JUDGMENT AZMATULLAH MALIK, J.---The appellants Sher Ali son of Abdul Sattar, Sher Ali son of Jalal Khan and Naseer Khan son of Khanzada have challenged the judgment/order dated 18-6-2011 passed by Additional Sessions Judge/Judge Special Court (I), Mardan whereby the appellants were sentenced to five years' R.I. Each with benefit of section 382-B, Cr.P.C.
2. The facts of the case are that Fazle Subhan A.S.-I. Along with Sardar Ali IHC, Fazle Subhan. FC No.622 and other Police Nafari had made a Nakabandi on main Mardan Malakand Road near PP Shago Naka. Meanwhile a Motorcar bearing Registration No. 1577 IDG white colors which was coming from Sakha Kot side was intercepted for checking. The driver disclosed his name Sher Ali son of Jalal whereas the other person on front seat Sher Ali son of Abdul Sattar and the person seated at the rear seat disclosed his name as Naseer Khan. All the three persons were deboarded from the vehicle and searched whereas on search of motorcar three plastic bags from Dikky of the said car were found containing 260 dynamites along with 300 fuses/detonators. All the above said three persons fail to produce any valid licence or permit of the said recovered dynamites and fuses. The recovered dynamites/ explosive items were taken into possession vide recovery memo, murassla was drafted and sent for registration of the case to the P.S. And accused were arrested.
3. During the course of trial the charge was framed against the appellant to which he pleaded not guilty and claimed trial. Consequently the prosecution examined Zareef Khan, S.-I. As P.W.1, who had acted as Investigation Officer and P.W.2 Sardar Ali IHC, who was a marginal witness of the recovery memo, P.W.3 Fazle Subhan S.-I., as a complainant of the case and P.W.4 Saeed Ahmad Shah Incharge Bomb Disposal Squad/Armor. Thereafter the statements of accused under section 342, Cr.P.C. Were recorded who denied the alleged recovery of detonators from the vehicle allegedly shown by the Police against them.
4. Learned trial Court subsequently passed the impugned judgment and awarded the conviction and sentence as stated above.
5. Dissatisfied from the impugned judgment the appellants preferred the present appeal seeking their acquittal from the charges levelled against them.
6. Learned counsel for the appellants mainly argued that recovery was not proved to the hilt and all was a colorful exercise of the complainant S.-I. P.W.3 Fazle Subhan. He further argued that neither in the F.I.R. Nor in the evidence of the prosecution witnesses the make and the model of vehicle wherefrom alleged-recoveries were shown to have been made was mentioned nor the said car was produced at trial to prove the allegations of carrying the detonators in the -said vehicle. Further admittedly the case property was not sealed at the spot and when produced in the Court during trial it was also found not sealed. About the report of Armor the learned counsel for the appellants stressed that neither he is expert nor is a classified ballistic or Arm Expert whose report is also self explanatory wherein he mentioned that he only examined one detonator out of 260 which were in sealed condition when produced before him so in the absence of the report of Arm/Ballistic Expert it cannot be safely said that the detonators were either original or were in working condition, the statements of all the P.Ws. Were at variance hence no conviction could have been recorded by relying upon such a scanty and shaky evidence. The learned trial Court failed to appreciate the evidence in its true prospective and fix the appellants on the mere charge without even reading the evidence with care. He prayed for the acquittal of appellants.
7. On the other hand learned counsel representing State only relied that accused were charged in the F.I.R. And the evidence produced at the trial was sufficient to hold conviction. He argued that Armor is an Expert and his report can safely be relied upon.
8. I have heard both the counsel carefully and have perused the record.
9. The perusal of record and proceedings revealed that the prosecution only relied upon the statement of recovery witness and the complainant beside the I.O. And P.W.4 Armor. The careful perusal of record would also, reveal that the articles allegedly recovered from the vehicle were not sealed at the time of recovery nor thereafter at any time and that the same were also not sent to the Forensic and Ballistic Expert to know if the detonators and fuses allegedly recovered from the vehicle possessed by the appellants were in a working condition or otherwise. Non-sending of alleged recovered detonators to the Ballistic Expert itself creates doubt and dent in the prosecution story and its examination through their on employee of the Police Station would further smacks about their working disregard to the settled principle of investigation. In the case of Sajjan v. State reported in 1998 PCr.LJ Page 1399, (relevant page 402) it has been observed that in the absence of weapon and ammunition having not been sealed upon the recovery and in the absence of said weapon having not been certified to be functional as well as in the absence of weapon and ammunition not described in evidence rendered the case against the appellants to be doubtful.
The arguments advanced by the counsel for the appellants thus has force regarding non-sealing of the case property at the spot and thereafter its non-sending to the expert for report. The circumstances as appearing in the matter as to truthfulness of the prosecution case as held and is settle principle of law that benefit of doubt always goes to the accused and for that purpose it is not necessary that there must be always multiple circumstances to create doubt. Even a single circumstance creating a reasonable doubt at to the guilt of an accused entitles him to such benefit as has been held in a case of "Tariq Parvez v. State" reported in 1995 SCMR page 1345.
Learned counsel for the State however failed to substantiate his arguments regarding the none sending of recovered material to the Ballistic Expert to connect the appellants with the offence charged.
10. The result of above discussion is that keeping in view the circumstances in the matter by allowing this appeal the conviction and sentence recorded by the trial Court is set aside and the appellants are acquitted of the charge by extending the benefit of doubt who be released forthwith if not required in any other case..