2021 P Cr (PLP)

ROZI KHAN BARRECH, J.

The appellant Nozo son of Raja Khan having been involved in FIR No. 03 of 2020 dated 10.02.2020 registered under sections 4 and 5 of the Explosive Substances Act, 1908 (the "Explosives Act") read with section 7 of the Anti-Terrorism Act, 1997 ("ATA") with PS Counter Terrorism Department Naseerabad Division was tried by learned Special Judge Anti-Terrorism Court Dera Allah Yar ("trial court") and on completion thereof by means of the judgment dated 10th November 2020 ("impugned judgment") he was convicted and sentenced as follows: "21.... accused namely, Nozo son of Raja Khan, by caste Bugti is convicted under section 7(fff) of ATA 1997, read with sections 4-5, Explosive Substances Act, 1908, and sentenced to Suffer Fourteen (14) Years Rigorous Imprisonment. The benefit of section 382-B, Cr.P.C. is also extended in favour of accused... "

2. As per prosecution story as disclosed in complaint Ex.P/1-A recorded on the statement of PW-1 Subedar Muhammad Aslam (complainant) is that on the night of 10.02.2020 he along with other Frontier Corps (FC) officials were present at Samad Check-post. Meanwhile, at 2:00 a.m. they saw four persons, whom they loudly asked to stop, but the aforesaid persons started to run away. The FC officials chased them and apprehended one of them who disclosed his name as Nozo son of Raja Khan, while his other companions succeeded to make their escape good. On search, from the possession of the accused, Nozo an Improvised Explosive Device (IED) and other explosive substance were recovered. Hence, the crime report. After completion of the investigation, the challan was submitted before the trial court. The appellant was charge-sheeted to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined three witnesses in all. After the closure of the prosecution side, the accused/appellant was examined under section 342, Cr.P.C. wherein he once again denied the allegations levelled against him and professed innocence. However, the appellant opted not to record his statement on oath as envisaged under section 340(2), Cr.P.C. nor produced any witness in his defense. The trial court after conclusion of the trial found the appellant guilty of the charge and while recording his conviction sentenced him as mentioned above. Hence, the instant appeal.

3. Since on the last date of hearing, i.e. 07.01.2021 despite repeated calls the learned counsel for the appellant was not in attendance, therefore, we were left with no other option but decided to adjudicate upon the matter on the basis of the material available on record. We have heard the arguments of the learned APG and perused the entire record with his able assistance.

4. The alleged occurrence took place on 10.02.2020 at 2:00 a.m., and the FIR was lodged on the said date on 10:20 a.m. after a delay of eight hours without any explanation, despite the fact that the distance between the place of occurrence and the said police station is only 30/36 kilometers. No explanation whatsoever has been tendered by the prosecution as to why the complainant weighted for more than eight hours for lodging the FIR and nominating the accused person. Hence, under such circumstances, the element of deliberation and consultation cannot be ruled out of consideration. A question also arises here that if the complainant apprehended the accused at the spot then why he did not lodge the FIR promptly. The main object of prompt registration of the FIR is to rule out the possibility of deliberation and consultation and inquiry. The element of delay in lodging the crime report is treated with caution because there is a tendency to involve innocent people during the interval.

5. According to the prosecution story set forth in the FIR that on 10.02.2020, the complainant Subedar Muhammad Aslam along with other FC officials were present at Samad Check Post. Meanwhile at 2:00 am they saw four persons present near the post, whom they loudly asked to stop, but they started to run away. The FC officials chased them, and one of them was apprehended who disclosed his name as Nozo son of Raja Khan while his companions succeeded in making their escape good. On search of the accused, one IED along with explosive substances were recovered. It is also alleged in the report of the complainant that the accused attempted to explode the IED near the FC check-post.

6. On the other hand it is an admitted fact that no detonator, wires or remote controls were recovered from the possession of the appellant and during the course of investigation nothing came on record that the accused belong to any proscribed organization. For the sake of argument if it is presumed that the accused was apprehended at midnight near the FC check-post and three other persons succeeded to run away, how can it be possible that a person who intended to explore the explosive substance near the FC check-post was without any weapons and would wait for the FC officials to come and apprehend him which does not appeal to the prudent mind. There is no house or building situated nearby the area where from the accused/appellant was apprehended. It has also come on record that the village nearest to the place of occurrence is at a distance of two kilometers. The story narrated by the complainant in the FIR shows that the occurrence did not take place in the manner narrated hereinabove.

7. The prosecution witnesses also stated in their statement that they apprehended the accused and brought him to the FC check-post and on the next day they handed over the accused to the police officials. It has come on record that neither the alleged recovered material was sealed on the spot nor any recovery memo was prepared. The investigation officer stated in his statement that on 10.02.2020 the complainant Naib Subedar Muhammad Aslam came to the police station and lodged the FIR (Ex.P/3-A) and after registration of the FIR he went to the place of occurrence and there the accused was handed over to him. He further stated in his statement that he took the IED into possession through recovery memo and separated four grams of explosive substance there-from and prepared parcel No.1 and rest of the IED was sealed in parcel No.2, meaning thereby that after registration of the FIR the recovery memo and sealed parcels were prepared. In the case of Arif Khan 1998 PCr.LJ 1287 it was observed by the Division Bench of Hon'ble Sindh High Court that if the recovery memo did not show that the weapons were sealed at the spot, the case becomes doubtful. In another case titled as Rahim Bakhsh v The State (2010 PCr.LJ 642 Quetta) it was observed as under: "7 .......It is well-settled proposition of law that conviction under section 13-D of Arms Ordinance could not be mail twined unless the weapons allegedly recovered were sealed at the spot and the opinion of Forensic/Ballistic Expert is produced on record to prove that the weapons so recovered were, in fact, functional..."

8. In the case in hand neither the recovery memo was prepared on the spot, nor the recovered material was sealed at the spot rather the same was sealed after six hours of the occurrence, as such, the prosecution case is highly doubtful. A lapse on the part of the police is clear and admitted. The wisdom behind sealing the weapon at the place of incident is to eliminate the possibility of manipulation of evidence after the recovery of alleged material. In order to avoid the possibility of manipulation, the Apex court has always insisted that the property should be sealed at the place, of occurrence so as to discard the possibility of manipulation or tampering of the prosecution evidence. Unfortunately, this exercise has not been complied with in this case, nor any reasons have been assigned for such omission. The prosecution should satisfy the court about such omission.

9. The other material aspect of the case is that neither the complainant stated a single word in his report about weighing of the explosive substance nor this fact was mentioned in the recovery memo that how much explosive was recovered from the appellant. Even otherwise none of the witnesses stated a single word as to how much explosive substance was recovered from the appellant. It has only come on record that four grams of explosive were separated for analysis. This aspect of the matter also causes reasonable doubt in the prosecution case.

10. It is, however, observed that the conviction of the appellant could not be maintained unless the prosecution also proves that IED contained an explosive substance which could cause it to explode. For this, it must produce a forensic report whose credibility depends on safe custody of the device, extraction of samples of explosive -substance there-from and safe transmission thereof to the laboratory. In this regard, we have also observed that in the Punjab Forensic Sciences Agency (PFSA) report (Ex.P/3-A) the alleged recovery was effected on 10.02.2020 while the sample was received by the PFSA on 27.02.2020 with a delay of eighteen days, for which no explanation was offered by the prosecution's witnesses. The delay in transmission of sample to the PFSA, created serious doubts about safe custody of the alleged recovered explosive substance and its safe transmission to the PFSA, as such, in the instant case, the concept of safe custody of the case property had completed been shattered, when the safe custody of parcel of the sample from point/date of recovery, till its receipt in PFSA Lahore was not established to have complied with according to the mandate of law. Similarly, the safe custody of case property from recovery to its production in the court was also not proved. In the instant case also, the sample of the alleged recovered substance was delivered to the PFSA by one Azhar Ali (ASI), the said Azhar Ali was not produced as a prosecution witness at the trial about the receipt of case property, its safe custody and safe transmission to the PFSA. The record of the case further shows that safe custody of the recovered explosive substances at the police station had not been established by the prosecution during the trial. The Moharir of the police station had not been produced by the prosecution to establish the receipt of the case property to the office of examiner has not been established. While as stated above the fact of not separating the samples from the recovered material is also a question mark on the credibility of the prosecution case. As the result, the chain of custody breaks and forensic report loses credibility. 11 The offence under section 5 of the Explosive Substances Act, 1908 was charged against the appellants, but according to section 7 of the said Act, prior permission for prosecution by the competent authority was required. The above mentioned provision reads as under:-- "

7. Restriction on trial of offences. No Court shall proceed to the trial of any person for an offence against this Act except with the consent of * * * the [Provincial Government] [to which intimation shall be sent within two days of the registration of the case:] [Provided that if the consent is neither received nor refused within sixty days of the registration of case the Government such consent shall be deemed to have been duly given.]"

12. It is crystal clear from the bare reading of the above-mentioned provision of law that sanction for prosecution for holding trial under Explosive Substances Act is mandatory and a condition precedent for prosecution under section 5 of the said Act. In the absence of the requisite sanction/permission, entire proceedings taken would be void and without jurisdiction. The word "shall" used in above mentioned section leaves no room for any departure there-from. Although, section 19(8-B) of Anti-Terrorism Act, 1997 makes a relaxation to the effect that if a sanction is applied but not granted by the competent authority within 30-days, then the due proceedings towards initiation of the trial may be carried on. For ready reference the said provision is reproduced hereinbelow:--

19. Procedure and Powers of [Anti Terrorism Court]. [(1) ............. [(1-A) ............. (2) ............. (3) ............. [(4) ............. (5) ............. (6) ............. [(7) ............ (8) ............ [(8-A) ............ (8-B) Notwithstanding anything contained in section 7 of the Explosive Substances Act, 1908 (VI of 1908), or any other law for the time being in force, if the consent or sanction of the appropriate authority, where required, is not received within thirty days of the submission of challan in the Court, the same shall be deemed to have been given or accorded and the Court shall proceed with the trial of the case.]".

13. From the above mentioned provision, one thing is clear that the request for prosecution should have been made. When there is mention of receipt of consent or sanction within thirty days, it impliedly indicates sending and seeking consent/sanction. Admittedly, in the instant case no such request has been made and as such under section 7 of the Explosive Substances Act, 1908, as well as section 19(8-B) of Anti-Terrorism Act, 1997, prosecution and trial was not competent and possible.

14. 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, coupled with the fact that no sanction for prosecution was sought by the investigating officer, which entirely vitiates the prosecution case, the benefit of which should have been extended to the appellants by the learned trial court and there is no cavil to the proposition that the responsibility to prove its case squarely rests upon the shoulders of the prosecution that has not been discharged successfully in this case and it is also a settled law that benefit of each and every doubt is to be extended to the accused and that only a single reasonable doubt qua the guilt of the accused is sufficient to acquit him of the charge. Moreover, it is established law that where evidence creates doubt about the truthfulness of prosecution story, its benefit has to be given to the accused without any reservation and there is no alternative but to acquit the appellant by giving him benefit of the doubt. Thus, considering the material available on record in the light of the evidence and overall circumstances of the case, the prosecution has not only failed to prove the above-alleged recovery of explosive substance from the possession of the appellant, but also failed to prove the case without any shadow of a doubt. Resultantly, the impugned judgment dated 10th November 2020 passed by learned Special Judge Anti-Terrorism Court Dera Allah Yar in FIR No. 03 of 2020 dated 10.02.2020 registered under sections 4 and 5 of the Explosive Substances Act, 1908 (the "Explosives Act") read with section 7 of the Anti-Terrorism Act, 1997 ("ATA") with PS Counter-Terrorism Department Naseerabad Division is set aside. While extending the benefit of the doubt, the appellant, namely Nozo son of Raja Khan, is acquitted of the charge. He be set at liberty forthwith, if not required in any other case or offence. JK/69/Bal. Appeal allowed.