HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals No. 207, 216, 217 & 242 of 2018

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Appellants : Deedar Ali and Mushtaq through Mr. G.M. Abdullah Advocate

Naveed Ahmed through Mr. Ishaque Ahmed Khawaja Advocate

Shahid through Mr. Moula Bux Bhutto Advocate

Respondent : The State through Mr. Farman Ali Kanasro Additional Prosecution General Sindh

Date of Hearing : 22.04.2019

Date of judgment : 30.04.2019

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Deedar Ali, Naveed Ahmed, Mushtaq and Shahid were tried by Mr. Muhammad Khan Buriro, Judge, Anti-Terrorism Court No. X, Karachi (Special Cases No. AJ-116 and AJ-117 of 2016). On the conclusion of the trial, vide judgment dated 31.07.2018, appellants were convicted and sentenced as under:

“In view of my findings given in Point No.1, 2 and the reasons discussed above, it has come on screen that the prosecution has proved its charges against the accused Naveed Ahmed son of Muhammad Zafar, Mushtaque son of Lal Din, Shahid son of Jung Bahadur & Deedar Ali Son of Haji Sher beyond any shadow of doubt. I therefore, “Convict” them u/s 7(1)(h) of ATA 1997 r/w section 384/386/34 PPC and sentence them to undergo R.I for “10”Years (each) with fine of Rs.200,000/- (each). In default in payment of fine, they will suffer R.I for “06” months more. I further “Convict” the accused Naveed Ahmed for the offence u/s 23(i)A Sindh Arms Act, 2013 and sentence him to undergo R.I for “5” Years with fine of Rs.100,000/- . In default in payment of such fine, he will suffer further R.I for “06” months more.”

All the sentences were ordered to run concurrently. Benefit of Section 382-B Cr.P.C was also extended to the appellants.

2. Brief facts leading to the filing of the appeals are that on 01.01.2016 at 0140 hours, Muhammad Nazeer Shah lodged his report at Police Station Site Super Highway Industrial Area, Karachi. It was recorded vide Crime No. 01/2016 under sections 384/386/34 PPC read with Section 7 Anti-Terrorism Act, 1997 alleging therein that complainant used to drive Truck No.JY-0713. On 04..11.2015, he loaded his Truck from Surjani Town and left for Gadap when the Truck of the complainant reached behind Chakar Hotel where it is alleged that three armed persons appeared and snatched Truck from him for which he lodged FIR No. 266/2015 under Section 392/34 PPC at P.S Gulshan-e-Maymar Karachi. Thereafter, complainant received calls at his Cell No.0307-3006468 from Cell No.0345-2426126. Caller demanded Rs.300,000/- from the complainant for return of vehicle. Caller started negotiations with him. It is further alleged that on 31.12.2015 at 0933 hours, complainant received call from Cell No.0341-1215025 for bhatta. After negotiations bhatta of Rs.150,000/- was settled for the return of his vehicle. Complainant was asked by accused to bring bhatta in cash near Super Highway Scheme No.33 Malir Karachi. Complainant informed the situation to SHO PS Site Suepr Highway. Police party was formed, headed by ASI Shoukat. Complainant kept Rs.10,000/- in a packet and under Rs.10,000/- remaining notes were white papers. The same were kept in plastic bag. Complainant reached at pointed place and police party was in the background. In the meanwhile, four accused persons emerged from bushes. Out of them, three accused persons stood at some distance and one person came to the complainant for receiving bhatta/ extortion. Accused was carrying pistol in his hand. In the meanwhile, accused was surrounded and caught hold by the police and his accomplices while seeing police party taking benefit of bushes, succeeded in running away. On enquiry, accused who was caught hold by the police disclosed his name as Naveed son of Muhammad Zafar and he disclosed the names of co-accused who ran away, as (1) Mushtaq son of Lal Din, (2) Shahid son of Jang Bahadur and (3) Deedar son of Ali Sher. Police recovered extortion money from the accused Naveed and cash of Rs.300, so also Q mobile phone. Pistol was without number loaded with five rounds and one round in its chamber. Pistol was separately sealed by ASI Shoukat in presence of mashirs. Thereafter, accused and case property were brought at Police Station and aforesaid FIR was registered against accused. ASI Shoukat Ali also lodged FIR No.02/2016 u/s 23(1)(a) of Sindh Arms against accused Naveed. During investigation, accused Mushtaq, Shahid and Deedar were arrested in presence of mashirs.

3. After usual investigation, challan was submitted against accused under the sections 384/386/34 PPC read with section 7 Anti-Terrorism Act, 1997.

4. Learned Trial Court amalgamated the aforesaid cases for joint trial, in terms of Section 21-M of Anti-Terrorism Act, 1997.

5. Trial Court framed charge against accused at Ex.3, accused pleaded not guilty and claimed trial.

6. At trial prosecution examined P.W-01 complainant Muhammad Nazeer Shah at Ex.5, P.W-02 HC Nazeer Hussain at Ex. 7, P.W-03 HC Muhammad Zafar Khan at Ex.9, CW-01 PI Muhammad Hussain Chandio at Ex. 10, PW-04 PI/IO Muhammad Hussain Chandio at Ex.11. Prosecution witnesses produced mashirnamas of arrest and recovery, FIRs and positive reports. Thereafter, prosecution side was closed vide statement at Ex.13.

7. Statements of accused were recorded u/s 342 Cr.P.C at Ex.14 to Ex.17 respectively. All the accused claimed their false implication and denied the prosecution allegations. Accused declined to examine themselves on oath in disproof of prosecution allegations and did not lead evidence in defence.

8. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 31.07.2018, convicted and sentenced the appellants as stated above. Being aggrieved and dissatisfied, the appellants have preferred these appeals. Through this common judgment, we intend to decide these appeals.

9. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 31.07.2018 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

10. Mr. G. M. Abdullah Advocate for appellants Deedar Ali and Mushtaque does not press appeal on merits and prayed for reduction in sentence on the ground that appellant Deedar Ali is aged about 26 years, accused has two wives has six minor children, who are school going. Learned counsel further argued that appellant Mushtaque is aged about 35 years he is still unmarried and supports old parents. He further argued that both appellants Deedar Ali and Mushtaq are sole supporters of their families and they are first offenders and are not previously convicts. Mr. Ishaque Ahmed Khawaja Advocate for appellant Naveed Ahmed does not press appeals on merits and prayed for reduction in sentence on the ground that appellant Naveed is aged about 36 years and has two children of 05 years and 07 years of age, who are school going. He further argued that appellant Naveed is sole supporter of his family and he is first offender and is not previous convict. Mr. Moula Bux Bhutto Advocate for appellant Shahid also does not press appeal on merits and prayed for reduction in sentence on the ground that appellant Shahid is aged about 25 years and still unmarried. He further argued that appellant Shahid has old parents and he is sole supporter of his family further the appellant is first offender and is not previously convict. All the counsel for the appellants argued that appellants may be provided an opportunity to mend their ways and learned counsels further submit that as per instructions, appellants want to pass their lives as peaceful citizens of the country.

11. Learned Additional Prosecutor General Sindh argued that prosecution has proved its’ case against appellants and as appeals are not pressed on merits, he recorded no objection in case, sentences are reduced to some reasonable extent.

12. Though the appeals are not pressed on merits, but in order to satisfy ourselves whether prosecution has proved its’ case against appellants, we have examined the prosecution evidence. Prosecution has examined four witnesses at trial and we have perused the prosecution evidence. It has come on record that appellant Naveed was arrested in presence of complainant when he came forward to receive extortion. After arrest of accused Naveed, he disclosed the names of co-accused as Mushtaq, Shahid and Deedar and they were also arrested during investigation. Mashirs of the arrest as well as victim/complainant Muhammad Nazeer Shah have supported the case of prosecution. We have no reason to disbelieve the prosecution evidence which is mainly based upon the evidence of private and independent person namely complainant Muhammad Nazeer Shah, whose vehicle was snatched and appellants negotiated for return of the same, subject to payment of extortion. Trial Court has discussed the evidence at some length. We have no reason to take different view.

13. According to Jail Rolls received on 16.04.2019 from Senior Superintendent Central Prison Karachi, unexpired portion of sentences of appellant Deedar Ali is 07 years, 01 month and 10 days, appellant Mushtaq is 07 years, 01 month and 02 days, appellant Naveed Ahmed is 07 years, 07 months and 03 days and appellant Shahid is 07 years, 01 month and 02 days. Since appeals are not pressed on merits and there are mitigating circumstances/ factors for reduction of the sentences as it is argued by the learned counsel for the appellants that appellant Deedar Ali is aged about 26 years, accused has two wives and six children, who are minors and school going, appellant Mushtaque is aged about 35 years is still unmarried and have old parents, appellant Naveed is aged about 36 years and has two children of 05 years and 07 years of age, who are school going and appellant Shahid is aged about 25 years and still unmarried and appellants are first offenders and are not previously convicts.

14. For the above stated reasons, the appeals are dismissed as not pressed and convictions are maintained. However, sentences of appellants Deedar Ali, Naveed Ahmed, Mushtaq and Shahid awarded under sections 7(1)(h) of Anti-Terrorism Act, 1997 read with sections 384/386/34 PPC are reduced from 10 years R.I each to 05 years R.I each. So far as sentence of fine awarded by the trial Court is concerned, the same is maintained and in case of default, the appellants shall suffer S.I for 06 months each more. Sentence of appellant Naveed Ahmed awarded by the trial Court under Section 23(1)(a) of Sindh Arms Act 2013 is also reduced from R.I 05 years to R.I 04 years, however, sentence of fine awarded by the trial Court is maintained and in case of default appellant Naveed Ahmed shall suffer S.I 06 months more. All the sentences shall run concurrently. Benefit of section 382-B Cr.P.C is extended to appellants.

15. The appeals are disposed of in above terms.

JUDGE

JUDGE