OMAR SIAL, J.---Through this judgment we intend to dispose off the captioned jail appeal filed by the appellant against the conviction and sentence awarded to him by the Anti-Terrorism Court No, 1 at Karachi on 28-10-2015 in terms of which the appellant was convicted and sentenced to undergo R.I. for 14 years for the offence punishable under section 7(ff) of the ATA Act, 1997.
2. Briefly, the case of the prosecution is that on 3-12-2013 at about 1830 hours the police, acting on spy information, arrested the appellant and discovered 33 shells of a 17 mm gun from the gunny bag which he was carrying. An FIR bearing number 146/2017 under sections 4/5 of Explosive Substances Act, 1908 read with section 7 of the ATA, 1997 was registered against him at Police Station, Khokhrapar, Karachi.
3. The charge against the appellant was framed on 26-8-2014 to which the appellant pleaded not guilty and claimed trial.
4. The prosecution produced five witnesses in support of its case. PW-1 was Misal Khan is the complainant and the author of the memo. of arrest and recovery. PW-2 was Zahid Ali who was the witness to the memo of arrest and recovery and the memo. of site inspection. PW-3 was Syed Muhammad Itrat who was the first Investigating Officer of the case. PW-4 was Muhammad Masood Awan who was a member of the Bomb Disposal. Unit and who examined the seized ammunition.
PW-5 was Abdul Waheed was the second Investigating Officer of the case. All the witnesses were police officers.
5. The appellant recorded his statement under section 342, Cr.P.C. on 14.10.2015 in which he stated that he was a garbage collector and the police demanded a bribe from him. Upon his declining to pay the bribe, he was involved in this false case.
6. On 28-10-2015, the trial court passed the judgment, which has been impugned in these proceedings. Hence this appeal.
7. We have heard the learned counsel for the appellant as well as the learned APG and have also examined the record with their assistance. Our observations are as follows.
8. PW-1 Misal Khan the complainant admits in his testimony that each of the recovered shell had a specific number but he did not write the numbers in the FIR or the memo. of arrest and recovery.
The BDU report mentions these numbers but in the absence of the same being identified in the FIR or the memo. of arrest and recovery, doubt is created whether the shells examined by the BDU were the same as those recovered from the spot.
9. What perplexes us is also the identity of what has allegedly been recovered from the appellant.
The FIR and the memo. of arrest and recovery both state that "33 shells of a 17mm gun" were recovered. The BDU Inspection report states that the information received by the BDU from the police was that 33 grenades have been recovered from an arrested person. The BDU after inspection stated that 33 aircraft shells were examined by it. The charge states that 33 antenna aircraft shells were recovered from the appellant. When evidence was recorded PW-1 continued to state that 33 shells of a 17 mm gun were recovered. The gunny bag in which the police claim that the shells were it was not produced in evidence. We are unable to find ammunition that can be called an aircraft shell or an antenna aircraft shell. Similarly whether a weapon which fires a 17 mm round exists is also debatable.
10. The FIR and the memo. of arrest and recovery states that three out of thirty-three shells were sealed in one packet for the BDU examination while the remaining thirty shells were sealed separately. When PW-1 was confronted with this in his cross-examination, he stated that he had sealed the ammunition in two bags - one containing three shells while the other contained thirty.
He further stated that it was the BDU which mixed up the grenades after examination and sealed then in one bag. His version is not supported by the testimony of the BDU expert. While the complainant and the witnesses all said that the ammunition was secured and sealed on the spot, it appears from the testimony of PW-4 Muhammad Masood Awan that when he went to the police station to examine the ammunition, he was given 33 aircraft shells by the Investigating Officer. At no place is it mentioned that' the shells were given in two different sealed bags.
11. The incident occurred on 3-12-2013 but it was not until 6-12-2013 when the BDU was summoned by the police to come and examine the ammunition. The prosecution is silent as to where and how the ammunition was kept in this three days period. The possibility of the ammunition being tampered with in such a situation cannot be ruled out.
12. Where did the appellant procure the alleged ammunition from? What was his motive or design in possessing the same? What was a garbage collector doing with such ammunition in his possession without the necessary weapon to use them? Who was he to supply this ammunition too? - are all questions that the investigation and prosecution are silent on. In likewise situation no inference could be drawn except that either the I.O. was incompetent or dishonest.
13. Another aspect of the case that we have observed is that the appellant was not confronted with the BDU report in his statement under section 342, Cr.P.C. We are cognizant that it has been held by the Hon'ble Supreme Court in Qaddan v. The State reported at 2017 SCM R 148 that any piece of evidence not put to an accused person at the time of recording his statement under section 342, Cr.P.C. could not be considered against him. Earlier in Muhammad Nawaz v. The State reported at 2016 SCM R 267 the Hon'ble Supreme Court also held that a piece of evidence not put to an accused during his examination under section 342, Cr.P.C. could not be used against him for maintaining conviction and sentence. The same principle was earlier echoed in Muhammad Shah v. The State reported at 2010 SCM R 1009.
14. Non-identification of the ammunition seized; discrepancy in the description of the ammunition; delay in the BDU examination of the ammunition; contradictions in statements of the prosecution witnesses whether the property was sealed on the spot or not coupled with other contradictions; inadequate and deficient investigation; and failure on part of the trial court to confront the appellant with material evidence against him makes us form the view that the substantial doubt was created in the prosecution case, the benefit of which should have gone to the appellant in accordance with well settled principles of law.
In view of the above, we allow this appeal and acquit the appellant. He may be released forthwith if not required in any other custody case.