appellants have served out the sentence of 08 years, 09 months and 12 days as on 12.11.2014 and they have also earned remissions for 02 years and 05 days, thereby the appellants have served out the total sentence of 10 years, 09 months and 17 days.

13. In our view the ends of justice will be amply met if the substantive sentence is reduced from the above sentences to the one already undergone. Consequently, while maintaining the conviction, the sentence awarded to the appellants by the trial Court is reduced to the one which they have already undergone.

14. With the above modification in the sentences, the appeal is dismissed. The appellants are in jail, they shall be released forthwith if not required to be detained in any other case.

Sd/- JUDGE

Qazi Tahir/*