ORDER SHEET

HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals Nos.87, 88, 89 & 90 of 2016

Present

Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Malik Gaddi

Date of Hearing : 25.10.2017.

Date of Judgment : 30.10.2017.

Appellants : Muqarab Khan and Munawar Ali @ Mano through Mr. Ajab Khan Khattak Advocate.

Respondent : The State through Mr. Mohammad Iqbal Awan Additional Prosecutor General.

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Muqarab Khan and Munawar Ali @ Mano appellants were tried by learned Judge, Anti-Terrorism Court No.II Karachi in Special Cases No. 1386 to 1390 of 2017 for offences under Sections 353/324/34 PPC read with Section 7 Anti-Terrorism Act, 1997, Section 23(1)(a) of Sindh Arms Act, 2013 and under Sections 4/5 Explosive Substances Act, 1908 read with Section 7 of the Anti-Terrorism Act, 1997. After full-dressed trial, by judgment dated 09.03.2017, appellants were convicted and sentenced as under:-

“ 73. The charge leveled against the two accused namely Muqarab Khan s/o Daud Khan and Munawar Ali alias Mano s/o Abdul Rehman that had encounter with police stands proved. They are convicted and sentenced to suffer R.I for 3 years u/s 353 of PPC.

74. As to the recovery of unlicensed pistol 30 bore from accused Muqarab Khan is also proved. He is convicted and sentenced to suffer R.I for 7 years u/s 23-I-A of S.A.A with fine of Rs.5000/- in failure to pay the find he will further undergo for one month as well as recovery of Hand Grenade from him is also proved. He is convicted and sentenced to suffer R.I for 14 years u/s 7(1)(ff) of ATA, 1997.

75. As to the recovery of unlicensed pistol 30 bore from accused Munawar Ali is also proved. He is convicted and sentenced to suffer R.I for 7 years u/s 23-I-A of S.A.A with fine of Rs.5000/- in failure to pay the fine he will further undergo for one month as well as recovery of Hand Grenade from him is also proved. He is convicted and sentenced to suffer R.I for 14 years u/s 7(1)(ff) of ATA, 1997.

All the sentences were directed to run concurrently. Benefit of Section 382(b) Cr.P.C was also extended to the accused.

2. Brief facts of the prosecution case as disclosed in the FIR are that on 26.06.2016 at about 0430 hours by S.I Sakhi Mohammad P.S Manghopir are that on the same day at about 0200 hours, he was on illaqa gushat along with police party in two mobiles and one APC. In APC ASI Rana Mohammad Naeem, PCs Rahim Dino, Abdul Ghani, Mohammad Akhtar, Haroon Ali and in Mobile No.3 HC Liaquat Ali and PCs Mumtaz Ali and others were doing search operation in Mir Mohammad Goth Manghopir, when during search operation two persons from a house came out and started firing at the police party to kill them. Police also made firing in self defence and caught hold of them. On enquiry, they disclosed their names as Muqarab and Munawar alias Mano. From personal search of accused Muqarab, police recovered one 30 bore pistol along with three rounds and one hand grenade. From personal search of accused Munawar alias Mano, police recovered a pistol 30 bore with loaded magazine and a hand grenade. Both accused disclosed that they had no licenses for explosive substances and weapons carried by them. Mashirnama of arrest and recovery was prepared in presence of mashirs HC Rana Liaquat and ASI Naseem, due to non-availability of the private persons. Case property was sealed at the spot. Accused and case property were brought at police station where separate FIRs bearing Crime No. 176/2016 under Sections 353/324/34 PPC read with Section 7 Anti-Terrorism Act, 1997, Crime No. 177/2016 for offence under Section 23(1)(a) of Sindh Arms Act, 2013, Crime No. 178/2016 for offence under Section 23(1)(a) of Sindh Arms Act, 2013, Crime No.179/2016 for offence u/s 4/5 Explosive Substances Act, 1908 read with Section 7 of Anti-Terrorism Act, 1997 and Crime No. 179/2016 for offence under Section 4/5 Explosive Substances Act, 1908 read with Section 7 of Anti-Terrorism Act, 1997 were registered at Police Station Manghopir against accused on behalf of state.

3. After usual investigation, challan was submitted against accused Muqarab Khan and Munawar Ali @ Mano. Learned Trial Court amalgamated the aforesaid cases for joint trial in terms of Section 21-M of Anti-Terrorism Act, 1997.

4. Trial Court framed Charge against accused on 04.11.2016 under the above referred sections. Accused pleaded not guilty and claimed their trial.

5. At trial prosecution examined five witnesses. Thereafter, learned DDPP closed the prosecution side vide Statement at Ex. P/29.

6. Statements of accused under Section 342 Cr.P.C were recorded at Ex.P/30 and P/31 respectively. Accused claimed their false implication in the present cases and denied the prosecution allegations. Both the accused examined themselves on oath in disproof of the prosecution allegations. However, they did not produce any witness in defence.

7. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 09.03.2017, convicted and sentenced the appellants as stated above. Separate Special Criminal Anti-Terrorism Appeals were filed by the appellants against the conviction and sentences recorded against them. We intend to decide aforesaid appeals by this common judgment.

8. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 09.03.2017 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Mr. Ajab Khan Khattak, learned counsel for the appellants after arguing the appeals at length submits that he would not press the appeals on merits and requests for reduction of sentences on the ground that appellants are poor persons. It is also submitted that appellants are not previous convicts and they are supporters of large families.

10. Mr. Mohammad Iqbal Awan, learned Additional Prosecutor General argued that prosecution has proved cases against the appellants under Sections 353/324/34 PPC as well as 5 of the Explosive Substances Act, 1908 and under Section 23(1)(a) of the Sindh Arms Act 2013 and recorded no objection in case, sentences are reduced to some reasonable extent. It is admitted by learned Additional Prosecutor General that accused are not previous convicts.

11. We firmly believe that it is prime duty of prosecution to prove its case against the accused beyond any shadow of doubt. We have perused the evidence of PW/Complainant SI Sakhi Mohammad, he along with his subordinate staff was on patrolling duty on 25.06.2016. After 12:00 am, SHO informed police officials about the search operation in the area. Police saw two suspicious persons at 3:00 am, who came out from a house, while seeing the police party, they started firing at the police party. Police party also fired in self defence. SI Sakhi Mohammad has further deposed that police party caught hold the accused, who on enquiry disclosed their names as (1) Muqarab Khan s/o Daud Khan and (2) Munawar Khan alias Mano s/o Abdur Rehman. Personal search of accused was conducted. Police recovered from accused Muqarab Khan 30 bore pistol, loaded with magazine having 5 rounds. Police also recovered one hand grenade from the pocket of his shirt. From personal search of accused Munawar Khan, police recovered one T.T. Pistol without number containing four bullets and from his right side pocket of shirt, police recovered one hand grenade. Pistols were sealed at the spot and BDU was informed from the spot. Accused were arrested and mashirnama of arrest and recovery was prepared at spot. Thereafter, accused and case property were brought to the police station where separate FIRs bearing Crime No. 176/2016 under Sections 353/324/34 PPC read with Section 7 Anti-Terrorism Act, 1997, Crime No. 177/2016 for offence under Section 23(1)(a) of Sindh Arms Act, 2013, Crime No. 178/2016 for offence under Section 23(1)(a) of Sindh Arms Act, 2013, Crime No.179/2016 for offence u/s 4/5 Explosive Substances Act, 1908 read with Section 7 of Anti-Terrorism Act, 1997 and Crime No. 179/2016 for offence under Section 4/5 Explosive Substances Act, 1908 read with Section 7 of Anti-Terrorism Act, 1997 were registered at Police Station Manghopir against accused on behalf of state. This witness was cross examined at length but nothing favourable to the accused came on record. ASI Rana Mohammad Naeem deposed that on 25.06.2016, he was along with other police officials and they were busy in search operation in Mir Mohammad Goth. During search two persons came out from a house and started firing upon the police party. Police also fired in their defence and caught hold the accused. Accused disclosed their names as Muqarab Khan s/o Daud Khan and Munawar Khan alias Mano s/o Abdur Rehman. On personal search, police recovered from accused Muqarab Khan 30 bore pistol, loaded with magazine having 3 rounds and one in chamber. Police also recovered one hand grenade from the pocket of his shirt. From personal search of accused Munawar Khan, police recovered one T.T. Pistol without number containing four bullets and one in Chamber and from his right side pocket of Qameez, police recovered one hand grenade. Pistols were sealed at the spot. Both accused had no licenses of the weapons carried by them. Accused were arrested and mashirnama of arrest and recovery was prepared at the spot. PW-ASI Abid Farooq of Bomb Disposal Unit deposed that on 26.06.2016, he inspected the explosive substance and defused the same. SI Riaz Ahmed deposed that on 26.06.2016, he was entrusted FIRs, case property and custody of the accused for investigation. He inspected the place of wardat and collected 20 empties of SMGs and 7 of 30 bore pistol. He sealed the empties and sent empties and weapons for FSL and received positive report. SIO Naveed Ali Shah further investigated the case. After seeking permission from the Home Department, Government of Sindh, he submitted challan against the accused in the cases.

12. Evidence of police officials was trustworthy and confidence inspiring. Learned counsel for appellants was specifically asked about enmity or malafide of police officials against the accused, he replied in negative. No inherent defect in the prosecution evidence has also been pointed out by the defence counsel. During pendency of the appeals, Jail Roll was called. Jail Roll of appellant Muqarab Khan was received from Senior Superintendent Central Prison Karachi on 05.10.2017, which shows that appellant has served sentence upto 01 year, 04 months and 02 days, including remission upto 05.10.2017.

13. Section 423 Cr.P.C, subsection (b) (2) gives appellate Court sufficient power to alter the conviction with or without reducing the sentence. From scanning of the evidence, we have come to the conclusion that action/evidence collected against appellants falls within the mischief of Section 5 of the Explosive Substances Act. Section 5 of the Act reads as follows:-

5. Punishment for making or possessing explosives under suspicious circumstances. Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be
punishable with imprisonment for a term which may extend to [fourteen years].

11. The ingredients of the offence under this section are:

(i) Making or knowingly having in possession or under control;

(ii) Any explosive substances;

(iii) In circumstances as to give rise to a reasonable suspicion that he is not making or does not have it in his possession or under his control for a lawful object.

14. Even at the cost of repetition, it will be worthwhile to mention here that PW/Complainant SI Sakhi Mohammad on 25.06.2016 along with his subordinate staff left P.S for patrolling duty. SHO informed him at 12:00 am about the search operation in the area. Complainant has deposed that police saw two suspicious persons, who came out from a house and upon seeing the police party, they started firing at the police party. Police party also fired in self defence. SI Sakhi Mohammad has further deposed that police party caught hold the accused, who disclosed their names as Muqarab Khan s/o Daud Khan and Munawar Khan alias Mano s/o Abdur Rehman. On their personal search, police recovered from accused Muqarab Khan 30 bore pistol, loaded with magazine having 5 rounds. Police also recovered one hand grenade from the pocket of his Qameez. From personal search of accused Munawar Khan, police recovered one T.T. Pistol without number containing four bullets and from his right side pocket of Qameez, police recovered one hand grenade. Pistols were sealed at the spot and BDU was informed from the spot. Accused were arrested and mashirnama of arrest and recovery was prepared at spot. Thereafter, accused and case property were brought to the police station where separate FIRs were registered at Police Station Manghopir against accused on behalf of state. This witness was cross-examined at length but nothing favourable to the accused came on record. ASI Rana Mohammad Naeem deposed that on 25.06.2016, he was along with other police officials were busy in search operation in Mir Mohammad Goth. During search two persons came out from a house and started firing upon the police party. Police also fired in their defence and caught hold the accused. Accused disclosed their names as Muqarab Khan s/o Daud Khan and Munawar Khan alias Mano s/o Abdur Rehman. On personal search, police recovered from accused Muqarab Khan 30 bore pistol, loaded with magazine having 3 rounds and one in chamber. Police also recovered one hand grenade from the pocket of his shirt. From personal search of accused Munawar Khan, police recovered one T.T. Pistol without number containing four bullets and one in Chamber and from his right side pocket of shirt, police recovered one hand grenade. Pistols were sealed at the spot. Accused had no licenses of the weapons carried by them. Accused were arrested and mashirnama of arrest and recovery was prepared at the spot. PW-ASI Abid Farooq of Bomb Disposal Unit deposed that on 26.06.2016, he inspected the explosive substance and defused the same. SI Riaz Ahmed deposed that on 26.06.2016, he was entrusted FIRs, case property and custody of the accused for investigation. He inspected the place of wardat and seized 20 empties of SMGs and 7 of 30 bore pistol. He sealed the empties and sent empties and weapons for FSL and received positive report. SIO Naveed Ali Shah further investigated the case. After seeking permission from the Home Department, Government of Sindh, he submitted challan in the cases. In the present case, mahir has fully supported the complainant on the point of arrest and recovery. I.O has also implicated the accused.

15. From the above evidence, it is clear that both the appellants were arrested after encounter and were found in possession of two hand grenades, those hand grenades were the explosive substance as certified by PW- Abid Farooq, an Expert of Bomb Disposal Unit. Mashir of arrest and recovery and I.O have clearly deposed that both the accused at the time of arrest were found in possession of explosive substance and unlicensed pistols. Prosecution has proved its’ case that hand grenades and 30 bore pistols were recovered from the possession of appellants at 3:00 am (mid night) from a place where no one from the public was present, both mashirs were police officials. But prosecution has failed to establish that act of accused created sense of fear and terror in the area. We are of the view that element of terrorism was missing in this case, therefore, conviction of appellants under Section 7(1) of the Anti Terrorism Act, 1997 is not sustainable under law as held in the case of Amjad Ali and others vs. The State (PLD 2017 S.C 661).

16. Section 4 of the Explosive Substances Act, 1908 provides possession or control of Explosive Substances with intent to endanger life or property appears to be an essential ingredient of the said offence. Prosecution must either establish the same specifically or bring on record the facts from which an inference regarding presence of such intention could be reasonably drawn. Thus, mere possession of explosive substance would not ipso-facto bring the case within the mischief of said provision of the law. From the evidence available on record, offence under Section 5 of the Explosive Substances Act, 1908 is made out and ingredients of Sections 4 of the Explosive Substances Act, 1908 are not satisfied. Now question arises that what will be the reasonable extent for the reduction of the sentence. In this regard, we are guided by the judgment of Honourable Supreme Court in the case reported as Mohammad Yasin vs. The State (1984 SCMR 866), whereby Honourable Supreme Court altered appellant’s conviction from section 3 and 4(b) to one under Section 5 of the Explosive Substances Act, 1908 and reduced the sentence from 7 years R.I to 3 years R.I. Relevant portion is reproduced as under:-

8. We are, however, of the view that appellant's action falls within the mischief of section 5 of the Explosive Substances Act. The ingredients of the offence under this section are

(i) making or knowingly having in possession or under control ;

(ii) any explosive substances ;

(iii) in circumstances as to give rise to a reasonable suspicion that he is not making or does not have it in his possession or under his control for a lawful object.

It would be noticed that this section does not require strict proof of the mala fide intention of the person in possession of the explosive. It is enough if the surrounding circumstances are such as to given rise to a reasonable suspicion that the accused did not possess the explosive for a lawful object. The inference is, of course, rebut table but the onus of showing that the inference is not correct lies on the accused. We are of the view that facts proved on the record of this case do give rise to such a suspicion and the appellant has not been able give any plausible explanation to dispel it.

9. Learned counsel for the appellant, however, argued that since the appellant was impliedly acquitted of the charge under section 5, he cannot now be convicted and sentenced for the same, in the absence of any revision or appeal against his acquittal. We are not persuaded to agree with this submission. The accused was duly charged under the said section and bad consequently been put on notice. The fact of possession as well as the circumstances raising reasonable suspicion required by the provision of section 5 were duly proved but since the learned tria1 Judge felt that graver and more serious offences,. under sections 3 and 4 (b) of the Act, stood proved from the evidence on the record, which are punishable with much higher sentence than the one under section 5, he chose to convict him under the said sections, but he did not acquit the appellant of the charge under section 5. He merely omitted to award a sentence there under probably in view of the provisions of paragraph I of section 71, P. P. C. As such it was not necessary that a revision or an appeal against the appellant's acquittal should have been filed.

Section 423, Cr. P. C. subsection (b) (2) gives the appellate Court sufficient power to alter the conviction with or without reducing the sentence. We, therefore, alter the appellant's conviction from sections 3 and 4 (b) to one under section 5 of the Explosive Substances Act, 1908. However, view of the fact that sentence for this offence is lesser than the appellant for which the appellant was convicted by the trial Court, we reduce the sentence from 7 years' R. I. to 3 years' R. I. The sentence of fine is, however, maintained.

The appeal is dismissed with the above modification.

17. In the present case, learned Advocate for the appellants did not press appeals on merits and stated that appellants are sole supporters of their families. Learned Additional Prosecutor General has admitted that there is no previous record of the appellants that they are previous convicts in such like cases. In the case of State through Deputy Director (Law), Regional Directorate, Anti-Narcotics Force vs. Mujahid Naseem Lodhi (PLD 2017 SC 671), in the matter of sentence, it is observed that "in a particular case carrying some special features relevant to the matter of sentence a Court may depart from the norms and standards prescribed above but in all such cases the Court concerned shall be obliged to record its reasons for such departure."

18. Consequent to above discussion, we dismiss the appeals, but alter the conviction of the appellants from Section 4 Explosive Substances Act, 1908 to one under Section 5 of the Explosive Substances Act, 1908 and reduce it to 3 years R.I. Conviction under Sections 353 PPC for 03 years was erroneous, section 353 P.P.C is punishable up to 02 years. Hence, sentence under Section 353 PPC is reduced to one year. However, conviction awarded to both appellants under Section 23(1)(a) of the Sindh Arms Act, 2013 is also maintained and sentence is reduced to 3 years R.I. Sentence of fine is maintained. Appellants are extended benefit of Section 382-b Cr.P.C.

These appeals are disposed of in above terms.

JUDGE