NAIMA TULLAH PHULPOT O, J.---By this single judgment, we intend to dispose of both the above captioned Spl.
Crl. A.T Appeals, as both have arisen out of same crime. Appellant Shahab-u-Din son of Riaz-u-Din was tried by learned Judge. Anti-T errorism Court-XIII, Karachi in Special Cases Nos,1042/2017 and 1043 of 2017. On conclusion of the trial, vide judgment dated 12.01.2018, the appellant was convicted under sections 4/5 Explosive Substances Act read with section 7(ff) of Anti-T errorism Act, 1997 and sentenced to undergo 14 years R.I. and to pay fine of Rs,10,000/- and in case of default in payment of fine he was ordered to undergo S.I for six mouths more. Appellant was also convicted under Section 23(1)(a) of the Sindh Arms Act, 2013 and sentenced to undergo 7 years R.I. with fine of Rs,10,000/-, in case of default in payment of fine, he was ordered to suffer S.I for six months more. Benefit of section 382-B, Cr.P.C. was extended to accused/appell ant and all the sentences were ordered to run concurrently .
2. Brief facts of the prosecution case leading to the filing of the appeals are that on 05.4.2017 S.I Nasir Khan Awan of P.S Pirabd was busy in the patrolling duty along with his sub-ordinate staff in the police mobile for prevention of crimes in the area. It is alleged that during patrolling, Sub-Inspector Nasir Khan received spy information regarding presence of the accused at Yasinabad graveyard for some terrorist activity . Police party proceeded to the pointed place and saw present accused in the graveyard, a bag was hanging in his shoulder , while seeing the police, accused tried to run away but he was surrounded and caught hold. On enquiry , accused disclosed his name as Shahab-u-Din son of Riaz-u-Din. SIP Nasir Khan recovered plastic bag from his possession in presence of mashirs and opened it. It contained 120 bal barrin g, three meters wire, one 12 bore repeat er made in Italy, one 9MM pistol bearing No,F534505 with a magazine containing five live bullets, one 30 bore pistol containing three live bullets and one 30 bore pistol but its number was rubbed. Accused had no license for the weapons carried by him. On account of non-availability of private persons, Sub-Inspector made his subordinat e staff as mashirs and arrested accused and prepared mashirnama of arrest and recovery in presence of the mashirs namely PC Aijaz Ali and PC Tajamul Hussain. Thereafter , accused and case property was sealed at spot and accused and case property were brought to the police station where FIR bearing Crime No,102/2017 was registered under sections 4/5 Explosive Substances Act read with section 7(ff) of Anti-T errorism Act, 1997 against the accused/appellant. For carrying the pistols and repeater without license, another FIR bearing Crime No,103/2017 was registered against the accused by Inspector Nasir Khan under Section 23(1(a) of the Sindh Arms Act, 2013. After registration of the FIR, investigation was handed over to Inspector Muhammad Nazim Rao. During investigation, statements, of the PWs under Section 161, Cr.P.C. were record ed. Bomb Disposal Unit was called for who inspected the explosive substance. Investigation officer visited the place of vardat and sent the explosive substance to the expert for analysis and report. On the conclusion of the investigation, challan was submitted against the accused/ appellant under the above referred sections.
3. Learned Judge, ATC-XIII, Karachi ordered joint trial of aforesaid crimes as provided under Section 21-M of ATA 1997.
4. The trial Court framed the charge against the accused/appellant under the above referred sections at Ex:5.
Accused pleaded not guilty and claimed to be tried.
5. In order to prove its' case, the prosecution examined complainant PW-1 Muhammad Nazir Khan who produced roznamcha entries, copy of aforesaid FIRs, P.W-2 PC Aijaz Ali, the mashir of the case, who produced mashirnama of the place of vardat. P.W-3 Abid Farooq, Incharge BDU, who produced clearance certificate of the explosive substance. PW-4 Muhammad Nazim Rao produced arrival and depahure entries with regard to the inspection of place of vardat. Investigation Officer submitted positive report of the chemical examiner Ex-10/E as well as positive report of the explosive substance issued by the National Forensic Science Agency 10/I. Thereafter , prosecution side was closed.
6. Statement of the accused under Section 342 was recorded as Ex:12 in which accused claimed his false implication in this case and denied prosecution allegations. The accused has raised plea that all the PWs are police officials and interested, therefore obviously they have deposed against him. In question what else accused has to say? he has replied that on 3.4.2017, he was picked up by the Rangers officials from his house at 02:00 P.M and his custody was handed over to the police on 5.4.2017 and police foisted the recoveries upon him. Accused did not lead evidence in defence and declined to give statement on oath in disproof of prosecution allegations.
7. Trial court after hearing the learned counsel for the parties and assessment of the evidence available on record vide judgment dated 12.01.2018 convicted and sentenced the appellant as stated above, hence these appeals.
8. Mr. Shah Imroz Khan, learned advocate for the appellant has mainly contended that it was a case of spy information and it was night time and SIP had sufficient time to call independent persons from the petrol pump to make them mashirs in this case but SIP deliberately avoided. It is further argued that there were houses around the graveyard but no effort was made by the I.O. to call the persons residing near the graveyard for making them as mashirs in this case. It is also contended that source of identification of the accuse d has not been disclosed by the police officials in the evidence. It is also pointed out that PW No,2 has accepted in cross-examination that weapons were not separately sealed. It is also argued that according to the case of the prosecution, cellular phones were recovered from the possession of the accused/appellant but I.O. had failed to collect call data for connecting the accused in this case. It is argued that accused was arrested on 5.4.2017, but explosive substance was sent to the expert after two months of the recovery . Learned Advocate for the appellant argued that safe custody of the weapons and explosive substance at police station and safe transit to experts have not been established by the prosecution. Lastly argued that explosive substance was sent to the expert through PC Nouman, but he has not been examined by the prosecution. In support of his contentions, learned counsel relied upon the cases reported as Abdul Sattar and others v. The State (2002 PCr.LJ 51), lntekhab Ahmed Abbasi v. The State and others (2018 SCMR 495), Muhammad Parvaiz v. The State (2005 SCMR 1038 ), Abdul Wadood v. The State (2001 PCr.LJ 173), Muhammad Imran Afridi v. The State 2018 YLR 2394, State through Advocate-General Khyber Pakhtunkhwa v.
Sadam and others (2016 PCr .LJ 1815) and Muhammad Umair v . The State (2017 MLD 1097 ).
9. Mr. Muhammad Iqbal Awan, learned D.P.G. argued that huge quantity of the arms, ammunitions and explosive substance have been recovered from the possession of the accused and he was carrying for some terrorist activity .
He has submitted that police officials had no enmity to involve/implicate the accused in this case falsely . He has argued that report of the chemical expert was positive. Learned D.P.G has also argued that no question was put to the prosecution witnesses with regard to the tampering with the case property . Lastly , it is argued that evidence of the police officials was trustworthy and reliable and trial Court has rightly convicted the appellant on the basis of the evidence available on the record. Learned D.P .G. has strongly opposed the appeals.
10. We have carefully heard the learned counsel for the parties and scanned the entire evidence available on record.
11. We have come to the conclusion that prosecution has failed to prove its case against the appellant beyond reasonable doubt for the reasons that it was the case of spy information. SIP Muhammad Nasir Khan who was the head of the patrolling party received spy information on 4.4.2017 at 0345 hours at Yasinabad graveyard that one person was present in the graveyard and he was carrying arms and ammunitions. No effort was made by the Sub- Inspector to associate with him any private person from the patrol pump to act as mashir . It has come on record that there were houses around the graveyard but no attempt was made by the Sub-Inspector to call private persons from houses for making mashirs in this case. It is case of the prosecution that accused was armed with pistols, repeater and explosive substance but there was nothing on the record that accused had made any effort for firing upon the police to escape his good, it is against the nature of criminal mind person . PW-1 in his evidence no where has mentioned the number of the 9MM pistol and 30 bore pistol. PW-2 PC Aijaz in his cross-examination has deposed that SIP Nasir did not seal the weapons separately . We have also notice d overwriting in the arrival entry No,34 for which prosecution has no explanation. It is also come on record that two cellular phones were recovered from the possession of the accused but the I.O. had made no efforts to collect the call data of the cellular phones with regard to the involvement of the accused in the cases of the nature like the present case.
12. Learned defence counsel has rightly argued that there was no evidence of the safe custody of the weapons at police station and safe transit to the chemical examiner . According to the evidence of prosecution, weapons and explosive substance were brought to the police station on 5.6.2014, Bomb Disposal Unit initially examined the explosive substance at police station after 12 hours of the recovery without explanation of the delay in the examination of the explosive substance at the police station. It may be mentioned here that report of the National Forensic Science Agency Ex:10/I reflects that explosive substance was sent to the expert on 21.6.2017, after about two months of the recovery . Delay in dispatch to the chemical examiner has also not been explained. It is also come on record that weapons were sent to the ballistic expert through PC Nouman but the said Nouman has not been examined by the prosecution at trial in order to prove safe transit to the expert. We have carefully perused the evidence of the I.O. It appears that investi gation officer has simply completed the formality . Plea has been raised by the accused the he was picked up by the Rangers but investigation officer failed to interrogate/investigate this aspect of the case and simply submitted the challan. Unfortunately , trial Court had also not considered the defence plea and relied upon the evidence of the prosecution witnesses . without applying a judicial mind. In the case of Kamal Din alias Kamala v. The State reported as 2018 SCMR 577 the Honourable Supreme Court on the point of safe custody of recovered weapons has observed as under:-- "4. As regards the alleged recovery of a Kaiashnikov from the appellant's custody during the investigation and its subsequent matching with some crime-empties secured from the place of occur rence suffice it to observe that Muhammad Athar Farooq DSP/SDPO (PW18), the Investigating Officer, had divulged before the trial Court that the recoveries relied upon in this case had been affected by Ayub, Inspector in an earlier case and, thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial court through production of any witness concerned with such custody and transmission.
13. In view of the above stated reasons, we have no hesitation to hold that there are several infirmities in the prosecution case as highlighted bove, which have created doubt in prosecution case. In the case of Tariq Pervez v.
The State (1995 SCMR 1345 ), the Honourable Supreme Court has observed as follows:--
14. "It is settled law that it is not necessary that there should many circumstances creating doubts. If there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
For the above stated reasons, both the appeals are allowed and conviction and sentence recorded by the trial Court are set aside and appellant is acqu itted of the charges. Appellant Shahab-u-Din son of Riaz-u-Din shall be released forthwith if not required in some other custody case.
15. These are the reasons for our short dated 07.08.2018.