2021 PLP 1734 (MLD)

ABDUL MOBEEN LAKHO, J.

Appellant Muqadar Ali alias Imran has preferred filed the instant appeal against the judgment dated 22.10.2020, passed by the learned Anti-Terrorism Court-VIII, Karachi in (Special Old Case No. 156/2020)/ New Special Case No.16/2020 arising out of FIR No. 257/2020 for offence under Sections 4/5 of the Explosive Substances Act 1908 read with Section 7 of the Anti-Terrorism Act, 1997, lodged at P.S Steel Town, Karachi. After full-dressed trial, the appellant was convicted under Section 5 of the Explosive Substances Act, 1908 and sentenced to suffer 05 years' R.I and to pay fine of Rs.50,000/-. In case of default, he was ordered to suffer 06 months more. Appellant was also extended benefit of Section 382-B, Cr.P.C.

2. The brief facts of the prosecution case are that on 06.06.2020, SIP Ali Akbar of PS Steel Town, Karachi, along with his subordinate staff left police station for patrolling in the area. During patrolling, SIP Ali Akbar received spy information that a person is standing near Graveyard Road, Filter Plant Steel Town in suspicious condition. SIP Akbar reached at the pointed place 0430 hours and on the pointation of spy informer, apprehended a person, who, on inquiry, disclosed his name as Muqadar Ali alias Imran. SIP Ali Akbar conducted his personal search and from his shoulder pocket, recovered one hand grenade beating No.2608MG, cash as well as cell phone; which were sealed on spot and arrested the accused in presence of mashirs and such memo was prepared. Accused and case property were brought at police station where FIR has been registered by SIP Ali Akbar against the accused on behalf of State.

3. After registration of the FIR, the investigation was entrusted to Inspector Muhammad Aslam on 06.06.2020. On the same day, I.O. inspected place of incident on the pointation of the SIP Ali Akbar/complainant and prepared such memo in presence of mashirs, recorded statements of witnesses under Section 161 Cr.P.C. I.O. received final report of Bomb Disposal Unit and after completing usual investigation submitted charge sheet for an offence under Sections 4/ 5 of Explosive Substances Act, 1908 read with Section 7 of And-Terrorism Act, 1997.

4. The trial Court framed charge against accused at Ex.03, to which accused pleaded not guilty and claimed to be tried.

5. At the trial, prosecution examined SIP Ali Akber (PW-01) at Ex.5, HC Muhammad Anwar (PW-02) at Ex.6, Muhammad Akram BDU (PW-03) at Ex.9 and Inspector Muhammad Aslam Investigating officer (PW-04) at Ex.10, who produced the relevant documents at trial. Thereafter, the prosecution side was closed vide statement at Ex.11.

6. Trial Court recorded statement of accused under Section 342, Cr.P.C. at Ex.12; wherein he has totally denied the allegations leveled by the prosecution and pleaded his false implication in the present case. The accused however, did not opt to examine himself on oath in disproof of the prosecution allegations under Section 340(2), Cr.P.C. nor examined any witness in his defence.

7. Learned trial Court after hearing the learned counsel for the parties and evaluation of the evidence produced at trial, vide judgment dated 22.10.2020, convicted and sentenced the appellant as stated above, hence this appeal is preferred by the appellant.

8. The evidence produced before the trial Court finds an elaborate mention in the Judgment dated 22.10.2020 passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

9. Learned counsel for the appellant contended that there are material contradictions in the evidence of the prosecution witnesses and prosecution story was highly doubtful; that in the mashirnama of arrest and recovery the recovery of grenade has been shown, whereas, BDU report reflected the recovered explosive as rifle grenade; that there was no evidence before trial Court regarding safe custody of the explosive at malkhana of the police station. Therefore, it is argued that the prosecution has failed to prove its' case beyond reasonable doubt, hence prayed for acquittal of the Appellant.

10. On the other hand, learned D.P.G. contended that evidence of police officials is as good as that of other private witnesses; that all four PWs have fully supported the prosecution case; that contradictions as highlighted by the defence counsel are minor in nature. Learned DPG prayed for dismissal of the appeal.

11. We have carefully heard learned counsel for the parties and meticulously evaluated the entire evidence. Perusal of memo of recovery and arrest, FIR as well as Challan shows that grenade was allegedly recovered from the possession of the appellant, however, SIP Akbar Ali and HC Muhammad Anwar (mashir) have deposed that one hand grenade was recovered from the possession of the appellant. However, the inspection report of Bomb Disposal Unit dated 29.06.2020 shows that SI Muhammad Akram Tanoli of Bomb Disposal Unit along with his team reached at police station Steel Town, Karachi and during inspection found one rifle grenade, which if used with proper technique with its launcher, it would cause loss of lives and damage to properties. There is big difference between "hand grenade" and "rifle grenade" and perusal of evidence of the complainant and mashir FIR, challan and inspection report of Bomb Disposal Unit created doubt and suspicion as to nature and description of the alleged recovery from the appellant. There is material contradiction with regard to nature of recovery from the appellant. Therefore, on this ground alone, false implication of the appellant in this case could not be ruled out. Moreover, the prosecution has also failed to establish the safe custody of the recovered explosive at the police station as neither Incharge of the Malkhana examined nor any entry has been produced by the prosecution to prove the safe custody of the explosive at the police station. Even perusal of arrival entry, we found not a single word about keeping the said property in safe custody or anywhere either it was kept at malkhana of the police station or was handed over to anybody. Non production of any witness concerned with such custody would certainly render the recovery unbelievable and doubtful as held by the Honourable Supreme Court in the case reported as Kamal Din alias Kamal v. The State (2018 SCMR 577), wherein the Honourable Supreme Court has held as under:

4. As regards the alleged recovery of a Kalashnikov from the appellant's custody during the investigation and its subsequent matching with some crime-empties secured from the place of occurrence suffice it to observe that Muhammad Athar Farooq DSP/SDPO (PW18), the Investigating Officer, had divulged before the trial court that the recoveries relied upon in this case had been affected by Ayub, Inspector in an earlier case and, thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial court through production of any witness concerned with such custody and transmission.

12. The I.O. has also failed to interrogate the appellant that with what intention he was carrying such explosive substance. Defense plea has been raised by the appellant that he was picked up by the Rangers Personnel from his house. I.O. failed to examine such plea during investigation even trial Court ignored defense evidence without assigning cogent reasons.

13. In these circumstances and after an independent evaluation of evidence available on record, we have no manner of doubt in our minds that the prosecution has not been able to prove its' case against the appellant beyond reasonable doubt. In the case of Tariq Pervez v. The State (1995 SCMR 1345), the Honourable Supreme Court has observed as follows:- "It is settled law that it is not necessary that there should many circumstances creating doubts. If there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

14. For the above stated reasons, we have come to the conclusion that prosecution has miserably failed to bring home the guilt of appellant. Resultantly, conviction recorded by the learned Trial Court vide judgment dated 22.10.2020 is not sustainable under the law and is also liable to be set aside.

15. For the foregoing reasons, captioned Appeal is allowed. Consequently, judgment dated 22.10.2020, passed by the learned Anti-Terrorism Court-VIII, Karachi in (Special Old Case No. 156/2020)/ New Special Case No.16/2020 arising out of FIR No. 257/2020 for offence under Sections 4/5 of the Explosive Substances Act, 1908 read with Section 7 of the Anti-Terrorism Act, 1997, lodged at P.S Steel Town, Karachi, stand set aside. Appellant Muqadar Ali @ Imran son of Ashiq Ali @ Pinoo is acquitted from the aforesaid charge and he be released forthwith, if not required in other case. These are the reasons for the short order announced on 02.02.2021. JK/M-59/Sindh Appeal allowed.