2020 PLP 548 (MLD)

MUHAMMAD TARIQ ABBASI, J.

Through this appeal, the State has challenged acquittal of the respondents, recorded through judgment dated 20.12.2013, passed by the learned Judge, Anti Terrorism Court-II, Rawalpindi Division, Rawalpindi.

2. Notices to the respondents were issued and in consequence thereof respondents Nos. 4 and 5 had entered appearance. It has been reported that respondent No. 3 has died, whereas non-bailable warrants of arrest issued, against the remaining respondents have been received back with the reports that they were Afghani, hence returned to their native country.

3. Under the above mentioned circumstances as the appeal can be decided on the basis of arguments of the State as well as the respondents in attendance, therefore, it is being disposed of.

4. The respondents were booked in case FIR No. 82 dated 15.2.2013, registered under Sections 4/5/6 of Explosive Substances Act, 1908, Section 7 of Anti Terrorism Act, 1997 and 13 of the Arms Ordinance XX, 1965 at Police Station Taxila, District Rawalpindi, with the precise allegations of possessing Explosive material. They were challaned to the Court and trial was held before the learned Judge, Anti Terrorism Court No.II, Rawalpindi Division, Rawalpindi and finally through the above mentioned judgment they were acquitted of the charge.

5. The offence under Section 5 of the Explosive Substances Act, 1908 was charged against the respondents but according to Section 7 of the said Act, prior permission for prosecution by the competent authority was required. The above mentioned provision reads as under:-- "

7. 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] [to which intimation shall be sent within two days of the registration of the case:] [Provided that if the consent is neither received nor refused within sixty days of the registration of case the Government such consent shall be deemed to have been duty given.]" It is crystal clear from the bare reading of the above mentioned provision of law that sanction for prosecution for holding trial under Explosive Substances Act is mandatory and a condition precedent for prosecution, of the respondents, under section 5 of the said Act. In absence of the requisite sanction/permission, entire proceedings taken would be void and without jurisdiction. The word "shall" used in above mentioned section leaves no room for any departure therefrom. Although, Section 19(8-B) of Anti Terrorism Act, 1997 makes a relaxation to the effect that if sanction is applied but not granted by the competent authority within 30-days, then the due proceedings towards initiation of trial may be carried on. For ready reference the said provision is reproduced herein below:-- "

19. Procedure and Powers of [Anti Terrorism Court. [(1) [(1A) (2) (3) [(4) (5) (6) [(7) (8) [(8-A) (8-B) Notwithstanding anything contained in section 7 of the Explosive Substances Act, 1908 (VI of 1908), or any other law for the time being in force, if the consent or sanction of the appropriate authority, where required, is not received within thirty days of the submission of challan in the Court, the same shall be deemed to have been given or accorded and the Court shall proceed with the trial of the case.]" From the above mentioned provision, one thing is clear that request for prosecution should have been made. When there is mention of receipt of consent or sanction within thirty days, it impliedly indicates to sending and seeking consent/sanction. Admittedly, in the instant case no such request has been made and as such under Section 7 of the Explosive Substances Act, 1908, as well as Section 19(8-B) of Anti Terrorism Act, 1997, prosecution and trial was not competent and possible.

6. The above mentioned fact alone was sufficient to give premium of acquittal to the respondents and as such learned trial Court on the basis of said ground, coupled with others, fully detailed in the impugned judgment, had rightly awarded the said premium to the respondents. In this way, the impugned judgment, being well reasoned and call of the day is not open to any exception and as such does not warrant any interference.

7. Due to the reasons mentioned above, the appeal in hand being devoid of any force or merit is dismissed. Consequently, notices issued to the respondents are withdrawn. SA/S-84/L Appeal dismissed.