MUHAMMAD HASHIM KHAN KAKAR, J.---This appeal assails judgment, dated 30th December, 2019, passed by the learned Special Judge Anti-Terrorism, Loralai, whereby the appellants Ahmed Shah and Abdul Wali stand convicted of having committed the offence contemplated under section 5 of Explosive Substances Act, 1908 and stand sentenced, for the said offence, to 5 years, rigorous imprisonment with benefit of section 382-B, Cr.P.C.
2. Brief facts of the case are that on 08-8-2019 at about 11:10 a.m., the complainant Abdul Jabbar who is also the investigating officer has on secret information intercepted a fielder vehicle bearing Registration No. AKD-336 and during the course of search 71 rods of explosive substance, 100 Ft cable wire and 71 detonators were recovered. The appellants could not produce any license or permit, as such, they were taken into possession and Crime No. 3/2019 was lodged against them under sections 3, 4 and 5 of Explosive Substances Act, 1908 at Police Station Muslim Bagh.
3. The written complaint Ex.P/2-A was transcribed into formal FIR, Ex.P/3-H and the task of investigation of the case was conducted by the complainant Abdul Jabbar himself. He recorded the statements of witnesses under section 161, Cr.P.C. and submitted report under section 173, Cr.P.C. and produced the same as Ex.P/2-B, FSL report Ex.P/2-C and letter of prosecution sanction as ExP/2-F. Formal charge against the appellants under sections 3, 4 and 5 of the Explosive Substances Act, 1908 was framed on 9.10.2019 to which they pleaded not guilty and opted to face trial. The prosecution in order to prove its case produced, in all, three witnesses. Jalat Khan (PW-1) and Zia-ul-Haq (PW-3) are the recovery witnesses whereas, PW-2, Abdul Jabbar (ASI) is complainant as well as investigating officer of the case. The accused persons were examined under section 342, Cr.P.C, wherein once again they denied the prosecution allegations. They neither opted to make statements under section 340(2) nor produced any evidence in their defence. On the conclusion of trial, the appellants were convicted and sentenced as aforestated, hence, the instant appeal.
4. We have heard Mr. Inayat Khan Kasi, learned counsel for the appellants and Mr. Yahya Baloch, learned Additional Prosecutor General and also perused the available record with their valuable assistance. It has been argued by the learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond reasonable doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the appellants. On the contrary, Mr. Yahya Baloch, appearing on behalf of the State maintained that prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, the present appeal may be dismissed.
5. It is not disputed that the alleged explosive substances recovered in this case had been recovered from the boot/ trunk of the vehicle which was being driven by Abdul Wali co-convict. It was, thus incumbent upon the prosecution to establish conscious possession of the explosive substances on the part of the appellant Ahmed Shah but no evidence worth its name had been brought on the record in that respect. The law on the subject is quite settled that mere presence of a passenger in a vehicle cannot be treated as sufficient to saddle him with the responsibility/possession of recovered substances from the vehicle unless the prosecution establishes through independent evidence that such passenger was conscious and aware of availability of explosive substances in the vehicle.
6. The record of the case shows that safe custody of the recovered explosive, substances at the Muslim Bagh Police Station had not been established by the prosecution during the trial. The Moharrir of the police station had not been produced by the prosecution to establish the receipt of the case property or its safe custody by him. Even save transmission of the case property to the office of examiner has not been established, as the report Ex.P/2-C does not purport the name of Abdul Jabbar, who allegedly took the same to the office of examiner.
7. The expert report Ex.P/2-A has been issued by one Mehmood Khan, Commander Bomb Disposal, Divisional Headquarter Civil Defence, Zhob Division, Loralai, admittedly, the said report is not an admissible piece of evidence as the Commander bomb disposal civil defence is not an expert notified by the Provincial or Federal Government within the meaning of section 510, Cr.P.C. The report clearly manifests that the same was destined only for the perusal of the concerned Superintendent of Police and not as a piece of evidence to be produced before the Court.
8. The record reveals that the vehicle in question was intercepted by the complainant during broad daylight on a National Highway and accused were arrested but no private witness has been cited as witness despite prior information. Section 103, Cr.P.C. enjoins the officer or other person, who wants to make search of a place, to call upon, before making the search, two or more respectable inhabitants of the locality to attend and witness the search. The purpose, according to the unanimous opinion of the superior Courts, is to prevent chicaneries of police. In the present case the investigating officer/ complainant excluded everybody else to act as witness and made only his two subordinates of trust as witnesses of the alleged recoveries.
Section 19(1) of Anti Terrorism Act, enjoins that the offences under this Act shall be investigated by a police officer not below the rank of inspector and the complainant/investigating officer Abdul Jabbar being Assistant Sub-Inspector was not competent to carry out the investigation of the case and he was aware of the said legal position. In this respect, the learned counsel drew our attention to the cross-examination of investigating officer Abdul Jabbar wherein he has admitted:-- "It is correct to suggest that under the provisions of. Anti-Terrorism Act., 1908 a sub-Inspector cannot carry out the investigation".
10. Besides non-associating private witnesses, the investigating officer has also failed to prepare the site plan of the place of occurrence. Though a site plan is not treated as a substantive evidence, but the evidentiary value thereof cannot be slighted, for the reason a site plan throws light on the scene of the crime and sometimes assumes importance as in the instant case. Such omission on the part of investigating officer creates serious doubt in the prosecution case.
11. Section 05 of the Explosive Substances Act, 1908 provides punishment for an offender who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object. The perusal of record shows that in the instant case, the aforesaid ingredients of Section 05 of the Act ibid have not been fulfilled and the prosecution had not collected any evidence or material to show that the accused had possession of explosive substance for an unlawful purpose to carry (At subversive activities or to cause damage to life or property. The appellants are neither previously convicted nor involved in similar offences. It is not disputed that Muslim Bagh is a mining area and the Mine owners use such type of explosive in their 'respective mines for the purpose of extracting chromite through blasting. Thus, the conviction and sentences are not sustainable.
12. We have also noted another disturbing feature in this case. PW-2 Abdul Jabbar is the complainant and he himself is the investigating officer, his investigation is biased, rather a mockery, as agitated by the learned counsel for the appellants. Though police officer is not prohibited under law to be a complainant if he is a witness to the commission of an offence and also to be an investigating officer, so long as it does not, in any way, prejudice the accused person and the court is required to appraise the evidence produced by the prosecution as a whole and to form the opinion after evaluating the same, yet such practice has always been deprecated by the superior courts. In presence of Abdul Khalil who was performing his duties as Additional S.H.O. Police Station Muslim Bagh the complainant Abdul Jabbar should not have proceeded with the investigation of the case. It appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under section 161, Cr.P.C. Such practices, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation.
Deprecating such practice, the Hon'able Supreme Court of Pakistan in the case of The State v. Bashir and others, reported in PLD 1997 SC 408 while referring to the Police Rules observed-- "It could hardly be expected that a police officer, who is heading a raiding party and is a witness, also becomes the complainant and lodges; an FIR against the accused, and then becoming an Investigating Officer of the same case, will comply with the aforesaid Police Rule. In the circumstances, the practice of seizing officer or the head of a police party who is also a witness to the crime becoming or being nominated as an Investigating Officer of the same case should be avoided and if any other competent officer is available in the police station, he may be nominated as the Investigating Officer rather than the head of the police party. As observed Investigating Officer is an important witness for the defence also and in case the head of the police party also becomes the Investigating Officer he may not be able to discharge his duties as required of him under the Police Rules"
13. The Supreme Court directed the Ministry of Law, Justice and Parliamentary Affairs, Islamabad and also the Interior Division of the Federal Government as well as heads of the Investigating Agencies to issue instructions and to see that officers do not act as Investigating Officers and some other officers are assigned the duty of Investigating Officers in such cases. In order to achieve to objects of impartiality and fairness in investigation, the legislature, by promulgating the Police Order, 2002, separated the investigation branch from operation and other branches police.
In view of the above mentioned facts and circumstances, particularly where is the seizing officer excluded the Independent persons to act as witnesses of arrest and recovery and to chose two of his subordinates to act as the attesting witnesses, contradictions among the statements of witnesses, investigation by an officer Who was not competent to do so, issuance of expert report, by a person, C who was not notified by the Provincial or Federal government and the seizing officer himself acted as the Investigating Officer, it will not be safe to maintain convictions and sentences of the appellants. It was for these reasons that by a short order passed and announced on 31-03-2020, the appeal was allowed, the convictions and sentences of the appellants were set aside and they were acquitted.