MUKHTIAR MUHAMMAD Versus THE STATE

The appellants namely, Mukhtiar Muhammad and Muhammad Qazafi, have tiled this appeal against the judgment dated 11‑12‑2000 of Ch. Asad Raza, Judge Special Court No. II Anti‑Terrorism, Rawalpindi Division. Whereby he convicted the appellants under section 381‑A, P.P.C. and sentenced them to 4 years' R.I. and a fine of Rs. 10,000 each. In default of payment of which, they have to further undergo simple imprisonment of six months each. They were also convicted under section 7‑B of the Anti -Terrorism Act, 1997 and sentenced to four years' R.I. Both these sentences were to run concurrently. While the appellants were also given the benefit of section 382‑B, Cr.P.C.

2. Another accused Parvaiz Khan having absconded, his case was separated and non‑bailable warrants were issued against him for his arrest and later trial.

3. Dr. Habib‑ur‑Rehman (P.W.1) is complainant in this case. On 21‑12‑1999, he parked his car IDJ‑2081 (Suzuki Carry) in the street adjacent to his residence. At bout 3‑00 a.m. in the early hours of the morning; he felt as if someone was attempting to steal his vehicle by putting on the ignition switch and which was not working because of the safety lock he had additionally placed in his vehicle. In the meanwhile, he heard an alarm in the voice of the Chowkidar calling "thief". He went down and found that besides, the Chowkidar, four other persons living in the neighbourhood were chasing the culprits who were pushing the car. He too joined the chasers and according to him, he could identity the culprits. They made good their escape. When he checked his vehicle, he found that an attempt had been made to ignite the engine after breaking open the window one. He also found a replacement of the original switch so that the engine could be started. The latter informed the police through a complaint Exh. PA on the basis of which the F.I.R. Exh. PA/I was lodged. He later received his vehicle Exh. Pl on Sapurdari.

4. Jahangir Hussain one of his neighbours (P.W.2) corroborated the case of the complainant. He stated that one of the accused was apprehended. Both these P.Ws in their testimonies had also stated that the accused present in court were culprits.

5. Shaukat Ali, S. I. (P.W.4) had investigated the case, had prepared the site-plan Exh. PC and had recorded the statements of the P.Ws. under Cr.P.C. while also taking into possession the vehicle Exh. P1 through recovery memo. Exh. PB. On 2‑1‑2000, he apprehended Pervaiz Khan now absconding and made recoveries of his personal 'belongings. He arrested the appellants on the same day on receiving information about their presence at Chowk Bansanwala in Rawalpindi City. During his cross‑examination, he stated that the witnesses had identified the accused as they were seen roaming about in the same Mohallah previously and, thus, their names were divulged and were promptly reflected in the complaint Exh. PA and later in the F.I.R. He also went on to say that the vehicle in question was in fact parked in the lane at the time of the occurrence.

6. From the testimony of Shaukat Ali, S. I. (P.W.4), it was brought on record that Pervaiz Khan a co‑accused with the appellants who had obtained his bail through a fictitious surety bond and become an absconder.

7. Learned counsel for the appellants while advancing arguments could not destroy the story of the prosecution vis‑a‑vis the appellants nor was he able to create any doubt as to why the complainant and his witnesses who had seen the occurrence taking place and had identified the appellants and had given their names to be recorded in the F.I.R would make false statements against the appellants whom they had been seen in their Mohallah even in the past. No enmity is therefore, established against the witnesses. Therefore, merely on technical grounds the case of the prosecution with respect to the occurrence cannot be thrown away.

8. However, there appears to be legal infirmities in the judgment itself. Section 381‑A, P.P.C. reads as follows:

" Theft of a car or other motor vehicles .‑‑Whoever commits theft of a car or any other motor vehicle, including motor‑cycle, scooter and tractor, shall be punished with imprisonment of either description for a term which may extend to seven years and with fine not exceeding the value of the stolen car or motor vehicle. "

Whereas section 7‑B of the Anti‑Terrorism Act; 1997, as amended reads as follows:

" Punishment for creating civil commotion .‑‑Whoever commits an act of civil commotion shall be punished with imprisonment for a term which may extend to seven years and with fine."

While its section 7‑A defines what is civil commotion in the following words:

"Creation of civil commotion. ---- Civil commotion mean creation of internal disturbance in violation of law, commencement or continuation of illegal strikes, go-slow, lock-outs, vehicles snatching or lifting, damage to or destruction of State or private property, random firing to create panic, charging Bhatha, acts of criminal trespass (illegal Qabza)."

9. Patently, this was not a case of snatching of a vehicle or of car lifting as-such. Which definitely implies the presence of a driver and other occupants in the car while it is in motion or otherwise and is lifted or snatched by force after ouster of the occupants. Whereas under' section 381‑A, P.P.C. a theft of a car takes place without car‑lifting or snatching. The car in this case was parked in the street and an attempt had been made for stealing it after the replacement of its ignition switch. The attempt failed because of the arrival of the owner and the other witnesses of the neighbourhood.

10. Even otherwise the Court below had to be sure whether this case fell under Section 7‑B of the Anti‑Terrorism Act, 1997 or under section 381‑A, P.P.C. and it had to proceed under either of these offences. This Court feels that it could not proceed on the present facts of the case against both the offences. This Court further feels that as the prosecution case was destitute of the allegation of car snatching or lifting, the case squarely fell under section 381‑A, P. P. C. And as only an attempt had been made and the vehicle in question was not actually stolen and the thieves had run, away, this section shall have to be read with section 511, P.P.C.

11. This Court, therefore, convicts the appellants under section 381‑A read with section 511, P.P.C. and alters the charge accordingly while deleting the charge made under section 7‑B of the ATA, 1997.

12. Consequently, the sentence of the appellants is also altered and they are now sentenced under section 381‑A read with section 511, P. P. C. to two years' R.I. and to a fine of Rs. 10,000 each and in default of payment of fine, they shall suffer further imprisonment of 3 months. The appeal partly is thus accepted.

Q.M.H./M.A.K./M‑757/L . Order accordingly.