AIJAZ @ VICKY S/O MUHAMMAD SALEEM (Appellant) VS THE STATE (Respondent)

IN THE HIGH COURT OF SINDH K ARACHI

Spi. Criminal A.T.A. No.2l5 of 2019.

Spl. Criminat A.T.A. N o. 6 ol2019.

Mt,lutticP Mohsnrfl^d Kan Kha Agha Mr. Iusti(.e Khadltx Hussaifl Tuaio,

Appellant: Aiiaz @ Vi.ky S/o. Muhammad saleem through Syed Kashif Ali,

I{espondent: The State throuth Mr' Muhammad Iqbal Awan, Additional Prosecutor General.

Date of hearin$ 08.02,2022.

Date of Announcemenh 15.O2.2U22.

IUDGN,IENT

MOHAMMAD KARIM KHAN AGHA. lr The aPPelant Aiiaz @ vicky S/o. Muharnfiu'.1 Saleem has Preferred these aPPeals against the jud8-ment dated 23.07.2019 Passed by Leatned Anti-Terrorism Court No.v[, Karachi in SPecia.i Cnse NoSl oI 2009 arising out of Crime No.919l2009 !/s.365-A/709/ 34 Prc rcad with s"tio^7 of ATA'1997' and in Spe.ial Case No.85 of 2009 arising out of Cdme No 100/2009 u,/s' 13-D of Arms Oldinance registered at Police Station Saecdabad (AVCC), KaJachi wheteby the appellant was convicted and sentenccd to imprisonmcnt for lile a.long with (orfeitute of his ProPerty for offence under section 6(1)(b), (2)(e) and (2)(n) of 7 A'l A 1997 t/w 6ection 365-4 Prc and also R.l. Ior 7 years a.long with {ine of Rs 10,000/- under Section 1}D of Arms Otdrnance. The benefit of section 382-8 CI'PC was also ertended to the aPPeuant.

2.The brief facts oI the plos€cution case are that on 13 11 2009 at 1320 hours the complainant Nasir Mahmood S/o Mohammad Ashraf tot registered FIR with IrS Korangi IndusEial Area at'out an incident that took place on 29.10,2009 and stated therein that one Farhan Ali S/o ChamanT

t) was kidnapp€d bv thc accused Abdul Ghaffar Ansari, Rana Khalid Mahmood and Aijaz @ Vicky ftom Chanua Chowrangi for ransom lhey demandcd ransom o[ Rs 20 lacs kom the comPlainant on his mobile cell No.0321-2094613from mobile No.03332132455 and on 30102009 after leceiving ransom amount ol Rs.250,000/_ from Chaman at Palacha Chowrangi Sher Shatr they released the abductee' On 13-112009 at 0200 hours, Insp€ctor M()enuddin of AVCC along with Police Party on sPy irformation inteft:ePted a bluc colour caa No AMR-582 acloss Rubi Cineou, Sacedabad and he arlested accused Abtlul Ghaffar Ansari' Rana

Klialid Malmood and Aiiaz @ Vicky. !-rom personal search of accused oI Aijaz @ Vicky one rePeater 12 bore with tlEee cartridges an amount Rs.600/- and one mobile Phone insert with Zone SIM was recovered !'ronr personal search accused Abdul GhaJfar Ansari, PI Moenuddin recovere,l one unlicensed 12 Bore Repeater No'A4463!AC ioaded with 3

live cartridges and from Personal search oi accused Rana Khalid 12 Bore Mahmood alia8 Rana, PI Moenuddin recovereil an unlicensed Repeater No,A-4284FAC, loaded with 4 cartridges and thereaJter' Pl

MoeDuddin rcgistered two seParate FIlls against them'

3.AJte! regiskation of the FtRs antl after comPletion of usual investiSation I.O. submitted chatge sheet against the accused Person'

4.Tt€ pros€cution in order to Piove its case examined l0 witnesses of and exhibited vaious documents and othe! items The 6tatement thc accused wal recorded under S€ction 342 Cr'P C in which hc denied allegatiom levetcd against him. He did not give evidence on oati or call

any DW in suPPort of his defence case.

.5. re(ord AJter hearing the Parti6 and aPPre(iating the evidence on above' the tsial court convictcd the aPPeuant and sentenccd him as stated hcnce, the appellant has filed the.. aPPeaIs against conviction' The {acts of the case as well as evidence Produ'ed belorc the trial

. court find an elaborate mentron in the impugned judgment dated 23.07.2019pa6sed by the trial court and, thereforc, the same rnay not be reprodu(ed hele eo as to 6void duPlicafion and Llfflecessary rePelidon

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7.t-eamcd coun,€l for the aPpellant after reading out the evidence stated that under instructions he did not press the appeal on merits but only sought that the ATA s€ctions of the convictions should be set aside as based on the partiaular facts and circumstanaes of the cas€ tlus $'as a case which did not attract the provisions of the ATA. In cuPPort of his contentions hc placed reliance on the case of Ghulam Hugsain V State

(PLD 2020 SC 51).

8, teamed AIIG contended that the prosecution had Proved ils case against the appellant beyond a reasonable doubt however based on the particular Jacts arrd circumstances oI the case and guided by the case oI Ghulam HuBdain (Supra) he conceded that the ATA was not attracted in this ca6e-

9.Wc have gone tlllough tle evideme and find that the Plosecution has prcved its case against the appellant beyond a reasonable doubt based on reliable, kust worthy and conJidefte iruPiring witness evidence including that of the abudlee who identilied the aPPellant as one of the persons involved in his kidnapping for laisom; tlEt a Part of the ,ansom was paid and the SIM recovered from the appellant linked him to the ransom cdlls; that he was arr$ted rcd handed by the police with an unlicensed weapon who had no enmity with the appellant and no reason to falsely implicate him in a Ialse case and that even the aPPellants ctF accus€d Rana l1ralid Mahmood.who had the same role as the aPPellant had his conviction rnaintained up to the Suprcme Court level and as such the convictionr oI the appellant are rrEintained subject to what is set out below.

10.We find however that based on the Particular facts and chcurnstances of the cas€ that the ATA is not attracted to this case. In the recent case of Hadi Bux V Stale (Giminal Appeal No.348 of 2020) dated 29.11.2021 which also concemed a caBe u/s 365 (A) PPC (kidnap lor ransom) as the instant casc the Supreme Court whilgt hearing an aPPeal aSainst conviction passed by an ATC and upheld by this court upheld the conviction under s€ction 3,65 (A) PPC but acquitted the appellants under the ATA in the {ollowing terrns at paJa's 2, 3 and 4 as set out heEun'ler in mateial partj

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''2........8o1h tJP cowts bllou' tad nBhlly tlqptused and h,ar,taised lht ?nlte el'tlk,rce a d louru! llnt prct?cttt@n lad nnnvd llw tasc aralr,st lht apptllanls antl nlso tottcun?nll| i,,ncludcd rrga tig llv Suth oJ lhc tPfellanls' we an our i,tdEondpnt ilaluaion olTp cldtnce a nble an ol ahle lo ^ tliffe:r .,ulh ttu saitt rcnrluston so lar olfetce tttuler 5?ction 365-A P'iC is anetned. Consequerttl!, this dPpeal to the eateflt ol conoktion undet section #5'A PPC leatl aoith section 34 PPC ic rnaintained Lnd scltetce of irnliso fient fot li/c and lofeihrc of prcpetty lo the e of ntPees f{tf thonsanl ench 'anrl "ttl in cnsc of dtlnull lo hulh/r undttSo s'r nrc"llb rigorout inrytisonr enl u,ili ltrneft ;l xcntn 382 B C.'P-C- is nai lnilvJ and lhe oFynl to lhis ettenl is dis,,issed.

3.HcnDmer, toe obsetue that there is othing o,, r?co/il to oroue thdt this orcTtnencc hat qnv n'tus u)ith tenotkfit nor anu rttitness Baiil so. tn that "nentualit!, in vicl'o oI a laryet'Bench judgrnent ol this Coufi rcPorted as Ghula.n H;Baifl o. th; State @LD 2020 Sc 61), tl@ coflltiction uniler section 7G) of the Act 7gg7 is ttot sustaitable' Consequentl!' the saiil coiaiction a,,d se tence unilet scctlotr 7(d ol the Act, 7gg7 is set asiire and the apPellants dre acqdlted onl.y to thz **nt of 7(e) ol the Aci 7997, Iloweuet as already stated their conoictiin atd serltence unilet section 365-A PPC is,naifitainei|

4.Wilh fhr abfte fioiifcation ii lhe con?iclion a1d sc'tlene' this uppeal is paltly altowed".(bo],l addel,)

11.As such the ATA convictionn are set aside and the aPPellant stands convicted and sentenced as under

(d)Convicted u/s 365 A Prc and sentefted to imPrbonment for IiJe and forfeiture of his ProPerty and

(b)Convicted u/s 13 D Arms Ordinance and sentenced to 7 vearF Rl and fine of Rslo,om and in default of Payment of fine he shall suffer RI fora further 6 months'

'Ihe aDo€llant shall have lhe b'enefit of 5382 (B) Cr'l{ and any -l remissiins apptrcrute to him under the law' he sentences shall run concurrently.

12.The apPeals are dismissed save as modificd in terms of convicholls @t1

JUDGE

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