2026 PLP 206 (MLD)

Rozi Khan Barrech, J.

The accused/appellant Riaz Ahmed, son of Muhammad Umar, allegedly affiliated with the proscribed Baloch Liberation Army ("BLA") was apprehended by the Counter Terrorism Department officials ("CTD") and recovered suitcase, which contained white coloured plastic shopper, 3-feet long orange coloured prima cord, a small paper-carton upon which "True Wireless Handset" was written, which contained two electric detonators and 4 kg and 250 grams grey coloured explosive materials at the area of New Sabzal Road Quetta within the precincts of Saddar Police Station on 08.09.2023 at 7:50 pm. For the commission of the said offence, the appellant was booked in FIR No. 90 of 2023 at PS CTD Quetta registered under sections 4 and 5 of the Explosive Substances Act, 1908 read with sections 6(2)(ee), 7 (1) (ff), 11-F, (1), (2), (6), 27-A, 21 (i) 7 of the ATA, 1997 with the said police station on 08.09.2023 at 8:55 pm. After a regular trial, the accused/appellant was convicted under section 5 of the Explosive Substances Act, 1908 and sentenced to suffer for five (5) years RI and to pay a fine Rs.10,000/-. In default of fine to further undergo SI for six (6) months and under section 11-F read with section 11-N of ATA, 1997 to suffer one (1) year RI and to pay a fine of Rs.5,000/-. In default of fine to further undergo SI for one (1) month vide judgment dated 27.11.2024 ("the impugned judgment") passed by learned Special Judge, Anti-Terrorism Court-I, Quetta ("trial Court").

2. Aggrieved from the impugned judgment, the accused/appellant, Riaz Ahmed, has assailed his conviction and sentence through the instant appeal.

3. We have considered the worthy arguments advanced by the learned counsel for the appellant as well as learned APG and carefully scanned the material available on the record.

4. According to the prosecution story set forth in the FIR that on 08.09.2023, the officials of CTD high-ups received spy information that one Riaz Ahmed, affiliated with proscribed BLA and with the terrorists of BLA, had been committing terrorism in the mountains of Hernai, now he is coming back to Quetta with a large amount of explosive substances and currently present at New Sabzal road waiting for his accomplice(s) and intends to commit terrorism in Quetta. On such information, at 07:50 p.m, the CTD officials arrived at New Sqabzal road, at the instant of the informer, overpowered the accused/appellant while he was standing near Geraj Kasi Plaza having a small suite-case in his hand. The B.D Team Incharge opened and checked the suitcase, which contained his belongings and a white coloured plastic shopper, a 03-feet long orange coloured prima cord, and a small paper-carton upon which "True Wireless Handset" was written which contained 2 electric detonators. The plastic shopper was checked, which contained 4 kg and 4250 grams of grey coloured explosive materials. On his personal search, a cash amount of Rs.540/-, a coloured copy of the CNIC of the accused/ appellant, one touch-mobile Infinix along with two U-phone SIMs were recorded.

5. After perusal of the record, it is an admitted fact no remote control was recovered from the possession of the accused/appellant, and during the course of the investigation no documents was brought on record that the accused/appellant belongs to the proscribed organization, which was also admitted by the Investigation Officer ("IO") Asghar Ali IP (PW-8). The only evidence against the accused/appellant is that while he was in police custody he made a disclosure before the police, and the said disclosure is not admissible in view of Article 38 of Qanun-e-Shahadat Order, 1984, which states that the confession made before the police is not admissible. There is no confessional statement under section 164, Cr.P.C of the accused/appellant before the learned Judicial Magistrate; as such, this piece of evidence is of no help to the prosecution case.

6. Allegedly, the accused/appellant was arrested from New Sabzal Road near Geraj Kasi Plaza. The said road was newly built in the name of CPEC Road, which is a straight road and from where the accused/appellant was allegedly apprehended the police vehicles could easily be seen from a distance of 3 to 4 kilometers, and it is alleged by the prosecution that the officials of CTD, along with officials of Anti-Terrorism Force (ATF), allegedly came in three officials vehicles, how is it possible that a person belonging to proscribed organization BLA and intends to explode the explosive substance and did not try to escape from the scene and was without any weapon and would wait for Law Enforcement Agencies to come and apprehend him, which does not appeal to the prudent mind. On the other hand, the accused/appellant took the plea that one month prior to the incident, i.e. 12.08.2023, the CTD officials arrested him along with his neighbor, namely Bebark, from his house and later on, they were booked in false case. The accused/appellant produced defense witnesses, namely Mst. Zainab (DW-1) and Mst. Haseena (DW-2). Both are the sisters of the accused/appellant and they also gave statements on oath before the court that on 12.08.2023, the CTD officials apprehended the accused/appellant from their house and later on booked him in a false case.

7. It is, however, observed that the conviction of the accused/appellant could not be maintained unless the prosecution also proves that IED contained an explosive substance which could cause it to explode. For this, it must produce a forensic report whose credibility depends on safe custody and safe transmission of the device, extraction of samples of explosive substance there-from and safe transmission thereof to the laboratory. In this regard, we have also observed that the prosecution produced Farhan Qayum, Head Moharar of PS CTD Quetta as PW-4, who stated in his statement that on 08.09.2023 the IO Asghar Ali handed over the parcels to him and he kept the same in malkhana after registering in Register No. 19 but he did not say a single word that to whom and when he handed over the parcels for onward transmission to Punjab Forensic Sciences Agency (PFSA). Ghulam Ali, Head Constable (PW-5) stated in his statement that on 09.09.2023, Parcel Nos. 1 and 5, and sealed Parcel No. 06 were handed over to him for taking the same to PFSA, Lahore by Farhan Qayyum (PW-4) and on 10.09.2023 he reached to Lahore and handed over the same to an official of PFSA, Lahore but on the other hand, while the IO/IP Asghar Ali appeared before the court as (PW-8) and stated in his statement that on 13.09.2023 the parcels for PFSA. Lahore were handed over to Ghulam Ali and he further stated in his statement that on the said date he recorded the statement under section 161, Cr.P.C of Ghulam Ali. Once (PW-4) Ghulam Ali received parcels for onward transmission to PFSA, Lahore, on 09.09.2023 from Head Mohrar Farman Qayyum and the IO gave another stance that he handed over the parcels to Ghulam Ali on 13.09.2023, but in FSL report (Exp/8-B) the parcels are received on 11.09.2023 by the official of PFSA, Lahore. The above contradictions in the statements of the witnesses create serious doubt about the safe custody and safe transmission of the alleged explosive substances to PFSA, Lahore; as such, in the instant case, the concept of safe custody of the property and safe transmission had completely been shattered. As a result, the chain of custody breaks and the forensic report loses credibility

8. The record transpires that the trial court, while convicting the accused/appellant, relied upon the report of the PFSA, Lahore, but the trial court did not put any question to the accused/appellant while recording his statement under section 342, Cr.P.C about the safe custody and safe transmission and even did not put a specific question that the PFSA, Lahore received explosive substances and after examination who gave a positive report.

9. It may be observed that the statement of the accused/appellant in terms of section 342, Cr.P.C. had not been recorded in accordance with its spirit, and such departure therefrom is not permissible. The use of the word "shall" in the latter part of subsection (i) of section 342, Cr.P.C. indicate that the examination of the accused is mandatory and not discretionary. If, after the conclusion of the trial, it is found by the trial court that any circumstances appearing in the evidence against the accused is lightly helpful towards his conviction, then the court would not be competent to take the same into account without questioning him on that point so that accused may be able to explain his position properly. It is not out of place to mention here that the trial court relied upon the report of the Forensic Science Laboratory for convicting him, thereby using the evidence available on the record against him. It is important to note that all incriminating pieces of evidence available on the record are required to be put to the accused, as provided under section

342. Cr.P.C. in which the words used are "For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him" which clearly demonstrate that not only the circumstances appearing, in the examination-in-chief are put to the accused but the circumstances appearing in cross-examination or re-examination are also required to be put to the accused, if they are against him because the evidence means examination-in-chief and re-examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order, 1984 The perusal of the statement of the appellant, under section 342, Cr.P.C., reveals that the portion of the evidence, i.e. report of Forensic laboratory, as well as about safe custody and safe transmission of case property was not put to the accused in his statement under section 342, Cr.P.C. enabling him to explain the circumstances, particularly when the same was abandoned by him. It is well-settled that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C., then the same cannot be used against him, for his conviction. In this case, the court below, without realizing the legal position, not only used the above portion of the evidence against him but also convicted him on a such piece of evidence, which cannot be sustained".

10. The material question was not confronted to the accused/appellant while recording his statement under section 342, Cr.P.C. This fact alone is sufficient to believe that, unfortunately, the trial court did not go through the prosecution evidence while recording the statement of the accused/appellant under Section 342, Cr.P.C, such piece of evidence cannot be used against him in any eventuality for maintaining his conviction and sentence. Reliance is placed on the case reported as "Muhammad Shah v. The State" (2010 SCMR 1009), wherein it has been laid down as under:- "

11. It is not out of place to mention here that both the Courts below have relied upon the suggestion of the appellant made to the witnesses in the cross-examination for convicting him thereby using the evidence available on the record against him. It is important to note that all incriminating pieces of evidence, available on the record, are required to be put to the accused, as provided under section 342, Cr.P.C. in which the words used are "For the purpose of enabling the accused to explain any circumstances appearing in evidence against him" which clearly demonstrate that not only the circumstances appearing in the examination-in-chief are put to the accused but the circumstances appearing in cross-examination or re-examination are also required to be put to the accused, if they are against him, because the evidence means examination-in-chief and re-examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order, 1984 The perusal of statement of the appellant, under section 342, Cr. P. C., reveals that the portion of the evidence which appeared in the cross-examination was not put to the accused in his statement under section 342, Cr.P.C enabling him to explain the circumstances particularly when the same was abandoned by him. It is well-settled that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C. then the same cannot be used against him for his conviction. In this case both the Courts below without realizing the legal position not only used the above portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be sustained" Reliance can also placed in the case of Qaddan and others v. The State reported as 2017 SCMR 148; the Hon'ble Apex Court has held as follows: "

3. Apart from that the motive set up by the prosecution had never been put to the present appellants at the time of recording of their statements under section 342, Cr.P.C. The law is settled that a piece of evidence not put to an accused person at the time of recording of his statement under section 342, Cr.P.C. cannot be considered against him." Reliance is also be placed in the case of Bashir Muhammad Khan v. The State (2022 SCMR 986) wherein the Hon'ble Apex Court has held as follows: "As far as the abscondence of the appellant for a period of about six months is concerned, this question was not put to the appellant in his statement under section 342, Cr.P. C, therefore, the same cannot be used against him."

11. We are dismayed with the causal and cursory manner with which the learned trial court had handled the matter of recording the statement of the accused/appellant under section 342, Cr.P.C., which completely shorn of the necessary report of the FSL, safe custody and safe transmission are required to be put to the accused/appellant, enabling him to explain the same. Due to the non-formulation of needed questions by the trial court, the accused/appellant can legitimately claim that no evidence can be used against him. It goes without saying that the shortcomings/loopholes highlighted above were not merely irregularity but the same was downright illegality, which vitiates the appellant's conviction and sentence.

12. In view of the foregoing discussion, we have arrived at the irresistible conclusion that the prosecution case is replete with infirmities and loopholes, which entirely vitiates the prosecution case, the benefit of which should have been extended to the appellant by the trial court and 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 doubt is to in this case and it is also a settled law that benefit of each and every 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. Moreover, it is established law that where evidence creates doubt about the truthfulness of the prosecution story, its benefit has to be given to the accused without any reservation, and there is no alternative but to acquit the appellant by giving them the benefit of the doubt.

13. Thus, considering the material available on record in the light of the evidence and overall circumstances of the case, the prosecution has not only failed to prove the alleged recovery of explosive substance from the possession of the appellant but also failed to prove the case without any shadow of a doubt. Resultantly, the impugned judgment dated 27.11.2024 passed by the learned Special Judge Anti-Terrorism Court-I, Quetta, in Special Case No. 66/2023, FIR No. 90/2023 of PS CTD Quetta, is set aside, and the appellant, namely Riaz Ahmed, son of Muhammad Umar is acquitted of the charge. He is ordered to be set at liberty forthwith, if not required in any other case or offence. The above are the reason of our short order dated 17.04.2025. JK/91/Bal. Appeal allowed.