THE HIGH COURT OF SINDH AT KARACHI

Special Crl. Anti-Terrorism Jail Appeal No. 70 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellants : Abdul Khaliq through Mr. Habib-ur-Rehman Jiskani advocate

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

Date of Hearing : 27.01.2023

Date of Judgment : 27.01.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Abdul Khaliq appellant was tried by learned Judge, Anti-Terrorism Court-XX, Karachi in Special Cases No. 138/2020 (FIR No. 201/2020 u/s 397/353/324/34 PPC r/w section 7 ATA lodged at PS NKIA) and Special Case No. 138-A/2020 (FIR No.202/2020 u/s 23(1)(a) of Sindh Arms Act 2013 lodged at PS NKIA). After regular trial, appellant was convicted u/s 397 PPC and sentenced to undergo R.I for 07 years and to pay fine of Rs.20,000/- in default, he was ordered to undergo R.I for 03 months, u/s 7(h) of ATA 1997 r/w section 353 PPC and sentenced to undergo R.I for 02 years and to pay fine of Rs.20,000/-, in default, to further undergo 03 months S.I, convicted under section 7(i)(b) of ATA 1997 r/w section 324 PPC and sentenced to undergo R.I for 05 years and to pay fine of Rs.20,0000/- in default to undergo 06 months S.I and was also convicted under section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to 05 years’ R.I. and to pay fine of Rs.20,000/-, in default to further undergo S.I for 03 months. 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:

“The case of the prosecution as per FIR lodged by complainant Muhammad Shahzad who had recorded his statement u/s 154 Cr.P.C which was incorporated into 154 Cr.P.C stating therein that on 19.05.2020 he was working as contractor at Shaheen Bleaching Factory situated at 12-D plot No.DP-70 Industrial Area New Karachi, Karachi and on the night of same day he was available at the Factory along with labour where all sudden three culprits entered into Factory and cut-off the CCTV Camera wire’s and started snatching from the labour, they snatched one Mobile Phone Vigo Tel S10 and Rs.19,000/- from Supervisor Abdul Majeed, one Mobile Phone Nokia 2100 and Rs.2000/- from Sawal Hussain, Rs.450/- from labour Abdul Aziz, two Mobile Phones and Rs.900/- from labour Imtiaz Ali one Mobile Phone Nokia and Rs.900/from Masnsha, Rs.1600/- from Dilber, one Mobile Phone Nokia and Rs.450/- from chowkidar Naeem. They also robbed an amount of Rs.100,000/- from driver of office of the Factory, and blanked cheque book and some leaves, which were received from other Factories. Thereafter, complainant informed to police emergency “15” as well as owner of factory whereupon police party headed by SIP Niaz Hussain came over there and after seeing police party, accused persons made fire shorts at them with intention to commit their murder and while making their defence the police party also allegedly made fire shots and during this cross firing one accused received fire arm injuries whereas his two accomplices fled away while claiming over the wall from the spot. The apprehended the name of disclosed his name to be Abdul Khaliq and whereas he disclosed the name of his accomplices, who made scape, to be Abdul Ghaffar and Abdul Wali. It is further alleged that the personal search of accused, was conducted by the police, which led the recovery of one Vigo Tel mobile of four SIMs, Rs.2450/- from right side pocket of his shirt whereas one pistol of 30 bore bearing No.KAC8919 along with magazine loaded three live bullets and in its chamber from his possession. Police had also secured two empties of 30 bore and four empties of SMG from the spot therefore the accused was arrested under such memo of arrest and recovery and he was shifted to Abbassi Shaheed Hospital for treatment and such FIR was registered against injured accused.”

3. After usual investigation, challan was submitted against the appellant 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.04, to which he 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 statement of accused under Section 342 Cr.P.C at Ex.15. Appellant claimed his false implication in the present case and denied the prosecution allegations. Appellant neither examined himself on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in his defence.

7. Trial Court after hearing the learned counsel for the appellant, prosecutor and while examining the evidence minutely by judgment dated 25.02.2022, convicted and sentenced the appellant as stated above. Hence, the appellant has filed instant appeal against his 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 25.02.2022 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Learned advocates for the appellant after arguing the appeal at some length did not press the same and submitted that appellant is aged about 20 years, first offender and supporter of old parents and prayed for taking lenient view in the sentence. 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 appellant. However, he conceded that ATC had no jurisdiction to convict the appellant 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 appellant. In this case, evidence of complainant Muhammad Shahzad is most material for deciding this appeal. He has deposed that on 19.05.2020, he was working with labourers of the Towel Factory, situated at New Karachi. It was month of Ramzan, and it was sehri time, at that time, three persons armed with deadly weapons entered into the factory, as soon as they entered in the factory they started cutting/disconnecting wires of CCTV Cameras and they started snatching valuables from factory workers. Appellant and others snatched Rs.19000/- and one mobile phone Vigo Tell S-10 from supervisor namely Abdul Majeed, thereafter, they snatched one Nokia-216 and Rs.2000/- from worker Sanwal Hussain, they also snatched Rs.450/- from worker Abdul Aziz, they also snatched Rs.900/- and two mobile phones from Imtiaz Ali, Rs.1000/- and one Nokia mobile phone from factory worker namely Mansha Jameel and snatched Rs.1600/- from Dilber and snatched Rs.450/- and one Nokia mobile phone from Naeem Ahmed. Thereafter, accused persons went inside the office of the factory broke the locks of the cupboard and took out Rs.100,000/- cash, few cheque books and received cheque of the other company. He further stated that he was standing on the roof of the factory and witnessed the entire incident. He dialed 15 police help through his mobile and called police. Thereafter he contacted factory owner Muhammad Afzal and informed him about the incident. Police arrived at the factory and appellant and others while seeing the police party started firing upon them with intention to kill, police also fired in self-defence. During exchange of firing, it is stated that appellant received firearm injury and fell down, while two other accused persons made their escape good. Injured accused disclosed his name as Abdul Khaliq and he also disclosed the names of his accomplices. Police conducted personal search of the appellant and secured one mobile phone, one digital mobile phone in broken condition having four Sims and Rs.2450/-. Police had also secured one 30 bore pistol along with loaded magazine containing 03 live bullets, appellant had no license of pistol recovered from him. Thereafter, appellant and case property were brought at police station where FIRs were lodged against the appellant 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. Appellant was arrested at the spot in injured condition. Unlicensed pistol was recovered from his possession 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 appellant. As regards to the conviction 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 appellant to anyone. Therefore, section 397 PPC is not attracted in the circumstances of the case, thus, at the most, offence would fall under Section 392 PPC. Learned counsel for the appellant 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 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.

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 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.

19. In view of peculiar circumstances, for the above stated reasons, 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 and fine is also reduced from Rs.20,000/- to Rs.15,000/-. In case of default in payment of fine, appellant shall suffer S.I for 01 month more. As regards to conviction and sentence under Section 23(1)(a) of Sindh Arms Act, 2013 is concerned, it is reduced to 03 years R.I and fine is also 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.

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

JUDGE

JUDGE

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