' REHMAT HUSSAIN JAFFERI, J.--- This judgment will dispose of Special Anti-Terrorism Appeal No,49 of 2001 and Special Anti-Terrorism Appeal No,50 of 2001 as they arise out of one and the same judgment.
2. The present appeals have been directed against the judgment dated 6-8-2001, passed by Anti- Terrorism Court No,I11 Karachi. In Special Case No,97 of 2001 (State v. Imam Bux and Moazzam Shah) under section 392/34. P.P.C. And section 6(d) of Anti-Terrorism Act. 1997 (hereinafter referred to as the Act, 1997). And Special Case No,98 of 2001 (State v. Imam Bux), under section 13-D of tile Pakistan Arms Ordinance, 1965 (hereinafter referred to as the Ordinance, 1965). By which the learned Judge had convicted both the appellants under section 392/34, P.P.C. Read with section 6(d) Act, 1997 and sentenced them to suffer R.I. For ten years and to pay fine of Rs,50,000 each. In case of non-payment of fine each of the appellants was directed to suffer R.I. For one year more.
The appellant Imam Bux was also convicted under section 13-D of Ordinance, 1965 and sentenced to suffer R.I. For seven years and to pay fine of Rs,50,000. In case of nonpayment of fine the appellant Imam Bux was directed to suffer R.I. For six months. Benefit of section 382-B, Cr.P.C. Was allowed to both the appellants.
3. The facts giving rise to the present appeals arethat on 31-3-2001 at about 3-45 p.m. The complainant Muhammad Saleem had parked his high-roof Suzuki Van bearing No,CA-8450 (hereinafter referred to as the "Vehicle") opposite House No,1/41. Wilayatabad. Mumtaz Marble Lane, Manghopir, Karachi, where his brother Muhammad Naeem and friend Muhammad Yousuf were also standing. Suddenly, two persons came there, out of them one was armed with pistol, who on pistol point snatched the said vehicle from the complainant and both the persons drove away the same. The complainant went to Pak Colony Police Station and lodged the report at about 4-00 p.m.
4. The police started the investigation. On the following day of the incident P.W. Muhammad Naeem was going on his motorcycle from Siemens Chowrangi where he saw the robbed vehicle. Therefore, he informed the incident to Inspector Jehanzeb about the said vehicle. On the said information the police and 'P.W. Muhammad Naeem chased the vehicle. When the vehicle reached the traffic signal of Shershah they found the vehicle stopped due to red signal. Therefore, the police surrounded the vehicle and saw two persons sitting in the vehicle. They were apprehended at the spot. On, inquiries the said persons disclosed their names as Imam Bux and Moazzam Shah, the present appellants. The robbed vehicle was also secured from their possession. From the personal search of the appellant Imam Bux, a T.T. Pistol loaded with magazine containing six live bullets and other personal belongings were secured. The Police prepared Mashirnama of arrest and recovery.
The Inspector Jehanzeb brought the appellants and the property to Police Station SITE where he lodged the report under section 13-D of Ordinance, 1965 against the appellant Imam Bux. The information of recovery of vehicle and arrest of the appellants were conveyed to the Pak Colony Police Station. They came and made the formal arrest of the appellants in this case. On 7-6-2002 the appellants were produced before the Magistrate for holding the identification test through P.W.
Muhammad Saleem and Muhammad Younus.
4-A. After completing the investigation the appellants were challaned before the Administrative Judge, Anti-Terrorism Court, Karachi. The SITE Police after completing the investigation of case under section 13-D of Ordinance, 1965. They also challaned the appellant Imam Bux under section 13-D of Ordinance, 1965, before the Administrative Judge, being the connected case of robbery.
Both the cases were transferred to Anti-Terrorism Court No,III, Karachi, where the cases were consolidated, common charge and evidence was recorded. After considering the material available on the record the trial Court convicted the appellants as mentioned above. The appellants being dissatisfied with the said judgment, have preferred the present Special Anti- Terrorism Appeals.
5. We have heard the learned counsel for the appellants and the learned A.A.-G. On behalf of the State and have perused the material available on record very carefully with their assistance. We have applied our mind to the facts and circumstances of the case.
6. The learned Advocate for the appellants has argued that the ocular testimony is consisted of interested witnesses; therefore, it is not reliable. She has further argued that the identification test is doubtful because it was not held in accordance with law; that the recovery of vehicle is also doubtful for the reason that the appellants could not be riding in the vehicle in the locality from where it was snatched; that there is no connection between the offence under section 13-D of Ordinance, 1965 and the vehicle-snatching, therefore, the trial Court had no jurisdiction to try the case under section 13-D of Ordinance, 1965.
7. On the other hand, the learned A.A.-G. Stated that the prosecution has proved the case of robbery through complainant Muhammad Saleem, P.W. Muhammad Naeem and Muhammad Younus and their evidence is corroborated by the recovery of vehicle from the possession of the appellants and through identification test where both the appellants were identified by complainant Muhammad Saleem and P.W. Muhammad Younus. He has further stated that P.W.
Muhammad Naeem was eye-witness and after the robbery he had seen the vehicle which was chased and both the appellants were apprehended alongwith the vehicle. He has further stated that there is no illegality in holding the identification test, which was conducted in accordance with law and required number of 20 dummies were also mixed up with the two appellants. He has frankly conceded that offence of 13-D of Ordinance, 1965 was not committed conjointly with the offence of vehicle-snatching and there is no evidence on the record to connect the recovery of pistol with the commission of offence of vehicle-snatching, therefore, the trial Court had no jurisdiction to try the said case. He has fully supported the judgment in respect of offence of vehicle-snatching whereas he has not supported the impugned judgment with regard to the offence under section 13-D of Ordinance, 1965.
8. After examining the evidence available on record we find that the prosecution's case is consisted of ocular testimony in the shape of three eye-witnesses, identification test and recovery of property from the possession of appellants. The ocular testimony is consisted of complainant Muhammad Saleem, his brother Muhammad Naeem and his friend Muhammad Younus. Their evidence is unanimous on each and every aspect of the case of snatching the vehicle. All have stated that on 31-3-2001 at about 3-45 p.m. The complainant was sitting in Suzuki .'an bearing No,CA-8450 whereas both the P.Ws. Were present outside the same when two persons came there, out of them one was armed with pistol and thereafter they snatched the vehicle from the possession of complainant on pistol point and ran away. The statement of P.W. Muhammad Naeem further reveals that on the next day of incident he saw the robbed vehicle near Siemens Chowrangi, therefore, it was followed and police was informed. Thereafter, they chased the vehicle which was stopped at the signal of Shershah. The said vehicle was surrounded in which the present appellants were sitting. They were apprehended and the Suzuki van was secured from their possession and pistol was secured from the possession of appellant Imam Bux. This evidence is further supported by S.I.P. Jehanzeb, who stated that on 1-4-2001 he was present alongwith his subordinate staff when they reached at Siemens Chowrangi for checking, P.W. Muhammad Naeem came and pointed out towards a Suzuki van by disclosing that it was robbed on the previous day, therefore, they chased the vehicle which was stopped at the signal of ' Shershah. It was encircled, in which the present two appellants were sitting. They were taken into custody and vehicle was secured. A pistol was also secured from the possession of the appellant Imam Bux. The appellants and the property were brought to the police station where he handed over the same to Abdul Hameed. The appellants and the property was secured by the S.I.P. Nazeer Ahmed of Pak Colony Police Station. The witnesses were cross-examined by the defence counsel but nothing has come on record to discredit their evidence.
9. From the 'above evidence it has been established beyond any shadow of doubt that the vehicle bearing No,CA-8450 was snatched by two persons appellants and the same was recovered from their possession.
10. The connection of the appellants with the snatching of the vehicle has been established through the identification test which was held before the Judicial Magistrate. The statement of Judicial Magistrate Ms. Tasneem Shah reveals that on 7-4-2001, she had mixed up 20 dummies with the two appellants. The P.W. Muhammad Saleem and Muhammad Younus had identified the present appellants to be the culprits of this case. Both the witnesses, complainant Muhammad Saleem and Muhammad Younus have categorically stated in their depositions that they had correctly picked out the present appellants from the identification test. The witnesses were cross-examined but no suggestion was put to them that the appellants were shown to the witnesses before the identification parade or any discrepancy has been found in the identification parade or identifying the appellants by the two witnesses.
11. From the above evidence it has been established beyond any shadow of doubt that the present appellants had snatched the vehicle from the complainant and the same was secured from their possession, therefore, the appellants have committed a offence of vehicle-snatching.
12. The learned Advocate for the appellants has argued that the witnesses are interested, therefore, their evidence cannot he relied upon. No doubt the complainant and P.W. Muhammad Naeem are brothers inter se whereas P.W. Muhammad Younus is their friend but this by itself is not enough to discard their evidence. It is well-settled principle of law that mere relationship between the witnesses is not enough to discard the evidence unless the witnesses have motive to falsely implicate the accused. In the present case there is no enmity whatsoever between the appellants and the P.Ws. Nor any enmity has been suggested. The witnesses are natural witnesses. Their presence at the place of incident cannot be doubted nor their evidence has been challenged that they were not present at the place of incident. As such the witnesses have no cause or motive to falsely implicate the present appellants.
13. As regards the case under section 13-D of Ordinance. 1965 is concerned, we have examined the file and find that the prosecution has not led any evidence to show that the pistol secured from the possession of the appellant Imam Bux was the same pistol. Which was used in the commission of offence of vehicle-snatching, as such the offence under section 13-D of Ordinance, 1965, was not conjointly committed with the offence of vehicle snatching. The learned A.A.-G. Has also conceded to the above position. As such the trial conducted by the Anti-Terrorism Court No,III, Karachi, in respect of offence punishable under section 13-D of Ordinance, 1965, was without jurisdiction.
14. As regards the sentence, the trial Court has awarded 10 years' sentence, being the maximum sentence of section 392/34, P.P.C. Whereas the offence of vehicle-snatching defined under section 6(d) of the Act, 1997 and punishable under section 17(iii) of the Act, 1997, is up to seven years.
15. In the present case the vehicle was snatched on pistol point by putting the complainant under fear of instant death or instant hurt as such the ingredients of robbery as defined under section 390 of P.P.C. Are attracted, which offence is punishable under section 392. The punishment I provided thereunder is imprisonment which should not be less than three years and more than 10 years and fine and if the robbery is committed on highway then the imprisonment may extend to 14 years. In case, while committing robbery the offender uses any deadly weapon then the imprisonment should not be less than seven years as provided under section 397, P.P.C. Thus, for robbery of every kind of property including vehicle the above mentioned sentence has been provided. While awarding the sentence the Courts apart from other considerations take into consideration the value of property and the sentence may vary according to such value, whereas the offence of vehicle-snatching as defined under section 6(d) of Act, 1997 is punishable under section 7(iii) of Act, 1997 and sentence provided under this section may extend to seven years and fine. From the facts of the case it is clear that the offence is falling within the definitions of section 6(d) of Act, 1997 punishable under section 7(iii) of Act, 1997 and section 390 of P.P.C. Punishable under section 392 read with section 397, P.P.C. Under section 235(2), Cr.P.C. If the offence is falling within two or more separate definitions of any law then the accused can be charged with, and tried at one trial for, each of such offences. In the above situation section 26 of the General Clauses Act would also come into operation which provides that where an act or omission constitute an offence under two or more enactments then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence. Now it is to be seen as to which punishments should be awarded, either. As provided under sections 392/397, P.P.C. Or under section 7(iii) of Act, 1997. While enacting the special law the law-makers knew fully well that the offence of robbery, including the robbery of vehicle, carries more severe punishment but they have reduced the same which may extend to seven years, irrespective of the fact as to whether it is committed on highway or with deadly weapon or value of the vehicle which may vary from few thousands to millions of rupees.
Furthermore, under section 12 of the Act, 1997 an exclusive jurisdiction has been conferred upon the Anti-Terrorism Courts to try the offence of vehicle-snatching. As such the ordinary Courts have no jurisdiction to try the offence of robbery in which the property involved is vehicle. It is also pointed out that offence under section 392, P.P.C. By itself is not a scheduled offence, but as per Item No,5 of the Schedule of Offences if it is committed conjointly with any other offence, then it is triable by the Anti-Terrorism Courts. Thus, the intention of Legislature while enacting the special law was that the offence of vehicle-snatching should not carry punishment more than seven years. It is the duty of the Courts to fulfil and implement the intention of the Legislature. In the present case the same has been expressed, in clear terms, in section 7(iii) of Act, 1997. Even otherwise it is well-settled principle of law that when on any subject if there is general and special law then the provisions of special law would prevail over the general law as such the provisions of section 7(iii) of Act, 1997 would prevail over section 392, P.P.C. Thus the Courts are required to award punishment which should not be more than seven years for the offence of vehicle-snatching as defined under section 6(d) of Act, 1997 while trying such cases under Anti-Terrorism Act. As such the appellants are required to be sentenced as provided under section 7(iii) of the Act, 1997.
16. Above are the reasons of our short order, dated 22-10-2002, by which we had disposed of the appeals in the following manner:-- "... For the reasons to be recorded separately the appeal of Imam Bux and Moazzam Shah Badshah bearing No,49 of 2001 is dismissed with the modification in the sentence that the sentence for the offence' under section 392/34 read with section 6(d), P.P.C. Read with section 7(iii) of Anti-Terrorism Act, 1997, is reduced to 7 years each. The fine of Rs,50,000 each is maintained. But in case of default they should suffer further rigorous imprisonment for 6 months each. Benefit of section 382-B, Cr.P.C.
Already extended to the appellants is IL maintained.
' The Special A.T.A. No,50 of 2001 is allowed since learned Special Court had no jurisdiction to try the offence under section 13-D of the Arms Ordinance; consequently, the conviction and sentence are set aside and the case is remanded to the trial Court for forwarding/transferring the case to the concerned Court of Magistrate having jurisdiction to try the offence within the meaning of section 23 of the Anti-Terrorism Act.
1997."