' ABDUL HAMEED DOGAR, J.---By this judgment we propose of Special Anti-Terrorism Appeals Nos.72 and 73 of 1999 as they arise out of one and same judgment.
2. By the abovementioned appeals the appellants Moinuddin and Khuram have assailed judgment, dated 3-7-1999 of Mr. Rahmat Hussain Jaffery, Judge, Anti-Terrorism Court No,1, Karachi, whereby they were convicted under section 392 read with sections 34, P.P.C. And 7(b) of Anti-Terrorism Act, 1997 (hereinafter to be referred to as the "Act") and were sentenced with 10 years R.I. And fine of Rs,50,000 each. In case nonpayment of fine they were ordered to undergo R.I. For one year more.
Each of them was further directed to pay compensation of Rs,25,000 to P.W. Muhammad Hassan under section 544-A, Cr.P.C. And in case of nonpayment to suffer further R.I. For six months more.
3. Briefly the facts of the prosecution case are that on 7-4-1999 complainant Muhammad Yousuf, the driver of Suzuki pick-up bearing registration No,KE-7095, went to Samanabad alongwith the owner of Suzuki pick-up, namely, Muhammad Hasan and Zakir for delivering confectionery articles to the shops. He parked the abovementioned Suzuki in front of Mazedar Haleem shop at about 12- 15 p.m. Muhammad Hassan and Zakir went for the orders, whereas he remained in the Suzuki van.
Two persons aged about 20/22 years wearing Shalwar and Kamiz came there, out of them one took out pistol and kept the same in the chest of the complainant and directed him to leave the van and not to raise cries, on which the complainant alighted from vehicle and then the said persons drove away the van. The complainant raised cries, which attracted P.Ws. Muhammad Hassan and Zakir. Subsequently the complainant went and lodged the F.I.R.
4. Investigation was transferred to C.I.A. Police and it was on 11-4-1999, S.I.P. Muhammad Wasim of C.I.A. Was on patrolling duty and Gharibabad Chowrangi when at about 7-45 p.m. He saw Suzuki pick up coming from Liaquatabad No,10 at a high speed which did not stop at the signal, as such he followed the same and succeeded in stopping near Balouch Hotel, Ghairabad, in which he found one person sitting on the driver seat and the other on the rear set. The said Suzuki pick-up, bearing registration No,KE-7095, was found to be the robbed vehicle. The persons sitting therein disclosed their names as Khurram and Moinuddin, the appellants. From personal search of appellant Moinuddin one pistol containing bullets was recovered, whereas nothing was recovered from the possession of appellant Khurram. The appellants and the vehicle were brought to police station and separate case under section 13(d) of the Arms Ordinance was lodged as Police Station Samanabad against appellant Moinuddin. An identification test was arranged in which appellant were picked up by P.W. Yousuf. On completion of investigation they were sent up to face trial before the abovementioned Court.
5. A charge under section 392 read with sections 34, P.P.C. And 7(b) of the Act, was forced against the appellants, to which they pleaded not guilty and claimed trial.
6. At trial prosecution examined P.W.1 complainant Yousuf, who produced, F.I.R., Mashirnama of Wardat, Mashirnama of identification test of appellant Khurram, Mashirnama of identification test of appellant Moinuddin and his N.I.C., P.W.2 Sayyeda Parveen, Judicial Magistrate, who produced the letter of C.I.A. Inspector, P.W.3 Muhammad Hassan P.W.4, Raja Khalid Mahmood, P.W.5 S.-I.P.
Muhammad Wasi, who produced the mashirnama of arrest, recovery of Suzuki pick-up, pistol and bullets and letter of Dy.I.-G., Karachi and thereafter, the prosecution closed its side.
7. The appellants in their respective under section 342, Cr.P.C. Denied the allegations of prosecution and claimed innocence. Appellant Moinuddin further pleaded that on 8-4-1999 he was arrested by police from his house at 3-30 a.m. On refusal to pay money to the police he was involved in this case. Appellant Khurram who pleaded that he was arrested by police on 8-4-1999 at 3-00 a.m.
From his house. He has been involved in the case at the behest of one Nadeem, who was left off by the police as he had greased their palm.
8. Both the appellants have examined themselves on oath as required under section 340(2), Cr.P.C.
Appellant Khurram examined Majeed Hassan and Muhammad Mateen in his defence, whereas appellant Moninuddin examined Waseem and Ghulam Rabbani in his defence.
9. The learned trial Court framed the following points for determination:--
(i) Whether the Suzuki van bearing Reg. No,KE-7095 was robbed from the complainant in front of Mazedar Haleem Shop Samanadabad, Karachi?
(ii) Whether the accuased had committed the robbery of the said Suzuki pick-up?
(iii) What offence, if any accused have committed?
10. On assessm ent of evidence and hearing the learned counsel for the parties, the appellants were found guilty of the offence and were convicted and sentenced as above.
11. We have heard Messrs S. Mahmood Alam Rizvi and Mahmood Habibullah on behalf of the appellants and Messrs Syed Jalil Ahmed Hashmi and Habib Ahmed, Assistant Advocate-General, on behalf of the State at length and have gone through the record and proceedings of the case in minute particulars,
12. At the very outset Mr. S. Mahmood Alam Rizvi submits that he does not dispute the merits of the case, but simply urges for the reduction in the sentence. According to the learned counsel the sentence awarded to the appellants is harsh and in the circumstances of the case where no loss is caused or occurred, the appellants deserve some leniency in the sentence. He further argued that though offence under section 392, P.P.C. Is not scheduled offence, yet he would not advance arguments on that ground, but simply prays for the reduction of the sentence.
13. On the other side Mr. Syed Jalil Ahmed Hashmi, A.A.-G., agreed with the above submissions of the appellants counsel and stated that in the circumstances of the case stated above he concedes to the reduction of the sentence.
14. We have given anxious thought to the submissions made at the bar. No doubt, the offence under section 392, P.P.C. Is not a scheduled offence within the ambit of the Act, but section 17 of the Act prescribes that an Anti-Terrorism Court while trying any scheduled offence can try the accused with non-scheduled offence, with which he may be charged at trial. This is a case of vehicle snatching and falls under section 7-A of the Act and is punishable under section 7-B. Section 7-A was inserted in the Act on 27-4-1999 by Ordinance No,IV of 1999 and was made effective retrospectively from 4-41999. The incident in the instant case has occurred on 7-4-1999, as such is became scheduled offence at that moment and was rightly tried by Anti-Terrorism Court.
15. Since the appellants have not challenged the judgment on merits and have simply prayed for taking some lenient view in the sentence, we feel it appropriate to maintain the conviction under section 392, P.P.C., but reduce the sentence from 10 years to 7 years R.I. The appellants are also convicted under section 7-B of the Act and are sentenced to suffer R.I. For 7 years. While convicting the appellants under section 392, P.P.C., reference has been made to section 7(b) of the Act, which, in fact, has been misapplied by the trial Court, as such it is modified as 7-B. The sentence of fine is, however, maintained and the same, if realized, 50% thereof would be paid to complainant under section 544-A, Cr.P.C. In default of payment of fine, the appellants would further undergo R.I. For 6 months. The benefit of section 382-B, Cr.P.C. In extended to the appellants.
16. With the above modification the appeal stand dismissed.
' The above are the detailed reasons for our short order dated 10-9-1999.