HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals No. 186 & 187 of 2016

Present Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Malik Gaddi

JUDGMENT

Date of Hearing : 21.11.2017.

Date of Judgment : 27.11.2017.

Appellant : Abdul Karim through Mr. Nadeem Ahmed Azhar Advocate.

Respondent : The State through Mr. Mohammad Iqbal Awan DPG.

NAIMATULLAH PHULPOTO, J.- Abdul Karim appellant was tried by learned Judge, Anti-Terrorism Court No.X, Karachi in Special Case No.B-114 (FIR No. 193/2013, under Sections 393/394/397/34 PPC read with Section 7 Anti-Terrorism Act, 1997) and B-254 of 2015 (FIR No.194/2013 under Section 23(1)(a) of Sindh Arms Act, 2013) registered at Police Station Site-B, Karachi. After full-dressed trial, Trial, by judgment dated 27.06.2016, appellant Abdul Karim was convicted u/s 7(1)(c) of ATA, 1997 and sentenced to 10 years R.I. Appellant was convicted under Section 393 PPC and sentenced to 07 years R.I and to pay fine of Rs.20,000/-, in case of default in payment of fine, he was ordered to suffer S.I for 06 months more. Appellant was convicted under Section 394 PPC and was sentenced to 04 years R.I and to pay fine of Rs.30,000/-, in case of default in payment of fine, he was ordered to suffer S.I for 06 months more. Appellant was convicted under Section 397 PPC and sentenced to undergo 07 years R.I. Appellant was also convicted under Section 23(1)(a) Sindh Arms Act, 2013 and sentenced to 07 years R.I. All the sentences were ordered to run concurrently. Benefit of Section 382-b Cr.P.C was also extended to the appellant.

2. The brief facts of the prosecution case are that on 05.04.2013, at about 1945 hours, at Abbasi Shaheed Hospital, SIP Mohammad Arif Khan recorded statement u/s 154 Cr. P.C of injured Rangers Constable Ahsan-ul-Haq, wherein he stated that on 05.04.2013, he along with DSR Faisal Malik and his friend Farman went to Saddar Electronic Market in a private vehicle bearing Registration No. AWT-765. He further stated that after purchasing electronic appliances, they were going back to their Head Quarters. In the meanwhile, when they arrived at National Gas Company at about 05:30 pm, they saw two Robbers on a motorbike, who were busy in robbing a car, said Robbers had also given them signal to stop their vehicle. They had stopped their vehicle, all of sudden said Robbers opened firing upon them with intention to take their lives, as a result of such firing one bullet hit on the right hip of constable Ahsan-ul-Haq. In the meantime, DSR Faisal Malik took out his personal pistol and made fire shots upon the said Robbers, during cross-firing one of the Robber had sustained fire arm injury to which he fell down on the spot, whereas, his accomplice had managed to escape from the place of incident on his motorbike. Injured constable Ahsan-ul-Haq had also snatched the pistol from the injured Robber and took it into possession. Thereafter, injured Robber was shifted to Civil Hospital whereas, injured constable Ahsan-ul-Haq was taken to Abbasi Shaheed Hospital for medical treatment. While recording statement u/s 154 Cr.P.C, injured constable had also handed over the recovered 30 bore pistol along with loaded magazine containing live bullets to SIP Mohammad Arif Khan, thereafter, said SIP Mohammad Arif Khan had also prepared the memo of seizure of 30 bore pistol in presence of mashirs. After completing the formalities, the accused and the case property were brought at Police Station where above mentioned FIRs were registered against the accused on behalf of State.

3. Investigation was entrusted to SIP Mohammad Zahid Malik of the aforesaid crimes. Case property was also handed over to him. I.O. arrested accused from Civil Hospital in injured condition in presence of mashirs. I.O visited the place of wardat in presence of mashirs and prepared such mashirnama. I.O recorded 161 Cr.P.C statements of P.Ws. On 10.06.2013, I.O sent weapon and empties to the FSL and received positive report. After completion usual investigation, challan was submitted against the accused under the above referred Sections.

4. Both the cases were amalgamated by the Trial Court in terms of Section 21-M of Anti-Terrorism Act, 1997 vide statement at Ex.8 submitted by learned DDPP.

5. Trial Court framed charge against the accused at Ex.10 under the above referred sections. Accused pleaded not guilty and claimed trial.

6. At trial prosecution examined eight witnesses. Thereafter, prosecution side was closed by learned DDPP vide statement at Ex.21.

7. Statement of accused was recorded under Section 342 Cr.P.C at Ex.22. Accused claimed false implication in the case and denied the prosecution allegations. Accused neither examined himself on oath in disproof of the prosecution allegations nor produced any witness in defence.

8. Learned Trial Court, after hearing the learned counsel for the parties and examination of the evidence available on record, convicted and sentenced the appellant as stated above, hence this appeals are filed.

9. The facts of these cases as well as evidence produced before the trial Court find an elaborate mention in the Judgment dated 27.06.2016 passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

10. Mr. Nadeem Ahmed Azar learned counsel for the appellant after arguing the appeals at length submits that he would not press the appeals on merits and requests for reduction of sentences on the ground that appellant is poor person. It is also submitted that appellant is first offender, he is not previous convict and supporter of a large family. Lastly, it is argued that conviction under Section 7(1)(c) of Anti-Terrorism Act, 1997 was not warranted as no grievous injury has been certified by Doctor sustained by injured constable Ahsan-ul-Haq. Mr. Mohammad Iqbal Awan learned Additional Prosecutor General conceded to the legal position that sentence under Section 7(1)(c) of Anti-Terrorism Act, 1997 is not sustainable as no certificate has been produced by the Doctor to declare the injury as grievous sustained by injured constable Ahsan-ul-Haq. Learned Additional Prosecutor General recorded no objection in case sentence is reduced to some reasonable extent.

11. We have carefully heard learned counsel for the parties and perused the evidence particularly evidence of Medical Officer. Prosecution examined Medical Officer, who has deposed that injured sustained firearm injury and produced Medical Certificate at Ex. 17/A. Nature of the injury has not been mentioned by the medical officer and simply it is mentioned as under:-

“On right hip posteriolateral (middle part) a wound 0.8 cm x 0.8 cm inverted margins there was no exact would. On surgery a bullet was recovered from hip joint and handed over to I.O of this case. The nature of injury was fresh. Kind of weapon as fire arms.”

12. We have no hesitation to hold that conviction recorded by the trial Court against appellant under Section 7(1)(c) of Anti-Terrorism Act, 1997 was unwarranted. For the sake of convenience, Section 7(1)(c) of the Anti-Terrorism Act, 1997 is produced as under:-

“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.”

13. Learned Additional Prosecutor General submits that from the evidence available on record, offence under section 7(1)(h) of Anti-Terrorism Act, 1997 is made out. On conviction, it’s imprisonment shall not be less than 5 years but may extend to imprisonment for life and with fine.

14. From the evidence available on record, offence under Section 7(1)(h) of Anti-Terrorism Act, 1997 is made out. As regards to the question of reduction of sentence is concerned, there is nothing on record that accused is previous convict. It is argued before us that appellant is a young married man and supporter of the family including old parents. Previous non-convict and no other instance of appellant’s involvement in such cases are the circumstances for reducing the sentence, as held in the case of Niazuddin v. The State (2007 SCMR 206), whereby Honourable Supreme Court of Pakistan reduced the sentence in the following terms contained in Paras 6 and 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.

15.   In the recent judgment of Honourable Supreme Court reported as State through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force versus Mujahid Nasim Lodhi (PLD 2017 SC 671), it was observed as follows:-

“We note that in paragraph No. 10 of the judgment handed down by the Lahore High Court, Lahore in the above mentioned case it had been observed that "in a particular case carrying some special features relevant to the matter of sentence a Court may depart from the norms and standards prescribed above but in all such cases the Court concerned shall be obliged to record its reasons for such departure."

16.  Undisputedly, the offences, with which the appellant is charged, are not of capital punishment i.e. “death penalty" and the appellant is seeking leniency letting him a chance of reformation, which fact also tilts the case of appellant. Once, a person involved in a criminal case placed himself at the mercy of Court and seeks a chance of reformation, in that eventuality the Court normally takes lenient view in respect of sentences. Extent of such leniency in awarding sentence should not be such so as to frustrate the ends of justice. Such leniency should be based on judicious scale, keeping in view the maximum and minimum sentence of offence and the submissions of appellant, sentences of the appellant are reduced to 06 years R.I. However, remaining sentences awarded by the learned Trial Court are maintained. All sentences shall run concurrently. Appellant would be entitled to the benefit of section 382-b Cr.P.C.

16. With the above modification in sentences, the impugned judgment is maintained. Consequently, the appeals are without merit and same are dismissed.

J U D G E

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