SYED SHAHBAZ ALI RIZVI, J. --- Through this appeal, Muhammad Yar, appellant has assailed the judgment dated 24.07.2017 passed by the learned Special Judge, Anti-T errorism Court, Sargodha, in case F.I.R. No, 06, dated 27.02.2017 registered for offences under Sections 4 & 5 of Explosive Substances Act, 1908 read with Section 13 of Arms Ordinance (XX) of 1965 and under Section 7 of the Anti-T errorism Act, 1997, at Police Station CTD, District Faisalabad whereby , he was convicted under Section 5 of Explosive Substances Act, 1908, and under Section 7(ff) of Anti-T errorism Act, 1997, and sentenced to fourteen years' rigorous imprisonment each and his property was also ordered to be forfeited in favour of State in both offences. The appellant was also convicted under Section 13 of Arms Ordinance (XX) of 1965, and sentenced to three years' rigorous imprisonment alongwith fine of Rs, 20,000/- and in default thereof , to further undergo one month's simple imprisonment. The appellant was also extended benefit of Section 382-B of the Code of Criminal Procedure, 1898.
2. As per prosecution case the facts, as disclosed by Khuda Dad, ASI, comp lainant (PW.2) in his complaint (Exh.P A) on the basis of which formal crime report (Exh.P A/1) was registered, are that on 27.2.2017 at about 03:30 p.m. on receipt of spy information regarding presence of a suspect near City School Chak No, 47-North, complainant alongwith other officials conducted raid at the specified place and on the pointation of informer , apprehended the appellant. On search, one black colour hand grenade, five detonators and one safety fuse was recovered from the shopping bag held by the appellant in his right hand. On perso nal search, cash amount of Rs, 280/-, a ball point (PIANO) and a .30-bore pistol alongwith fifteen live bullets were also recovered from the appellant. All the recovered items were taken into possession and made into sealed parcel.
3. After investigation, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted. After observing pre-trial codal formalities, the learned Trial Court indicted the appella nt on 21.04.2017 to which he pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, produced as many as seven witnesses during the trial. Ehtisham Ali, Corporal (PW.1) chalked out formal F.I.R. (Ex.P A/1). Khudad Dad, ASI, complainant (PW.2) and Qamar-ul-Islam, Corporal (PW.3) reiterated the facts as mentioned in the complaint (Exh.P A). Muhammad Ali, CP/901 transmitted the sealed parcels of .30-bore pistol and safety fuse to Punjab Forensic Science Agency , Lahore. Muneeb-ur- Rehman, Corporal (PW.5) kept the case property in Malkhana in safe custody and sent two parcels to Punjab Forensic Science Agency . Muhammad Suleman (PW.6), Bomb Disposal Expert, Civil Defence Office prepared analysis report (Exh.PC) while Shabraiz Hussain, Inspector (PW .7) is Investigation Of ficer of the case.
5. After completion of prosecution evidence, the statement of the appellant under Section 342 of the Code of Criminal Procedure, 1898, was recorded wherein, he denied the allegations levelled against him, professed his innocence on the ground of false implication. He did not opt to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations levelled against him, however , he got examined Aziz Ullah, S.I. (DW .1) in his defence.
6. The learned Trial Court vide its judgment dated 24.07.2017, found the appellant guilty , convicted and sentenced him as mentioned above.
7. Learned counsel for the appellant, inter alia, contends that there are material discrepancies in the statements of the prosecution witnesses; that the appell ant was picked up from his house in the night time and this fact is verified from the application moved by his mother Mst. Taj Begum to the District Police Officer, Sargodha; that prosecution did not produce any previous record of the appellant qua his involvement in such-like activity; that the prosecution remained fail to prove its case against the appellant beyond the shadow of any reasonable doubt and that this appeal may be accepted and the appellant be acquitted of the charge levelled against him.
8. On the other hand, learned District Public Prosecutor vehemently opposes the contentions raised by learned counsel for the appellant and, inter alia, contends that the complainant has no mala fide or against the appellant to falsely implicate him in this case; that there is no material improvement or discr epancy in the statements of the witnesses; that prosecution successfully proved its case against the appellant and that this appeal may kindly be dismissed.
9. We have heard the arguments of learn ed counsel for the appellant, learned District Public Prosecutor and also scanned the record with their assistance.
10. It has been admitted by Shabraiz Hussain, Inspector CTD (PW-7)/Investigation Officer of this case during his cross-examination that no evidence could be brought on record to establish that the appellant remained involved in any prohibited or subversive activity . The witness also admits that during the physical custody of the appellant no information regarding his alleged target could be procured. Admittedly , no connection f any of his family members with any negative activity could be established. DW-1, Aziz Ullah, Sub-Inspector from Police Station Kirana, District Sargodha while appearing as a defence witness produced copy of an application (Exh.DA) moved by Mst. Taj Begum, mother of the appellant on 18.02.2017 to the District Police Officer, Sargodha bearing Diary No, 20-C, dated 18.02.2017 to voice the abduction during the night between 13-14.02.2017 and illegal detention of her son, Muhammad Yar by the police which was received in the Police Station Kirana vide Diary No, 24-5A, dated 20.02.2017 through the office of DSP concerned. This application reveals the fact alleged by the appellant in his statement recorded under Section 342, Cr.P.C. to the effect that he was picked by the police earlier to the registration of this case on 27.02.2017. Surprisingly , Aziz Ullah, Sub-Inspector (DW-1) was not cross-examined by the learned Prosecutor despite opportunity given by the learned Trial Court which amounts to admission of the deposition made by the witness from which it can rightly be inferred that the appellant had already been in custody of the complainant when the case in hand was registered against him and it rende rs very serious doubts about the prosecution story canvassed in the crime report (Exh.P A/1) and testified by PW,-2, Khuda Dad, ASI, CTD, the complainant PW-3, Qamar-ul-Islam 846-CP , CTD, the recovery witness and PW-7, Shabraiz Hussain, Inspector , CTD/Investigation Officer before the learned Trial Court. No doubt application Exh.DA is not signed by any one but the fact remains that the same is a computer written application and also that as per endorsement available thereon it was moved on 18.02.2017 to the District Police Officer received by the Sub-Divisional Police Officer on the same date and thereafter by Police Station Kirana on 20.02.2017 i,e, seven days earlier to the registration of this case. More relevant is that the voice qua the illegal custody of appellant was being raised at the time of alleged registration of this case by the Counter Terrorism Department. In view of the above-mentioned facts though, the alleged recovery of a pistol, bullets, a grenade and five detonators besides a safety fuse is not of much consequence yet, it has also been noticed that the grenade and five detonators were never sent to the Punjab Forensic Science Agency for rorensic analysis despite of the fact that Muhammad Suleman, a bomb disposal expert from Civil Defence, Sargodha, admits when cross-examined, as under:--- "We have not any sort of equipment for scientifically applying the test in order to ascertain as to if the articles produced "before us are explosive substances or not."
Report from the Punjab Forensic Science Agency (Exh.PH) though establishes that the safety fuse was containing a low explosive, potassium nitrate, sulphur and carbon yet, no explosive substance/gunpowder to be ignited through the safety fuse could be recovered from the custody of the appellant and similarly even per report Exh.P1 the pistol P-12 was not in complete functioning position.
11. For all mentioned above, we are of the considered opinion that the prosecution remained fail to establish its case against the appellant beyond the shadow of a reasonable doubt while Exh.DA sufficiently creates strong doubts in the credibility of the case of prosecution testified by the prosecution witnesses. Hence, we accept Criminal Appeal No, 64745 of 2017 filed by Muhammad Yar (appellant), set aside his convictions and sentences recorded by the learned Trial Court and acquit him of the charges levelled against him by extending him the benefit of doubt. He is in custody , be released forthwith if not required to be detained in any other case.