ATTAULLAH KHAN J. The appellant, Muhammad Noman, has filed this appeal under section 410, Cr.P.C. Read with sections 25 and 7 of Anti-Terrorism Act 1997, against the judgment dated 29-7- 2010 passed by the learned Judge, Anti-Terrorism Court D.I. Khan, whereby he has been convicted under Section 5 of the Explosive Substances Act read with section 7(ff) of Anti-Terrorism Act to suffer fourteen years R.I. He also stands convicted under section 13 Arms Ordinance and sentenced to six months rigorous imprisonment. He has further been convicted under section 7(i) of Anti- Terrorism Act and sentenced to undergo five years R.1, vide case F.I.R. No.180 dated 22-6-2010 registered under section 5 of the Explosive Substances Act, section 13 Arms Ordinance and Section 7 of the Anti-Terrorism Act in Police Station Gomal University, D.1. Khan.
2. The prosecution story as gleaned from the F.I.R. (Exh.PA) lodged by Muhammad Hashim Khan, S.H.O. Of Police Station Gomal University, is to the effect that while in police custody in case F.I.R.
No.144 dated 29-5-2010 under sections 302/404/201, P.P.C. Of Police Station Gomal University, the appellant Muhammad Noman disclosed that the explosive used in the explosion handed over to him by Muhammad Imran wrapped in a plastic bag was lying in his house, the complainant/S.H.O.
Along with police party took the appellant in custody to his house situated in Umer Town where he handed over the said plastic bag to the lncharge Bomb Disposal Squad, who when opened it found the explosive substances with arms and ammunition detailed in the F.I.R.. The appellant was accordingly booked in the case in hand as well.
3. After completion of investigation, the accused was tried by the learned Judge Anti-Terrorism Court D.I. Khan and ultimately found guilty of the charge. He was thus convicted and sentenced as mentioned above. Hence this appeal.
4. Learned counsel for the appellant argued that the prosecution evidence is defective and, therefore, the impugned conclusion of the learned trial Judge is not sustainable under the law. He submitted that the main material against the convict/appellant is the incriminating articles recovered on pointation of the appellant and his confessional statement. According to him, neither the recovery of the alleged recovered articles was proved nor the confessional statement of the appellant is based on correct legal premises. He, therefore, contended that impugned judgment of conviction is liable to be set aside.
5. On the other hand, learned counsel for the State defended the impugned conviction of the appellant on the ground that he is directly charged in the F.I.R. And a huge quantity of explosive substances have been recovered on his pointation. Therefore, he is reasonably connected with the offence and thus was rightly convicted and sentenced therefor which needs no interference.)
6. We have carefully gone through the record of the case and considered the submissions of the learned counsel for the parties.
7. The main materials against the accused/appellant is the incriminating articles recovered allegedly on his pointation and his confessional statement.
8. We would first discuss the recovery of incriminating materials (Exh.PW.2/1) and confessional statement of the appellant.
9. Perusal of the record discloses that the recovered articles are shown tweleve in number and if it is compared with the contents of the F.I.R., then the recovery memo and the recovered articles becomes doubtful. The reason is that in the F.I.R., eleven items are shown to have been taken into possession on the pointation of the accused/appellant, while in the recovery memo, 12 articles have been shown. This difference has made the recovery of the alleged recovered articles doubtful.
10. Now coming to the confessional statement of the accused/appellant, it is to be noted that the learned counsel for the appellant has objected the same on the ground that it was recorded after the accused remained in police custody for six days and Secondly that he was handed over to the Investigating Officer after recording of his confessional statement. Both these defects are material, because there is plethora of judgments of the Superior Courts which speak that in case when confessional statement is recorded after the accused has remained in police custody for more than twenty-four hours, then it becomes not believable. In this respect, we would refer to a judgment of this Court in the case of Muhammad Israr v. The State reported in 2002 PCr.LJ 1072, wherein it has been held as under:-- "The confession is not voluntary as it has been recorded after four days police custody and in view of the extra zeal shown by the police, as the deceased was a Sale Manager of police officer. In cases Niaz Muhammad alias Niazai v. The State (1996 PCr.LJ 394) this Court after making reference to some cases, i.e. Abid Hussain Shah v. The State (1983 PCr.LJ 882 and Hamza v. The State (1983 PCr.LJ 892) has held that confessional statement recorded after three/fours days after arrest of the accused need to be thrown out on the ground of involuntariness".
11. If the case of the accused/appellant is viewed in the light of observations made in the above two cases, then the confession of the appellant becomes doubtful and of no value because admittedly, the appellant has remained in police custody for 6/9 days.
12. It is clear from question No.5 which discloses that the accused remained in police custody for six days. So keeping in view this detention, the confessional statement of the appellant becomes illegal and cannot be considered for conviction.
13. Moreover, as admitted by the Investigating Officer, the accused/appellant was handed over to him after his confessional statement was recorded. This is again an illegality and makes the case doubtful. In this respect, we may refer to a judgment of this Court reported in 1996 PCr.LJ 358, wherein it has been held as under:-- "Before starting to take down the confessional statement, it is incumbent upon the Magistrate to remove all signs of fear from the mind of the accused. To assume this, the law requires that the accused be apprised of the fact that whether or not they make a statement before the Magistrate after their having been produced before him, they will not be handed over to police and instead be remanded to judicial custody".
14. Similar principles have been laid down in the case of Imran Bashir Farooqi v. The State, reported in 1990 PCr.LJ 677, wherein it has been held that:-- "It is not denied by the prosecution that the accused was handed over to the police after recording of the confession. This certainly affects the voluntariness of the confession".
15. So on the above count also, the confessional statement of the appellant has become doubtful and cannot be believed.
16. Another point to be considered is that the case property was not sealed and this fact has been admitted by PW.3 in the following words: "It is correct that explosive/barood lying in the Court is a plastic bag and are not in sealed condition".
17. Similar admission has been made by other P.Ws. So this nature of case property cannot be believed. There is every possibility that these items are not the same which were allegedly recovered on pointation of the accused/appellant.
18. We may also refer to the time of occurrence. According to the F.I.R., the occurrence took place at 1445 hours and if we compare it with the statement of P.W.3, we would find a difference between the time. According to P.W.3, he was called by the S.H.O. Of Police Station Gomal University at about three P.M. In presence of this P.W., the incriminating articles were pointed out by the accused. So as stated by P.W.3 that he was called by the S.H.O. At 0300 p.m. And the occurrence must have taken place thereafter, but the time disclosed in the F.I.R. Is 1445 hours which is prior and this difference has also destroyed the prosecution case.
19. On whatever angle is seen, we find that the prosecution case is full of doubts and, therefore, the learned trial Judge has failed to appraise, the evidence brought on record in its true perspective.
20. Moreover, learned counsel for the appellant has also produced copies of judgments passed by this Court in Criminal. Appeals Nos.129/2009 and 125/2010 passed on 10-11-2010 and 13-1-2011 respectively, vide which the appellant has been acquitted of the charges.
21. Resultantly, we hold that the prosecution had not been able to prove its case against the convict/appellant beyond any shadow of reasonable doubt and thus the appeal merits acceptance.
22. As a corollary to what is discussed above, this appeal is accepted, the impugned judgment of conviction is set aside and the appellant shall be set at liberty forthwith if not wanted in any other case.
23. Above are the reasons for our short order of even date.