' AKHTAR ZAMAN MALGHANI, J.---By this common judgment, we intend to dispose of Criminal Appeals Nos. 200 of 2007 and 201 of 2007, as identical questions of fact and law are involved in both the appeals and arise out of the same F.I.R.
2. Briefly stated, facts of the case are that on 21-4-2006 a case under sections 4/5 Explosive Substances Act, 1908 read with 7 of the Anti-Terrorism Act, 1997 and 13-E of Arms Ordinance, 1965 was registered in Police Station, Mastung, on the report of Muhammad Jahangir IP/S.H.O. Alleging therein that on receipt of spy information he along with other police officials in supervision of DSP Bahram Shahwani and DSP Muhammad Ishaq raided a ravine situated near Killi Ibrahim where appellant was present along with four gunny bags, who tried to escape but was overpowered and on search of bags 31 anti-tank mines and 31 anti-personal mines and one box containing 1260 live rounds of .30 bore pistol were recovered, which were taken into possession. As the accused could not produce any permit or licence for possession of the said arms and ammunition, he was accordingly arrested. After usual investigation two separate challans were submitted before the Anti-Terrorism Court, Khuzdar, one under section 13-E of Arms Ordinance, 1965 and other under sections 4/5 Explosive Substances Act, 1908.
' In both the cases charge was read over to the appellant, to which he pleaded not guilty and claimed innocence. Whereafter; prosecution in order to substantiate the accusation produced four witnesses. At the end of prosecution evidence the appellant was examined under section 342, Cr.P.C., wherein; he denied all the allegations and claimed innocence. In both the cases he got recorded his statement on oath, wherein; he stated that his actual name is Allah Dad son of Bhawal Khan and he was arrested by one Inspector Gul Sher Mengal on 18-6-2006 from Dalbandin, who handed over him to the agency on the direction of SP/ DPO Yasin Baloch, from which date he was under custody. He further stated that his brother Nadir Khan moved a constitutional petition with regard to his illegal custody before High Court of Balochistan. During pendency of said petition, he was handed over to Crimes Branch, thereafter, his custody was transferred to Mastung Police where a false case was registered against him in the name of Haji Khan.
3. The learned Special Judge on conclusion of trial found the appellant guilty in both the cases vide two separate judgments, dated 24th July, 2007 and sentenced him as under:-
(i) Under section 13-E of Arms Ordinance, 1965 to 4 years' R.I. With fine or Rs.30,000 or in default thereof to further undergo 6 months' S.-I. With benefit of section 382-B, Cr.P.C.
(ii) Under section 5 Explosive Substances Act, 1908 to 10 years' R.I. With fine of Rs.50,000 or in default thereof to further undergo 2-1/2 year's S.-I. His property was also forfeited in favour of the State.
Benefit of section 382-B, Cr.P.C. Was also extended to him.
4. We have heard learned counsel for the appellant as well as learned Special Prosecutor. Learned counsel of the appellant vehemently contended that the appellant was arrested by Dalbandin Police on 18-2-2006 and a Constitutional Petition No. 68 of 2006 was filed before this Court by brother of the appellant and in order to save skin of the officials who were responsible for arrest of the appellant he was falsely implicated in the instant case under a false name of Haji Khan. He further contended that during trial the appellant produced his original National Identity Card proving that in fact he was Allah Dad son of Bhawal Khan and not Haji Khan but learned trial Court failed ' to appreciate such fact in its true perspective. He further argued with great vehemence that even otherwise the prosecution has failed to prove the case against the appellant beyond any shadow of doubt as despite advance spy information no independent witness was associated with the so called recovery making case of the prosecution doubtful.
' On the other hand, learned Special Prosecutor supported the judgment and contended that the police officials were as good witnesses as others and only on their score the prosecution evidence which is otherwise straightforward and confidence-inspiring could not be discarded. He further contended that the appellant was in fact Haji Khan but falsely claimed to be Allah Dad in order to save his skin.
5. We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the evidence on record. According to the prosecution allegations on receipt of spy information the police party raided a ravine near Killi Ibrahim where appellant was present along with four gunny bags, who was apprehended and on search of gunny bags 31 anti-tank mines and 31 anti-personal mines along with eighteen packets containing 1260 live bullets of .32 bore pistol were recovered. In order to substantiate accusation the prosecution produced 4 witnesses. P. W.1 Muhammad Jahangir, who lodged F.I.R. Supported prosecution allegations in his examination-inchief and stated that on receipt of spy information he along with other police officials raided a ravine situated in Tara Jungle' Khawaja Ibrahim where the appellant was found present along with four bags containing anti-tank mines, anti-personal mines and live cartridges.
In cross-examination, he stated that no population was situated near the place where raid was conducted and he showed his ignorance about pendency of the petition in this Court against illegal detention of the appellant. He also denied the suggestion that actual name of the appellant was Allah Dad and not Haji Khan. His evidence does not inspire confidence, as he tried to conceal the material facts from the Court. According to him no population was situated near the place of occurrence, which assertion was contrary to his report Exh.P/1-B, wherein; he specifically stated that the place of occurrence i.e. Tara Jungle' was situated near Killi Khawaja Ibrahim, which fact was confirmed by P.W.2 Abdul Malik in his examination-in-chief who also stated in his cross- examination that while going from RCD road to the place of occurrence Killi Khawaja Ibrahim is situated in the way. He also admitted that from Killi Khawaja Ibrahim they have not associated any person as witness. Similarly P.W.3 Bahram Khan Shahwani DSP stated that Tara Jungle' is situated near Killi Khawaja Ibrahim. Further stating that Killi Khawaja Ibrahim was at a distance of one Furlong from Jungle, thereby; contradicting statement of P.W.1 who stated that no population existed near place of occurrence upto 10 to 15 kilometers. Admittedly; police raided the place of occurrence on advance spy information, therefore; it was easy for them to have associated public witness in the proceedings of recovery but they failed to associate any such witness nor any attempt in this regard was made either by S.H.O. Or by -P.W.3 Bahram Khan Shahwani DSP making case of the prosecution doubtful. Here it is not a question that the police officials are not good witnesses but in peculiar facts and circumstances of the instant case wherein the appellant has taken a plea for false involvement in the case in the false name, which was substantiated by him by producing National Identity Card showing his name as Allah Dad and not Haji Khan, it was incumbent for the police officials to have associated independent witnesses or atleast an attempt in this regard should have been made in order to avoid possible chicanery or false implication.
Furthermore; it has been proved on record through National Identity Card issued long before the registration of case that the appellant is in fact Allah Dad and not Haji Khan as claimed by the prosecution and in view of the fact that long before registration of case brother of the appellant instituted a Constitutional Petition being No.68 of 2006 claiming therein that the appellant was illegally arrested by S.H.O. Dalbandin who handed over him to the agency and on 10-4-2006 Gul Sher S.H.O. Admitted before this Court that Allah Dad detenue was picked up by agency, whereupon; DPO Yasin Baloch was summoned for 20-4-2006, who appeared before this Court and submitted his report indicating that Allah Dad was taken away by one Major Raza of Military Intelligence, whereupon; the matter was adjourned to 25-4-2006, on which date the Court was informed that the detenue is in custody of Crimes Branch Police Station in the name of Haji Khan Mari, the whole prosecution case has become doubtful and the conviction on the sole testimony of police officials could not be sustained. All above narrated facts are supported by the order sheets maintained in C.P.. No.68 of 2006 which were produced in defence by the appellant.
' For the foregoing reasons, we are inclined to allow both the appeals and after setting aside both the judgments of even, dated 24th July, 2007 passed by Special Judge Anti-Terrorism Court, Khuzdar Camp at Mastung acquit the appellant of the charge. He be set at liberty forthwith, if not required in any other case.