HIGH COURT OF SINDH AT KARACHI

 

Special Criminal Anti-Terrorism Jail Appeals Nos. 105 & 106 of 2017

 

Present

                                                                                Mr. Justice Naimatullah Phulpoto

                                Mr. Justice Abdul Maalik Gaddi     

 

 

Date of Hearing        :           03.11.2017.

 

Date of Judgment     :           09.11.2017.

 

Appellants                 :          Zeeshan through Ms.Azra Iqbal Advocate.

 

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

 

 

JUDGMENT

 

 

 

NAIMATULLAH PHULPOTO, J.- Zeeshan appellant was tried by learned Judge, Anti-Terrorism Court No.IX Karachi in Special Case No.1123/2016 (FIR No.268/2016 under Section 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997 registered at P.S Landhi) & Special Case No. 1124/2016 (FIR No. 269/2016 under Section 23(1)(a) of Sindh Arms Act, 2013 registered at P.S Landhi). After full-dressed trial, by judgment dated 06.04.2017, appellant was convicted under section 4/5 Explosive Substances Act, 1908 read with Section 7(ff) of Anti-Terrorism Act, 1997 and sentenced to R.I for 14 years with forfeiture of his property if any as required under Section 7(2) of Anti-Terrorism Act, 1997. Appellant was also convicted under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to R.I for 07 years and to pay fine of Rs.50,000/-. In case of default, to undergo R.I for 06 months more. 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 02.07.2016, ASI Jasim Ali along with his subordinate staff was on patrolling duty. At about 0030 hours police party reached at main road Zamanabad near Asghar Hotel, Landhi No.4, they found a suspicious person, who attempted to run away but he was caught hold. On inquiry he disclosed his name as Zeeshan. On his personal search, police recovered one hand cracker and 30 bore pistol with four live bullets from the possession of the accused.  Thereafter, accused and case property were brought at Police Station Landhi where, separate FIRs bearing Crime No.268/2016 under Section 4/5 Explosive Substances Act, 1908 read with Section 7 Anti-Terrorism Act, 1997 and Crime No. 269/2016 under Section 23(1)(a) of Sindh Arms Act, 2013 were registered against accused on behalf of state.

 

3.         After usual investigation, challan was submitted against accused Zeeshan. 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 at Ex. 3 under the above referred sections. Accused pleaded not guilty and claimed his trial.

 

5.         At trial prosecution examined four witnesses. Thereafter, learned DDPP closed the prosecution side vide Statement at Ex. 09.

 

6.         Statement of accused under Section 342 Cr.P.C was recorded at Ex.10. Accused claimed his false implication in the present case and denied the prosecution allegations. Accused examined himself on oath in disproof of the prosecution allegations. However, he also examined DWs Javed Akhtar, Mehfoooz Baig, Zainab and Mohammad Saleem in defence.

 

7.         Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 06.04.2017, convicted and sentenced the appellant as stated above. Separate Special Criminal Anti-Terrorism Appeals were filed by the appellant against the conviction and sentences recorded against him. 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 06.04.2017 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

 

9.         Ms. learned counsel for the appellant after arguing the appeals at length submits that she would not press the appeals on merits and requests for reduction of sentences on the ground that appellant is poor person. It is also submitted that appellant is not previous convict and he is supporter of large family.

 

10.       Mr. Mohammad Iqbal Awan, learned Additional Prosecutor General argued that prosecution has proved cases against the appellant under Sections 4/5 of the Explosive Substances Act, 1908 and under Section 23(1)(a) of the Sindh Arms Act 2013, however, he has recorded no objection in case, sentences are reduced to some reasonable extent. It is admitted by learned Additional Prosecutor General that accused is not previous convict.

 

11.       We have carefully heard learned counsel for the parties and scanned the entire evidence.

 

12.       Evidence of police officials was trustworthy and confidence inspiring. According to the case of prosecution hand cracker and pistol were recovered from the possession of accused by the police on 02.07.2016 at 0030 hours. Hand cracker and pistols were sent to the expert for their opinion. Positive reports were produced before the trial Court. Evidence of police officials has been believed by the trial Court for reasons that evidence of police officials was confidence inspiring. Learned counsel for appellant was specifically asked about enmity or malafide of police officials against the accused, she replied in negative. No inherent defect in the prosecution evidence has also been pointed out by the defence counsel. Appeal is not pressed on merits. During pendency of the appeals, Jail Roll was called. Jail Roll of appellant Zeeshan is received from Senior Superintendent Central Prison Karachi on 02.11.2017, which shows that appellant has served sentence upto 02 years, 01 month and 11 days, including remission upto 02.11.2017.

 

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 appellant 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.       From the perusal of the evidence, it is clear that the appellant was arrested in suspicious condition and was found in possession of hand cracker and a 30 bore pistol. Mashir of arrest and recovery and I.O have clearly deposed that accused at the time of arrest was found in possession of explosive substance and unlicensed pistol. Prosecution has proved its’ case that hand cracker and 30 bore pistol were recovered from the possession of appellant 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).

 

15.       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.

 

16.       In the present case, learned Advocate for the appellant did not press appeals on merits and stated that appellant is sole supporter of his family. Learned Additional Prosecutor General has admitted that there is no previous record of the appellant that he is previous convict in such like case. 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."

 

17.       Consequent to above discussion, we dismiss the appeals, but alter the conviction of the appellant 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 awarded to appellant under Section 23(1)(a) of the Sindh Arms Act, 2013 is also maintained and sentence is reduced to 3 years R.I.  Fine of Rs.50,000/- is reduced to Rs.5000/- in case of default accused/appellant shall suffer S.I for one month. Appellant is extended benefit of Section 382-b Cr.P.C. Both the sentences to run concurrently as directed by trial Court. Appeals are dismissed on merits and sentences are modified/reduced in the above terms.  

 

           

JUDGE

 

 

 

                                                JUDGE