Appellant Fahim Ali has challenged impugned judgment date 26.01.2018 passed in Special Case No. 470(vii)/2015 arising out of FIl No. 281/2013, under Section 353, 324, 34, PPC read with Sections 3/4 Explosive Substance Act read with Section 7, ATA PS Soldier Bazar the appellant was convicted for offence under Section 7(b) ATA an sentenced him to suffer R.I. for ten years and to pay fine of Rs. 5000 in case of default to suffer S.I. for two months more and also under Section 7(n) of ATA and sentenced him to suffer R.I. or five years an to pay fine of Rs.
10,000/- and in case of default to suf fer S.I. for to months more.
2. Precisely , relevant facts are that complainant received sr information that accused persons are proceeding towards soldier Bazi in a car, on such information police party proceeded towards point place where saw that that specified car was parked opposite Pepsi sales depot shop where four culprits found going towards the shop who on feeing police party made direct firing upon them with intention to commit their murder and started running towards Nazarat road, complainant informed this position to another police mobile and also chased them, one culprit picked hand grenade and threw to police party which exploded near that culprit who died at the spot, other one accused made his escape good away after leaving his repeater gun; out of two other accused persons one was injured and succumbed to the injured whereas the other one made his scape good in injured condition. After full dressed trial, trial Court found the appellant/ accused Fahim Ali guilty as aforesaid.
3. At the outset learned counsel for the appellant contended that learned trial Court misread the evidence came on record as well did not appreciated the evidence brought on record, therefore, impugned judgment is illegal, based on misappropriation of facts and having no value in the eyes of law , hence liable to be set aside.
4. In contra, learned APG contends that impugned judgment is just and proper where allegations against present appellant were proved beyond shadow of doubt.
5. At this juncture, learned counsel for the appellant contends that appellant is a young boy and has served for more than 6 years one month and 17 days including remission, he is sole bread earner for his family . Learned counsel for the appellant agreed for reduction of sentence to the one already under gone in view of case reported in 2018 P.Cr.L.J. 959 (Suneil vs. The State ). Learned APG extended his no objection regarding reduction of sentence.
6. Quantum of punishment is an independent aspect of Criminal Administration of Justice which, too, requires to be done keeping the concept of punishment in view. Therefore, reference to lodgment of other case (s) in determining questions of guilt /innocence or even punishment would be of no significance.
7. At this juncture, it would be conducive to refer paragraphs 6 and 7 of aforesaid judgment, which are that: "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 prosecutio n 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 the Act, it would be essential to have a glance over the allegations leveled in the FIR the material collected by the investigating agency and the surrounding circumstances, depicting the commission of offence. Whether a 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 Section 7 sub-section (1)(ff) of Anti-T errorism 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)(f f) would not be legally justified particularly when accused is convicted independently for such act (offence) under Explosive Substance 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. Since, the offences wherein the appellant has been convicted fall within category of offences 'may extend upto the appellant claims himself to be sole bread earner; appellant is of young age; these are circumstances which justify reduction in sentence.
9. In view of above, it would be in the interest of justice to reduce the sentence awarded to appellant to already undergone. Accordingly , conviction is maintained but sentence is reduced to one already undergone by the appellant including fine. Appellant shall be released forthwith if not required in any other custody case.