' MUSARRAT HILALI, J.---This judgment shall also decide Criminal Appeal 264-P of 2013 as both are outcome of one and the same judgment of learned Judge Anti-Terrorism Court-II, Peshawar, dated 3-6-2013.
2. The appellants stood trial in case F.I.R. No, 1111 dated 29-8-2012 registered for offence under section 4/5, Explosive Substances Act read with section 7, ATA at Police Station Charsadda and after having been found guilty by learned Judge Anti-Terrorism Court-H, Peshawar vide judgment dated 3-6-2013, they were convicted and sentenced to 7 years' R.I. Each with benefit of section 382- B, Cr.P.C.
3. As per prosecution version, the complainant Nasrullah Khan, SI was on gusht at the relevant time when received information regarding presence of suspected materials/articles near Habib Bank Limited Utmanzai Bazar Charsadda, thus, believing the same to be true, he rushed to intimidated place and found there a tin wrapped in bag having a wire while Mukaram Khan and other police contingent present on the spot adopted precautionary measures. He immediately called BDS, who arrived, to the spot and defused the self-made Bomb from which explosive material, prima card, detonator, nine volt battery and receiver were recovered, which were seized through memo Exh.P.W.1/1. He drafted murasila Exh.PA and sent the same to Police Station for registration of case.
He sealed the case property in parcel and on arrival to Police Station handed over the same to Moharrir, hence the case was registered against unknown accused.
4. On completion of investigation, the appellants were charge-sheeted to which they did not plead guilty and claimed trial.
5. In order to prove the guilt of the accused, the prosecution examined as many as 13 P. Ws. In all whereafter statement of accused under section 342, Cr.P.C. Was recorded, wherein, they claimed false implication and professed innocence, however, they did not produce evidence in defence or to give statement on oath in rebuttal as required under: section 340(2), Cr.P.C. The trial concluded in conviction and sentence of the appellants as mentioned above, which they have now questioned through separate appeals.
6. Learned counsel for appellants in both the cases contended that appellants are innocent and have falsely. Been implicated in this case; that there is no independent evidence to support the prosecution case; that it was an unseen occurrence for which the appellants have been enroped by the police in order to show good performance to their high-ups; that nothing incriminating have been recovered from personal possession of appellants; that there are major contradictions in the statements of prosecution witnesses, therefore, in view of the facts and circumstances the conviction and sentence of appellants is: bad in law, which merits reversal and consequently the appellants be acquitted, the learned counsel was of the opinion.
7. As against that learned A.A.-G. Contended that although there is no direct evidence against the appellants but there is strong circumstantial evidence supported by confessional statement of appellant Sheraz in the connected case, which is in line with incriminating material on record, thus, the impugned judgment of learned trial Court is based on correct appraisal of evidence, which do not warrant interference by this court.
' We have heard learned counsel for the parties and gone through the impugned judgment as well as record of the case.
8. Admittedly, there is no eye-witness to the occurrence and the case of prosecution rests entirely on circumstantial evidence. The prosecution has relied upon the confessional statement of accused Sheraz and the CC TV recording provided by the Bank Manager to the Investigating Officer.
9. While going through the confessional statement of accused Sheraz, it reveals that in the said statement the accused declined to take part in the commission of offence and incriminated himself to the extent that he only accompanied the co-accused, however, on getting knowledge he left the co-accused and ran away, thus, it is clear that the statement made by the accused/appellant Sheraz is exculpatory in nature as neither it contains any admission nor confession and have remained uncorroborated. The learned trial Court should not have accepted it being a weak type of evidence.
10. The other evidence available to the prosecution was the CC TV recording provided to the Investigating Officer by the Bank Manager. The prosecution claimed to have traced the accused with the help of CC TV recording and 9 photographs made therefrom. The camera visual showed a man with muffled face put a sack in public place and walked away, however, neither any building nor Board of the Bank can be seen in it. It also does not show the arrival of police and the Bomb Disposal Squad, besides, no time and date is reflecting in it. The CC TV recording is neither clear nor compelling rather it is still shrouded in mystery that how the law-enforcing agencies have reached to the accused through it.
11. The learned Judge Anti-Terrorism Court-II Peshawar in his judgment dated 3-6-2013 observed that "mere fact that there is no direct evidence, will not be a ground, for disbelieving prosecution case".
12. No doubt, conviction can be based on circumstantial evidence provided the circumstances from which the conclusion is drawn are cogent, reliable fully established and are pointing towards the guilt of accused.
13. The Hon'ble Supreme Court in the case of Muhammad Hussain v. The State (2011 SCM R 1127) has held that "it is a case of circumstantial evidence, therefore, as a rule of prudence it is required that each piece of circumstantial evidence shall be supported by independent corroboration, which shall by itself be sufficient to establish the guilt, however, each circumstance shall be so connected with each other that it shall make one complete chain without there any broken link".
14. In the case in hand, not a single circumstance has been proved by the prosecution wherefrom inference regarding guilt of the accused could be drawn as the evidence falls far short of the prescribed standards.
15. Apart from the above, it is in the evidence that not only P.Ws.1 and 9 were unaware of the names and identity of the accused but P.W.13 was equally ignorant of the said fact. Further, as per P.W.9, the occurrence in this case took place due to blood feud enmity. Again P.'W.13 in his cross- examination deposed that the accused/appellants were neither involved in the instant case nor they belong to the said group, thus, it can safely be held that the prosecution version is not in consonance with the statements of P.Ws.
16. The nutshell of the above discussion is that the prosecution has failed to prove any of the circumstance 'set up against the accused/appellants by drawing inferences, which were not available on the record and the learned trial Court has wrongly ignored the material discrepancies and infirmities in the prosecution evidence referred to above.
17. Accordingly, this appeal is allowed. The conviction and sentence of appellants Fahim and Sheraz is set aside and they are acquitted of the charges levelled against them. They be set at liberty forthwith, if not required in any other case.
' Above are the detailed reasons for our short order of even date.