2025 PLP 967 (SCMR)

MALIK SHAHZAD AHMAD KHAN, J.

Shah Hussain, petitioner along with another accused namely Uzair Jamal alias Maaz was tried by the learned Judge Anti-Terrorism Court-III, Peshawar, pursuant to a case registered vide FIR No. 36 dated 08.04.2015, under Section 5 of the Explosive Substances Act and Section 7 of the Anti-Terrorism Act, 1997, at Police Station Counter Terrorism Department, Peshawar. The learned Trial Court vide its judgment dated 30.11.2015, convicted the petitioner and his co-accused under Section 7(ff) of the Anti-Terrorism Act, 1997 and sentenced each of them to fourteen (14) years rigorous imprisonment. Benefit of Section 382-B Cr.P.C. was also extended in favour of the petitioner and his co-accused. In appeal, the learned High Court while acquitting Uzair Jamal, co-accused, maintained the conviction and sentence of the petitioner.

2. Arguments heard. Record perused.

3. It is evident from the perusal of contents of the FIR (Ex.PA) that on 08.04.2015 at 07:00 PM, a motorcycle driven by Uzair Jamal, co-accused (since acquitted) was intercepted by Badshah Khan, Inspector, Police Station CTD, Peshawar, and other police officials. The petitioner was sitting on the rear seat of the above-mentioned motorcycle whereas a blue colour shopping bag was also tied with the said motorcycle. Uzair Jamal, co-accused, managed to flee away from the spot while leaving his motorcycle at the place of occurrence. The petitioner was, however, apprehended at the spot. The police when checked the shopping bag tied with the above-mentioned motorcycle, it was found that the said bag was containing explosive substance, detonators, fuse, prima cord, hence the FIR of this case.

4. Admittedly, the petitioner was not driving the motorcycle, which was driven by Uzair Jamal, co-accused (since acquitted). Although the prosecution witnesses made dishonest improvements in their statements while appearing in the witness box before the learned Trial Court and stated that the shopping bag containing explosive material etc was carried by the petitioner in his hand but their statements in this respect are in conflict with the story narrated in the FIR (Ex.PA) wherein it was categorically mentioned that the above-referred shopping bag was tied with the motorcycle. The prosecution did not bother to place on the record any ownership document or proof of the above-mentioned motorcycle in the name of the petitioner or Uzair Jamal, co-accused (since acquitted), therefore, the petitioner cannot be connected with the ownership of the shopping bag and explosive material etc, which was tied with the above-mentioned motorcycle driven by Uzair Jamal, co-accused. The prosecution has not proved that the petitioner was owner of the above-mentioned motorcycle whereas, the said motorcycle was admittedly driven by above-referred co-accused.

5. We have further noted that according to the statement of Mujahid Shah, SI (PW-6), he handed over the parcels of the case property to the Moharrar but no Moharrar Maal Khana of the Police Station has appeared in the witness box and, as such, the safe custody and transportation of the parcels of explosive substance etc is also not proved in this case.

6. It is by now well settled that if there is a single circumstance, which creates doubt in the prosecution case then the same is sufficient to acquit the accused, whereas the instant case is replete with number of circumstances, which have created serious doubts in the prosecution story. Consequently, this petition is converted into an appeal and allowed. The impugned judgments of the High Court and the Trial Court are set aside. The petitioner is acquitted of the charge while giving him the benefit of doubt. He shall be released from the jail forthwith unless required to be detained in any other case. MH/S-9/SC Appeal allowed.