2013 PLP 961 (YLR)

QAISER RASHID KHAN, J.

This appeal is directed against the judgment dated 9-2-2011 passed by the learned Judge, Anti-Terrorism Court D.I.Khan, whereby he has been convicted in case F.I.R. No.643 dated 3-12-2010 of Police Station Cantt. District D.I.Khan registered under section 13 Arms Ordinance, section 4 of the Explosive Substances Act section 205, P.P.C. and section 7 of the Anti-Terrorism Act, 1908, and sentenced as under:-- (i) Under section 4(b) of the Explosive Substances Act, 1908 to suffer ten years' R.I. with forfeiture of his entire property in favour of the State; (ii) under section 205, P.P.C. to undergo three years' R.I., (iii) under section 7(i) of the Anti-Terrorism Act to suffer five years' rigorous imprisonment. All the sentences have been ordered to run concurrently and the benefit of section 382-B, Cr.P.C. has been extended to the appellant.

2. The prosecution story as gleaned from the aforesaid F.I.R. lodged by the complainant Muhammad Nawaz Khan S.H.O. of Police Station Cantt. D.I. Khan is to the effect that on the receipt of information about the availability of abductee Haji Khobaz Khan of case F.I.R. No.266 dated 3-12-2010 of Police Station Dera Town registered under section 365-A, P.P.C. in the house of accused/appellant Jalal son of Shah Mehmood, caste Mehsood, presently tenant at Zameer Abad (Jan Colony), the police party headed by the District Police Officer D.I.Khan conducted a raid thereon but the said abductee was not found. However, a Kalashnikov, two magazines having ten rounds each of 7.62-bore, 9 mm pistol along with five rounds and suicidal jacket were found in a room of the said house together with the convict/appellant who was accordingly arrested vide F.I.R. ibid.

3. On completion of investigation, challan was put in the Court where the accused was summoned but he did not plead guilty to the charge and claimed trial.

4. In order to prove its case against the accused, the prosecution produced and examined six witnesses and closed its evidence. Thereafter, statement of the accused was recorded under section 342, Cr.P.C. wherein he denied the allegations levelled against him in toto, professed innocence but neither appeared as his own witness on Oath under section 340(2), Cr.P.C. nor produced any evidence in his defence.

5. After considering the arguments of the learned counsel for the parties and weighing the material brought on record, the learned trial Judge found the accused guilty of the charge under sections 4 of the Explosive Substances Act, 205 P.P.C. and 7 Anti-Terrorism Act, 1997 and thus on conviction sentenced him as mentioned above. However, he was acquitted of the charge under section 13 Arms Ordinance, 1965, hence this appeal.

6. We have carefully scrutinized the entire record of the case and considered the arguments of the learned counsel for the parties.

7. The record indicates that the alleged recovery of suicidal jacket along with the arms and ammunitions was not made from the direct physical and conscious possession of the convict/ appellant, rather it was effected from a room of the house in which as per the contents of the F.I.R, he was a tenant. The prosecution has also not established through cogent and tangible evidence that the house in question was in the exclusive possession of the appellant and at the time of occurrence, no other inmate thereof was available, because section 4 of the Explosive Substances Act, 1908 provides punishment for an offender who does any act with intent to cause by an explosive substance or conspires to cause by an explosive substance in Pakistan of nature likely to endanger life or to cause serious injury to property, or makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life or cause serious injury to property. In this case, the aforesaid ingredients of section 4 of the Act ibid have not been fulfilled and thus the conviction and sentence recorded by the learned trial Judge in this respect is liable to be set aside.

8. The witnesses of the prosecution are not unanimous about the presence of the convict/appellant at the relevant time in his house and there are major contradictions in their depositions. Besides, the accused during trial repeatedly stated that it was Mehmood son of Shah Mehmood, caste Mahsood who was arrested by the police in the case in hand and not him. This fact further lends support from the contents of murasila/F.I.R. wherein the name of Mehmood is mentioned as an accused and not Jalal, the present appellant. Muhammad Ashraf Khan (P.W.1) who conducted the investigation in the case to a case replied, "it is correct that accused Ikram also disclosed to me that actual name of accused is Jalal, not Mehmood, however, Jalal also disclosed to him about the correct name. It is correct that I have not recorded statement of accused Ikram in respect of above facts." Similarly, he naively pinpointed many grey areas and loopholes in the prosecution version when he faced the test of cross-examination. To a question, he replied, "I have not inquired about the ownership of the house, however, accused was tenant in it." To another question, he replied, "there were female inmates in the house of the accused." The above facts only point towards the lukewarm and half-hearted manner in which the investigation was conducted, as no effort was made to look for the actual owner of the house in which the alleged dangerous recovered materials were lying unhidden on a carpet in the room. Moreover, despite the availability of lady constables with the raiding party, no effort worth the name was again made to know about the antecedents of the female inmates of the house or for that matter to search the house for the recovery of more such like dangerous stuff or else the inference which can be drawn is that the police party headed by the DPO himself felt satisfied and contented with the alleged recovery. As per the I.O. during his cross-examination, it was accused Ikram who told him about the correct name of Jalal, but strangely enough, the entire record is silent as to whether Ikram was an accused in the instant case or was simply procured to disclose the identity of Jalal, the present appellant. The I.O. even did not bother to record his statement to that effect. Even the so-called exercise undertaken by P.W.5, Rustam Khan, S.I. (Investigation) to trace and locate the real owner of the house namely, Abdul Karim proved to be a wild goose chase. In this respect, copy of the agreement deed, Exh.P.W.5/1 vide which Mst. Siraj Bibi allegedly sold the house in question to Abdul Karim led the investigation of P.W.5 to nowhere. Moreover, no step was taken to check the revenue record regarding the ownership of the house. All these factors make the prosecution version highly doubtful.

9. The said I.O. only stated in the Court statement that sections 205, P.P.C. and 7 ATA were added on the opinion of District Public Prosecutor and not on the basis of investigation. Thus the conviction of the appellant thereunder is also a question mark for the prosecution.

10. The record is also silent whether the suicidal jacket was ever sent for chemical analysis to Forensic Science Laboratory Peshawar to prove that whether it was in working condition or not. The record further depicts that no report of the Bomb Disposal Unit was exhibited during the trial. The appellant cannot be thus sad-dled with any liability without such report.

11. In view of the foregoing discussion, we have arrived at the irresistible conclusion that the prosecution case is replete with major contradictions, infirmities and loopholes, the benefit of which should have been extended to the appellant by the learned trial Court. Resultantly, we accept the instant appeal, set aside the impugned judgment of conviction and sentence, recorded by the learned trial Court and acquit the appellant of the charges levelled against him. He shall be set free forthwith if not required in any other case.

12. Above are the reasons for our short order of even date. HBT/341/P Appeal accepted.