THE HIGH COURT OF SINDH AT KARACHI

 

Special Criminal Anti-Terrorism Appeal No.239 of 2017

Special Criminal Anti-Terrorism Appeal No.240 of 2017

Special Criminal Anti-Terrorism Jail Appeal No.258 of 2017

 

Present:         

                        Mr. Justice Naimatullah Phulpoto

                Mr. Justice Muhammad Karim Khan Agha

 

Appellants                            :           Kashif Sohail son of Griffin Almas through       M/s. Syed Hafeezuddin and Nadeem             Ahmed Azar, Advocates

 

Respondent                           :           The State through Mr. Muhammad Iqbal            Awan, Deputy Prosecutor General Sindh

 

Date of Hearing                    :           18.10.2018

 

 

J U D G M E N T

 

 

NAIMATULLAH PHULPOTO, J.- Kashif Sohail son of Griffin Almas, appellant, was tried by learned Judge, Anti-Terrorism Court-III, Karachi in Special Cases Nos.290(III)/2015 and 291(III)/2015 for offences under sections 4/5 of the Explosive Substances Act, 1908 read with section 7 of the Anti-Terrorism Act, 1997 and section 23(1)(a) of the Sindh Arms Act, 2013. On conclusion of trial, vide judgment dated 13.10.2017, appellant was convicted under section 7(ff) of the Anti-Terrorism Act, 1997 and sentenced to 14 years R.I. and for offence under section 23(1)(a) of the Sindh Arms Act, 2013 he was sentenced to 7 years R.I. with fine of Rs.5,000/-, in case of default, he was ordered to suffer S.I. for 4 months. Both the sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.PC was extended to the accused.

 

2.                  Brief facts of the prosecution case as disclosed in the FIR are that on 01.07.2015, SIP Malik Muhammad Imtiaz of P.S. Kharadar, along with subordinate staff, was busy in patrolling duty in the area. During patrolling, when police party started checking at Machi Miani Bus Stop, G. Allana Road. It is alleged that at about 0030 hours, police noticed two persons who appeared from Khoja Jammat Khana side on a motorcycle bearing       No.KDA-6168. SIP stopped them for checking. On inquiry, they disclosed their names as Kashif Sohail son of Griffin Almas and Muhammad Shoaib alias Hadi son of Salahuddin. SIP conducted personal search of apprehended persons in presence of PCs Abdul Sattar and Malik Ihsan. On search of Kashif Sohail, SIP secured one Avan Gola from side pocket of his pant and an unlicensed 30 bore pistol loaded with five bullets lying under the belt. On his further search, SIP also secured Rs.450/-, NIC and driving license. While on search of Mohammad Shoaib alias Hadi, secured one white colour plastic shopping bag containing 12 packets of charas weighing 1050 grams. SIP then arrested the accused, sealed the secured pistol along with bullets and kept the hand grenade safely for defusing by BDU. SIP also seized the motorcycle in presence of mashirs and prepared memo of arrest and recovery. Thereafter, accused and case property were brought to the police station where separate cases being FIRs Nos.253/2015, under sections 4/5 of the Explosive Substances Act, 1908 read with section 7 of the Anti-Terrorism Act, 1997 and 254/2015 under Section 23(1)(a) of the Sindh Arms Act, 2013 were registered against the accused on behalf of the State.

 

3.                  Investigation of the cases was entrusted to Inspector Ijaz Hussain Mughal. IO visited place of occurrence, prepared memo of site inspection and sketch of place of occurrence in presence of mashirs and recorded 161, Cr.PC statements of PWs, dispatched the weapon and grenade recovered from accused to the experts for reports, such reports were received by the IO. IO also collected CRO of accused. On conclusion of investigation, challan was submitted against the accused under the above referred sections.   

 

4.                  Trial court ordered joint trial of both the cases in terms of Section 21-M of the Anti-Terrorism Act, 1997.

 

5.                  Charge was framed against the accused under the above referred sections. Accused pleaded not guilty and claimed to be tried.

 

6.                  At trial, prosecution examined PW-1 Muhammad Iqbal at Ex.7, PW-2 Malik Ehsan at Ex-8, PW-3 Ijaz Hussain Mughal at Ex.9, PW-4 Malik Muhammad Imtiaz at Ex.10. Thereafter, prosecution side was closed vide statement dated 28.09.2017 at Ex.11.

 

7.                  Statement of accused under Section 342 Cr.P.C was recorded at Ex.12. Accused denied all the incriminating pieces of prosecution evidence brought against him on record. Accused claimed false implication in the case. Accused raised plea that he was taken away by Rangers from Bolton Market in the evening who detained him for about 7 days; he was interrogated about issuance and distribution of Bhatta Pacrhies. Accused did not give statement on oath in disproof of prosecution allegations. No evidence was led in defence by the accused.

 

8.                  Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 13.10.2017 convicted and sentenced the appellant as stated above. Instant appeals 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 13.10.2017 passed by the trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

 

10.              Syed Hafeezuddin and Mr. Nadeem Ahmed Azar, advocates for the appellant, after arguing the appeals at length submit that they would not press the appeals on merits and prayed for reduction of sentence. It is argued that the appellant is not previous convict and he is sweeper, a sole supporter of a large family.

 

11.               Mr. Mohammad Iqbal Awan, learned DPG argued that prosecution has proved its case against the appellant for offence under Section 5 of the Explosive Substances Act, 1908. Learned D.P.G. frankly argued that ingredients of section 7(ff) of the Anti-Terrorism Act, 1997 are not satisfied from the evidence available on record and further argued that offence under section 23(1)(a) of the Sindh Arms Act, 2013 is proved. Learned D.P.G. admitted that as per record, appellant is not a previous convict, however, recorded no objection in case, sentences are reduced to some reasonable extent.

 

12.              Close scrutiny of the evidence reflects that trial court has carefully appreciated the prosecution evidence and convicted the appellant vide judgment dated 13.10.2017, mainly for the following reasons:

 

            “Perusal of evidence, contradictions and lacunas pointed out by the learned counsel for the accused in my view are not material and do not render the cases of recovery of grenade and pistol as doubtful.

 

            The first objection that BDU did not mention the type of the grenade and the type of explosive substance in the rifle grenade and diameter, length and weight of the grenade, therefore, his evidence may be discarded is without substance. In fact the type of the grenade is very much mentioned which is rifle grenade, however, the mention of type of explosive inside the grenade is not required to be established. Possession of explosive device has to be proved which according to the above evidence stand proved. The BDU has not mentioned in his deposition that there was any description on the grenade, therefore, there is no discrepancy in his evidence regarding omission to mention the description on the grenade. The size and shape of the rifle grenade need not be mentioned as the grenades of each type are of standard size. The memo of arrest and recovery also disclose the recovery of grenade and description found on the pistol is also mentioned in Ex.8/A, therefore, the evidence in this respect does not suffer from any infirmity. Omission to mention colour of pistol is not fatal to evidence of witnesses of recovery of pistol, sufficient identity of pistol has been mentioned in the memo and evidence. Although, the rifle grenade cannot be used without launcher or rifle but the possession of explosive device itself is an offence as defined in Section 2(f) read with section 6(ee) of ATA. Thus the possession of explosive device constitutes an offence u/s 7(ff) ATA. There is no inordinate delay in the examination of grenade and sending the weapon for FSL. Some delay occurs for valid reasons, therefore, delay unless shown as mala fide cannot be treated as to have rendered the case as doubtful. The accused in his statement u/s 342, Cr.PC has stated that he was picked up by Rangers from Bolton Market in the evening and was detained for about seven days. He was interrogated about issuance and distribution of Bhatta Perchies. However neither there is any complaint to any authority from the relatives of accused during his alleged unlawful detention by Rangers nor there is any evidence in proof of his plea.

 

            Since there is no material contradiction or any legal infirmity in the evidence of prosecution witnesses, therefore, I have come to the conclusion that prosecution has proved the recovery of rifle grenade and pistol from the possession of accused Kashif Sohail on 01.07.2015 beyond any reasonable doubt. Point No.1 is therefore, answered as proved.”

 

13.              We have perused the evidence of PW-4 Malik Mohammad Imtiaz, who deposed that on 30.06.2015, he left police station along with his subordinate staff on Government Mobile for patrolling vide Entry No.31 at Ex.10/A. While patrolling, they reached at G. Allana Road near Machi Miani bus stop at about 0030 hours and started snap checking. In the meantime, a motorcycle, carrying two persons appeared, coming from Khoja Jammat Khana bearing registration No.KDA-6168, maker Hi-Speed. They were stopped for checking, on inquiry, the rider disclosed his name as Kashif Sohail son of Griffin Almas. SIP conducted personal search of rider Kashif Sohail son of Ghriffin Almas and secured one rifle grenade from right side pocket of his pant, one 30 bore pistol, loaded with five bullets, was secured from the belt of his pant. On further search, Rs.450/-, original NIC and driving license were also secured from his pocket. Other person disclosed his name as Muhammad Shoaib alias Hadi son of Salahuddin, on his personal search, SIP secured one white colour plastic shopping bag containing 12 packets of charas weighing 1050 grams. SIP sealed the weapon, seized hand grenade and motorcycle and other articles. Such memo of arrest and recovery was prepared by him in presence of mashirs HCs Malik Ehsan and Abdul Sattar. He conveyed information about recovery of grenade through police control to BD office. Thereafter, accused and case property were brought to Police Station where separate FIRs bearing Crime No.253 and 254 of 2015 at Ex.9/A and 9/B were registered against accused on behalf of State. This witness was cross-examined at length but nothing favourable to accused came on record. PW-1, SIP Mohammad Iqbal, deposed that on 02.07.2015, SIO Raja Sanobar produced before him rifle grenade for making it safe and secure, which he did and issued such clearance certificate at Ex.7/C. HC Malik Ehsan was a member of the police party. He stated that on 30.06.2015 he was on duty at P.S. Kharadar from 08:00 p.m. to 08:00 a.m. On 01.07.2015, the appellant and another accused Shoaib alias Hadi were arrested at midnight on motorcycle, he acted as mashir of recovery of one rifle grenade and other articles. He was also cross-examined at length but nothing favourable to accused came on record. Investigation of these cases was carried out by PW-3 Inspector Ijaz Hussain Mughal. IO has deposed that he received copies of aforesaid FIRs for investigation; he visited the place of wardat, sent explosive substance and pistol to experts and received positive reports. After seeking permission from the Home Department, Government of Sindh, he submitted challan in both the cases against the accused.

 

14.              During pendency of appeals, Jail Roll was called. It appears from the Jail roll issued by the Superintendent, Central Prison, Karachi dated 24.01.2018, that appellant has served sentence excluding remissions upto 25.01.2018, 2 years, 6 months and 16 days and earned 10 days’ remission. Unexpired portion of the sentences as on 25.01.2018 was 11 years, 9 months and 26 days.

 

15.              From the above evidence, it is established by cogent evidence that appellant was found in possession of rifle grenade and 30 bore pistol, with five live bullets on 01.07.2015 at 0030 hours at bus stop. Prosecution though established recovery of explosive substance but could not prove that it was act of terrorism. It may be mentioned here that trial court has convicted appellant under section 7(ff) of the Anti-Terrorism Act, 1997 and sentenced to 14 years R.I. but prosecution has failed to prove that appellant had created terror or insecurity in the society at midnight. In the view of above legal and factual position, we are of the view that conviction of appellant under Section 7(ff) of the Anti Terrorism Act, 1997 is not sustainable under law. This Court has already taken the same view in the case of SUNEIL versus The STATE (2018 PCr.LJ 959). Relevant portion is reproduced as under:-

 

6.         As per prosecution case, the appellant was arrested in the night time with the allegation that he was possessing pistol and riffle grenade but it was never proved by prosecution that such allegedly recovered articles were either used prior to alleged date of offence nor it is established that appellant was intending to use the same at subsequent date. In short, the prosecution though established recovery but never established that such recovery was in fact an act of 'terrorism' for which the object design or purpose behind the said act (offence) is also to be established so as to justify a conviction under section 7 of the Act. Reliance can safely be placed on the case of Kashif Ali v. Judge, ATA Court No.II PLD 2016 SC 951 wherein it is held as:-

"12. ..... In order to determine whether an offence falls within the ambit of section 6 of the Act, it would be essential to have a glance over the allegations leveled in the FIR the material collected by the investigating agency and the surrounding circumstances, depicting the commission of offence. Whether a particular act is an act of terrorism or not, the motivation, object, design of purpose behind the said act has to be seen. The term "design", which has given a wider scope to the jurisdiction of the Anti-terrorism Courts excludes the intent or motives of the accused. In other words, the motive and intent have lost their relevance in a case under section 6(2) of the Act. What is essential to attract the mischief of this Section is the object for which the act is designed."

Let us, be specific a little further. The appellant has been convicted under section 5 of Explosive Substances Act so also under 7 subsection (1)(ff) of Anti-Terrorism Act, 1997 i.e second part of section 6(2)(ee) which reads as:

            "6(2)(ee) involves use of explosives by any device including bomb blast (...)"

If one is convicted for one offence i.e 'merely possessing explosive' twice i.e. one under Explosive Substances Act and under the Arms Act, it shall seriously prejudice the guarantee, provided by Article 13 of the Constitution, therefore, it would always be obligatory upon prosecution by first establish 'object' thereby bringing an act of 'possessing explosive' to be one within meaning of second part of section 6(2)(ee) of the Act as held in the case of Kashif Ali supra in absence whereof the punishment under section 7(1)(ff) would not be legally justified particularly when accused is convicted independently for such act (offence) under Explosive Substances Act. In such circumstances, the conviction awarded against the appellant under section 7(i)(f) is hereby set aside.

 

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 reasonably be drawn. Thus, mere possession of explosive substance would not ipso-facto bring the case within the mischief of said the provision of law.

 

17.              From scanning of evidence, we have come to the conclusion that action/evidence collected against the appellant of the recovery of rifle grenade (Avan Gola) 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].

 

18.              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.

 

19.              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.

 

20.              Section 423 Cr.P.C, subsection (b)(2) gives appellate Court sufficient powers to alter the conviction with or without reducing the sentence.

 

21.              Now, question arises that what should be the reasonable extent for reduction of 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.

22.              In the present case, learned Advocates for the appellant did not press the appeals on merits. It is argued that appellant is a poor sweeper, a low paid servant, aged about 38 years and is a sole supporter of large family. Appellant is also not a previous convict. 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."

 

23.              According to the case of prosecution, appellant was arrested at midnight time and from his possession, rifle grenade (Avan Gola) and pistol were recovered. It was night time incident. Prosecution has failed to bring on record that it was the act of terrorism. Ingredients of section 6(2)(ee) of the Anti-Terrorism Act, 1997 are not satisfied from the evidence. Conviction under section 7(ff) of the Anti-Terrorism Act, 1997 legally is not sustainable under the law, the same is set aside. From the evidence available on record, offence under section 5 of the Explosive Substances Act, 1908 is made out. As such, the appellant is convicted under section 5 of the Explosive Substances Act, 1908 and sentenced to 5 years R.I. Appellant has been convicted under section 23(1)(a) of the Sindh Arms Act, 2013 for 7 years R.I; as the appellant is not a previous convict, he is a sweeper and low paid servant and stated to be the sole supporter of large family, we take the lenient view and reduce the sentence of offence under Section 23(1)(a) of the Sindh Arms Act, 2013 from 7 years R.I. to 5 years R.I. However, fine shall remain intact; in case of default thereof, he shall serve S.I. for a period of 4 months. Appellant shall be entitled to the benefit of Section 382-B, Cr.PC.

 

24.              In view of the above, appeals are disposed of in the above terms.

 

 

 

                                                                                                   J U D G E

 

 

 

                                                J U D G E   

Gulsher/PS