NISAR KHAN vs State Ss — 2023 MLD 1189 KARACHI-HIGH-COURT-SINDH

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NISAR KHAN VS State Ss. 4 & 5---Sindh arms act (V of 2013), S. 23-1(a)---anti-Terrorism act (XXVII of 1997), Ss. 6(2)(ee) & 7---Constitution of Pakistan, art. 13---act of terrorism, possession of hand grenade, pistol, revolver and bullets---appreciation of evidence---Prosecution case was that hand grenade, pistol, revolver and bullets were recovered from the possession of the accused---Prosecution case was that the accused persons were merely possessing hand grenades and had not used them at any point---although the recovery of hand grenades was not disputed and the prosecution witnesses were at no point cross-examined with respect to the same---However, it was never established that such recovery was an act of terrorism for which proving terrorist intent was necessary for which object, design and purpose of possession was needed; then only could a conviction under S. 7 of the anti-Terrorism act, 1997 be justified---Nothing was brought on record to suggest that the accused persons were part of a terrorist organization or possessed terroristic intent, design or purpose---Section 6 of the anti-Terrorism act, 1997 was a strict mens rea offence; where it was important for the prosecution to establish such mens rea alongside the actus reus, which was not done in the present case---Even otherwise, it was a matter of record that the accused persons were convicted under S. 5 of the Explosive Substances act, 1908 for possessing hand grenades and also under S. 7(1)(ff) of the anti-Terrorism act, 1997, the offence being described under S. 6(2)(ee) as 'using explosives or having explosives substances in a manner contrary to S. 6(2)(ee) read with S. 6(1)(b) or (c) of the 1997 act---accused persons were essentially punished twice for the same offence which was a violation of their inalienable right prescribed by art. 13 of the Constitution---Circumstances established that the prosecution had failed to prove its case against the accused persons under S. 6(2)(ee), anti-Terrorism act, 1997 as such conviction and sentence awarded to the accused persons being not sustainable under the law was set aside---However, conviction and sentence awarded to the accused persons under S. 23(1)(a) Sindh arms act, 1908 and under S. 5 of the Explosive Substances act, 1908 was maintained---appeal was disposed of with modification in sentence.

NISAR KHAN vs State Ss — 2023 MLD 1189 KARACHI-HIGH-COURT-SINDH

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