ABDUL KHALIL vs THE STATE
This criminal appeal arises from the judgment of the Special Judge (STA), Malir, convicting the appellant under section 5 of the Explosive Substances Act, 1908 and sentencing him to seven years' rigorous imprisonment. The core legal question was whether a conviction under the Explosive Substances Act, 1908 is sustainable when the accused was neither charged under it nor was the mandatory consent of the Provincial Government obtained pursuant to section 7 of the said Act. The Sindh High Court held that the conviction under the Explosive Substances Act, 1908 was legally unsustainable due to the lack of charges and the absence of the Provincial Government's consent for trial. The Court laid down the principle that a trial and conviction under the Explosive Substances Act, 1908 cannot proceed without the express consent of the Provincial Government or an authorized officer under section 7, and subsequently modified the conviction to one under section 13-E of the Arms Ordinance, reducing the sentence to the period already undergone.
- Can a person be convicted under the Explosive Substances Act, 1908 without the consent of the Provincial Government required under section 7 of the Act?
- Whether a conviction and sentence can be sustained when the accused was not formally charged with the offence under which he is convicted?
- Can an appellate court convert a conviction from the Explosive Substances Act, 1908 to section 13-E of the Arms Ordinance based on the evidence on record?
- Section 5, Explosive Substances Act 1908
- Section 382-B, Code of Criminal Procedure 1898
- Section 13-E, Arms Ordinance 1965
- Section 4/5, Explosives Act 1884
- Section 7, Explosive Substances Act 1908
GHULAM NABI SOOMRO, J.--The appellant through this appeal has assailed his conviction and sentence of 7 years' R.I. For an offence under section 5 of the Explosive Substances Act, 1908 awarded by the learned Court of Special Judge (STA), Malir vide its judgment dated 18-10-1999. The appellant has been given benefit of section 382-B, Cr.P.C.
2. The appellant was charged with offence under section 13-E of the Arms Ordinance and section 4/5 of the Explosives Act, 1884 for possessing 5 Rockets (Golas) and 4 Fuses on 14-9-1995 at Qayyumabad Graveyard within the jurisdiction of Police Station Gulzar-e-Hijri, Karachi.
3. The appellant as stated above has not been convicted for any of the offences under the aforesaid enactments but has been convicted and sentenced for an offence under the Explosive Substances Act, 1908. The two Acts are separate enactments and in force till date. The appellant admittedly was not charged with an offence falling within the purview of the Act of 1908. His conviction and sentence cannot, therefore, be allowed to sustain for more than one reason.
Important of them being section 7 which is reproduced hereunder:-- "Restriction on trial of offences.--No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the Provincial Government or an officer authorised in this behalf by the Provincial Government."
4. There is nothing on record to suggest compliance of the abovesaid requirement. Learned Assistant Advocate-General has also conceded to this position.
5. Mr. Shaukat Hussain Durrani, learned counsel for the appellant was then asked whether the appellant was not liable for conviction under section 13-E of the Arms Ordinance to which he contended that the prosecution evidence consisted of only of police officials and the appellant has already remained in custody for about four years.
6. Mr. Syed Jalil A. Hashmi, learned A.A.-G. Appearing for the State has rightly not supported the appellant's conviction under the aforesaid Act of 1908 but submitted that the appellant would be liable for the offence of section 13-E of the Arms Ordinance and also conceded to the reduction in the appellant's sentence to one already undergone.
7. We have given our anxious consideration to the facts of the case and evidence on record and have reached a conclusion that the sentence already suffered by the appellant, which comes to 3 years and 9 months by now, would be valid and justified. Accordingly, we had by a short order dated 14-3-2000 converted/modified the conviction and sentence of the appellant to one already undergone under section 13-E of the Arms Ordinance and ordered his release forthwith while dismissing his appeal. Above are the reasons for the said short order.