THE HIGH COURT OF SINDH AT KARACHI

Special Crl. Anti-Terrorism Jail Appeal No. 66 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellants : Israr Muhammad and Fayyaz @ Sajjad through Mr. Abdul Nabi Joyo and Miss Firdous Sharif advocates

Respondent : The State through Mr. Abrar Ali Khichi Addl. P.G

Date of Hearing : 01.02.2023

Date of Judgment : 01.02.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Israr Muhammad and Fayyaz @ Sajjad appellants were tried by learned Judge, Anti-Terrorism Court-V, Karachi in Special Cases No. 118, 118-A and 118-B of 2020 (FIRs bearing Crime No. 190/2022 u/s 392/353/324/34 PPC read with Section 7 ATA, Crime No. 191/2020 u/s 23(1)(a) of Sindh Arms Act, 2013 and Crime No.192/2020 u/s 23(1)(a) of Sindh Arms Act 2013 registered at P.S SITE-A Karachi). After regular trial, vide judgment dated 19.02.2022, appellants were convicted and sentenced as under:

i) The culprits namely Israr Muhammad son of Faqir Muhammad and Fayyaz @ Sajjad son of Ayaz Khan are convicted under section 392/34 PPC and sentenced them to suffer R.I for five (5) years with fine of Rs.50,000/- and in case of default in payment of such fine, it is further ordered that they shall suffer further R.I for six (6) months more.

ii) The culprits namely Israr Muhammad son of Faqir Muhammad and Fayyaz @ Sajjad son of Ayaz Khan are also convicted under section 7(h) of Anti-Terrorism Act 1997 read with section 353/324/34 PPC and sentenced them to suffer R.I for five (5) years with fine of Rs.50,000/- and in case of default in payment of such fine, it is further ordered that they shall suffer further R.I for six (6) months more.

iii) The culprit namely Israr Muhammad son of Faqir Muhammad is also convicted under section 24 of SAA to suffer R.I for five (5) years and fine of Rs.20,000/- and in case of default of payment of fine, the culprit will have to undergo R.I for six months more.

iv) The culprit namely Fayyaz @ Sajjad son of Ayaz Khan is also convicted under section 24 of SAA to suffer R.I for five (5) years and fine of Rs.20,000/- and in case of default of payment of fine, the culprit will have to undergo R.I for six months more.

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:

“3. The nutshell story of the prosecution case is that the Complainant namely Arif Hussain reported at P.S. SITE-A, Karachi that he is working as Accountant in Jonson and Philips Company situated at Plot No.C-10, South Avenue, Miran Kanta, SITE, Karachi. On 16.04.2020, he went to the JS Bank, Site Branch for the purpose of encashment chaque of the Company where he encashed the said chaque for the sum of Rs.50,000/- when he returned back to his Company through his Motorcycle, when he reached at the Gate of his Company at about 13:30 p.m., he saw two persons who were present on one motorcycle bearing Registration No.KKX-7055, maker Super Star 70 black color stopped him and a culprit who was sitting on back seat of the said motorcycle came to him and showed him pistol and told him that all things which he has in his custody put out if he would not fulfilled their demands they will shoot him, he was shocked and feared after seen the pistol then they both apprehended the complainant and snatched the cash amount of Rs.50000 from his pent pocket, the said culprits also snatched his motorcycle's key and purse in which cash Rs.1170, color copy of his CNIC and then they run may suddenly a police mobile was arrived there. He was loudly hue and cry as Daku' and pointed out through his finger upon the said culprits the Police Mobile Inchage his name was later on disclosed to the Complainant as Shabbir, then the complainant informed to him about the incident and pointed out towards the said Culprits who run away from there through their motorcycle, thereafter, police party chased the said culprits and tried to stop them, meanwhile both the culprits after laid down from their motorcycle started firing upon the police party with intention to kill them, in retaliation police party also fired upon the culprits in which one culprit got injured and other culprit tried to run away from the place of incident, the police party apprehended both the culprits, one culprit dislcvosed his name as Israr Muhammad and other culprit who was injured disclosed his name as Fayyaz @ Sajjad, the police party in presence of complainant searched the accused persons namely Israr Muhammad and recovered from his right hand one 30 bore pistol without number loaded magazine with three live bullets and after his personal search recovered snatched cash amount of Rs.50,000/- of complainant’s company from his pocket and also recovered his purse in which color copy of his Driving License, cash amount of Rs.400/-and one VIGOTEL Mobile, and after personal search of other injured accused namely Fayyaz @ Sajjad recovered one 30 bore pistol without number loaded magazine with two live bullets from his right hand and after further search from his side pocket recovered complainant’s purse along with cash amount of Rs.1170/-, color copy of his CNIC, police also recovered from his possession G-5 mobile and cash amount of Rs.200/-, thereafter police arrested both the accused presons and then sent the injured accused Fayyaz @ Sajjad to Abbasi Shaheed Hospital for his medical treatment through Ambulance. Thereafter, police party went to the Police Station alongwith accused Israr Muhammad, recovered case properties i.e. arms and ammunitions, Motorcycle bearing Registration No.KKX-7055 maker 70 black color Engine No.1280913, Chassis No.11310106 and robbed amount, police demanded Arms License and Registration Book of motorcycle which were recovered from the possession of accused persons, but said accused persons failed to produce the same. Hence the cases registered against the accused persons by SIP Shabbir at P.S. SITE-A, Karachi under the aforesaid offences.”

3. After registration of the FIRs, investigation was entrusted to Inspector Muhammad Shafi. During investigation, I.O recorded 161 Cr.P.C statements of P.Ws and weapons were sent to the Ballistic expert; positive report was received. On the conclusion of investigation, final report was submitted 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 at Ex.05, to which they pleaded not guilty and claimed trial.

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

6. Trial Court recorded statements of accused under Section 342 Cr.P.C at Ex.17 and 18 respectively. Appellants claimed their false implication in the present case and denied the prosecution allegations. Appellants examined themselves on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations. However, they did not lead any evidence in their defence.

7. Trial Court after hearing the learned counsel for the appellant, prosecutor and while examining the evidence minutely by judgment dated 19.02.2022, convicted and sentenced the appellant as stated above. Hence, the appellants have filed instant jail appeal 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 19.02.2022 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Learned advocate 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 on the ground that both the appellants are quite young and they have to support their old parents. It is further submitted that appellants have learnt their lesson and they are not previous convicts. Appellant Fayyaz @ Sajjad is produced by Superintendent Central Prison, Karachi, he undertakes that he would not repeat such type of offence in future. 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 were 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 submits that prosecution has succeeded to prove its’ case against the appellants by producing cogent evidence. 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 looking the youth of the appellants.

11. We have carefully heard learned counsel for the parties and re-examined entire prosecution evidence. Complainant Arif Hussain of Crime No. 190/2022 u/s 392/353/324/34 PPC read with Section 7 ATA registered at PS SITE-A, Karachi, is material witness in this case. He has deposed that he was serving as Accountant in Johnson & Philips Company. On 16.04.2020 at about 1300 hours, he left from his Company to JS Bank for encashment of a cheque amounting to Rs.64,500/- for disbursement of salaries of the employees of the Company. After encashment of cheque, while he was returning back to Company at about 1315 hours, when he was near to the main Gate of Company, two young boys on one Motorcycle of Black Colour Super Star bearing Registration No.KKX-7055 appeared and on the force of pistol robbed him an amount of Rs.50,000/-, wallet containing Rs.1170/-, as well key of his Motorcycle and drove away. In the meantime a Police Mobile arrived there, complainant informed the police about the incident, police immediately followed accused persons and directed them to stop, upon which accused persons after getting down from the Motorcycle made the straight firing upon the Police Party and in retaliation Police also made firing resultantly one accused sustained injury and fell down and other accused tried to run away but he was apprehended by the Police on the spot who disclosed his name as Israr Muhammad and disclosed the name of injured accused as Fayaz @ Sajjad, on personal search, police recovered one 30 bore Pistol along with loaded magazine with 03 live bullets from the right hand of the accused Israr Muhammad and from his pocket also recovered the robbed amount of Rs.50,000/-, wallet containing colour copy of his driving license and Rs.400/- and one Vigo tell mobile phone. On personal search of accused Fayaz alias Sajjad, police recovered one unlicensed 30 bore pistol alongwith loaded magazine and 02 live bullets, wallet of the complainant containing Rs.1170/- his colour copy of CNIC, his mobile phone G-5 and an amount of Rs.200/-. Thereafter, appellants and case property were brought at police station where FIRs were lodged against the appellants under the above referred sections. 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 Fayyaz @ Sajjad was in injured condition. Unlicensed pistols were recovered from possession of appellant and report of Ballistic Expert was positive. Prosecution evidence 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 by producing overwhelming incriminating evidence.

12. 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.

13. 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.

14. 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."

15. 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.”

16. Based on the peculiar facts and circumstances available on record, we hold that there is no evidence that intentions of the appellants were designed to coerce or intimidate the public at large. 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.

17. 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 26 years and 23 years and they are the sole supporters of their old parents. It is also submitted that appellants are not previously convicted and they intend to mend their ways. As per jail roll dated 13.12.2022, the appellants have already served out sentence including remission 02 years, 09 months and 16 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).

19. In view of peculiar circumstances, for the above stated reasons, conviction is maintained, however, sentence of appellants under section 392/353/324/34 PPC is reduced from 05 years R.I each to 03 years R.I each and fine is also reduced from Rs.50,000/- each to Rs.10,000/- each, in case of default in payment of fine, appellants shall suffer S.I for 03 months each instead of 06 months R.I. So far conviction and sentence of appellant Israr Muhammad under Section 24 of Sindh Arms Act 2013 is concerned, it is reduced from 05 years R.I to 03 years R.I and fine is also reduced from Rs.20,000/- to Rs.10,000/-, in case of default in payment of fine, appellant shall suffer S.I for 03 months instea d of 06 months R.I. Conviction and sentence of appellant Fayyaz @ Sajjad under Section 24 of Sindh Arms Act 2013 is concerned, it is also reduced from 05 years R.I to 03 years R.I and fine is also reduced from Rs.20,000/- to Rs.10,000/-, in case of default in payment of fine, appellant shall suffer S.I for 03 months instead of 06 months R.I. All the sentences to run concurrently with benefit of section 382(b) Cr.P.C. Appellant Fayyaz @ Sajjad who is produced in custody, is remanded back.

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

JUDGE

JUDGE