ROOH-UL-AMIN KHAN, J.---This criminal appeal calls in question the judgment dared 30.5.2016 rendered by learned Judge, Anti-Terrorism Court-II, Peshawar, whereby the appellant was convicted under section 15 of Khyber Pakhtunkhwa Arms Act, 2013, and sentenced to two years' RI.
He was also convicted under section 17 of the Act, referred to ibid, and sentenced to three years' RI.
Similarly, he was convicted under section 7(2)(i) of the Anti-Terrorism Act, 1997, and sentenced to five years' RI with benefit of section 382-B, Cr.P.C. All the sentences were directed to run concurrently.
2. Briefly stated facts of the instant criminal appeal as reflected from the record are that on 19.8.2014 Gulzar Khan ASI of Police Station, Mattani, along with other police nafri was present at Banda Bazid Khel, when got information about the smuggling of huge quantity of arms and ammunition in a white colour Motorcar bearing registration No, LOS/5280. In the backdrop, he fenced the road leading to Banda Bazid Khel, when, in the meanwhile, the vehicle already spotted to them emerged, which was signaled and stopped at some distance. On query, driver of the vehicle disclosed his name as Shahsim Khan. The Car was subjected to a thorough search, which led to the recovery of twenty-eight Pistols of .30 bore, four rifles of 12 bore, 1820 rounds of 7.62 bore and 66 packets containing 3300 rounds of .30 bore from its secret cavities. On recovery of the arms and ammunition, arrest of the accused-appellant and seizure of the vehicle, the Seizing Officer prepared the recovery memo and recorded the murasilla, which was dispatched to Police Station, Mattani, where on the basis of which FIR No, 235 dated 19.8.2014 under sections 15/17 AA read with section 7, A.T.A. Was registered against the appellant-accused.
3. Investigation was started in the case and on completion of the same, complete Challan was submitted against the accused to the Court of learned Judge, Anti Terrorism Court, Peshawar, where on conclusion of trial, the appellant was convicted under sections 15/17 of Khyber Pakhtunkhwa Arms Act, 2013, and section 7(i) of the Anti-Terrorism Act, 1997, vide judgment dated 20.6.2015.
4. Aggrieved of the judgment of the learned trial Court, the appellant filed appeal in this Court, which was allowed and as a consequence thereof the case was remitted back for trial de novo after framing of charge strictly in accordance with law. After remission of the case to the learned trial Court and in compliance of the judgment rendered by this Court, the learned trial Court convicted and sentenced the appellant, vide judgment herein impugned.
5. From the very outset, learned counsel for the appellant urged that mere possession of the arms and ammunition without its use does not fall within the ambit of 3rd schedule attached to the Anti Terrorism Act, 1997. He went on to say that in order to determine as to whether an offence falls within the ambit of Section 6 of the Act, it would be essential to have a glance over the allegations made in the FIR, record of the case and surrounding circumstances and in this view of the matter, he added that the case of the appellant does not fall within the parameters of the Act, moreso, when there is nothing on record whatsoever which could show that the appellant was having any nexus with the banned outfits. Developing his arguments, learned counsel for the appellant further added that the alleged crime, which is the smuggling of ammunition of 30 bore pistols, .12 bore rifle and rounds of 7.62 bore which in the given position does not create sense of fear or for that matter insecurity to the public at large.
6. There is no cavil with the proposition that in order to determine as to whether an offence would fall within the ambit under section 6 of Anti-Terrorism Act, 1997, it would be essential to have a glance over the allegations made in the FIR, record of the case and surrounding circumstances. It was also necessary to examine whether the ingredients of alleged offence had any nexus with the object of the case as contemplated under sections 6, 7 and 8, Anti-Terrorism Act, 1997. Whether a particular act was an act of terrorism or not, the motivation, object, design or purpose behind said act, and whether the said community or in any sect was to be seen. Striking of terror was sine qua non for the application of the provisions as contained in section 6 of Anti-Terrorism Act, 1997, which could not be determined without examining the nature, gravity and heinousness of the alleged offence.
On the above touchstone, if one goes through the record of the case one could reach to an irresistible conclusion that the case of the appellant does not fall within the ambit of Anti-Terrorism Act, 1997.
As per FIR, on the crucial date and time, Gulzar Khan ASI along with other police nafri was present at Banda Bazid KM, when received information about transportation of a huge lot of arms and ammunitions from tribal territory for terrorist activities through a white colour motorcar bearing registration No, LOS/5280, which was apprehended and recovery of the ammunitions was effected from its secret cavities. After completion of necessary proceedings, investigation of the case was handed over to Taj Malook SHO (Inspector investigation Badhbair Circle, Peshawar), who while recording his statement as PW-7 before the trial Court when asked the following question:- Q: Is it correct that during investigation no one can be examined that the arms and ammunition were used for the terrorism?
He replied that:- A: Recovery of huge quantity of illegal arms and ammunitions from the possession of accused which were being transported to other parts of the country itself is a proof that it would be used for the terrorism activities."
The entire file was searched from cover to cover but an iota of evidence was not found to support the allegations leveled in the FIR or by the Investigating Officer with regard to the smuggling of the ammunition for the purpose of terrorism. Mere recovery of huge quantity of ammunition will not saddle the appellant for commission of an offence attracting Terrorism.
It is settled law that while deciding the question of jurisdiction, it would be necessary to examine that the ingredients of alleged offence has any nexus with the object of Anti-Terrorism Act, 1997.Mere ipse dixit of the police without producing the cogent and concrete evidence showing connectivity of accused with any terrorist organization would not be sufficient for attracting the provisions of sections 6 and 7 of the Anti-Terrorism Act. The prosecution has based its opinion with regard to use of ammunition for the purpose of terrorist activities mere on assumption and presumption which in the given position of the case cannot be acceded to.
7. No doubt, in the earlier round of litigation the case was remitted back by this Court for framing of charge under the head of section 7, A.T.A. Separately but the subject proposition was neither agitated nor the Court was properly assisted and when confronted with the situation, learned AAG representing the State was not in a position to controvert the above legal aspect of the case and rightly so.
8. Recently this Court while dilating upon the subject controversy raised in a case titled "Khan Javed Khan v. The State etc. (AWP No,2701-P/2015) has .Held that three ingredients for determination of offence of Terrorism under section 6(1)(a) and (b) of Anti-Terrorism Act i,e., (i) taking of action specified in section 6(2) of A.T.A. (ii) the action committed with design, intention and mens rea and thirdly that it has the impact of causing intimidation, awe, fear and insecurity in the public or society are essential, which are not attracted to the facts and circumstances of the instant case and such being the position, we by allowing the appeal, set aside the conviction and sentence of the appellant recorded by the learned trial Court and as a consequence thereof remit the case back to the District Public Prosecutor, Peshawar, with the direction to submit challan before the proper forum for trial.
In the present case, the appellant was on bail, however, after his conviction on 20.6.2015 he was taken into custody, meaning thereby, he is behind the bars since June, 2015 and, hence, in view of the facts and circumstances of the case, he is directed to be released on bail on furnishing bail bonds amounting to Rs, 3,00,000/- with two sureties each in the like amount to the satisfaction of Additional Registrar (J) of this Court, who shall ensure that the sureties are local, reliable and men of means. Office is directed to send record of the case to the quarter concerned immediately.