MUHAMMAD AMEER BHA TTI, J:- The appellants, Khalid Mehmood alias Mooda and Ejaz Ahmed, were tried by the learned Judge Anti-T errorism Court No.I, Rawalpindi, in case FIR No.15, dated 03.05.2016, under Sections 4/5 of ESA, 11-G, 7-ATA, 13(2)(a) PAA, 2015, Police Station CTD, Rawalpindi. The learned trial Judge vide its judgment dated 24.05.2018 convicted and awarded the sentence to the appellants as under:-
1. U/S 5 ESA, the appellant Khalid Mehm ood convicted and sentenced for 05 years R.I. for keeping 2500 grams explosive substance in his possession.
2. U/S 13(2)(a), PAA 2015, both the appellants convicted and sentenced for 05 years R.I. with fine of Rs.2 lacs each, in case of default of payment of fine, the convicts shall further undergo 6 months S.I each for keeping unlicensed weapons in their possession.
3. U/S 11-G of ATA, both the appellants convicted and sentenced for 02 years R.I with fine of Rs.1 lac each, in case of default of payment of fine, the convicts shall further undergo 6 months S.I each for keeping pamphlets of proscribed organization in their possession.
All the sentences were ordered to run concurrently with benefit of Section 382-B, Cr.P.C. Through the present appeal, the appellants have challenged their conviction and sentence.
2. As per First Information Report, the facts in brief are that after receiving spy information, on 03.05.2016 at 10:45 a.m. the appellants were intercepted and arrested from Car No.EC 547/Islam abad. On search, 2500 grams explosive substance and 30-bore pistol along with 10-live bullets were recovered from possession of Khalid Mehmood whereas from possession of Ejaz Ahmed, Rifle 8-MM was recovered. From further search of Car, a Rifle 222-bore along with two magazines, 70-rounds, one Rifle 44 bore, 10-Magazines and 160 rounds were also recovered. In addition thereto, from dash-board of car four pamphlets of Sipa-e Sihaba Pakistan were also found. It is alleged in the FIR that the aforesaid explosive substance was to be used for terrorist activity by the accused persons.
3. At trial, the prosecution in addition to the documentary evidence produced as many as eleven witnesses.
Besides CW-1 Nadeem Iqbal 788/C was summoned and examined by the Court. The statements of both the appellants were recorded under Section 342, Cr.P.C., who denied their guilt and pleaded innocent. In ultimate, the trial culminated in conviction and sentence to the appellants, noted above; hence this appeal.
4. After hearing the arguments and going through record of the case, we find the following discrepancies appeared in the evidence causing serious dent to the prosecution case culminating into appellants' acquittal from the charge alleged against them: i) PW-10 Muhammad Maalik, S.I. (a recovery witness) was the member of patrolling party , which alleged to have arrested the appellants and explosive substance was recovered from the possession of Khalid Mehmood whereas admittedly , as established from Rapt No.18 dated 03.05.2016, said PW left the Police Station at 3:50 a.m. to proceed to Lahore along with accused Imran and Marya Gul-victim in connection with FIR No.33, dated 27.04.2016 u/s 376, P.P.C., on official vehicle No.CHG-1005, which was driven by Nadeem Iqbal 788/C, for the purpose of DNA analysis, therefore, his presence along with the same driver in the same vehicle at the spot was not justified. ii) PW-9 Nazir Ahmed, SI, head of patrolling party claimed in his testimony that PW-10 Muhammad Malik was with him when he conducted the raid and was part of his patrolling party which could not be accepted being contrary to record and he did not claim that PW-10 Muhammad Maalik, SI was called subsequently in order to join the patrolling party as the same stand was taken by CW-1 in order to prove his presence alongwith PW-10 at the time of occurrence. Even in legal parlance, no officer has any power to call any other officer/official without informing to his office, which fact should have specifically been incorporated in the Daily Roznamcha. No document had been produced in Court to strengthen the testimony of CW-1; besides, it was not the stand of head of the patrolling party. iii) Nadeem Iqbal 788/C, Driver, was summoned by the Court as a Court Witness, who tried to explain that although they left the police station for the purpose of DNA test for Lahore along with the accused Imran and victim Marya Gul but on SHO's request which they received during their journey, they came back and joined the raiding party. This justification is baseless and has unnecessarily been given weight while convicting the present appellants for the reason that the SHO-Nazir Ahmad (PW-9), head of the patrolling party , had never claimed that Muhammad Malik, SI (PW-10) was not performing the patrolling duty with him. Besides this, the time of occurrence was 10:45 a.m. whereas Muhammad Malik, SI along with driver Nadeem Iqbal-CW left the Police Station at 3:50 a.m. and question does not arise that after about seven hours they had not reached Lahore and instead were available near the place of occurrence; iv) Even if the justification given by Nade em Iqbal-CW is accepted as true, absence of accused-Imran and victim Marya Gul for whose DNA analysis they were going to Lahore also falsifies rather contradicts his own statement as CW, which even otherwise was not the case of PW -9, head of alleged patrolling party; v) On the other hand while recording the statement of the appellants under Section 342, Cr.P.C., in response to the question put by the prosecution, 'why this case was registered against you and why the PWs deposed against you?', the answer is more appropriate, which is accepted especially when the prosecution evidence is deficient, which is expedient to be reproduced hereunder:- "The instant case is absolutely false and baseless. The entire story of arrest and recovery is falsified by the prosecution own evidence available on the record and the statement of the PWs.
Nine persons of our family were murdered and 9 accused were arrested and after trial were sentenced to death and four nominated accused are still POs. On 29.4.2016 SDPO Talagang Malik Abdul Rehman alongwith complainant/SHO PS Lawa came to our village and forced us to compromise with the accused of our murder case otherwise they threatened us for the consequences. We were summoned by the DSP Malik Abdul Rehman to his office at Talagang on the next date i.e. 30.4.2016 and when we went to the office of DSP on the next day on the rented vehicle bearing registration No.EC 547 ICT driven by Muhammad Altaf driver, the DSP illegally detained both of us and the driver Muhammad Altaf. Mst. Noor Jahan filed petition u/s 491 Cr.P.C. on 3.5.2016 before ASJ Talagang, the bailiff was appointed, the raid was conducted but we were not recovered as we were not kept in the police station. Mst. Noor Jahan thereafter filed criminal Misc. No.11- H of 2016 before Hon'ble Lahore High Court, Rawalpindi Bench and on 5.5.2016, the DSP Abdul Rehman appeared before the Hon'ble High Court and produced the copy of the FIR of the instant case whereupon the relatives came to know that we are in the custody of the police. After our illegal detention on 30.4.2016, the complainant, DSP alongwith the local police conducted raid at our house and took alongwith them the licensed weapons alongwith the license and valuable articles from our house which are still in their possession. The complainant changed our licensed weapons and got registered the instant false case on the asking of the DSP in connivance with our accused. The PWs/eye witnesses frankly conceded before the court that he had gone to Lahore on official vehicle No.CHG-1005 driven by Muhammad Nadeem 788/C which is duly incorporated in the daily diary register vide rappat No.18 dated 3.5.2016, PW Muhammad Maalik SI proceeded to Lahore at 3.50 am in the morning on 3.5.2016 and returned back at 11.30 PM on the same day vide rappat No.18 dated 3.5.2016. From the daily diary register/record of the police station it is crystal clear that neither the official vehicle was there nor the PWs mentioned in the FIR were there and the entire story is false and fabricated.
During investigation, the IO had also conceded before the court that the person of the locality had not verified the story of FIR."
5. We are persuaded that the prosecution has not been able to establish its case beyond reasonable doubt against the appellants and the evidence on record is not confidence inspiring; hence cannot be made basis for conviction.
Resultantly , present appeal succeeds, the conviction and sentence of the appellant s pronounced in judgment dated 24.05.2018 is set-aside and both the appellants are acquitted of the charge, who are directed to be released forthwith if not required in any other case.