HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Jail Appeal No.79 of 2018

Special Criminal Anti-Terrorism Jail Appeal No.80 of 2018

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Rasheed Ahmed Soomro

Date of Hearing : 03.09.2018

Date of Announcement : 05.09.2018

Appellant : Muhammad Younus son of Muhammad Yousuf through Muhammad Ilyas Awan, advocate

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

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Muhammad Younus son of Muhammad Yousuf was tried by learned Judge, Anti-Terrorism Court-XVIII, Karachi in Special Cases Nos.2072/2015 and 2073/2017. On conclusion of the trial, vide judgment dated 26.02.2018 convicted the appellant under sections 4/5 of the Explosive Substances Act, 1908 and sentenced him for 14 years R.I. and under section 7(ff) Anti-Terrorism Act, 1997 he was sentenced to 14 years R.I. The appellant was also convicted under section 23(1)(a) of the Sindh Arms Act, 2013 for 7 years R.I. with fine of Rs.500/-, in case of default, he was ordered to suffer S.I. for 3 months. All the sentences were ordered 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 16.11.2017 ASI Rana Zameer Hussain of P.S. Baghdadi left police station along with his subordinate staff for patrolling. It is alleged that present accused was found in suspicious manner on 16.11.2017 at 01:30 hours at D.D. Chaudhry Road, Dhobi Ghat, Baghdadi, Lyari, Karachi and he was surrounded and caught hold. On inquiry, he disclosed his name as Muhammad Younus son of Muhammad Yousuf. Due to non-availability of private persons, his personal search was conducted by ASI Rana Zameer Hussain in presence of PCs Imtiaz Ali and Hafeez-ur-Rehman. It is alleged that upon personal search of the accused, one hand grenade with detonator and one pistol bearing No.33023012, with loaded magazine, containing 4 live bullets were recovered, for which he had no license. Pistol was sealed at the spot. Mashirnamma of arrest and recovery was prepared. Thereafter, case property and accused were brought to the police station where two FIRs 244/2017 under 4/5 Explosive Substances Act, 1908 read with section 7 of the Anti-Terrorism Act, 1997 and 245/2017 Spl. Cr. A.T.A. No.79 of 2018 were registered on behalf of the State against the accused. Hand grenade was defused by the expert and pistol was sent to the expert for report during the investigation.

3. After usual investigation, challan was submitted against the accused under sections 4/5 Explosive Substances Act, 1908 read with section 7 of the Anti-Terrorism Act, 1997 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. Trial court framed charge against the accused in Crime No.244/2015 under Sections 4/5 Explosive Substances Act, 1908 read with section 7 of the Anti-Terrorism Act, 1997 and Crime No.245/2017 under section 23(1)(a) of Sindh Arms Act, 2013. Accused pleaded not guilty and claimed to be tried.

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

6. 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 present cases. Accused raised plea that he was arrested by the Rangers on 02.11.2017 from his house thereafter his custody was handed over to police and police demanded illegal gratification from him, to which he refused. Accused did not examine himself on oath in disproof of prosecution allegations nor led any evidence in his defence.

7. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 26.02.2018 convicted and sentenced the appellant as stated above. Special Anti-Terrorism Jail Appeals Nos.79 and 80 of 2018 were filed by the appellant against the

conviction and sentences recorded against him separately. We have decided to decide both the appeals by this single judgment as both the appeals have arisen out of same judgment.

8. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 26.02.2018 passed by the trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Learned advocate for appellant after arguing the appeal at some length submits that he would not press the appeal on merits and prayed for reduction of sentence. Learned counsel mainly argued that appellant is sole supporter of the family and he is the first offender. He has further argued that there is overwriting in the entry produced by bomb disposal expert of his arrival at the police station for which the prosecution has no explanation. He has further argued that investigation officer failed to reach on the conclusion that for what purpose the appellant was carrying hand grenade at midnight time. It is submitted that these circumstances require caution in the matter of the appellant’s sentence. In support his contentions, reliance is placed upon the case reported as Muhammad Yasin Vs. the State (1984 SCMR 866).

10. 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.

11. From perusal of evidence of four prosecution witnesses and reports of the experts we have come to the conclusion that prosecution has proved its case beyond doubt against the appellant but prosecution failed to bring on record that what was the intention of accused for carrying hand grenade and pistol at such odd hours of the night. We are unable to understand as how accused surrendered before police easily when he was armed with deadly weapons. Such circumstances of this case have put us to caution in the matter of appellant’s sentence and in the peculiar circumstances we have decided to reduce the sentence of the appellant while relying upon the case of Muhammad Yasin versus the State (1984 SCMR 866).

12. Section 423 Cr.P.C, subsection (b) (2) gives appellate Court sufficient powers in an appeal from a conviction, (1) reverse the findings and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or sent for trial, or (2) alter the finding maintaining the sentence, or, with or without altering the finding reduce the sentence, or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of section 106, subsection (3), not so as to enhance the same.

13. We have examined the evidence deeply. 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 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. 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].

14. 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.

15. Now the question arises that what will be the reasonable extent for the reduction of the sentence. We are, however, of the view that appellant's action falls within the mischief of section 5 of the Explosive Substances Act. 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, rebuttable 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. 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.

16. As per prosecution case, the appellant was arrested in the night time with the allegation that he was possessing pistol and hand grenade with detonator but it is not proved by prosecution that such recovered articles were either used prior to alleged date of offence nor it is established that appellant intended to use the same at subsequent date. In short, the prosecution though established recovery but could not establish that such recovery was in fact an act of 'terrorism' for which the object design or purpose behind the said act 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."

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."

18. Appellant/accused was arrested at odd hours of night and public was not present. Element of terror or panic is missing in the case. Conviction and sentence under section 7 of the Anti-Terrorism Act, 1997 was not sustainable, the same is set aside.

19. It is necessary to mention here that awarding of punishment is only meant to have a balance in the society because normally all the divine laws speak about hereafter. Thus, conceptually, punishment to an accused is awarded on the concept of retribution, deterrence or reformation so as to bring peace which could only be achieved either by keeping evils away (criminals inside jail) or strengthening the society by reforming the guilty. The law itself has categorized the offences. There are certain offences, the punishment whereof is with phrase 'not less than' while there are other which are with phrase 'may extend up-to', such difference itself is indicative that the Courts have to appreciate certain circumstances before setting quantum of punishment in later case which appear to be dealing with those offences, the guilty whereof may be given an opportunity of 'reformation' by awarding lesser punishment. The concept of reformation should be given much weight because conviction normally does not punish the guilty only but whole of his family/dependents too. A reformed person will not only be a better brick for society but may also be helpful for future by properly raising his dependents. The plea of reduction in sentence however shall not be available to hardened criminals, guilty of serious offences. Reliance is placed on the case of Suneil Vs. The State (2018 PCr.LJ 959).

20. Consequent to above discussion, we dismiss the appeals, but alter the conviction of the appellant from 4 Explosive Substances Act, 1908 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.

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

J U D G E

J U D G E

Gulsher/PS