THE HIGH COURT OF SINDH AT KARACHI

 

Special Crl. Anti-Terrorism Jail Appeal No. 97 of 2022

 

  Present:        Mr. Justice Naimatullah Phulpoto

                                                                                                                          Mr. Justice Shamsuddin Abbasi

 

 

 

Appellant                 :            Rizwan through Mr. Habib-ur-Rehman Jiskani advocate

                                               

                                               

Respondent               :           State through Mr. Muhammad Iqbal Awan Addl. P.G

 

Complainant             :           Muhammad Shahid in person

 

Date of Hearing        :          08.02.2023

 

Date of Judgment      :          08.02.2023

 

 

JUDGMENT

 

 

NAIMATULLAH PHULPOTO, J.- Rizwan appellant was tried by learned Judge, Anti-Terrorism Court-XX, Karachi  in Special Case No.155/2021 (FIR No. 76/2021 u/s 397/353/324/186/34 PPC r/w section 7 ATA 1997 PS Korangi) and Special Case No. 155-A/2020 (FIR No.77 /2021 u/s 23(1)(a) of Sindh Arms Act 2013, PS Korangi). After regular trial, vide judgment dated 13.04.2022, appellant was convicted and sentenced as under:

1.      For offence under section 397 PPC to undergo R.I for 07 (seven years) and fine of Rs.20,000/- (twenty thousand only) in default of payment of fine the accused shall further undergo R.I for 03 (three) months.

 

2.      For offence under section 7(h) of ATA R/w section 353 PPC to undergo R.I for 02 (two) years and fine of Rs.20,000/- (twenty thousand only) in default of payment of fine the accused shall further undergo S.I for 03 (three) months.

 

3.      For offence under section 7(1)(b) ATA R/w Section 324 PPC to undergo R.I for 05 years and fine of Rs.20,000/- in default of payment of fine the accused shall further undergo S.I for 6 (six) months.

 

4.      For offence under section 23(i) A. Sindh Arms Act to suffer R.I for 05 years and fine of Rs.20,000/-  in default of payment of fine the accused shall suffer further S.I for three months.

 

All the sentences were directed to run concurrently. Appellants were extended benefit of section 382(b) Cr.P.C.

 

2.         Appellant being dissatisfied filed this Appeal against his conviction and sentence.

3.         The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 13.04.2022 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

4.         Learned advocate for the appellant argued that prosecution has failed to prove its’ case against the appellant; that private persons were not associated as witnesses; that there are material contradictions in the evidence of the P.Ws; that during encounter neither complainant Muhammad Shahid nor PC Mehran received any injury. As regards to the conviction under section 7 of Anti-Terrorism Act, 1997 is concerned, it is submitted that Anti-Terrorism Court had no jurisdiction to hear this case and conviction and sentence recorded under the provisions of ATA 1997 was unwarranted in law and same may be set aside reliance is placed upon the judgment passed by Hon’ble Supreme Court in the case of Ghulam Hussain vs. State (PLD 2020 SC 61).

5.         Learned Addl. P.G duly assisted by the complainant after going through the evidence, submitted that prosecution has proved its’ case against the appellant. Complainant has fully implicated the appellant in the commission of the offence; that during encounter one accused sustained firearm injury who died at the spot whereas, appellant was arrested and from his possession one unlicensed pistol was recovered. However, he conceded that ATC had no jurisdiction to convict the appellant under Section 7 ATA 1997.  

6.         We have carefully heard learned counsel for the parties and re-examined entire prosecution evidence and have come to the conclusion that prosecution has proved its case against the appellant. In this case, evidence of complainant Muhammad Shahid most material for deciding this appeal. He has deposed that on 02.02.2021, he dropped his son for tuition at Zaman Town. After dropping, he was heading towards his house on motorbike, when he reached at Sarfaraz Girls School near Owais Shaheed Park Sector 35-A, Zaman Town Korangi No.03, at about 3:00 pm, meanwhile, two persons came on a motorbike, they intercepted him and on the force of pistol snatched his mobile phone G-5, Rs.500/- and copy of his CNIC. In the meanwhile, one police constable who was deputed at the house of DSP Khalid Jameel came there and on seeing said constable in uniform, accused persons opened fire upon him. In retaliation said police constable also made fires upon accused. During exchange of firing one accused received firearm injury on his back and fell down, the people caught hold other accused on the spot. Injured accused expired on the spot, in the meanwhile, one police mobile came there to whom he and PC Mehran narrated the entire facts. The arrested accused disclosed his name to be Rizwan and disclosed the name of his accomplice as Amir Khan. Thereafter ASI Muhammad Khan conducted personal search of accused Rizwan and recovered one 30 bore pistol along with loaded magazine containing one bullet in its chamber, whereas one bullet in its magazine from the right side of his belt. Police had also recovered one 30 bore pistol along with loaded magazine containing one bullet in its chamber, whereas one bullet in its magazine without number which was lying beside the deceased accused as well as his robbed mobile phone, CNIC copy and Rs 500/-. Police had also collected 04 empties of SMG and 05 empties of 30 bore from the place of occurrence. Police also seized the recovered motorbike bearing registration No.KFX-3285 which was stolen property and FIR No.83/2021, was registered in P.S Zaman Town. Complainant was cross-examined at length but nothing favourable to the defence could be brought on record. Evidence of the complainant is quite reliable and trustworthy supported by other evidence. Appellant was arrested at the spot whereas accomplice succumbed to firearm injuries after encounter. Unlicensed pistol was recovered from possession of appellant and report of Ballistic Expert was positive. Evidence of complainant and police officials is supported by medical evidence. We have also re-examined evidence of other P.Ws and have come to the conclusion that prosecution has succeeded to prove its’ case against the appellants. As regards to the conviction recorded under Section 397 PPC is concerned, for the sake of convenience, section 397 PPC is reproduced as under:

“Section 397. Robbery or dacoity with attempt to cause death or grievous hurt. If at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.”

 

7.         Admittedly, appellant did not cause any jury to anyone. Ingredients of offence u/s 397 PPC are not attracted, thus, at the most, offence would fall under Section 392 PPC. Looking to the evidence available on record, we have come to the conclusion that the offence if any would fall under Section 392 PPC. Resultantly, conviction and sentence of the appellant is modified from Section 397 PPC to Section 392 PPC.

8.         So far conviction and sentence of the appellant under the ATA 1997 is concerned, for an offense to come within the purview of the ATA 1997, it must satisfy section 6 of the A.T.A., 1997.

9.         For section 6, A.T.A., 1997 to be applicable there must be the act (offense) so defined in section 6 and the relevant criminal intention (mens rea) as defined in section 6, A.T.A., 1997.

10.       The required mens rea based on the particular facts and circumstances of this case is found at section 6(1)(b) and not (c), A.T.A., 1997. Section 6(1)(b) reads as under;

       "The use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or a foreign government or population or an international organization or create a sense of fear or insecurity in society."

 

11.       The latest law on what amounts to the offence of terrorism as defined under section 6 of the ATA was laid down by a larger Bench of the Supreme Court in the recent case of Ghulam Hussain (supra) which held at P. 131 para 16 as under:

“For what has been discussed above it is concluded and declared that for an action or threat of action to be accepted as terrorism within the meanings of section 6 of the Anti-Terrorism Act, 1997 the action must fall in subsection (2) of section 6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of section 6 of that Act or the use or threat of such action must be to achieve any of the purpose mentioned in clause (c) of subsection (1) of section 6 of that Act. It is clarified that any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clauses (b) or (c) of subsection (1) of section 6 of the said Act. It is further clarified that the actions specified in subsection (2) of section 6 of that Act do not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta.”   

 

12.       Based on the peculiar facts and circumstances available on record, we hold that there is no evidence that intention of the appellant was designed to coerce or intimidate the public. In the circumstances of this case, conviction under Section 7 of Anti-Terrorism Act, 1997 was unwarranted in law and the same is set aside.

13.       As regards to the quantum of sentence is concerned, it is submitted that the appellant was aged about 35 years at the time of recording his statement under Section 342 Cr.P.C and he is the sole supporter of his old parents. It is also submitted that appellant is not previously convicted. As per jail roll dated 19.11.2022, the appellant has already served out sentence including remission 01 year, 10 months and 25 days, therefore, in these peculiar circumstances, a case for reduction of the sentence of the appellant is made out. Reliance is placed upon the case of Gul Raeef Khan vs. The State (2008 SCMR 865).

14.       In view of peculiar circumstances, for the above stated reasons, conviction recorded by trial court is maintained, however, conviction of appellant under section 397 PPC is altered to Section 392 PPC and sentenced to 03 years R.I and to pay fine of Rs.15,000/-. In case of default in payment of fine, appellant shall suffer S.I for 01 month more. So far conviction and sentence of appellant u/s 353 PPC is concerned the same is maintained. However fine is reduced from Rs.20,000/- to Rs.15,000/- and in default of payment of fine, appellant shall undergo 01 month S.I more. So far as conviction and sentence under section 324 PPC is concerned, it is reduced to 03 years R.I. However fine is reduced from Rs.20,000/- to Rs.15,000/- and in default of payment of fine, appellant shall undergo 01 month S.I more. As regards to conviction and sentence awarded to appellant under Section 23(1)(a) of Sindh Arms Act, 2013 is concerned, it is also reduced to 03 years R.I and fine is reduced from Rs.20,000/- to Rs.15,000/-, in case of default in payment of fine, appellant shall undergo S.I for 01 month more. All the sentences to run concurrently with benefit of section 382(b) Cr.P.C.

15.       Subject to above modification in the sentence, the Appeal is disposed of in the above terms.

 

JUDGE

JUDGE