THE HIGH COURT OF SINDH AT KARACHI

Special Crl. Anti-Terrorism Jail Appeal No. 98 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellant : Waqas 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.- Waqas appellant was tried by learned Judge, Anti-Terrorism Court-XX, Karachi in Special Cases No.41/2021 (FIR No. 525/2020 u/s 392/397/353/324/34 PPC r/w section 7 ATA lodged at PS Mominabad) and Special Case No. 41-A/2021 (FIR No.526/2020 u/s 23(1)(a) of Sindh Arms Act 2013 lodged at PS Mominabad). After regular trial, 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 Act 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(i)(b) of ATA Act r/w section 324 PPC to undergo R.I for 05 years and fine of Rs.20,000/- in default of payment of fine accused shall further undergo S.I for 06 (six) months.

4. For offence under section 23(1)(a) of Sindh Arms Act to suffer R.I for 05 years and fine of Rs.20,000/- in default of payment of fine accused shall further undergo S.I for three months.

All the sentences were directed to run concurrently. Appellant was 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 prosecution against the accused as put-forth in the FIR registered against him and complainant Jahanzaib Aslam stating therein that on 31-12-2020 he had withdrawn amount Rs:260,000/- from Bank Al- Habib Branch Metrovil Karachi and came to his godown situated at sector 4- F Orangi Town Karachi when he reached near to his godown where all of sudden two culprits on a motorbike had come and demanded valuables from him by showing him a weapon whereupon he handed over his mobile phone Samsung A-50 and amount of Rs:10,000/-. In the meanwhile the police mobile had come at the place of incident and when accused persons saw the police party, they made fire shots at police party with intention to commit their murder and while making their defense the police party also allegedly made fire shots, and during this cross firing accused Waqas was apprehended and whereas his companion, flee away through motorbike from the spot. The present accused also received head injuries while he was trying to escape from the spot on the motorbike but he fell down. The apprehended accused disclosed his name to be Waqas and whereas he disclosed the name of his accomplice, who made escape, to be Gul Zameer.

It is further alleged that the personal search of accused was conducted by the police, which led to the recovery of a pistol of 30 bore along with magazine loaded with three live bullets from his possession. The personal search of accused was conducted which led to the recovery of a cash amount of Rs:10,000/-, which were snatched by him from complainant, one mobile phone Nokia Model TA-1235, from his possession.

It is further alleged that police also secured five empties of SMG and four empties of 30 bore from the spot. Thereafter, they all went to PS along with custody of accused, recovered pistol where such FIR was registered against present accused and absconding 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.14. 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 24.02.2022, 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 24.02.2022 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 32 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 Jahanzaib Aslam is most material for deciding this appeal. He has deposed that on 31.12.2020, he was coming out form Bank Al-Habib situated at Metrovile after having cash of Rs.260,000/-. While proceeded towards godown Karachi Branded cut pieces at Sector F-4, Orangi town, Karachi, when reached near to the godown at about 4:02, two persons on 125 motorcycle read color came there and one accused kept his pistol on his head and directed him for handing over cash amount. Accused also took out his mobile phone Samsung A-50 from the pocket of the complainant and handed over to his accomplice. Accused also took Rs.10,000/- from side pocket of the complainant. In the meanwhile police came there, the accused on seeing police party started firing upon them, in retaliation police also fired upon accused. Accused who snatched mobile and cash Rs.10,000/- from the complainant tried to escape while sitting on motorcycle but he fell down and sustained head injuries whereas his accomplice escaped from the place of incident on motorcycle. Later on police caught hold second accused on the spot. Apprehended accused disclosed his name to be Waqas and disclosed the name of absconding accused as Gul Zameer. Police secured one pistol along with loaded magazine containing 03 live bullets from his right hand. Upon his personal search police secured Rs.10,000/- from his left hand, which were identified by the complainant to be his cash, snatched by the accused. Police also secured one Nokia mobile from the possession of the accused. Police also collected 04 empties of 30 bore pistol and 05 empties of SMG which were sealed at the spot. Such mashirnama was prepared at the spot in presence of mashirs. 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. 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 under section 23(1)(a) of Sindh Arms Act 2013, is concerned, it is also 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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