' RAJA FAYYAZ AHMED, J.---The instant application has been sent by the convicts through Superintendent Central Jail, Mach wherein it has been prayed that the remissions granted by the Federal Government and the Provincial Government to the prisoners, be directed to be counted in favor of the convicts.
2. The precise facts of the case relevant for the disposal of the instant matter are that the convicts were tried by the Special Court, S.T.A., Baluchistan Quetta for the offence under section 5 of the Explosive Substance Act, 1908 and under section 19-F of the Arms Act, 1878 on the accusation of their having been found in possession of huge quantity of arms, ammunition and explosive substance. The petitioners were found guilty by the learned Court for the aforementioned offences and accordingly, each was sentenced to six years' R.I. In addition to the forfeiture of whole of their property under section 5 of the Explosive Substances Act, and sentenced to three years' R.I. Each under section 19-F of the Arms Act vide judgments of even date, i,e, 31-10-1996. The former judgment was challenged before this Court in Criminal Appeal No,295 of 1996 which was rejected on 15-4-1997. However, the quantum of sentence of imprisonment was reduced to five years instead of six years imprisonment, with benefit of section 382-B, Cr.P.C. Already extended by the trial Court.
3. It may be noted that against the latter judgment whereby the petitioners were convicted and sentenced to imprisonment under section 19-F of the Arms Act, 1878 no appeal was preferred but subsequently both the petitioners preferred Criminal Revision No,56 of 1997 praying that since they have been convicted and sentenced to in respect of the offences covered under the same F.I.R., therefore, the sentences awarded to them under section 5 of the Explosive Substances Act and under section 19-F of the Arms Act be directed to run concurrently, in the interest of justice. The revision petition was dismissed in limited on 18-8-1997.
It is pertinent to note that prior to the filing of the abovementioned revision petition before this Court, a Miscellaneous Application No,42 of 1997 was moved by the convicts before the trial Court praying that the sentences of imprisonment awarded to each of them, be directed to be endorsed on their jail committal warrants, as to run concurrently, which was rejected by the trial Court on 25- 7-1997. Despite rejection of the application, again on 14-10-1997 an application was moved before the learned trial Court with the same prayer, which too was rejected by the Court on 28-10-1997, and which was also challenged before this Court in Criminal Revision No,89 of 1997 and vide detailed judgment, dated 10-11-1997 the revision petition was dismissed.
4. The instant application was heard along with another connected matter i,e, C.P. No,153 of 1998 wherein the convict, undergoing imprisonment for the offence under section 13-B of Pakistan Arms Ordinance, 1965 was denied, the benefit of Presidential remission granted on the eve of Eid-ul-Fitr and Pakistan Day, 1998 only for the reason that he has been convicted by the Special Court constituted under Act XV of 1975, and; it has been held in the judgment passed in C.P. No,153 of 1998 that the benefit of the Special Remission granted by the President, cannot be denied to him only because he has been sentenced to by the Special Court provided that the prisoner otherwise is entitled to earn the specified remission in his sentence of imprisonment within the meaning of the President's Special Remission Order, 1998. Furthermore, it has been held in the said judgment that merely undergoing imprisonment for holding an unlicensed weapon, such as, a pistol, revolver or Kalashnikov would not amount to an act of 'terrorism' in absence of any other evidence or accusation to the contrary.
5. The prayer contained in the instant application has been considered in the light of the record of the case and the Presidential (Special) Remissions, allowed to the prisoners on the occasion of Eid- ul-Fitr and Pakistan Day. The learned Additional Advocate-General failed to place on record copies of the remission orders allowed to the prisoners by the Provincial Government; who argued that mere possession of an unlicensed arm and ammunition does not amount to an act of "terrorism" nor the petitioners having been convicted by the Special Court would disentitle them to earn the remissions; which if otherwise would be admissible to them. The learned Additional Advocate- General, however, submitted that no hard and fast line can be drawn in respect of the offences relating to the explosive substances arms and ammunition.
' In order to determine, as to whether a prisoner having been found guilty for possessing explosive substance, arms and ammunition amounts to an act of "terrorism" or a "terrorist act", which according to the learned Additional Advocate-General depends primarily on the facts and circumstances of each case.
6. It would be appropriate to reproduce herein below the contents of the Special remission Orders of the President of Pakistan as contained in the wireless message transmitted by the Inspector- General, Prisons Baluchistan to the Superintendent Central Jail, Mach and in the letter, dated 30-3- 1998 of the Government of Baluchistan, Home and Tribal Affairs Department (Prisons Department) addressed to Inspector-General, Prisons, Baluchistan, available on record of the connected matter i,e, C.P.No,153 of 1998.
"Special Presidential remission on the eve of Eid-ul-Fitr, 1998 ' In exercise of the powers under Article 45 of the Constitution, the President is pleased to grant special remission to the prisoners on the occasion of Eid-ul-Fiter:
(a) Special remission of three months to all prisoners.
(b) Total remission to male prisoners who are of 70 years of age and above and have undergone imprisonment for 10 years and above.
(c) Total remission to female prisoners who are 65 years of age and above and have undergone imprisonment for 10 years and above.
(d) Additional remission of three months to female convicts who are not covered under categories 'B' and 'C' above.
(e) Remission of one year to female prisoners serving sentence for crimes excepting culpable homicide who have infant children.
(2) The above special remission will not be admissible to condemned prisoners and to those convicted of Espionage, Subversion, Anti-State Activities, Gang-rape, Terrorism and under Foreigner's Act, 1946."
"Special Presidential remission to the convicts on Pakistan Day, 1998 ' The President of Pakistan, in exercise of the powers under Article 45 of the Constitution, has been pleased to grant remission in the sentences on the occasion of Pakistan Day, 1998 as under:--
(i) Special remission of two months to all prisoners.
(ii) Total remission to male prisoners who are of 70 years of age and above and have undergone imprisonment for 10 years and above.
(iii) Total remission to female prisoners who are 65, years of age and above and have undergone imprisonment for 10 years and above.
(iv) Additional remission of three months to female convicts who are not covered under category
(iii) above.
(v) Remission of one year to female prisoners who have infant children and are serving sentences for crimes other than culpable homicide.
(2) The above special remission will not be admissible to condemned prisoners and to those convicted of Espionage, Subversion, Anti-State Activities, Gang-rape, and Terrorism and under Foreigner's Act, 1946."
' As per abovementioned special remissions granted by the President of Pakistan, to the convicts undergoing imprisonment are entitled to earn the specified remission in his/their period of sentences if the case of the prisoner/s fall/s under any of the categories specified in such remission Orders provided that the remissions shall not be admissible to a condemned prisoner or to a prisoner who has been convicted for an offence of Espionage, Subversion, Anti-State Activities, Gang-rape, Terrorism or under Foreigners Act, 1946. Thus, a prisoner found guilty for any of the abovementioned acts/offences, including a condemned prisoner, shall not be entitled to get benefits of the Presidential (Special) Remission Orders, 1998. The prisoners other than those not falling under any of the hereinabove mentioned categories shall be entitled to earn the remissions allowed by the President of Pakistan, convicted and sentenced to by any Court of law including a Special Court constituted under Act XV of 1975.
7. Attending to the question as to whether the petitioners who were sentenced to imprisonment, from whom a huge quantity of arms, ammunition and explosive substance (3, shells of rocket launcher) were recovered, can be termed as a "terrorist act" or "terrorism". It may be seen that the word "sabotage, subversion and terrorism" used in the Preamble of Act, XV of 1975 has not been defined in the statute, thus; the ordinary meaning of the words have to be looked into in the context in which these have been used in the Presidential (Special) Remissions Orders, 1998.
8. In the Oxford Encyclopedic English Dictionary the word "terror" and "terrorist" has been defined as follows:-- "Extreme fear, 2.(a) a person or thing that cause terror (b) a formidable person; a trend able person or thing.
3. The organized use of organized intimidation; terrorism." 'terrorist .... Means... "a person who uses or favors violent and intimidating methods of coercing a Government or community."
' Elaborately in the treatise on the subject The Law Relating to the Suppression of Terrorism in Pakistan (Revised Edition) published by Tajjamal Hussain Rathore, the word "terrorist" etc.; has been discussed and defined with reference to various legal and language dictionaries referred to herein below:-- "In the Black's Law dictionary the word ' Terror' and ' Terrorist threats' have been defined as ' Alarm; fright, dread; the state of mind induced by the apprehension of hurt from some hostile or threatening event or manifestation; fear caused by the appearance of danger. In an indictment for riot at common law; it must have been charged that the acts done were to the 'terror of the people.'
Terroristic threats ... Means...
' A person is guilty of a felony if he threatens to commit any crime of violence with purpose to terrorize another to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.'
' In Webster 's International Dictionary the expression "terrorism" is defined as follows: 'Systematic use of terror as a means of coercion ......
'Terrorist' means ' an Advocate or practitioner of terror as a means of coercion, one who panics or causes anxiety.'
' Terror' means 'A state of intense fright or apprehension; stark fear; one that inspires fear a frightening aspect; an appalling person or thing. ...
' Terrorize' means 'to fill with terror or anxiety; to coerce by threat or violence, to excite fear; rule by intimidation.'
' In Funk and Wagnalls Standard Dictionary terror has been defined as: ' An overwhelming impulse of fear; extreme fright or dread; that which or one who causes extreme fear; and intolerable terror.'
'Terrorism' is defined as ' The act of terrorizing; a system of Government that seeks to rule by intimidation; unlawful acts of violence committed in an organized attempt to overthrow a Government.'
'Terrorist' means 'One who adopts or supports terrorism, a Jacobin or Republican of the French Revolution of 1798, especially during the Reign of Terror, a member of political extremists group in czarist Russia; an alarmist; a scaremonger.'
' Terrorize' means 'To reduce to a state of terror, terrify; to coerce through intimidation.' In Biswas Encyclopedic Law Dictionary, terrorism has been defined as follows; ' The use of violence for political ends, including any violence for the purpose of putting the public or any section of the public in fear.'
' Terror ' What amounts to a ' terrorist act' has been defined above, and it can be divided as follows:- ' Firstly, it intend to overawe the Government as by law established. Secondly, to strike terror in the people or any section of the people.
'Thirdly, to alienate any section of the people Fourthly to adversely affect harmony amongst differently sections of the people.
' For the accomplishment of the aforementioned purpose one does any act or thing, which must be done by use of bombs, dynamite or other explosive substances or inflammable substances or fie- arms or other lethal weapons or poisons or noxious gases or other chemicals or any other substances (whether biological or otherwise) of a hazardous nature. In such matter as to cause or likely to cause i,e, the resultant effect or such act or thing should be--
(i) death, or injuries to any person or persons, or
(ii) damage to the destruction of property, or
(iii) Description of any supplies or service essential to the life of community.'
' Sabotage --- deliberate destruction of machinery and c., in the course of dispute with an employer similar destruction intended to show down production for political or other reasons; action taken to prevent the achievement of any. -- v.t. And v.i. To destroy or do damage in this way;
(fig) deliberately to destroy the chances of success of (an undertaking).
' In New Lexicon Webster's Dictionary of the English Language Encyclopedic Edition 1989 New York the expression has been defined as follows: Deliberate damage done the property, installations etc. e.g. By enemy agents or by hostile employees.'
' Subversion --- As per Black's Law Dictionary fifth Edition 1979, this expression means 'the act or process of overthrowing, destroying or corrupting. Subversion used in connection with activities designed to undermine and overthrow the Government, State and Federal.'
'Subversion (noun) abolition, annihilation, breakup, debate, defeat, demolition, destruction, devastation, disestablishment, disruption, aversion, extinction, expiration, incendiarism, inversion, overset, overthrow, overturn, perdition, rebellion, revolt, revolution, ruin, ruination, sabotage, sedition, subversive activities, upheaval uprising upset.'
10. Undoubtedly the petitioners have not been sentenced by the Court for any act of sabotage, subversion and terrorism as defined in the dictionaries referred to above, on the subject. Except the possession of unlicensed arms, ammunition and explosive substance by the petitioners, there is no accusation against them that such illicit articles were meant, planned or aimed to be used for committing, abetting or conspiring any act of subversion, sabotage, Anti- State activity or terrorism. Also there is no allegation against the petitioners that they intended or had the knowledge that the recovered contraband material was likely to be used for committing any of the abovementioned acts. The petitioners have only been convicted and sentenced to imprisonment, in addition to the forfeiture of their entire property for having been found in possession of arms, ammunition and explosive substance (three shells) which accusation simplicity would not bring the case within purview of an act of sabotage, subversion or terrorism as used in the Presidential (Special) Remission Order, 1998 so as to disentitle the petitioners from the benefit of the remission orders.
11. In a case where an accused was found in possession of stolen railway fish plates, the Honorable Lahore High Court in its judgment reported in PLD 1978 Lah. 1087 held that simple possession of stolen railway fish plates or removal thereof would not bring case within the mischief of sabotage or subversion justifying trial under Act XV of 1975. The accused was found guilty of offence under section 126(b) of Railway Act, for having removed and found in possession of fish-plates and, thus, endangering safety of persons travelling by train, and, the Honorable Court further held that mere removal of fish-plates would not be sufficient to prove guilt of accused under clause (b) of section 126 of Railways Act, 1926 and that the prosecution was bound to prove requisite interest or knowledge on the part of accused to "endanger" safety of any person travelling by train.
' Similarly in the case of State v. Maqbool Hussain reported in 1987 PCr.LJ (Special Court Sindh) 1490 it has been held that possession of unlicensed arms might invite penalties under different statutes but surely would not be an act of sabotage, subversion or terrorism within the meaning of section 5 of the Explosive Substances Act, 1908.
12. The penalty provided in section 5 of the Explosive Substances Act, 1908 relates only to an offence, if any person 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 does not have it in his possession or under his control for a lawful object, and; not meant to punish an offender liable for an act of sabotage, subversion or terrorism.
As above discussed, there is no accusation against the petitioners that the explosive substance recovered at their instance was meant or intended to be used in any manner for committing or abetting an act of sabotage, subversion, Anti-State activities or terrorism, so as to disentitle them of the benefit of above quoted Presidential (Special) Remission Orders, 1998.
' Thus, for the foregoing reasons, we hold that petitioners are entitled to the special remissions granted to the prisoners by the President of Pakistan on the occasion of Eid-ul-Fitr and Pakistan Day, 1998 and to the remissions granted by the Provincial Government provided that the case of the petitioners falls under any of the categories of the prisoners, to which the remissions extend.
Order accordingly.