1. ' MRS. QAISER IQBAL, J.- Appellants, Abdul Ghani son of Abdul Ghafoor, Khalil Ahmed son of Abdul Qadir, Adeel Ahmed son of Nazar Ahmed, Abdul Rauf son of Abdul Qadir Irfan Irshad son of Irshad Khokhar and Muhammad Ashab alias Kashif son of Ashiq Ali have resorted to file appeal under section 410, Cr.P.C. Assailing the judgment dated 12-6-2006 passed by Vllth Additional Sessions Judge, Karachi South in Crime No,76 of 2004 under sections 4/5 Explosive Substances Act registered at Police Station Baloch Colony, Jamshed Town, they were convicted and sentenced under section 4 of Explosive Substances Act, 1908 to undergo imprisonment for life and under section 5 of Act, 1908 to undergo rigorous imprisonment of 14 years. They were also liable to pay fine of Rs,500,000 each. In case of payment of default to undergo simple imprisonment of one year each with benefit of section 382-B, Cr.P.C.
2. ' Precisely the facts leading to the case are that First Information Report" was registered on the basis of the written statement of SIP Choudhry Muhammad Afzal under section 154, Cr.P.C.
3. Disclosing that he along with police party comprising of A.S.-I. Zafar Iqbal S.-I. Ghulam Shabbir, HC Muhammad Arshad and HC Liaquat Ali were busy in connection with and in search of accused, on spy information received at Gujjan Chowk that the appellants hail from Harkat-ul- Mujahideen Al- Alameed banned Jihadi Organization gathered for planning some terrorist activities in the city.
4. Police party reached at the pointed place on spy information and searched the House No, 16, Sector-G Punjab Road, Manzoor Colony, Karachi. They climbed over the roof found six persons were present on the roof engaged in secret conversion, a blue colour plastic bag wrapped in newspaper was lying on the mattress. The appellants were taken into custody. Huge ammunition was secured and upon search of blue bag explosive material viz. Four handgrenades, four fuses and four timers were recovered. The appellants could not produce the licence of the arms and ammunition therefore, the case under sections 4/5 Explosive Substances Act was registered against them besides the cases under Arms Ordinance, 1965. The investigation was entrusted to S.-I. Bashir Ahmed, who visited the place of incident, interrogated the appellants. The explosive material was examined through Bomb Disposal Unit and after complying all the other legal formalities the appellants were challaned to face the trial.
5. ' At the trial charge was framed and read over to the appellants against which they pleaded not guilty and claimed to be tried.
6. ' Prosecution in support of the case examined P.W.l, A.S.-I. Choudhry Muhammad Afzal as Exh.16, P.W.2 S.-I. Ghulam Shabbir Exh.19, P.W.3 S.-I. Tariq Rahim Exh.18, P.W.4 A.S.-I. Zafar Iqbal Exh.19. P.W. 5 Inspector Muhammad Iqbal. Exh.20, P.W.6 Muhammad NaseemExh.21 and P.W.7 S.-I. Bashir Ahmed Exh.22 and closed the side of prosecution.
7. ' Statements of appellants under section 342, Cr.P.C. Were recorded. They denied the allegation levelled against them. None of the appellants examined themselves on oath. The appellants in rebuttal examined D.W. 1 Sanaullah Raees Exh.30, D.W.2 Sher Muhammad Raees Exh.31, D.W.3 Muhammad Javed Hoot Exh.32, D.W.4 Sikandar Exh.33, D.W.5 Abdul Muttalib Exh.34, D.W. 6 Muhammad Exh.35 and D.W.7 Noor Ahmed Exh.36.
8. ' Mr. M. Ilyas Khan learned counsel appearing for appellants has taken pains in pointing out the contradictions, grounds and inconsistency in the statements of the prosecution witnesses and has tried to show that the police had recovered blue colour shopper found explosive was lying on the cot whereas from the memo, of arrest seizer of the ammunition exhibit 16/A allegedly prepared by S.-I. Choudhary Muhammad Afzal at 0100 hours it is described that the plastic bag was lying on the mat encircled by the appellants who were sitting around and were busy in consultation with each other confidently in suspicious condition. Adverting to the testimony of S.-I. Choudhry Muhammad Afzal, he had received spy information reached at pointed house along with informer, on his pointation reached the pointed place on the roof where six persons were sitting, on the cot. One blue colour shopper was also available. He searched, the appellants and- shopper found four grenades, four fuses, four timers for which the appellant could not produce licence in presence of private witness Muhammad Naseem and A.S.-I. Zafar Iqbal, Memo, of arrest and seizer was prepared as exhibit 16/A. In the cross-examination he went on to say that the grenades were empty from inside and cannot be used without pins. P.W. S.-I. Ghulam Shabbir has given account that from the roof of the house a shopper was recovered which contained explosive but he has not given the account aljout the place of the recovery. P.W. Zafar Iqbal deposed that shopper of blue colour was lying at mat when they apprehended the appellants and effected recovery from them.
9. P.W. Muhammad Naseem Mashir of the recovery has also deposed that a polythein bag was lying at the centre whereas six appellants were sitting which was opened by S.-I. Choudhry Muhammad Afzal.
10. ' In order to appreciate the contentions raised by the learned counsel for appellants section 5 of the Explosive Substances Act is reproduced here in below for ready reference ' "It is obvious that in order to succeed the prosecution must establish not merely the conscious possession of the explosive substance, but must also show that the appellants were, carrying the explosive substance under such circumstances as to give rise to a reasonable suspicion that they were not making it or do not have it in their possession or under their control for a lawful object." .
11. As a first step the Court has to be satisfied not merely about the recovery of the material from the "possession" or "control" of the appellants but that they were conscious about the presence of such material, on their person or on the premises or vehicle where it was kept. Further requirement is that the attending circumstances of recovery should be such as to induce any reasonable man to presume that the material is to be used for some mischievous and unlawful purpose.
12. ' In the case of State v. Azeem Khan (PLD 1987 Kar.538) in the similar circumstances the dictum laid down is:- ' "The conduct of the apprehended accused immediately before and at the time of his arrest, his links and connection with groups or gangs known for their notoriety his general reputation in the society, his vocation, financial, social and, educational standard; all the above factors would contribute, affirm or dislodge the initial and prima facie suspicion. A person may be found roaming around near sensitive installations at odd hours loaded with explosives. This is not a normal behaviour of a law-abiding citizen. If a person is apprehended in such a situation, there would be grounds for a "reasonable suspicion" against him. The burden would now shift to the accused to dislodge this initial suspicion and explain his conduct. On the contrary if a person is a trader and deals to fire works or a person is a querry man any blasts big stones to collect broken tones from a querry, he may be found to be in possession and control of the gun powder but the element of "reasonable suspicion" would be lacking in his case and he would not be booked under section 5 and would not be called upon to discharge the burden of proving himself innocent on account of mere possession. In short what the section postulates is possession accompanied with a "reasonable suspicion", that the material was likely to be used for subversive and illegal purposes."
13. ' In the case of Mishal Khan v. The State (1983 PCr.LJ 1628) the following observations has been raised:- ' "There cannot be two opinions that in order to attract section 5 of Act, 1908 the prosecution has to prove two things, namely (i) that the accused person makes or has in his possession or under his control any explosive substance, (ii) under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control of a lawful object."
14. ' In this case the appellants were not found in any conscious and intelligent possession of the explosive.
15. ' In the case of Kuldip Chand v. Emperor (AIR 1934 Lahore 18) dictum laid down is:- ' ""For attracting section 4(b) of Explosive Substances Act possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity of the offending object. Those are the important element which go to make up an offence."
16. P.W. Muhammad Naseem sparingly reached at the spot deposed how appellants were sitting and a blue colour shopper bag was recovered from the roof of the raided house. Prosecution has failed to produce evidence whether the recovery was effected from the possession of the appellants or they were holding the same. It also transpires that joint recovery was not permissible under the law and could not be taken into consideration. In the context reliance is placed on Rafique alias Pheeki and 2 others v. The State (1993 PCr.LJ 1017 (Supreme Appellate Court).
17. ' It is next urged that the prosecution had acted, in violation of section 103, Cr.P.C. By not picking up private mashirs although S.-I. Choudhry Muhammad Afzal had received spy information about the -presence of the appellants at about 0045 hours when reached at Gujar Chowk Manzoor Colony.
18. Whereas mashirnama of the arrest and recovery of prohibited explosive substance exhibit 16/A was prepared at 0100 hours in presence of private mashir Muhammad Naeem and S.-I. Zafar Iqbal though on the ground floor of the raided house there was a furniture shop. Complainant had sufficient time to pick up private mashir, he relied upon one private mashir Muhammad Naeem who was passing at about 1245 a.m. Over the street near Gujar Chowk and was picked up by the police. To adjudge the veracity of P.W. Muhammad Naeem whether he is stock witness of the police it appears that he had deliberately suppressed his National Identity Card, the old was lost, whereas he did not obtain new NADRA Card. P.W. Muhammad Naeem had admitted that at the time of incident he was on his way after having meal from a hotel, place hardly situated at 15 paces from the hotel where from he was picked by the police. Admittedly 2/3 other persons were walking on the road and some independent witnesses were available in the hotel but no effort was made to join independent mashirs and witnessed the recovery. It is emphatically denied by P.W.
19. Muhammad Naeem that he was cited as witness in F.I.R. No, 133 of 2004 (State v. Khalid Aziz) and F.I.R. No,83 of 2003 registered at Police Station Baloch Colony wherein he has acted as witness of the case. His veracity can be adjudged from his statement as he did not remember which recovery was made from which one of the appellants nor does he remember whether there exists furniture shop at the ground floor of the raided house. He went on to say that he did not know anything recovered during the personal search of the appellants except hand grenades. After completing of proceedings he went along with the police officials to police station, the memo, was prepared in the official mobile. Contrary to the above mashimama of the recovery exhibit 16/A shows that it was prepared on the spot. Meaning thereby on the roof of raided house therefore exhibit 16/A stands belied the statements of P.W. Muhammad Naeem.
20. ' In the case of Muhammad Amin v. The State (1990 PCr.LJ 84) the dictum laid down that:- ' "Witnesses of search should be respectable and of the locality and occupant of premises should also be present at the time of search, which are valuable safeguard. The police. Have always their pat witness or same can be easily higher or influence and therefore it is that "respectable, and of the locality" have been considered as necessary qualification of the search witnesses. .Court should always be Vigilant to know as to why the witness has trudged of the way from the place of search and why police could not have a search witness. It is an open secret that the police have always certain henchmen who are prepared to go for any extent with them. "
21. ' In the case of Sardar Ali v. The State (PLD 1964 Lahore 386). Jahane v. The State (1978 PCr.LJ 157) and the State v. Abbas Ali Shah alias Aba Umar and another (PLD 1988 Karachi 409) are relevant in this behalf.
22. ' P.W. Muhammad Naeem who acted as mashir is not a reliable witness. He acted as witness of Police Station Baloch Colony in F.I.R. No, 133 of 2004 and 83 of 2003. He is a stock witness of police and in the habit of acting as mashirs of the police of Baloch Colony. Thus his evidence is not admissible and cannot be relied upon for adjudging the question of the trap of the appellants and recovery of the explosive.
23. ' It is further pointed out by the learned counsel appearing for appellants that experts report cannot be relied upon in terms of section 510, Cr.P.C. Unless he was notified by the Government. In support of the above contention reliance is placed on Habibur Rehman v. The State (1988 PCr.LJ Lahore 164) and Nawab alias Nawabi v. The State (1985 PCr.LJ Lahore 2217). The rule laid down is, "it is well- settled that report of expert, may he be a Ballistic Expert, is after all an opinion which can be fallible and not immune from judicial scrutiny. The opinion of an expert is received in evidence because it, either confirms or falsifies other evidence on record. Since the fate of this case hinges on evidentiary value of corroboratory evidence therefore, there was a greater necessity for obtaining the reasons of Ballistic Expert in support of his opinion because the weight be attached to the Ballistic Expert report depends to. Considerable extent on the reasons given by him or the conclusion arrived at.
24. ' The trial Court did not care to obtain reasons from the expert examined in the case. The report has not been prepared on the basis of format and pro forma provided by the Government and is contrary to the requirement of law.
25. ' Charges relates to the factum that the appellants were busy in planning for terrorism in city of Karachi, not a singly word in this respect has been uttered by prosecution witnesses nor any evidence has been produced that the appellants belonged to Jehadi Tanzeem Harkat-ul- Mujahideen Al-alameen. Investigating Officer SIP Bashir Ahmed has categorically deposed in the cross-examination that no Identity Card of Tanzeem was recovered from the possession of the appellants nor anyone was examined during the course of investigation to connect the appellants being the member of Harkat-ul-Muhahideen Al-alameen not such fact was mentioned by him in roznamcha that he had visited the office of Harkat-ul-Mujahideen Al-alameen and found it closed.
26. Investigating Officer has categorically stated that no oral of documentary evidence is available with the prosecution to connect the appellants with any Tanzeem.
27. ' Much of the emphasis has been laid down by the counsel appearing for the appellants on the defence version comprising of D.Ws. Sanaullah Raees. Sher Muhammad Raees, Muhammad Jawaid Hoot, Sikandar, Abdul Mutalib, Muhammad and Noor Ahmed. They had produced number of letters and documents to prove the innocence of the appellants and large number of press cuttings. Reliance is placed on Muhammad Nawaz Sharif and others v. President of Pakistan (PLD 1993 SC 437 (865):- ' "It is true that press reports are not to be accepted as proof of facts stated therein but where such reports were not contradicted by the concerned authority or person at the ' relevant time and are Subsequently relied by either side in a case, these may be taken into consideration for forming an opinion generally as to the prevailing states of affairs at the relevant time."
28. In the instant case the clipping of the newspapers produced in support of the case have not been contradicted by the concerned authorities therefore in my p opinion the same can be relied upon for holding that the plea of the defence is kept in juxtaposition to the prosecution's case as one of the appellant Abdul Karim is footballer. The appellants are Baloch. They are resident of Lyari. No chain can be build up by the prosecution to connect them with Harkat-ul-Mujahideen Al-alameen therefore the question of planning for terrorisrti in the City of Karachi by the appellants stands resolved otherwise. For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts. If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused then he will be q entitled to such benefit not as a matter of grace, as concession but as a matter of right as has been laid down by the apex Court of the judicial hierarchy in the case of Tariq Pervez v. The State (1995 SCMR 1345).
29. ' The upshot of the above discussion is that there is no satisfactory basis for upholding the conviction and sentence awarded to the appellants. The appeal is accordingly allowed, conviction and sentence of the appellants is set aside. They should be released forthwith if not required in any other custody case.