ZAFARULLAH KHAN KHAKWANI, J.---On 19.3.2011 at 5.45 p.m. Irshad Hussain, Sub-Inspector (PW.4) was patrolling in his beat Sakhi Sarwar Town and was present at Baghal Chur Road when Muhammad Yousaf A.S.I. Along with Imam Bukhsh, Sardar Ahmad and Mulazim Hussain Constables told him that Muhammad Yousaf, A.S.I. Had received spy information that Arshad alias Arshi Shah, appellant, a proclaimed offender of other cases was coming on motor cycle towards Sakhi Sarwar with different weapons. Upon this information Irshad Hassain, Sub-Inspector established a picket at Baghal Chur Road. After a while the appellant came and was apprehended by the police. On his search a loaded kalashinkov, a jacket with five loaded magazines and two hand grenades were recovered. Complaint was sent by Irshad Hussain, Sub-Inspector to the police station on the basis of which formal FIR was registered at Police Station Sakhi Sarwar of D.G. Khan. After investigation the appellant was found involved in the commission of crime, as such his challan was prepared and submitted to the Anti-Terrorism Court, Dera Ghazi Khan. After trial the said learned Court convicted and sentenced the appellant which has been called in question through instant appeal.
2. By opening his brief, learned counsel for the appellant has started his arguments throwing challenge to jurisdiction of learned trial Court with the contention that Muhammad Arshad, appellant was neither charge-sheeted nor punished for any offence under the Anti-Terrorism Act, 1997 rather he was charge sheeted for the offence under the Pakistan Arms Ordinance, 1965 and also for the offence under the Explosive Substances Act, 1908 but the trial was conducted and the appellant was punished by the learned Judge, Anti-Terrorism Court, Dera Ghazi Khan who was not competent to try the appellant and more so that prior permission/consent of the Provincial Government was mandatory for prosecution of an accused under the Explosive Substances Act, 1908 which was not obtained in the present case and thus the whole proceedings are liable to be vitiated and the appellant deserves to be acquitted. He also submitted that on merits the appellant has also good case as it was outcome of personal grudge/vendetta on the part of Muhammad Yousaf, A.S.I. Who joined hands with Irshad Hussain, Sub-Inspector and falsely involved the appellant in this case to wreak vengeance.
3. Learned Law Officer, however, defended the impugned judgment by arguing that the learned Judge, Anti-Terrorism Court was competent to try the accused as challan was submitted to his Court and that necessary permission/consent of the government was also obtained during trial as such the impugned judgment does not suffer from any illegality. Further submits that the prosecution has proved its case to its hilt as such the appellant does not deserve acquittal.
4. Since a pure question of law has been raised by learned counsel for the appellant as such it is necessary to meet the same before deciding the appeal on merits.
5. We have noticed that the appellant was charge-sheeted by the learned Judge, Anti Terrorism Court, Dera Ghazi Khan as under: "I, Rai Muhammad Ayub Khan Marth, Judge Anti-Terrorism Court, DG Khan, hereby charge you:- Muhammad Arshad alias Arshi son of Ghulam Akbar caste Syed, resident of Ladan, as follows:- Firstly, That on 19.3.2011, at about 6.20 p.m., you accused named as above in the area of Baghal Chur road within the local limits of P.S. Sakhi Sarwar, Distt. D. G. Khan, you were caught by the police officials and after your personal search you were found in possession of kalashnikov loaded with five magazines, and after its unloading 180 live bullets were recovered and thus you have committed an offence punishable under section 13 of Arms Ordinance which is within the cognizance of this Court.
Secondly, that on the same date, time and place, you accused named as above were caught by the police officials and after your personal search two hand-grenades live were recovered. .Thus you had in your control and possession explosive substance In shape of hand-grenades which you possessed with the intent to endanger life or cause serious injury to the property. Thus you committed an offence punishable under section 4 of Explosive Substances Act, 1908 which is within the cognizance of this Court.
And I hereby direct that you be tried by this court on this said charges.
25.5.2011.
Sd/- Judge Anti-Terrorism Court, D.G. Khan. "
6. At the conclusion of trial the appellant was convicted and sentenced as under: "SMG rifle/kalashnikov without license along with 180 bullets and two hand grenades were recovered from him. Hence I hold that accused Muhammad Arshad alias Arshi mentioned above has been found guilty under section 13 of Ordinance No, XX of 1965 and under section 4 of the Explosive Substance Act, 1908. I convict and sentence the said accused under 13/20/65 of ibid Ordinance for 07 years RI and I convict and sentence under section 4 of ibid Ordinance for 10 years RI. In the circumstances as mentioned above including the fact that this accused has escaped once in another case from the custody of police, I direct that both the sentences awarded to accused would run consecutively. I also direct that under section 5-A of the Explosive Substances Act, the whole of the property (immoveable) of accused shall stand forfeited to Government and notice in this regard be sent to concerned Tehsildar of the area of accused. Benefit of section 382- B, Cr.P.C. Shall be extended to the accused. The case property/P1 to P-4 be confiscated in favour of State after the lapse of appeal or revision or according to decision thereof."
Above quotation of charge sheet and portion of judgment whereby the appellant was convicted and sentenced, show that the appellant was neither charge-sheeted under any provision of Anti- Terrorism Act, 1997 nor he was punished under the said Act.
7. Now the question arises as to whether the learned Judge, Anti-Terrorism Court was competent to try the offences not falling within the ambit of Anti-Terrorism Act, 1997.
Section 6 of the Anti-Terrorism Act, 1997 defines actions to fall within the definition of "Terrorism" and are to be punished under the said Act. Section 12 of the Act deals with jurisdiction of the Anti- Terrorism Court. Relevant portion of the said provision is as under: "Notwithstanding anything contained in the Code or in any other law, a scheduled offence committed in an area in a Province or the Islamabad Capital Territory shall be triable only by Anti- Terrorism Court exercising territorial jurisdiction in relation to such area.
This provision of law provides that the offences given in the Schedule of the Act are to be tried by the Anti-Terrorism Court. Third Schedule under section 2(t) attached to the Act prescribes the offences to be tried by the Anti-Terrorism Court. It lays down as under:
1. Any act of terrorism within the meaning of this Act including those offences which may be added or amended in accordance with the provisions of section 34 of this Act.
2. Any other offence punishable under this Act.
3. Any attempt to commit, or any aid or abetment of, or any conspiracy to commit, any of the aforesaid offences.
4. Without prejudice to the generality of the above paragraph, the Anti-Terrorism Court to the exclusion of any other Court shall try the offences relating to the following, namely, i) Abduction or kidnapping for ransom; ii) Use of fire-arms or explosives by any device, including bomb blast in a mosque, imambargah, church, temple or any other place of worship, whether or not any hurt or damage is caused thereby; or iii) Firing or use of explosives by any device, including bomb blast in the Court premises.
The Government of Punjab vide Notification No, So(JudI-1)10 (1-36(1)2010 dated 5.9.2012 made amendment in the above provision of law and further added following two sub-clauses to above clause (4) of the Schedule: iv) Hurt caused by corrosive substance or attempt to cause hurt by means of a corrosive substance; and v) Unlawful possession of an explosive substance or abetment for such an offence under the Explosive Substances Act, 1908 (V1 of 1908)
8. Occurrence in the present case took place on 19.3.2011. Cognizance of the case was taken by the learned Judge, Anti-Terrorism Court, D.G. Khan and charge was framed on 25.5.2011. As noted above, the said offence was made triable by the Anti-Terrorism Court vide the above notification.
Dated 5.9.2012. It means that the offence committed by the appellant did not fall within the jurisdiction of Anti-Terrorism Court on the day when the same was committed and even when the learned court framed the charge. Thus the charge was framed by the learned trial court on wrong premises and is liable to be vitiated, proceedings being coram non judice.
9. There is another aspect of the matter. The appellant was also charge-sheeted/convicted and sentenced under the Explosive Substances Act, 1908. Section 7 of the said Act imposes restriction on trial of offences except with consent of the Provincial Government. The said provision is as follow: "7. Restriction on trial of offences. No court shall proceed to the trial of any person for an offence against this Act except with the consent of the Provincial Government."
Perusal of this provision shows that it imposes restriction on trial of cases under the Explosive Substances Act, 1908 without prior permission/consent of the Provincial Government. In the present the learned Anti-Terrorism Court took cognizance of the case and framed charge 'on 25.5.2011. We have gone through the Order No,AS/DIR/APL/PPD/4-Sanction/2011 dated 13.7.2011 issued by the Government of the Punjab Public Prosecution Department by which sanction for prosecution of the appellant was granted and a copy of this order was also forwarded for information and necessary action to the District Public Prosecutor, Dera Ghazi Khan with reference to his letter No, 287/DPP/DGK dated 21.6.2011 whereby he had sought permission/ consent for prosecution of the appellant. It is evident that trial of the appellant was commenced without prior consent of the Provincial Government which was mandatory and a condition precedent for prosecution of the appellant under section 5 of the Act. It is thus a case badly conducted in the eyes of law.
10. So far as merits of the case are concerned, we have gone through the record with the assistance of learned counsel for the appellant and also learned Law Officer.
The prosecution case in the FIR was that Muhammad Yousaf, A.S.I. Received spy information that the appellant was coming to Sakhi Sarwar along with weapons upon which he informed Irshad Hussain, Sub Inspector of Police Station Sakhi Sarwar who established a picket and apprehended the appellant. This Muhammad Yousaf, A.S.I, was not produced by the prosecution at trial. However, it has come on record that the said Muhammad Yousaf, A.S.I. Was not even posted in Police Station Sakhi Sarwar rather he as posted in Police Lines D.G. Khan.. It has also come on record through cross-examination of Irshad 'Hussain, Sub-Inspector that prior to the present occurrence the appellant was also accused of cases FIR No, 39 of 2010, FIR No, 165 of 2010 and FIR No,174 of 2010 all registered at Police Station Darahma of District D.G. Khan and was being taken to the Area Magistrate by above said Muhammad Yousaf, A.S.I. Along with other police officials when he ran away from the police custody and Absconded. It was also disclosed by Irshad Hussain, Sub- Inspector that Muhammad Yousaf, A.S.I. And other police officials escorting the appellant at the time of his escape were suspended by the higher police officers and case was registered against them and they were even sent to jail and were released on bail. The Sub-Inspector also divulged that even he was involved in a corruption case of receiving Rs,5000/- as bribe and was sent to jail as a result of raid by a Magistrate. He claimed that he was acquitted from the said case but admitted that he had been acquitted as a result of compromise with the P.Ws. Who did not support the case. He also disclosed that Police Station Sakhi Sarwar was situated adjacent to the tribal area and at some places the tribal area was at a distance of one kilo meter. He also disclosed that in tribal area weapons were freely available and also admitted that persons involved dealing in weapons and narcotics were sometimes apprehended by them while transporting from tribal area to the settled area. The Sub-Inspector also admitted that at the time of receiving information from Muhammad Yousaf, A.S.I. He was present at Baghal Chor Mor which was within the beat of Sakhi Sarwar town. He disclosed that Baghal Chor Mor was ten kilometers away from Sakhi Sarwar. He also admitted that spy informer had not joined them from police station. He was candid enough to admit that the informer (Muhammad Yousaf, A.S.I.) had no contact with him before passing on information about the appellant and even showed his ignorance as to how Muhammad Yousaf came to know about his presence in Baghal Chur Mor. He disclosed that the police party reached at Baghal Chur Mor at about 4.30 p.m. And after 10/15 minutes of his reaching there Yousaf etc. Also arrived there. He further claimed that after 10/15 minutes of arriving of Yousaf etc. The appellant came there. He claimed that due to darkness the appellant was unable to see the presence of police there. We take a pause here. The occurrence took place on 19.3.2011. Going by the statement of Irshad Hussain, I.O. The appellant was apprehended at 4.50/5.00 p.m. It may be noted that in the second half of month of March sun does not set at 5.00 p.m. So as to make so darkness to unable someone to see beyond certain distance.
We have also noticed that in the FIR it was mentioned that at the time of apprehension a loaded kalashnikov, a jacket with five loaded magazines and two hand grenades were recovered whereas at trial Irshad Hussain, Sub-Inspector P.W.4 claimed recovery from the appellant in the following words: "....And on his personal search, loaded klashnikov hanging wrong sidedly on his right shoulder and a magazine jacket of pockets was bounded by his body where five loaded magazines and two handgrenades were there, were recovered. On unloading the magazines 180 live bullets P.3/1-180 were recovered, rifle SMG, Klashinkov P.I, six live magazines P.2/1-6, a rifle with magazine and two hand-grenades P.4/1-2 were recovered which were taken into possession vide memo Ex.PB."
(emphasis supplied)
Likewise Liaqat Ali, Constable P.W.2 deposed at trial about recovery in the following words: "on his personal search a rifle SMG, klashnikov P.1 and six live magazines P.2 and a rifle with magazine and two hand-grenades (P.4/1-2) and after counted the magazines it was amounted 180 live bullets P.3/1-180 which were taken by the 1.0. Vide memo Ex.PB attested by me." (emphasis supplied)
But astonishingly, these rifle SMG and rifle with magazine do not find mention in the Recovery Memo. Ex.PB and more so neither the appellant was charged for having a rifle SMG and another rifle nor the said rifles were put to him under section 342, Cr.P.C. This shows mala fide and ulterior motive on the part of the Sub-Inspector to fully involve the appellant in this case. The learned trial Court neither exhibited these rifles nor took any notice as to where these rifles had vanished.
11. The shady character of this Irshad Hussain, Sub-Inspector PW.4 coupled with his contradictory statement as also the factum of suspension and arrest of Muhammad Yousaf A.S.I. Due to alleged escape of the appellant from his custody are the circumstances which speak volume about story of involvement of the appellant in this case and create serious doubt about the recovery in the present case. Suffice it to say that it appears to be a case of classic example of "hands in glove" on the part of Irshad Hussain, Sub-Inspector and Muhammad Yousaf, A.S.I. And possibility of weapons having been planted by Irshad Hussain, sub-Inspector upon the appellant with the connivance of said Muhammad Yousaf A.S.I. Cannot be ruled out. No need to mention that it is established law that where evidence creates doubt about the truthfulness of prosecution story, its benefit has to be given to the accused without any reservation and there is no alternative but to acquit the appellant by giving him benefit of doubt. Reference in this regard ma:' be made to the cases of Muhammad Ilyas v. The State (1997 SCM R 25) and Muhammad Zaman v. The State and others (2014 749).
12. In this view of the matter, we find that the appellant has succeeded to make out a case for his acquittal on merits as also on the basis of his trial being coram non judice.
13. Resultantly, this appeal is accepted; conviction and sentences of the appellant are set aside and he is acquitted of the charge. He be set at liberty forthwith if not required to be detained in any other case.