2018 PLP 280 (YLRN)

ABDULLAH BALOCH, J.

This judgment disposes of Criminal Appeal No.(S)144 of 2017 filed by the appellant Abdul Razzaq son of Shadi Khan, against the judgment dated 6th October, 2017 (hereinafter referred as "the impugned judgment") passed by the learned Special Judge, Anti-Terrorism, Sibi Division at Sibi, (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under Section 4 of Explosive Substances Act, 1908 and sentenced to suffer Seven (07) years R.I. and under Section 6 (2)(ee) read with Section 7(ff) ATA of 1997 to suffer fourteen (14) years R.I., with the benefit of Section 382-B, Cr.P.C. and both the sentences were ordered to run concurrently.

2. Facts of the case are that on 7th July 2017, the complainant Naib Sobedar Muhammad Ejaz, lodged FIR No.16/2017 at Levies Thana Mach District Kachi, under Sections 4, 5 of Explosive Substances Act, 1908 read with Section 7 of ATA, 1997, stating therein that on the day of occurrence he along with other F.C. personnel were patrolling on National Highway, when they reached at Aab-e-Gum near Gas-Wall, where they saw a person in suspicious condition, who on seeing the F.C. personnel, tried to escape, but he was apprehended and on query he disclosed his name as Abdul Razzaq son of Shadi Khan and on search of the said person recovery of explosive material weighing 550-grams were effected.

3. In pursuance of above FIR, investigation was entrusted to PW-4 Mouzam Ali, Naib Tehsildar, who during investigation arrested the appellant; weighed the contraband and prepared recovery memo; visited the site and prepared inspection memo; obtained analysis report from Commander Civil Defence; obtained prosecution sanction; recorded the statements of witnesses under section 161, Cr.P.C. and on completion of investigation submitted the challan in the trial Court.

4. At the trial, the prosecution produced four witnesses. The appellant was examined under section 342, Cr.P.C. He did not record his statement on oath under section 340(2), Cr.P.C. and also not produced any witness in his defence. On conclusion of trial and hearing the arguments, the trial Court convicted and sentenced the appellant as mentioned above, whereafter the instant appeal has been filed.

5. Learned counsel for appellant argued that the whole story so narrated in the FIR is doubtful; that the case of prosecution is lacking independent corroboration; that the recovery of explosive substance from the exclusive possession of the appellant is doubtful; that the recovered explosives were neither sealed at the spot nor were sent to FSL for analysis for its opinion; that the prosecution has failed to prove the charge through consistent and confidence inspiring evidence; that the impugned judgment of trial Court is result of misreading and mis-appreciation of material available on record.

6. Learned Additional Prosecutor General while supporting the impugned judgment contended that the prosecution through consistent and confidence inspiring evidence has succeeded in proving the charge with regard to recovery of explosive substance from the possession of appellant and the appellant has failed to prove his false implication by the F.C.

7. Heard the learned counsel and perused the available record. The prosecution in order to establish the charge has produced the evidence of four witnesses but the same are not consistent, confidence inspiring. The complainant of the case appeared as PW-1, who mostly reiterated the contents of his fard-e-bayan Ex.P/1-A, but during cross-examination the defence has succeeded in shaking his testimony. PW-1 admitted that the explosive substance along with the appellant was taken to F.C. headquarter and on the following day the same were handed over to I.O. He also admitted that the weighing of the substance was carried out at Wing Headquarter by Col. Hamayoun Rasheed in the morning. PW-1 admitted that no detonator, wires or Remote Control were recovered from the possession of the appellant. PW-2 being recovery witness contradicted the statement of PW-1 and stated that the weighing of the explosive was carried out by Naib Tehsildar in Levies Thana. PW- l and PW-2 admitted in their cross-examinations that after filing complaint they never went to Levies Thana. PW-3 is the witness of inspection memo. PW-4 is the Investigating Officer of the case, who counted the steps taken by him during investigation and further admitted that the analysis report was obtained from Commander Civil Defence instead of FSL. He contradicted the statement of recovery witness and stated that the weighing of explosive was carried out by the F.C. Authorities. The I.O. admitted that the challan of the case Ex.P/4-E remained in his possession from 25th July, 2017 to 3rd August 2017, wherein the name of the appellant was not mentioned, while prior to preparing the Challan Ex.P/4-F the appellant was shifted to judicial custody.

8. Record reflects that the explosive substance allegedly recovered from the possession of appellant was neither sealed at the spot nor was sent to the Forensic Expert, whereas as per admitted principles of law the sealing of recovered explosive or any arms at the spot is necessary to prove the charge against the appellant and the conviction under the explosive substance cases can only be maintained if the allegedly recovered explosive was sealed at the spot and the opinion of the Forensic/Ballistic Expert is produced on record to prove that the material so recovered was, in fact, explosive substance. Thus, mere words of the prosecution witnesses are not enough to presume that the recovered material was explosive substance, when otherwise the same were not sealed at the spot. The report so obtained from Commander Civil Defence cannot term to be Forensic or expert opinion as envisaged under Section 510, Cr.P.C. There is nothing on record showing that the Commander Civil Defence had requisite qualification to analyze any explosive substance.

9. All the above infirmities have created sufficient doubts in the case of prosecution and under the law the appellant is entitled to get the benefit of the same, but the same was not extended in his favour by the trial Court. The judgment of trial Court suffers from misreading and mis-appreciation of the evidence available on record. For the above reasons, the appeal is accepted. The impugned judgment dated 6th October, 2017 passed by the learned Special Judge, Anti-Terrorism, Sibi Division at Sibi, is set-aside and the appellant Abdul Razzaq son of Shadi Khan, is acquitted of the charge. The appellant being in custody, is ordered to be released forthwith. if not required in any other case. JK/12/Bal. Appeal accepted.