2019 P Cr (PLP)

ALI BAIG, J.

The instant criminal appeal has been directed by Khairullah son of Shaban Ali appellant against the impugned judgment dated 08.07.2018 passed by the learned Judge Anti-Terrorism Court Gilgit-Baltistan Gilgit, whereby the learned trial court has convicted the appellant/convict under section 5 of the Explosive Substances Act, 1908 read with section 7(1)(FF) of Anti-Terrorism Act, 1997 and sentenced to suffer imprisonment for 10 years and has also forfeited the whole property of the appellant/convict.

2. The necessary facts giving rise to the filing of the present appeal are that on receipt of secret information on 03.03.2016 that there are hand grenades in the shop of Husain Akber son of Khairullah situated at Sonikot which can be used in terrorism act at any time. Accordingly, raiding party consisting of Inspector Sher Alam, ASI Usman Ali, H.C. Tasirullah, UP/HC Abdul Mubeen, Maqsood Alam H.G.C. F.C. Shakeel Ahmed and Driver Babar Khan constituted and raided on the aforesaid shop of Hussain Akber and recovered two hand grenades from the said shop. The present appellant/convict was present in the aforesaid shop. The police arrested the convict/appellant from the said shop and case against the appellant was registered vide FIR No.20/2016 dated 03-3-2016, under section 5, Explosive Substances Act, 1908 and sections 6/7, A.T.A., 1997 at Police Station Air Port, Gilgit.

3. It would not be incongruous to mention here that initially J.I.T was constituted to investigate this case and J.I.T after conducting investigation discharged the appellant and his co-accused Hussain Akber under section 169, Cr.P.C. due to non availability of sufficient evidence against them and their names were placed in column No.2 of format of incomplete challan and incomplete challan Exh-PW-8/C was submitted before the learned ATA Court on 21-10-2016 against the absconding accused namely Ayub Khan son of Abdul Sittar resident of District Kohistan. The above named absconding accused was declared as proclaimed offender by the trial court vide order sheet dated 31-10-2016. Thereafter, the learned trial court called the appellant and his co-accused Hussain Akber. Charge against the appellant and absconding accused namely Muhammad Ayub was framed by the trial court on 03-7-2017. To which the present appellant/convict pleaded not guilty and opted to contest the case, whereas, charge against the principal/absconding accused was framed in absentia on 03-7-2017. The learned trial court has discharged the nominated accused namely Hussain Akber from the case/charge vide order sheet dated 03-7-2017.

4. During trial the prosecution in order to prove its case produced as many as 8 PWs in the trial court. After production/examination of above mentioned 8 PWs in the trial court, the learned Special Prosecutor closed prosecution evidence.

5. After closing of prosecution evidence, the learned trial court recorded the statement of appellant/convict under section 342, Cr.P.C. Accused in his statement recorded under section 342, Cr.P.C. denied the prosecution allegations and professed innocence. In answer to question No.1 the appellant/convict responded/stated as under-- "I am innocent; I have falsely and malafidly and malignantly been involved in the planted and fabricated recovery by Inspector Sher Alam. I am 90 years old and all senses including senses of vision are extremely week. And I cannot even walk without support. After through investigation the J.I.T has declared me innocent under section 169, Cr.P.C."

6. The appellant did not opt to get record his statement on oath under section 340(2), Cr.P.C. and has not produced any witness in his defense.

7. At the conclusion of trial after hearing arguments of the learned counsel for the parties and going through material available on record, the learned trial court concluded that after evaluation of the entire evidence of the prosecution, I am of the considered view that the case has been proved against the accused Khairullah beyond any shadow of doubt through sufficient ocular and circumstantial evidence. The appellant was convicted and sentenced per the impugned judgment as mentioned above.

8. The learned counsel appearing on behalf of the appellant/convict contended that appellant is neither owner of the shop from where the hand grenades were allegedly recovered nor the alleged recovery was effected on the pointation of the appellant/convict nor the appellant has any connection with the alleged recovery, hence learned trial court has committed material irregularity and illegality while convicting the appellant, as such the impugned judgment passed by the learned trial is not maintainable and liable to be set aside. The learned counsel for the appellant/convict further argued that the appellant was not directly charged in the FIR rather co-accused of present appellant namely Hussain Akber was directly nominated in the FIR, but the prosecution has discharged the above named accused under section 169, Cr.P.C. The learned counsel for the appellant further argued that Joint Investigation Team was constituted to probe into the case of the appellant and J.I.T after conducting thorough Investigation has exonerated the appellant/convict and he has been released/discharged under section 169, Cr.P.C. declaring the appellant innocent. The learned counsel for the appellant further argued that the appellant is 90 years old and he is not capable to commit any offence and police have falsely implicated the appellant in this case with mala fide intention.

9. On the other hand the learned Dy. Advocate General controverted the arguments advanced by the learned counsel for the appellant and supported the impugned judgment passed by the learned trial court by contending that two hand grenades were recovered from a shop wherein the present appellant/convict was sitting at the time of effecting recovery. The learned Dy. Advocate General further argued that prosecution witnesses have fully supported the instant case and their evidence has further been supported by the confessional statement of appellant recorded under section 21-H of A.T.A., 1997 by SSP Gilgit. The learned Dy. Advocate General further argued that although all P.Ws are police officials and police officials are as good prosecution witnesses as compare to any other witnesses.

10. We have heard the learned counsel for the appellant and learned Dy. Advocate General appearing on behalf of the State and with their able assistance perused the record with due care and caution.

11. It is an admitted fact that the appellant/convict was not directly charged in the FIR rather the spy informer had informed the police that there are hand grenades in the shop of one Hussain Akber situated at SoniKot Gilgit and admittedly Hussain Akber was owner of the disputed shop from where the police had allegedly recovered two hand grenades. J.I.T comprising of senior police officials was constituted and J.I.T after conducting thorough investigation had declared the appellant and his son Hussain Akbar innocent and had released the appellant/convict under section 169, Cr.P.C. The shop in question was situated at Sonikot which is thickly populated area and under section 103(1), Cr.P.C. before making a search, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which place to be searched is situate to attend and witness the search, but in the present case any respect able person from the locality was not associated with police at the time of search of the shop in question, hence the police have violated the mandatory provision section 103, Cr.P.C.

12. It is not disputed that the appellant was not owner of the shop in question from where the police have allegedly recovered hand grenades rather one Husain Akbar was the owner of the shop in question and according to prosecution version the appellant was sitting in the shop in question. It is also not disputed that nothing had been recovered from the appellant's Physical possession, nor on the pointation of the appellant/convict and hand grenades had been recovered from the shop owned by one Husain Akbar as evident from the contents of FIR.

13. It is well settled principle of law that mere presence of a person in a shop owned by another person cannot be treated as sufficient to held responsible of possession of the prohibited item/hand grenades unless he was conscious and aware of availability of such prohibited weapon/item in the shop. The prosecution has failed to lead any evidence in this case to establish the connection of the appellant with the shop in question from where the prohibited grenades were recovered as its owner. Our this view is fortified by case laws reported in PLD 2012 SC 369 and 2007 PCr.LJ 483.

14. Furthermore, the appellant's date of birth is 1937 as per his National Identity Card. Copy of said NIC is available on file as such he is 81 years old and he is not capable to commit such offence at this advanced age.

15. In the instant case we are of the considered view that judgment passed by the learned trial court is not fair judgment as it is not based on proper, just and legal appreciation of the evidence on record and relevant provisions of law. Case of the prosecution is doubt full in nature and evidence available on record is not in any way sufficient to lead a conclusion that the appellant be convicted of the offence alleged against him.

16. In view of what has been discussed above, we find that prosecution has not been able to establish it against the appellant beyond shadow of reasonable doubt and appellant is entitled to acquittal. Accordingly, this appeal is accepted and we set aside the impugned judgment dated 28-7-2018 passed by the learned Anti-Terrorism Court No.1 Gilgit-Baltistan and appellant is acquitted of the charges mentioned above. Appellant has already been released on bail by this court on 20-8-2018 by suspending the impugned judgment of the learned trial court. File. SA/218/GB Appeal accepted.