Learned counsel for appellant after arguing at length and sticking strongly with non-applicability of section 7 of the ATA contends that he would not press instant appeals if this Court considers quantum of sentences, awarded to the appellant as the appellant is first offender; he is brother of 5 sisters and the only male family member to earn the livelihood of his family. He referred to section 5 of Explosive Act, 1908 which shows that possession of explosive is punishable upto 4 years but same does not limit lesser punishment hence awarding full punishment is not legally justified; as well he referred section 24 of the Sindh Arms Act, 2013 and contends that section 23 is misapplied by police and offence, if any, falls within meaning of section 24 which provides maximum punishment of 10 years. Learned counsel further contends that circumstances of this case warrant reduction of sentence.
2. In contra, learned APG contends that evidence is unimpeachable; maximum punishment is awarded by the trial Court however, if this Court deems fit to reduce the sentence, he would not seriously oppose that proposition.
3. We have examined material available on record and have considered the proposal of the learned counsel for appellant.
4. It is necessary to mention here that awarding of the punishment is only meant to have a balance in the society because normally 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 up-to', 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.
5. Now, we would proceed further, the section 23(1)a of Sindh Arms Act, 2013 is prima facie not made out as recovery from possession of the appellants falls within meaning of section 24 of the Sindh Arms Act which legal position is even not disputed by the learned APG when confronted.
Therefore, the sentence of appellant for offence under section 23(1)(a) Arms Act is converted to one under section 24 of the Act. The quantum whereof (sentence) to be set later.
6. As per prosecution case, the appellant was arrested in the night time with the allegation that he was possessing pistol and riffle grenade but it was never proved by prosecution that such allegedly recovered articles were 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 never established 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 Act. Reliance can safely be placed on the case of Kashif Ali v. Judge, ATA Court No. II PLD 2016 SC 951 wherein it is held as:- "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 agent and the surrounding circumstances depicting the commission offence.
Whether a particular act is an act of terrorism or not the motivation, particular act is an act of terrorism or not, the motivation object, design of 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 motives 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."
Let us, be specific a little further. The appellant has been convicted under section 5 of Explosive Substances Act so also under 7 subsection (1)(ff) of Anti-Terrorism Act, 1997 i.e second part of section 6(2)(ee) which reads as: "6(2)(ee) involves use of explosives by any device including bomb blast.
If one is convicted for one offence i.e 'merely possessing explosive' twice i.e. one under Explosive Substances Act and under the Arms Act, it shall seriously prejudice the guarantee, provided by Article 13 of the Constitution, therefore, it would always be obligatory upon prosecution by first establish 'object' thereby bringing an act of 'possessing explosive' to be one within 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(1)(ff) would not be legally justified particularly when accused is convicted independently for such act (offence) under Explosive Substances Act. In such circumstances, the conviction awarded against the appellant under section 7(i)(f) is hereby set aside.
7. The appellant has been convicted for fourteen (14) years for offences, punishable under section 5 of Explosive Substances Act, 1908 which itself provides as 'be punishable with imprisonment for a term which may extend to (fourteen 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 pleaded himself to be first offender which the prosecution did not dispute; and also claimed to be the only bread earner of family, which includes five sisters. The detention of only bread earner shall compel the females to step-out for survival least bread which it result in bringing a slightest spot towards such helpless ladies shall ruin their lives.
8. Keeping in view, the phrase 'may extent upto': discussed, circumstances we find it justified to reduce the sentence tram 14 years to two (02) years for offence under section 5 of Explosive Substances Act, 1908; as regard the punishment of fourteen (14) years for offence under section 23(1)(a) of Sindh Arms Act, the same is converted to one under section 24 of the Act and is reduced to two (02) years.