Anwaar-ul-Haq Pannun, J.--Abdul Hayee son of Noor Muhammad and Muhammad Yousaf son of Karamat Ali, the appellants alongwith convicted accused Hijrat Ullah son of Mati Ullah were involved in case FIR No. 38/2017 dated 28.07.2017, offence under Sections 4/5 of the Explosive Substances Act, 1908, Section 13 (2)(c) of the Arms Ordinance, read with Section 7 of the Anti-T errorism Act, 1997; registered with Police Station CTD Multan. They were tried by D&SJ/Judge Anti-T errorism Court, Multan. The learned trial Court seized with the matter vide its judgment dated 28.03.2019, convicted and sentenced both the appellants alongwit h their co-accused namely Hijrat Ullah, who had not filed appeal, in the following terms:-- 1) Abdul Hayee 2) Muhammad Yousaf 3) Hijrat Ullah (since not filed appeal)
Under Section 5 of the Explosive Substances Act, 1908 .
Sentenced to undergo three years R.I. each. ii Under Section 5-A of the Act ibid. Forfeiture of whole property of the appellants alongwith co-accused/co-convict in favour of the Government.
They were also given the benefit of Section 382-B of Cr .P.C.
Hijratullah (co-accused/convict) i) Under Section 13(2)(a) of the Arms Ordinance, 1965 . sentenced to undergo R.I. for two years with fine of Rs. 10,0001- and in default whereof to further undergo S.I. for one month.
However , the appellants alongwith co-accused/convict (since not filed appeal) were acquitted of the charge under Section 4 of the Explosive Substances Act, 1908 as well as Section 6 of the Anti-T errorism Act, 1997, punishable under Sectoin 7 of ATA ibid. Sentences of co-accused/convict Hijrat Ullah were ordered to run concurrently .
Feeling aggrieved by the judgment of the learned trial Court the appellants have assailed their conviction and sentence by filing captioned appeal.
3. Prosecution's story as portrayed in the FIR (Exh.P A/1) lodged on the complaint (Exh.P A) of Kaleem Ullah Arshad 967/CPL is to the effect that on 28.07.2017, at about 3.55 PM, he alongwith other posse of CTD Multan, was present at Vehari Chowk, Multan in search for the arrest of proclaimed offenders and terrorists. Upon receiving information that three persons belonging to TPP (Tehreek-e-T aliban Pakistan), are going towards Chowk Southern Vehari Road, Multan in order to launch some terrorist activities who are in possession of firearms and explosive substance and in case a raid is conducted, they can be arrested whereon after briefing his companions regarding the operation reached at the pointed place and by encircling them arrested the accused persons. The first accused told his name as Hijrat Ullah son of Atta Muhammad, Caste Pathan, R/o Harbans Pura, Lahore. On his personal search, a loaded pistol .30 bore was recovered from the waist belt kept under his shirt. On unloading the pistol 5 live bullets were recovered. On further search in the Zip pocket of the belt a live hand grenade was also recovered.
Rs.2,000/- was also recovered from the front pocket of his shirt. The second accuse d told his name and address as Abdul Hayee son of Noor Muhammad (appellant). On his search of dark blue colour shoulder bag, which he had hanged on his right shoulder , one live hand grenade was recovered. On further search Rs.500/- was also recovered from the front pocket of his shirt. The third accused told his name and address as Muhammad Yousaf son of Karamat Ullah (appellant). On his personal search, one live hand grenade was recovered from pocket of his waist belt. Rs.300/- was also recovered from his front pocket. The complainant secured the recovered hand grenades and pistol at a safe place and cordoned the place of occurrence.
4. The investigation was encapsulated into a report under Section 173, Cr.P.C., which was duly submitted, the learned trial Judge took the cognizance, supplied the requisite statements under Section 265(c), Cr.P.C., framed charge against them on 21.11.2017, to which they pleaded not guilty and claimed trial. Thereafter , the prosecution was directed to lead its evidence in order to substantiate the charge.
5. At the trial, the prosecution in order to prove its case produced as many as 06 witnesses.
6. Learned DPG while giving up all the remaining PWs and by tendering in evidence the report of Fire Arm and Tool Marks and Trace Chemistry Reports issued by PFSA, Lahore as Exh.PQ and Exh.PR respectively vide his statement dated 07.02.2019, closed the prosecution evidence.
7. Thenceforth, the appellants were examined under Section 342, Cr.P.C.; wherein they' refuted the allegations levelled against them in the prosecution version. They did not opt to appear as their own witness in terms of Section 340(2), Cr.P.C., however , opted to adduce defence evidence but later on by tendering certain documents in their defence closed the same.
The appellant Abdul Hayee in reply to a specific question "why this case against you and why the PWs depo sed against you" stated as under: "It is false case. All the proceedings are fictitious and has been done by the CTD while sitting at the police station.
In fact, no such occurrence as mentioned by the complainant/prosecution ever took place, rather I was apprehended from my house by the local police of District Khushab without any case and after intervening of the respectable I was released but after a week police again summoned that he is again required for investigation of some case but after a week with mala fide intention I was handed over the CTD Gujranwala. My family members made their level best and approach many high ups of the department but their efforts remained unsuccessful and ultimately in order to show their efficiency the CTD department involved me in the instant case for without being any fault on my part. My parents protested against the police and I was remained under investigation CTD police Gujranwala and then CTD police Gujra nwala handed over to me CTD Police Station Multan alongwith other accused persons Muhammad Yousaf and CTD police station Multan introduced a fake story of fake instant occurrence at southern by-pass Multan and involved me in this false case. Nothing has been recovered from me.
Recoveries are planted. My parents upon receiving information along with respectable appeared before I.O. of CTD Multan and requested to release me because I am innocent but I.O. did not recor d their versions and mala fidely made a concocted story and after proceeding at police station challaned me in this false case. I have no concern with TTP or any other proscribed/banned organizations and there is no such like other complaint against me in any police station or any Court of law. All the witnesses are CTD officials, hence, they deposed falsely against me to strengthen the prosecution case".
The appellant Muhammad Yousaf in reply to the same question has answered infra: "It is false case. All the proceedings are fictitious and has been done by the CTD while sitting at the police station.
In fact, no such occurrence as mentioned by the complainant/prosecution ever took place, rather I was apprehended by the employees of different agencies from outside of my house. Upon which my father approach many high ups of the department but their efforts remained unsuccessful. My father Karamat Ullah lodged case FIR No. 171/17 dated 14.03.2017 under Section 365, PPC at Police Station Baghban Pura, District Gujranwala against the four unknown accused persons and my father also filed petition under Section 491, Cr.P.C. in the Court of learned Sessions Judge, Gujranwala against the DPO Gujranwala and Incharge CTD Peoples Colony Gujranwala but police did not produce me before the Court and stated that they have not arrested Muhammad Yousaf and pressurized my father to withdraw the petition otherwise they will expire me in a fake police encounter upon this situation my father withdraw the petition under Section 491, Cr.P.C. but CTD police did not release me and handed over me to CTD police station Multan and introduced a fake story of arrest of me alongwith other accused persons and planted the fake recoveries. All the recoveries are fake and planed one. CTD Multan with the connivance of CTD police Gujranwala involved me in this false case. My father alongwith respectable appeared before I.O. of this case and requested that Muhammad Yousaf is innocent, they will not complaint at any forum of his arrest in case of release of Muhammad Yousaf but they did not agree and even not recorded their statements of innocence and my father also produced a petition under Section 491, Cr.P.C. alongwith order of Sessions Judge, copy of FIR No 171/17 registered at Police Station Baghb an Pura Gujranwala and other document s but they did not took on record of case file and challaned me in this false case. I have no concern with TTP or any other proscribed/banned organizations and there is no such like other complaint against me in any police station or any Court of law. All the witnesses are CTD officials, hence, they deposed falsely against me to strengthen the prosecution case.
8. On conclusion of trial, the learned trial Court convicted and sentenced the appellants alongwith their co- accused/convict Hijrat Ullah in the above stated terms.
9. After hearing learned counsel for the appellants as well as learned DPG and going through the record it is straightaway observed that admittedly no specifications of hand grenades (P-1, P-7 and P-11) have been mentioned in the complaint (Exh.P A) neither in FIR (Exh.P A/1) nor in the statement of complainant Kaleem Ullah Arshad 967/CPL (PW-4) and even in the recovery memos. (Exh.PD, Exh.PG & Exh.PJ) as well as in the statements of attesting witnesses i.e. PW-4 Kaleem Ullah Arshad 967/CPL and Ejaz Ahmad 966/CPL as well as Muhammad Iqbal Bomb Disposal Technician (PW-3). Further , Mustafa Kamal Inspector CTD Multan/Investigating Officer (PW-6) has also not deposed the specifications of the aforesaid hand grenades in his examination in chief.
From the above, it is crystal clear that none of the witnesses had mentioned specification of hand grenades as well as detonator being part of those grenades qua country name, factory name and batch number , etc. In absence of such specifications, it is difficult to hold that it was the same explosive material which was recovered from the appellants as well as convicted co-accused. We have gone through the report of Punjab Forensic Science Agency regarding Trace Chemistry Analysis report (Exh.PR) whereby Muhammad Iqbal, Bomb Disposal Technical (PW-3) had taken/removed 3.5 grams blasting material from each hand grenades as sample but in absence of their specifications it does not establish that same were with regard to which hand, grenade recovered from each appellant. Thus, the forensic report on which prosecution whole case hinges upon does not connect the appellants as well as their co-accused/convict (sinc e not filed appeal) with the explosive material allegedly recovered from their possession. One of the appellants namely Muhammad Yousaf being missing, his father Karamat Ullah lodged case FIR No. 171/17 dated 14.03.2017 under Section 365, PPC at Police Station Baghban Pura District Gujranwala against unknown accused persons and he also filed petition under Section 491-A, Cr.P.C. in the Court of learned Sessions Judge, Gujranwala. It has also been noticed that learned trial Court while passing impugned judgment in its Para No. 24 has observed that "so far as quantum of punishment is conce rned, it is an admitted fact that the accused persons are not previous convict. The prosecution has also failed to prove that the accused persons belong to TTP or any other proscribed organization. It is also admitted by the prosecution that none of them have been placed under 4th Schedule of ATA, 1997. They are also first offenders" . Both the appellants as well as co-convict are admittedly the residents of different areas i.e. appellant Abdul Hayee is resident of Mohallah Baaki Aal Gaon. Dhaka. Post Office Noushera, District Khushab, appellant Muhammad Yousaf is resident of Chowk Qabarustan near Janazgah, Gujranwala and co-accused/convict Hijrat Ullah is resident of Harbans Pura, Lahore.
Had they been belonging to any proscribed organization, which in the instant case is not proved, there should have been common intention inter se but as observed herein above, since it is not proved therefore, it is beyond understanding as to how three persons assembled/ gathered while being in possession of certain articles at the same time when the raid was conducted, the complainant stated story appears to be fishy. No cell phone was recovered from their possession. Hence, no evidence is available on record to hold that how they have been assembled or their exists any commonality of interest amongst them. We have gone through the evidence of complainant Kaleem Ullah Arshad 967/CPL (PW-4), at the time of conducting cross -examination upon him, learned defence counsel requested the Court to de-seal the parcels containing hand grenades recovered from accused Muhammad Yousaf and Abdul Hayee which were de-sealed in open Court in presence of counsel for both sides.
There is no serial number or any other number mentioned on the hand grenade recovered from accused Muhammad Yousaf. Likewise, there was no serial number or any other number mentioned on the body of hand grenade recovered from accused Abdul Hayee. Moreover , appellant Muhammad Yousaf in his defence evidence tendered certain documents which appear to be free of any manipulation as none knew that the same would be used as piece of defence evidence. More so, previously , there is neither any conviction nor they had ever been found involved in any other atni-sate activities. Thus believing endeavor made on behalf of the appellants, the prosecution story regarding recovery of hand grenades has been doubtful.
10. So far as allegation that appellants as well as co-convict were the members of banned organization and they were involved in terrorist activities to spread fear and panic among the public at large is concerned, PW-4 Kaleem Ullah Arshad 967/CPL in his cross-examination has stated that "I did not find any evidence against the accused persons connected the accused with any proscribed organization" and as such prosecution has failed to bring on record any cogent, concrete and confidence inspiring evidence. In this regard, defence put so many questions to prosecution witnesses but there is not a single document available on record whereby it could be gathered/established that appellants as well as co-convict were member of any banned organization i.e. "Tehreek- e-Talban Pakistan" involved in promoting terrorist activities in the country . Further , they have been acquitted of the charge under Section 6 of ATA, 1997 punishable under Section 7 of ATA of the Act ibid as well as Section 4 of the Explosive Substances Act, 1908 on the basis of same evidence.
11. The accumulative effect of the above discussion is that story of the prosecut ion does not appear to be real.
Many cropped up questions have not been replied by the prosecution to satisfy the judicial mind of this Court.
Having considered the evidence from all corners, we are of the view that prosecution has miserable failed to establish charge against the appellants, as well as convicted accused (since not filed appeal) beyond shadow of reasonable doubt. The evidence produced by the prosecution is discrepant and suffering from serious infirmities and contradictions.
12. All the above narrated facts and circumstances when evaluated on judicial parlance reflect that the prosecution has failed to establish culpability of the appellants as well as co-convict namely Hijrat Ullah (since not failed appeal) in the instant case through reliable, trustworthy and confidence inspiring evidence. It is established principle of law that for extending the benefit of doubt in favour of the accused, so many circumstances are not required, rather one circumstance which creates reasonable dent in the veracity of the prosecuti on version, can be taken into consideration for the purpose, not as a matter of grace, rather as a matter of right. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of "Tariq Pervez vs.The State"
(1995 SCMR 1345 ) "Riaz Masih alias Mithoo vs.The State" (1995 SCMR 1730 ) and "Muhammad Akram vs.The State (2009 SCMR 230). In the ease of "Tariq Pervez vs. The State" (1995 SCMR 1345 ), the august Supreme Court of Pakistan has held as under: "--Art.4--Benefit of doubt, grant of--For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts--If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right".
13. From the facts and circumstances narrated above, we are persuaded to hold that conviction passed by the learned trial Court against the appellants in the circumstances is against all canons of law recognized for the safe dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Moreover , it is golden principle of law that the Court may err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while setting aside the convictions and sentences recorded by the learned trial Court vide impugned judgment dated 28.03.2019, instant appeal is allowed as a consequence whereof both the appellants are ordered to be acquitted of the charge framed against them by extending them the benefit of doubt. They are in jail, directed to be released in this case, in a trice, if not required in any other case.
14. Since Hijrat Ullah (convict) who has not appealed in this case, when his co-accused (appellants in instant appeal) were placed in the same circumstances have been acquitted, he is also held entitled to the same benefit and can also be acquitted. In line with the rule laid down by the apex Court, the benefit of acquittal can also be extended to the non-appealing convict for purpose of doing complete justice. Reliance in this regard is placed upon case titled Muhammad Aslam etc v. The State (1972 SCMR 194) Muhabbat Ali etc v.The State (1985 SCMR 662), Waqar Zaheer v.The State (PLD 1991 SC 447) and Fahim-ul-Haq v.The State (PCr.L.J. 2004 Karachi 1492). In case titled Muhammad Aslam v.The State (supra), the Hon'ble 'Supreme Court of Pakistan even acquitted one of the co-accused who was an absconder . In our opinion therefore, in order to do complete justice in the circumstances of the case wherein we have found that the case of convicted accused Hijrat Ullah is at par with other appellants whom we have acquitted, he also deserves the same relief/treatm ent. Accordingly , his conviction and sentence is also set aside and he is acquitted of the charge. He is also in jail, therefore, directed to be released forthwith in this case if not liable to be detained in any other case.