HIGH COURT OF SINDH AT KARACHI

 

Special Criminal Anti-Terrorism Appeals Nos. 78, 79, 80 & 81 of 2016

 

Present: Mr. Justice Naimatullah Phulpoto

   Mr. Justice Khadim Hussain Tunio

 

 

Date of Hearing        :           19.09.2017.

 

Date of Judgment     :           26.09.2017.

 

Appellants                 :          Akber Ali and Asif Ahmed through Mr.Mohammad Lateefuddin Advocate.

 

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

 

 

JUDGMENT

 

 

 

NAIMATULLAH PHULPOTO, J.- Appellants Akbar Ali and Asif Ahmed were tried by learned Judge, Anti-Terrorism Court No.III Karachi in Special Cases No. 65(III), 66(III) of 2013, Special Cases No. 252(III) & 253(III) of 2015 for offences under Section 4/5 Explosive Substances Act, 1908 read with Section 7 of the Anti-Terrorism Act, 1997 and 23(1)(a) of the Sindh Arms Act, 2013. After full-dressed trial, by judgment dated 20.02.2016, convicted and sentenced the appellants as under:-

 

“30.    Rigorous Imprisonment of seven (7) years awarded to accused Akbar Ali s/o Mohammad Shafiq for the commission of offence punishable under Section 4/5 Explosive Substances Act.

 

31.       Rigorous Imprisonment of seven (7) years and fine of Rs.10,000/- (rupees ten thousands) awarded to accused Akbar Ali s/o Mohammad Shafiq for having possession of an unlicensed weapon i.e. 32 bore Pistol/Revolver, in case of default of fine amount, he shall undergo S.I for six months.

 

32.       Rigorous Imprisonment of seven (7) years awarded to accused Asif Ahmed s/o Abdul Kareem for the offence punishable under Section 4/5 Explosive Substances Act.

 

33.       Rigorous Imprisonment awarded to accused Asif Ahmed s/o Abdul Kareem for seven years and fine amount (ten thousand) and in case of default further S.I for six months for the commission of offence u/s 23(i)A. Sindh Arms Act for having unlicensed 30 bore pistol.

 

However, moveable and immovable properties of both the appellants were ordered to be forfeited with the Government. All 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 07.09.2013, complainant ASI Ghulam Yaseen of PS Civil Lines Karachi left Police station along with his subordinate staff for patrolling. When the police party reached at sewerage line near Abbasi Masjid, where it was alleged that police saw two persons going on foot in suspicious manner. They were apprehended and their names were enquired to which one accused disclosed his name as Akbar Ali and another disclosed his name as Asif Ahmed. Personal search of both the accused was conducted by ASI Ghulam Yaseen in presence of mashirs. It is alleged that from the right side pocket of accused Akbar one 32 bore pistol and two hand grenades bearing No. ARGES Hd-GR-69 and S.No. G/89 were secured and from the possession of accused Asif Ahmed one 30 bore pistol along with magazine containing 5 live bullets was secured so also two hand grenades bearing No. ARGES Hd-GR-69 and S.No. G/89. Both accused disclosed that they had no licenses for explosive substances and weapons carried by them. Mashirnama of arrest and recovery was prepared in presence of mashirs PCs Imtiaz Hussain, Zeeshan Ali and Afzal Ranjha, due to non-availability of the private persons. Case property was sealed at the spot. Accused and case property were brought at police station where separate FIRs bearing Crime No. 77/2013 for offence under Section 23(1)(a) of Sindh Arms Act, 2013, FIR No. 78/2013 for offence u/s 4/5 Explosive Substances Act, 1908 read with Section 7 of Anti-Terrorism Act, 1997, FIR No. 79/2013 for offence under Section 23(1)(a) of Sindh Arms Act, 2013 and FIR No. 80/2013 for offence under Section 4/5 Explosive Substances Act, 1908 read with Section 7 of Anti-Terrorism Act, 1997 were registered against accused on behalf of state.

 

3.         Trial Court framed Charge against accused at Ex.3 under Sections 4/5 Explosive Substances Act, 1908 and Section 23(1)(a) of Sindh Arms Act, 2013. Accused pleaded not guilty and claimed their trial.

 

4.         At trial prosecution examined five witnesses. Thereafter, learned DDPP closed the prosecution side vide Statement at Ex.13.

 

5.         Statements of accused under Section 342 Cr.P.C were recorded at Ex.14 and 15 respectively. Accused claimed their false implication in the present cases and denied the prosecution allegations. Pleas were raised by the accused that they were picked up by the law enforcement agencies before registration of the FIRs. Weapons and explosive substances were foisted upon them. Accused neither examined themselves on oath in disproof of the prosecution allegations nor produced any witness in defence.

 

6.         Mr. Mohammad Lateefuddin Advocate for appellants 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 appellants are poor persons and their families are present in Court today. It is also submitted that appellants are not previous convicts and they are supporters of large families.

 

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

 

8.         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-1 ASI Ghulam Yaseen. He has deposed that on 06.09.2013 he was performing his duty at PS Civil Line, Karachi. On the said date, he along with his subordinate staff left Police Station vide Roznamcha Entry No.20 for patrolling. At 0030 hours on 07.09.2013, police party arrived near Abbasi Masjid, Hijrat Colony Karachi, they saw two persons were going foot towards Hijrat Colony. Police party stopped them. On inquiry, the apprehended accused disclosed their names as Asif Ahmed and Akbar Ali. He further deposed that search of the apprehended persons was conducted, from accused Akbar Ali, complainant recovered one 32 bore revolver rubbed number from right side of his pent and two hand grenades from both the pockets of the pent of accused Akbar Ali. From personal search of accused Asif Ahmed, complainant recovered one 30 bore T.T. Pistol along with magazine loaded with five live bullets from the right fold of his shalwar and two hand grenades. Accused could not produce license/permit of arms and ammunition and hand grenades. Pistol and Revolver were sealed at the spot and accused were arrested in presence of mashirs PCs Imtiaz Hussain, Zeeshan Ali and Driver/PC Afzal Ranjha. Bomb Disposal Squad was informed through wireless message regarding securing hand grenades. The case property and accused were brought at police station, where separate FIRs were registered against them on behalf of state. B.D.U Expert appeared at Police Station and inspected the recovered hand grenades and issued Clearance Certificate and handed over to him. He further deposed that police papers and case property were handed over to SI Ghulam Baig Shahid for investigation.            He was cross-examined by the defence counsel, but nothing fatal to the prosecution was come on record. P.W-2 PC Mohammad Zeeshan has also fully supported the prosecution and stated that he acted mashir of arrest and recovery. He was also cross-examined by the defence counsel but his evidence remained un-shattered in cross-examination. PW-3 Mohammad Aamir Incharge BDU has deposed that he had examined hand grenades recovered from the possession of the accused. PW-4 SIP Ghulam Baig Shahid partly investigated the case, visited place of wardat, recorded 161 Cr.P.C statements of the P.Ws. Inspector Waqar Ahmed completed investigation and submitted challan against accused in the above referred sections.

 

9.         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. Jail Roll received from Senior Superintendent Central Prison Karachi on 10.04.2017 shows that appellants have served sentence upto 03 years, 9 months and 21 days, which is including remission upto 10.04.2017.

 

10.       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 appellants 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].

 

11.       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.

 

12.       In the present case, PW-1 ASI Ghulam Yaseen has deposed that on 07.09.2013, he along with PC Zeeshan Ali and others was performing his patrolling duty. When the police party reached near Abbasi Masjid, Hijrat Colony, present appellants were found in suspicious manner and were caught hold. From accused Akbar Ali one 32 bore revolver rubbed number and two hand grenades and from accused Asif Ahmed one 30 bore Pistol and two hand grenades were recovered. P.W-2 PC Zeeshan has also deposed that two persons in suspicious manner were available near Abbasi Masjid, they were arrested and from accused Akbar Ali one 32 bore revolver and two hand grenades and from accused Asif Ahmed one 30 bore Pistol and two hand grenades were recovered.

 

13.       From the above evidence, it is clear that both the appellants were found in possession of two hand grenades each knowingly, those hand grenades were the explosive substance as certified by PW-3 SIP Mohammad Aamir, an Expert of Bomb Disposal Unit. PW-2 has clearly deposed that both the accused at the time of arrest were found in suspicious manner. We have come to the conclusion that this is a simple case of recovery of hand grenades and 30 bore pistols from the possession of appellants at mid night from a place where no one from the public was present, both mashirs were police constables. 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 appellants 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.

 

14.       In the present case, learned Advocate for the appellants did not press appeals on merits. Families of the appellants were present in Court and stated that appellants are their sole supporters. Learned DPG has admitted that there is no previous record of the appellants that they are not previous convicts 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 appellants 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. Sentence of fine is maintained in above appeals so also forfeiture of moveable and immovable properties. Benefit of Section 382-b Cr.P.C is extended to appellants.

 

            The appeals are disposed of in above terms.

 

 

JUDGE

 

 

 

                                                JUDGE