' RAHMAT HUSSAIN JAFFERI, J.--- The present appeal is directed against the judgment, dated 6-6- 2000, passed by the Anti-Terrorism Court No,IV, Karachi, in Special Case No,35 of 2000. (The State v.
Yaroo and others), under sections 392/411/34, P.P.C. And under section 7(b) of Anti-Terrorism Act, 1997, (hereinafter would be referred to as the "Act, 1997") and Special Case No,30 of 2000 (The State v.Yaroo), under section 13-D of the Pakistan Arms Ordinance, 1965 (hereinafter would be referred to as the "Ordinance, 1965") by which the learned Judge had convicted the appellants as under:--
(a) All the three appellants were convicted under section 392 read with section 34, P.P.C. And sentenced to undergo R.I. For 10 years each.
(b) All the three appellants were also convicted under section 7(b) of Act, 1997 and sentenced to undergo R.I. For seven years each.
(c) Appellant Yaroo son of Muhammad Loung was further convicted under section 13-D, ordinance, 1965, and sentenced to undergo R.I. For seven years.
(d) All the three appellants were directed to pay fine of Rs,5,000 each. In default thereof the appellants were directed to undergo S.I. For six months more.
(e) All the sentences were directed to run concurrently. The appellants were given benefit of section 382-B, Cr.P.C.
2 . The facts giving rise to the present appeal are that the complainant Mst. Yasmin Kamran was plying Suzuki Hi-Roof bearing No,CA-7055 (hereinafter referred to as the "Vehicle"), owned by her sister, to pick the girls from Guru Mandar and to drop them at their offices at Civic Centre, Gulshan- e-Iqbal, Karachi. On 29-2-2000 at about 7-40 a.m. The complainant left her house and proceeded towards Guru Mandar side, when she reached Main Rashid Minhas Road the vehicle was stopped for turning. A person, whose name, she came to know later on as Yaroo, aimed his TT pistol at her and asked her to get down from the vehicle. On her refusal she was pulled down by holding her hair and then the said person sat on the driving seat. In the meantime two other persons came there, whose names she came to know later on as Danish and Maqbool, also sat in the vehicle and drove away the same towards Shell Petrol Pump side. Several persons including one Abdul Qadir, witnessed the incident. Then she took a taxi and chased the appellants. When she reached Shell Petrol Pump she saw the appellants going towards Dalmia side. She also found Rangers personnel present there. She informed them about the incident and thereafter they chased the appellants.
The appellants stopped the vehicle at traffic signal near. Nationa Stadium and on her pointation the Rangers personnel surrounded the vehicle and apprehended the present appellants. They were searched and from the possession of appellant Yaroo, one TT pistol containing six live bullets was secured. The appellants and the property were taken to Rangers Headquarters and then to police station where the complainant lodged the report, which was recorded by S.-I. Abdul Aziz of Aziz Bhatti Police Station. An F.I.R. Under section 13-D of Ordinance, 1965, was lodged against the appellant Yaroo. The S.-I. Also secured the property viz. Pistol alongwith six live bullets and the Suzuki Hi-Roof.
3. The police after usual investigation challaned the appellants before the Administrative Judge, Anti-Terrorism Courts, Karachi, from where the cases were transferred to Anti-Terrorism Court No,IV, Karachi for trial.
4. On 8-5-2000, a charge under sections 392/411/34, P.P.C. And under section 7(b) of Act, 1997, was framed against all the appellants whereas a charge under section 13-D of the Ordinance, 1965, was also framed against the appellant Yaroo. The appellants pleaded not guilty.
5. In support of the case the prosecution examined P.W.1 Yamin Kamran (complainant). P.W.2 Ghulam Qadir (eye-witness), P.W.3 Muhammad Idrees (eye-witness) P.W.4 Pervaiz Kadir Memon, Judicial Magistrate, P.W.5 A.S.-I. Athar Abbas (Mashir of the arrest of the appellants and recovery of property). P.W.6 Mir Ahmad (Hawaldar of Rangers). P.W.7 Shahid Iqbal (Sepoy of Rangers), and P.W.8 Abdul Aziz (A.S.-I. Aziz Bhatti Police Station and I.-G.).
6. The appellants in their statements, recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. Appellants Yaroo and Maqbool, in their further statements, stated that on 17-2- 2000 they came to Karachi from Thatta. They alighted from the bus at Drigh Road Bus Stop, where Rangers party apprehended them. The Rangers personnel enquired from them about their N.I.Cs.
And then they were involved in this case. The appellant Danish, in his further statement, stated that he had been falsely implicated in this case. All the three appellants examined themselves on oath.
They gave the same facts as given by them in their statements recorded under section 342, Cr.P.C.
They did not examine any witness in their defence.
7. After considering the material available on the record the trial Court convicted the appellants as mentioned above under the impugned judgment.
8. The appellants were dissatisfied with the said judgment, therefore, they have preferred the present appeal.
9. We have heard the appellants Yaroo and Danish in person and Mr. Abdul Shakoor Abbasi, Advocate for the appellant Maqbool. Appellants Yaroo and Danish have not pressed their appeal on merits but requested for reduction in the sentence. The Advocate for the appellant Maqbool has argued that memo. Of arrest of the appellants and recovery of property was not prepared at the place of recovery but it was prepared at the police station; that there are contradictions in the evidence of witnesses with regard to the taking the appellants to Rangers Headquarters and then to police station; that the complainant had not identified the appellants in the identification test held before the Magistrate; that the taxi driver has not been examined and that the vehicle was not produced before the Court. He has relied upon a case of Nazar Ali v. The State PLD 1992 Kar.
140.
10. On the other hand, Mr. Habib Ahmed, Assistant Advocate-General, Sindh has argued that the appellants were apprehended by the Rangers personnel, who are not the Police Officers within the meaning of Criminal Procedure Code, therefore, they were not authorised to investigate the case or to prepare the memo. Of arrest of the appellants and recovery of the property but when the appellants and the property were produced before the Police Officer, the Mashirnama was prepared by him; that the contradictions pointed out by the Advocate for the appellant Maqbool are minor in nature which have not affected the main incident; that the identification test was not necessary as the appellants were apprehended at the spot just after the incident in presence of complainant; that there was no necessity to examine the taxi driver as the case was established and that the vehicle was produced before the Court where P.Ws. Nos.3, 6, 7 and 8 identified the vehicle to be the same; that the authority quoted by the appellant's counsel, which is in respect of non-production of property in Court, is not applicable as in this case the property was produced before the Court.
11. We have given our due consideration to the arguments and have gone through the evidence with the help of learned Advocate for the appellant Maqbool and the learned A.A.-G.
12. The case is based upon the ocular testimony and the recovery of property. In order to prove the case the prosecution examined complainant Yasmin Kamran, who fully supported the prosecution case and above the same facts are disclosed by her in her F.I.R. Which facts are already mentioned above. The appellants were apprehended in her presence, just after the incident, with the help of Rangers. Two Rangers personnel, viz. P.W.6 Mir Muhammad and P.W.7 Shahid Iqbal were examined.
They both fully supported and corroborated the complainant by stating that on the information of the complainant they chased and surrounded the Suzuki Hi-Roof and apprehended the present appellants secured the vehicle and from the search of the appellant Yaroo one TT pistol and six live bullets were secured. Their evidence is further supported by Mashir Athar Abbas and the Investigating Officer/S.-I. Abdul Aziz, before whom the appellants and the property were produced, which were secured under the Mashirnama. The statement of Mr. Yasmin Kamran is further supported and corroborated by two independent witnesses namely P.W.2 Ghulam Qadir and P.W.3 Muhammad Idrees. The evidence of P.W.2 is on the point that he saw the robbery when the appellants were snatching the vehicle from the complainant on pistol point. The statement of P.W.3 reveals that he witnessed the incident of apprehension of appellants and recovery of the vehicle and securing of pistol from one of the appellants Yaroo. P. Ws. Nos.3, 6, 7 and 8 saw the vehicle in Court and identified the said vehicle to be the same which was robbed by the appellants and secured from their possession.
13. From the evidence available on the record it has been established beyond any shadow of doubt that the vehicle was snatched from the complainant on pistol point by three culprits, who were chased by the complainant and then; by Rangers personnel, just after the incident. The appellants were apprehended near National Stadium and robbed vehicle was secured from their possession and a pistol and six live cartridges were secured from the possession of the appellant Yaroo. All the witnesses were subjected to cross-examination but nothing has come on record to discredit their evidence. The witnesses are natural and independent. They have no enmity whatsoever with the appellants nor any enmity was suggested to them in the cross-examination. They have no reason, cause or motive to falsely implicate the present appellants with the commission of this crime.
14. The learned Advocate for the appellant Maqbool, has argued that Mashirnama of arrest of the appellants and recovery was not prepared at the place of incident but it was prepared at the police station. In this connection it is pointed out that the appellants were apprehended and property was secured by Rangers personnel. They are not the Police Officers and were not investigating the case, therefore, they were not required to prepare the Mashirnama of arrest and recovery as it comes within the ambit of collecting of evidence which is collected in the process of investigation of a case under the Cr.P.C. Under the law investigation can only be conducted under the Criminal Procedure Code and that too by the officers authroised to do so. The Rangers being the Law Enforcement Agency are not the Police Officers within the meaning of Cr.P.C., therefore, they cannot investigate the case, hence they were not required to prepare the Mashirnama.
Reliance is placed on the case of Muhammad Sadiq Umrani v. Government of Sindh and 3 others PLD 1993 Kar. 735 and Abdul Rasheed v. The State PLD 1996 Kar.
16. As such non-preparation of Mashirnama of arrest and recovery at the place of incident by the Rangers Personnel is not fatal to the prosecution case.
15. As regards the contradiction pointed out by the Advocate for the appellant Maqbool with regard to taking the appellants and the property first to Rangers Headquarters and then to police station.
It is pointed out that these contradictions are minor in nature and they have nothing to do with the main offence. The story of the prosecution has not been changed through these contradictions as such these contradictions, have no adverse effect on the prosecution.
16. As regards the argument of the Advocate for the appellant Maqbool with regard to the identification test, it is pointed out that the appellants were apprehended just after the incident in presence of the complainant; therefore, the identification test in such circumstances carries no weight. However, the Magistrate stated that the complainant had not identified the appellants in the identification test but in a question asked by the Court the Magistrate disclosed that the complainant informed him that she was threatened by the appellants, therefore, she did not identify them in the identification parade. Be that as it may, under the law identification test is not required to be held in the present circumstances of the case, therefore, the admission of the complainant in such circumstances carries no weight.
17. As regards the arguments of learned counsel for the appellant Maqbool that the property was not produced before the trial Court. In this connection it is pointed out that the evidence of P.Ws.3, 6, 7 and 8 clearly show that the property was available in the Court and they identified it to be the same vehicle which was involved in the case. Moreover, the property is vehicle which can be identified through its registration number. The registration number has been mentioned by the complainant in her deposition. No doubt this vehicle was not shown to the complainant at the time of her examination but the property was handed over to her as it was snatched from her, therefore, the identity of the property in this case is not doubtful in the present circumstances of the case. As such the authority quoted by the Advocate for the appellant Maqbool is not applicable.
18. As regards the non-examination of the taxi driver the prosecution is not required to examine each and every witness in the case, it is the quality and not the quantity of the evidence which decides the fate of criminal cases. As such no adverse inference can be taken for non-examination of taxi driver in the present circumstances of the case.
19. After considering the material available on the record, we are of the view that the prosecutions have proved their case against the present appellants.
20. 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, P.P.C. The punishment provided thereunder is imprisonment which should not be less than 3 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 abovementioned sentence has been provided. While awarding the sentence the Courts apart from other consideration 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 7(a) of Act, 1997 is punishable under section 7(b) 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 definition of section 7(a) of Act, 1997 punishable under section 7(b) of Act, 1997 and section 390 of P.P.C. Punishable under section 392, 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 constitutes 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 punishment should be awarded, either as provided under section 392, P.P.C. Or under section 7(b) 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 in the case of vehicle snatching, 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 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. 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(b) 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 provision of section 7(b) 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 7-A 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(b) of the Act, 1997. The separate sentence awarded under section 392 read with section 34, P.P.C. Was not justified in view of section 26 of General Clauses Act.
21. Above are the reasons for our short order, dated 31-10-2002, by which the appeal was disposed of on the following terms:--
(a) The sentence awarded to the appellants under section 392 read with section 34, P.P.C. Is set aside.
(b) The conviction of the appellants for the offence punishable under section 7 of the Anti- Terrorism Act, 1997, is maintained, but the sentence of imprisonment is reduced to five years. The sentence of fine of Rs,5,000 each is maintained, however, in case of default in payment thereof, the appellants should undergo R.I. For 3 months more.
(c) The conviction of appellant Yaroo for the offence punishable under section 13-D of the Pakistan Arms Ordinance, 1965, is maintained but the sentence of imprisonment is reduced to 3 years' R.I.
' The sentence of appellant Yaroo shall run concurrently. Benefit of section 382-B, Cr.P.C. Extended to the appellant by the trial Court is maintained. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.