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Once the Prosecution establishes Possession of Explosives, the Burden of Proof shifts to the Accused to demonstrate a lawful purpose --- Supreme Court of Pakistan

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Once the Prosecution establishes Possession of Explosives, the Burden of Proof shifts to the Accused to demonstrate a lawful purpose --- Supreme Court of Pakistan

Islamabad 19-08-2024: In a significant ruling, the Supreme Court of Pakistan has partially allowed an appeal filed by Muhammad Asjad, convicted under the Anti-Terrorism Act, 1997 (ATA), and the Explosive Substances Act, 1908. The Court reduced the sentence of life imprisonment handed down by the lower Courts to fourteen years, while also laying down important legal principles regarding the application of the ATA and the burden of proof in cases involving explosive materials.

Muhammad Asjad was initially convicted by the Anti-Terrorism Court-IV, Lahore, under Section 4 of the Explosive Substances Act, 1908, and Section 7(1)(ff) of the ATA, 1997. He was accused of possessing 2.1 kilograms of explosive substances and an electric circuit. The Lahore High Court upheld this conviction, leading Asjad to file an appeal in the Supreme Court.

The petitioner’s counsel argued that the provisions of the ATA were wrongly applied to the case, citing inconsistencies in witness statements and the Supreme Court’s ruling in Ghulam Hussain v. State (PLD 2020 SC 61). The defense contended that the prosecution failed to prove malicious intent necessary for a conviction under Section 4 of the Explosive Substances Act, and that the sentences imposed were unduly harsh.

Conversely, the State’s representative maintained that the prosecution had successfully proven its case beyond a reasonable doubt and that the provisions of the ATA were correctly applied, particularly in light of Section 27A, which presumes possession of explosives without lawful justification as an act of terrorism.

After reviewing the case, the Supreme Court upheld the legal interpretation that under Section 27A of the ATA, once the prosecution establishes possession of explosives, the burden of proof shifts to the accused to demonstrate a lawful purpose. The Court further differentiated between Sections 4 and 5 of the Explosive Substances Act, noting that while Section 4 requires proof of malicious intent, Section 5 criminalizes suspicious possession of explosives, a less stringent but serious offense.

In a crucial part of its ruling, the Court reduced the sentence for the offense under Section 7(1)(ff) of the ATA from life imprisonment to fourteen years, citing mitigating circumstances such as the absence of a live electric circuit and the petitioner’s lack of prior criminal history. Additionally, the Court upheld the seven-year sentence under Section 5 of the Explosive Substances Act, with both sentences to run concurrently.

This ruling reaffirms the legal principle that the possession of explosives without lawful justification can trigger the presumption of terrorism under the ATA, significantly impacting how such cases are prosecuted in the future. The decision also underscores the importance of considering mitigating factors during sentencing, allowing for judicial discretion based on the specifics of each case.

The Supreme Court’s judgment provides a nuanced interpretation of the ATA and Explosive Substances Act, setting a precedent for future cases involving the possession of explosive materials. The partial reduction in sentencing reflects the Court’s balanced approach in administering justice while maintaining the severity of penalties for terrorism-related offenses.