2005 PLP 1229 (YLR)

WAHID BUX BROHI, J.

Appellant Muhammad Saleem has impugned the judgment passed by Special Judge, Anti-Terrorism Court No.II, Karachi on 18-5-1999 whereby he was convicted and sentenced as under:-- (i) For offence under section 7(b) of the Anti-Terrorism Act he has been sentenced to R.I. for 7 years and fine of Rs.40,000 or in default in payment of fine to suffer R.I. for 1 year; (ii) for offence under section 392, P.P.C. he has been sentenced to R.I. for 10 years and fine of Rs.50,000 or in default thereof to undergo R.I. for 2 years; and (iii) for offence under section 13(d) of Arms Ordinance he has been sentenced to R.I. for 7 years and fine of Rs.10,000 or in default in payment to undergo R.I. for 1 year more. It was also directed that out of the fine, if recovered, Rs.30,000 be paid to injured Arshad Hussain as compensation under section 544-A, Cr.P.C.

2. The case of prosecution, briefly stated, is that on 5-11-1998 at 5-30 p.m. three persons having T.T. pistols entered the office of a construction company situated in Shumail Centre, Gulshan-e-Iqbal, Karachi and robbed cash from P.Ws. Rahmani and Syed Abid. They also robbed wrist watch of Syed Abid Ali and then obtained keys of the staff car parked outside and drove away in the said car. Arshad Hussain chased them on motorcycle, the culprits, therefore, opened fire at him and injured his left arm and left leg. He fell down and was removed from the scene by Rahmani and others, who were following the culprits on Land Cruiser driven by Rahmani. Arshad Hussain was rushed to Agha Khan Hospital. The police party headed by Inspector Asghar Ali Shah, S.H.O., Police Station, Gulshan-e-Iqbal, Karachi reached in the meantime and noted that some policemen had cordoned the premises of Hassan Centre and exchange of fires was going on between the culprits and police party. The S.H.O. also took position and joined the party. Two culprits sustained serious injuries and fell down, while the third surrendered throwing the pistol and raising his hands up. The injured culprits were shifted to hospital where they expired. Third one namely the appellant was arrested on the spot and arms and ammunition were also secured. First information of the incident was recorded by Arshad Hussain on a plane paper. After usual investigation the case was challaned.

3. At the trial formal charge was framed against the appellant, who pleaded not guilty and claimed trial. The prosecution examined P.W.1 Arshad Hussain; P.W.2, Dr. Qarar Ahmed Abbasi; P.W.3, Dr. Muhammad Ismail Rajpar; P.W.4, S.-I., Muhammad Ramzan; P.W.5, Muhammad Babar Farooq; P.W.6, Syed Abid Ali; P.W.7, Syed Muhammad Ahsan; P.W.8, A.S.-I., Muhammad Asim; P.W.9, Inspector Syed Ali Asghar Shah; and P.W.10 Dr. Mirza Rehman Baig.

4. Statement of appellant was recorded under section 342, Cr.P.C. wherein he gave a long statement in support of his plea of innocence stating that two deceased culprits had asked him to accompany them and at the place of incident he was asked to stand on the door and they went inside. After a while they came out and drove away the car and when on the way the car went out of order they shouted to run as the police was coming. He has given further details of the encounter although with a little difference. On appraisal of the evidence on record the learned trial Court convicted the appellant and sentenced him as above.

5. We have heard Mr. Mumtaz Ali Khan Deshmukh, learned counsel for appellant and Mr. Habib Ahmed, learned Assistant Advocate General for the State.

6. Learned counsel for appellant did not advance any arguments on merits and submitted that he would not press the appeal as far conviction is concerned, however, he made submissions on the point of modification in sentences.

7. No doubt, learned counsel for appellant did not question the evidence on record and as such did not challenge the conviction recorded by the trial Court but we are conscious of the legal position that notwithstanding the aforementioned position that the Appellate Court has to ascertain if the evidence on record is sufficient to uphold the finding of conviction. The rule laid down by the Honourable Supreme Court in Muhammad Ashiq v. State PLD 1970 SC 177 provides a guideline to the effect that a decision on criminal appeal should be on merits.

8. We have accordingly perused the material on record. There is ample evidence in the form of ocular testimonies on the point of robbery. One of the witnesses namely Arshad Hussain had received injuries when he chased the culprits and had fallen down. He was removed to hospital for treatment. The other witnesses P.W.5, Muhammad Babar Farooq Niazi and P.W.6, Syed Abid Ali are also eyewitnesses of the incident. They were present in the office when the culprits entered and snatched purse from Rahmani and after taking the money returned the same to him in presence of these witnesses. They also took wrist watch from Abid and also the key of the car; then they fled away in the car which was parked outside where after the chase started. All these eye-witnesses have fully supported the case of prosecution.

9. The medical evidence of P.W.10 Dr. Mirza Rehman Baig corroborates the evidence to the effect that Arshad Hussain received fire-arm injures on his left arm and left leg. The evidence of Inspector Syed Asghar Ali Shah, who had encounter with the appellant and his two companions also lends full support to the evidence of eye-witnesses. It has come on record that the robbed car was abandoned behind Hassan Centre because of hot pursuit made by police. There is no reason to disbelieve the overwhelming evidence against the appellant particularly when no suggestion has come forward to doubt the credibility of the witnesses owing to any animosity. The learned trial Court has rightly believed the ocular testimonies on the point of robbery of money from the purse of Rahmani, wrist watch from Abid and the Toyota Car.

10. The learned trial Court has also thrashed the point as to whether the act of culprits was likely to strike terror in the people and he came to the conclusion that in the said course the culprits threatened the police by firing at them in order to prevent them from discharging their lawful duty to apprehend them. There is sufficient evidence on the point of encounter that took place at Hassan Centre which ultimately led to recovery of arms and ammunition surrendered by the other two culprits, who died later on. Even the owner of the flat P.W.7, Syed Muhammad Ahsan has given supporting evidence in the matter. Through the same witness evidence has come on record regarding recovery of unlicensed T.T. pistol of 0.30 caliber loaded with three live rounds in its chambre from the possession of appellant which too is reliable and has rightly been believed by the trial Court.

11. The points for determination have been framed and the entire evidence has been clearly discussed and evaluated. We are convinced that the finding of conviction for the offences under sections 7(b) of the Anti-Terrorism Act, 392, P.P.C.; and 13(d) of Arms Ordinance is wholly justified and correct. Accordingly, the conviction for these offences is maintained.

12. As regards the sentences, in the circumstances of the case, we are inclined to make slight modification in the sentences as under:-- (i) For offence under section 7(b) of the Anti-Terrorism Act the sentence of R.I. for 7 years is maintained, but the fine is reduced to Rs.20,000 and in default of payment of fine to undergo R.I. for 3 months more; (ii) for offence under section 392, P.P.C. the appellant shall undergo R.I. for 7 years and pay fine of Rs.20,000 and in default of payment of fine he should undergo further R.I. for 3 months; and (iii) for offence under section 13(d) of Arms Ordinance only the sentence of R.I. for 7 years is maintained. All the sentences shall run concurrently as already ordered by the trial Court. Out of fine, if recovered, Rs.30,000 be paid to injured Arshad Hussain as compensation under section 544-A, Cr.P.C. which order of the trial Court is hereby maintained. Benefit of section 382-B, Cr.P.C. awarded by the trial Court is also maintained.

13. These are the reasons for the short order pronounced in Court today. N.H.Q./M-197/K Sentence reduced