CH. MUHAMMAD TARIQ, J.---This single order shall dispose of Criminal Revision No. 25 of 2011 filed by the petitioners/convicts for their acquittal and Criminal Revision No. 54 of 2011 filed by the State for enhancement of sentence of the petitioners, as both these petitions arise out of one and the same judgment dated 22-1-2011 passed by learned Additional Sessions Judge, Rawalpindi who dismissed the appeal and maintained the judgment dated 16-11-2010 passed-by Syed Zaigham Abbas Rizvi, Magistrate section 30, Rawalpindi who convicted and sentenced the petitioners in case F.I.R. No. 34 dated 29-1-2009, under sections 120B, P.P.C., 4/5/6 ESA, 13/20/65 (AO), and 7-ATA, 1997, registered with Police Station Saddar Barooni, Rawalpindi as under:--
(i) Petitioner No.1 Qari Muhammad Ilyas: Under section 13/20/65 (A.0.), three years' R.I. With fine of Rs.20,000. In case of non-payment of fine, to further undergo six months' R.I. Under section 5-E.S.A., seven years' R.I. With forfeiture of whole property owned by petitioner/accused in favour of the Government.
(ii) Petitioner No.2 Muhammad Naeem Shakir al;as Zubair Munshi alias Saidullah: Under section 13/20/65 A.O. Three years' R.I. And tine of Rs.20,000. In case of default in payment of fine to further undergo six months' R.I. Under section 5-E.S.A., imprisonment for seven years R.I. With forfeiture of whole property owned by petitioner/accused in favour of the Government.
(iii) Petitioner No.3 Muhammad Rizwan alias Shins-ul-Haq Under section 13/20/65, (A.0.), three years R.I. With tine of Rs.20,000 and in case of non-payment of fine, to further undergo six months'
R.I. Under section 5-E.S.A. Seven years'
R.I. With forfeiture of whole property owned by petitioner/accused in favour of the Government.
(iv) Petitioner No.4 Faisal Ahmad Khan: Under section 13/20/65, (A.O.) and three years' R.I. With tine of Rs. 20,000 and in case of non-payment of fine, to further undergo six months' R.I. Under section 5-E.S.A., seven years' R.I. With forfeiture of whole property, owned by petitioner/accused in favour of the Government.
(v) Petitioner No. 5 Zeeshan Jalil alias Khizar alias Adana: Under section 13/20/65, (A.O.), three years'
R.I. With fine of Rs.20,000 and in case of non-payment of fine, to further undergo six months' R.I.
Under section 5-E.S.A., seven years' R.I. With forfeiture of whole property owned by petitioner/accused in favour of the Government.
(vi) Petitioner No. 6 Muhammad Sarfraz alias Muhammad Khan alias Gul Khan alias Umer Ali: Under section 13/20/65, (A.O.), three years' R I. With fine of -Rs.20,000 and in case of default in payment of fine, to further undergo six months' R.I. Under section 5-ESA, seven years' R.I. With forfeiture of whole property owned by . Petitioner/accused in favour of the Government.
(vii) Petitioner No. 7 Muhammad Nadeem alias Abu Sals-ul-Din Ayubi: Under section 13/20/65, (A.O.), three years' R.I. With fine of Rs.20,000 and in case of non-payment of fine, to further undergo six months' R.I. Under section 5-E.S.A., seven years' 'R.I with forfeiture of whole property owned by petitioned/accused in favour of the Government.
(viii) Petitioner No. 8 Usama-bin-Waheed alias. Hidayatullah alias Abu Khalid: Under section 13/20/65, (A.O.), three years' R.I. With fine -of Rs.30,000 and in, case, of non-payment of tine, to further 'undergo six months' R.I. Under section 5-E.S.A., seven years' R.I. With forfeiture of . Whole property owned by petitioner/accused in favour of. The Government.
(ix) Petitioner No.9 Doctor Abdul Razzaq: Under section 13/20/65, (A.O.), three years' R.I. With tine of Rs.20,000 and in case of non-payment of fine, to further undergo six months' R.I. Under section 5- E.S.A., seven years' R.I. With forfeiture of whole property owned by petitioner/accused in favour of the Government.
3. Brief facts of the case as narrated in the F.I.R. No.34, dated 29-1-2009, for the offences under sections 120-B, P.P.C., 4/5/6, E.S.A., 13/20/65(A.0.) and 7 ATA,1997,. Registered with Police Station Saddar Barooni, Rawalpindi are that Mushtaq Hussain Inspector/SHO received a spy information that some terrorists were residing in Dhoke Lakhan and were preparing for some terrorist activities: It was also reported that they had explosive materials consisting of tire-arms, 'explosives, detonators and motorcycles for suicidal attacks. It was also reported that those, terrorists had connections with their network in Wana and were involved in terrorist activities in Islamabad/Rawalpindi areas. They were making preparations to commit some terrorist attacks and could be arrested with explosives, if an immediate raid was made. On this information police party under the supervision of Sardar Masood Khan SSP Operation, Raja Abdul Hafeez, DSP, Cantt; Muhammad Basharat Abbasi, SHO, Police Station RA Bazar, Sardar Baber Mumtaz, SHO, Westridge Muhammad Jamil SHO, Police Station, Cantt; Ijaz Hussain Shah SHO, Police Station New Town along with Muhammad .Akram, S:I. Gul Taj, ASI, Muhammad Maqsood Constable, Muhammad Aslam, SI, Iftikhar Ahmad Butt, ASI, Waqar Ahmad, Yasir Muhammad and Waqas Mehboob Constables and two sections of elite force raided the house on 29-1-2009 at 5-00 p.m. In Dhoke Lakhan. The terrorists present in the house tried to escape along with the explosives but they were caught red handed in the house. On inquiry, they told their names as Muhammad Ilyas alias Qari Jamil, Muhammad Nadeem alias Abdu Salah-ud-Din Ayubi, Muhammad Rizwan alias Shamus-ul-Haq, Doctor Abdul Razzaq, Faisal Ahmad Khan, Zeshan Jalil alias Khizar Adnan,- Muhammad Sarfraz alias Muhammad Khan, Muhammad Naeem Shakir alias Zubari alias Munshi alias Saeed. Ullah and Usama Bin Waheed alias Hadayat Ullah alias Khalid. During the raid accused Tanveer Ahmad alias Nasir alias- Ali escaped while throwing a bag, Qari Ilyas was apprehended with a Motorcycle containing 20 kilogram explosives, while on the right side of his shirt under the arm a hand .
Grenade, four detonators and a .30 bore loaded pistol were recovered. On unloading the pistol, six live cartridges were recovered from the same room, powder of potassium chloride, two bags of wood powder and a nine volt battery were also recovered, From Muhammad Nadeem alias Abu.
Salah, a bag of potassium chloride, from Muhammad .Rizwan a bag of black colour was recovered which was in his right hand containing two explosives, a hand grenade and detonators along with 10 fuses. From Abdul Razzaq on search of his right pocket of wearing shirt nine detonators along with fuses and key of vehicle were recovered, a bag containing two kg, explosive was recovered from Faisal Ahmad Khan, a hand grenade was recovered from the right pocket of the shirt of Zeshan Jalil alias Khizar,, a bag containing, two Kg explosive was recovered from possession of Muhammad Sarfraz alias Muhammad Khan, a hand grenade was 'recovered from the right pocket of the shirt . Of Muhammad Naeem Shakir. A bag containing 6 Kg explosive and 30 bore loaded pistol was recovered from the right hand of Usama Bin Waheed, on unloading, of which six live bullets were recovered, a hand grenade was also recovered from his right pocket of the shirt. In the same room, three motorcycles No. BA-70-CC-70 red black colour having written DX on tanki taps without number, Motorcycle Metro read colour bearing No.JMD 6958 were also found standing.
Whereas on searching the bag thrown by Tanveer Ahmad accused, 10 kg explosive was recovered.
The abovementioned material was taken into possession and separate memos. Were prepared, an arrangement: was made to call the department of civil defence to defuse the hand grenades and other fire-arm explosives. All the said 'recovered material was kept by the accused persons, for completion of their criminal conspiracy. Hence this case was registered.
4. After investigation' of case, challan of the case was sent to the court of Illaqa Magistrate. Formal charge was framed against the petitioners who denied guilt and pleaded innocence.
5. After recording the prosecution evidence and statements of the convicts/petitioners under section 342, Cr.P.C, the learned trial Court vide his judgment dated 16-11-201.0 convicted and sentenced them as mentioned herein above. The convicts/petitioners filed an appeal which was dismissed by the learned Additional Sessions Judge, Rawalpindi vide his judgment dated 22-1-2011.
Hence these Criminal Revision petitions.
6. Learned counsel for the petitioner contends that the impugned-judgments passed by both the learned courts below are illegal, against the law and facts which are not sustainable in the eye of law. The prosecution has failed to prove its case beyond any shadow of doubt. The impugned judgments passed by both the learned courts below are result of misreading and non-reading of evidence. The witnesses produced by the prosecution could not implicate the petitioners in their statements as there is no incriminating evidence available against the petitioners. From the evidence on record, no offence under the Explosive Substance Act was made out. The alleged recovered articles were not proved to be explosive during the trial. Further avers that prosecution could not prove the alleged place of recovery. The petitioners were in possession of the police since 2008 which fact is fully established from the record but all the above facts were ignored by both the learned courts below, therefore, Criminal Revision No.25 of 2011 be accepted, impugned judgments whereby the petitioners were convicted and sentenced be set aside and petitioners be acquitted from the charge, while the Criminal Revision No.54 of 2011 having no force be dismissed.
7. Conversely, learned Deputy Prosecutor-General has vehemently opposed this Criminal Revision and has contended that there are concurrent findings of two learned courts below against the convicts/petitioners. The prosecution has proved its case beyond any shadow of doubt. All the P.Ws. Are independent witnesses who have no animosity against the petitioners. A huge quantity of explosive was recovered from the possession of the petitioners/convicts' who were caught red- handed from the house and were taken into police custody, therefore, the petitioners are entitled to enhancement of sentence. Learned Deputy Prosecutor-General prays that Criminal Revision No.54 of 2011 filed for enhancement of sentence of the petitioners be allowed while Criminal Revision No.25 of 2011 being without any substance be dismissed.
8. Arguments heard. Record perused.
9. The allegation against the petitioners/convicts was that they were arrested red handed with a huge quantity of explosives and fire-arm weapons. According to the contents of the F.I.R., on the spy information, the police party conducted a raid on a house situated at Dhoke Lakhan and apprehended the petitioners along with huge explosives, detonators, material used for preparation for explosives but prosecution has failed to adduce any evidence in this behalf. Beginning from the house from where the convicts were allegedly arrested, the prosecution badly failed to produce evidence about who was the owner of the house and which was the place from where the convicts/petitioners were arrested. It was incumbent upon the prosecution to record statement of owner of land, if any, about when and to whom he had rented out the above said alleged house, but file is silent in this regard. The statement of P.W.1 Muhammad Saqlain, Bomb Disposal Expert further makes the A prosecution case unbelievable as during his cross-examination, P.W.1 states that it is correct that on my report Exh.P-A, no diary number of my office is endorsed. He further contends that out of recovered chemicals and explosives, he has not sent any material to the Chemical Examiner for analysis. He further contends that he does not know about any formula of potassium chloride. He has further admitted that out of entire recovered material, he had sent nothing to Chemical Examiner, Forensic Science Laboratory or any other office/person of-expertise in the matter to determine as to whether the recovered material is explosive. He also admits that his educational qualification is simply Matric. He further contends that after the recovery of material, he did not seal the recovered material, and further admits that simply alleging something as explosive does not make it explosive. Similarly Musaddaq Hussain, Inspector/I0 while appearing as P.W.4 has also admitted that he has not recorded the statement of owner of house from where the convicts were allegedly arrested nor he can produce any proof about from where the petitioners were apprehended. He further admits during his cross-examination that after apprehending the petitioner; he did not obtain their physical remand and straightaway sent the petitioners to judicial lock-up.
10. Perusal of record further highlights that Investigating Officer has not recorded the statement of Muharrar or any other person who could prove that the alleged recovered material was handed over by the S.H.O. In the F.I.R., it was mentioned that when a raid was conducted, the petitioners/convicts tried to ran away from the house while in statements, the witnesses have stated that the petitioners/convicts were sleeping in the house when they were apprehended.
However, one person Tanveer Hussain succeeded to flee away from the spot while on the other side, there is documentary proof that some of the accused-persons i.e., Usama Bin Waheed and Doctor Abdul Razzaq etc. Reportedly were taken away from their houses since 2008 and in this behalf, a number of newspaper clippings and writ petitions were tiled by their relatives, family members B and friends since 2008.
11. The prosecution has badly failed' to produce even an iota of evidence in its favour.
12. As, discussed above, the prosecution has failed to prove their case beyond any shadow of doubt. The above material discrepancies in prosecution evidence were not considered properly by both the learned courts below. Therefore, Criminal Revision No. 54 of 2011 filed by the State for enhancement of conviction and sentence is dismissed. The Criminal Revision No. 25 of 2011 tiled by the petitioners/convicts is allowed, the impugned judgments are set aside and the petitioners are acquitted of the charge. As a consequence, the petitioners be released forthwith, if not required in any other criminal case.
C.M. No. 221-M of 2011.
As the main Criminal Revision No. 25 of 2011 stands disposed of the C.M. Is also disposed of.