Sadiq Mahmud Khurram, J.--The appellant namely Hafiz Muhammad Tahir appellant was tried by the learned Judge Anti-Terrorism Court II, Multan in case FIR No, 16 of 2015 dated 19.05.2015 registered at Police Station CTD Lahore. The learned trial Court vide judgment dated 25.01.2016 convicted Hafiz Muhammad Tahir appellant and sentenced him as infra:-- "(i) Rigorous imprisonment of 14 years under Section 4 of the Explosive Substances Act, 1908
(ii) Forfeiture of property under Section 5-A of the Explosive Substances Act, 1908.
(iii)Rigorous imprisonment of 14 years under Section 7 of Anti-Terrorism Act, 1997 All Fie sentences were ordered to run concurrently. The benefit available under Section 382-B, Cr.P.C. was also extended to the appellant."
The co-accused of the appellant namely Naveed Iqbal Ghauri was acquitted of all the charges by the learned Judge Anti-Terrorism Court-II, Multan.
2. Feeling aggrieved, Hafiz Muhammad Tahir (convict) lodged this Criminal Appeal No, 65-ATA of 2016 against his conviction and sentences.
3. The prosecution story as unfolded through the complaint (Exh.PC) drafted by Sarfraz Ahmad, SI, Police Station. CTD; Lahore (PW-1), the complainant of the case, is as under:-- "Stated on 19.05.2015 I was posted as SI at police station CTD, Lahore whereas I am working at CTD Pakpattan. On the same day I along with Muhammad Ismail SI, Siasat Ali constable armed with SMG, Kashif Raza constable armed with MP-5, Waseem Akram Corporal, Ahsan Raza Corporal in connection with arrest of the proclaimed offenders mentioned in red book, on official vehicle being driven by Muhammad Arshad 215/C, was present at Adda Hari Pur District Pakpattan.
Meanwhile I received a source information that two suspected persons are proceedings towards Qasba Malka Hans from 60/SP, if arrested, from their possession ammunition in huge quantity may be recovered. On receipt of said information, I along with said police officials reached at Pull Rajbah Link Road Hari Pur Malka Hans. Upon receiving the signal of informer we apprehended two persons who were coming from Chak No, 60/SP towards Qasba Malka Hans, upon interrogation one accused present .before the Court told his name as Hafiz Tahir whereas the other accused told his name Naveed Ghauri (both present in Court). Hafiz Tahir was carrying a bag upon his shoulder, upon search out of the bag a hand grenade was recovered on which 82-25 at its pin, whereas 01-03 650 (P-1) was written under it. Said grenade was declared live by the BDS. Bomb Disposal Squad defused the said grenade and recovered 3 grants blasting material from it, separated it into sealed parcel for sending the same for chemical analysis to PSFA, Lahore, whereas regarding the remaining hand grenade, I made two parcels, in one parcel I secured hand grenade and in other parcel 7 secured its particals contained. Thereafter, I secured it into possession vide recovery memo. ex.PA attested by Waseem Akram and Ahsan Raza corporals.
Thereafter, I made the search of Naveed Iqbal Ghauri accused. Upon his search, from the pocket of his shirt, 20 detonators (P-2/1-20) were recovered which was also inspected by Bomb Disposal Squad and they declared that the detonators are Live/active. Out of said detonators I separated two detonators as samples for sending the Forensic Science Agency, Lahore and made into sealed parcels whereas remaining detonators were also made into sealed parcels. I affixed my seal on the said parcels and took into possession vide Ex.PB. The memo. was attested by Ahsan Raza and Waseem Akram corporals. Thereafter I prepared complaint Ex.PC and through Siasat Ali constable sent to police station CTD Lahore for registration of FIR against the accused which is in my hand and bear my signatures Ex.PC/1."
On the basis of the complaint (Exh.PC) the formal FIR (Exh.PC/2) was registered at Police Station CTD, Lahore by Azhar Hayat 359/Corporal (PW-5). Muhammad Amjad Akhtar Iqbal (PW-6) conducted the investigation of the case.
4. After having completed the usual formalities and investigation of the case, the, police submitted report under Section 173, Cr.P.C. against the accused before the learned Court of competent jurisdiction. The charges against the accused were framed by the learned Trial Court on 29.9.2015, to which they pleaded not guilty and claimed to be tried, however, the charge was amended on 23.01.2016 but the accused opted not to further recall cross-examine any of the witnesses.
5. The prosecution in order to prove the facts in issue of the case examined as many as six witnesses before the learned trial Court. Sarfraz Ahmad SI (PW-1) stated as mentioned supra in paragraph No, 3 of the judgment. Ahsan Raza/Corporal (PW-2) supported the statement of Sarfraz Ahmad SI (PW-1) and further stated that on 29.5.2015 he witnessed the recovery of grenade (Ex.P3), taken into possession by Investigating Officer through recovery memo. (Exh.PD), from the possession of Naveed Iqbal Ghauri (since acquitted) and on the same day he witnessed the recovery of 13 detonators (Ex.P4/1-13), taken into possession by Investigating Officer through recovery Memo,. (Exh.PE), from the possession of Hafiz Muhammad Tahir (appellant). Ahsan Raza/Corporal (PW-2) further stated that on 22.05.2015 Azhar Hayat Corporal (PW-5) handed over to him one parcel said to contain 3 grams of blasting material and another parcel said to contain 2 detonators for their onward transmission to Punjab Forensic Science Agency, Lahore. Siasat Ali 806/C (PW-3) supported the statement of Sarfraz SI (PW-1) regarding the proceedings of 19.5.2015.
Zafar Commander Bomb Disposal Squad (PW-4) stated that he defused the grenade on 19.5.2015 and issued his certificate (Exh.PF) and on 29.5.2015 he tried to defuse the grenade (Exh.P3) but could not do so and issued his certificate (Exh.PG).
6. On 7.10.2015 learned DPG gave up PW namely Waseem Akram Corporal, as being unnecessary and closed prosecution case after tendering the report of Punjab Forensic Science Agency, Lahore (Exh.PJ).
7. The appellant was also examined in terms of Section 342 Code of Criminal Procedure, 1898 wherein in answer to Question No, 4 he replied as follows: "This is a false and frivolous FIR with concocted story has been registered against me only to get please the high ups. I have been arrested from my house situated at Malka Hans District Pakpattan. Nothing was recovered from me. The alleged recovery which has been shown, is fake and planted one. FIR against me is just police KARWAI, mala-fide of the police is obvious from the evidence."
8. Neither the appellant opted to get himself examined under Section 340(2), Cr.P.C. nor adduced any evidence in his defence. On the conclusion of the trial, the learned Judge Anti-Terrorism Court- II, Multan convicted and sentenced the appellant as referred to above.
9. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false; that the prosecution remained unable to prove' the fact in issue and did not produce any unimpeachable, admissible and relevant evidence. He further argued that the Investigating Officer did not associate any member of the public during the investigation of the case which makes the case highly doubtful. He also contended that PWs examined by prosecution were stock witnesses as they were subordinates of complainant and interested as well. He further contended that the learned trial Court, on the basis of same evidence, had acquitted Naveed Iqbal Ghauri co- accused against whom no appeal against acquittal was filed and the conviction of the, appellant, on the basis of same evidence, is against the law. He further contended that the police officials, in order to save their own skins, have ruthlessly implicated the appellant in this false case. He also argued that the recoveries, alleged to have been effected, were result of fake proceedings. He finally stated that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt.
10. On the other hand, learned Deputy Prosecutor General contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses who had no grudge against the appellant. He further stated that Sarfraz Ahmad SI (PW-1), Ahsan Raza/Corporal (PW-2) and Siasat Ali 806/C (PW-3) corroborated each other and successfully drove home the charges leveled against the appellant beyond shadow of doubt. He further argued that the recovery of grenade (Exh.P1) from the appellant and the report of Punjab Forensic Science Agency (Exh.PJ) further corroborate the case of the prosecution. He contended that the appellant could not establish any enmity with the prosecution witnesses and there was no occasion for the prosecution witnesses to substitute, the real offender with an innocent one in this case. Lastly, he prayed for the rejection of appeal.
11. We have heard the learned counsel for the appellant and learned Deputy Prosecutor General and with their assistance carefully perused the record and evidence recorded during the trial.
12. At the very outset we have observed that the learned trial Court had also framed the same charges as against the co-accused of the appellant namely Naveed Iqbal Ghauri (since acquitted), however, while passing the judgment dated 25.1.2016, the learned trial Court concluded that there was doubt as to the participation of the co-accused Naveed Iqbal Ghauri (since acquitted) and held that the prosecution had failed to prove its case against the said accused. We have queried the learned Deputy Prosecutor General regarding the filing or otherwise of an appeal against acquittal of the said co-accused, who states that the acquittal of Naveed Iqbal Ghauri had attained finality as the State had not filed any appeal against the acquittal of Naveed Iqbal Ghauri co-accused (since acquitted). The question for determination before this Court now is that whether the evidence which has been disbelieved qua the acquitted co-accused of the appellant, can be believed against the appellant. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence, is now well settled proposition. The condition for relying upon the same set of witnesses as against the appellant but rejecting them as against the acquitted co-accused is that such evidence must get independent corroboration on material particulars. The august Supreme Court of Pakistan in its binding judgment passed in the case of Imtiaz alias Taj vs. The State (2018 SCM R 344) has enunciated the principle that if the witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be believed against another accused person, attributed a similar role, unless testimony of such eye-witnesses receive independent corroboration qua the other accused person. The learned trial Court not only acquitted the co- accused Naveed Iqbal Ghauri but has proceeded to acquit the appellant regarding certain portion of the charges as leveled against him. The learned trial Court has held that as 13 detonators (P4/1- 3), which were allegedy recovered. from the appellant on 29.5.2015, were not sent to the Punjab Forensic Science Agency, Lahore, therefore, in absence of such a report the case against the appellant to the extent of detonators (P4/1-3) is doubtful. We have noticed that the distinguishing factors finding favour with the trial Court in respect of convicting the appellant Hafiz Muhammad Tahir are the report bf Punjab Forensic Science Agency, Lahore (Exh.PJ) and the opinion of Zafar Ali, Commander Bomb Disposal Squad (PW-4) is given in his verification report (Exh.PF). We have perused the statement of Zafar Ali, Commander Bomb Disposal Squad (PW-4) Minutely. The said witness during his cross-examination admitted that he did not see the accused along with the police at the time of conducting the proceedings whereas during examination in chief he had stated that the accused would have been in the vehicle. Zafar Ali, Commander Bomb Disposal Squad (PW-4), further stated, during his cross-examination, that his statement was not recorded by the Investigating Officer. It leads to this irresistible conclusion that all the proceedings, as conducted by Zafar Ali, Commander Bomb Disposal Squad (PW-4), were in the absence of the appellant. Then Zafar Ali, Commander Bomb Disposal Squad (PW-4), during cross-examination answered as follows:-- "The lot number of grenade recovered on 19.5.2015 & 29.5.2015 were same, since I have (sic) already defused grenade on . 19.5.2015 that's why I mention that grenade recovered on ' 29.5.2015 was having explosive substance."
This shows that Zafar Ali, Commander Bomb Disposal Squad (PW-4), acting was presumptions.
13. We have also perused the verification certificate (Exh.PF) stated 19.5.2015 and verification certificate (Exh.PG) dated 29.05.2015 in issued by Zafar Ali, Commander Bomb Disposal Squad (PW- 4) both the verification certificates (Exh.PF) and (Exh.PG) have been repared on a plain paper and not on a printed form. Both the said verification certificates (Exh.PF) and (Exh.PG) do not bear the FIR number of the case nor the names of any of the accused. Both the verification certificates (Exh.PF) and (Exh.PG) have not been signed by the Investigating Officer or any other witness of the case who allegedly were present at the time of the preparation of these certificates. Both the verification certificates (Exh.PF) and (Exh.PG) are bereft of any detail regarding the time as to when they were prepared and issued. There is also no mention of the colour or an identifying marks so as to distinguish between the two grenade Exh P-1 and Exh P-3 or to identify them independently as per the verification certificates (Exh.PF) and (Exh.PG). We have also observed that it is mentioned in the verification certificate (Exh.PF), dated 19.05.2015, that the grenade (Exh.P-1) was of F1 type and it was defused at the site and three grams of explosive was taken from the grenade. F1 type of grenades are of a specific kind. The Soviet F1 have grenade, as is the claim of the prosecution in this case is that grenade (Exh.P-1) was, is an anti-personnel fragmentation defensive grenade It is based on the French Fl grenade and contains a 60-gram explosive charge (TNT). The total weight of the grenade with the fuze is about 600 grams. The standard time delay for this fuze is 3.5 to 4 second The radius of the shrapnel dispersion is up to 200 meters. About 6 percent of the grenade body pulverizes during the explosion, only 3 percent of the body splints into 290 high velocity sharp cut splinter each weighing around 1 grain with initial speed of about 700 meter per second.
Reference in this regard can be made to the book Hand Grenade by Gordon L. Rottman and the information available. http://armv.armor.kiev,uathist/f-1.shtinl developed by Veremeel Grigorievich and information at https://en.wikipedia.orgim grenade (Russia). The perusal of the verification certificate (Exh-1 dated 19.05.2015 reveals that out of the said 60 grams of explosive of 3 grams was taken out without mentioning the exact protocols who were followed for doing the same. There is also no explanation as what happened to the remaining 57 grams of explosive Furthermore, as per the verification certificate (Exh.PF) 19.5.2015, the 3 grams of explosive taken out of the grenade packed separately in jars for onward transmission to the Forensic Science Agency, Lahore. The perusal of the report of Forensic Science Agency, Lahore (Exh.PJ) reveals that the received for test was in a paper fold. There is no mention of an: per verification certificate (Exh.PF) in the report of Punjab F Science Agency, Lahore (Exh.JA). We have also perused the memo. (Exh.PA) prepared with respect to the recovery of (Exh.P1). In the said recovery memo. (Exh.PA) there is no r that the explosive weighing 3 grams was put in a paper fold. V also noticed that Zafar Ali, Commander Bomb Disposal Squad while appearing before the learned trial Court, stated the using the grenade he withdrew about 3 grams of explosive and separated the blasting material, "striker mechanism" and body of the grenade in three separate packing and handing them over to hammad Sarfraz SI (PW-1). Muhammad Sarfraz (PW-1), while bearing before the learned trial Court, stated that 3 grams of sting material was recovered from the grenade (Exh.P1) and it was separated and put in a sealed parcel for chemical analysis. The prosecution witnesses when appearing before the learned trial Court ) deposed to the effect that the 3 grams of explosive was separated ) a sealed parcel and the said parcel was taken to the office of jab Forensic Science Agency, Lahore by Ahsan Raza Corporal W-2) however it is mentioned nowhere that the same was put in a )er. The report of the Punjab Forensic Science Agency, Lahore is silent as to how the explosive material, which was put in jars, was received in paper fold. The prosecution has miserably failed to prove safe custody of the sample. There is no mention of any paper or t the explosive material was placed in a paper fold in the verification certificate (Exh.PF). The 20 detonators (Exh,P2/1-20) were ) allegedly recovered from Naveed Iqbal Ghauri co-accused (since acquitted). It is also evident from the statement of Azhar Hayat 359 Corporal (PW-5) that he was handed over 5 sealed parcels on 05.2015 by Muhammad Amjad Akhtar Iqbal Inspector (PW-6). ring cross-examination this witness stated that Ahsan Raza Corporal (PW-2) was handed over two parcels and the same were emitted in the Punjab Forensic Science Agency, Lahore and nothing returned by Ahsan Raza Corporal (PW-2). This again hits at the y foundation of the prosecution case, routing the same as the prosecution failed to establish safe custody of the material, as the Punjab Forensic Science Agency, Lahore report (Exh.PJ) only mentions receipt of one item which was powder in a paper fold and there was no mention of any detonator', in the said report.
14. We have also observed that the recovery memo. (Exh.PA) ) is a composite document which mentions that the recovery and the Using took place altogether whereas Zafar Ali, Commander Bomb disposal postal Squad (PW-4), stated that a went to place of recovery on direction of Mirza Muhammad Ali. Civil Defence Officer, and ready Muhammad Sarfraz SI (PW-1), Waseem Akram Corporal (not educed) and Ahsan Raza Corporal (PW-.2) were present and the made was "presented'' to him. by Muhammad Sarfraz SI (PW-2). rthermore, Siasat Ali 8063 (PW-3) stated that the returned with the 1 at 9.00 p.m. however, recovery memo. (Exh.PA) relating to the rarged recovery of grenade (Exh.P1) from the appellant bears the FIR member which shows and proves that the same was prepared after 9.00 i. The learned trial Court has rejected the proceedings dated 19.05.2015 with respect to the recovery of 20 detonators from the co-accused of the appellant namely Naveed Iqbal Ghauri (since acquitted). Now it is impossible for us to partially believe the statements of the witnesses and partially reject them also. The unchallenged acquittal of the co-accused has made the case of the prosecution untenable. The whole proceedings of arrest has suffered a shock and is liable to be rejected.
15. No effort was made by the Investigating Officer to establish that the accused had a design to terrorism. The FIR registered, against the appellant recorded that the "source" said that the accused were carrying a huge amount of explosive, however, the prosecution failed to produce an iota of evidence regarding any past criminal record of the appellant and from where these explosives were obtained. It is also a matter of record that the witnesses were standing at Pul Rajbah Link Road and the said passage was a straight one. The accused could easily have seen the presence of police personnel and it is beyond reason that they would continue walking towards them even after having the knowledge that they would be arrested if they were carrying such explosive material. The obvious contradiction remains irreconcilable and leads to the irresistible conclusion that the prosecution case, is not worthy of reliance. To our minds, these contradictions and inconsistencies are not readily reconcilable. In our view, the aforementioned factors coupled with the absence of any prior criminal record serve to create appreciate doubt as to the veracity of the prosecution's case. The impugned judgment cannot be sustained. The august Supreme Court of Pakistan in Faheem Ahmed Farooqui v. The State (2008 SCM R 1572) has observed as under:-- "For the purpose of giving benefit of doubt to the accused person more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful. Merely because the burden is on the accused to prove his innocence does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt".
The same principle is laid down by the august Supreme Court of Pakistan in Wajakat Ahmed v. The State (2016 SCM R 2073) in which it has observed: "It is the basic and established principle of criminal justice that it is the prosecution which has to prove the guilt of the accused beyond any reasonable shadow of doubt. Once the Court entertains reasonable doubt/doubts in the prosecution case, its benefit must be extended to the accused not as a grace but as of right."
16. For what has been discussed above, Criminal Appeal filed by Hafiz Muhammad Tahir appellant is accepted, the conviction and entente of the appellant awarded by the learned trial Court through he impugned judgment are hereby set-aside. Hafiz Muhammad Tahir, appellant is ordered to be acquitted. He is directed to be released worth with if not required in any other case.