2000SCMR1331 (PLP)

IFTIKHAR MUHAMMAD CHAUDHARY, J.

In this petition leave to appeal has been sought against the impugned judgment of High Court of Sindh dated 18th August, 1999 whereby appeals preferred by the petitioners have been dismissed upholding the conviction and sentences awarded to them under sections 402-B, 365-A, 34 P.P.C. read with section 7 of Anti-Terrorism Act, 1997 by Special Court Anti-Terrorism, Hyderabad and Mirpurkhas Division at Hyderabad vide judgme04 dated 20-8-1998. Prosecution story as gleaned from available record is that on May 24, 1998 Fokker Aircraft No.554 of P.I.A. was hijacked during its flight from Turbat to Karachi via Gawadar with 21 passengers and members of crew. After departure from Turbat at about 5-30 p.m. two persons entered in the cabin (cockpit of the aircraft). Out of them one had a pistol in his hand which he kept on the head of the Pilot and ordered him to take the plane to Joudhpur India whereas the other culprit stood behind him. Third companion of the culprits entered into the cabin of passengers. The pilot of the aircraft P.W. Muhammad Uzair informed his captors with disguise truth that there was no fuel in the plane, as such they cannot reach Joudhpur (India), otherwise the plane will crash but they (hijackers) insisted to carry out their orders. However, they allowed him to contact the control, as such he informed the Airport Authorities at Karachi that they had to go to Joudhpur (India) and craft had no sufficient fuel for this purpose. The control replied that plane could not go to Joudhpur. On this the captors again insisted that they had to land in India and not in Pakistan. In the meanwhile, Control i)assed on its confidential signal informing him to pretend before the hijackers that plane can land at Bhuj Airport (India). On this the plane was turned towards Hyderabad Airport and after having two rounds on the runway of Hyderabad Airport tactfully succeeded in landing the plane at Hyderabad Airport by misrepresenting to the hijackers that plane is landing at Bhuj Airport. At the destination i.e. Hyderabad Airport hijackers allowed one Muhammad Sajjad Choudri, Ground Engineer to deboard with direction to bring water, meals and fuel. During this period the pilot got established the contact of hijackers with the Control and one of them i.e. petitioner Shahsawar considering themselves in the territory of India talked to the Control and putforth demand of 20 millions American Dollars and fuel. Meanwhile, the administration authorities of Hyderabad had become alert, therefore, P.W: Sohail Akber Shah, District Magistrate, P.W. Akhtar Hassan, SSP, Hyderabad, P.W. Usman Anwar, ASP, Phuleli Sub-Division, and Major Aamir of I.S:I. alongwith other officers of the administration got information that Fokker plane hijacked from Turbat has landed at Hyderabad. They started negotiations with the hijackers giving them the impression that they had landed at Bhuj Airport of India and they are officers of Indian Government. The District Magistrate fictitiously informed them his name to be Gopi, Collector of Bhuj Airport whereas Akhtar Hassan, SSP introduced himself Manhoj Kumar, Manager of Airport. No sooner District Administration of Hyderabad succeeded in getting believed to culprits that they are available for providing facilities to them they started putting their demands including making arrangement for the repair of the generator of aircraft which had gone out of order. The hijackers also demanded that they be paid 20 millions American Dollars and fill the plane with fuel as they wanted to go to Dehli. During this period the leader of the hijackers came down from the plane who was overpowered by SSP. Similarly, two other hijackers who were on the board of the plane were arrested by District Magistrate, ASP and Major Aamir who till then succeeded to enter in the plane. As such arms and ammunition possessed by Shahsawar i.e. T.T. pistol, Sabir Ahmad small T.T. pistol were snatched from them. Accordingly passengers were got released and a case vide F.I.R. dated 25th May, 1998 was registered at 3-55 p.m. with P.S. S.I.T.E. Hyderabad. During the course of investigation another accused Muhammad Sharif Hawaldar A.S.F. was arrested from Turbat besides involving 13 other persons who were declared absconders as they could not be arrested.

3. The case was challaned in the Court of Special Judge Anti Terrorism, Mirpurkhas and Hyderabad Division at Hyderabad. The trial Court found petitioners as well as Muhammad Sharif guilty for commission of offence on August 20, 1998 whereby they were sentenced as follows:-- Under sections 402-B and 365-A/34, P.P.C. Death and fine of Rs.5,00,000 each and forfeited their movable and immovable properties in favour of Government or in default of payment of fine 5 years' R. I. Petitioners preferred appeals before High Court of Sindh at Karachi being Nos. 22 _of 1998 and 32 of 1998. Learned Appellate Bench of High Court acquitted Muhammad Sharif for want of sufficient evidence. As far as petitioners are concerned their appeals were dismissed upholding the conviction/sentence awarded to them by the trial Court.

4. The convicts have filed this petition from jail. Mr. Muhammad Zaman Bhatti, Advocate Supreme Court appeared on their behalf as counsel on State expenses. Learned counsel argued that he is challenging vires of section 402-B, P.P.C. which according to him is contrary to the Injunctions of Islam. He stated that if all the accused or any one of them would have been minor then under section 306, P.P.C. he would not have been awarded death sentence. It was pointed out to him that as admittedly in the instant case the question, which is now being raised by him, was not agitated before the trial and appellate forums inasmuch as in the memo. of petition no assertion in this behalf has been made. In addition to it, this argument cannot be examined because none of the petitioners are minors, therefore, proposition put forth needs no further examination. But the learned counsel insisted with great vehemence to attend this question. Suffice it to observe that this Court is not supposed to undertake discussion of the questions which are of academic nature unless a live issue has been brought before it for consideration. Thus we decline to entertain the contention of the learned counsel made in this behalf.

5. Learned counsel next contended that provisions of section 402-B, P.P.C. have created an anomaly as far as awarding of punishment to the culprits of hijacking plane is concerned because both successful or unsuccessful hijackers can be awarded sentence of death or in alternate imprisonment for life whereas gravity of the crime is more severe if the aircraft is actually hijacked comparing to gravity of offence if it has not been hijacked for any reason. He prayed that actually as the petitioners have not hijacked the plane, therefore, quantum of sentence awarded to them requires consideration by this Court. To strengthen his argument he placed reliance on the case of Abdul Marian v. The State 1991 MLD 2462.

6. It is to be observed that under section 402-B, P.P.C. judicial discretion has been conferred upon the Court for the purpose of awarding sentence to the accused of hijacking aircraft. The Court is no doubt empowered to exercise discretion in awarding sentence i.e. either awarding death sentence or imprisonment for life, but this discretion is not of plenary nature as it has to be exercised keeping in view the facts and circumstances of each case. As far as the offence of hijacking is concerned it stands completed no sooner the aircraft is diverted forcibly to a different destination, admittedly, in the instant case Fokker 554 was scheduled from Turbat to Karachi via Gawadar but it was not allowed to land at Gawadar because after its take-over from Turbat the control of the plane was taken over by the petitioners, as they had entered into the cockpit and forced the pilot to divert the direction of plane towards Joudhpur India and they succeeded in doing so as the plane could pot land at Gawadar and then the pilot by adopting disguising tactics took the flight towards Hyderabad and then representing before the accused persons that on account of shortage of fuel the plane had landed at Bhoj Airport (India).' The culprits accepted the word of the pilot. However, subsequently when they were apprehended then it transpired to them that they were in territory of Pakistan. As far as judgment cited by the learned counsel is concerned, the same is distinguishable because in that case convict Abdul Manan though took over the control of the plane forcibly but he was intercepted by the security guard and it safely landed at Quetta Airport for which the flight was scheduled from Karachi and in this manner only an attempt was made to hijack the plane, as such learned Division Bench of High Court of Balochistan under these circumstances reduced the sentence of convict from death to imprisonment for life..

7. It is noteworthy that with reference to inflicting sentence to the accused in criminal cases, discretion always rests with the Court seized of the matter. As far as the superior Courts are concerned they have shown indulgence in the quantum of sentence very rarely that, too, keeping in view peculiar circumstances of the case namely when the case of grave injustice or failure of justice or miscarriage of justice is put up before it. Reference in this behalf may be made to AIR 1952 SC 14, AIR 1963 Allahabad 501, AIR 1964 SC 986 and PLD 1972 Karachi

360. In view of above discussion we are of the opinion that learned trial Court as well as Appellate Court has rightly awarded sentence of death to the petitioners in view of facts and circumstances as well as evidence available on record, therefore, no case is made out for our interference in the quantum of sentence. For the above reasons petition merits no consideration, thus leave to appeal is refused. M.B.A./S-38/S Petition dismissed..