2019 PLP 109 (YLRN)

SARDAR MUHAMMAD SARFRAZ DOGAR, J.

At the very outset, it has been noticed that no formal order qua the admission of instant appeal has been passed as yet.

2. Appeal against conviction and sentence.

3. Admit. Notice. Record for today. Learned DPG present in court accepts notice on behalf of the State, therefore, there is no need to issue notice to the State. However, with the concurrence of the parties, instant appeal is decided on merits today.

4. By way of filing above-captioned Criminal Appeal No. 973 of 2018 under subsection (3) of Section 25 of Anti-Terrorism Act, 1997, Muhammad Asif and Muhammad Asim alias Jawad, appellants have impugned the punishing judgment dated 14.11.2018 handed down by the learned Judge Anti-Terrorism Court-1, Multan, who after having been tried in a case registered vide FIR No. 53/2017 dated 29.11.2017, under sections 4/5 of Explosive Substances Act, 1908 and Section 7 of Anti-Terrorism Act, 1997 at Police Station CTD, Multan, were convicted under section 5 of the Explosive Substances Act, 1908 and sentenced to 03 years R.I. each along with direction to forfeit the whole property of both the accused to the Government. Benefit of section 382-B, Cr.P.C. was also extended to both the accused.

5. Facts in-curt divulged in complaint (Ex. PM) drafted and sent by Amjad Hussain 1175/CPL (PW7) on the basis of which formal FIR (Ex. PM/1) was reduced into writing by Amjad Khalil, 802/CPL (PW3) are that on 29.11.2017 at about 6.00 p.m., he along with operation team was present at Aziz Hotel Chowk in connection with arrest of members of proscribed organization and proclaimed offenders, when he received information through source that three terrorist belonging to TTP Al-Qaida were present at Sharif Chowk near Cattle Market Muzaffargarh Road, who were making plan to destroy religious institutions and government buildings/ installations, if raided, they could be apprehended. Deeming the source information to be reasonable, a raiding party was constituted and reached at Sharif Chowk near Cattle Market at about 6.30 p.m. On the pointation of source with the help of operation team, three terrorists were apprehended and from the possession of Muhammad Asif appellant two hand grenades (P-1/1-2) and cash Rs. 600/- were recovered. From the personal search of second accused Atta Ullah one hand grenade (P4) and cash of Rs. 550/- were recovered, whereas, from the possession of Muhammad Asim alias Jawad appellant one hand, grenade (P9) and net cash of Rs. 600/- were recovered.

6. The investigation culminated into the submission of report under section 173 of Code of Criminal Procedure, 1898. The learned trial court framed charge against the appellants and their co-accused Atta Ullah (since P.O.) on 09.02.2018, to which they pleaded not guilty and claimed to be tried.

7. In order to prove its case against the appellants, the prosecution produced and examined, in all, seven witnesses i.e. Ume Tamim Naseem 1141 /CPL (PW1), Muhammad Ameen BDT (PW-2), Amjad Khalil 802/CPL (PW3), Khursheed Ahmad, Inspector (PW4), Latif Ahmad, Inspector (PW5), Waseem Akhtar 958/CPL (PW6) and Amjad Hussain 1175/CPL (PW7). While giving up Ubaida 689/CPL and tendering Trace Chemistry Analysis Report (Ex. PO), the prosecution closed its evidence.

8. Thenceforth, statements of the appellants under section 342 of the Code of Criminal Procedure, 1898 were recorded wherein; they refuted the allegations levelled against them. In reply to the question "Why this case against you and why PWs have deposed against you?" Muhammad Asim alias Jawad, appellant replied as infra:- "I am innocent. I was apprehended by the certain agencies. I have been falsely entangled in this case by the CTD officials owing to score maximum number of such like cases to please the high ups. I am law abiding, citizen of Pakistan. Neither any case was previously stand registered against me nor any of my family members." In reply to the aforesaid question, Muhammad Asif appellant stated as under:- "I have been falsely implicated in this case. I was apprehended by the certain agencies three incumbents from Addah 25 Pull Tehsil Kabirwala District Khanewal while sitting at my shop in presence of many numbers of persons. From 16.11.2017 till 29.11.2017, I remained in the custody of CTD officials. To this effect news in Daily Newspaper Khabrain dated 17.11.2917 was published, the same news of my apprehension. During the course of investigation I produce number of persons of my Illaqa in my support being innocent in this case who also rendered their respective affidavits but the same were not made part of the file intentionally and deliberately. One Safdar Hussain got entered rapt No. 18, dated 16.11.2017 regarding my abduction by three persons of certain agency from Adda Pull-25 Tehsil Kabirwala District Khanewal, at Police Station Haveli Koranga, Tehsil Kabirwala District Khanewal. I an, innocent. I have been falsely entangled in this case by the CTD officials owing to score maximum number of such like cases to please the high ups. I am law abiding citizen of Pakistan. Neither any case was previously stand registered against me nor any of my family members." They did not opt to make statements on oath as their own witnesses in disproof of the allegations levelled against them as provided under section 340(2), Cr.P.C., however, they produced Abdul Ghaffar (DWI), Zafar Ullah, ASI (DW2) and Kashif Zahoor Sheikh (DW3) in their defence.

9. After considering the arguments of the learned counsel for the parties and weighing the material brought on record, the learned trial Judge found the appellants guilty under section 5 of Explosive Substances Act, 1908 and thus on conviction sentenced them as mentioned above. However, they were acquitted of the charge under section 7 of Anti-Terrorism Act, 1997, hence, this appeal.

10. Learned counsel for the appellants contends that the appellants have falsely been implicated in this case as they did not retain alleged recovered material; that the prosecution remained fail to establish affiliation of the appellants with any proscribed organization or to prove their membership with any defunct organization; that there are glaring contradictions and dishonest improvements in the statements of the prosecution witnesses; that no private witness was associated with the investigation or produced before the learned trial court; that the learned trial court has not applied its judicious mind while convicting the appellants; that no incriminating evidence was available with the prosecution to bring home guilt of the appellants, hence, this appeal may be accepted and the appellants may be acquitted of the charge.

11. Conversely, learned Deputy Prosecutor General vehemently opposes the contentions raised by learned counsel for the appellants and maintained that there are no contradictions or improvements in the statements of prosecution witnesses; that the police officials had no mala fide or ill will against the appellants to falsely implicate them in the instant case; that prosecution has fully proved its case beyond shadow of reasonable doubt, against the appellants and finally submits that the appeal in hand may be dismissed, being devoid of merits.

12. We have heard learned counsel for the appellant and the learned Deputy Prosecutor General on behalf of the State at a considerable length and with their assistance have scanned evidence available on record.

13. After careful scrutiny of the materials on record, we have come to an inescapable conclusion that the prosecution has failed prove its case beyond any reasonable doubt against the appellants from its very inception and the prosecution evidence has been found deficient to record conviction against them. We have meticulously examined the record of case from which it divulges that Ex. PK is the recovery memo regarding obtaining examples of explosive material from hand grenades and the same were attested by Ume Tamim Naseem 1141/ CPL (PW1) and Ubaida 689/CPL, (not produced). Similarly, on the personal search of Muhammad Asim alias Jawad, one shopping bag, stitched suite, net cash of Rs. 600/- were recovered which were taken into possession through recovery memo Ex,. PF attested by Umme Tamim Naseem 1141/CPL (PW1) and Ubaida 689/CPL, (not produced). Furthermore, Ume Tamim Naseem 1141/CPL while appearing as PW-1, deposed in her examination-in-chief that:- " .Amjad Hussain summoned the BDT through telephone for defusing the hand grenades. BDT defused the hand grenades and took 3.5 grams samples of explosive material from each hand grenade and handed over the same to I.O. who took into possession vide recovery memos attested by me and Ubaida 689/CPL. I.O. recorded our statement under section 161, Cr.P.C. in this regard. Khursheed Ahmad, Inspector (PW4) also claimed that when he along with corporals reached at the place of occurrence, Amjad Hussain 1175/CPL, Ume Tamim Naseem 1141/CTL, Ubaida 689/CPL and Muhammad Ameen BDT were present at the place of occurrence. On the contrary to above, Muhammad Ameen BDT (PW2) during the cross-examination stated in clear cut manner that he remained at the place of occurrence for two hours. He did not see the accused persons there. Only one female was present there, rest of the CTD officials were men. Thus, the prosecution witnesses are found in contradiction with regard to presence of an important witness, Ubaida 689/CPL at the place of occurrence at the relevant time. Even otherwise, said Ubaida 689/ CPL had not been produced by the prosecution during the trial. It is well-settled that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that if the said witnesses would have been examined, their evidence would have been unfavourable to the prosecution. Reliance is placed on "Muhammad Rafique and others v. The State and others" (2010 SCMR 385) and Haroon Shafique v. The State and others" (2018 SCMR 2118).

14. After scanning the evidence adduced during the trial, we have noticed that there are certain features including the mode and manner of raid and the recovery of hand grenades from the possession of the appellants, the distance between the place of source information and place of recovery as well as arrest of the appellants at the place of occurrence, which call for caution to ensure the safe administration of justice. It has been noticed by us that as per prosecution case as emanated from the complaint (Ex.PM), F.I.R (Ex. PM/1) and the statements of the witnesses, on 29.11.2017 at about 6.00 p.m., Amjad Hussain complainant 1175/CPL (PW7) along with other corporals/contingents was present at Aziz Chowk Hotel, Multan when he received source information that three terrorist belonging to TTP and Al-Qaida were present at Sharif Chowk near cattle market, Muzaffargarh road. However, during the cross-examination Ume Tamim Naseem 1141/CPL (PW1) clearly stated that on 29.11.2017, she along with other members of CTD started from Police Station CTD at about 4.00 p.m. First of all, the raiding party went to Nishtar Chowk and reached there at about 4.15 p.m. They stayed there for about 15 minutes. Then they went to Aziz Hotel Chowk and reached there at about 5.00 p.m. Amjad Hussain Corporal received information about the presence of terrorists. Then they went to Shareef Chowk situated on D.G. Khan Muzaffargarh road which is situated at a distance of 13 KMs from Aziz Hotel Chowk. On the other hand, Amjad Hussain complainant 1175/CPL, during the cross-examination on these lines stated as under:- "We left the Police Station at 4.10 P.M. Firstly, we remained at Nishiar Chowk and thereafter we left for Aziz Hotel. Source informed me when I was standing at Aziz Hotel Chowk and we reached at the place of recovery at about 6.30 PM which is populated." The statement of Investigating Officer Khursheed Ahmad, Inspector (PM/4) is not in line qua the distance between Aziz Hotel and place of occurrence as according to him the distance between the two places is about 20 k.ms. As such all the three witnesses are found in contradiction with regard to distance of above-said two places. Even otherwise, it does not appeal to a prudent mind that it would take 1 hour and thirty minutes to cover up the distance of 20 k.m. which does not tally at all with the distance shown by the prosecution in the site plan (Ex. PN), as according to the site plan (Ex. PN) the distance between point No. 1, (the place from where the complainant had received source information regarding terrorists attack) and point No. 2, (the place of occurrence/recovery) has been shown as 2. km, which itself is sufficient to raise an eyebrow on the story of the prosecution.

15. So far as the recovery of hand grenades from the possession of the appellants is concerned, there is also a glaring mistake on, the part of the prosecution although it has been claimed in the complaint (Ex. PM) and FIR (Ex. PM/1) that two hand grenades from the possession of Muhammad Asif appellant and one hand grenade from the possession of Muhammad Asim alias Jawad appellant have been shown to be recovered, but perusal of the same depicts that neither any mark of identification or specification of the recovered hand grenades nor any number or name of the country made has been mentioned therein so as to connect the same with the accused-appellants. Even otherwise, the prosecution witnesses have also contradicted each other qua the recovery of hand grenades from the possession of the appellants. Furthermore, Ume Tamim Naseem 1141/CPL (PW1), who is the recovery witness in her cross-examination admitted that the grenade allegedly recovered from Asim beard no number and even not mentioned about which country made. Contrarily Muhammad Ameen BDT (PW2) during the cross-examination stated that three grenades were Russian made and one grenade was country made. Three grenades were having numbers. Likewise, Investigating Officer, Khursheed Ahmad, Inspector (PW4) on this crucial point during the cross-examination stated that all the four grenades were made by Russian and it was written on all the four grenades that the same were made by Russian. Again said, Russia is not printed over the hand grenades. All the four grenades are of one kind. These contradictions are sufficient to make the case of the prosecution qua the recovery of hand grenades doubtful.

16. Now, adverting to the mode and manner of arrest of the appellants, it is observed that from the day one, version of Muhammad Asif appellant is that he was apprehended by the certain agencies three incumbents from Adda 25 Pull Tehsil Kabirwala District Khanewal while sitting at his shop and to this effect a new in Daily News Paper Khabrain dated 17.11.2017 was also published. He also claimed that one Safdar Hussain got entered Rapat No. 18, dated 16.11.2017 regarding his abduction by three persons of certain agencies from Adda Pull-25 Tehsil Kabirwala District Khanewal, when juxtaposed with statements of Ume Tamim Naseem 1141/CPL, (PW1), and Muhammad Ameen BDT (PW2). PW1 Ume Tamim Naseem 1141/CPL, during the cross-examination admitted that it was not mentioned in the recovery memos Ex. PB and Ex. PC that they arrested the accused Muhammad Asim, Atta Ullah and Muhammad Asif from Shareef Pura Multan and they recovered the hand grenades from them. Similarly, according to PW2 Muhammad Ameen, BDT, he did not see the accused person there, which makes the prosecution case doubtful in nature qua the arrest of the appellants.

17. There is yet another aspect which has swayed us to draw an inference adverse to the case of prosecution that Investigating Officer, Khursheed Ahmad, Inspector (PW4), during the cross-examination claimed that he reached Shareef Chowk at about 7.00 p.m. BDT was present there and all the grenades were in his custody, whereas, according to Amjad Hussain, complainant 1175/CPL (PW7), I.O. reached at the place of occurrence at about 7.35 p.m. However, the stance taken by the Investigating Officer qua the presence of BDT Muhammad Ameen (PW2) has been found in contradiction and denied by Muhammad Ameen BDT (PW2) who in his examination-in-chief deposed that he reached at place of occurrence at about 7.30 p.m. while boarding on official vehicle bearing registration No. GU-289 and also repeated the said stance during the cross-examination by stating that he reached at the place of occurrence at about 7.30 p.m. All these circumstances cast serious doubts regarding the presence of witnesses at the place of occurrence at the relevant time and their claim of qua the details of the occurrence.

18. Most significantly it has been observed that Muhammad Ameen BDT (PW2) defused four hand grenades on the application of I.O. (Ex. FL) and took 3.5 grams explosive material from each hand grenade and handed over the same to I.O. for onward transmission to the office of Punjab Forensic Science Agency, Lahore. He also presented reports Ex. PG and Ex.PJ, regarding defusing of hand grenade and obtaining of samples to the I.O. and the I.O. also recorded his statement under section 161, Cr.P.C. But said Muhammad Ameen BDT, (PW2) during the cross-examination admitted that he did not prepare the report while sitting at the place of occurrence. He did not sign any recovery of defusing of hand grenade and samples of 3.5 grams taken by him at the time of recovery. It is not merely a minor lapse but there is very strong suspicion about the entire prosecution story.

19. Perusal of Trace Chemistry Analysis Report submitted by Punjab Forensic Science Agency, Lahore dated 18th February 2018 reflects that the explosive materials parcels were received to the FSL on 5th December, 2017, after delay of six days and that too without any plausible or justifiable reasoning or explanation. Even otherwise, according to Moharrar Amjad Khalil 802/CPL (PW3) four sealed parcels said to contain explosive material were handed over to Waseem Akhtar 958/CPL (PW6) on 4.12.2017 for onward transmission to the office of Punjab Forensic Science Agency, Lahore, but the same were deposited by said Waseem Akhtar (958/CPL) on the next day, i.e. 5.12.2017. In such background of the case, no implicit reliance could be placed on Trace Chemistry Analysis Report submitted by the Punjab Forensic Science Agency, Lahore, hence the case of the prosecution is highly doubtful in its perspective.

20. Apart from the above, we have noticed that though in the statements recorded under section 342, Cr.P.C. Question No. 3 regarding taking sample from hand grenades has been put to the appellants, but perusal of the same does not disclose any description and details whereof. Similar is the situation of Question No. 4 pertaining to recovery effected from the appellants has been put to them, again there is no detail about description etc of the hand grenades has been mentioned therein. Even otherwise, it is undeniable that the Trace Chemistry Analysis Report of Punjab Forensic Science Agency, Lahore in respect of four hand grenades recovered from the accused had not been put to the appellants at the time of recording of their statements under section 342, Cr.P.C. The law is settled that a piece of evidence or a circumstance not put to an accused person at the time of recording his statement under section 342, Cr.P.C. cannot be considered against him. Reliance in this regard is placed on "Imtiaz alias Taj v. The State and others" (2018 SCMR 344), "Muhammad Siddique v. The State" (2618 SCMR 71) and "Qaddan and others v. The State" (2017 SCMR 148).

21. In view of the foregoing discussion, we have arrived at the irresistible conclusion that the prosecution case is replete with major contradictions, infirmities and loopholes, the benefit of which should have been extended to the appellant by the learned trial court as there is no cavil to the proposition that the responsibility to prove its case squarely rests upon the shoulders of the prosecution that has not been discharged successfully in this case and it is also a settled law that benefit of each and every doubt is to be extended to the accused and that only a single reasonable doubt qua the guilt of the accused is sufficient to acquit him of the charge. Even as per saying of the Holy Prophet Hazrat Muhammad ( ) "the mistake in releasing a criminal is better than punishing an innocent person". Same principle was also followed by the Hon'ble Supreme Court of Pakistan in the case of 'Ayub Masih v. The State' (PLD 2002 SC 1048), wherein, at page 1056, it was observed as under " It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." In supra mentioned case of Ayub Masih, the Hon'ble Supreme Court was also pleased to observe as under:- " .The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim. "it is better that ten guilty persons be acquitted rather than one innocent person be convicted."

22. Resultantly, we accept the instant appeal, set aside the impugned judgment of conviction and sentence, recorded by the learned trial Court and acquit the appellants of the charges levelled against them. They shall be set free forthwith if not required in any other case. JK/M-118/L Appeal allowed.