2016 P Cr (PLP)

ABDUL LATIF KHAN, J.

Through this single judgment we intend to dispose of instant Cr. A. No.187-P/14 filed by appellant Muhammad Irfan and connected Cr. A. No.216-P-P/14 titled, "Muhammad Rasool v. The State", as both the appeals are outcome of one and same FIR and filed against the judgment dated 25.3.2014, passed by learned Judge, Anti-Terrorism Court, Kohat, whereby the appellants Muhammad Irfan and Muhammad Rasool, charged in case FIR No.263 dated 4.7.2012, under section 5, Exp: Sub: Act/ 9 CNSA/ 7 ATA, P.S. Gumbat Kohat, were convicted and sentenced as under:- "U/S 5 Exp: Sub: Act 1908, for a terms of 14 years' R.I each, U/S 9-C CNSA, for a term of 14 years' R.I each along with fine of one Million rupees each and in default thereof to undergo six months' SI; U/s 7, ATA 14 years each with forfeiture of their whole property to the government as envisaged under section 5-A of Exp: Sub: Act 1908. All the sentences would run consecutively and benefit of S. 382-B, Cr.P.C. is extended to the accused."

2. As per prosecution case, the local police during Nakabandi intercepted Motorcar bearing registration No.LHX-3800, being driven by appellant Irfan while Muhammad Rasool was occupying the front seat of the car. The vehicle was searched which led to the recovery of 2650 grams Charas Garda and 5730 grams explosive material (Barood) from the its secret cavities. Consequently the recovered articles were taken into possession, accused were arrested and a case vide FIR mentioned above was registered.

3. After completion of investigation, challan was submitted against accused where in order to prove its case the prosecution examined the following 7 PWs:- "PW.1 Bahadar Nawaz ASI, on receipt of murasila has registered the case vide FIR Ex.PA/1; PW.2 Saleem Shinwari Moharrir IHC was custodian of recovered articles/case property; PW.3 Zafar Ullah Inspector has submitted complete challan against accused; PW.4 Sakhiur Rehman SI is complainant/Seizing Officer who narrated the story as per his report regarding recovery of explosive materials and narcotics from the vehicle occupied by the appellants; PW.5 Jehangir Khan Inspector has conducted investigation in the instant case; PW.6 Ayub Janan HC being member of police party has witnesses the recovered articles taken vide memo. Ex.PC; PW.7 Sami Ullah constable has taken the sample of explosive substances to the BDS." At conclusion of trial the learned trial Court, convicted and sentenced both the appellants vide impugned judgment, hence the instant criminal appeal as well as connected criminal appeal were separately filed by both the appellants. Arguments heard and record perused.

4. Perusal of record reveals that PW.4 during Nakabandi intercepted vehicle bearing No.LXH-3800, occupied by the appellants and from its secret cavities the explosive materials and contraband were recovered by PW.4 in presence of PW.6 and other police party but it is very strange to observe that in the murasila Ex.PA/1 it has been mentioned that explosive materials were recovered from the secret cavities of the vehicle of the appellants but as per Court statement of complainant (PW.4) the recovered articles were not explosive while according to PW.6, it was explosive material so if it was explosive material and dangerous then it was required to the complainant to call for B.D.S, squad for defusing the same but he felt not necessary to summon the B.D.S, as according to him it was not explosive. His version was denied by the PW.6 who stated that B.D.S. staff was called by the SHO for defusing the same. According to PW.6, there were three secret cavities but the complainant has not mentioned its number however when the vehicle was produced there was no secret cavity in the car. Besides in the murasila and Court statements of witnesses, vehicle bearing No.LXH-3800 has been mentioned while the vehicle produced before the Court for exhibition was bearing registration No.3800-Kohat meaning thereby that the recovery has not been effected from the vehicle of appellants. It was also admitted by PW.6 in his Court statement that if the vehicle produced before the Court which does not have the secret cavities then the same would not be the case property of this case.

5. According to PW.6 the recovered contraband were in the shape of slabs while according to PW.4, the same were Garda Charas which contradicts the version of PW.6, as normally Garda Charas are in shape of powder while Charas Pukhta are in shape solid form/slabs. The said PW.6 also stated that each packet was containing one slab and he also admitted that if the case property produced before Court for exhibition and the same were not in the shape of slabs or samples were not taken from any packet, then the case property parcel would not pertain to this case. So when the case property was opened during examination of PW.4, on the direction of the Court, it was observed by Court that it was in shape of pieces and samples were separated only from 8 packets out of 20 packets while the remaining were still in sealed condition which belied the version of prosecution regarding alleged recovery of contraband from the vehicle of appellants. Besides the recovery memo. and Card of arrest of accused do not bear the FIR number due to which it is not clear that the same belong to which case and from whom it has been recovered as mere mentioning of name of appellant on the same in absence of FIR number is not sufficient for establishing their guilt which creates doubt in the prosecution case.

6. It is pertinent to mention that the alleged contraband was recovered on 4.7.2012 while it was received in the FSL on 9.7.2012, after delay of five days for which no plausible explanation has been offered by the prosecution nor the concerned official in whose safe custody it were lying, has been examined in the instant case though FSL is situated in Peshawar which also creates dint in the prosecution case. The recovery of contraband also lend support from PW.4 who stated in cross-examination that he had not separated any sample for sending to the FSL on the spot which means that parcels of samples were prepared in the P.S, and not on the spot though it is clearly mentioned in the report that parcels were prepared on the spot which creates doubt in the prosecution case.

7. So far as the explosive materials are concerned, its recovery is also doubtful as it was allegedly recovered on 4.7.2012 but received in B.D.U, on 9.7.2012 after delay of five days and examined by Khan Zada ASI, Bomb Disposal Expert but neither the said report has been exhibited during trial nor the person who examined the same had been produced in Court in order to strengthen the prosecution version regarding recovery of explosive materials so non-examination of author of the B.D.U, report as well as non-exhibition of the report, it has no evidentiary value regarding the alleged recovery of explosive though it has been declared as propellant which is a chemical using in the production of energy and pressured gas for creating movement of a fluid or to genera propulsion of a vehicle or projectile or other object but the in the said report it has not been mentioned that the recovered stuff can be used in explosive substances for any blast/explosion etc. Besides, prosecution did not bother to examine the B.D.U, Expert in support of its case showing lack of interest on the part of prosecution and dishonest investigation in the instant case. The actual vehicle has also not been produced rather another vehicle was produced before Court so the prosecution failed to prove the recovery of contraband and explosive materials from the vehicle of appellants.

8. Admittedly joint challan has been submitted in the instant case in two different offences i.e., 9-C CNSA and 5, Exp: Sub: Act/7, ATA, and the appellants were also tried jointly by the learned Anti-Terrorism Court which is not in accordance with law though there is no bar for conducting trial jointly but even separate challan should have been submitted because CNSA is separate law Exp: Sub: Act and ATA are different laws.

9. Apart from above, the appellants have not made any confession before the competent Court nor any evidence regarding their link with banned Taliban organization or terrorist have been established by the prosecution. The prosecution also failed to bring on record any previous history of appellants regarding their previous conviction or involvement in narcotics cases which could connect them with the commission of offence.

10. In view of what has been observed above, the prosecution case is full of doubt and material contradictions the benefit of which would go to the accused as it is settled law that for creating doubt single circumstance is sufficient and not many circumstances are required. Therefore, the prosecution has badly failed to prove its case against the appellant beyond shadow of reasonable doubt and the learned trial Court has not appreciated the prosecution evidence in its true perspective and has erred in convicting the appellants vide impugned judgment which cannot be held intact. Resultantly, the instant Criminal Appeal and connected Appeal (Cr. A. 216-P/2014) are allowed, the impugned judgment is set aside and both the appellants are acquitted of the charges leveled against them. They are in custody, be released forthwith if not wanted in any other case. These are reasons of our short order of even date. HBT/70/P Appeals allowed.