' MUHAMMAD ALAM KHAN, J.--- This appeal filed under section 25 of the Anti-Terrorism Act is directed against the judgment, dated 7-10-2008 passed by the learned Judge, Anti-Terrorism Court Bannu, whereby the appellant Said Muhammad son of Khogin, resident of Tajazai, Tehsil and District Lakki, Marwat, has been convicted under section 5 of the Explosive Substances Act, 1908/34, P.P.C. Read with section 7(1) of the Anti-Terrorism Act, 1997, and sentenced to eight years rigorous imprisonment each thereunder. His property has been forfeited under section 5-A of the Explosive Substances Act and all the sentences have been ordered to run concurrently. The benefit under section 382-B, Cr.P.C. Has, however, been extended to him.
2. The prosecution story mentioned in the F.I.R. Is that Usman Ghani Khan, S.H.O. Of Police Station Lakki on receipt of spy information that Flying Coach No,3045/Kohat is standing in Madina Hotel Bannu road and hot words had exchanged between its driver and a passenger who is owner of some bags full of suspicious articles with smell of explosive materials and who was insisting on its delivery at the destination. The matter was brought into the notice of the D.P.O. Lakki and since Madina Hotel happened to be within the jurisdiction of Police Station Ghazni Khel, therefore, the S.H.O. Of said police station named Muhammad Saleem Khan along with police party also reached the spot, where they were informed by the informer that the said flying coach had gone towards Kacha Canal Tajazai which was found at some distance and a person posing himself to be its driver named Kamal son of Khandan, an Afghan Refugee stated that out of fear the said suspicious bags had been deboarded in the lands along with its owner and the said flying coach is also standing there. When reached the spot on his pointation, the said person was overpowered who disclosed his name as Said Muhammad son of Khoza Din caste Wazir of Wana Waziristan Agency.
When checked and weighed, the bags contained 796.50 kilograms explosive materials (Barood) and thus, the case was initially registered against Said Muhammad who on his arrest during investigation disclosed the names of Kamal, Ali Muhammad and Irfanullah, as his co-accused.
3. Accused Said Muhammad and Kamal were arrested while Ali Muhammad and Irfanullah co- accused became fugitive from law. After completion of investigation and requisite formalities, the said two accused were summoned by the trial Court where they were formally charge-sheeted but they did not plead guilty to the charge and claimed trial.
4. In order to prove its case against the accused, the prosecution produced and examined eight witnesses whereafter statements of the accused under section 342, Cr.P.C. Were recorded wherein they totally denied the allegations levelled against them. The learned trial Judge after evaluating the evidence brought on record and hearing pro and contra arguments of the parties, found the accused Kamal not guilty of the charge and thus, acquitted him therefrom, while accused Said Muhammad was found guilty and thus, on conviction sentenced him as mentioned above which he has impugned in this appeal.
5. We have heard learned counsel for the parties and with their valuable assistance examined the entire record of the case.
6. Perusal of the record reveals that the impugned judgment of conviction of the appellant is based on the exculpatory confessional statement of the acquitted co-accused Kamal Khan which is inadmissible in evidence in view of the provisions contained under Article 43 of the Qanun-e- Shahadat Order, 1984. The impugned judgment is also based on the statement of the complainant which is only the outcome of hearsay. The trial has been conducted in violation of the statutory provisions of section 7 of the Explosive Substances Act coupled with section 19(8-B), of the Anti- Terrorism Act as the requisite sanction of the Provincial Government has not been obtained in the case.
7. Further more, the case property was neither produced before the Court nor exhibited and the non-production of the case property throws doubt on the credential of the prosecution story which has rendered the foundation of the case shaky and thus, in view of the dictum handed down in Muhammad Asghar alias Pappu v. The State 1999 PCr. 1575 (Peshawar), conviction cannot be sustained.
8. The learned trial Court has mainly relied on the report of Bomb Disposal Squad Inspection which under section 510, Cr.P.C. Is not admissible and cannot, be termed as a public document and thus, the impugned conviction is the result of presumptions and surmises. There are material contradictions in the case of the prosecution and the very material witnesses have been abandoned and withheld and thus, an adverse inference against the prosecution should have been drawn under Article 129(c) of the Qanun-e-Shahadat Order.
9. For what has been narrated above, we are firm in our view that the prosecution had not been able to prove its case against the convict/appellant beyond any shadow of reasonable doubt and the impugned judgment of conviction is not warranted under the law and is liable to be set aside.
10. Consequently, we accept this appeal, set aside the impugned judgment and acquit the appellant of the charge brought against him in the case in hand. He shall be set at liberty forthwith if not wanted in any other case.
11. Above are the reasons for our short order of event date. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.