' GHULAM NABI SOOMRO, J.--The appellants Dhani Bux, Rahim Bux and Nasir have been convicted and sentenced in special cases Nos.--
(1) 377 of 1999 (F.I.R. No,415 of 1999), under sections 392/34, P.P.C., read with section 7-B of Anti- Terrorism Act.
(2) 378 of 1999 (F.I.R. No,416 of 1999), under sections 353, 324/34, P.P.C. r/w section 7-B of Anti- Terrorism Act.
(3)379 of 1999 (F.I.R. No,417 of 1999), under section 13-D of the Arms Ordinance.
(4)380 of 1999 (F.I.R. No,418 of 1999), under section 13-D of the Arms Ordinance.
(5) 381 of 1999 (F.I.R. No,419 of 1999), under section 13-D of the Arms Ordinance. all registered at Police Station Clifton, Karachi South, jointly tried by the Anti-Terrorism Court No,111 at Karachi and decided by the common judgment dated 25-3-2000.
3. Above cases have erupted from the following incidents:- On 11-11-1999 at about 14-00 hours complainant Muhammad Nawaz son of Muhammad Ramzan, the driver of P.W. Zafar Shah had gone in Honda Civic VTI Car bearing Registration No,ABX-315 Model 1999 to purchase a tin of paint at Tauheed Commercial Area and went inside Durex Paint shop but the required paint was not available there as such he came out from the shop and when he sat in the car suddenly 2 persons duly armed with T.T. Pistols emerged out and on the force of weapons, they made him sit in the car and they snatched key of the car from him and one amongst them sat on driving seat and the other sat on the rear seat of the car and tied away from there with him in the car and while the car was moving they asked him to go on rear seat and he went on to the rear seat. The person sitting rear took out cash of rupees seven thousand from his pocket and also enquired from him about the secret switch of the car to which he replied in negatim Thereafter they dropped him at Kh.Shujat Road and fled away from there. He, therefore, came to bungalow and informed the matter to his employer, saying that he would be able to identify the culprits on seeing them. They went on search of the car for a day where after M.Nawaz driver lodged the F.I.R. At 16-35 hours on 12-111999, which was registered as F.I.R. No,415 of 1999.
4. On 12-11-1999 at about 17-15 hours Inspector M .Zamaan, S. H .0. , along with A.S.I.P. Hassem Ali, A.S.I.P. M.Hayat and other police officials were on patrolling duty in mobile and when they reached at Tauheed Commercial Area, Street No,27 near Universal Estate Agency at about 17-00 hours, they saw a car having number plate ABD-781 which number plate was suspected by the S.H.O., as such he signalled the person sitting inside the car to stop but the persons instead of stopping the car started tiring at the police party. As such H.C. Arbab, who was standing in mobile in alert condition also started firing: in their self-defence and continued chase after the accused and when the said car reached Ideal Bakery. P.C. Arshad Ali who was posted at Ideal Bakery, on seeing such situation started tiring from front side stopping the car near Ideal Bakery. The car was thereafter encircled by the police officials, who found the three convicts/appellants Nasir sitting on the driving seat.
Rahim Bux sitting on the front seat, while Dhani Bux on rear seat. Nasir and Rahim Bux were in injured condition. The S.H.O., therefore, arrested all the three accused in presence of P.Ws. Ashfaq Khan Chishti and Rustam Ali and also conducted search of their person and from the fold of Shalwar of Nasir a 30 bore T.T. Pistol country-made without number loaded with magazine along with three live bullets were secured. A .30 bore T.T. Pistol country-made without licence loaded with magazine along with one live bullet was secured from the hand of accused Rahim Bux. Similarly, a .30 bore T.T.Pistol country-made without number loaded with magazine alongwith one live bullet was secured from hand of accused Dhani Bux. On demand, all said accused failed to produce licences for their pistols. This incident was registered as F.I.R. No,416 of 1999 and consequently three separate F.I.Rs, Nos.417, 418, 419 of 1999 against each of the appellant for possessing unlicensed arms were also registered.
5. The police after conclusion of investigation in the cases sent up the appellants for trial before the Anti-Terrorism Court, for facing their trial for the aforesaid offences. On 16-12-1999 separate charges in F.I.R. No,415 of 1999, in F.I.R. No,416 of 1999 and F.I.R. Under the Arms Ordinance were framed to which the appellants pleaded not guilty and claimed to be tried. All the abovesaid cases were tried jointly and following witnesses were examined by the prosecution in support of its case.
In Special A.T.C. Case No,377 of 1999:
(1) Rehmatullah, Judicial Magistrate, P.W.1, Exh.10.
(2) Zafar Shah, P.W.2, Exh.15.
(3) Rustam Ali, P.W.3, Exh .18.
(4) Shahbaz Hussain, P.W.4, Exh.19.
(5) Muhammad Nawaz, Complainant, P.W.5, Exh.21.
(6) S.-I., Mirza Muhammad Zafar, P.W.6, Exh.26.
(7) S.-I., Shahzad Hussain, P.W.7, Exh.28.
In Special A.T.C., Case No,378 of 1999.
(1) Inspector/S.H.O., M.Irfan Zaman, P.W.1, Exh.11.
(2) A.S.-I., Naseem Ali, P.W.2, Exh.12.
(3) P.C., Arshad Ali, P.W.3, Exh.13.
(4) Rehmatullah, Judicial Magistrate, P.W.4, Exh.15.
(5) Rustam Ali, P.W.5, Exh.24.
(6) H.C., Muhammad Arbab, P.W.6, Exh.25.
(7) S.-I., Shahzad Hussain, P.W.7, Exh.26. whereafter the prosecution closed its side.
6. The appellants were examined under section 342, Cr.P.O. Wherein they denied all the allegations levelled against them and pleaded their innocence. The appellant Nasir examined himself on oath and further examined a defence witness namely Majeed Ali at Exh.56. The appellant Rahim Bux examined himself on oath and further examined defence witness namely Karim Bux at Exh.65. The appellant Dhani Bux also examined himself on oath at Exh.66 and also examined defence witness namely Anwar Ali, whereafter the appellants closed their side. The trial Court at the conclusion of trial convicted and appellants as stated above.
7. We have heard the learned counsel for the appellants and the learned A.A.-G. For the State, have perused the record of evidence and the impugned judgment.
8. Mr.A.Q. Halepota, on behalf of the appellant Nasir arguing on legal plane contended that section 392, P.P.C. Is not a scheduled offence. It was contended that it would be a scheduled offence only.
When committed during the commission of an offence of Zina or murder. He argued that unless such robbery is committed in conjunction with the aforesaid offences, an offence of robbery simpliciter would not be triable by an Anti-Terrorism Court. He argued that no force was used at tile time of commission of such robbery. Learned counsel further argued that sections 7-A and 7-B were no more on the statute and that section 17 of the Act would have no application. The counsel also questioned the joint trial of the cases.
9. Learned counsel further argued that neither sections 353/324, P.P.C. Nor an offence under section 13-D of the Arms Ordinance are scheduled offences. Relevant provisions of the act and the schedule annexed thereto were referred before us. Mr.Halepota thereafter took up another legal plea and contended that the appellants cannot be punished for the same offence under the two enactments i,e, the P.P.C. Section 392 and Anti-Terrorism Act section 7-B as the offence described under the above two provisions was the same.
10. While arguing on the merits of the case, contended that no description or identifying marks of the culprits except the colour of their clothes and approximate age were mentioned, which by no means would be sufficient for assisting in proper identification of the culprits. He further argued that .There was no evidence on record that his client was one of the person, who robbed the car nor the robbed car was secured from exclusive possession. He urged that his client Nasir would therefore, not even be responsible under section 411, P.P.C. The counsel also attacked the evidence of P.Ws. Muhammad Nawaz (Exh.21), Rustam (Exh.18) and the Magistrate Rehmatullah (Exh.10).
11. Learned counsel emphasized that appellant Nasir was not involved in robbery, there was no evidence against him and he was implicated after the car was secured. It was lastly urged that material witnesses of police were not examined at all. Solitary witness P.W. Rustam Ali's identity was challenged from the beginning and the prosecution failed to establish that he was the same person. A.S.-I., Shahid was not examined. In support Of his contentions he placed reliance upon the following reported decisions:-- 1998 MLD 518; PLD 1955 Sindh. 65; PLD 1962 Kar. 270; PLD 1958 Dacca 419; PLD 2000 Kar. 181 and 2000 YLR 2173.
12. Mr.Kh.Naveed Ahmed learned counsel for the appellant Rahim Bux adopted the arguments of Mr.Halepota and further added that his client was not identified. He referred to Exh.14 and the deposition of Judicial Magistrate Mr.Rehmatullah, (P.W.1), and further contended that the appellant Rahim Bux had filed a Constitutional Petition No,268 of 2000, which was however, disposed of as infructuous. He argued that his client was innocent. He relied upon:-- ' PLD 1995 SC 1; 1998 SCMR 752; 1995 SCMR 1793; PLD 1999 ' SC 558 and PLD 1998 Lah. 318 and also unreported decision on Criminal Appeals Nos.2, 4, 5 of 1998, 5 and 11 of 1997.
13. Ms.Aftab Bano, learned counsel for the appellant Dhani Bux while adopting arguments advanced by her companion defence counsel further added that his client was innocent and was falsely implicated by police.
14. Mr.Habib Ahmed learned A.A.-G. Appearing for the State did not support the conviction of the appellant for the offence of robbery under section 392, P.P.C. But contended that conviction under section 7-B of the Act can be awarded, while setting aside conviction under section 392, P.P.C. A.A.- G. So far as the other offences are concerned was not able to controvert the contentions of appellant's counsel relating to the jurisdiction of the trial Court.
15. Sections 7-A and 7-B of the Act have been omitted, re-numbered and introduced into sections 6 and 7 of the Act through amending Ordinance No,XXIX of 2000 published in the Gazette of Pakistan of July 24, 2000, which are reproduced below:- "6. Terrorist act: --- commits an act of vehicle snatching or lifting, damage to, or destruction of, State or private property, random firing to create panic, charging Bhatha or criminal trespass (illegal Qabza).
"7 Punishment for terrorist act. Whoever commits a terrorist act-- referred to in paragraph (d) of section 6 shall be punished with imprisonment for a term which may extend to seven years and with fine."
16. The omitted sections 7-A and 7-B may also be important for ready reference and same are reproduced as under:-- Section 7-A of the Anti-Terrorism Act, 1997:-- "[7-A. Creation of civil commotion-- 'Civil commotion' means creation of internal disturbances in violation of law, commencement or continuation of illegal strikes, go-slows, lockouts, vehicle- 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)."
' Section 7-B Creation of civil commotion:-- "7-B. 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]."
17. The schedule to the Act as in force on the date of incident i,e, 11-11-1999 makes an offence of robbery as scheduled offence only if committed in the manner mentioned below and is covered under Article 2(c), which is reproduced hereinunder:--
(c) Sections 392 to 395, 397 or 398 if in committing the offence, the offender or any of the offender commits the offence of the murder or Zina-bilJabr punishable under sections 6, 7, 8 or 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979) and committed after the commencement of this Act.
18. It would clearly seem, therefore, that an offence under section 392, P.P.C. Simpliciter and independent of above A offences, is not a scheduled offence and thus not punishable under this Act. The offences under section 353, P.P.C. Or 324, P.P.C. Also do not find place in the Schedule.
19. Again an offence under the Pakistan Arms Ordinance, 1965 has though been made punishable under this Act, yet there is a rider placed permitting trial of such offence, provided such offence is committed conjointly with any other offence punishable under this Act. It is obvious, therefore, that an offence under the Pakistan Arms Ordinance, 1965 cannot be tried by an Anti-Terrorism Court if it has not been committed conjointly with an offence punishable under the Act. Since offences under sections 353/324, P.P.C. Have not been made punishable under the Act, an offence under the Arms Ordinance like the aforesaid offences under P.P.C., would not be triable by an Anti-Terrorism Court.
20. Reverting to the merits of case, upon perusal of evidence there seems to be sufficient convincing evidence consisting of complainant/driver Muhammad Nawaz (P.W.5) and Rehmatullah, Judicial Magistrate (P.W.1). Complainant Muhammad Nawaz has identified appellant Dhani Bux in the identification test parade so also in the Court Hall, deposing under the oathd.
Same is supported by the evidence of Judicial Magistrate. There is also evidence of recovery consisting of Mashir Rustam Ali (P.W.3) and Inspector/S.H.O., Muhammad Han Zaman (P.W.1) examined in connected case No,378 of 1999. Complainant has not identified the appellant Rahim Bux at the time of identification before the Magistrate but has identified him in Court Hall, stating that he did not identify Rahim Bux due to fear. The testimony of witness who does not identify the accused at identification test and identifies him in Court at trial is open to great doubt and same cannot be implicitly relied upon.
21. The prosecution case is that there were only two persons who robbed the car.
22. Hardly any evidence has come on record in this case against Nasir for holding him responsible for the offence of vehicle-snatching.
23. Resultantly, we find appellant Dhani Bux guilty of the offence. The case against the appellant Rahim Bux and Nasir has not been proved by the prosecution.
24. Accordingly, for the aforesaid reasons, we had disposed of the above appeals by our short order dated 12-12-2000, which forms the result of these appeals, as under:- "We have heard the learned counsel for the parties.
(1) For the reasons to be recorded later on, we accept the appeal of the Appellants Rahim Bux and Nasir and dismiss the appeal of Dhani Bux arising out of Special Case No,377 of 1999 (F.I.R. No,415 of 1999 of Police Station, Clifton). We set aside the sentence of adpellant Dhani Bux under section 392, P.P.C. And modify his sentence to seven years R.I. Under section 7-B of the Anti-Terrorism Act and to fine of Rs,25,000 in default of payment of fine to undergo R.I. For six months more. We extend benefit of section 382-B, Cr.P.C. To the appellant-convict Dhani Bux. The appellants Nasir and Rahim Bux shall be released forthwith in case/Crime F.I.R. No,415 of 1999 of Police Station Clifton, if not required to be detained in any other case.
(2) We further accept the appeals of appellants/convicts and set aside the sentences passed against them in Special Case No,378 of 1999 (F.I.R.
No,416 of 1999 of Police Station Clifton) and direct their retrial by the learned Sessions Judge, Karachi South.
(3) We further set aside the conviction and sentences passed against the appellants under section 13-D of the Arms Ordinance in Special Cases Nos.379 of 1999 (F.I.R. No,417 of 1999 of Police Station Clifton), 380 of 1999 (F.I.R. No,418 of 1999 of Police Station Clifton) and 381 (F.I.R. No,419 of 1999 of Police Station Clifton) and direct their separate trial by the learned Sessions Judge, Karachi South."