' KHAWAJA MUHAMMAD SHARIF, J.---This appeal is directed against the judgment dated 22-1-2004 passed by the learned Judge Special Court, Anti-Terrorism, Rawalpindi Division and Islamabad Capital Territory constituted under the Anti-Terrorism Act, 1997, (for having possessed a specific gattoo containing 23 detonators, one timer, blasting wire 10-1/2 feet, orange colour and explosive material weight 8-1/2 kilograms), through which judgment, appellant was convicted and sentenced as under:--
(i) Under section 5 of the Explosive Substances Act, 1908 and sentenced to ten years and his whole property was directed to be forfeited to the Government.
2. After having completed legal formalities, challan was submitted against the appellant before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced four prosecution witnesses during the trial.
3. Learned counsel for the appellant in support of this appeal contends that the appellant has falsely been implicated in this case; that in fact the appellant was, taken into custody from his house on 20-8-2002 upon which his father lodged a report with the Police Station but his arrest was shown on 26-9-2002 i.e, more than one month after taking away of his son; that even Aqeel made statement in whose presence the said Taufeeq was taken away; that his father also gave an application to the City Nazim regarding the taking away of his son; that the recovery was planted on the appellant; that all the witnesses are police witnesses whose testimony cannot be relied upon; that there is a violation of section 103, Cr.P.C.; that the prosecution witnesses are inconsistent qua the place and mode of recovery i.e, one told 4 kilometers while the other stated as ten kilometers distance; that according to the Investigating Officer he completed the challan on 28-9- 2002; that there was no report of the bomb disposal which was, later on, brought on record and which report is dated 16-10-2002 which is after the submission of the challan; that the learned trial Court has acquitted the appellant from the main case; that the appellant produced D.W.1 and C.W.1 in his defence; that the Investigating Officer had stated that he had not recorded statements of the eye-witnesses regarding recovery under section 161, Cr.P.C.; that the prosecution has failed to prove its case against the appellant and he is entitled to ac quittal.
4. On the other hand, the learned Assistant Advocate General Punjab, while supporting the impugned judgment of conviction, submits that the recovery was effected from the appellant; that there is no mala fide. On the part of the prosecution witnesses and that the appellant was rightly convicted by the learned trial Court.
5. We have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
6. The appellant, while in the custody of another case registered vide F.I.R. No,485/02 of Police Station Taxila, led to the recovery of a plastic gattoo containing 23 detonators, one timer, blasting wire 10-1/2 'feet, orange colour and explosive material weight 8-1/2 kilograms for which he was tried by the above said learned Special Court.
7. The prosecution in order to prove its case, produced the following prosecution witnesses:--
(1) Abdul Sattar S.-I. (P.W.1);
(i) Abdul Sattar S.-I. (P.W.l);
(ii) Muhammad Saqlain, Bomb Disposal Expert (P.W.2);
(ii) Bashir Ahmad A.S.-I. (P.W.3) and
(iii) Saadat Mehdi, Investigating Officer (P.W.4).
8. We have gone through the statements of D.W.1 and C.W.1. Police had shown arrest of the appellant on 26-9-2002. There is an application on the record by father of the appellant addressed to the S.H.O. Of Police Station Nawan Sheher dated 20-8-2002 (Exh.DA) in which he had submitted that his son had been taken away at about 12-30 p.m./1.00 p.m. Along with his servant by the police. Application was marked to Banaras A.S.-I. On 21-8-2002. Then there is a statement of Aqeel which has verified by the contents of Exh.DA. Then his father submitted another application on 23- 8-2002 to the police qua taking away of his son on 20-8-2002. He had also submitted an application to the City Nazim (Exh.DB) to the same effect.
9. Although there is a report from the Police Station Nawan Sheher regarding disappearance of the appellant in which an A.S.I. Of the said police station had stated that the appellant was taken into custody in the case registered vide F.I.R. No,485 B dated 28-11-2002 of PS Taxila under sections 302/324/34 P.P.C. Read with sections 4/5 of the Explosives Act and section 7 of the Anti-Terrorism Act, 1997 but he did not intentionally mention the date of arrest of the appellant which speaks volumes qua the case.
10. The above facts are reflective of the fact that the appellant was taken into custody from 20-8- 2002 whereafter he was kept in illegal confinement and ultimately his arrest was shown on 26-9- 2002 which crucial aspects of the case have badly spoiled prosectution case.
11. After having heard learned counsel for the parties, going through the record with the able assistance of the learned counsel for the parties and taking into consideration their respective submissions, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond -an iota of doubt and in such like cases it is settled by now by the apex Court of the country that where doubt is cast about the prosecution case its benefit must go to the accused. The nutshell of the above discussion is that this appeal is allowed, the conviction and sentence awarded to the appellant is set aside and he is acquitted from the case. He is on bail and shall be discharged from his bail/surety bonds, if not required to be detained in any other case.