IN THE HIGH COURT
OF SINDH, AT
Present:
Mr. Justice Salahuddin Panhwar; and
Mr.
Justice Yousuf Ali Sayeed
Spl. Crl.
A.T.A. No.166 of 2017
Syed
Qaim Raza Naqvi. … … Appellant
Versus
The
State. … … Respondent
Spl. Crl.
A.T.A. No.167 of 2017
Syed
Qaim Raza Naqvi. … … Appellant
Versus
The
State. … … Respondent
Appellant Through M/s. Khawaja Naveed Ahmed &
Saifee Ali Khan, Advocate
Respondent
Through Mr. Abrar Ali Kitchi,
DPG
Dates
of hearing 26.10.2017
<><><><><>
JUDGMENT
Salahuddin
Panhwar, J: These
appeals have arisen from the common judgment dated 19.07.2017 passed by learned
Anti-Terrorism Court No.IX, Karachi whereby the learned trial Judge convicted
the appellant in two different crimes i.e. (i) Crime No.121 of 2016 P.S. Super
Market Karachi under Section 4 and 5 of Explosives Substance Act r/w section 7
of ATA 1997 and FIR No.1221/2016 u/s 23(1) of the Sindh Arms Act registered at
same police station, and awarded him sentence under the ATA 1997 to suffer R.I.
for 14 years with forfeiture of property and under section 23(1)(a) of S.A.A
for seven years with fine of Rs.50,000/- in case of default of payment appellant
to undergo R.I. for six months.
2. The facts giving rise to these appeals,
briefly stated, are that 02-09-2016 ASI Mohammad Yaqoob was busy on patrolling
duty alongwith his party and during such patrolling, an information from spy
was received about the availability of a suspect at Inside Graveyard C-1 Area,
Liaquatabad; on receipt of information, they went at the pointed place where
they found a suspect to be available there. They arrested him who disclosed his
name as Syed Qaim Raza Naqvi. On personal search of accused led to the recovery
of one shopper containing a remote of white colour one device of black colour
having No.1-1965 written over it one bomb wrapped in yellow colour tape and two
black colour wires rounded with black colour tape and an unlicensed pistol
of 30 bore along magazine loaded with four live bullets from his possession.
The accused and the case property were brought at police station where such
FIRs were registered against the accused for allegedly having been found to be
in possession of an explosive substance and an illicit arm.
3. Consequent upon registration of cases,
the investigation was followed and in due course the challan was submitted
before the Court of competent jurisdiction.
4. Learned counsel for the appellant, after
arguing at length and sticking strongly with non-availability of Section 7 of
the Anti-Terrorism Act, 1997 contends that he would not press the instant
appeals, if this Court considers quantum of sentences, awarded to the appellant
as already undergone inasmuch as the appellant is a first offender and sole
supporter of his family. He referred to Section 5 of the Explosive Act, 1908,
which provides punishment upto 14 years but same does not limit lesser
punishment, hence awarding maximum punishment is unjustified. He also referred
Section 24 of the Sindh Arms Act, 2013 and contends that Section 23 is
misapplied by police and offence, if any, falls within the meaning of Section
24, which provides maximum punishment of 10 years. Learned counsel lastly submits
that, in view of the background of the matter, the case warrants reduction of
sentence.
5. In contra, learned DPG contends that
evidence is unimpeachable and maximum punishment is awarded by the trial Court,
however, if the sentence is reduced, he would not oppose that proposition.
6. We have examined the material available
on record with the assistance of learned counsel for the appellant and State.
7. It is necessary to mention here that
awarding punishment is only meant to have a balance in the society because 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 upto” 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 less
punishment which how low-so-ever, may be, will be legal. 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.
8. Now, we would proceed further. The
Section 23(i)A of Sindh Arms Act, 2013 is prima facie not made out as recovery
from the possession of the appeals falls within meaning of Section 24 of the
Sindh Arms Act, 2013 which legal position is even not disputed by the learned
APG when confronted. Thus, the sentence awarded to the appellant under Section
23(i)A of the Sindh Arms Act, 2013 is converted to one
under Section 24 of the Act.
9. It is the case of the prosecution that
the appellant was arrested duly armed with explosive substance but it was never
proved by the prosecution that the alleged recovered article was
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 failed to discharge its burden 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 Anti-Terrorism Act, 1997. In this
context, reliance can be placed on the case of Kashif Ali v Judge, ATA Court No.II (PLD 2016 SC 951, wherein it is
held as under:-
“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 or 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
motive 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”
10. Let us be specific a little further. The
appellant has been convicted under section 4 & 5 of the Explosive
Substances Act read with Section 6(2)(ee) and Section
7(ff) of the ATA, 1997 and also under Section 23(i)A of the Sindh Arms Act,
2013 directing all the sentences to run concurrently and extending the benefit
of Section 382-B, Cr.P.C. Section 7(ff) is the second part of Section 6(2)(ee),
which reads as under:-
“6(2)(ee)
involves use of explosives by any device including bomb blast(….)”
Therefore,
it would always be obligatory upon the prosecution to first establish “object”
thereby bringing an act of possession explosive to be one within the 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(ff) would not be legally
justified particularly when accused is convicted independently for such an act
(offence) under Explosive Substances Act. In such circumstances, the conviction
and sentence awarded to the appellant under Section 7(ff) is hereby set-aside.
11. The maximum sentence that has been awarded to
the appellant in two crimes is fourteen (14) under Section 5 of the Explosive
Substances Act with forfeiture of his property, which itself provides as “be
punishable with imprisonment for a terms which may extend to fourteen (14)
years”, therefore, it was obligatory upon the trial Court to have appreciated
the attending circumstances too while awarding maximum sentence which prima
facie is not done. The appellant has claimed to be the only bread earner of his
family.
12. Keeping in view, the phrase “may extend
upto” and the circumstances explained herein above, we find it appropriate to
reduce the sentence from fourteen (14) years to two (02) years for offence
under Section 5 of the Explosive Act, 1908. Insofar as the punishment of seven
(07) years for offence under Section 23(i)(A) of the
Sindh Arms Act is concerned, the same is converted to one under Section 24 of
the Act and is reduced to two (02) years. The jail authorities be informed accordingly.
13. With the above directions, the appeals
stand disposed of.
JUDGE
JUDGE
Sajid