2005 PLP 117 (YLR)

IJAZ-UL-HASSAN KHAN, J.

Shortly narrated the facts of the case are that on 2-7-2004 P.W. Kifayatulla, S.H.O., Police Station, Bakka Khel, Bannu along with police contingent had laid 'Naqabandi' on Bannu-Miranshah Road when at about 1630 hours, a Flying Coach bearing No.MNR 2187 coming from Miranshah side was stopped for checking. A person having a handgrenade in his right, hand was alighted from the Coach. On his search, one .30 bore pistol along with bandolier and a spare magazine containing 9 live rounds of .30 bore and other explosive material was recovered from him. On query, lie disclosed his name as Abdur Rehman son of Afsar Khan, resident of Miranshah. He was formally arrested and a murasila was drafted under section 5 of Explosive Substances Act, 1908 section 7 Surrender of Illicit Arms Act, 1991 section 7 Anti-Terrorism Act, 1997 and section 13 Arms Ordinance, 1965 which was sent to police station for registration of case. The recovered articles were taken into possession. The handgrenade and other explosive materials were sent to Fire-arms Expert for opinion. After obtaining sanction for prosecution, challan was put in the Court of Mr. Muhammad Yaqoob Khan Khattak, Judge Anti-terrorism Court, Bannu.

2. The prosecution in order to prove its case against the accused, produced five witnesses namely Kifayatullah S.H.O. (P.W.1), Hazrat Ali Shah, A.S.-I. (P.W.2), Muhammad Ishaq I. H. C. (P.W.3), Ibrahim F.C. (P.W.4) and Muhammad Ayaz Khan, A.S.-I. (P.W.5). Accused was examined under section 342, Cr.P.C. wherein he denied the prosecution allegations and claimed to have been falsely implicated in the case. In answer to a question as to what is his statement and why he has been charged, the accused replied. "I am innocent and have been falsely implicated in the instant case by S.H.O. Kifayatullah. In fact I am the permanent resident of Spinvan where our family developed enmity with one Atlas Khan and for that reason our family shifted to village Bakka Khel. On the day of occurrence when I was returning from Mir Ali where I am student of Islamic Maddrassa. S.H.O. Kifayatullah deboarded me from the Flying Coach and took in to the police station where I was confined. Later on I was told that a case of recovery of different Arms and ammunition and handgrenade has been registered against me. I raised hue and cry but in vain. The alleged recovered articles do not belong to me. These have been planted by the S.H.O. in active connivance of the different police officials." He neither appeared as his own witness on Oath as required under section 340(2), Cr.P.C. nor produced any evidence in his defence.

3. Upon consideration of the material on record learned trial Judge through judgment dated 4-8-2004 convicted accused Abdur Rehman under section 5 of Explosive Substances Act and sentence him to suffer seven years R.I. The learned trial Court also convicted him under sect 13 Arms Ordinance and sentenced hint undergo two years R.I. On fur, conviction under section 7(i) of the A Terrorism Act, he was sentenced to year R.I. All the sentences were ordered run independently.

4. Appellant Abdur Rehman has filed instant Criminal Appeal No.104 of 2004 challenging his conviction and sentence.

5. Syed Zafar Abbas Zaidi Advocate appearing on behalf of the appellant contended inter alia, that prosecution not been able to prove its case against appellant and for that matter the impugned judgment of the learned trial Court erroneous and is the outcome of misreading and non-appreciation of the evidence; the report of the A.I.G. Police, Peshawar regarding his opinion is not admissible evidence; that the non-descriptive report the A. I. G. regarding the handgrenade also of no benefit to the prosecution because the handgrenade was not sign that there is nothing on record to show the alleged .30 bore pistol was, if at all, serviceable nor there is anything to show that the rounds recovered were also actually live. It has not been sent to the Laboratory at all; that the investigation of the case by A.S.-I. and non-preparation of the recovery memos by the officer, who allegedly made the recoveries weighs heavily against the prosecution case that the provisions of section 103, Cr.P.C. have been flagrantly violated in this case which has rendered the prosecution story doubtful.

6. Syed Abid Hussain Shah, Advocate appearing for the State, on the other hand, supported the impugned judgment and maintained that evidence of the prosecution is very convincing. The prosecution witnesses are consistent regarding the time and place of checking and the recovery of the articles and the manner in which it has been effected; that the police witnesses had no enmity or grudge or motive to falsely involve the appellant in this case and that no material discrepancies and contradictions are found in the statements of prosecution witnesses to cause dent in the prosecution case.

7. It is a fundamental principle of criminal justice that an accused person is always presumed to be innocent unless the prosecution establishes his guilt beyond shadow of reasonable doubt. Keeping this basic principle in view, we have carefully re-appraised the evidence brought on record and we feel that the prosecution has not succeeded to prove its case and bring home guilt to the appellant beyond a pale of reasonable doubt. It is specifically mentioned in the murasila that on search of the Flying Coach, a person having a grenade in his right hand was deboarded and on his further search, a .30 bore pistol and other explosive material were recovered. It does not stand to reason that a person having other explosive material in a plastic bag, would be having a grenade in his hand. He could easily have kept the same in the plastic bag carried by him at the relevant time. There was no occasion for him to have exposed the grenade to the passengers sitting with him in the Flying Coach. It may, be noted here that in the murasila, number of the hand grenade has been given as 58-85Y3P TM-3/583. The report Exh.P.W, 5/3 of Bomb Disposal, Peshawar is silent regarding number of the handgrenade. Further, the non-descript report of the A.I.G. regarding the handgrenade is also not in favour of the prosecution as the handgrenade was not ignited. Moreover, there is nothing on record to show that the alleged .30 bore pistol was serviceable nor there is anything to show that the rounds recovered were also actually live. Non-association of any of the public person despite their availability has always been a factor taken against the prosecution by the superior Courts. Having considered the matter from all angles, we feel that the case against the appellant is totally of no evidence and the learned trial Judge has failed to apply his judicial mind to the facts of the case. The manner - in which the trial Judge has proceeded in the case is violative of the principles governing administration of criminal justice. The Court while deciding the case should, at first, evaluate the prosecution evidence and see as to whether it has the capacity to bring home charge against the accused. The mere fact that the police witnesses had no enmity or grudge or motive to- falsely implicate the appellant, by itself, is not a strong circumstance to hold that whatever has been alleged by the prosecution should be implicitly relied upon without asking for supporting evidence.

8. In view of above facts, we are firm in our view that prosecution has not been able to establish guilt of the appellant beyond any shadow of reasonable doubt. We, therefore, allow this appeal, set aside conviction and sentence of the appellant and acquit him of the charges. The appellant shall be released forthwith if not required in any other case.

9. We had, by our short order dated 6-10-2004, allowed this appeal for reasons to be recorded later. Above are the detailed reasons. H.B.T./256/P Appeal allowed.