IN THE HIGH COURT OF SINDH AT KARACHI
Present:
Mr. Justice Ahmed Ali M. Sheikh &
Mr. Justice Muhammad Saleem Jessar
Criminal Special Anti-Terrorism Jail Appeal No. 46 & 47 of 2015
Appellant : Amjad Ali s/o Abdul Qayoom through Mr. Ahmed Nawaz Advocate.
Respondent : The State through Mr. Muhammad Iqbal
Awan,Assistant Prosecutor General Sindh.
Criminal Special Anti-Terrorism Jail Appeal No. 32 & 33 of 2015
Appellant : Bahawal @ Sajjad s/o Ghulam Rasool
through Mr. Zulfiqar Ali Shaikh Advocate.
Respondent : The State through Mr. Muhammad Iqbal
Awan,Assistant Prosecutor General Sindh.
Dated of hearing : 16.11.2016
Date of decision : 05.12.2016
J U D G M E N T
Muhammad Saleem Jessar, J: - By this common Judgment, we intend to dispose of above ATA appeals as all four arises out of one and same Judgment dated 27.02.2015, handed down by learned Special Judge, Anti-Terrorism Court No.VIII, Karachi in New Special Case Nos.31/2014 (old 74/2013), New Special Case Nos.32/2014 (old 75/2013), New Special Case Nos.33/2014 (old 76/2013), which are outcome of Cr. No.532/2013 U/s 384, 385, 386, 34 PPC r/w section 7 of Ant-Terrorism Act 1997 (hereinafter referred to as Act), Crime No.533/2013 and Crime No.534/2013 U/s 23(i) (a) Sindh Arms Act, 2013 all three registered with P.S. Ferozabad, Karachi, whereby the appellants have been convicted and sentenced to suffer R.I. for seven years on each count and fine of Rs.50,000/- each in default, they shall serve six months more. However the sentences have been ordered to run concurrently in terms of section 397 Cr.P.C besides, benefit of section 382B Cr.P.C has also been extended to them. The appellants being aggrieved by and dissatisfied with the common Judgment dated 27.02.2015 (impugned Judgment) have assailed same before this court by means instant appeals as required by section 25 of the Act r/w section 410 Cr.P.C.
2. The crux of prosecution case, as unfolded by complainant Furqan Abdul Khalique in his FIR No.532/2013, are that he runs his business in the name of “New Whit Flower Uniform” at Block No.11, Gulshan-e-Iqbal, Karachi. On 26.09.2013, he received calls at 2:30 pm at 7:30 pm to 8:00 pm, from cellular mobile No.0311-2082511, the caller introduced his identity as Qureshi Bulla and demanded “Bhatta”(extortion) Rs.200,000/- under threats of killing. On 27.09.2013, he again received 2/3 calls from the said mobile the caller demanded “Bhatta”. The complainant expressed inability to pay such huge amount, and requested for less amount. Lastly, the extortionist/caller agreed to receive Rs.30,000/- and directed the complainant to pay extortion money on 28.09.2013 at 6:30 pm at Allah Wali Chowrangi , Tariq Road, Karachi. The complainant under the assistance of the CPLC informed the police of P.s. Ferozabad and went to the pointed place but extortionist did not come over there. After that, he was asked to pay the amount of “Bhatta” at Gulshan, then the complainant including the police officials reached to the above mentioned place and remained there for some time but the culprits didn’t come over there. The complainant again received a call from the said caller and was asked to pay the amount at Parking Area, Hill Park, Karachi on 29.09.2013 at 0830 hours. On this, the complainant alongwith CPLC and ASI Israr of P.S. Ferozabad reached the intimated place, he stood alone there, and officials took position secretly at some distance. After few minutes, two culprits came on motorbike No.KBO-8791 and demanded “Bhatta” on the display of the weapons from him. He gave the “Bhatta” amount Rs.30,000/- to them. Police encircled them and apprehended both the extortionists on spot. On enquiry, they disclosed their name as Amjad Ali and Bahawal @ Sajid (the appellants). On search of accused Amjad Ali, the recovery of one unlicensed pistol of 30 bore with 05 live bullets from the right fold of his shalwar and extortion money Rs.30,000/- were effected from him. On search of accused Bahawal they had recovered one unlicensed pistol of 30 bore with 04 live bullets from him. They were arrested accordingly, memo of recovery and arrest was prepared, and the properties were sealed separately. Motorcycle was seized U/s 550 Cr.P.C. Accused have disclosed the name of third companion as Shahbaz Hussain s/o Jabbar. Accused were brought to P.S. Ferozabad, the cases were registered respectively. Accused Shahbaz Hussain was arrested. On the completion of the investigation, the challan was submitted against the accused above named under section 384, 385, 386, 34 PPC R/w section 7 of Anti-Terrorism Act, 1997 and so also for an offence U/s 23(1) (a) Sindh Arms Act, 2013 for recovery of the unlicensed weapons.
3. After registration of case, police conducted investigation and after completion of legal formalities submitted charge sheet before the court having jurisdiction. The learned trial court after taking cognizance, supplied the requisite papers to appellants/convicts in terms of section 265-C Cr.P.C vide receipt at Ex.2. The proceedings of oath in terms of 16 of the Act, 1997 was observed at Ex.3. Since the offences of section 23(i) (a) of the Act, 2013 are non-scheduled offences arising out of crime No.533/2013 and 534/2013 have nexus with scheduled offence being Crime No.532/2013, therefore, learned trial court proceeded a joint trial in terms of section 21(m) and 17 of the Act, 1997 vide its order dated 20.08.2014.
4. After observing codal formalities, the learned trial court framed a joint charge against the appellants on 20.08.2014 at Ex.4 in following terms:-
I, Imdad Hussain Khoso, Judge Ant-Terrorism Court No.VIII at Karachi Central do hereby charge you:
Accused as under;-
1. Amjad Ali s/o Abdul Qayoom
2. Bahwal @ Sajjad s/o Ghulam Rasool.
3. Shehbaz Hussain Khan s/o Jawahar Hussain
That on 26.09.2013 at about 2:30 a.m. you accused in furtherance of the common intention and collaboration with each other made repeated call to the complainant at his cell number 0333-3066127 from mobile number 0311-2082511. Again in between 7:30 to 8:30 pm disclosed your identity as Qureshi Lola and demanded Rs.200,000/- (two lacs) under serious threats of murder to him and his family.
On 27.09.2013, the complainant had again received 2/3 calls from the same numbers and repeated the demand of money, he told that he cannot be pay huge amount of Rs.200,000/- (two Lacs) and requested to decrease the amount, and you were agreed to receive Rs.30,000/- (thirty thousand). On 28.09.2013 at about 6:00 p.m. he was asked to deliver money at the place of Allah Walla Ground, Tariq road, Karachi. He alongwith the Ferozabad police reached there but nobody had come over there. Thereafter, he was asked to deliver the money at Gulshan Iqbal, he along with police reached there but nobody had arrived there. The complainant had again received a call and asked to pay the money on 29.09.2013 at about 8:30 a.m. at Hill Park, on which he alongwith CPLC and ASIAbdul Sattar and other staff reached Hill Park, Parking Area to pay Rs.30,000/- (thirty thousand). You on one motorbike having registration number KB-8791 Hero, came at the pointed place and received the demanded money from the complainant, in meanwhile the police apprehended you accused Amjad and Bahawal on the spot while you accused Shahbaz escaped away. On personal search of you accused Amjad Ali, the police had recovered extorted money Rs.30,000/- (thirty thousand) and country made pistol 30 bore loaded magazine with 5 live bullets without number from your possession. One pistol of 30 bore without number loaded with 4 live bullets from you accused Bahawal. Police had seized the recovered weapons and motorcycle and extorted money (Bhatta) on the spot and arrested you in presence of the witnesses/mashirs. As you accused in collaboration of each other have obtained the money from the complainant under fear threats of murder, thereby you have committed an offence punishable under section 384, 385, 386, 34 PPC R/w section 7(H) of the ATA, 1997, within the cognizance of this court.
I further charge you accused Amjad that at the same time, date and place were found in possession of the one pistol of 30 bore without number loaded with 5 bullets without any lawful justification and license and thereby you have committed an offence punishable Under Section 23(i) (A) Sindh Arms Act, 2013 and within the cognizance of this court.
I further charge you accused Bahawal @ Sajjad that at the same time, date and place were found in possession of the one pistol of 30 bore without number loaded with 4 bullets without any lawful justification and license and thereby you have committed an offence punishable Under Section 23(i) (A) Sindh Arms Act, 2013 and within the cognizance of this court.
And I, hereby direct that you be tried by this court on the above said charge.
This the 20th day of August, 2016.
Sd/ 20/08/2014
(Imdad Hussain Khoso)
Judge
Anti-Terrorism Court No.VIII Karachi.
5. To prove its charge, the prosecution has examined complainant Furqan Abdul Khalique at Ex.9, he produced the application Ex.9/A, memo of arrest at Ex.9/B, statement u/s 154 Cr.P.C at Ex.9/C, FIR at Ex.9/D respectively. P.W.2 Kamran at Ex.10, he produced the memo of recovery at Ex.10/A. P.W.3 ASI Israr Afridi at Ex.11, he produced FIRs at Ex.11/A and B. P.W.4 SIP Muhammad Sachal Ex.12, he produced memo of arrest at Ex.12/A. P.W.5 PC Hussain Bux at Ex.13. P.W.6 Asghar Khan at Ex.14. P.W.7 Inspector Sohail Akhter Ex.15, he produced Call Data at Ex.15/A, FSL report Ex.15/B, Motorcycle verification slip at Ex.15/C. Thereafter the prosecution closed its side vide statement of ADPP at Ex.16.
6. Appellants were examined under section 342 Cr.P.C at Ex.17,18 and 19 respectively whereby they have denied prosecution allegations and claimed to be innocent. They, however, did not examine themselves on oath nor led any defence evidence.
7. After full-dressed trial and having heard prosecution as well as the defence, the learned trial court vide its Judgment dated 27.02.2015 convicted and sentenced the appellants as under:-
In the result of above discussion, I have reached to the conclusion that the prosecution has successfully proved the involvement of the accused Amjad and Bahawal to connect with the commission of extortion of money “Bhatta” punishable U/s 7(1) (h) of Anti-Terrorism Act, 1997. They are guilty for above said offence and they are convicted and sentenced to suffer R.I. for seven years and fine Rs.50,000/- each in default, they shall serve six months more. The prosecution has also proved the charge for an offence U/s 23 (1) (a) Sindh Arms Act, 2013 against the accused Amjad and Bahawal respectively beyond any doubt. Accused Amjad is guilty for an offence u/s 23 (1) (a) Sindh Arms Act, 2013 he is convicted in above said offence and sentenced to suffer R.I. for seven years and fine Rs.50,000/-, in default he shall serve six months more. Accused Bahawal is also guilty for an offence of U/s 23 (1) (a) Sindh Arms Act, 2013 he is convicted in above said offence and sentenced to suffer R.I. for seven years and fine Rs.50,000/- in default he shall serve six months more. Accused are first offenders having no history of their involvement to such like cases. They are youth and sole bread earner of their family, thus, court has taken lenient view and ordered that the sentenced (sentences) awarded to the accused in the above said crimes shall run concurrently in view of section 397 Cr.P.C. Reliance is placed on 1997 P Cr. L J 1185, PLJ 2003 Cr. C (Lah) 484, 2011 P Cr. L J 1687 and 2012 P Cr. L J 1028, 2005 MLD 856, 2007 YLR 700, 2009 MLD 1068. Accused are extended benefit of section 382-B Cr.P.C. Accused Amjad and Bahawal are produced in custody, they are remanded back with conviction warrant to serve out the sentence awarded to them. Accused Shahbaz is acquitted from the charge he is present on bail, his bail bond stands cancelled and surety discharged.
8. Learned counsel for the appellants after arguing the matter at some lengthy, have submitted that under the instructions, they would not press the appeals on merits but prayed for taking lenient view as according to them the appellants are first offenders and sole bread earner of their respective family and have remained in Jail for sufficient time and previous non-convicts. In support of their plea, they have placed reliance upon the cases of Qasim Ijaz V. the State & another (2016 MLD 48), Muhammad Tariq & 2 others Vs. The State & another (2015 P Cr. L J 1326), Mujeebur Rehman V. The State (2014 P Cr. L J 1761), Ghulam Murtaza V. The State (PLD 2009 Lahore 362) and Ameer Zeb V. The State (PLD 2012 380).
9. Mr. Muhammad Iqbal Awan, learned Assistant Prosecutor General Sindh has supported the impugned Judgment and has submitted that the trial court has already taken lenient view therefore, the appellants who were caught red-handed at the spot alongwith extortion amount of Rs.30,000/- do not deserve any leniency. However, he does not controvert the factum as to the appellants are non-previous convict.
10. We have heard the arguments of either side at some length and have scanned the material and jail roll placed on record furnished by Superintendent Central Prison Karachi in terms of his letter dated 02.09.2016 anxiously. Perusal of jail roll reveals total sentence including fine sentence has been shown 08 years. The appellants have served out 02 years 10 months and 19 days without remission upto 08.09.2016 and including remissions they have served out 03 years 03 months and 08 days. The remaining portion of their sentence is 04 years 08 months and 22 days (Since the sentences have been ordered to run concurrently therefore, quantum of sentence would be 07 years not 08 years, hence, per impugned Judgment and after making corrigendum in the Jail roll, the remaining portion of their sentence would be 03 years, 05 months and 22 days upto date) however, conduct of the appellants has also been shown as satisfactory.
11. Since the appellants have not been pressing their appeal (s) on merits but have prayed for consideration of quantum of punishment by taking lenient view, therefore, we feel it appropriate to elaborate first scope and object of ‘punishment’ and criterion to award punishment (s). We have no hesitation in saying that earthly laws, relating to Criminal Administration of Justice, have never meant to do ‘ADAL’ but have been framed to maintain a balance thereby attempting to bring peace, harmony and tranquility in a society. The purpose and object of inflicting conviction is either to have reformation or deterrence. A wrongdoer if reformed through punishment can become a fruit for the society which (fruit) however cannot serve its purpose only by making him to rot behind the bars. The concept of reformation, however, does not permit the Court (s) to let hardened criminal (s), on their catch, to seek their release in name of leniency because this shall seriously prejudice the other fold of object of punishment. The other fold of awarding punishment is to make a hardened criminal an example for other (s) so that a sense must prevail in minds of masses that a criminal shall receive his due if he commits a crime. In short, reformation must never be at the cost of peace, harmony and tranquility of the society as a whole because it is always better to have an evil restrained / confined rather than to leave him (evil) to make whole society a ‘hell’.
The tilt of the scale should always be in favour of concept of reformation when it relates to first offenders and teen-agers particularly when they are facing charges of offence (s), entailing minor / less punishment and are not recognized as ‘desperate or hardened offences’. The Criminal Administration of justice shall fail its object and purpose towards society if either of two folds of concept of awarding punishment are ignored by the Court (s). Such view is guided by the case of Dadullah v. State (2015 SCMR 856) wherein it is held:
“9. Conceptually punishment to an accused is awarded on the concept of retribution, deterrence or reformation. The purpose behind infliction of sentence is two fold. Firstly, it would create such atmosphere , which could become a deterrence for the people who have inclination towards crime and; secondly, to work as a medium in reforming the offence. Deterrent punishment is not only to maintain balance with gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society. Concept of minor punishment in law is to make an attempt to reform an individual wrongdoer. However, in such like cases, where the appellants have committed a pre-planned dacoity and killed two persons, no leniency should be shown to the culprits. Sentence of death would create a deterrence in the society due to which no other person would dare to commit the offence of murder. If in any proved case lenient view is taken, then peace, tranquility and harmony of society would be jeopardized and vandalism would prevail in the society. The Courts should not hesitate in awarding the maximum punishment in such like cases where it has been proved beyond any shadow of doubt that the accused was involved in the offence. Deterrence is a factor to be taken into consideration while awarding sentence, specially the sentence of death. Very wide discretion in the matter of sentence has been given to the courts, which must be exercised judiciously. Death sentence in a murder case is a normally penalty and the Courts while diverting towards lesser sentence should have to give detailed reasons. The appellants have committed the murder of two innocent citizens and also looted the bank in a wanton, cruel and callous manner. Now a days the crime in the society has reached an alarming situation and the mental propensity towards the commission of the crime with impunity is increasing. Sense of fear in the mind of a criminal before embarking upon its commission could only be inculcated when he is certain of its punishment provided by law and it is only then that the purpose and object of punishment could be assiduously achieved. If a Court of law at any stage relaxes its grip, the hardened criminal would take the society on the same page, allowing the habitual recidivist to run away scot-free or with punishment not commensurate with the proposition of crime, bringing the administration of criminal justice to ridicule and contempt. Courts could not sacrifice such deterrence and retribution in the name of mercy and expediency. Sparing the accused with death sentence is causing a grave miscarriage of justice and in order to restore its supremacy, sentence of death should be imposed on the culprits where the case has been proved.
12. Reverting to the merits of the case for considering the quantum of sentence, we find that the prosecution does not dispute the claim of the appellants to be first offenders (previous non-convict). Such circumstance can well be taken as one of the mitigating circumstances for reducing the sentence, as was done in the case of Niazuddin V. The State (2007 SCMR 206) whereby Honourable Supreme Court of Pakistan while considering the petitioner as a previous non-convict reduced the sentence in the following terms contained in para 6 & 7 of the Judgment:-
6. However, coming to the question of sentence we note that it has been conceded by learned A.A.G that petitioner is a previous non-convict and there is no other instance of petitioner’s involvement in drug trafficking. It has also been brought in evidence that at the time of this arrest he met custodial violence and on that account he received injuries. Perhaps those who arrested him wanted to extract confession for his alleged involvement with some other narcotic dealer. In these circumstances petitioner needs to be given a chance in his life to rehabilitate himself.
7. Accordingly while dismissing the appeal we are persuaded to reduce the sentence of imprisonment of petitioner from 10 years to six years. Order accordingly.
In another case of Ghulam Muhammad Vs. The State (2014 YLR 1087), the Divisional Bench of this court while dismissing the appeal of the appellant has held as under
“For the foregoing reasons, we while dismissing the appeal and maintaining conviction, reduce the sentence awarded to the appellant to one already undergone, however, subject to payment of fine of Rs.2000/- and in default thereof he shall undergo S.I for one month. He is on bail. His bail bond is cancelled and surety discharged.
13. Undisputedly, the offence, with which the appellants were charged, are not of capital punishment i.e ‘death penalty” rather were charged with offences, entailing punishment upto Ten (10) years which also tilts the case of appellants in seeking leniency thereby letting them a chance of reformation.
14. Besides, there are also other mitigating circumstances which could be kept in view while deciding the quantum of punishment. As per contents of FIR, the appellants had allegedly sent a sweet-box to complainant containing a chit and bullet and had demanded ‘bhatta’ on cell-phone but I.O. did not examine CPLC staff during investigation nor prosecution bothered to examine any of such official so as to prove that as to which of the accused persons the sim, used for demanding bhatta, belongs as initially it is a case of demand of ‘bhatta’. Further, the motorcycle, allegedly occupied by the appellants, though was seized under memo and was seized under section 550 Cr.PC while observing it to be stolen but it was neither made as case property nor was produced before trial court. This fact as is evident in the evidence and in the impugned Judgment as to the property order nowhere its disclosure has been made by the trial court. The alleged weapons, extortion money, sweet box with bullet and chit and the motorcycle were not specifically deposed by the P.Ws during trial, they however, had only deposed to the extent that “the case property present in court is same”. Further all the case property mentioned above have not been exhibited properly nor were shown to the appellants at the time of their examination in terms of section 342 Cr.P.C nor particular question was raised to the effect that the property viz which otherwise was / is the requirement of law. The official witnesses also had not produced the departure entry to show their movement and the purpose mentioned in the alleged memo of seizure and recovery or from P.S towards alleged place of recovery although it was claimed by complainant that he (complainant) went alongwith police at intimated place on call (s) of Caller. Such glaring features of the prosecution evidence have constrained us to take lenient view thereby letting the appellants an opportunity of reformation particularly when their behaviour inside the jail has been reported to be satisfactory which may also be taken as one of the step towards reformation. The appellants are in custody from the date of their arrest viz. 29.09.2013 and have undergone more than three years.
15. In view of above facts and legal position (s) and in the light of dicta laid down by apex court in the cases (supra), we, while maintaining the conviction(s), awarded by the trial court in instant case (s), modify sentence (s) awarded to appellants and alter the same to the imprisonment, they have already undergone which shall include sentence awarded to them in case of non-payment of fine with benefit of section 382-B Cr.P.C. The appellants are directed to be released forthwith if not required in any other case.
The Cr. A.T. Appeals No.32, 33, 46, and 47 of 2015 with above modification in the sentences are disposed of alongwith pending applications.
JUDGE
JUDGE
A.K