TARIQ SALEEM SHEIKH, J.---Through this judgment we shall decide Crl. Appeal No.468-ATA/2017/BWP and Crl. Appeal No.642- ATA/2017/BWP as they both arise from judgment dated 27.9.2017 passed by the learned Judge, Anti-Terrorism Court, Bahawalpur Division, Bahawalpur, in case FIR No.31/2016 dated 5.4.2016 registered at Police Station CTD Multan, for offences under Sections 4 and 5 of the Explosive Substances Act, 1908, and Section 7(1) of the Anti-Terrorism Act, 1997.
2. Brief facts of the case are that on 5.4.2016 Complainant Muhammad Tariq/ASI (PW-6) was surveilling at the Northern Bypass with Muhammad Imran 106/CPL, (PW-3) and other officials of the Counter Terrorism Department (CTD) when a source informed him that a terrorist had alighted from a bus at Pull Pacca and was going toward the northern bank of River Sutlej carrying a Gattu (sack) containing explosives and that he could be apprehended if an immediate raid was conducted. At about 6:30 p.m. Muhammad Tariq/ASI and his contingent reached Bypass Road within the remit of Village Weeslan via eastern bank of Sutlej and saw a man coming on their side with a Gattu in his left hand. The said man turned back on seeing them but he nabbed him with the help of his team. He identified himself as Hafiz Saeed Ghani (Appellant in Crl. Appeal No.468- ATA/2017/BWP and he shall hereinafter be referred to as the "Appellant"). Muhammad Tariq/ASI searched the Gattu and recovered a small silver box weighing 8/9 kilograms and about 9/10 inches in height whose top was covered with white plaster of Paris. Two electric wires were protruding from it and a dry battery was fastened to it. This was an IED (Improvised Explosive Device) P-1 which Muhammad Tariq/ASI seized vide Recovery Memo Exh.PA. He put it on the ground, took the accused to a safe distance and called the Bomb Disposal Squad through mobile phone. In the meanwhile, he drew complaint Exh.PE and despatched it to the police station through Muhammad Imran Bashir 604/CPL for registration of case on the basis of which Arsalan Ibrahim 789/CPL (PW-4) registered FIR No.31/2016 Exh.PC. Shah Din, Bomb Disposal Commander (PW-5) reached the spot, defused the IED and handed it over to Muhammad Tariq/ASI along with its accompaniments (Exh.PD) who secured the same vide Recovery Memo Exh,PB.
3. Investigation of the case was entrusted to Inspector Jam Abdul Ghaffar (PW-7). He reached the spot where the Complainant handed over to him custody of the Appellant and the case property. Personal search of the accused yielded Rs.200/- P-14 which he took into possession vide Recovery Memo Exh.PF, He recorded the statements of the prosecution witnesses under Section 161, Cr,P.C, and prepared rough site plan of the place of occurrence Exh,PG, On his return to the police station he confined the Appellant in the lock-up and entrusted the case property to the Moharrar for safe keeping. On 6.4.2016, the Appellant was remanded to Judicial custody. On 22.4.2016 Inspector Jam Abdul Ghaffar (PW-7) got permission from the competent authority for drawing samples of the explosive substance from the IED for analysis by the Punjab Forensic Science Agency, Lahore (PFSA). During his investigation he found that the Appellant had committed the offence. Report under Section 173, Cr.P.C. was submitted accordingly.
4. On 15.6.2016, the learned Special Court framed charge against the Appellant to which he pleaded not guilty and claimed trial. In order to prove its case the prosecution produced seven witnesses. Muhammad Imran 106/CPL (.PW-3) and Complainant Muhammad Tariq/ASI (PW-6) testified about the recovery of IED P-1 from the Appellant. Shah Din (PW-5) deposed that he defused it. Arselan Ibrahim 789/CPL (P W-4) registered FIR while Khizar Khan 150/HC (PW-2) deposed about safe custody of case property. Abdul Qadir Saggu/SI (PW-1) took the samples of the explosive substance extracted from the IED to the PFSA. The Investigating Officer, Jam Abdul Ghaffar/Inspector (PW-7), gave details of his investigation and the evidence he collected in this case. In documentary evidence inter-alia report of the PFSA Exh.PH was adduced.
5. After the prosecution was through with its evidence the learned trial Court recorded the statement of the Appellant under Section 342, Cr.P.C, and confronted him with all the incriminating material that was brought against him during the, trial. He refuted the same and professed innocence. He maintained: "Complainant of the case is police official. He concocted false story and registered this false case just to show fake performance to his high-ups as in those days there was a campaign to register such like cases throughout the Punjab. All the PWs are the colleagues of Complainant. They deposed against me to strengthen the case of their colleague. Nothing has been recovered from me. No occurrence as narrated in the FIR ever took place. In fact I was abducted by CTD police from my house two months prior to the occurrence who later on involved me in this false case to justify their illegal act and save their skin. I am not a proscribed person (sic) and no case was ever registered against me. I cannot even think to commit such an act. I am a patriot. I love peace of any country. I am innocent."
6. The Appellant neither opted to make statement on oath under Section 340(2), Cr.P.C. nor examined any witnesses in his defence. On conclusion of the trial vide impugned judgment dated 27.9.2017, the learned trial Court acquitted him of the charge under Section 4 of the Explosive Substances Act, 1908, and '7(1) of the Anti- Terrorism Act, 1997, but convicted him under Section 5 of the Explosive Substances Act, 1908, and sentenced him to rigorous imprisonment for two years with forfeiture of his property in favour of the State under Section 5-A of the said Act. Benefit of Section 382-B, Cr.P.C. was, however, extended to him.
7. Hafiz Saeed Ghani has challenged his conviction and sentence before this Court through Criminal Appeal No.468-ATA/2017/BWP while the State has filed Cr1. Appeal No.642-ATA/2017/BWP seeking enhancement of his sentence.
8. In support of Cr1, Appeal No.468-ATA/2017 the learned counsel for the Appellant contended that the prosecution had failed to prove its case against the Appellant beyond doubt. He maintained that the prosecution evidence lacked credibility as it was riddled with material contradictions. Even otherwise, all the witnesses were police personnel who could not be relied upon without independent corroboration which was not available. He further contended that the prosecution had failed to establish safe custody of the case property and safe transmission of the samples of explosive substance to the PFSA which rendered the forensic report Exh.PH a nullity and uprooted the prosecution case. The learned counsel prayed that the Appellant's appeal be accepted and he may be acquitted.
9. On the other hand, the learned Deputy Prosecutor General contended that the prosecution had proved its case to the hilt. The recovery witnesses were trustworthy and had no ill will or animosity against the Appellant which could motivate them to falsely implicate him. He maintained that the report of the PFSA Exh.PH in respect of the explosive substance was positive which reinforced the prosecution case. There was no evidence that the samples were tampered. He added that the sentence awarded by the learned trial court was not commensurate with the gravity of the offence which the Appellant had committed. He prayed that the Appellant's appeal (Crl.
Appeal No. 468-ATA/2017/BWP) be dismissed and the State's appeal (Crl. Appeal. No.642-ATA/2017/ BWP) be accepted and his sentence be enhanced.
10. Arguments heard. Record perused.
11. According to the prosecution, on 54.2016 the Appellant was apprehended from the western bank of River Sutlej in Village Weeslan within the remit of Police Station Saddar Bahawalpur and IED P-1 was, recovered from him. Muhammad Imran 106/CPL(PW-3) and Complainant Muhammad Tariq/ASI (PW-6) testified about the said recovery and deposed in line with the prosecution case set out in FIR No.31/2016 Exh.PC. Shah Din, Bomb Disposal Squad Commander (PW-5), deposed that on the call of the Complainant he reached the spot, defused the IED and separated from it plastic tape P-2, dry battery P-3, a lid/cover of plaster of Paris P-4, three wires P-5/1-3, three electric resisters (P-6/1-3), small silver tin along with explosives and small cardboard containing explosives P-7, explosive of black colour P-8, explosive of grey colour P-9, explosive of mixed white and black colour P-10, explosive of white colour P-11, iron nails P-12, small silver container along with silver cover P-13. He further stated that after completing the job he handed over the device and its accompaniments (Exh.PD) to Muhammad Tariq/ASI (PW-6) who took the same into possession vide Recovery Memo Exh.PB. It is, however, observed that conviction of the Appellant cannot be maintained unless the prosecution also proves that IED P-1 contained explosive substance which could cause it to explode. For this it must produce a forensic report whose credibility depends on safe custody of the device, extraction of samples of explosive substance therefrom and safe transmission thereof to the laboratory.
12. In the instant case, Complainant Muhammad Tariq/ASI (PW-6) deposed that on 5.4.2016 when the Investigating Officer, Jam Abdul Ghaffar/Inspector (PW-7), came to the spot he handed over the custody of the Appellant and the entire case property to him. The latter admitted this fact. According to the prosecution witnesses, the Appellant was carrying the IED in a Gattu and It appears that after it was defused they put it back into it. However, there is nothing on record which may show A that it was sealed. Going forward, Jam Abdul Ghaffar/Inspector stated that he took the case property to police station and gave it to the Moharrar for safe keeping. Khizar Khan 150/HC (PW-2) acknowledged this 'fact. Jam. Abdul Ghaffar (PW-7) further deposed that on 22.4.2016 he got a letter issued from R.O. CTD, Bahawalpur, to the Incharge Civil Defence for drawing samples of the explosive substance from the IED for sending them to the PFSA. Thereafter he himself took the case property to the. Civil Defence Officer and got the requisite samples prepared. On 30.4.2016 he got a letter issued from R.O. CTD, Bahawalpur, to PFSA for forensic analysis. On 1.5.2016), he handed over the said samples to Abdul Qadir Saggu/SI (PW-1) for submission to the PFSA. In the first instance, we have noted that Khizar Khan 150/HC (PW-2) only admitted that on 22.4.2016 he delivered the case property to Jam Abdul Ghaffar, Record is completely silent on many points. There is nothing to show when Jam Abdul Ghaffar/Inspector took the device to the Civil Defence Office and who extracted the explosive substance therefrom. There is also no evidence that the samples were duly sealed. Secondly, there is a contradiction in the prosecution evidence with regard to handing over of samples to Abdul Qadir Saggu/SI (PW-1) for transmission to PFSA on 1.5.2016. Jam Abdul Qadir and Khizar Hayat both claimed that they gave the same to him. In the result, the chain of custody breaks and forensic report Exh.PH loses credibility.
13. For what has been discussed above we hold that the Appellant's conviction cannot be sustained. Hence, we allow Crl, Appeal No,468-AT/ 2017/B VIP and set aside the impugned Judgment. The Appellant is acquitted of the charge. The sentence of Appellant was suspended by this Court vide order dated 12.10.2017 passed in W.P.No.8090/2017/BWP and he was released on ball. His sureties are discharged.
14. In view of the fact that we have acquitted the Appellant, Cr1. Appeal No. 6420ATA/2017/BWP has lost relevance and is, therefore, dismissed.