HIGH COURT OF SINDH AT KARACHI

 

Special Criminal Anti-Terrorism Appeals Nos.63 and 64 of 2016

 

Present:          Mr. Justice Naimatullah Phulpoto

            Mr. Justice Khadim Hussain Tunio

 

 

Date of Hearing        :           03.10.2017.

 

Date of Judgment     :           04.10.2017.

 

Appellant                 :            Hafeezullah alias Hafiz Khan son of Syed Shah Mehmood through Syed Nadeemul Haq, Advocate

 

Respondent               :           The State through Mr. Mohammad Iqbal Awan DPG.

 

 

JUDGMENT

 

 

 

NAIMATULLAH PHULPOTO, J.- Appellant Hafeezullah alias Hafiz Khan son of Shah Mehmood was tried by learned Judge, Anti-Terrorism Court-II Karachi in Special Cases Nos.B-207/2015 and 478/2014. After full-dressed trial, by judgment dated 14.09.2015, appellant was convicted under sections 4/5 of the Explosive Substances Act, 1908 for 14 years R.I. and for recovery of KK under section 23(1)(a) of the Sindh Arms Act, 2013 for 7 years R.I. Both 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 01.08.2014, ASI Muhammad Dilawar was performing his duty along with his subordinate staff for search of proclaimed offenders and religious terrorists in the Government mobile. It is alleged that ASI received spy information that a person belonging to Tehreek-e-Taliban Pakistan was present near railway track, Machar Colony, Karachi and he was carrying a bag, full of arms, ammunition and explosive substance. On such information, ASI proceeded to the pointed place and reached there at 11:30 hours and saw a person standing there and a bag was hanging in his shoulder. Accused was surrounded and caught hold. On inquiry, he disclosed his name as Hafeezullah alias Hafiz Khan son of Shah Mehmood. Black coloured bag was searched in presence of mashirs, there was a KK without number in it with 15 live rounds and 5 Kgs explosive substance. Accused was arrested and mashirnama of arrest and recovery was prepared in presence of mashirs. Thereafter, accused and case property were brought at police station where separate FIRs bearing Crime No.274/2014, under sections 4/5 of the Explosive Substances Act, 1908 and F.I.R. No.273/2014 under section 23(1)(a) of Sindh Arms Act, 2013 were registered at P.S. CID Sindh, Karachi against accused on behalf of State.

 

3.         After usual investigation, challan was submitted against the accused under sections 4/5 Explosive Substances Act, 1908 and Section 23(1)(a) of Sindh Arms Act, 2013. Both the cases were amalgamated by the trial court under section 21-M of the Anti-Terrorism Act, 1997.

 

4.         Charge was framed against the accused in Crime No.274/2014 under Sections 4/5 Explosive Substances Act, 1908 and Crime No.273/2014 under section 23(1)(a) of Sindh Arms Act, 2013.

 

5.         Amended charge was framed, in which F.I.R. No.273/2014 under section 23(1)(a) of the Sindh Arms Act, 2013 and F.I.R. No.274/2014 under sections 4/5 of the Explosive Substances Act, 1908 and section 6(2)(ee), punishable under section 7(ff) of the Anti-Terrorism Act, 1997 and section 7 Anti-Terrorism Act, 1997, were mentioned. Accused pleaded not guilty and claimed their trial.

 

6.         At trial, prosecution examined four witnesses. Thereafter, prosecution side was closed.

 

7.         Statement of accused under Section 342 Cr.P.C was recorded. Accused denied all the incriminating pieces of prosecution evidence brought against him on record. Accused claimed false implication in the present cases. Plea was raised by the accused that he was picked from his house on 25.07.2014 and his brother had submitted applications to the Honourable Chief Justice, High Court of Sindh at Karachi as well as to the Director Rangers Sindh, IGP Sindh, SSP CID, S.H.O. P.S. Jackson.

 

8.         Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 14.09.2015 convicted and sentenced the appellant as stated above. Separate Special Anti-Terrorism Jail Appeals Nos.63 and 64 of 2016 were filed by the appellant against the conviction and sentences recorded against him.

9.         The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 14.09.2015 passed by the trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

 

10.       Syed Nadeem-ul-Haq, Advocate for appellant 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 appellant is a poor person; he is not previous convict and he is the supporter of a large family.

 

11.       Mr. Mohammad Iqbal Awan, learned DPG argued that prosecution has proved its case against the appellant under Section 5 of the Explosive Substances Act, 1908 and under Section 23(1)(a) of the Sindh Arms Act 2013, however, recorded no objection in case sentences are reduced to some reasonable extent. It is admitted by learned DPG that accused is not previous convict as per record.

 

12.       We firmly believe that it is the duty of prosecution to prove its case against the accused beyond any shadow of doubt. We have perused the evidence of PW-2 ASI Muhammad Dilawar of CID has deposed that on 01.08.2014 he left police station along with his subordinate staff in the search of proclaimed offenders and religious terrorists. When the police party reached within the jurisdiction of P.S. Docks, ASI Muhammad Dilawar received spy information that worker of Tahreek-e-Taliban Pakistan is present near wood godhi, railway track Macher Colony and he was carrying arms and explosive substance. Police reached at the pointed place at 11:30 hours and saw a person, a bag was hanging on his shoulder, he was caught hold by the police.  On inquiry, he disclosed his name as Hafeezullah alias Hafiz Khan son of Shah Mehmood. Personal search of accused. A black coloured bag was secured from his possession in presence of mashirs HC Shahid and PC Abdul Razzak. It was opened and one KK loaded with 15 live rounds and 5 Kgs explosive substance were recovered from the bag. Accused has no permission for carrying on such arms, ammunitions and explosive substance. Accused was arrested and mashirnama of arrest and recovery was prepared. Thereafter, accused and case property were brought to the police station where separate FIRs bearing Crime No.274/2014, under sections 4/5 of the Explosive Substances Act, 1908 and F.I.R. No.273/2014 under section 23(1)(a) of Sindh Arms Act, 2013 were registered at P.S. CID Sindh, Karachi against accused on behalf of State. This witness was cross-examined at length but nothing favourable to the accused came on record. ASI Khizr Hayyat had deposed that on 05.08.2014 he inspected the explosive substance and submitted such report as Ex.P/4. HC Shahid Hussain was a member of the police party. He stated that on 01.08.2014 the appellant was arrested, he acted as mashir of recovery of KK with 15 live rounds and 5 Kgs. explosive substance. He was also cross-examination at length but nothing favour to the accused was brought on record. Investigation was carried out in these cases by PW-4 Imran Ahmed Khan. He has deposed that he received copies of aforesaid FIRs for investigation and he visited the place of wardat, sent explosive substance to the expert and received such report. After seeking permission from the Home Department, Government of Sindh he submitted challan in both the cases.

 

13.       Evidence of police officials was trustworthy and confidence inspiring. No inherent defect in the prosecution evidence has been pointed out by the defence counsel. During pendency of the appeals, Jail Roll was called. It appears from the Jail roll issued by Superintendent, Central Prison, Hyderabad dated 07.08.2017 that appellant has have served sentence excluding remissions upto 07.08.2017, 2 years, 11 months and 28 days and earned 4 months and 5 days remissions. Unexpired portion of the sentences is 10 years, 7 months and 27 days.

 

14.       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].

 

15.       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.

 

16.       In the present case, ASI Muhammad Dilawar deposed that on 01.08.2014 he left police station for arrest of proclaimed offenders and persons involved in the terrorist activities and caught hold accused, who was carrying on a bag on his shoulder, said bag was opened in presence of mashirs and one KK with 15 live rounds and 5 Kgs. explosive substance were recovered from it, to which the appellant was no license. Mashir has fully supported the ASI on the point of arrest and recovery. IO has also implicated the accused.

 

17.       From the above evidence, it is established that accused was found in possession of 5 Kgs. explosive substance and one KK with 15 live rounds. As per item No.4(ii) of the Third Schedule of Anti Terrorism Act, 1997, a case becomes triable by Anti-Terrorism Court, if use of fire arm and explosive substance etc. in Mosque, Imam Bargah, Church, Temple or any other place of worship is involved in the case. We are supported in this view by the judgment of the Honourable Supreme Court in the case of Amjad Ali and others vs. The State (PLD 2017 SC 661). In the view of above legal and factual position, we are of the view that conviction of appellant under Section 7(1) of the Anti Terrorism Act, 1997 is not sustainable under law. 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 the 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 appellant did not press appeals on merits. It is argued that appellant is sole supporter of large family. Learned DPG has admitted that there is no previous record of the appellant that he is previous convict 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."

 

15.       Consequent to above discussion, we dismiss the appeals, but alter the conviction of the appellant from 4 Explosive Substances Act, 1908 read with Section 7(1) of the Anti-Terrorism Act, 1997 to one under Section 5 of the Explosive Substances Act, 1908 and reduce it to 5 years R.I. Conviction under Section 23(1)(a) of the Sindh Arms Act, 2013 is maintained and sentence is reduced to 5 years R.I. Benefit of Section 382-b Cr.P.C is extended to appellant.

 

            The appeals are dismissed with above modification/reduction in sentence.

 

 

                                                                                                   J U D G E

 

 

 

                                                J U D G E  

Gulsher/PS