THE HIGH COURT OF SINDH AT KARACHI

Special Crl. Anti-Terrorism Appeals No. 01 and 02 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellants : Ahsan and Ahmed through Mr. Muhammad Imarn Meo advocate

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

Date of Hearing : 07.02.2023

Date of Judgment : 07.02.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Ahsan and Ahmed appellants were tried by learned Judge, Anti-Terrorism Court-II, Karachi in Special Case No. 384/2020 (FIR No. 655/2020 u/s 397/353/324/34 PPC r/w section 7 ATA 1997 PS Jamshed Quarters), Special Case No. 384-A/2020 (FIR No.656/2020 u/s 23(1)(a) of Sindh Arms Act 2013, PS Jamshed Quarters). After regular trial, vide judgment dated 09.12.2021, appellants were convicted and sentenced as under:

25. In view of above said reasons the accused Ahmed s/o Naeem and Ahsan s/o Naeem are sentenced and convicted under section 397 PPC to three years rigorous imprisonment with fine of Rs.50,000/- each of accused and on failure of payment of fine to suffer simple imprisonment for three months.

26. The accused Ahsan s/o Naeem and Ahmed s/o Naeem are sentenced and convicted under section 353 PPC for assault and use of criminal force to deter public servant from discharge of his duty to rigorous imprisonment of two years and with fine of Rs. 50,000/- each the accused, and on failure of payment of fine to suffer simple imprisonment for three months.

27. The accused Ahsan S/o Naeem and Ahmed S/o Naeem are sentences and convicted U/s 324 PPC on an attempt to commit qatl-e-amd of police officials by opening fire on them, to deter them from performing their officials duty and firing with intention or knowledge and Under such circumstances if the act deter they would be guilty with qatl-e-amd and are sentenced and convicted to 10 years rigorous imprisonment each.

28. The accused Ahsan S/o Naeem and Ahmed S/o Naeem and sentenced and convicted U/s 7 (b) of ATA 1997 to 10 years rigorous imprisonment and fine of Rs.50,000/- and on failure of payment of fine to suffer simple imprisonment for three months and U/s 7 (ff) as the act of terrorism falls U/s 6 (2) (ee) of ATA 1997 to imprisonment of 14 years.

29. The accused Ahmed S/o Naeem is sentenced and convicted U/s 23 (1) (a) Sindh Arms Act 2013, for rigorous imprisonment of 7 years with fine of Rs. 50,000/- and on failure of payment of fine to suffer simple imprisonment for three months. In view of the young age, considering it a mitigating circumstance accused is not sentenced to imprisonment for life.

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

2. Brief facts leading to the filing of the instant appeals as mentioned by the trial Court in the impugned judgment are that:

“Brief facts of the prosecution case are that the complainant
Ahmed Mujtaba has lodged FIR No.655/2020 at PS Jamshed Quarter in the light time on 22.10.2020 at about 1315 hours and stated therein that:

He is residing with his family in House No. 3/5, Block-C, Mohalla Nazimabad, Karachi and working in “Scissors Tower” as Software Engineer that on 22.10.2020 at about 0300 a.m. in the night while he was not feeling well therefore he left his office and proceeded towards his house and motorbike No.AFR-2020, Model-70, Black Colour, when at about 0315 hours he reached near Dadabhoy Noorji and opposite PSO Patrol Pump, at the same time three persons came on motorcycle and stopped him forcibly, out of which one pillion rider came in front of him with show of fire arm, asked him “to deliver what he has” thereafter he was afraid for his life and handover his Iphone-7 plus, Rs.800/- with colour copy of his CNIC. In the meantime while the accused persons were moving, he saw police mobile came there and he narrated whole story. On that police party alighted from the mobile in order to arrest the culprits but on seeing the police party the culprits started firing upon the police party with intention to commit their murder. The police party has also made firing in retaliation in which one culprits namely Ahmed s/o Naeem was got injured by receiving fire shot injury on left buttock and exit wound is on left thigh posteriorly and fell down from motorcycle and were arrested by the police, whereas his two other pillion riders were also fell down and arrested by the police from spot i.e. Numaish Chowrangi in injured condition, on enquiry, they disclosed their names as Ahmed s/o Naeem and Junaid s/o Younus. Police conducted their personal search of accused Ahsan s/o Naeem in his presence and got recovered snatched mobile and Rs.800/- from his right side pocket, from accused Ahmed s/o Naeem was recovered one pistol of 30 bore loaded with two live bullets in the magazine and one mobile“Real me”, from accused Junaid s/o Younus was also recovered from his right hand a 32 bore pistol loaded two rounds and one touch mobile “INFNIX”, also recovered from his wearing shirt. The accused persons failed to produce the license of their pistols when demanded by the police. The entire case property i.e. mpotorcycle-70 of black colour bearing registration No.AFR-2020, along with pistols and empties were separately sealed on spot, and prepared such memo by the police, complainant effect his signatures along with police personnel on same and another police mobile was called in which injured accused were shifted to Civil Hospital. Complainant came with the police party at police station where he lodged FIR against accused Ahsan s/o Naeem and Ahmed s/o Naeem for committing robbery and firing with intention to commit murder on police personnel whereas HC Hussain Bux lodged separate FIRs on behalf of the State against the accused Ahsan s/o Naeem and Ahmed s/o Naeem and Junaid s/o Younus vide Crime No.656/2020 for the offence u/s 23(i)(a) S.A.A. 2013.”

3. Investigation was carried out and I.O found sufficient material against the appellants and submitted final reports against the appellants under the above referred sections. Offshoot case was amalgamated with main case by the trial Court in terms of Section 21-M of ATA 1997 and joint trial was held.

4. Trial Court framed Charge against appellants under the above referred sections, to which they pleaded not guilty and claimed trial.

5. At trial, prosecution examined six witnesses, who produced the relevant documents. Thereafter, learned Asstt. P.G closed the prosecution side.

6. Trial Court recorded statements of appellants/accused under Section 342 Cr.P.C at Ex.14 & 15. Appellants claimed their false implication in the present case and denied the prosecution allegations. Appellants neither examined themselves on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in their defence.

7. Trial Court after hearing the learned counsel for the appellants, prosecutor and while examining the evidence minutely by judgment dated 09.12.2021, convicted and sentenced the appellants as stated above. Hence, the appellants have filed instant appeals against their convictions and sentences.

8. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 09.12.2021 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Learned advocates for the appellants after arguing the appeal at some length did not press the same and submitted that lenient view in the sentence may be taken. It is submitted that appellants were aged about 18 years at the time of recording their statements u/s 342 Cr.P.C; that both the appellants support their old parents and they have to play their positive roles in the society; it is also submitted that they are first offenders and not previous convicts. 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).

10. Learned Addl. P.G after going through the evidence, submitted that prosecution has proved its case against the appellants. Complainant has fully implicated both the appellants in the commission of the offence; that both the appellants were arrested at the spot out of them appellant Ahmed sustained firearm injury during encounter and from possession of appellant Ahmed one unlicensed pistol was recovered. However, he conceded that ATC had no jurisdiction to convict the appellants under Section 7 ATA 1997 and recorded no objection in case some lenient view is taken in the sentence.

11. 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 appellants. In this case, evidence of complainant Ahmed Mujtaba is most material for deciding this appeal. He has deposed that on 22-10-2020 at 3.00 am (night), he was coming from his office at Shahrah-e-Faisal, when reached near Dada Bhoy road, three boys came on motorbike and by show of force asked him to handover whatever he had, he gave his I-phone 7 plus, Rs. 800/- and colour copy of CNIC. Complainant saw police mobile, got stopped and narrated the incident. Police followed the culprits and asked them to stop but they fired at the police, police also fired in defence and apprehended the accused. From personal search of appellant Ahmed, police recovered his robbed articles. Police recovered unlicensed pistols from the possession of injured appellant Ahmed and accused Junaid, who sustained fire arm injuries during encounter. Both accused were referred to hospital but during treatment accused Junaid succumbed to injuries. 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. Appellants were arrested at the spot, out of whom appellant Ahmed was in injured condition. 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.”

12. Admittedly, no hurt/injury was caused by means of pistol by appellants to anyone. Ingredients of offence u/s 397 PPC are not attracted, thus, at the most, offence would fall under Section 392 PPC. Learned counsel for the appellants relied upon an unreported judgment dated 13.12.2022 passed by this Court in Crl. Jail Appeal No. 101/2022, sentence of appellant under Section 397 PPC was modified to one under Section 392 PPC and he was sentenced to suffer R.I for 03 years. Relevant paragraph is produced as under:

“Admittedly, no weapon was used by the appellant in commission of incident, as such, the offence, if any, would fall under Section 392 PPC, therefore, the punishment to the appellant u/s 397 PPC is misplaced, thus, it is modified with one u/s 392 PPC, consequently, the appellant is convicted and sentenced to undergo rigorous imprisonment for 03 years with fine of Rs.10,000/- and in default whereof to undergo simple imprisonment for 20 days with benefit of section 382(b) Cr.P.C.”

13. 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 appellants is modified from Section 397 PPC to Section 392 PPC.

14. So far conviction and sentence of the appellants 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.

15. 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.

16. 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."

17. 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.”

18. Based on the peculiar facts and circumstances available on record, we hold that there is no evidence that intention of the appellants were 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.

19. As regards to the quantum of sentence is concerned, in the present case, learned Advocate for the appellants did not press appeal on merits. It is submitted that the appellants are quite young aged about 18 years and 19 years and they are the sole supporters of their old parents. It is also submitted that appellants are not previously convicted. As per jail roll dated 20.12.2022, the appellants have already served out sentence including remission 02 years, 03 months and 29 days, therefore, in these peculiar circumstances, a case for reduction of the sentence of the appellants is made out. Reliance is placed upon the case of Gul Raeef Khan vs. The State (2008 SCMR 865).

20. In view of peculiar circumstances, for the above stated reasons, conviction recorded by trial court is maintained, however, conviction of appellants 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/-each. In case of default in payment of fine, appellants shall suffer S.I for 01 month more. So far conviction and sentence of appellants u/s 353 PPC is concerned the same is maintained. However fine is reduced from Rs.50,000/- to Rs.15,000/- each and in default of payment of fine, appellants 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 each. As regards to conviction and sentence awarded to appellant Ahmed 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.50,000/- 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.

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

JUDGE

JUDGE

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