2003 YLR 3251

SOOMAR Versus THE STATE

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Citation2003 YLR 3251

CourtSindh High Court

Case No.Criminal Appeals (ATA) Nos.51 and 78 of 2000

Date2002-05-16

Judge(s)Muhammad Roshan Essani and Sarmad Jalal Osmany

Authored byMuhammad Roshan Essani

ResultOrder accordingly

1. MUHAMMAD ROSHAN ESSANI, J.‑‑‑ We propose to dispose of Special Anti Terrorism Appeals. Nos.51 and 78 of 2000 by this single judgment as the same have arisen out of a common judgment dated 13‑4‑2000 passed by the Anti‑terrorism Court No.4, Karachi.

2. The brief facts of the prosecution case are that on 25‑1,0‑1999 complainant Abdul Khaliq lodged F.I.R. at Police Station Tipu Sultan wherein it is stated that he owns electronic shop at Al‑Hamra Centre, Shaheed- e‑Millat Road, Karachi. On the day of incident after Maghrib Prayers he closed his shop and while he was sitting in his Charade car for proceeding to home when suddenly three persons armed with T.T. pistols snatched the key of car from him on gunpoint and directed him to step down and hand over the cash. Two other armed culprits overpowered Chowkidar Zarin Khan who was keeping water cooler in the car. They robbed an amount of Rs.10/11,000 from him and drove away his car. The detailed description of the accused persons and articles robbed by them has been given in the F.I.R. On the same day, the same culprits duly armed with T.T. pistols, boarding in the snatched Charade car went to a tyre and wheel shop situated at M.A. Jinnah Road and in presence of the customers at the gunpoint made an attempt to commit robbery but they could not succeed due to encounter with police. The appellant/accused Soomar and two co‑accused i.e. Adrian Shahid and Shoaib were arrested on the spot alongwith arms and ammunition. In the encounter one of the customer namely, Sabir received fire‑arm injuries. After usual investigation the appellants/accused were sent up to stand trial.

3. The appellant/accused pleaded not guilty to the charge before the trial Court and claimed to be tried.

4. The prosecution in support of its case examined the complainant/P.W.1, Abdul Khaliq as Exh.10, he produced F.I.R. No.168 of 1999 as Exh.10/A, P.W.2, Chowkidar Zarin Khan as Exh.11, P.W.3, Shaikh Attaullah as Exh.12, ‑he produced memo. of the place of incident as Exh.12/A, sketch as Exh.12/B, P.W.4 Muhammad Siddiq Qadri as Exh.14, he produced memo. of the arrest of accused and recovery as Exh.14/A, F.I.R. No.206 of 1999 of Police Station Jamshed Quarters as Exh.14/B, memo. of the place of occurrence as Exh.14/C, P.W.5 Abdul Samad as Exh.15, P.W.6, H. C., Muhammad Shoaib as Exh.16, P.W.7 S.I.P. Adnan Shahid as Exh.17, he produced F.I.Rs. Nos.207 of 1999, 208 of 1999 and 209 of 1999 as Exh.17/A to Exh.17/C respectively, P.W.B Dr. Asif Ali Khokhar as Exh.18, he produced medical certificate of injured Muhammad Shahid, Muhammad Sabir as Exh.18/A and Exh.18/B, final Medico‑legal Report of injured Muhammad Sabir as Exh.18/C, Medico‑Legal Certificate as Exh. 18/13 and letter as Exh.18/E, P.W.9 Judicial Magistrate Muhammad Ayub Bhatti as Exh.19 he produced a letter as Exh.19/A, memo. of identification parade of accused Soomar as Exh.19/B, letter as Exh.19/C, memo. of identification parade of accused Muhammad Naveed and Muhammad Shahid as Exh.19/D and Exh.19/E, letter of Investigating Officer as Exh.19/F, statement under section 164, Cr.P.C. of complainant Muhammad Sadiq Qadri as Exh.19/B, letter of Investigating Officer as Exh.19/I, judicial confession of accused Soomar as Exh.19/J, P.W.10, P.C. Khizer Hayat as Exh.20, he produced memo of the arrest as Exh.20/A, memo. of the arrest of accused persons as Exh.20/B, memo. of pointation of place of Vardat as Exh.20/C, P.W.11, S.I.P., Abdul Majeed as Exh.21, he produced Roznamcha Entry No.72 as Exh.21/A and Entry No.73 as Exh.21/B, letter for M.L.O. as Exh.21/C, notice to witnesses as Exh.21/D, notice to accused Muhammad Naveed as Exh.21/E, notice to accused Muhammad Shahid as Exh.21/F, P.W.12, D.S.P. Shahnawaz Khan as Exh.22, P.W.13, S.I.P. Ghulam Mustafa as Exh.23, P.W.14, S.I.P. Aamir Gul as Exh.24, P.W.15, M.L.O. Dr. Ayaz Ali as Exh.25, he produced medical certificate of the injured H.C. Shoaib as Exh.25/A, P.W.16 Muhammad Sabir as Exh.26 and w: Investigating Officer P.W.17 Inspector Muhammad Saleem as Exh.27, he produced letter addressed to, Medical Officer as., Exh.27/A, copy of letters issued by the doctors as Exh.27/B and Exh.27/C, memo. of the recovery of pistol as Exh.27/D, examination reports as Exh.27/E and Exh.27/F. The prosecution closed its side on 29‑3‑2000 by statement Exh.28.

5. The learned trial Court after hearing the counsel appearing on behalf of the appellant/accused convicted and sentenced the appellant/accused as under:‑‑

(i) The accused persons are convicted under section 392, read with section 34, P.P.C. and sentenced to undergo R.I. for 10 years.

(ii) The accused are also convicted under section 393, P.P.C. and sentenced to undergo R.I. for seven years.

(iii) The accused persons are further convicted under sections 394, 324, P.P.C. to undergo R.I. for 10 years.

(iv) The accused persons are also convicted for offence under section 13‑D, Arms Ordinance, 1965 and sentenced to undergo R.I. for 7 years.

(v) The accused persons are further convicted under section 7(b) of Anti Terrorism Act, 1997 and sentenced to undergo R.I. for seven years.

(vi) All the three accused persons are further directed to pay fine of Rs.50,000 each, the same, if recovered be paid to seriously injured and disabled P.W. Sabir as compensation under section 544‑A, Cr.P.C. In default thereof the accused shall f undergo R.I. for one year more.

6. We have heard Mr. Saathi M. Ishaque learned counsel appearing on behalf of the appellant/accused Soomar and Habib Ahmed learned Assistant Advocate‑General appearing on behalf of the State.

7. It is contended by the learned counsel appearing on behalf of the appellant/accused that he does not press the appeal on merits but requests that the sentence of his clients may be reduced. He stated that the appellant/accused Soomar is young man and he is not previous convict. He belongs to a very poor family and is victim of circumstances. He has repented for the act committed by him and he has also decided not to indulge in such activities in future.

8. It is further stated by the learner counsel that in the same matter sentences of the co‑accused namely, Muhammad Naveed and Muhammad Shahid have been reduced by this Court vide judgment dated 11‑4‑2002; passed in S.T.As. Nos.58, 75, 76 and 77 of 2000 as such a lenient view may also be taken in the present matter. He has placed reliance upon the cases of Province of Sindh and others v. Din Muhammad reported in 1993 SCMR 1551; Tariq Pervez v. The State reported in 1995 SCMR 1345; Saeed and others v. The State reported in 1984 SCMR 1069; Soomar v. The State reported in 1977 PCr.L1 70; Ashiq v. The State reported in 1979 PCr.LJ 480; Shahbaz Ahmed and another v. The State reported in 1994 PCr.LJ 1127; Murid Abbas and others v. The State reported in 1992 SCMR 338; Ghulam Nabi v. Thakur Singh and others reported in AIR 1926 Lahore 239 (1); Abdul Hameed v. The State reported in 1988 SCMR 1772; Samandar Khan and others v. The State reported in 1996 SCMR 380; Muhammad Riaz and another v. The State reported in 1996 SCMR 1089; Shamoon Masih v. The State reported in 2001 PCr.LJ 57 and Muhammad Afzal alias Papu v. The State reported in 1987 PCr.LJ 100.

9. Mr. Habib Ahmed learned Assistant Advocate‑General appearing on behalf of the State conceded to the arguments of the learned counsel appearing on behalf of the appellant/accused Soomar. He stated that the conviction and sentence of five years and fine of Rs. 25,000 would meet the ends of justice.

10. Upon consideration of the submissions made by the learned counsel appearing on behalf of the parties and looking towards the peculiar facts and circumstances of the case we reduce the sentence of the appellant/accused Soomar as under: ‑‑

(i) Conviction and sentence awarded to the appellant/accused Soomar under section 392/34, P.P.C. for 10 years each is modified and converted to section 7(b) of the Anti‑Terrorism Act, 1997 and the same is reduced to R.I. for 7 years.

(ii) Conviction and sentence awarded to the appellant/accused Soomar under section 393, P.P.C. to suffer R.I. for 7 years each is reduced to R.I. for 5 years.

(iii) Conviction and sentence awarded to the appellant/accused Soomar under sections 394, 324, P.P.C. to suffer R.I for 10 years each is reduced to R.I. for 7 years.

(iv) Conviction and sentence awarded to the appellant/accused Soomar under section 13‑D, Arms Ordinance, 1965 to suffer R.I. for 7 years each is reduced to R.I. for 5 years.

(v) Sentence of fine imposed upon the appellant/accused Soomar to pay fine of Rs.50,000 is reduced to Rs.25,000. In default of the payment of fine he shall suffer R.I. for six months more. If the amount of fine is realized from the appellant/accused Soomar it should be paid to P.W. Sabir as compensation under section 544‑A, Cr.P.C.

11. All the sentences to run concurrently. The appellant accused was granted benefit of section 382‑B, Cr.P.C. by the trial Court, and the same is also extended to him.

12. In terms stated hereinabove the appeals stand dispose of.

13. H.B.T./S‑317/K Order accordingly.