HIGH COURT OF SINDH AT KARACHI

 

Special Criminal Anti-Terrorism Appeal No. 36 of 2017

 

Present: Mr. Justice Naimatullah Phulpoto

   Mr. Justice Rasheed Ahmed Soomro

 

 

 

Date of Hearing                 :              22.08.2017                                                           .

 

Date of announcement

of judgment                       :              23.08.2017                                                            .

 

Appellant                           :              Mohammad Asif through Mr. Ajab Khan Khattak Advocate.

 

Respondent                        :              The State through Mr. Ali Haider Saleem DPG.

 

 

JUDGMENT

 

NAIMATULLAH PHULPOTO, J.- Appellant Mohammad Asif was tried by learned Judge, Anti-Terrorism Court No.V Karachi in Special Case No. 52 of 2016. By Judgment dated 11.01.2017, appellant Mohammad Asif was convicted  under Section 7(1)(ff) of ATA 1997 and sentenced to suffer R.I for 14 years. Appellant was also extended benefit of Section 382-B Cr.P.C.

 

2.         The brief facts of the prosecution case as disclosed in the FIR are that on 23.12.2015 at about 0115 hours the appellant was found standing at Service Road Babar Kanta, KIA Landhi Karachi holding one shopper in suspicious manner. ASI Mohammad Saeed caught hold the accused. Appellant was searched and from the shopper one local made bomb in tin box was recovered. Appellant was arrested in presence of mashirs and was brought at police station Sharafi Goth where FIR bearing No. 353 of 2015 for offence under Section 4/5 Explosive Substances Act 1908 read with section 7 of ATA 1997 was registered.

 

3.         During investigation, Investigating Officer visited place of vardaat in presence of mashirs and recorded 161 Cr.P.C. statements of PWs. Recovered bomb was sent to CTW FIA and on 25.08.2015 he received positive report. On the conclusion of usual investigation, challan was submitted against the accused under Section 4/5 Explosive Substance Act 1908 read with section 7 ATA.

 

4.         Charge was framed against the accused for offence under Section 7(1)(ff) of ATA 1997. Accused pleaded not guilty and claimed to be tried.

5.         At trial, evidence of prosecution witnesses was recorded. Thereafter, prosecution side was closed at Ex.10.

 

6.         Statement of the accused was recorded under Section 342 Cr.P.C. in which he claimed for false implication in this case and denied the allegations leveled against him. Accused examined himself on oath wherein he claimed that he was arrested from his house on 07.11.2015 by the law enforcement agency and was thereafter, he was handed over to the police of Sharfi Goth, who booked me in the false case. Accused examined DW Majid brother of the accused, who deposed that accused was arrested from the house by the law enforcement agency.

 

7.         Learned trial Court after hearing the learned counsel for the parties and assessment of the evidence by the Judgment dated 11.01.2017, convicted and sentenced the appellant as stated above. Hence, this appeal is filed.

 

8.         The facts of these cases as well as evidence produced before the trial Court find an elaborate mention in the Judgment dated 05.04.2016 passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

 

9.         Mr. Ajab Khan Khattak, learned advocate for the appellant at the outset argued that charge was defective; appellant has been convicted and sentenced under section 7(1)(ff) of ATA 1997 but no charge under section 4/5 of the Explosive Substance Act, 1908 was framed against accused by the trial Court. Learned counsel for the appellant prayed for remand of the case to the trial Court for proceeding afresh.

 

10.       Mr. Ali Haider Saleem learned DPG conceded to the contention raised by the learned counsel for the appellant.

 

11.       We have heard learned counsel for the parties. Mr. Mohammad Jawaid Alam, Judge, Anti-Terrorism Court No.V, Karachi framed charge against the accused, which is reproduced as under:

 

C H A R G E

I, Mohammad Jawaid Alam, Judge Anti-Terrorism Court No.V, Karachi do hereby charge you accused namely:

                        Mohammad Asif S/o Noor Islam

As follows:-

 

That on 23.12.2015 you were standing at Service Road Babar Kanta K.I.A Landhi Karachi holding one shopper in suspicious condition. The police party headed by ASI Mohammad Saeed checked your shcopper which was containing one local made bomb in Tin Box and thereby you have committed the offence fall U/s 7(1)(ff) of ATA 1997 within the cognizance of this court.

 

            And I hereby direct that you be tried by this Court on the said charge.

 

12.       Thereafter, case proceeded and appellant was convicted under Section 7(1)(ff) of ATA 1997 and sentenced as stated above. According to the prosecution case on 23.12.2015, police recovered from the possession of accused a shopper which was containing one local made bomb and FIR was lodged under Sections 4/5 of the Explosive Substance Act, 1908 read with Section 7 of ATA 1997. After usual investigation, challan was submitted against accused under the above referred sections. Trial Court failed to frame charge against accused under Section 4/5 of the Explosive Substance Act, 1908 and sentenced the accused under section 7(1)(ff) of ATA, 1997. Learned counsel for the appellant has rightly argued that serious prejudice was caused to the appellant in his defence and proceedings are vitiated. Learned DPG conceded to the contention raised by learned counsel for the appellant and recorded no objection in case the case is remanded to the trial Court for suitable amendment in the charge.

 

13.       In the view of above, we have come to the conclusion that serious prejudice was caused to the appellant in his defence as trial Court framed defective charge against accused and omitted the framing of charge under Section 4/5 of the Explosive Substance Act, 1908. It is settled principle of law that charge against accused would be specific, fair and clear in all respects to provide an opportunity to accused to defend himself in due course of trial. Charge should be clear and by no means, confused to prejudice accused. Prime object and principle of framing charge would be to make aware the accused of the substantive accusations, which were to be proved by the prosecution with clear intention and with unambiguous description of the offence so as to enable accused to defend himself. We respectfully rely upon the judgment of the Honourable Supreme Court of Pakistan in the case reported as S.A.K. Rehmani vs. The State (2005 SCMR 364), wherein it was observed as under:

 

“We are conscious of the fact that "where a person is convicted of an offence and the Appellate Court is of the view that he has been misled in his defence by the absence of a  charge or by an error in the charge, appropriate action can be taken including remand of the case with direction for making suitable amendment in the charge". AIR 1949 All 599, 50 Cri. L. Jour 923, AIR . 1958 Ker. 94, ILR 1958 Ker. 283, 1958 Cri.L. Jour 516, AIR 1942 Pat. 143, 43 Cri.L. Jour 134, AIR 1922 Lah.135, 23 Cri. L. Jour. 5.”

 

14.       For the above stated reasons, the conviction and sentence recorded against the appellant by the Trial Court vide judgment dated 11.01.2017 are set aside. The case is remanded to the trial Court for making suitable amendment in the charge, on the basis of material produced before the trial Court at the time of submission of the final report. Trial Court shall proceed further by recording evidence of the prosecution witnesses and defence. Thereafter case shall be decided strictly in accordance with law, preferably within a period of 02 months.

 

15.       In the view of above, appeal is allowed to the above extent.

 

JUDGE

 

                                    JUDGE