2022 P Cr (PLP)

SALAHUDDIN PANHWAR, J.

Through instant appeal appellant has challenged the impugned judgment dated 08.09.2018, passed by learned Anti-Terrorism Court Mirpurkhas Division @ Mirpurkhas in Special Case No.06 of 2017 arising out of Crime No.11/2017 registered u/s 23(1)(a) of Sindh Arms Act, 2013 at Police Station Jhudo, whereby appellant was convicted under the said section and sentenced to five years with fine of Rs.30000/- (rupees thirty thousand) . However, benefit of section 382-B, Cr.P.C. was extended to him.

2. Precisely, relevant facts of the prosecution case are complainant Ghulam Rasool lodged this FIR at Police Station Jhudo on 08.01.2017 stating therein that his brother Muhammad Sulleman is Starter at A.C. Coach Adda Jhudo Town where A.C. Coaches ply from Jhudo to Badin and Karachi. On 08.01.2017 A.C. Coach No.JC-0298 departed from Adda for Badin to Karachi. He and his brother Muhammad Sulleman were sitting in front of Adda when at 11:00 a.m. each namely Mumtaz Ali Khoso armed with Kalashnikov, Sajjad alias Mitho, Hammad Tabbasum and Jeevan armed with Pistols came there and asked them to pay Bhatta and if Bhatta is not paid they will not let to ply A.C. Coaches and they will kill them. In the meanwhile Muhammad Ayoub and Bachayo reached there, they will not give them Bhatt. On such reply accused Mumtaz Khoso instigated other accused to kill them, on which all accused persons made straight firing from their weapons on than with intention to kill. The fire shot made by accused Sajjad alias Mitho hit on left leg of his brother Muhammad Sulleman who fell down on the ground. Thereafter all the accused persons went away by making indiscriminate firing and creating fear, terror, harassment and insecurity in the general public, then complainant took his brother Muhammad Sulleman to Government hospital Jhudo; after leaving him in the hospital he went to Police Station Jhudo and lodged the FIR.

3. During investigation IO Inspector Nand Lal arrested accused Sajjad alias Mitho on 09.01.2017 at about 1500 hours from Jamaro Mori Link road Bhalo Bhatti village and secured unlicensed .30 bore Pistol along with magazine containing five live bullets and registered FIR No.11/2017 at Police Station Jhudo under section 23(1)(a) of Sindh Arms Act, 2013. After usual investigation police submitted challan showing accused Sajjad alias Mitho in custody while accused Mumtaz Ali, Hammad Tabbasum and Jeevan as absconders under section 512, Cr.P.C. and also submitted another challan against accused Sajjad alias Mitho in respect of Crime No.11/2017 under section 23(1)(a) of Sindh Arms Act, 2013. Subsequently absconder accused Mumtaz Ali, Hammad Tabbasum and Jeevan appeared before the trial court and joined trial. On 06.02.2017 learned ADPP for the State submitted application under section 21-M of Anti-Terrorism Act, 1997. for amalgamation of Special Case No.6/2017 under section 23(1)(a) of Sindh Arms Act, 2013 registered against accused Sajjad alias Mitho with main Special Case No.05/2017 under sections 324, 386, 387, 114, 337-F(iii), 337-H(2), 34, P.P.C. and 6/7, Anti-Terrorism Act, 1997 being offshoot of main case. By consent application was allowed.

4. In order to prove its case, the prosecution has examined P.W-1 complainant Ghulam Rasool at Exh.17, he produced FIR as Exh.17/A, P.W-2 Muhammad Sulleman at Exh.18, he produced his 164, Cr.P.C. statement as Exh.18/A and his blood stained sky blue colour Shalwar as Article "A", P.W-3 Muhammad Ayoub at Exh.19, he produced his 164, Cr.P.C. statement as Exh.19/A, P.W-4 Bachayo at Exh.20, he produced his 164, Cr.P.C. at Ex.20/A, P.W-5 mashir Javed Iqbal at Exh.21, he produced mashirnama of injury of injured Sulleman, mashirnama of place of wardat and mashirnama of securing of blood stained Shalwar of injured Sulleman as Ex.21/A to C respectively, P.W-6 Doctor Atta Hussain Shah at Exh.22, he produced police letter dated 08.01.2017, Provisional MLC and Final MLC of injured Sulleman as Exhs.22/A to C respectively, P.W-7 mashir ASI Imdad Illahi at Ex.23, he produced mashirnama of arrest and recovery of accused Sajjad alias Mitho as Ex.23/A, P.W-8 Mr. Nawaz Khan Khaskheli learned Civil Judge and Judicial Magistrate Digri at Exh.25, and P.W-9 Investigating Officer Inspector Nandlal at Exh.26, he produced Entries Nos.5 and 6 dated 08.01.2017, his letter addressed to Mukhtiarkar dated 09.01.2017, Entries Nos. 6 and 9 dated 09.01.2017, Carbon copy of FIR No.11/2017 of P.S Jhudo, his letter dated 10.01.2017 addressed to Forensic Science Laboratory, Hyderabad and its report, Sketch of wardat dated 20.01.2017 at Exhs.26/A to 26/I respectively and attested Photostat copies of FIRs (criminal record of accused persons namely Mumtaz Ali, Sajjad alias Mitho and Jeevan as Exhs.26/I-1 to

8. Thereafter, learned APG for the State closed the side of prosecution evidence vide statement Exh.27.

5. Statements of all accused persons namely Sajjad alias Mitho, Mumtaz Ali, Hammad Tabbasum and Jeevan under section 342, Cr.P.C. were recorded at Exhs.28 to 31 in which they have denied all the allegations leveled against them by the prosecution. Accused persons stated that all the witnesses are inimical and interested. Accused Sajjad alias Mitho in his statement under section 342, Cr.P.C. has produced cutting of five newspapers dated 09.01.2017 at Exhs.5/A-1 to 5 and certified copy of the affidavit of the complainant Ghulam Rasool filed by him in Bail A. No.D-27 of 2017 of accused Sajjad alias Mitho as Exh.28/B. He has also examined himself on oath under section 340(2), Cr.P.C. and produced certified copy of affidavit of complainant Ghulam Rasool and injured PW Sulleman filed by them in Bail A. Nos.D-27 and 28 of 2017 of accused Sajjad alias Mitho as Exhs.32/B and 32/B, he has also examined his defence witness Abdul Rauf Nagori at Exh.37. Accused Mumtaz Ali in his statement under section 342, Cr.P.C. has produced certified copy of judgment dated 31.05.2017 passed in Crime No. 14.2017 Police Station Jhudo by the learned Civil Judge and Judicial Magistrate No. II, Digri as Exh.29/A, photostat copy of Order dated 04.01.2017 passed by the Election Commission of Pakistan Islamabad as Exh.29/11, Certified copy of C.P. No.S-647 of 2017 and photostat copy of C.P. No.S-933 of 2017 as Exhs.29/C and D, USB containing recording of his rallh as Exh.29/E and photostat copies of newspaper cuttings as Exhs.29/E-1 to 26 respectively. Accused Mumtaz Ali has also examined himself on oath under section 340(2), Cr.P.C. at Exh.33. during which he produced suspension order of his brother Muhammad Ali Khoso as Exh.33/A and suspension order of his brother Zulfiqar Ali as Exh.33/B, he also examined his defence witnesses namely Muhammad Shafique and Muhammad Zikria at Exhs.34 and 35 respectively. Thereafter learned defence Counsel of accused persons closed the side of defence evidence vide statements at Exhs.36 and 38.

6. Learned trial Judge framed following points for determination: i. Whether on 08.01.2017 at 11 a.m. all the accused persons in furtherance of their common intention duly armed with Kalashnikov and Pistols came at A.C. Coach Adda Jhudo Town and asked complainant Ghulam Rasool and PW Sulleman to pay Bhatt and if Bhatta is not paid they will not let them to ply A.C. Coaches and will kill and on their refusal, at the instigation of accused Mumtaz Ali all accused persons (including accused Mumtaz Ali) made straight firing upon complainant Ghulam Rasool and PW Sulleman with intention to kill. The fire short made by accused Sajjad alias Mitho hit on left leg of PW Sulleman thereafter all accused persons made indiscriminate firing created terror, fear, harassment and insecurity amongst the people of the area? ii. Whether on 09.01.2017 at about 1500 hours a police party headed by I.O. Inspector Nand Lal during investigation of main case Crime No.10/2017 Police Station Jhudo arrested accused Sajjad alias Mitho from Jamrao Mori link road Bhaloo Bhatti village and secured unlicensed .30 bore T.T.Pistol No.1745 alongwith magazine containing 5 live bullets from the fold of his Shalwar? iii. What should the judgment be?

7. At the outset learned Counsel for appellant contends that appellant has been convicted under section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to R.I for five years with fine of Rs.30,000/-, whereas, he has remained substantive sentence in prison. Further, he contends that under section 23, Sindh Arms Act, 2013 minimum sentence is not provided hence it was the duty of the trial court to decide the quantum of sentence in the circumstances of the case. Such exercise, however, does not appear to have been made by the learned trial court while awarding sentence of five (5) years. At the point, it would be conducive to refer operative part of the case of Muhammad Inman v. State 2018 SCMR 318 which reads as:- 7. .... Inflicting conviction and imposing sentence is not a mechanical exercise but it is onerous responsibility to inflict, fair, reasonable and adequate sentence, commensurate with gravity and or severity of crime, looking at the motive, attending and or mitigating circumstances that provoked or instigated commission of crime and it involves conscious application of mind. The appellant has been claimed to be sole bread earner and no previous criminal record, per appellant, is there as well the appellant has served substantive park of his conviction. All these, if viewed with parallel pillar of concept of punishment, then appellant makes out a case for reduction. The concept of reformation should be given much weight because conviction normally does not punish the guilty only but whole of his family/dependents too. A reformed person will not only be a better brick for society but may also be helpful for future by properly raising his dependents.

8. Under the circumstances, it would be justified to reduce his sentence as already undergone on the plea that he is the only male member to earn bread and butter for the life i of his family; he is first offender; reformative theory may be considered having chance to appellant to become a law abiding citizen. Accordingly, while maintaining the impugned judgment the sentence awarded to the appellant was reduced to one already undergone by short order dated 10.07.2019. The reason are hereof. SA/S-133/Sindh Sentence reduced.