1. 'SYED MEHMOOD ALAM RIZVI, J.---This appeal is directed against the impugned judgment dated 6- 5-2006 passed by the learned Special Judge Anti-Terrorism Court, Hyderabad, in Special Case No,63 of 2002 arising out of F.I.R. No,98 of 2007 under sections 4/5 of the Explosive Substances Act, 1908 (hereinafter referred to as the Act of 1908), read with sections 6/7 of the Anti-Terrorism Act, 1997 (hereinafter referred to as the Act of 1997), whereby the appellant was convicted under section 7(b) of the Act, 1997 read with sections 4/5 of the Act of 1908 and sentenced to suffer imprisonment for 7 years' R.I. And also with a fine of `Rs,50,000 and in case of default to further undergo R.I. For six months.
2. ' Precisely, the facts of the prosecution case are that the appellant was in custody in Crime No,95 of 2002, registered under sections 353, 324, P.P.C. Read with sections 4/5 of Act of 1908 and read with section 6/7 of Act of 1997, since 3rd October, 2002. During interrogation the appellant said to have admitted the alleged arms and ammunition buried in an open plot situated in front of his house. As a result on 15-10-2002 the appellant led the police party to Qasimabad to the said plot. It was alleged that after digging of the earth recovery of 7 handgrenades, 5 fuses of rocket launchers and 1 K.K. Along with 20 live bullets which were sealed in plastic and rexine bags was made. As a result, Crime No,98 of 2007 was registered under sections 4/5 of Explosive Substances Act, 1908 read with sections 6 and 7 of A.T.A., 1997. The brother of appellant Ghulam Rasool was also arrested in the above case as it was alleged that the arms were in joint possession of both the brothers.
3. ' The charge was framed upon the appellant and his brother on 22-1-2004 but the appellant and his brother pleaded not guilty and claimed to be tried. Thereafter, the, prosecution to prove its case examined P.W.1. SIP Mubarak Ali Shah (2) P.W.2 ASI Muhammad Ali Shah, P.W.3 Ali Akbar, P.W.4 AS I Shahzaman and P.W.5 Inspector Dost Muhammad and closed its side.
4. ' The appellant and accused Ghulam Rasool recorded their statements under section 342, Cr.P.C.
5. And closed their side. After hearing both the counsel and going through the evidence, the learned trial Court convicted the appellant while the accused Ghulam Rasool was acquitted.
6. ' The learned counsel for the appellant has contended that the above case was registered with mala fides and ulterior motives just to usurp the plot of the appellant and that the alleged arms have been foisted upon the appellant. She has further contended that the appellant in his statement under section 342, Cr.P.C. Had stated that the police had forcibly occupied their plot and "Alamgah" of which his father had taken possession with the aid of Fiqah Anjuman Jaferia.
7. Thereafter, the enmity with police was established, therefore, police of Gasimabad had involved the appellant and his brother in this false case.
8. ' She further contended that the appellant in his statement under section 342, Cr.P.C., produced the news clippings of different newspapers dated 13-11-1998 and 17-11-1983 in support of his contention regarding occupation of the said plot by the police. She has further contended that in the main case i,e, Crime No, 95 of 2002 which was also proceeded with the above case bearing Special Case No,62 of 2002 the appellant and his brother had been acquitted. The learned counsel argued that the appellants had never been involved in any other case but had been involved in this case just to teach them a lesson, Even, otherwise, the prosecution had miserably failed to prove its case beyond any reasonable doubt, and instead of acquittal the learned Trial Judge convicted the appellant under the influence of police. She has pointed out the following contradictions and defects in the prosecution case:--
(i) As per F.I.R. The arms were not shown sealed at the spot, and even when produced in Court were not in sealed condition, and further when. The Investigating Officer produced the case' property the arms were found short and not in sealed condition which shows that the property produced by police were brought from Malkana and it is the practice of the police to foist upon the innocent citizens the property lying at Malkana and in this manner succeeded to get promotion to higher grades.
(ii) The place of alleged recovery as mentioned in the F.I.R. Had been twisted by the prosecution witnesses as in the F.I.R. It was alleged that the recovery was effected from the open plot in front of the house of the appellant, while the prosecution witnesses stated that it was within the compound of the house of the appellant.
(iii) The mashirs have stated that the area was thickly populated and there were college and shops and other important buildings but the I/O failed to point out any such premises. And after going through the cross-examination of the I/O the trial Court proved that the I/O had never seen the alleged place of recovery.
(iv) The appellant was admittedly in custody since 3rd October, 2002, and the second I/O received the investigation on 15-10-2002 and claimed that he was the member of investigating team and on his first arrival at the police station the appellant is said to have volunteered to produce the arms and ammunition after custody of 13 days, which also makes the case highly doubtful.
(v) That in the above circumstances the report of Ballistic Expert had no value even otherwise, the arms and ammunition were sent to the expert on 9-1-2008 after a considerable delay of 2 months and 26 days and no explanation had been given by the I/O.
(vi) As per F.I.R. The arms and ammunition were lying in two plastic bags and one green Rexine bag while the alleged Rexine bag produced in court was yellow and blue cultured and the P.W.5 admitted in Court that handgrenade was produced in Court in school bag and the bullets of K.K said to have been recovered 20 in number, while in Court the I/O produced 21 bullets. The I/O and P.W.1 SIP Mubarak Ali admitted that they found no Criminal record of the appellant. It is also admitted by P.W.1 that he cannot say that handgrenade could be used or not.
(vii) The P.W.1 and P.W,5 were the SIPs and SHO Police Station. Qasimabad, respectively. The P.W.5 after instant case was promoted as TPO. The P.Ws.2, 3 and 4 weremashirs who were also police officials but none of the witness corroborated each other on any material point/event.
(viii) She further argued that the appellant is in custody since 3-10-2002 and has lost more than 7- 1/2 years of his life and not only he suffered a lot but his entire family as well, hence the impugned judgment is liable to be set aside.
9. ' The learned State counsel tried to support the impugned judgment but when entire evidence was confronted he was not able to justify the conviction of the appellant.
10. ' Heard both the learned counsel and perused the entire record.
11. It is an admitted fact that the appellant was already in custody since 3rd October; 2002, and the alleged arms and ammunition were said to have been produced by him after a delay of 12 days which also makes the recovery highly doubtful. The appellant had juxtapose his case in the trial Court and was able to prove the mala fides of the police that just to teach lesson to the family, both the brothers were booked in the false cases, and showed the gravity of the crime foisted upon them, the hand grenade, fuses of rocket launcher and K.K. With 20 live bullets by arresting and showing them terrorists. The father of the appellant succeeded in getting the possession of his plot from police, however, he had forgotten that this is a police state and ordinary citizens in such circumstances had to face the consequences. It is also an admitted fact that the arms and ammunition were not sealed at the spot and police produced the property in the trial Court in unsealed condition. The I/O also, admitted in cross-examination that the K.K was without number.
12. In such circumstances besides the other contradictions that the complainant, P.W.1 mentioned in the F.I.R. And memo of seizure that the arms were secured from the open plot in front of the house of the appellant but the mashirs deposed otherwise which spoils the case of the prosecution.
13. ' In presence of the above facts and circumstances where the prosecution itself had failed to prove its case the impugned judgment resulting in 7/8 years' R.I. For the appellant is sheer mockery and amounts to slaughtering the innocent citizens. Keeping in view the above contradictions and after going through the entire evidence we are of the opinion that the prosecution has miserably failed to prove its case, therefore, the impugned judgment is set aside and the appellant is acquitted. He shall be released forthwith.
14. ' We also direct that in case of further arrest of appellant in any other case, the police has to obtain permission from I.-G. Police Sindh for his arrest.
15. ' The I.-G. Sindh is further directed to take departmental action against the Investigating Officer within three months and the report be sent to Additional Registrar of this Court.
16. ' The copy of this judgment be sent to I.-G. Sindh.
17. ' These are the reasons of our short order dated 8-4-2009 whereby we allowed the appeal.