HIGH COURT OF SINDH AT KARACHI

 

Special Criminal Anti-Terrorism Jail Appeal No.145 of 2017

Special Criminal Anti-Terrorism Jail Appeal No.146 of 2017

 

Present:          Mr. Justice Naimatullah Phulpoto

            Mr. Justice Rasheed Ahmed Soomro

 

Date of Hearing                    :           28.08.2018

 

Date of Announcement       :           07.09.2018

 

Appellant                              :           Aqal Nawab S/o Ameer Nawab   through          Syed Nadeemul Haq, Advocate

 

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

 

 

JUDGMENT

 

 

NAIMATULLAH PHULPOTO, J.- Appellant Aqal Nawab son of Ameer Nawab was tried by learned Judge, Anti-Terrorism Court-IX, Karachi in Special Cases Nos.B-698/2015 and B-697/2015. After full-dressed trial, by judgment dated 17.03.2016, appellant was convicted under sections 4/5 of the Explosive Substances Act, 1908 for 14 years R.I. and for recovery of rifle under section 23(1)(a) of the Sindh Arms Act, 2013 for 7 years R.I. with fine of Rs.25,000/-, in case of default, he was ordered to suffer 2 years R.I. more. 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 13.07.2015 SI Yaqoob Jat along with ASI Salman Noor, PCs Shahzad Saleem, Naveed, Fareed, Orangzaib, Aijaz and Tanveer left P.S. in Government Mobile No.SP-3308 for patrolling duty. It is alleged that during patrolling he received a tip-off about presence of one person/suspect, commander of Tehrik-e-Taliban Pakistan Sawat Shamuzai. It was alleged that he was involved in attack of Malakand University and in killing of some police officials at Bus Stop Roobi Mor (curve) jurisdiction of P.S. Saeedabad whereupon SI Yaqoob along with his staff around 2215 hours’ time reached at the place informed, and on the pointation of the spy found one suspect standing there. He was surrounded and caught hold. The accused on inquiry disclosed his name to be Aqal Nawab son of Ameer Nawab and due to non-availability of private persons in presence of police official mashirs ASI Salman Noor and PC Shahzad Saleem, his personal search was conducted which led to the recovery of one black coloured bag from his right hand which was opened and found one MP5 like rifle 30 bore without number along with ten live rounds in its magazine lying in the same, which was taken into possession. It was of green colour and its magazine of black colour. On further search, one hand grenade bearing No.141 on its clip and some other digits were also found which were invisible, photocopy of CNIC and cash Rs.320/- were also recovered from side pocket of his shirt. Accused disclosed that weapons were unlicensed. The weapons were sealed on the spot. Whereafter, memo was prepared in presence of mashirs and the accused along with property were brought at P.S. where aforesaid crime cases were registered against accused on behalf of the 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.118/2015 under Sections 4/5 Explosive Substances Act, 1908 read with section 7 of the Anti-Terrorism Act, 1997 and Crime No.117/2014 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.7. Accused denied all the incriminating pieces of prosecution evidence brought against him on record. Accused claimed false implication in the present cases. Accused did not examine himself on oath 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 17.03.2016 convicted and sentenced the appellant as stated above. Special Anti-Terrorism Jail Appeal No.145 of 2017 was filed by the appellant against the conviction and sentences recorded against him.

 

8.         The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 17.03.2016 passed by the trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

 

9.         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 only offence under section 5 of the Explosive Substances Act, 1908 is made out from the prosecution evidence; appellant is a poor person; he is not previous convict and he is the supporter of a large family. Learned advocate for appellant has relied upon the case of 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.       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 SI Yaqoob Jatt of CTD Civil Lines, Karachi has deposed that on 13.07.2015 he left police station along with his subordinate staff on Government Mobile No.SP-3308 for patrolling during which he received spy information that one person, who is commander of Tehrik-e-Taliban Pakistan Sawat Shamzai Group and is involved in attack on Malakand University, KPK is available in the area of Saeedabad at Roobi Mor (curve). Thereafter he along with his subordinate staff proceeded towards the pointed place. They reached at the pointed place at 10:15 p.m. and on the pointation of spy found one suspect standing at bus stop, having black coloured bag in his hands. They encircled and apprehended the said person. On inquiry he disclosed his name as Aqal Nawab son of Ameer Nawab. Bag was secured from him, which was opened and checked. One rifle like MP5 loaded with ten live rounds of 30 bore in its magazine was recovered. On further search, one hand grenade bearing No.141 inscribed on its clip. Accused disclosed the weapons to be unlicensed. On personal search of accused, Rs.320/- and photocopy of CNIC were also recovered from side pocket of his shirt. Such memo of arrest and recovery was prepared by him in presence of mashirs ASI Suleman and PC Shahzad Saleem and obtained their signatures. He further deposed that he asked 1/2 passersby to act as mashir but they refused. Thereafter, accused and case property were brought to the police station where separate FIRs bearing Crime No.118/2015, under sections 4/5 of the Explosive Substances Act, 1908 read with section 7 of the Anti-Terrorism Act, 1997 and F.I.R. No.117/2015 under section 23(1)(a) of Sindh Arms Act, 2013 were registered at P.S. CTD Civil Lines, Karachi against accused on behalf of State. This witness was cross-examined at length but nothing favourable to the accused came on record. SI Ghulam Mustafa had deposed that on 15.07.2015 he inspected the explosive substance and submitted such report as Ex.P-1/C and Ex.P-1/D. ASI Salman Noor was a member of the police party. He stated that on 13.07.2015 the appellant was arrested, he acted as mashir of recovery of Rifle 30 bore along with 10 live rounds in its magazine and explosive substance. He was also cross-examined at length but nothing favourable to accused was brought on record. Investigation was carried out in these cases by PW-4 Inspector Sohail Ahmed Yousifzai. 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 usual investigation he submitted challan in both the cases against the accused on 11.08.2015.

 

12.       During pendency of appeals, Jail Roll was called. It appears from the Jail roll issued by Superintendent, Central Prison, Karachi 22.02.2018 that appellant has have served sentence excluding remissions upto 22.02.2018, 2 years, 6 months and 29 days and earned 4 months and 5 days remissions. Unexpired portion of the sentences is 11 years, 6 months and 26 days.

 

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].

 

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.       In the present case, SIP Yaqoob Jat deposed that on 13.07.2015, he left police station along with his subordinate staff for patrolling duty, during patrolling received tip-off about presence of suspect/commander of TTP Sawat Shamzai group, involved in terrorist activities and caught hold accused, who was carrying on a bag, said bag was opened in presence of mashirs and one MP5 life rifle 30 bore without number along with ten live rounds in its magazine and one hand grenade were recovered from it, to which the appellant was no license. Mashirs have fully supported the SI on the point of arrest and recovery. IO has also implicated the accused.

 

16.       From the above evidence, it is established that accused was found in possession of MP5 life rifle 30 bore without number along with ten live rounds in its magazine and one hand grenade. There is nothing on record as to intention of accused. Prosecution has failed to prove element of terror. 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 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. 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."

 

18.       Consequent to above discussion and reasons, 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.

 

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

 

 

                                                                                                   J U D G E

 

 

 

                                                J U D G E   

Gulsher/PS