MUHAMMAD HASHIM vs The STATE and others

ORDER

JAWAD HASSAN, J.---Through this constitutional petition, the petitioners Muhammad Hashim and Shakeel seek suspension of sentence awarded to them by the learned Judge Anti-Terrorism Court, Rawalpindi, whereby he convicted and sentenced both the accused/petitioners under Section 5 of Explosive Substances Act, 1908 (the "Act") and awarded imprisonment for one year R.I each in case No,34 dated 19.09.2016 under sections 4/5 ESA 7 ATA Police Station, CTD, Rawalpindi. The benefit of Section 382-B of the Code of Criminal Procedure, 1898 (the "Cr.P.C"), however, was not extended to the petitioners.

2. The prosecution version embodied in the FIR is that petitioners were arrested on spy information on 19.09.2016. From the possession of the petitioner No,2 explosive substance 270 gm, three feet safety fuse wire, match box and three detonators were recovered and from his further physical search cash Rs,400/- was recovered. It is also averred in the FIR that from the possession of the Petitioner No,1 explosive substance 250 gm, three (3) feet safety fuse wire, match box and three (3) detonators were recovered, further more from his personal search cash Rs,250/- was also recovered. It was contended by the complainant of the case that the said explosive substance was for the purpose of terrorist activity by the accused persons and both the accused were belonging to "Daaish" a banned organization.

3. The counsel for the petitioners submitted that bar contained in section 426 of Cr.P.C. is not attracted to the petitioners because they were only tried by the Anti- Terrorism Court, Rawalpindi under the Act. He has relied upon recent judgment of the Hon'ble Supreme Court of Pakistan passed in Crl. A No,128 of 2012 dated 27.03.2017, wherein it has been held as under:-- "We further note that by virtue of item No,4(ii) of the. Third Schedule to the Anti-Terrorism Act, 1997 a case becomes triable by an Anti-Terrorism Court if use of firearms or explosives, etc. in a mosque, imambargah, church, temple or any other place of worship is involved in the case. That in the Third Schedule only makes such a case triable by an Anti-Terrorism Court but such a case does not ipso facto become a case of terrorism for the purposes of recording convictions and sentences under 6 read with section 7 of the Anti-Terrorism Act, 1997. The case in hand had, thus, rightly been tried by an Anti-Terrorism Court but the said Court could not have convicted and sentenced the appellants for an offence under Section 7(a) of the Anti-Terrorism Act, 1997 as it had separately convicted and sentenced the appellants for the offences of murder, etc. committed as ordinary crimes."

He has also relied upon an un-reported judgment of the Division Bench of this Court passed in Crl.

A. No, 370 of 2015.

4. We have heard liarned counsel for the petitioners and the learned Law Officer and examined the record.

5. We have noticed that the petitioners were arrested in the above said case on 19.09.2016 and since then they are languishing in jail. The sentence awarded to the petitioners is short and the appeal pertains to the year 2017 and there i no likelihood of its being fixed in near future. From the perusal of report submitted by Superintendent Central Prison, Rawalpindi, it reveals that total sentence of the petitioners is one year and they have already served out sentence for period of 9 months and nine days and remaining of sentence is two months and 21 days. Their final date of release is fixed as 3.10.2017.

6. After examining the provision of section 426, Cr.P.C., we feel persuaded with the contention of learned counsel for the petitioner that bar contained in the said section is not attracted to the case of the petitioners. Even otherwise, it is manifestly clear from the record that while recording their convictions, the learned trial court has categorically held that prosecution has failed to prove that the petitioners belong to proscribed organization 'Daaish' or their act amounts to terrorism as defined in Section 7 of the Anti-Terrorism Act, 1997. All the above said attending circumstances are sufficient enough to persuade us for suspending the sentence of the petitioners. Resultantly, while allowing this petition, we are inclined to suspend the sentence of the petitioners Muhammad Hashim and Shakeel subject to their furnishing bail bonds in the sum of Rs,1200,000/- (Rupees one lac only) with two (2) sureties each in the like amount to the satisfaction of Deputy Registrar (Judicial) of this court. The petitioners shall appear on each and every date fixed by this Court during the pendency of the appeal.

7. Needless to observe that observations made hereinabove are tentative in nature and the same shall have no bearing on the merits of pending appeal.