PLJ 2022 Cr.C. 748 (DB)
Explosive Substances Act, 1908 (VI of 1908)--
----Ss. 4/5--Anti-Terrorism Act, (XXVII of 1997), S. 7--Conviction and sentence--Challenge to--Reduction in sentence--Quantum of sentence--No legislated mitigating factors for reduction in sentence is available in our criminal justice system to meet situations except some judicial precedents of superior Courts which are usually followed; however, for enhanced sentence in general law Section 75 of PPC holds field, primarily dealing with repetition of offence punishable under Chapter XII or Chapter XVII of this Code with imprisonment of either description for a term of three years or upwards--Similarly, Section 382-C, Cr.P.C. gives a command to Court to pass an enhanced sentence in case accused takes a frivolous plea--No pre-sentencing report is submitted before trial Court for assessment of an offender being a potential danger or offence, he committed in certain circumstance either under compulsion or has been involved by deceitful means or for many other like reasons; therefore, system does not recognize difference between stage of conviction and sentence due to which sentence is passed simultaneously with conviction--Principally both differs to each other--By virtue of such amendment prosecutors have been given a say even to speak for accused in matters of sentencing--Above special Act has an overriding effect, requires prosecutor to assist Court with proposals for proper sentencing during trial--Obviously, an appeal is a continuation of trial for all purposes and intent; therefore, they should do play their part before this Court as well--Perused record--Identification certificates of all appellants attached by police along with report u/S. 173, Cr.P.C which are available in record reflecting that all appellants do not maintain any criminal history neither of any other offence nor of offences of like nature under charge in this case--no evidence has been brought on record with respect to their link with any terrorist or proscribed organization or their indulgence in prohibited religious activities; therefore, they being first offender deserve to be treated differently; they are behind bars and as per jail report they have served out a period of almost four years which is sufficient to meet cannon of justice--Their conviction in circumstances is upheld while reducing sentence u/S. 5 Explosive Substance Act, 1908 to one already undergone; however, sentence of forfeiture of property u/S. 5-A of Act ibid was not awarded by trial Court which is pari materia of such section if an offender is punished u/S. 5 of Act, ibid--Therefore, effects of Section 5-A of Explosive Substances Act, would be read as part of this judgment--Appeals dismissed.
[Pp. 755, 756, 757 & 758] B, E, H & I
Retribution--
----Theory of punishment--“Let punishment fit crime” captures essence of retribution which is based upon principle of just deserts; it advocates proportionality of sentence with acclaimed crime--It defines justice in terms of fairness and proportionality--Ideally, harshness of punishments should be proportionate to seriousness of crimes--In reality, it is difficult to match punishments and crimes, since there is no way to objectively calibrate moral depravity of particular crimes and/or painfulness of specific punishments--Retribution is a backward-looking theory of punishment.
[P. 754] A
Punjab Sentencing Act, 2019 (XXXIV of 2019)--
----Ss. 4 & 10--Purpose sentencing--Sentences for aggravation related to terrorist activities--Non-availability of mitigating factors in any form of legislation gives wide powers in realm of discretion which is though exercised by Courts, yet not with a uniform approach and system experiences some flagrant approaches in sentencing zones--Thus, provincial legislature has attempted to fill out this vacuum through promulgation of Punjab Sentencing Act, 2019, yet it has not been operationalized so far because as per sub-section-3 of section-1 of such law, it shall come into force on such date as Government may, by Notification in official Gazette, appoint--Such law contains purpose of sentencing as under;
Section-4. Purpose of sentencing.--A Court dealing with an offender in respect of his offence shall have regard to purposes of sentencing being the:
(a) punishment of offenders;
(b) reduction of crime including its reduction by deterrence;
(c) reform and rehabilitation of offenders;
(d) protection of public; and
(e) making of reparation by offenders to persons affected by their offences.
This law also lists out mitigating as well aggravating factors for sentencing as per Section 7 and also throws guidelines for offence under question in present case as under:
10. Sentences for aggravation related to terrorist activities.--(1) This section shall apply where Court is determining sentence of a terrorist offence, and offender demonstrated hostility towards victim or intended victim immediately before or after commission of offence because of his or her:
(a) religious beliefs;
(b) political ideology; and
(c) cultural outlook.
(2) The Court shall treat facts provided in sub-section (1) as aggravating factors.
This section in converse proposes that if such aggravating factors are not available, then Court can go down line--However, leaving a side law under discussion, punishment must be scaled in proportion to effects of crime and antecedents of offenders being potential to commit crime/offences. [Pp. 755 & 756] C & D
Conviction and sentence--
----Conviction is guilty verdict whereas sentence is a form of punishment awarded in pursuance to such verdict, either of a fine or imprisonment and it ought to be passed at a later date after guilty verdict is returned--Accused and prosecutor are even not heard for purpose of sentencing, once accused is found guilty by Court. [P. 756] F
Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (III of 2006)--
----S. 9--Conduct of prosecution-- Law is variant and is amended with passage of time to meet emerging needs giving space to institutions privy to system that could effectively handle situation depending on direct field experiences and are ready to assist Court in arriving to effectuate just desert principles in field of sentencing--This need legislature felt in year 2017 when Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 was amended and a new sub Section 8 to Section 9 was introduced which is as follows:
9. Conduct of Prosecution.
…………………………………….
(8) if an accused pleads guilty or, as case may be, at time prosecutor sums up case, prosecutor shall propose to Magistrate or Court punishment which, in his opinion, accused should be awarded. [P. 757] G
Barrister Muhammad Momin Malik, Advocate for Appellant (in Criminal Appeal No. 231377 of 2018).
Mr. Muhammad Asif Javaid Qureshi, Advocate for Appellant (in Criminal Appeal No. 231407/2018).
Rai Akhtar Hussain Kharal, Deputy Prosecutor General for State.
Date of hearing: 25.11.2021.
PLJ 2022 Cr.C. 748 (DB)
[Lahore High Court Lahore]
AMIR SALEEM etc.--Petitioners
versus
STATE--Respondent
Crl. A. Nos. 231377 & 231407 of 2018, heard on 25.11.2021.
Judgment
Muhammad Amjad Rafiq, J.--Amir Saleem, Abdul Rehman and Shoaib-ur-Rehman faced trial in case FIR No. 4 dated 20.02.2018 under Sections 4/5 of Explosive Substances Act, 1908 and Section 7 of Anti-Terrorism Act, 1997 registered at police station CTD, Lahore and on conclusion of trial, vide judgment dated 27.07.2018, all three were sentenced as under:
i) Imprisonment for ten years, each under Section 4 of Explosive Substances Act, 1908;
ii) Imprisonment for ten years, each under Section 5 of Explosive Substances Act, 1908;
iii) Imprisonment for fourteen years each under Section 7(ff) of Anti-Terrorism Act, 1997.
Amir Saleem (appellant) has challenged his above conviction and sentence through Criminal Appeal No. 232377/2018, whereas, Abdul Rehman and Shoaib-ur-Rehman (appellants) have filed their separate joint appeal against their above conviction and sentence, both these appeals are now being decided by this single judgment.
2. CTD Capped Raiding party halted, on a spy signal, three persons under the information near Singh Pura at main road Railway Quarters, Lahore, who surrendered to search and delivered explosive in the form of hand grenades; disclosed their name led the party to document two live hand grenades with fitted detonating assembly recovered from the bag carried by Abdul Rehman besides recovery of ID card and an amount of Rs. 350; Shoaib-ur-Rehman’s hand bang did have two live hand grenades with connected detonating assembly besides carrying ID card, prayer cap, Rosary and Rs. 420. Aamir Saleem in a shopping bag holding one live hand grenade with attached detonating assembly, in addition to an amount of Rs. 480. Muhammad Aleem Corporal was leading this expedition became complainant, summoned Muhammad Zafar Bomb Disposal Squad (BDS) Inspector who defused all five hand grenades and extracted explosive two grams each, made them into sealed parcels for analysis by PFSA, grenades were also sealed for examination by the BDS. This recovery was effected on 20.02.2018 at 6/25 p.m., raiding party comprising of seven members including driver of official vehicle remained at the place of occurrence during this process.
3. After competition of usual investigation, appellants were sent for trial, they were charge sheeted to which they pleaded not guilty; prosecution led the evidence through production of Muhammad Aleem complainant PW-2, Waqar Irshad PW-3 as recovery witnesses, Zafar Ali Inspector BDS PW-4; Abdu Hameed Moharrir PW-1 as to custody of recovered articles and samples, Furkhanda Shamim PW-5, dispatcher of parcels containing hand grenade to BDS and samples to PFSA; Investigating Officer Ghulam Rasool Inspector PW-6. Report of BDS Inspector as Exh. PE and that of PFSA Exh. PH were also produced in support thereof. Accused/Appellants were examined u/S. 342, Cr.P.C wherein they claimed to have been abducted by some unknown officials mush prior to date of recovery, yet they did not prefer any evidence in this regard. The trial ultimate returned to a guilty verdict against them with sentence mentioned in the opening paragraph of this judgment.
4. The learned counsel for the appellants divulged separately upon the nook and corner of prosecution building, yet at one point they were unanimous that when BDS inspector had already defused the hand grenades at the time of first inspection, later production in the office reflects they were alive at that point of time too is nothing but challenge the veracity of very articles recovered at the place of occurrence. They contended that no evidence is available to sustain the charge either u/S. 4 of Explosive Substance Act, 1908 or u/S. 7 of the Anti-terrorism Act, 1997.
5. Learned Deputy Prosecutor General with temperate submissions indicated that this lacuna does not exist and is being misread by the counsels which otherwise is in line matching with the report of BDS Inspector. He otherwise stood faithfully with the prosecution case on other charges as well.
6. Prosecution case with the production of forecited witnesses is fortified from the documentary evidence consisting of BDS Report and Report of PFS which confirms the submission of parcels of five samples by Furkhanda Shamim 1140/Corporal on 22.02.2018 as stated by her when appeared as PW-5. Report shows that material examined was found as Trinitrotoluene (TNT) which is a high explosive. There is no doubt in the evidence, as such explosive was extracted from recovered grenades of the appellants by BDS Inspector PW-4 who there and then sealed it into parcel with stamp of M.A. (Muhammad Aleem Complainant), no evidence adverse to safe custody and dispatch was brought on the record. Therefore, prosecution case has captured the hands of appellants in the crime.
7. Objection of learned counsel on the observation of BDS Inspector at the 2nd examination of hand grenades needs to be probed in the light of submissions made by learned DPG; for reference the excerpt of report Exh.PE (Referred in his cross-examination as Exh. PF) by BDS inspector PW-4, which the learned counsel cited and read in favour of the appellant, is reproduced as under:-
“All above mentioned Grenades are alive, filled with explosive and cause damage to Human life and property if used/blasted.”
Yet the whole of this observation makes a different sense; whole is reproduced as under;
“All above mentioned Grenades are alive, filled with explosive and cause damage to Human life and property if used/blasted.” I undersigned defused above mentioned grenades by scratching and handed over to the concerned police to send Punjab Fransic (sic) Science Agency for analysis.”
This expression clearly shows that these were the same grenades, he examined on the first day, what he expounded was, though grenades have been defused and now could not be blasted by pulling the pin yet it still contains explosive if used can cause damage to human life and property. Thus, from the above observation and connotation, it can safely be held that at the time of recovery such grenades were filled with active explosive. Defence fails on this score too.
8. Finding no apparent lacuna in the prosecution case despite desperate attempts, learned counsel finally resorted to alternate prayer that at least offence under Section 4 of Explosive Substance Act, 1908 is not made out; further supplicate the reduction of sentence in Section 5 of Act ibid; contended further that no evidence for attracting the provisions of Anti-terrorism Act, 1997 is available, sentence under Section 7 of ATA, 1997 be also set aside.
9. Such prayer invited our attention and rereading of evidence in this prospect; prosecution has not led any evidence that explosive was being in possession to cause explosion or with such intention to endanger the human life. No evidence is available that the appellants are the activists or members of any proscribed organization involved in terrorism; necessary mens rea contemplated under Section 6 of ATA, 1997 is missing in this case; therefore, conviction and sentence of appellants under Section 4 of Explosive Substances Act, 1908 and under Section 7(ff) of Anti-Terrorism Act, 1997 are set-aside. However, we lay our hands on the request for reduction of sentence under Section 5 of the Explosive Substances Act, 1908.
10. Before proceeding further, it would be appropriate to highlight the principle of sentencing which emerge from different sentencing theories, delineated as under;
1. Deterrence
2. Incapacitation
3. Rehabilitation
The above theories broadly look to the consequences of punishment. They are all forward‐looking theories of punishment. They focus more on the future benefits that may convert a loathsome to a useful citizen. The shared goal of all three is crime prevention.
4. Retribution
382-C. Scandalous or false and frivolous pleas to be considered in passing sentence: In passing a sentence on an accused for any offence, a Court may take into consideration any scandalous or false and frivolous plea taken in defence by him or on his behalf.
12. Certain offences in, PPC and special laws provide minimum ceiling of sentence, which requires the Court not to go down from that threshold yet for other offences, Court can consider any mitigating and aggravating factor to pass sentence accordingly.
(a) punishment of offenders;
(b) reduction of crime including its reduction by deterrence;
(c) reform and rehabilitation of offenders;
(d) protection of the public; and
(e) making of reparation by offenders to persons affected by their offences.
10. Sentences for aggravation related to terrorist activities.--(1) This section shall apply where the Court is determining the sentence of a terrorist offence, and the offender demonstrated hostility towards the victim or intended victim immediately before or after the commission of the offence because of his or her:
(a) religious beliefs;
(b) political ideology; and
(c) cultural outlook.
(2) The Court shall treat the facts provided in sub-section (1) as aggravating factors.
Section 235: Judgment of acquittal or conviction.
(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
Section 360 of such Code as referred in above section deals with order to release on probation of good conduct or after admonition.
9. Conduct of Prosecution.
…………………………………….
(8) if an accused pleads guilty or, as the case may be, at the time the prosecutor sums up the case, the prosecutor shall propose to the Magistrate or the Court the punishment which, in his opinion, the accused should be awarded.
17. For what has been discussed above, both the criminal appeals are dismissed, convictions as recorded by learned trial Court are upheld, however, quantum of sentence is modified as above.
(A.A.K.) Appeals dismissed
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