ABDUL MAALIK GADDI, J.---Through instant appeals, the appellants have challenged the common judgment dated 27.01.2016, passed by the learned Presiding Officer of Anti-Terrorism Court No,1, Karachi in Special Cases No,A-280 to A-285 of 2014 in cases Crime Nos,229 of 2014 to 234 of 2014 registered under Sections 353/324/186/34, P.P.C. read with Section 7 ATA, 1997, 4/5 Explosive Substances Act, read with 7 ATA, 1997 and under Section 23(1)(a) of Sindh Arms Act, 2013 at Police Station Sharafi Goth, Karachi, whereby the learned trial Court after full dressed trial convicted and sentenced the appellants in Point No,3 of his judgment, which reads as under:-- POINT NO.3.
In view of my findings on point No,1, the prosecution has proved its charges against the accused Hazoor Bux alias Iqbal son of Yar Muhammad, Irfan alias Sultan son of Imran alias Shahbaz, Yar Muhammad son of Sher Wali, Siraj son of Ghulam Muhi-ud-Din and Shaukat Jokhio son of Mubarak Jokhio beyond any shadow of doubt, I therefore, convict them under Section 265-H(2) and sentenced them R.I. for 5 years each, with fine of Rs,20,000/ - each, for the offence punishable under Section 7(h) of Anti-Terrorism Act, 1997, in case of non-payment of fine, they will suffer S.I. for 6 months more. I also convict and sentence accused Yar Muhammad son of Sher Wali R.I. for 14 years for the offence punishable under section 7(ff) of Anti-Terrorism Act, 1997. 1 also convict and sentence accused Hazoor Bux alias lqbal son of Yar Muhammad, Irfan alias Sultan son of Imran alias Shahbaz, Siraj son of Ghulam Muhi-ud-Din and Shaukat son of Mubarak Jokhio R.I. for five years each with fine of Rs,20,000/- each, for the offence punishable under section 23(I)(a) of Sindh Arms Act, 2013, in case of non-payment of fine, they will suffer S.I. for 6 months more. All the sentences shall run concurrently. The benefit of Section 382-B, Cr.P.C. is also extended to them."
2. Facts necessary for the disposal of these appeals are that on 12.08.2014, the complainant SIP Muhammad Nawaz lodged FIRs of Crime No,229/2014 to Crime No,234/2014 of the aforesaid Sections at Police Station Sharafi Goth, Karachi stating therein that he along with his subordinates were busy in patrolling in the area. At about 0030 hours, when they reached at Shahrah-e-Altaf Road, inside Malir Nadi, near Al-Falah Band, they saw seven persons on two motorcycles, who on seeing police mobile coming towards them, fired upon police party with intention to kill them, police also 'fired in their defence.
Police succeeded in apprehending five culprits, whereas, two of them escaped while making firing by taking shelter of the darkness. On inquiry accused disclosed their names as Hazoor Bux alias Iqbal son of Yar Muhammad, Yar Muhammad son of Sher Wali, Kan alias Sultan son of Imran alias Shahbaz, Siraj son of Ghulam Muhiud-Din and Shaukat Jokhio son of Mubarak Jokhio. One single barrel rifle of 12 bore, one bag containing 12 live bullets, cash Rs,14000/- and copy of CNIC of Abdul Malik son of Haji Hashim were recovered from the accused Hazoor Bux, two hand grenades were recovered from accused Yar Muhammad, one rifle 7mm with 5 live bullets, Rs,150/-, copy of CNIC of Muzammil and some papers were recovered from accused Irfan. One .30 bore pistol with 4 live bullets and Rs,100/- were recovered from accused Siraj and from the possession of the accused Shaukat one 30 bore pistol with five live bullets and Rs,200/- were recovered. Accused failed to produce license of recovered weapons. Due to firing of accused, 3 bullets hit to the police mobile from left side. Accused disclosed names of absconding accused as Muhi-ud-Din son of Jumma and Habib son of Kamal Chang. Accused Hazoor Bux, Yar Muhammad, Irfan and Siraj also became injured. Two motorcycles of the culprits were also secured. The recovered arms and ammunitions were sealed on the spot and accused were arrested under memo of arrest and recovery. Accused and case property then brought at police station and present FIRs were registered.
3. To establish accusation against the accused, prosecution examined in all five witnesses namely Sub-Inspector Muhammad Nawaz Leghari as PW-1 at Ex.07, - he produced memo of arrest and recovery, six FIRs of Crime No,229/2014 to Crime No,234/2014, Roznamcha Entry No,56 and memo of inspection place of incident at Ex.07/Ato Ex.07/1 respectively, Muhammad Hayat as PW-2 at Ex.08, ASI Rustam Ali as PW-3 at. Ex.09, he produced clearance certificate, three Roznamcha entries containing one page dated 12.08.2014 and final report of hand grenades at Ex.09/A to Ex.09/C respectively, Inspector Ali Khan Sinjrani as PW-4 at Ex.10, he produced letter addressed to Incharge FSL and Road Certificate dated 16.08.2014 at Ex.10/A to Ex.10/Brespectively. Finally, the prosecution examined Inspector Karam Khan Lashari as PW-5 at Ex.11, he produced report of FSL and letter addressed to SSP Investigation-III, East Zone. Karachi respectively at Ex.11/A and Ex.11/B. These witnesses have been cross-examined by the counsel for the appellants. Thereafter, vide statement (Ex. 12), learned DDPP for the State closed the side of the prosecution.
4. The appellants were examined under Section 342, Cr.P.C. at Ex.13 to Ex.17. They have denied the case and claim of the prosecution by stating that they are innocent and they have been falsely implicated in these cases by the police due to mala fide intention at the instance of one Farooq who is complainant of Crime No,220/2014, PW Muhammad Hayat and Muhammad Imran are also witnesses of that case and PW Muhammad Hayat and Muhammad Imran are also relative of Muhammad Farooq and nothing were recovered from them. Therefore, they may be acquitted from the charge.
5. It reveals from the record that the learned trial Court after perusing the evidence and hearing the appellants' counsel convicted and sentenced the appellants as stated above.
6. It is stated by the learned counsel fc r the appellants that the appellants are innocent and they have no nexus with the chary as levelled by the prosecution against them. Nothing was recovered from them. According to them, though the alleged encounter was taken place in between police and the appellants for few minutes, but no person from the side of police received any gun shot injuries nor any empties which were fired by the accused persons were recovered from the place of incident which makes this case highly doubtful. They further submit that the trial Court is also silent to give its findings on the point of alleged encounter. During the course of arguments, they pointed out various contradictions in the statement of PWs and have made an attempt to show that the whole story as narrated in the FIRs by the prosecution either false or has not taken place in a fashion as alleged in the FIRs, During the course ' of arguments, the counsel, however, have advanced a proposal under the instructions of their clients/appellants that they would not press the instant appeals, if this Court may consider the period of their detention already undergone and reduce the sentences to that extent.
7. Mr. Muhammad Iqbal Awan, learned APG appearing for the State has candidly conceded the proposal on the ground that the appellants are in jail since 12.08.2014 as per jail roll.
8. We have heard the counsel for the parties and perused the record.
9. It is settled position of law that every Sections of the Act have got independent definition and punishment, therefore, prosecution is always under obliged to prove the same as per requirement of law, besides proving allied offences. In this matter, Section 7 ATA, 1997 has also been applied, therefore, it is to be seen whether before applying section 7 of ATA, 1997, the requirement of Section 6 has been fulfilled and it is to be seen with the allegation on record whether the material collected by the investigating officer and surrounding circumstances, depicting the commission of the offence, whether a particular act is an act of Terrorism or not, the motivation, object, design or purpose behind the said act has to be seen.
10. In this matter, we have considered the evidence on record, which shows that prosecution has failed to collect any material to show that the alleged offence was committed in a manner or fashion that it caused fear, terror or panic in the society. On the other hand it is case of the appellants that during encounter nobody has received any injury from police side even no bullet was hit .to police mobile, learned trial Court is also silent in the judgment with regard to police encounter; therefore, it appears that Section 7 of ATA, 1997 is misapplied. Consequently, we set- aside the conviction and sentence, to the extent of Section 7 of ATA, 1997 to the appellants. The recoveries of alleged articles from the B possession of the appellants though are independent offences and since we have observed above that Section 7 ATA, 1997 has been wrongly applied, hence, in such peculiar circumstances, we find the proposal of the appellants substantial one. The appellants are in jail since 12.08.2014 and they, have served out their sentences more than three
(03) years. Hence, while keeping the circumstances of the case, they have been sufficiently punished and they need to be given chance in their lives to rehabilitate themselves.
11.Consequently, the conviction is maintained, however, the sentences awarded to the appellants by the trial Court through impugned judgment are reduced to one which they have already undergone and fines against them are also remitted.
12.With the above modification in the sentences, these appeals are dismissed. The appellants are in jail, they shall be released forthwith, if they are not required in any other cases.