2011 PCr (PLP)

GHULAM MUSTAFA MENGAL, J.

This Criminal Jail appeal has been filed by Muhammad Qasim son of Haji Jeewan from Jail against the judgment dated 23-9-2008 passed by learned . Additional Session Judge, Lasbella at Hub, whereby he has been convicted under section 4 of Explosive Substances Act for causing Explosion in public places and sentenced to life imprisonment. The appellant was also convicted under section 5 of Explosive Act for making and possessing Explosive under suspicious circumstances for a period of 14 years' R.I. He was also convicted under section 13-A of Arms Ordinance for keeping an un-licensed Kalashnikov and sentenced to 7 years' R.I. and to pay fine of Rs.20, 000 or in default to further undergo 6 months' S.I. Alb the sentences were ordered to run concurrently. The benefit of section 382-B, Cr.P.C. was given to the appellant. Briefly stated the facts of the case as disclosed in the F.I.R (Exh.P/1-B) are that on 1-5-2008, Muhammad Amin Lassi, IP/SHO, Police Station, Hub sent a Murasila to the incharge of the Police Station to the effect that he had received a spy information that a person namely Qurban Marri along with his companions is involved in Terrorist activities and for this purpose he kept arms and ammunition in his Dera and at night time he remained present in his Dera situated in Jam Yousuf Colony. Consequently a raiding party under the supervision of Jamil Ahmad D.S.P. and DSP Investigation Abdullah Jan was arranged and the complainant along with other Police Officials raided the House of Qurban Marri at 2-35 a.m. After scaling the wall raided party entered in to the house a person was apprehended from a room who disclosed his name as Qasim son of Haji Jeewan, caste Rind residence of Basham Rind Goth District Nawab Shah Sindh. The accused/appellant was arrested and Kalashnikov along with a Magazine containing 28 live cartridges was recovered from the beneath of his bed. On further search of the room 53 rounds of Kalashnikov, a Detonator of Hand Grenade, bullets of baring weighing 600 grams 1700 grams of different size of Nail were recovered from a Khaki Coloured bag hanging on the wall of the said room. The accused/appellant was apprehended and the recovered arms and ammunition were taken into possession vide recovery memo. Exh.P/3-A to E. On demand the appellant could not produce the licence of said arms and ammunitions, thus F.I.R No.82 of 2008 under section 13-A of the Arms Ordinance and 4/5 of the Explosive Substances Act, 1908 was registered against him. After completion of investigation the appellant was sent to face trial. On 5-7-2008 charge under section 13-A, Arms Ordinance and 4/5 of the Explosive Act was framed to which he pleaded not guilty and claimed trial. At the trial the prosecution in order to prove its case examined as many as 5 witnesses namely P.W.1, Muhammad Amin Lasi, complainant. He produced Murasla as Exh. P/1-A and F.I.R as Exh.P/1-B. Munawar Ali, I.P. was examined as P.W.2, Mazher Iqbal, S.I. appeared as P.W.3. He produced recovery memo. of Kalashnikov as Exh.P/3-A and Kalashnikov as article P/3, Magazine along with 28 cartridges as article P/4, recovery memo. of 53 live Cartridges as Exh. P/3-B and 53 live cartridges as article P/8, recovery memo. of Hand Grenade as Exh. P/3-C and Detonator article P/11, recovery memo. of Bullets of baring as Exh. P/3-D, Bullet Bearings as article P/14, recovery memo. of Nails as Exh. P/3-E and different size of Nails as article/15. He also identified the accused present in the Court. Sikandar, ASI, appeared as P.W.4. He placed on record the disclosure memo; Exh. P/4-A. Muhammad Rafique, I.P./Investigating Officer appeared as P.W.5, who prepared sketch of the place of recovery, recovery memo. of articles, recorded the statement of eye-witnesses under section 161, Cr.P.C, He arrested the accused. He produced Sketch of site as Exh. P/5-A, Challan Exh.P/5-B and Murasala of Home department as Exh. P/5-C. The appellant was examined under section 342, Cr.P.C. wherein he denied the allegations levelled against him and pleaded his innocence and false implication. The appellant did not appear as witness under section 340(2), Cr.P.C. However, Muhammad Ishaq appeared as D.W.1. After conclusion of trial, the learned trial Court convicted and sentenced the appellant as stated above. We have heard learned counsel for the parties and have perused the record with their assistance. It has been argued by the learned counsel for the appellant that the appellant has been falsely implicated in this case as he has no concern with the house and recovered Arms and ammunitions. He further argued that no person from the public was joined at the time of raid nor search warrant was obtained from the Area Magistrate as it is mandatory requirement of section 103, Cr.P.C. He further contended that all the witnesses produced by the prosecution are police witnesses and subordinate to the complainant. Learned counsel further argued that there is no evidence on record that appellant had attempted to cause explosion, thus the conviction under section 4 of the Act is in violation of the law. On the other hand learned State counsel submits that the alleged raid was conducted at 2-35 a.m. and at that time no search warrant could be obtained from Judicial Magistrate nor could two respectable have been associated to witness the search. The appellant was arrested from the house from where alleged arms and ammunition were recovered. He supported the judgment of the trial Court. The record of the case reveals that the house wherefrom the arms and ammunition were recovered was in possession of more than one person as at the time of search and alleged recovery another person namely Khudai Rahim was arrested from the said house. The Investigating Officer namely I.P. Muhammad Rahim, appeared as, P.W.5 and admitted in his cross-examination that accused Khudai Rahim was also arrested from the said house. It is also apparent from the record that at the relevant time the Police party also raided another place and two muraslas were sent to the Police Station. It is also evident from the record that the Police party raided the house of Qurban Marri and the incriminating materials were recovered from the house of Qurban Ali who was neither arrested nor shown in the Challan as co-accused. Herein question arises whether the alleged incriminating material belonged to the appellant or to Qurban Ali and acquitted accused Khudai Rahim, which cannot be answered with certainty. This fact alone has made the recovery of the alleged incriminating material from the possession of appellant highly doubtful. Moreover the alleged recovered Kalashnikov and Detonator were not examined by the Armourer. The search of the house and the alleged recoveries therefrom were also made by the Police in violation of mandatory provision of section 103 of Cr.P.C. The Hand Grenade was also not produced in the trial Court. In the above mentioned circumstances, we are of the considered view that the prosecution has miserably failed to prove its case, beyond reasonable doubt against the appellant, therefore we accept this appeal, set aside the impugned judgment dated 23-9-2008 passed by learned Additional Session Judge, Lasbella at Hub and acquit the appellant. He shall be set at liberty forthwith if not required in any other case. A.R.K./110/Q Appeal accepted.