HIGH COURT OF SINDH AT KARACHI
Special Criminal Anti-Terrorism Jail Appeals Nos. 105 &
106 of 2017
Present
Mr.
Justice Naimatullah Phulpoto
Mr.
Justice Abdul Maalik Gaddi
Date of Hearing : 03.11.2017.
Date of Judgment : 09.11.2017.
Appellants : Zeeshan
through Ms.Azra Iqbal Advocate.
Respondent
: The
State through Mr. Mohammad Iqbal Awan Additional Prosecutor General.
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- Zeeshan appellant was tried by learned
Judge, Anti-Terrorism Court No.IX Karachi in Special Case No.1123/2016 (FIR
No.268/2016 under Section 4/5 Explosive Substances Act, 1908 read with Section
7 Anti-Terrorism Act, 1997 registered at P.S Landhi) & Special Case No.
1124/2016 (FIR No. 269/2016 under Section 23(1)(a) of Sindh Arms Act, 2013
registered at P.S Landhi). After full-dressed trial, by judgment dated 06.04.2017,
appellant was convicted under section 4/5 Explosive Substances Act, 1908 read
with Section 7(ff) of Anti-Terrorism Act, 1997 and sentenced to R.I for 14
years with forfeiture of his property if any as required under Section 7(2) of
Anti-Terrorism Act, 1997. Appellant was also convicted under Section 23(1)(a)
of Sindh Arms Act, 2013 and sentenced to R.I for 07 years and to pay fine of
Rs.50,000/-. In case of default, to undergo R.I for 06 months more. 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 02.07.2016, ASI Jasim Ali along with his
subordinate staff was on patrolling duty. At about 0030 hours police party
reached at main road Zamanabad near Asghar Hotel, Landhi No.4, they found a
suspicious person, who attempted to run away but he was caught hold. On inquiry
he disclosed his name as Zeeshan. On his personal search, police recovered one
hand cracker and 30 bore pistol with four live bullets from the possession of
the accused. Thereafter, accused and
case property were brought at Police Station Landhi where, separate FIRs
bearing Crime No.268/2016 under Section 4/5 Explosive Substances Act, 1908 read
with Section 7 Anti-Terrorism Act, 1997 and Crime No. 269/2016 under Section
23(1)(a) of Sindh Arms Act, 2013 were registered against accused on behalf of
state.
3. After usual investigation, challan was
submitted against accused Zeeshan. Learned Trial Court amalgamated the
aforesaid cases for joint trial in terms of Section 21-M of Anti-Terrorism Act,
1997.
4. Trial Court framed Charge against
accused at Ex. 3 under the above referred sections. Accused pleaded not guilty
and claimed his trial.
5. At trial prosecution examined four
witnesses. Thereafter, learned DDPP closed the prosecution side vide Statement
at Ex. 09.
6. Statement of accused under Section 342
Cr.P.C was recorded at Ex.10. Accused claimed his false implication in the
present case and denied the prosecution allegations. Accused examined himself on
oath in disproof of the prosecution allegations. However, he also examined DWs
Javed Akhtar, Mehfoooz Baig, Zainab and Mohammad Saleem in defence.
7. Trial Court after hearing the learned
counsel for the parties and assessment of evidence, by judgment dated 06.04.2017,
convicted and sentenced the appellant as stated above. Separate Special
Criminal Anti-Terrorism Appeals were filed by the appellant against the
conviction and sentences recorded against him. We intend to decide aforesaid
appeals by this common judgment.
8. The facts of the case as well as
evidence produced before the Trial Court find an elaborate mention in the
judgment dated 06.04.2017 passed by the Trial Court and therefore, the same may
not be reproduced here so as to avoid duplication and unnecessary repetition.
9. Ms. learned counsel for the appellant after
arguing the appeals at length submits that she would not press the appeals on
merits and requests for reduction of sentences on the ground that appellant is
poor person. It is also submitted that appellant is not previous convict and he
is supporter of large family.
10. Mr. Mohammad Iqbal Awan, learned Additional
Prosecutor General argued that prosecution has proved cases against the
appellant under Sections 4/5 of the Explosive Substances Act, 1908 and under
Section 23(1)(a) of the Sindh Arms Act 2013, however, he has recorded no
objection in case, sentences are reduced to some reasonable extent. It is
admitted by learned Additional Prosecutor General that accused is not previous
convict.
11. We have carefully heard learned counsel
for the parties and scanned the entire evidence.
12. Evidence of police officials was
trustworthy and confidence inspiring. According to the case of prosecution hand
cracker and pistol were recovered from the possession of accused by the police
on 02.07.2016 at 0030 hours. Hand cracker and pistols were sent to the expert
for their opinion. Positive reports were produced before the trial Court.
Evidence of police officials has been believed by the trial Court for reasons that
evidence of police officials was confidence inspiring. Learned counsel for
appellant was specifically asked about enmity or malafide of police officials
against the accused, she replied in negative. No inherent defect in the
prosecution evidence has also been pointed out by the defence counsel. Appeal
is not pressed on merits. During pendency of the appeals, Jail Roll was called.
Jail Roll of appellant Zeeshan is received from Senior Superintendent Central
Prison Karachi on 02.11.2017, which shows that appellant has served sentence
upto 02 years, 01 month and 11 days, including remission upto 02.11.2017.
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].
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.
14. From the perusal of the evidence, it is
clear that the appellant was arrested in suspicious condition and was found in
possession of hand cracker and a 30 bore pistol. Mashir of arrest and recovery
and I.O have clearly deposed that accused at the time of arrest was found in
possession of explosive substance and unlicensed pistol. Prosecution has proved
its’ case that hand cracker and 30 bore pistol were recovered from the
possession of appellant at 3:00 am (mid night) from a place where no one from
the public was present, both mashirs were police officials. But prosecution has
failed to establish that act of accused created sense of fear and terror in the
area. We are of the view that element of terrorism was missing in this case,
therefore, conviction of appellants under Section 7(1) of the Anti Terrorism
Act, 1997 is not sustainable under law as held in the case of Amjad Ali and others vs. The State (PLD
2017 S.C 661).
15. 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
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.
16. In the present case, learned Advocate for
the appellant did not press appeals on merits and stated that appellant is sole
supporter of his family. Learned Additional Prosecutor General has admitted
that there is no previous record of the appellant that he is previous convict
in such like case. 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."
17. Consequent to above discussion, we
dismiss the appeals, but alter the conviction of the appellant from Section 4
Explosive Substances Act, 1908 to one under Section 5 of the Explosive
Substances Act, 1908 and reduce it to 3 years R.I. Conviction awarded to
appellant under Section 23(1)(a) of the Sindh Arms Act, 2013 is also maintained
and sentence is reduced to 3 years R.I. Fine of Rs.50,000/- is reduced to Rs.5000/- in
case of default accused/appellant shall suffer S.I for one month. Appellant is
extended benefit of Section 382-b Cr.P.C. Both the sentences to run
concurrently as directed by trial Court. Appeals are dismissed on merits and
sentences are modified/reduced in the above terms.
JUDGE
JUDGE