' RAHMAT HUSSAIN JAFFERI, J.--- The present appeal is directed against the judgment dated 17-10- 2000 passed by the Anti-Terrorism Court No,111, Karachi, in Special Case No,136 of 2000 (The State v.
Azeem Shakir and another), under section 386/324/353/34, P.P.C. Read with section 7 of Anti- Terrorism Act, 1997 (hereinafter would be referred to as the "Act, 1997") and. Special Case No,137 of 2000 (The State v. Azeem Shakir), under section 13-D of the Pakistan Arms Ordinance, 1965 (hereinafter referred to as the "Ordinance, 1965"), by which the learned trial Court had acquitted the respondents.
2. The facts giving rise to the present appeal are that the complainant' Javed Akhtar was running garment shop in the name and style of Yorker Jeans on Plot No,28/C, Commercial Street No,21, Phase II (Extension), D.H.A., Karachi. On 25-7-2000 at about 2-00 p.m. Three persons went to the shop of the complainant and introduced themselves to be the members of MQM(A) and asked for owner of the shop. One Arif Siddiqui, partner of the complainant informed them that the owner had gone abroad. Thereafter, they left the message that whenever the owner is returned he may be asked to see one Pervaiz at Nine Zero (90). On 26-7-2000 the same culprit's alongwith two other persons went to the shop and from Salesman Kafeel Ahmed they enquired about the owner of the shqp. The culprits directed him that the owner might be contacted on telephone and he might be asked to pay Rs,30,000 to them and they would come on next day at the same time for collecting the money otherwise they would kill the owner of the shop. On 27-7-2000 the complainant Javed Akhtar informed the matter to police, who arranged a police party for arrest of the said culprits and deployed the police officials secretly near the shop. At about 4-45 p.m. The complainant Javed Akhtar, P.W. Arif Siddiqui and P.W. Kafeel Ahmed were present at the shop when three persons went there in a yellow cab. Two of them went inside the shop and demanded money from P.W. Kafeel Ahmed but in the meanwhile the police went there and tried to apprehend the said culprits but they tried to decamp from there in the same taxi by opening fire-arms shots at the police party.
The police retaliated by firing at the culprits, but the culprit who was sitting on the rear seat of the taxi sustained bullet injuries on the right thigh. The said yellow taxi was stopped and police arrested the taxi driver and both the respondents. A .30 bore pistol was recovered from the possession of the respondent No,l. Thereafter, the police brought the accused persons/respondents and the property at the police station where the F.I.Rs, were registered against the taxi driver and the respondents of this appeal.
3. After completing the investigation, police challaned the respondents in the Court of law.
4. Both the above cases were consolidated with each other vide order dated 28-8-2000 and thereafter a charge under sections 386/324/ 353/34, P.P.C. Read with section 7 of the Act, 1997, was framed against both the respondents, whereas a separate charge under section 13-D of Ordinance, 1965, was also framed against the respondent No,1.
5. At the trial the prosecution examined (I) P.W.1 Javed Akhtar, (complainant), (2) P.W.2 Arif Siddiqui (eye-witness), (3) P.W.3 Kafeel Ahmed Khanzada (eye-witness), (4) P.W.4 Muhammad Asif (Taxi driver), (5) P.W.5 Muhammad Sabir, (6) P.W.6 Abdul Sattar, (7) P.W.7 S.-I. Police Imitaz Ahmed Siddiqui and (8) P.W.8 S.-!. Police Rashid Ahmed, in support of the case.
6. The statements of the respondents under section 342, Cr.P.C. Were recorded in which both the respondents denied all the allegations of the prosecution. The respondent No,1 took the plea that one week prior to the incident there was scuffle between him and P.W. Kafeel Ahmed over the installation of Stall at Jumma Bazar but due to intervention of Khalid Munna the matter was amicably settled. On 27-2-2000, viz. The date of incident, he talked with P.W. Kafeel Ahmed in respect of supply of garments from his Stall, therefore. He was called by P.W. Kafeel Ahmed at his shop. He went to the shop of P.W. Kafeel Ahmed where he was offered a cup of tea and sample of garments were shown to him. Thereafter, he asked respondent No,2 to bring samples from the taxi and he went outside the shop to bring the samples but immediately thereafter he heard fire-arm reports as such he came out from the shop and saw the respondent No,2 lying injured on the ground with fire-arm injuries and one Police Officer aimed his gun towards him. The Police Officer enquired from him about his identity card and he informed the Police Officer that injured was his friend. Thereafter, he was arrested and ordered to lie down on the ground, which he complied with.
His personal search was taken but nothing was secured from his possession. Thereafter, some Police Officers in plain clothes came there on motorcycles and then they were taken to the police station alongwith the taxi. Thereafter, P.W. Kafeel Ahmee alongwith another person came to the lock-up and met with the Police Officer. He heard the conversation between Kafeel Ahmed and Police Officer wherein P.W. Kafeel Ahmed had paid Rs,45,000 to the Police Officer. Thereafter, Investigation Officer demanded Rs,3,00,000 from them (respondent) but he could not pay the same. Therefore, he has been involved in the case.
7. The respondent No,2 took the plea that he was dealing in bangles business having a shop in K.D.A. Market, Korangi No,5-1/2, Karachi. He had friendly connections with the respondent No,1, he and respondent No,1 went to the shop of Kafeel, where he was asked by the respondent No,1 to bring samples from the taxi, which was parked outside the shop. When he came out from the shop he sustained fire-arm injuries. There was enmity between respondent No,1 and P.W. Kafeel Ahmed, therefore, he has been implicated in this case.
8. Both the respondents neither examined themselves on oath nor led any evidence in their defence.
9. Pre-admission notices were issued to the respondents, which could not be served upon them, therefore, bailable warrants and subsequently non-bailable warrants for their arrest were issued which were also returned unexecuted. The appeal was admitted on 15-5-2002. Again non-bailable warrants were issued to respondents, which were served upon respondent No,2, who was brought before the Court and was remanded to judicial custody with a direction to furnish surety in the sum of Rs,50,000. Thereafter, non-bailable warrants were repeatedly issued against the respondent No,1 but the same could not be served upon him, therefore, on 15-10-2002 the case of the respondent No,1 was separated from the case of the respondent No,2 and thereafter the arguments were heard in respect of appeal against the respondent No,2.
10. The learned A.A.-G. Has stated that all the eye-witnesses have fully supported the prosecution case in respect of charging Bhatta by the respondents, who were apprehended at the spot. He has further argued that the observation of the learned trial Court that attempt for an offence of charging Bhatta is not covered by Act, 1997, is not correct as the same is covered by Item No,4 of schedule of offences appended to the Act, 1997. He has further argued that the witnesses have also supported the charge of 13-D of Ordinance, 1965, against the respondent No,1, therefore, he has prayed for conviction of the respondent No,2.
11. On the other hand, the respondent No,2 has stated that he has been involved in this case due to enmity with P.W. Kafeel Ahmed and respondent No,1 over the affairs of installation of stall at Jumma Bazar. He has further stated that he had gone to the shop with respondent No,1, as he was his friend, in connection with the sample of garments and when he came out from the shop to bring sample of garments from the taxi, he received injuries from the hands of police without any 'cause or reason and that in order to justify their action the police had prepared this false case.
12. We have gone through the evidence of the prosecution witnesses with the help of learned A.A.- G. And find that the prosecution has examined three eye-witnesses, viz. Complainant Javed Akhtar, P.W. Arif Siddiqui and P.W. Kafeel Ahmed. They have fully supported the prosecution case in respect of charging Bhatta and have given the same details of incident as disclosed in the F.I.R. Which facts are given in the earlier part of the judgment. The witnesses were subjected to the cross- examination but nothing has come on record to discredit their evidence. The respondent No,2 in his statement, recorded under section 342, Cr.P.C., has admitted his presence at the scene of the incident. He has admitted receipt of injuries on his person from the hands of police but took the plea that the respondent No,1 had dispute with P.W. Kafeel Ahmed and they went there to show the sample of garments. In this connection it is pointed out that in the statement recorded under section 342, Cr.P.C. Of respondent No,1, it has been admitted that the dispute with regard to the installation of stall at Jumma Bazar was amicably settled by one Kalia Munna and thereafter the respondent No,2 went to the shop of P.W. Kafeel Ahmed. This admission by itself shows that whatever the dispute between the respondent. No,1 and P.W. Kafeel Ahmed was amicably settled between them and in pursuance of that settlement the relationship between them became cordial, therefore, the respondents went to the scene of incident in respect of the sample of garments, as alleged, as such the stand taken by the respondent No,2 has been falsified.
13. The learned trial Court Judge has also believed the statements of the eye-witnesses on the point of charging Bhatta but came to the conclusion that as Bhatta was not paid to the respondents, therefore, an attempt was made to charge Bhatta and that the said attempt of charging Bhatta was not covered by section 6(d) of Act, 1997, as such the learned Judge had acquitted the respondents. It appears that the trial Court had not considered the other provisions and schedule of offences appended to the Act, 1997 while arriving at the above mentioned conclusion.
14. A perusal of section 6 shows that definition of "Terrorism act" has been given in it and under clause (d), charging of Bhatta has been included within the definition of Terrorism Act. The act of charging Bhatta, as defined under section 6(d) of Act, 1997, has been made punishable under section 7(iii) of Act, 1997, under which the punishment may extend to seven years and with fine. As such the charging of Bhatta, as defined under section 6(d) is an offence which is punishable under Act, 1997, Item No,1 of schedule of offences appended to Act, 1997, shows that any offence punishable under the Act, 1997 is a scheduled offence. The said item reads as under:-- "any offence punishable under this Act."
15. Under Item No,4 of the said Schedule any attempt or conspiracy to commit or any abetment of any of the offences mentioned in Items Nos.1 to 3 have also been made as scheduled offences. The said item reads as follows:-- "Any attempt or conspiracy to commit or any abetment of any of the aforesaid offences."
16. If all the above provisions are read together then it will he clear that the attempt of charging Bhatta is a scheduled offence which is triable by the Anti-Terrorism Courts.
17. After scrutinizing the evidence available on the record, we are of the considered view that the prosecution has proved that the respondent No,2 had gone to the shop of the complainant to collect Bhatta, which they had demanded earlier, but due to the intervention of police the respondent No,2 could not succeed, but was apprehended at the spot after receiving fire-arm injuries from the hands of police. Thus, the prosecution have proved their case to the above extent against the respondent No,2 beyond any shadow of doubt.
18. As regards the charge under sections 386/324/353/34, P.P.C. Is concerned we have examined the evidence of the prosecution witnesses Nos.1 to 7 and have also given our due consideration to the reasoning of the trial Court and find that the trial Court had assigned cogent reasons in disbelieving the evidence on the above point and appreciated the evidence in accordance with the settled principles of criminal administration of justice, therefore, we do not find any reason to interfere with the said findings.
19. After considering the material available on the record, we are of the considered view that the respondent No,2 has committed the offence as defined under section 6(d), punishable under section 7(iii) of the Act, 1997 read with Items Nos. I and 4 of Schedule of Offences appended to the Act, 1997. As an attempt has been made to commit the offence of charging Bhatta, therefore, the respondent No,2 is sentenced to suffer R.I. For 3 years and to pay fine of Rs,20,000 (twenty thousand). In case of non-payment of tine the respondent No,2 is directed to undergo R.I. For six months more. Benefit of section 382-B, Cr.P.C. Is extended to the respondent No,2.
20. The appeal against the respondent No,2 Abdul Rehman is partly allowed to the above extent.
21. As the appeal against respondent No,1 Azeem Shakir is pending, therefore, non-bailable warrants of his arrest be issued. Adjourned.