ORDER SHEET

THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.162 of 2024

Criminal Appeal No.163 of 2024

Criminal Appeal No.187 of 2024

Criminal Appeal No.188 of 2024

Present:

Mr. Justice Shamsuddin Abbasi

Appellants : Mohsin Iqbal and Abdul Raheem through M/s Shahbaz Sahootra, Muhammad Farooq and Sarim Hussain Alvi, advocates

Respondent : The State through Mr. Neel Parkash, D.P.G.

Complainant : Through Mr. Muhammad Ilyas Warraich, advocate

Date of Hearing : 17.03.2025

Date of Judgment : 17.03.2025

JUDGMENT

SHAMSUDDIN ABBASI, J.—Appellants Abdul Rahim and Mohsin Iqbal were tried along with Mehroz by learned Additional Sessions Juge-XIII, Karachi East in Sessions Cases Nos.340, 341 and 342 of 2022. After regular trial, appellants Abdul Rahim and Mohsin were convicted under section 397, PPC and sentenced to undergo R.I. for 7 years and to pay fine Rs.20,000 each, in default whereof to undergo S.I. for 30 days more. They were also convicted under section 23(1)(a) of the Sindh Arms Act, 2013 and sentenced to 3 years R.I. and to pay fine Rs.10,000/- each, whereas accused Mehroz son of Amir Iqbal was acquitted of the charge by extending benefit of doubt. Appellants were extended benefit of section 382-B Cr.PC.

2. Brief facts leading to the filing of the instant appeals are that appellants, duly armed with deadly weapons, committed robbery and robbed an amount Rs.10,500/- from complainant Owais Ashraf, who were arrested at spot and robbed amount Rs.10,500/- was recovered from their possession along with weapons in presence of mashirs, they were brought to Bahadurabad Police Station where FIR Nos.340/2022 under sections 397, 34, PPC, FIR No.341/2024 and FIR No.342/2024 under section 23(1)(a) of the Sindh Arms Act, 2013 were registered against them. After usual investigation, challan was submitted against appellants under above referred sections.

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

4. At trial, prosecution examined five witnesses. Thereafter, closed the prosecution side vide statement at Ex.8.

5. Trial Court recorded statements of accused under Section 342 Cr.P.C at Ex.09 and 10. 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.PC in disproof of prosecution allegations nor led any evidence in their defence.

6. Trial Court after hearing learned counsel for appellants, prosecutor and while examining the evidence minutely by judgment dated 17.02.2024, convicted and sentenced the appellants as stated above. Hence, the appellants have filed instant appeals against their convictions and sentences.

7. The facts of the case as well as evidence produced before trial Court find an elaborate mention in the judgment dated 17.02.2024 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. Learned advocates for appellants mainly argued that ingredients of Section 397 PPC are not made out and at the most offence would fall under Section 392 PPC, therefore, they would not press appeals on merits, in case their convictions and sentences are converted to Section 392 PPC and some lenient view is taken on the ground that the appellants are young persons and they are sole supports of their old parents and their families.

9. Learned Addl. P.G after going through the evidence, duly assisted by learned counsel for complainant after going through the evidence, submitted that prosecution has proved its case against the appellants; complainant has fully implicated the appellants in the commission of offence; that they were arrested at the spot and robbed amount Rs.10,500/- as well as weapons were recovered from their possession. However, he admits that no case for offence under section 397, PPC has been made out, at the most case under section 392, PPC has been made and he has recorded no objection if the conviction and sentence may be considered as already served out. Learned counsel for complainant adopted the arguments advanced by learned D.P.G. on merits but he opposed the proposal for modification of section 397, PPC to 392, PPC.

10. I 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 Owais Ashraf is most material for deciding this appeal. He has deposed that on 29.12.2022 at about 1445 hours at Main Ghazi Salahuddin Road, near Al-Khidmat Park, Karsaz, Karachi accused persons namely Abdul Rahim, and Mohsin Iqbal by sharing their common intention with each other duly armed with deadly weapons committed robbery and robbed an amount of Rs.10,500/- from him they were arrested at spot and robbed amount as well as weapons were recovered from their possession. 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. One unlicensed 9MM pistol 30 bore, having loaded magazine with 2 rounds was recovered from appellant Abdul Rahim whereas one unlicensed unnumbered 30 bore pistol with loaded magazine with two live rounds was recovered from possession of appellant Mohsin Iqbal and report of Ballistic Expert was positive. I 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.”

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

12. As regards to the quantum of sentence is concerned, it is submitted that the appellant was aged about 30 and 35 years at the time of recording their statement under Section 342, Cr.PC and they are sole supporters of their old parents and families. It is also submitted that appellants are not previously convicted. As per jail roll dated 17.03.2025, the appellants have already served out sentence including remission 03 year, 04 months and 10 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).

12. 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 R.I. for 03 years 04 months and 10 days, which they have already undergone and to pay fine Rs.20,000/- each, in case of default in payment of fine, appellants shall suffer S.I for 15 days more. As regards to conviction and sentence awarded to appellants under Section 23(1)(a) of Sindh Arms Act, 2013 is concerned, it is also reduced to 03 years R.I and to pay fine Rs.10,000/- each, in default whereof the appellants shall undergo S.I for 15 days more. All the sentences to run concurrently with benefit of section 382(b) Cr.P.C.

13. Subject to above modification in the sentence, the Appeals are disposed of in the above terms. Since appellants Abdul Rahim son of Riaz Khan and Mohsin Iqbal son of Muhammad Iqbal, have already undergone the sentences as modified, they shall be released forth, if not required in any other custody case, subject to payment of fine as detailed in the preceding paragraph.

J U D G E

Gulsher/PS